Case3:11-cv-04001-RS Document1 Filed08/15/11 Page1 of 25

DAVID J. BERGER, State Bar No. 147645

THOMAS J. MARTIN, State Bar No. 150039

2 CATHERINE E. MORENO, State Bar No. 264517

ANALISA M. PRATT, State Bar No. 262951

3 SAVITH S. IYENGAR, State Bar No. 268342

WILSON SONSINI GOODRICH & ROSATI

4 Professional Corporation

650 Page Mill Road

5 Palo Alto, CA 94304-1050

Telephone: (650) 493-9300

6 Facsimile: (650) 565-5100

Email: tmartin@wsgr.com

7

PHILIP HWANG, State Bar No. 185070

8 PAUL CHAVEZ, State Bar No..241576

AUDREY DANIEL, State Bar No. 266117

9 LAWYERS' COMMITTEE FOR CIVIL RIGHTS

131 Steuart Street, Suite 400

10 San Francisco, CA 94105

Telephone: (415) 543-9444

11 Facsimile: (415) 543-0296

Email: pchavez@lccr.com

12

G JULIA HARUMI MASS, State Bar No. 189649

13 ALAN L. SCHLOSSER, State Bar No. 49957

11

AMERICAN CIVIL LIBERTIES UNION FOUND I~

14 OF NORTHERN CALIFORNIA

- -·-

39 Drumm Street

15 San Francisco, CA 94111

Telephone: (415) 621-2493

16 Facsimile: (415) 255-8437

Email: jmass@aclunc.org

17

11

4001

18 Attorneys for Plaintiffs UELIAN DE-ABADIA-PEIXOTO, ESMAR CIFUENTES,
19 PEDRO NOLASCO JOSE, and MILIAN WEI

20

21

UNITED STATES DISTRICT COURT

22

NORTHERN DISTRICT OF CALIFORNIA

23

UELIAN DE ABADIA-PEIXOTO, ESMAR

)

24 CIFUENTES, PEDRO NOLASCO JOSE, and )

MILIAN WEI on behalf of themselves and all )

25 others similarly situated,

)

)

26

Plaintiffs,

)

)

27

vs.

)

)

28 UNITED STATES DEPARTMENT OF

)

.!:H,O,MwE""L..tAuN:uDLillSE""C""Ud.!R""I'"'-T'"'-Y~.Ju:AN""""EuT_ _ _~_)

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Case No. CLASS ACTION- (CIVIL RIGHTS) COMPLAINT
3702243 22.DOC

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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I NAPOLITANO, Secretary of the United States )

Department of Homeland Security, UNITED

)

2 STATES IMMIGRATION AND CUSTOMS )

ENFORCEMENT, JOHN T. MORTON, Director )

3 of U.S. Immigration and Customs Enforcement, )

TIMOTHY AITKEN, Field Office Director of )

4 the San Francisco District of U.S. Immigration )

and Customs Enforcement, ERIC H. HOLDER, )

5 JR., United States Attorney General, THE

)

EXECUTIVE OFFICE FOR IMMIGRATION )

6 REVIEW, and JUAN P. OSUNA, Director of the )

Executive Office for Immigration Review,

)

7

)

Defendants.

)

8 _____________________________))

9

10

INTRODUCTION

11

I. Thousands of immigration detainees annually appear and provide testimony in San

12 Francisco Immigration Court shackled at their wrists, waists, and ankles without regard to

13 whether they pose any risk of disruption, violence, or flight. Defendants' policy and practice of

14 shackling all detained immigrants for immigration court proceedings causes detainees to suffer

15 physical and emotional pain, is dehumanizing, and undermines the dignity of court proceedings.

16 It also hinders detainees' ability to function at full mental capacity during life-changing

17 immigration hearings and undermines their ability to communicate with their attorneys. This

18 class action complaint for declaratory and injunctive relief is brought on behalf of current and

19 future adult immigration detainees who have or will have proceedings in San Francisco

20 Immigration Court.

21

2. Freedom from physical restraint has always been recognized as a fundamental

22 constitutional right, requiring due process before it can be infringed. English legal scholarship

23 from the Eighteenth Century, foundational to our own system, recognized that "if felons come in

24 judgment to answer, they shall be out of irons, and all manner of bonds, so that their pain shall

25 not take away any manner of reason." Spain v. Rushen, 883 F.2d 712, 723 (9th Cir. 1989) (citing

26 sources). Yet, in San Francisco Immigration Court, all immigration detainees- who are not

27 "felons," but rather civil detainees- are required to appear and testify in hard metal restraints

28 around their wrists, ankles, and waists.

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COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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1

3. This harm is compounded by the fact that most immigration detainees that appear

2 in San Francisco Immigration Court are housed in facilities several hours away. They are placed

3 in shackles for transport before and after their hearings, such that most immigration detainees

4 spend ten hours in shackles - before, during, and after their appearances in front of an

5 immigration judge. In imposing these restraints during immigration court proceedings,

6 Defendant Immigration and Customs Enforcement ("ICE") refuses to provide Plaintiffs with the

7 most basic element of due process- an individualized determination regarding the need for any

8 restraint, much less the use of deeply intrusive shackles.

9

4. In San Francisco Immigration Court, Defendant ICE has adopted a practice of

10 shackling all adult immigration detainees in its custody without conducting an individualized

11 review of the need for restraints. ICE's ability to execute this unconstitutional practice has been

12 aided by the participation of the other Defendants in this matter, who have authorized or ratified

13 the blanket shackling of immigration detainees, or have abdicated their legal responsibilities,

14 turning a blind eye to and acquiescing in ICE's unlawful and inhumane practices.

15

5. Detainees' requests to have their shackles removed during their immigration

16 hearings have been a futile exercise. Defendant Executive Office for Immigration Review

17 ("EOIR")- the agency that employs San Francisco's immigration judges and administers

18 immigration courts - has refused to exercise its legal responsibility to regulate the conduct of

19 immigration court hearings and safeguard the due process rights of detainees appearing in its

20 courtrooms. Instead, EOIR has abdicated all responsibility to ICE. Consequently, even if a

21 presiding immigration judge believed that shackles were unwarranted in particular cases, he or

22 she would be powerless to modify the restraints.

23

6. EOIR's abdication of authority to ICE is particularly alarming given ICE's role in

24 immigration cases. ICE acts as the prosecutor in such cases, advocating to the immigration

25 judge as to why an individual should be removed from the country. In many cases, ICE's ability

26 to persuade a judge to deny an individual relief from deportation is tied to ICE's ability to

27 portray that individual as untrustworthy and lacking credibility, or a danger to the community.

28

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1

7. Plaintiffs Uelian De Abadia-Peixoto, Esmar Cifuentes, Pedro Nolasco Jose, and Mi

2 Lian Wei have been the victims of these blanket shackling practices. Like the vast majority of

3 the class members they seek to represent, none of the named plaintiffs has a history of violence

4 or disruption in court, has attempted to escape from custody, or has avoided prosecution of his or

5 her immigration case. All of them experience pain associated with the use of shackles before,

6 during, and after their hearings, and all find the use of shackles demeaning, distracting, and

7 disempowering.

8

8. However, the named plaintiffs are merely four of the thousands of immigration

9 detainees who will continue to suffer harm as a result of these unconstitutional and inhumane

I0 practices. Thousands of immigration detainees, including the elderly and individuals with

II physical or mental disabilities, are being unnecessarily subjected to hours in confining and

12 painful shackles in court, without justification. This shackling is not only physically painful and

13 dehumanizing, but it also hinders detainees' ability to communicate confidentially with their

14 attorneys and meaningfully participate in their cases.

15

9. Consequently, this class action is brought on behalf of all current and future adult

16 immigration detainees who have or will have proceedings in San Francisco Immigration Court.

17 Plaintiffs seek declaratory and injunctive relief requiring Defendants to cease their cruel,

18 degrading, and unconstitutional practice of shackling detainees for in-court appearances without

19 an individualized determination that such restraints are necessary.

20

JURISDICTION

21

10. This Court has jurisdiction of this action pursuant to 28 U.S.C. § 1331 (federal

22 question), 28 U.S.C. §§ 2201 and 2202 (declaratory relief), and 5 U.S.C. § 706 (waiver of

23 sovereign immunity).

24

II. Personal jurisdiction exists over Defendants in this case, owing to, among other

25 things, the federal nature of Defendants' conduct.

26

27

28

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1

VENUE

2

12. Venue is proper in the Northern District of California pursuant to 28 U.S. C. §

3 1391 (e) because a substantial part of the events and omissions giving rise to Plaintiffs' claims

4 occurred, and continues to occur, in this district.

5

INTRADISTRICT ASSIGNMENT

6

13. Assigmnent to the San Francisco Division ofthis Court is proper under Local Rule

7 3-2(d) because a substantial part of the events or omissions giving rise to Plaintiffs' claims

8 occurred, and continues to occur, in San Francisco County.

9

THEPARTIES

I0 Plaintiffs

11

14. Plaintiffs Uelian De Abadia-Peixoto, Esmar Cifuentes, Pedro Nolasco Jose, and Mi

12 Lian Wei presently are immigration detainees in ICE custody.

13

15. Uelian De Abadia-Peixoto, Esmar Cifuentes, Pedro Nolasco Jose, and Mi Lian

14 Wei are collectively referred to herein as "Named Plaintiffs." Uelian De Abadia-Peixoto, Esmar

15 Cifuentes, Pedro Nolasco Jose, and MiLian Wei, along with the above-described class, are

16 collectively referred to herein as "Plaintiffs."

17

16. PlaintiffUelian De Abadia-Peixoto is in immigration custody at the Yuba County

18 Jail. She is currently in removal proceedings before the San Francisco Immigration Court and

19 plans to seek relief through a U-Visa based on having been the victim of and witness to a violent

20 crime. She may, in the alternative, seek relief through aT-Visa for victims of trafficking or

21 asylum, withholding of removal, and relief under the Convention Against Torture based on her

22 fear of persecution in Brazil. She has appeared five times since January 2011 in immigration

23 court in metal restraints on her wrists, waist, and ankles, and has been injured by application of

24 such restraints. Defendants have not afforded Plaintiff De Abadia-Peixoto any individualized

25 determination regarding the likelihood that she would pose a security or flight risk if allowed to

26 appear in immigration court without restraints. Her next hearing is scheduled for September 16,

27 2011.

28

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I

17. PlaintiffEsmar Cifuentes is in immigration custody at the Yuba County Jail. He

2 is currently in removal proceedings before the San Francisco Immigration Court and is seeking

3 relief through cancellation of removal based on hardship to his U.S. citizen child if deported. He

4 has appeared three times since May 20 II in immigration court in metal restraints on his wrists,

5 waist, and ankles, and has been injured by the application of such restraints. Defendants have

6 not afforded Plaintiff Cifuentes any individualized determination regarding the likelihood that he

7 would pose a security or flight risk if allowed to appear in immigration court without restraints.

8 His next hearing is scheduled for August 16, 20 II.

9

18. Plaintiff Pedro Nolasco Jose is in immigration custody at the Yuba County Jail.

I 0 She is currently in removal proceedings before the San Francisco Immigration Court and is II seeking relief through an application for aU-Visa. 1 She has appeared about five times since

12 June 20 II in immigration court in metal restraints on her wrists, waist, and ankles, and has

13 suffered mental and physical injury through the application of such restraints. Defendants have

14 not afforded Plaintiff Nolasco Jose any individualized determination regarding the likelihood

15 that she would pose a security or flight risk if allowed to appear in immigration court without

16 restraints. Her next hearing is scheduled for September 9, 20 II.

17

19. PlaintiffMi Lian Wei is in immigration custody at the Sacramento County Jail.

18 She is currently in removal proceedings before the San Francisco Immigration Court and is

19 seeking relief through an asylum application based on domestic abuse in her home country. She

20 has appeared three times since June 2011 in immigration court in metal restraints on her wrists,

21 waist, and ankles, and has suffered mental and physical injury through the application of such

22 restraints. Defendants have not afforded Plaintiff Wei any individualized determination

23 regarding the likelihood that she would pose a security or flight risk if allowed to appear in

24 immigration court without restraints. Her next hearing is scheduled for September 30, 2011.

25

26 1 Pedro Nolasco Jose was born male, but has a female gender identity. She is recognized as
27 transgender by the Yuba County Jail and subject to different housing conditions as a result of this identity. Plaintiffs will refer to Pedro Nolasco Jose as "Ms. Nolasco" and "she" for purposes of
28 this litigation.

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1 Defendants

2

20. Defendant United States Department ofHomeland Security ("DHS") is the arm of

3 the federal government responsible for enforcement of immigration laws. In 2003, DHS

4 assumed responsibility for immigration enforcement from the Immigration and Naturalization

5 Service ("INS"), which ceased to exist.

6

21. Defendant Janet Napolitano is the Secretary and highest-ranking member of the

7 DHS. As Secretary ofDHS, Ms. Napolitano has oversight over Immigration and Customs

8 Enforcement, and is responsible for DHS's policies, practices and procedures. Ms. Napolitano is

9 being sued in her official capacity.

10

22. Defendant Immigration and Customs Enforcement ("ICE") is a federal law

11 enforcement agency within the Department of Homeland Security. ICE is responsible for

12 transporting immigration detainees to and from - and overseeing them during - immigration

13 hearings.

14

23. Defendant John T. Morton is the Director ofiCE. As head ofiCE, Mr. Morton is

15 responsible for ICE's practices, policies, and procedures. Mr. Morton is being sued in his

16 official capacity.

17

24. Defendant Timothy Aitken is the Field Office Director for the San Francisco

18 District ofiCE, which is responsible for the transportation and oversight of immigration

19 detainees in several geographic regions, including Northern California. Mr. Aitken oversees the

20 San Francisco District Field Office's functions and operations and the immigration detainees

21 within its jurisdiction, including immigration detainees appearing in San Francisco Immigration

22 Court. Mr. Aitken is being sued in his official capacity.

23

25. Defendant Eric H. Holder, Jr. is the Attorney General of the United States and the

24 head of the Department of Justice ("DOJ"). Mr. Holder shares responsibility for implementation

25 and enforcement of the immigration laws with Defendant Janet Napolitano. Mr. Holder is being

26 sued in his official capacity.

27

26. Defendant Executive Office for Immigration Review ("EOIR") is an agency within

28 the DOJ with the primary mission of adjudicating immigration cases; including cases involving

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1 detained immigrants. One ofEOIR's immigration courts is located at 630 Sansome Street in San

2 Francisco, California.

3

27. Defendant Juan P. Osuna is the Director ofEOIR. As director ofEOIR, Mr.

4 Osuna is responsible for EOIR's practices, policies and procedures. Mr. Osuna is being sued in

5 his official capacity.

6

28. DHS, Janet Napolitano as Secretary ofDHS, ICE, John Morton as Director ofiCE,

7 Timothy Aitken as Field Office Director of the San Francisco ICE District Office, Eric Holder as

8 Attorney General, EOIR, and Juan P. Osuna as Director of EOIR are collectively referred to

9 herein as "Defendants."

10

CLASS ALLEGATIONS

11

29. Named Plaintiffs bring this action pursuant to Federal Rule of Civil Procedure 23

12 on behalf of a class of current and future immigration detainees who are age eighteen or over

13 who have or will have proceedings in San Francisco Immigration Court (the "Plaintiff Class").

14 Named Plaintiffs are members of the class they seek to represent.

15

30. Plaintiffs do not seek compensatory or monetary damages. Instead, Plaintiffs seek

16 injunctive and declaratory relief broadly applicable to members of the Plaintiff Class.

17

31. The proposed class meets the requirements of Federal Rule of Civil Procedure

18 23(a)(l). Each year, thousands of immigration detainees are shackled when they attend

19 immigration court hearings in their cases in San Francisco Immigration Court. According to

20 EOIR Statistics, in fiscal year 20 I 0, the San Francisco Immigration Court completed proceedings

21 in 3,281 detained cases. FY Statistical Year Book, U.S. Department of Justice, at B3 Table 1

22 (January 2011 ); available at http://www.justice.gov/eoir/statspub/fy1 Osyb.pdf (last visited

23 August 12, 2011 ). This figure does not include thousands of cases that were also heard but not

24 completed during the fiscal year. In addition, because ICE detainees are frequently removed

25 from the country, released from detention, or transferred to other regions of the country, the

26 membership of the class changes constantly. Therefore, the class is so numerous, and

27 membership in the class is so fluid, that joinder of all members is impractical.

28

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1

32. The proposed class meets the requirements of Federal Rule of Civil Procedure

2 23(a)(2). First, the Plaintiff Class seeks only injunctive and declaratory relief. Second, there are

3 several common questions of law and fact common to all members, including (i) whether ICE

4 shackles all adult immigration detainees in San Francisco Immigration Court without an

5 individualized determination of the need for such restraints, and without affording members of

6 Plaintiff Class an opportunity to contest the decision before an independent decision-maker; and

7 (ii) whether this practice violates the Due Process Clause. All class members have a common

8 interest in ending this practice. Questions of Jaw and fact are clearly common to all class

9 members and predominate over any questions affecting individual members.

10

33. The proposed class meets the requirements of Federal Rule of Civil Procedure

II 23(a)(3). The claims ofthe representative parties are typical of the claims of the class members.

12 Like all proposed class members, Named Plaintiffs are immigration detainees who have been and

13 will again be shackled during their appearances in San Francisco Immigration Court pursuant to

14 Defendants' blanket shackling practices without an individualized determination of the need for

15 shackles. Named Plaintiffs and the class they represent have been directly injured by

16 Defendants' unconstitutional shackling policies and practices, and are likely to suffer future

17 harm from continuation of these policies and practices.

18

34. The proposed class meets the requirements of Federal Rule of Civil Procedure

19 23(a)(4). Named Plaintiffs will fairly and adequately represent the interests of the class because

20 they seek relief identical to the relief sought by all class members, and because they have no

21 interests adverse to other class members. Plaintiffs are represented by pro bono counsel from

22 Wilson, Sonsini, Goodrich & Rosati, P.C., the Lawyers' Committee for Civil Rights of the San

23 Francisco Bay Area, and the American Civil Liberties Foundation of Northern California, who

24 will vigorously prosecute this action and are experienced in class action and civil rights

25 litigation.

26

35. Class certification pursuant to Federal Rule of Civil Procedure 23(b)(2) is also

27 appropriate because Defendants have acted and refused to act on grounds generally applicable to

28 the Plaintiff Class, thereby making appropriate final injunctive and declaratory relief with respect

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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1 to the class as a whole. Indeed, this action is particularly suited for class certification because a

2 central allegation in the case is that the Plaintiff Class is harmed and/or threatened by

3 Defendants' unconstitutional policies, practices, acts and omissions pertaining to ICE's practice

4 of shackling all members of Plaintiff Class without conducting any individualized determination

5 of the need for such restraints, and have also denied members of the Plaintiff Class an

6 opportunity to contest the shackling decision before an independent decision-maker. Further,

7 class certification is appropriate because class actions for declaratory or injunctive relief help

8 avoid mootness and facilitate enforcement ofjudgments. The members ofthe Plaintiff Class are

9 entitled to declaratory and injunctive reliefto end Defendants' unconstitutional policies and

10 practices concerning the shackling of immigration detainees in San Francisco Immigration Court.

11

STATEMENT OF FACTS

12

36. ICE shackles all detainees who appear in immigration court in San Francisco-

13 including refugees fleeing persecution and torture in their native countries, the elderly, and the

14 physically and mentally disabled- without conducting an individualized determination of the

15 need for shackles.

16

37. The use of shackles for detainees' court appearances is not limited to San

17 Francisco, but it is also not a nation-wide practice. It is, however, a consistent practice within

18 the San Francisco Immigration Court.

19

38. ICE's blanket shackling practices cause substantial harm to the Named Plaintiffs

20 and the Plaintiff Class (as defined above). This harm includes physical pain and discomfort,

21 embarrassment and humiliation, mental and emotional distress, and a sense that the detainee is

22 being misjudged to be an exceptionally dangerous person. Immigration detainees consistently

23 describe their experience of shackling as humiliating, embarrassing, and unfair. They feel that

·24 being forced to wear shackles falsely portrays them as serious and violent criminals. Many

25 comment that they are treated like "animals." Common sentiments expressed by detained

26 immigrants regarding the mandatory use of restraints include, "They treat us like we're nothing.

27 We're people. We're not going to hurt anyone."

28

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I

39. Many immigration detainees seek asylum or other relief related to abuse by foreign

2 governments or private parties. For detainees who have suffered such abuse, the imposition of

3 shackles often reignites prior traumatic experiences and causes independent injuries.

4

40. In addition to the physical and psychological il\iuries caused by in-court shackling,

5 the practice also impedes an individual's mental acuity, confidence, and energy necessary to

6 participate fully and fairly in immigration proceedings.

7

41. The mandatory use of in-court shackles for all detained immigrants also threatens

8 the privacy and privilege of the attorney-client relationship, forcing detainees to disclose

9 personal, sometimes humiliating, information within earshot of other detainees or otherwise risk

I 0 withholding from their counsel information which could be crucial to their removal cases.

II Moreover, shackles inflict pain on detained immigrants when they attempt to review and/or sign

12 documents presented to them, to scratch an itch or wipe away tears. Shackles also prevent

13 detainees from raising their hands to be sworn in before providing testimony, gesturing while

14 testifying, communicating to counsel during proceedings, and taking notes during the course of a

15 proceeding where they may be representing themselves.

16 Immigration Detainees As a Class Are Not Likely To Pose a Security Threat in Court

17

42. ICE runs the largest civil detention program and supervised release program in the

18 country, with more than thirty-one thousand immigrants in detention at more than three hundred

19 facilities throughout the nation.

20

43. Immigrants who are brought to ICE's attention by a local law enforcement agency

21 may not have been convicted of a crime. Under a new federal immigration program implemented

22 in 2008, ICE receives the fingerprints of all individuals who have been booked at a county jail,

23 regardless of whether they have actually been convicted of a crime (or claim to be the victim of

24 the crime). Others may have completed their criminal sentence or have been convicted of a minor

25 offense when they are placed on an immigration hold. Such individuals may be denied bond by

26 ICE agents-and therefore become immigration detainees subject to mandatory in-court

27 shackling-even if an immigration judge later decides to grant bond.

28

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1

44. The in-court use of shackles is reserved for detained immigrants, and is a

2 requirement for all detained immigrants, even those whose detention may be due to a financial

3 inability to post bond. Thus, identical immigration and criminal backgrounds may lead to

4 shackling for an indigent immigrant, but not for an immigrant who posts bond. In this way,

5 shackling for in-court proceedings is a condition of immigration detention for immigrants

6 appearing in San Francisco Immigration Court.

7

45. The reasons immigration detainees are in detention vary. Individuals may be

8 detained because of non-violent crimes, such as forgery or drug possession, which may result in

9 mandatory detention. In fact, an October 2009 ICE report indicates that approximately 95% of

10 immigration detainees were not violent felons. Immigration Detention Overview and

11 Recommendations, at 2; available at http://www.ice.gov/doclib/about/offices/odpp/pdf/ice-

12 detention-rpt.pdf (last viewed August 8, 2011). Individuals may be detained pending adjudication

13 of an application for relief such as asylum, a petition under the Violence Against Women Act, or

14 cancellation of removal based on family hardship. In the vast majority of cases, the reasons

15 purportedly justifYing immigration detention are not sufficient to justify shackling to prevent in-

16 court violence or disruption or risk of flight. Even detainees with convictions for violent crimes

17 are entitled to an individualized determination to consider whether their prior convictions and

18 other conduct require the use of any restraints in court, much less hard metal shackles on their

19 wrists, waists, and ankles.

20 Removal Proceedings for Detained Immigrants

21

46. Once ICE determines to place an individual into removal proceedings, the next step

22 is to determine whether they should be released or detained. This initial determination, as well as

23 any initial bond amount, is made by an ICE agent rather than a neutral magistrate. Most

24 immigration detainees processed by ICE in San Francisco do not have access to an immigration

25 judge for the purpose of seeking review ofiCE's bond determination for two or more weeks.

26

47. Adult immigrants who are denied bond or unable to post bond are housed at either

27 a federal immigration facility or a facility with which immigration authorities contract to house

28 ICE detainees. In Northern California, there are no facilities dedicated to housing solely

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I immigration detainees. As a result, adult detainees are housed in criminal facilities, including

2 Sacramento County Jail, West Contra Costa County Detention Facility, and Yuba County Jail.

3

48. All detainees appear at master calendar hearings, which are analogous to

4 preliminary hearings in criminal cases. Many detainees have access to bond hearings in which

5 they can seek release on bond for an amount lower than was granted by the ICE agent or can seek

6 bond from an immigration judge if the ICE agent denied bond. Detainees also appear at individual

7 merits hearings- during which detainees often give testimony to determine whether the particular

8 detainee is eligible for relief from removal, such as asylum. Post-removal order bond hearings are

9 also available to detained immigrants in the event of a lengthy appeal process or if the government

10 is unable to effectuate the individual's removal in a reasonable amount of time.

II

49. Immigration detainees appearing for any of these types of hearing in San Francisco

12 Immigration Court are required to appear in full shackles which include ankle and wrist restraints.

13 Wrist restraints are connected to a chain around the detainee's waist with about four inches length

14 of chain between the waist chain and wrist restraint.

15

50. Many detainees are in custody for months, and they may have numerous court

16 appearances- during each of which they are shackled. According to ICE statistics, the average

17 length of stay for an ICE detainee was over 30 days in fiscal year 2008, and some detainees

18 remain in custody for a year or more. See !d. at 6. Adult detainees are detained until they are

19 released on bond, granted affirmative relief from removal (and any appeal by the government is

20 denied, which can take years), voluntarily depart or are removed from the country following an

21 order of removal and any appeals of that order.

22

51. Detainees who appear in San Francisco Immigration Court are bused from a

23 detention center located outside of San Francisco. In many instances, detainees are housed as far

24 away as Yuba County, California, which is more than one hundred and twenty miles from the San

25 Francisco Immigration Court. When detainees have court appearances, they often are awakened

26 as early as 2:00 a.m. and shackled in preparation for transport. They remain shackled as they

27 await the arrival oftheir bus and for the duration of the journey to San Francisco Immigration

28 Court. Upon arrival at the courthouse, detainees are taken to a secure room and unshackled while

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I they await their court hearing. Detainees are then re-bound and taken into the courtroom in

2 shackles for their immigration court hearings. They remain shackled during the entirety of the

3 proceedings. After their court hearings, detainees may be taken to a secure room again and

4 unshackled to await their return transport to the detention facility. Before beginning their

5 transport back to the detention facility, the detainees are re-shackled and remain in shackles during

6 the entire return trip to the detention facility. In many instances, detainees are shackled for ten to

7 twelve hours in a single day.

8

52. Master Calendar Hearings. At master calendar hearings, detained i)Ilmigrants are

9 often chained to one another, in what is euphemistically called a "daisy-chain" - a metal chain or

10 seatbelt-style restraint fastened around each detainee's waist, connected to his or her wrists, and

II linked to the adjacent detainee. Additionally, each detainee's ankles are shackled together.

12 Detainees often are seated four to a bench and remain handcuffed together throughout the court

13 proceedings. The various shackles restrict the detainees' mobility, causing pain and discomfort if

14 they need to review or sign required documents and preventing them from taking notes during

15 their hearing, shifting their leg positioning while seated, gesturing, or simply placing their hands in

16 their laps.

17

53. Detainees who are represented by counsel must remain handcuffed to other

18 detainees while their attorney stands next to them in the gallery and attempts to whisper

19 confidential, attorney-client privileged information. This information is easily overheard by the

20 persons to whom they are handcuffed, who are, at most, one foot away. This practice is

21 particularly problematic for detainees who have grounds to seek asylum because they may, for

22 example, fear persecution based on their HIV status, gender (including having been the victim of

23 domestic violence in their native country), sexual orientation, gender identity, or other protected

24 grounds. Because they are shackled to other individuals, such detainees are forced either to

25 disclose this information in front of others, causing humiliation and emotional distress, or to

26 withhold this information from their counsel, thereby prejudicing their ability to fully present their

27 cases.

28

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Case3:11-cv-04001-RS Document1 Filed08/15/11 Page15 of 25

I

54. When the immigration judge calls a detainee's case during his or her master

2 calendar hearing, the detainee is generally not permitted to approach his or her counsel's table.

3 The only way the attorney and detainee can consult during the proceeding is if the attorney

4 requests a moment to walk back to the gallery to speak with his or her client-but within earshot

5 of other detainees.

6

55. A detainee who does not have counsel to explain the proceedings to him or her may

7 not know the disposition of his or her case. This is because it is often impossible to clearly hear

8 the judge from where the shackled detainees are situated in the gallery. If the detainee is asked to

9 speak, his or her response might not be recorded, thereby precluding a complete record on appeal.

I 0 ICE agents and/or private security with whom ICE contracts are armed with guns and other

II weaponry and oversee the gallery at all times.

12

56. Bond and Individual Merits Hearings. Detainees are shackled during their bond

l3 and individual merits hearings as well. During these hearings, armed ICE agents and/or security

14 contractors are again present in the courtroom. While detainees typically are not shackled to other

15 detainees during bond and individual merits hearings, each detainee's ankles are shackled together

16 and their wrists are shackled to a metal chain or seatbelt-style restraint fastened around their waists

17 such that they cannot take notes, sign or review required documents without discomfort, present

18 evidence, use body language to help communicate their stories, or gesticulate for emphasis.

19

57. This practice is particularly problematic for detainees who do not have the benefit

20 of counsel to advocate and clarify on their behalf and for detainees who are not fluent in English

21 or have difficulty conveying their testimony solely through words. Even worse, when a detainee

22 is unrepresented, the shackles hinder the detainee from effectively presenting a case, inhibiting his

23 or her ability to manipulate important papers to present to the judge, read materials that have been

24 distributed to the detainee, or even to make a basic gesture to demonstrate a point about which the

25 detainee is testifying.

26

58. Even when counsel is present, detainees cannot do something as basic as jot notes

27 to counsel or put on their eyeglasses. They cannot gesture while testifying, brush their hair aside,

28 attend to an itch, or wipe a tear as they plead for their release on bond or for the merits of their

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COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case3:11-cv-04001-RS Document1 Filed08/15/11 Page16 of 25

1 case. Indeed, when individual detainees are sworn in to give testimony in their own defense, the

2 shackles prevent them from raising their right hands, while they watch court interpreters and

3 witnesses take the oath with hands held high.

4

59. Whether or not detainees are represented, shackles painfully interfere with their

5 ability to participate in their own proceedings, make them ,more nervous and less confident, and

6 compound the physical pain, mental distress, humiliation, and confusion that detainees experience

7 from being unjustifiably shackled.

8

60. Adult detainees are shackled regardless of the effect of such shackling on their

9 mental state or physical condition. Thus, even asylum applicants, who may have endured torture

10 or abuse involving restraints and are at severe risk of re-traumatization, are shackled. Detainees

11 are shackled for the duration of their bond and individual merits hearings. In some instances,

12 individual merits hearings can last hours or extend over the course of several days. During this

13 time, the detainee is shackled the duration of each courtroom appearance and despite the

14 consistent presence of ICE agents and/or private security personnel in the courtroom.

15

61. Defendants' failure to make an individualized determination whether in-court

16 shacking is necessary for each detainee is particularly egregious where the detainees have already

17 endured hours of shackling during transport and are understandably anxious given what is at stake

18 for them and their families. For instance, a detainee's appearance before an immigration judge

19 determines whether he or she will be permitted to remain in the United States (where spouses,

20 children, and other relatives may reside). If the detainee loses his or her immigration case, he or

21 she may face removal to a country where he or she has not lived since he or she was an infant and

22 where he or she may not know anyone, or he or she may face persecution, torture, or even death.

23 EOIR'S Complicity in Constitutional Violations

24

62. ICE has claimed responsibility for immigration courtroom security pursuant to a

25 1988 memorandum titled "Operating Policies and Procedures Memorandum 88-9: Courtroom

26 Security." In this memorandum, EOIR purports to delegate its authority for courtroom security to

27 the INS, the predecessor entity to ICE. This memorandum states that ICE (then INS) will have

28 "primary responsibility" for providing security in immigration court.

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COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case3:11-cv-04001-RS Document1 Filed08/15/11 Page17 of 25

1

63. EOIR, which claims to have delegated oversight for courtroom security to ICE, has

2 refused to fulfill its legal obligations by allowing ICE to shackle all immigration detainees for

3 court appearances without an individualized determination as to a detainee's threat of flight,

4 violence or disruption in the courtroom.

5

64. While the Constitution requires judges to make determinations about the need for,

6 and less restrictive alternatives to, the use ofrestraints in the court room in criminal cases, EOIR

7 has refused to exercise its legal responsibility to regulate the conduct of immigration court

8 hearings and safeguard the due process rights of detainees appearing in its courtrooms. EOIR has

9 abdicated authority to ICE, despite the fact that ICE also functions as the prosecutor in

10 immigration cases and therefore (unlike marshals or bailiffs in criminal cases) may benefit from

11 conditions that make detainees appear untrustworthy and lacking credibility, such as appearing in

12 shackles typically reserved for only the most dangerous and disruptive criminal defendants.

13

65. Letters to DHS and EOIR in 2010 and 2011 detailing these unconstitutional

14 practices have been unsuccessful in bringing about any remediation. Despite being informed of

15 the wide ranging nature ofiCE's unlawful shackling practices, DHS and EOIR have refused to

16 remedy ICE's ongoing violations of immigration detainees' constitutional rights.

17

ALLEGATIONS OF NAMED PLAINTIFFS

18 Uelian De Abadia-Peixoto

19

66. PlaintiffUelian De Abadia-Peixoto is a 35-year-old woman currently in

20 immigration custody in Yuba County. She is a native and citizen of Brazil. Prior to being placed

21 in custody, Ms. De Abadia-Peixoto lived in South San Francisco, CA with her then-five-year-old

22 son, Fabricio, Jr.

23

67. Ms. De Abadia-Peixoto received a Notice to Appear commencing her removal

24 proceedings on January 4, 2010, and charging her with removability on the grounds that she

25 entered the United States without inspection.

26

68. Ms. De Abadia-Peixoto's immigration case was assigned to the San Francisco

27 Immigration Court in April 2010 and remains pending there. Her next immigration hearing is

28 scheduled for September 16, 2011.

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I

69. Ms. De Abadia-Peixoto has been in immigration custody in northern California

2 since about January 20 II. She was not considered for release on bond and has not received a

3 bond hearing in San Francisco because the government alleges she is subject to mandatory

4 detention under 8 U.S.C. § 1226(c) based on a prior controlled substances conviction.

5

70. Ms. De Abadia-Peixoto has been placed in metal hand and leg restraints for travel

6 to and participation in immigration court proceedings in San Francisco on about five occasions.

7 On one of these occasions, she was chained to other immigration detainees.

8

71. For every immigration court hearing in San Francisco she has attended since

9 January 2011, Ms. De Abadia-Peixoto has appeared in full shackles-ankle and wrist restraints

I 0 and a belly chain. In the event she has to testify, she cannot raise her hand to be sworn in.

11

72. As a result of previous injury, Ms. De Abadia-Peixoto has plastic and steel plates in

12 her knees, legs, and feet. The shackles used during transportation and in-court proceedings

13 aggravate her previous injury and current medical condition. In one instance, the use of metal

14 restraints led her to cry in pain. The guards, however, refused to move them and afterwards, her

15 legs were bruised and swollen. On or about June 19,2011 she asked the nurse at Yuba County if

16 she could be provided pain medication to dull the effect of the chains on a future bus ride.

17

73. A domestic violence survivor, Ms. De Abadia-Peixoto's injury from being shackled

18 is intensified by the memories it raises of her having been bound and raped by her abusive

19 husband and his brother many years ago.

20

74. Ms. De Abadia-Peixoto has limited mobility due to previous injuries and she has no

21 history of violence or disruption in court or in custody. She would pose no threat to the safety and

22 security of the courtroom or risk of flight if allowed to appear without physical restraints.

23

75. Ms. De Abadia-Peixoto feels that by forcing her to appear during her court

24 proceedings in shackles, Defendants "treat her like nothing," and "treat her like a violent

25 criminal."

26

27

28

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Case3:11-cv-04001-RS Document1 Filed08/15/11 Page19 of 25

1 Esmar Cifuentes

2

76. Plaintiff Esmar Cifuentes is a 39-year-old man currently in immigration custody in

3 Yuba County. He is a native and citizen of Guatemala. Prior to being placed in custody Mr.

4 Cifuentes lived in San Rafael, California.

5

77. Mr. Cifuentes received a Notice to Appear commencing his removal proceedings

6 on or about May 5, 2011. He was placed in ICE detention on or about May 5, 2011. An 7 immigration judge denied Mr. Cifuentes bond on the grounds that he was a danger to the 8 community because of several incidents of driving under the influence. Mr. Cifuentes's next

9 immigration hearing is scheduled for August 16, 2011 and he is seeking relief through cancellation

10 of removal based on hardship to his U.S. citizen children.

11

78. Mr. Cifuentes has been placed in metal hand and leg restraints for travel to and

12 participation in immigration court proceedings in San Francisco on about three occasions. On one

13 of these occasions, he was chained to other immigration detainees in such a fashion that he could

14 not speak confidentially with a consulting attorney.

15

79. For every immigration court hearing he has attended since May 2011, Mr.

16 Cifuentes has appeared in full shackles-ankle and wrist restraints and a belly chain. As a result

17 of these shackles, during his bond hearing, he was not able to raise his hand to be sworn in to

18 testify.

19

80. Several years ago, Mr. Cifuentes cut his foot badly and developed permanent nerve

20 damage. Due to this injury, Mr. Cifuentes experiences intense pain when he is shackled for

21 inunigration court appearances. After traveling to and appearing at his bond hearing, he had
22 bruises and marks that were visible for three days. His foot falls asleep during court proceedings

23 due to the shackles, causing him discomfort, distracting him from the proceedings, and negatively

24 impacting his ability to concentrate and answer questions. The forced lack of movement from
25 shackling also leads to body aches and leaves Mr. Cifuentes feeling confused and punished in 26 court. In response to requests by Mr. Cifuentes, agents have ignored him or refused to adjust the 27 shackles. 28

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Case3:11-cv-04001-RS Document1 Filed08/15/11 Page20 of 25

1

81. Mr. Cifuentes has no history of violence or disruption in court and would pose no

2 threat to the safety and security of the courtroom or threat of flight if allowed to appear without

3 physical restraints.

4

82. Mr. Cifuentes feels "humiliated with the chains especially when I got to court and

5 people see me and feel like I did something wrong." He feels like it is "punishment" and worries

6 that when "my family comes to see me ... my children might think I did something evil like kill

7 somebody."

8

83. Shame and discomfort caused by the use of in-court shackles undermine Mr.

9 Cifuentes's ability to participate in his own hearing. In his words, "Sometimes they ask questions

10 and I don't even know how to answer because I'm so embarrassed."

11

84. Mr. Cifuentes's hearing scheduled for August 16, 2011 is a merits hearing. If his

12 application for cancellation of removal is denied, he plans to appeal the decision to the Board of

13 Immigration Appeals (BIA) and, if necessary, the Ninth Circuit Court of Appeals. Even if his

14 application is granted, the government could choose to appeal the decision to the BIA, during

15 which time Mr. Cifuentes could remain detained, although he would be entitled to another bond

16 hearing before an immigration judge based on changed circumstances. Pursuant to Ninth Circuit

17 case law, he will also be entitled to seek another bond hearing before an immigration judge if the

18 court of appeals stays his removal pending appeal of an adverse BIA order.

19 Pedro Nolasco Jose

20

85. Plaintiff Pedro Nolasco Jose is a 32-year-old transgendered woman currently in

21 immigration custody in Yuba County. She is a native and citizen of Mexico. Prior to being

22 placed in custody, Ms. Nolasco lived in Santa Rosa, California.

23

86. Ms. Nolasco received a Notice to Appear on or about May 20, 2011, commencing

24 removal proceedings against her on the grounds that she entered the United States without

25 inspection.

26

87. An immigration judge denied Ms. Nolasco bond on the grounds that she was a

27 danger to the community because of multiple incidents of driving under the influence. Ms.

28 Nolasco's next hearing is scheduled for September 9, 2011 where she will pursue her application

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Case3:11-cv-04001-RS Document1 Filed08/15/11 Page21 of 25

I for a U-Visa, available for crime victims. If unsuccessful, she may pursue an asylum claim based

2 on fear of persecution due to her transgender identity.

3

88. Ms. Nolasco has been placed in metal hand and leg restraints for travel to and

4 participation in inunigration court proceedings in San Francisco on about five occasions.

5

89. For every immigration court hearing since May 2011, Ms. Nolasco has appeared in

6 full shackles-ankle and wrist restraints and a belly chain. Every time she is subjected to

7 shackling, Ms. Nolasco suffers from raised veins and swelling in her ankles, with accompanying

8 pain. She finds it difficult and uncomfortable to walk.

9

90. When appearing in court with shackles, Ms. Nolasco feels ashamed and believes

I 0 that the shackles inaccurately suggest that she is a serious and violent criminal. When her case is

II called, Ms. Nolasco finds it difficult to look at the inunigration judge's face due to shame and

12 embarrassment caused by being in shackles, and instead walks with her head down as she

13 approaches counsel table. Shackling causes Ms. Nolasco physical discomfort that is distracting

14 when she is in court. The shackles undermine her confidence in court and make her more nervous

15 than she would otherwise be, making it impossible for her to participate and testify to her fullest

16 ability.

17

91. Ms. Nolasco has no history of violence or disruption in court or in custody and

18 would pose no threat to the safety and security of the courtroom or threat of flight if allowed to

19 appear without physical restraints.

20 MiLian Wei

21

92. MiLian Wei is a 38-year-old woman in immigration custody in Sacramento

22 County. She is a native and citizen of the People's Republic of China. For several years prior to

23 being in custody Ms. Wei lived in northern California, including San Francisco.

24

93. Ms. Wei received a Notice to Appear commencing her removal proceedings on or

25 about Jtme 8, 2011 and charging her with being an arriving alien without a valid entry document.

26 The government has taken the position that Ms. Wei is not entitled to a bond redetermination

27 hearing before an immigration judge because she is an arriving alien within the meaning of 8

28 C.P.R.§ 1003.19(h)(2)(i)(B).

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1

94. Ms. Wei has a pending asylum claim based on domestic violence she suffered in

2 her marital relationship in China. Ms. Wei's next immigration hearing is scheduled for September

3 30,2011.

4

95. Ms. Wei had been to court three times in shackles on her wrists, ankles, and waist.

5 She complained to an ICE agent or private security guard overseeing the shackling and

6 transportation of detainees that the chains were tight and the shackles later left marks where she

7 had been restrained. The agent told Ms. Wei that everyone had to have the shackles.

8

96. Being forced to wear shackles makes Ms. Wei feel very unhappy and makes her

9 "heavy-hearted." In her court appearances thus far, she has not had to engage with the court, but

10 she fears that since she has no attorney to represent her in court the shackles will significantly

II interfere with her ability to present her positions in her September 30 hearing. Ms. Wei fears that

12 being in shackles will make her nervous and intimidated and will make her appear to the judge as

13 a "crazy old lady." She fears that she will find it much more difficult to speak well and feel

14 confident in shackles during the hearing on her asylum application.

15

97. Ms. Wei has no history of violence or disruption in court or in custody and would

16 pose no threat to the safety and security of the courtroom or threat of flight if allowed to appear

17 without physical restraints.

18

CLAIM FOR RELIEF

(Violation of Due Process Clause of the Fifth Amendment

19

to the United States Constitution)

(Against All Defendants)

20

21

98. Plaintiffs repeat and incorporate by reference the allegations contained in

22 paragraphs 1 through 97 above.

23

99. Civil immigration detainees have a constitutional liberty interest in being free from

24 physical restraints such as the hard metal shackles that are currently used on their legs, hands, and

25 waists for immigration court proceedings.

26

100. Defendants' policies and practices with respect to the shackling of detained

27 immigrants in San Francisco Immigration Court violate Plaintiffs' rights to due process

28 guaranteed by the Fifth Amendment to the United States Constitution.

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Case3:11-cv-04001-RS Document1 Filed08/15/11 Page23 of 25

1

101. Plaintiffs have suffered and will imminently suffer irreparable injury as a result of

2 Defendants' policies and practices and are entitled to injunctive reliefto avoid any further injury.

3

RELIEF ALLEGATIONS

4

102. A class action lawsuit is the only reasonable means for adjudicating the

5 constitutionality of Defendants' policies and practices. Given the time frame in which many

6 detainees' immigration cases are resolved, as well as the fact that many class members are

7 unrepresented by counsel, class members who are injured by Defendants' shackling policies and

8 practices may never have a means for preventing the harm they suffer. As a result, Named

9 Plaintiffs seek to proceed with this case as a class action.

10

103. Plaintiffs have no plain, adequate, or complete remedy at law to redress the wrongs

11 alleged herein, and the declaratory and permanent injunctive relief sought in this action is the only

12 means of securing adequate and complete relief. Plaintiffs are now suffering and will continue to

13 suffer irreparable injury from Defendants' blanket shackling of all detained immigrants as a

14 condition of their appearance in immigration court.

15

104. Plaintiffs are imminently in danger of being shackled as a condition of participating

16 in their immigration proceedings. PlaintiffUelian De Abadia-Peixoto has a hearing scheduled

17 for September 16, 2011. Plaintiff Esmar Cifuentes has a hearing scheduled for August 16, 2011.

18 Plaintiff Pedro Nolasco Jose has a hearing scheduled for September 9, 2011. PlaintiffMi Lian

19 Wei has a hearing scheduled for September 30, 2011. The harm caused by this shackling is

20 irreparable. There is no means of undoing the harm caused by such harm. Injunctive relief is

21 therefore appropriate.

22

105. An actual and substantial controversy exists between Plaintiffs and Defendants as

23 to their respective legal rights and duties. Plaintiffs contend Defendants policies, practices,

24 conduct and acts alleged herein violate their constitutional rights. Defendants contend the

25 opposite and have indicated their intent to continue engaging in the challenged conduct.

26

27

28

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Case3:11-cv-04001-RS Document1 Filed08/15/11 Page24 of 25

1

PRAYERFORRELIEF

2

WHEREFORE, Plaintiffs respectfully request that the Court grant the following relief:

3

1. Issue an order certifying this action to proceed as a class action pursuant to Rule

4 23 of the Federal Rules of Civil Procedure;

5

2. Appoint the undersigned as class counsel pursuant to Rule 23(g) of the Federal

6 Rules of Civil Procedure;

7

3. Issue a judgment declaring that Defendants' policies and practices described

8 herein violate Plaintiffs' rights under the Due Process Clause of the Fifth Amendment to the

9 Constitution of the United States;

10

4. Preliminarily and permanently enjoin Defendants, their subordinates, agents,

11 employees, and all others acting in concert with them from subjecting Plaintiffs to the

12 unconstitutional policies and practices described herein, including the cruel, degrading, and

13 unconstitutional practice of shackling detainees for in-court appearances without an

14 individualized determination that such restraints are necessary, and issue injunctive relief

15 sufficient to remedy the violation of Plaintiffs' constitutional rights;

16

17 ///

18 ///

19

20

21

22

23

24

25

26

27

28

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Case3:11-cv-04001-RS Document1 Filed08/15/11 Page25 of 25

1

5. Grant plaintiflll their reasonable attorney fees and costs pursuant to the Equal

2 Access to Justice Act and any other applicable statute or re!iulatlon.

3

6. Grant such other reliefas the Cmnt deems just and proper.

4

5 Dated: August 1S, 2011

6

7

8

9

10

11

12

AMERICAN CIVIL LIBERTIES UNION

FOUNDATIONOFNORTillmN

13 14

By()tu~hwn CALIFORNIA

15

·a Harumi Mass

16 Attorneys ibr Plaintiffs
17

18 19

20

21

22

23

24

25

26

27

28

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

 
 1

**E-filed 12/23/11**

2

3

4

5

6

7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE NORTHERN DISTRICT OF CALIFORNIA

9

SAN FRANCISCO DIVISION

10

United States District Court For the Northern District of California

11 UELIAN DE ABADIA-PEIXOTO, et al.,
12

13

v.

Plaintiffs,

14

15

U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,

16 Defendants.
17 ____________________________________/

No. C 11-4001 RS
ORDER DENYING MOTION TO DISMISS AND GRANTING MOTION TO CERTIFY CLASS

18

19

I. INTRODUCTION

20

This putative class action challenges a policy and practice whereby all civil immigration

21 detainees are shackled during their appearances in immigration court in San Francisco, without

22 individual determinations of need for such restraints. Plaintiffs move to certify the class, and

23 defendants move to dismiss.

24

25

II. BACKGROUND

26

Defendant Immigration and Customs Enforcement (“ICE”) is a federal law enforcement

27 agency within the Department of Homeland Security. Defendant Executive Office for Immigration

28 Review (“EOIR”) is an agency within the Department of Justice that administers immigration

United States District Court For the Northern District of California

1 courts. The individual defendants in this action are all named in their official capacities as heads of

2 the agencies and departments involved, or of local offices thereof.

3

Plaintiffs allege that defendants have implemented a blanket practice of requiring all

4 detained immigrants to appear for immigration court hearings in shackles—hard metal restraints

5 around their ankles, wrists, and waists. This practice is applied across the board—to refugees fleeing

6 persecution and torture in their native countries, the elderly, and the physically and mentally

7 disabled—with no review of the need for restraints for particular detainees. During master calendar

8 hearings, detainees are often chained to one another in what is referred to as a “daisy chain.”

9

Plaintiffs aver that for many detainees, the shackles cause physical pain and discomfort,

10 including bruising and swelling. Plaintiffs assert that shackling also can cause emotional and

11 psychological injuries, including serious harm to detainees who have been bound or tortured in the

12 past. Plaintiffs further argue and allege that shackling impairs the mental acuity, confidence, and

13 energy individuals need for a full and fair opportunity to participate in their immigration

14 proceedings. Plaintiffs contend that when shackled, a detainee has difficulty taking notes and

15 handling documents. The attorney-client relationship can be impaired because, when “daisy-

16 chained,” detainees must choose between disclosing personal, and sometimes humiliating, facts

17 within earshot of other detainees or withholding from their counsel information that could be crucial

18 to their cases.

19

At the time the complaint was filed, named plaintiffs Uelian DeAbadia-Peixoto, Esmar

20 Cifuentes, Pedro Nolasco Jose, and Mi Lian Wei were all in ICE custody, had been subjected to

21 ICE’s shackling practices, and had merits hearings scheduled in the near future in which they

22 expected to be shackled in accordance with ICE’s blanket practice. The named plaintiffs alleged that

23 none of them would pose any risk of flight or threat to the safety and security of the courtroom if

24 allowed to appear without physical restraints.

25

26

27

28

2

United States District Court For the Northern District of California

1

III. DISCUSSION

2

A. Motion to dismiss

3

1. Ripeness

4

Defendants contend that plaintiffs’ claims are all subject to dismissal for lack of ripeness

5 because they, “rest upon contingent future events that may not occur as anticipated, or indeed may

6 not occur at all.” Bova v. City of Medford, 564 F.3d 1093, 1096 (9th Cir. 2009). Defendants’

7 ripeness argument is two-fold—first, plaintiffs have not yet had their merits hearings and therefore

8 have not suffered the shackling about which they complain, and second, that plaintiffs cannot yet

9 know if they will be prejudiced, even assuming they are shackled at their hearings.

10

Neither prong of defendants’ argument is compelling. While the plaintiffs’ particular

11 hearings may not yet have occurred, they have sufficiently alleged facts showing a concrete threat of

12 imminent conduct presenting a ripe controversy that can be adjudicated. While it may be

13 theoretically possible that something could happen in the interim such that plaintiffs’ hearings

14 would not go forward, or that the shackling policy will change or not be applied to them, their

15 claims are neither speculative nor remote.

16

Defendants’ contention that plaintiffs may or may not suffer prejudice even if they are

17 shackled at their hearings rests on an inapplicable standard. Defendants argue that plaintiffs must

18 show that “but for” the shackling, they will not be ordered removed. Defendants rely on the rule

19 that a due process violation in an immigration proceedings will not support a reversal on appeal

20 absent a showing of such prejudice. See e.g., United States v. Nicholas-Armenta, 763 F.2d 1089 (9th

21 Cir. 1985). The premise that a due process violation is not grounds for reversal absent a showing of

22 that degree of prejudice, has no bearing on a plaintiff’s right to seek to enjoin due process violations 23 from occurring in the first instance.1

24

25

26 1 Defendants also argue that plaintiffs have not shown and will not be able to show prejudice 27 because, in defendants’ view, shackling outside the presence of a jury is never prejudicial. This
argument is addressed below. 28

3

United States District Court For the Northern District of California

1

2. Facial challenge

2

Defendants also suggest that plaintiffs are challenging the shackling policy as invalid on its

3 face, and therefore must show that it could not be valid under any circumstances. To the extent

4 defendants are simply suggesting shackling may be appropriate under some circumstances, plaintiffs

5 do not disagree. The challenge plaintiffs are making, however, is that the blanket shackling policy

6 is invalid under the circumstances in which it applies, namely to all civil detainees appearing for

7 immigration court hearings in San Francisco. Plaintiffs either will or will not succeed in

8 establishing that the blanket policy is invalid, but they need not prove that shackling on an

9 individualized basis is never permissible, or that it could never be proper to have a blanket shackling

10 policy in some other place or time, or under circumstances unlike those present in the particular

11 immigration court where this policy applies.

12

13

3. United States v. Howard

14

The heart of defendants’ motion to dismiss is the argument that plaintiffs’ claims are

15 foreclosed on the merits by the Ninth Circuit’s decision in United States v. Howard, 480 F.3d 1005

16 (9th Cir. 2007). Howard arose from an interlocutory appeal brought by criminal defendants to

17 challenge a district-wide shackling policy implemented by the United States Marshals Service for

18 the Central District of California after consultation with the magistrate judges in that district. The

19 policy required all pretrial detainees making their first appearance before a magistrate judge to wear

20 leg shackles. Id. at 1008. Taking into account a number of considerations, including the fact that

21 concerns about shackling historically focused on the potential prejudicial effect it might have on a

22 jury, Howard concluded that the policy before it did not violate the defendants’ rights. Id. at 1014.

23

Relying on the heavy emphasis Howard placed on the absence of a jury, and noting that the

24 court also expressly considered some of the same alleged burdens on the rights of the accused that

25 plaintiffs have articulated here, defendants argue Howard permits a conclusion as a matter of law at

26 the pleading stage that the shackling policy challenged in this action is likewise legally sound. The

27 Ninth Circuit, however, has subsequently made clear that Howard cannot be read as establishing a

28 rule that blanket shackling is always permissible if no jury is present. In United States v. Brandau,

4

United States District Court For the Northern District of California

1 578 F.3d 1064 (9th Cir. 2009), while citing Howard, the court observed, “[w]e have not . . . fully

2 defined the parameters of a pretrial detainee’s liberty interest in being free from shackles at his

3 initial appearance, or the precise circumstances under which courts may legitimately infringe upon

4 that interest in order to achieve other aims, such as courtroom safety.” Id. at 1065. Brandau went on

5 to remand to the trial court for a determination as to whether the case had been mooted by a

6 voluntary revocation of the blanket shackling policy the plaintiffs were challenging. Id. at 1069-

7 1070. That remand would have been unnecessary had it been possible to conclude under Howard

8 that blanket shackling is always permissible when a jury is not present.

9

Even without Brandau, the Howard opinion itself reveals that the permissibility of a blanket

10 shackling policy turns on a number of factors, of which the absence of a jury is only one.2 Because

11 of the procedural context in which Howard arose, both the district court and the Ninth Circuit had

12 the benefit of an evidentiary record, including declarations describing such matters as the specific

13 security concerns in the particular courthouse facility to which the policy applied. 480 F.3d at 1008-

14 1009. Evaluating whether the policy at issue in this case can similarly be justified must await the 15 development of an evidentiary record. Accordingly, the motion to dismiss is denied.3

16

17

B. Amicus curiae

18

The Asian Law Caucus, Centro Legal De La Raza, and Dolores Street Community Services

19 seek leave to file an amicus curiae brief in support of plaintiffs’ opposition to the motion to dismiss.

20 Because the motion to dismiss presents purely legal issues as to the sufficiency of the pleadings, any

21 unique perspectives or information the proposed amici might have to offer are not especially

22

23 2 Among other things, Howard noted that the policy before it reserved discretion to the magistrate 24 judges to make individualized determinations for removal of the shackles. Plaintiffs here assert that
although Immigration Judges may request removal of the shackles in particular cases, final 25 discretion lies with ICE, not the judges. While a more complete record on this point is needed, it
provides at least one potential basis for distinguishing Howard. 26
27 3 Defendants’ additional argument that some of them are not properly named as defendants does not warrant dismissal at this juncture, even assuming that it was redundant or unnecessary to name each
28 of them.

5

United States District Court For the Northern District of California

1 pertinent at this juncture. Plaintiffs are represented by competent counsel who have ably addressed

2 the relevant legal issues. Accordingly, the motion for leave to file an amicus brief is denied. Should

3 the proposed amici seek to offer input at some later stage in the proceedings, any motion for leave to

4 submit a brief will be evaluated in light of the circumstances that exist at such time.

5

6

C. Motion to certify class

7

Defendants’ opposition to class certification is largely based on the same arguments

8 presented in their motion to dismiss, which fail for the reasons set out above. To the extent

9 defendants contend that plaintiffs have not otherwise satisfied the prerequisites for class certification

10 under Rule 23 of the Federal Rules of Civil Procedure, those arguments also fail.

11

“The class action is an exception to the usual rule that litigation is conducted by and on

12 behalf of the individual named parties only.” Wal–Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2550,

13 (internal quotation marks and citation omitted). “In order to justify a departure from that rule, a class

14 representative must be part of the class and possess the same interest and suffer the same injury as

15 the class members.” Id. (internal quotation marks and citation omitted).

16

Rule 23(a) provides four prerequisites that must be satisfied for class certification:

17

18

(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class;

19

(3) the claims or defenses of the representative parties are typical of the claims or

defenses of the class; and

20

(4) the representative parties will fairly and adequately protect the interests of the

class. 21

22 Fed.R.Civ.P. 23(a).

23

A plaintiff also must establish that one or more of the grounds for maintaining the suit are

24 met under Rule 23(b), including that: (1) there is a risk of substantial prejudice from separate

25 actions; (2) declaratory or injunctive relief benefitting the class as a whole would be appropriate; or

26 (3) common questions of law or fact predominate and the class action is superior to other available

27 methods of adjudication. Fed.R.Civ.P. 23(b).

28

6

United States District Court For the Northern District of California

1

Here, there is no genuine dispute that the number of detainees appearing in immigration

2 court in San Francisco on an ongoing basis is sufficient to satisfy the numerosity requirement for

3 class certification. Defendants’ argument that plaintiffs fail to demonstrate sufficient actual class

4 size is premised on their view that only persons who have suffered “prejudice” are properly part of

5 the class. As indicated above, plaintiffs need not have suffered the prejudice of an adverse

6 immigration decision flowing directly from the restraint policy to seek prospective injunctive relief

7 against what they contend is an unconstitutional deprivation of their rights.

8

Defendants’ attack on plaintiffs’ showing of commonality and typicality likewise rest on

9 their mistaken assumption that each plaintiff must show prejudice as they define it. Similarly,

10 defendants contend that commonality and typicality are lacking because the precise circumstances

11 attaching to each plaintiff may vary, and different individuals may claim to have suffered different

12 degrees or types of physical harm, psychological harm, or impairment to their abilities to present

13 their cases.

14

Plaintiffs’ suggestion of a panoply of potential harms from a blanket shackling policy, not all

15 of which each class member may have personally suffered, does not defeat commonality or

16 typicality in this context. They are not seeking damages, only injunctive relief against a policy that

17 allegedly is applied to all members of the class indiscriminately. Plaintiffs may properly offer

18 evidence and argument as to any number of potential consequences resulting from such a policy

19 without the added requirement for each class member to show he or she has suffered, or will suffer,

20 all of those consequences, or any particular subset of them.

21

For similar reasons, defendants’ challenges to the named plaintiffs’ adequacy to serve as

22 class representatives fail. When considering that issue, courts generally evaluate only two

23 questions: “(1) [d]o the representative plaintiffs and their counsel have any conflicts of interest with

24 other class members, and (2) will the representative plaintiffs and their counsel prosecute the action

25 vigorously on behalf of the class?” Staton v. Boeing Co., 327 F.3d 938, 957 (9th Cir.2003).

26 Particularly given the absence of a requirement that each class member demonstrate prejudice in the

27 manner suggested by defendants, or that they all have suffered identical injuries from the policy, no

28

7

United States District Court For the Northern District of California

1 evidence of conflict of interest arises. Plaintiffs have been vigorous in prosecuting the action, and

2 there is no reason to doubt their counsel’s commitment or ability to pursue the matter.

3

Finally, plaintiffs have established that requirements of Rule 23(b) are satisfied because

4 declaratory or injunctive relief benefitting the class as a whole would be appropriate and/or because

5 common questions of law or fact predominate and the class action is superior to other available

6 methods of adjudication. Again, defendants’ arguments to the contrary are based on a mistaken

7 view as to what plaintiffs must show to be entitled to prospective injunctive relief. Either the

8 blanket policy is legally permissible under all the circumstances, or it is not. That issue may be

9 resolved on a class-wide basis without regard to the specific circumstances of each class member

10 and the particular harms he or she may have suffered. Accordingly, the motion to certify the class

11 will be granted.

12

13

IV. CONCLUSION

14 (1) Plaintiffs’ motion for class certification is granted. The Court hereby certifies the class
15 consisting of all current and future adult immigration detainees who have or will have proceedings
16 in immigration court in San Francisco.
17

18

(2) Defendants’ motion to dismiss is denied. Defendants shall file an answer within 30 days

19 of the date of this order.

20

(3) The motion of the Asian Law Caucus, Centro Legal De La Raza, and Dolores Street

21 Community Services for leave to file an amicus curiae brief is denied.

22

23 IT IS SO ORDERED.

24

25 Dated: December 23, 2011 26 27

RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE

28

8

 
 Case3:11-cv-04001-RS Document209 Filed03/06/14 Page1 of 23

1 DAVID J. BERGER, State Bar No. 147645 CATHERINE E. MORENO, State Bar No. 264517
2 THOMAS J. MARTIN, State Bar No. 150039 WILSON SONSINI GOODRICH & ROSATI
3 Professional Corporation 650 Page Mill Road
4 Palo Alto, CA 94304-1050 Telephone: (650) 493-9300
5 Facsimile: (650) 565-5100 Email: tmartin@wsgr.com
6 PAUL CHAVEZ, State Bar No. 241576
7 ROBIN GOLDFADEN, State Bar No. 208055 LAWYERS’ COMMITTEE FOR CIVIL RIGHTS
8 OF THE SAN FRANCISCO BAY AREA 131 Steuart Street, Suite 400
9 San Francisco, CA 94105 Telephone: (415) 543-9444
10 Facsimile: (415) 543-0296 Email: pchavez@lccr.com
11 JULIA HARUMI MASS, State Bar No. 189649
12 JINGNI (JENNY) ZHAO, State Bar No. 284684 ALAN L. SCHLOSSER, State Bar No. 49957
13 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, INC.
14 39 Drumm Street San Francisco, CA 94111
15 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
16 Email: jmass@aclunc.org

17 Attorneys for Plaintiffs

18

UNITED STATES DISTRICT COURT

19

NORTHERN DISTRICT OF CALIFORNIA

20

SAN FRANCISCO DIVISION

21 UELIAN DE ABADIA-PEIXOTO, et al.,

22

Plaintiffs,

23

v.

24 UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al.,
25 Defendants.
26

27

28

UNOPPOSED NOTICE OF MOT., MOT., & MEM. OF P. & A. IN SUPP. OF FINAL APPROVAL 3:11-CV-4001 RS

) Case No.: 3:11-cv-4001 RS ) ) CLASS ACTION ) ) PLAINTIFFS’ UNOPPOSED ) NOTICE OF MOTION, MOTION, ) AND MEMORANDUM OF POINTS ) AND AUTHORITIES IN SUPPORT ) OF FINAL APPROVAL OF CLASS ) ACTION SETTLEMENT ) ) Date: April 10, 2014 ) Time: 1:30 p.m. ) Judge: Honorable Richard Seeborg ) Ctrm: 3, 17th Floor )
6194429

Case3:11-cv-04001-RS Document209 Filed03/06/14 Page2 of 23

1

NOTICE OF MOTION AND MOTION

2

TO THE CLERK OF THE COURT AND ALL COUNSEL OF RECORD:

3

PLEASE TAKE NOTICE that on April 10, 2014, at 1:30 p.m., before the Honorable

4 Richard Seeborg of the United States District Court for the Northern District of California,

5 Courtroom 3, 17th Floor, 450 Golden Gate Avenue, San Francisco, California, named plaintiffs

6 and class representatives Uelian De Abadia-Peixoto, Esmar Cifuentes, Pedro Nolasco Jose and

7 Mi Lian Wei (“Plaintiffs”) will and hereby do make, pursuant to Fed. R. Civ. P. 23(e), an

8 unopposed motion for final approval of settlement in the above-captioned class action (the

9 “Motion”) set forth in the parties’ settlement agreement (“Agreement”), dated December 18,

10 2013, filed herewith. Plaintiffs respectfully request that the Court enter the proposed Final Order

11 and Stipulated Dismissal, filed in final form herewith. Plaintiffs also move for approval of

12 attorneys’ fees and costs provision of the Agreement under Fed. R. Civ. P. 54(d)(2).

13

This Motion is made on grounds that the proposed Agreement is fair, reasonable, and

14 adequate and should therefore be approved. The Court granted preliminary approval of the

15 Agreement on January 23, 2014. Notice to the class was thereafter provided as detailed below.

16 To date, counsel has received no objections to the proposed settlement.

17

The Motion is based upon this Motion, the supporting Memorandum of Points and

18 Authorities, the Agreement and its exhibits, the Declarations of Catherine E. Moreno, Julia

19 Harumi Mass, Paul Chavez, Robin Goldfaden, Angie Young Kim, Jeff Rosenblum, and Eddie

20 Robinson, any argument of counsel, and all papers and records on file in this matter.

21

22

23

24

25

26

27

28

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1 2 3 4 5 I. 6 II. 7 III. 8 IV. 9 V. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
VI. 26 27 28

MEMORANDUM OF POINTS AND AUTHORITIES TABLE OF CONTENTS

Page

INTRODUCTION ............................................................................................................... 1
FACTUAL AND PROCEDURAL BACKGROUND........................................................2
SUMMARY OF THE AGREEMENT................................................................................5
CLASS NOTICE AND RESPONSE TO PROPOSED SETTLEMENT............................9
ARGUMENT ....................................................................................................................11
A. The Court Should Grant Final Approval of the Settlement Agreement................11
1. Legal Standard...........................................................................................11
2. The Proposed Settlement Merits Final Approval ......................................12
a. The Settlement Provides Substantial Relief for Settlement Class Members ..............................................................................12
b. The Strength of Plaintiffs’ Claims Balanced Against the Risk, Expense, Complexity, and Likely Duration of Further Litigation Favors Approval of the Settlement...............................13
c. The Stage of Proceedings and Discovery Thus Far Has Enabled Sufficient Evaluation of the Merits of the Claims...........13
d. The Recommendation of Experienced Counsel Favors Approval ........................................................................................ 15
e. The Presence of a Governmental Participant Favors Approval ........................................................................................ 15
f. The Class Members’ Reaction Favors Approval ..........................15
g. The Risk of Maintaining Class Action Status Throughout the Trial Is a Neutral Factor ................................................................16
B. Certification of the Settlement Class Is Appropriate ............................................16
C. The Attorneys’ Fees Provision of the Agreement Is Reasonable..........................17
CONCLUSION .................................................................................................................18

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1

TABLE OF AUTHORITIES

2

Page(s)

3

CASES

4

Adoma v. University of Phoenix, 913 F. Supp. 2d 964 (E.D. Cal. 2012) ...................................... 15

5

Barbosa v. Cargill Meat Solutions Corp., No. 1:11-cv-00275, 2013 WL 3340939

6

(E.D. Cal. July 2, 2013)..................................................................................................... 16

7 Boyd v. Bechtel Corp., 485 F. Supp. 610 (N.D. Cal. 1979) .................................................... 15, 16

8 Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566 (9th Cir. 2004) .............................................. 11

9 Ellis v. Naval Air Rework Facility, 87 F.R.D. 15 (N.D. Cal. 1980), aff’d, 661 F.2d

939 (9th Cir. 1981) ............................................................................................................ 15

10

Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998).......................................... 11, 16, 17, 18

11

Murillo v. Pac. Gas & Elec. Co., No. CIV. 2:08-1974, 2010 WL 2889728 (E.D.

12

Cal. July 21, 2010) ............................................................................................................ 16

13 Nat’l Rural Teecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523 (C.D. Cal. 2004) ....... 14, 15, 16

14 Officers for Justice v. Civil Serv. Comm’n of City and County of San Francisco,

688 F.2d 615 (9th Cir. 1982)....................................................................................... 11, 12

15

Van Bronkhorst v. Safeco Corp., 529 F.2d 943 (9th Cir. 1976).................................................... 11

16

West v. Circle K Stores, Inc., No. Civ. S-04-0438, 2006 U.S. Dist. LEXIS 76558

17

(E.D. Cal. Oct. 20, 2006)................................................................................................... 15

18

RULES

19 Civil L. R. 7-4(a)(3) ........................................................................................................................ 1

20 Fed. R. Civ. P. 23 .................................................................................................................... 16, 17

21 Fed. R. Civ. P. 23(a)...................................................................................................................... 16

22 Fed. R. Civ. P. 23(b)...................................................................................................................... 16

23 Fed. R. Civ. P. 23(e).................................................................................................................. 2, 11

24 Fed. R. Civ. P. 30(b)(6) ................................................................................................................... 3

25 Fed. R. Civ. P. 34 ............................................................................................................................ 5

26

27

28

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1 I. INTRODUCTION

2

This class action settlement is a success for the Settlement Class. Uelian De Abadia-

3 Peixoto, Esmar Cifuentes, Pedro Nolasco Jose and Mi Lian Wei (“Named Plaintiffs” or

4 “Plaintiffs”), on behalf of the class certified in this action, respectfully submit this memorandum

5 in support of their unopposed motion for final approval of the proposed settlement of this action.

6 Plaintiffs and Defendants have reached settlement of Plaintiffs’ action pursuant to the terms and

7 conditions contained in the settlement agreement (“Agreement”), dated December 18, 2013, and 8 filed herewith.1 See Moreno Decl., Ex. 1. Pursuant to Civil L. R. 7-4(a)(3), the issue to be

9 decided is whether the Court should grant final approval the Agreement.

10

Plaintiffs’ complaint sought declaratory and injunctive relief on behalf of a class certified

11 as all current and future adult immigration detainees who have or will have proceedings in

12 Immigration Court in San Francisco. The complaint challenged as unconstitutional Defendants’

13 then-extant policy and practice of shackling all civil immigration detainees appearing in San

14 Francisco Immigration Court at their wrists, waists, and ankles during their Master Calendar,

15 Bond, and Merits Hearings without an individualized determination of the need for restraints.

16 The parties actively litigated this action for over two years before reaching the proposed

17 settlement, with the substantial assistance of Magistrate Judge Laurel Beeler.

18

As discussed in detail herein, pursuant to the Agreement, Defendants will change their

19 practice such that members of the Settlement Class will no longer be restrained during their

20 Bond and Merits Hearings absent narrowly-defined emergency situations. While Defendants

21 may continue to restrain Settlement Class members during Master Calendar Hearings, involving

22 simultaneous appearance of multiple respondents, Settlement Class members will be able to

23 request a modification of such restraints where a physical, psychological, or medical condition

24

25 1 All capitalized terms not defined herein are defined in the Agreement, submitted as
26 Exhibit 1 to the Declaration of Catherine E. Moreno (“Moreno Decl.”). The Settlement Class is
defined in the parties’ Agreement as all current and future adult immigration detainees who have 27 or will have proceedings in Immigration Court in San Francisco during the period from
December 23, 2011 (the date of this Court’s class certification order) to three years from the 28 Effective Date of the Agreement (i.e., the full term of the Agreement). See id. at § I.11.

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1 would prevent the application of restraints in a safe and humane manner. Defendants have also

2 agreed not to chain detainees to one another under any circumstances. In addition, Defendants

3 have agreed to arrangements that will facilitate confidential attorney-client communications

4 before and during Master Calendar Hearings.

5

Following the Court’s preliminary approval of the Agreement on January 23, 2014, the

6 parties implemented the comprehensive notice plan approved by the Court. The plan included

7 posting notices in all facilities holding Settlement Class members, sending notices to all

8 organizations on the list of low-fee and free legal services provided to Settlement Class

9 members, sending notice via email to the Northern California chapter of the American

10 Immigration Lawyers Association and the Northern California chapter of the National Lawyers’

11 Guild, and posting notice on the websites of the Executive Office for Immigration Review

12 (“EOIR”), United States Immigration and Customs Enforcement (“ICE”), the American Civil

13 Liberties Union Foundation (“ACLU”) of Northern California, and the Lawyers’ Committee for

14 Civil Rights of the San Francisco Bay Area. The parties provided notices in English, Spanish,

15 Chinese, and Punjabi. To date, counsel has not received a single objection.

16

The Court should grant final approval to the settlement because it is fair, adequate, and

17 reasonable. As discussed below, the settlement easily satisfies the Ninth Circuit’s standards for

18 final approval. Given the complexities of this constitutional class action and the continued risks

19 if the parties were to proceed, the Agreement provides substantial relief for the Settlement Class

20 members and eliminates the risk that the Settlement Class might obtain less or nothing at all.

21 The recommendation of experienced counsel also weighs in favor of approval, especially

22 following extensive discovery and months of arm’s-length settlement negotiations with the

23 governmental defendants and their counsel. Accordingly, Plaintiffs move the Court under Fed.

24 R. Civ. P. 23(e) for entry of the [Proposed] Final Order and Stipulated Dismissal, submitted

25 herewith.

26 II. FACTUAL AND PROCEDURAL BACKGROUND

27

On August 15, 2011, Plaintiffs filed their class action civil rights complaint for injunctive

28 and declaratory relief against Defendants. Dkt. No. 1. Plaintiffs argued that the Due Process

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1 Clause of the Fifth Amendment to the United States Constitution prohibited Defendants’ then-

2 extant policy and practice of shackling all immigration detainees during all of their Immigration

3 Court proceedings. Id. Two days later, Plaintiffs moved for class certification and appointment

4 of class counsel. Dkt. No. 5. On September 8, 2011, Defendants filed a motion seeking

5 enlargement of time to file their opposition to Plaintiffs’ motion for class certification (Dkt.

6 No. 23), which Plaintiffs opposed (Dkt. No. 27) and the Court denied on September 12, 2011

7 (Dkt. No. 29). On October 11 and October 14, 2011, Defendants moved to dismiss Plaintiffs’

8 action (Dkt. No. 33) and opposed Plaintiffs’ motion for class certification (Dkt. No. 34),

9 respectively. After further briefing from Plaintiffs (Dkt. Nos. 35, 40) and Defendants (Dkt.

10 No. 45) and a hearing on these motions (Dkt. No. 46), the Court on December 23, 2011, denied

11 Defendants’ motion to dismiss and certified Plaintiffs’ class of “all current and future adult

12 immigration detainees who have or will have proceedings in immigration court in San

13 Francisco” (Dkt. No. 52).

14

Following the Court’s Order, Plaintiffs began extensive discovery into Defendants’

15 shackling policies and practices and related matters. Between January 24, 2012 and April 12,

16 2013, Plaintiffs served Defendants with four sets of document requests, four sets of

17 interrogatories, and one set of requests for admission. Defendants served two sets of document

18 requests, one set of interrogatories and one set of requests for admission on the Named Plaintiffs

19 and/or members of the Plaintiff class between September 28, 2012 and April 26, 2013. Plaintiffs

20 also noticed Rule 30(b)(6) depositions of Defendants ICE (on July 2, 2012, re-noticed

21 January 25, 2013, and May 3, 2013) and EOIR (on July 2, 2012) and depositions of Supervisory

22 Detention and Deportation Officers (“SDDOs”) Yakov Grinberg (on October 17, 2012) and

23 Johnny J. Bailey (on April 26, 2013), Assistant Chief Immigration Judge Print Maggard, Field

24 Office Director Timothy S. Aitken, Assistant Field Office Director Jason M. McClay, and

25 Deputy Field Office Director David W. Jennings (also noticed on April 26, 2013). Defendants

26 noticed the depositions of Named Plaintiffs Esmar Cifuentes (on February 16, 2012), Uelian De

27 Abadia-Peixoto, and Pedro Nolasco Jose (on July 25, 2012, re-noticed July 27, 2012, October 12,

28 2012, and October 25, 2012), and Mi Lian Wei (on July 25, 2012, re-noticed July 27, 2012).

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1 Defendants deposed Named Plaintiff Cifuentes on February 16, 2012, prior to his deportation to

2 Guatemala, Named Plaintiffs Abadia-Peixoto and Nolasco Jose on November 15, 2012, and

3 Named Plaintiff Wei on November 30, 2012. Plaintiffs deposed SDDO Grinberg on

4 November 16, 2012.

5

During this time, the parties engaged in numerous rounds of discovery motion practice

6 and hearings before Magistrate Judge Kandis Westmore. These efforts are partially summarized

7 below. On August 31, 2012, Plaintiffs sought to move to compel the production of various

8 categories of documents withheld by Defendants. Dkt. Nos. 81, 82. On the same day,

9 Defendants moved for a protective order limiting the scope of Plaintiffs’ discovery. Dkt. No. 83.

10 Per Magistrate Judge Westmore’s Standing Order, the parties met and conferred regarding the

11 issues contained in Plaintiffs’ motion to compel and submitted a joint discovery letter outlining

12 their remaining disputes on October 22, 2012. Dkt. Nos. 91, 99. Separately, Plaintiffs opposed

13 Defendants’ motion for protective order. Dkt. No. 89. Defendants’ motion was heard on

14 November 1, 2012. Dkt. No. 91. Magistrate Judge Westmore denied Defendants’ motion on

15 November 13, 2012. Dkt. No. 109. Three days later, Magistrate Judge Westmore issued her

16 Order regarding the parties’ October 22, 2012 joint discovery letter, ordering Defendants to

17 produce significant additional documents. Dkt. No. 110. The parties updated Magistrate Judge

18 Westmore with a joint discovery status letter on November 19, 2012 (Dkt. No. 111), and the

19 Court issued an order on the status letter on November 30, 2012 (Dkt. No. 114).

20

Following in camera review of Defendants’ documents pursuant to her November 16,

21 2012 Order, Magistrate Judge Westmore ordered Defendants to produce additional documents in

22 four consecutive orders based on the Court’s in camera review – on January 7, 2013 (Dkt.

23 No. 116), February 1, 2013 (Dkt. No. 122), February 27, 2013 (Dkt. No. 128), and March 27,

24 2013 (Dkt. No. 132). Defendants moved for leave to file a motion for reconsideration of

25 Magistrate Judge Westmore’s March 27, 2013 order on April 2, 2013 (Dkt. No. 133), which

26 Magistrate Judge Westmore granted in part and denied in part on April 9, 2013 (Dkt. No. 134).

27 Defendants moved this Court for relief from the nondispositive order of the Magistrate Judge on

28 April 23, 2013 (Dkt. No. 135), which Plaintiffs opposed (Dkt. No. 142).

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1

On April 24, 2013, the parties submitted their third and final joint discovery letter,

2 regarding Plaintiffs’ efforts to obtain Rule 34 inspection of the Immigration Court building in

3 San Francisco. Dkt. No. 138. Magistrate Judge Westmore ruled on the joint letter on July 12,

4 2013, generally ordering Defendants to make various portions of the building housing the

5 Immigration Court available for Plaintiffs’ inspection. Dkt. No. 157. Plaintiffs also sought

6 discovery from the detention facilities that house immigration detainees who appear in

7 Immigration Court in San Francisco, subpoenaing the West County Detention Facility,

8 Sacramento County Sheriff’s Department, and Yuba County Jail on January 28, 2013. After

9 considerable discussion with representatives of these facilities (including the assistance of

10 Defendants), Plaintiffs received production on May 2, 2013 (Sacramento), June 14, and

11 August 15-16, 2013 (Yuba County) and November 8, 2013 (West County). Ultimately,

12 Plaintiffs received and reviewed more than twenty thousand pages of documents from

13 Defendants and the detention facilities.

14

While Plaintiffs continued to aggressively seek thorough discovery into Defendants’

15 shackling policies and practices, the parties moved to stay discovery several times based on their

16 progress toward settlement (as well as the government shutdown, which occurred in the midst of

17 the parties’ settlement efforts). The Court referred the case to Magistrate Judge Beeler on

18 March 20, 2012, for the purpose of completing a settlement conference. Dkt. No. 66. The

19 parties met with Magistrate Judge Beeler for their first settlement conference, which lasted more

20 than nine hours, on June 13, 2012. Dkt. No. 76. Thereafter, the parties met with Magistrate

21 Judge Beeler by telephone and/or in person on November 28, 2012 (Dkt. No. 113), February 20

22 and 25 (Dkt. Nos. 125, 127), March 6, 11, and 15 (Dkt. Nos. 129, 130, 131), June 25 and 28

23 (Dkt. Nos. 155, 156), July 24 (Dkt. No. 161), September 25 (Dkt. No. 176), and November 6, 15,

24 18 and 19, 2013 (Dkt. Nos. 190, 195, 197, 200). These discussions culminated in the parties’

25 December 18, 2013 Agreement. See Moreno Decl., Ex. 1.

26 III. SUMMARY OF THE AGREEMENT

27

The Agreement resolves the above-captioned class action as to all Defendants. Id. at 1.

28 Its term will extend three years from the Effective Date. Id. at § I.3.

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1

The Settlement Class. The parties have agreed that the Settlement Class will consist of

2 all current and future adult immigration detainees who have or will have proceedings in

3 Immigration Court in San Francisco during the period from December 23, 2011 (the date of this

4 Court’s class certification order) to three years from the Effective Date of the Agreement (i.e.,

5 the full term of the Agreement). Id. at § I.11.

6

Bond and Merits Hearings. Pursuant to the Agreement, during two of the three types of

7 Immigration Court proceedings in San Francisco – Bond and Merits Hearings – detainees will

8 not be restrained, except in emergency situations. Id. at § III.3. Specifically, officers will be

9 allowed to restrain detainees in emergency situations to protect the safety of the detainee, other

10 detainees, the public, and ICE or EOIR personnel, or to prevent escape. Id. at § III.4. For

11 example, if a detainee becomes combative, disruptive, violent, or threatening, an officer may

12 decide to apply restraints or keep them applied during the hearing. Id. An SDDO will document

13 all emergency situations that led to the use of restraints on a detainee during a hearing in the

14 Comments screen of ICE’s Enforce Alien Removal Module (“EARM”) database. Id. A detainee

15 who is restrained due to his or her behavior will be restrained in all future hearings, unless he or

16 she requests that ICE modify or eliminate the use of restraints based on medical, physical, or

17 psychological grounds that prevent the application of restraints in a safe and humane manner. Id.

18 An SDDO will consider the request and any undue hardship imposed on the detainee from the

19 application of full restraints, and, as soon as practicable, either grant the request, deny the

20 request, reduce the level of restraints, or consider additional available alternatives. Id. This

21 decision will be documented in the Comments screen of EARM and communicated to the

22 detainee and/or his or her attorney verbally or in writing, and will include the basis for the

23 decision (to the extent that it does not reveal specific information that would compromise law

24 enforcement sensitive information). Id.

25

Master Calendar Hearings. In the remaining type of Immigration Court proceeding –

26 Master Calendar Hearings – detainees will appear in full restraints unless an SDDO modifies the

27 level of restraints either due to exigent circumstances or pursuant to a detainee’s request based

28 on a physical, psychological, or medical condition that would prevent application of restraints in

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1 a safe and humane manner, where application of full restraints would impose undue hardship on

2 a detainee (which determination will include a consideration of whether the application of

3 restraints would aggravate an existing injury or disability, and, if necessary, involve guidance

4 from the Immigration Health Services Corps). Id. at § III.2. If necessary, the SDDO may

5 mitigate any security threat posed by allowing a detainee to appear without restraints by

6 assigning additional officers to the court or making arrangements with the Immigration Court for

7 a separate appearance by the detainee. Id. Again, any request to modify the level of restraints

8 and the SDDO’s decision with respect to each request will be documented in the Comments

9 screen of EARM and communicated to the detainee and/or his or her attorney verbally or in

10 writing, and will include the basis for the decision, to the extent that it does not reveal specific

11 information that would compromise law enforcement sensitive information. Id. Regardless of

12 the level of restraints imposed, detainees will not be attached to each other during hearings. Id.

13

Defendants have also agreed to facilitate confidential attorney-client consultations related

14 to Master Calendar Hearings by allowing Settlement Class members to engage in such

15 consultations in ICE’s visiting rooms prior to the hearings. Id. at § V. ICE will maintain two

16 visiting rooms, one of which will generally be made available for consultations from 7:00 a.m. to

17 11:00 a.m. (prior to and during Master Calendar Hearings), and Defendants will generally make

18 best efforts to keep one pew in the courtroom free for brief attorney-client consultations during

19 Master Calendar Hearings. Id. Defendants will also ensure that each Respondent has a copy of

20 his or her Notice to Appear during these periods. Id. ICE will also post in English, Spanish,

21 Chinese, and Punjabi the written notice attached as Exhibit A to the Agreement in the detention

22 facilities where Detained Respondents are housed and in the holding areas of the building

23 housing the Immigration Court in San Francisco. Id. at § IV. ICE will also provide a copy of

24 this written notice in all four languages to Settlement Class members during ICE’s intake

25 process. Id. In addition, within 90 days of the Effective Date, the immigration judges presiding

26 over Master Calendar Hearings will make a statement at the commencement of each hearing

27 summarizing ICE’s restraints practices at Master Calendar Hearings and informing detainees that

28 they may request a change to the use of restraints for their respective circumstances. Id.

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1

Monitoring and Data Collection. Beginning ninety (90) days from the Agreement’s

2 Effective Date, Defendants will periodically monitor contract officers and collect certain data 3 regarding the new restraints policy. Id. at §§ VII-VIII.2 Defendants also will monitor and assess

4 G4S contract officers to ensure their compliance with and implementation of the new restraints

5 policy, and ICE will document the monitoring process and maintain records of its assessments of

6 G4S’s performance. Id. at § VII. San Francisco ICE ERO will also maintain the EARM

7 Comments screens referenced above reflecting (i) the application of restraints and reasons for

8 applying restraints to any Settlement Class members in Bond and Merits Hearings (i.e., based on

9 emergency situations), and (ii) requests by Respondents to be accommodated with a lower level

10 or removal of restraints for Master Calendar Hearings and the dispositions of such requests. Id.

11 at § VIII. San Francisco ICE ERO will, on a bi-annual basis, provide Plaintiffs’ counsel copies

12 of the EARM Comment screens for any detainee who was restrained for a Bond or Merits

13 Hearing or whose request for removal or lessening of restraints for a Master Calendar Hearing

14 was denied. Id. Defendants’ obligation to provide EARM Comment screens will extend either

15 three years if Plaintiffs invoke the Agreement’s Dispute Resolution Process or two years if

16 Plaintiffs do not do so. Id.

17

Attorneys’ Fees. Defendants have agreed to pay Plaintiffs’ reasonable attorneys fees and

18 costs in the amount of three hundred and fifty thousand dollars ($350,000.00), which shall

19 constitute the full and final satisfaction of Plaintiffs’ claims for attorneys’ fees, costs, and

20 litigation expenses that could have been brought in the above-captioned matter, and is inclusive

21 of any interest. Id. at § XIII.

22

Notice Provisions. The Agreement states that the parties are to provide direct notice to

23 the Settlement Class by (i) sending notice via U.S. mail and/or email to all organizations

24 included on the list of low-fee and free legal services provided to respondents in removal

25 proceedings before the San Francisco Immigration Court; (ii) sending notice via email to the list-

26

27 2 Defendants will also provide training to Impacted ICE ERO Personnel and Immigration
28 Judges concerning the new policies and procedures. Id. at § VI.

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1 servs for the Northern California chapter of the American Immigration Lawyers Association

2 (“AILA”) and the Northern California chapter of the National Lawyers’ Guild; (iii) posting

3 notice in areas visible to immigration detainees in all facilities holding respondents appearing

4 before the San Francisco Immigration Court; and (iv) posting notice on the websites of EOIR,

5 ICE, ACLU of Northern California, and Lawyers’ Committee for Civil Rights of the San

6 Francisco Bay Area. Id. at § IX. The Agreement provides that all postings be in English,

7 Spanish, Chinese, and Punjabi, and all parties provide alternate format copies of the notice upon

8 request. It further provides that notice be posted/distributed by the parties within seven (7)

9 working days of the date of entry of the Preliminary Approval Order, and remain posted for no

10 less than thirty (30) days. Id.

11

Settlement Class members were able to object to the proposed Agreement by submitting

12 Objections to Class Counsel in writing, via regular or electronic mail, or by leaving a message

13 with the Objection via telephone. Settlement Class members were also informed of their right to

14 appear at the final approval hearing, provided they comply with the process for submitting

15 Objections.

16

Release. Pursuant to the Agreement, Plaintiffs will release Defendants from all claims

17 asserted in this lawsuit or that could have been asserted on behalf of the Settlement Class arising

18 from the facts and circumstances alleged in the Complaint, including all claims for injunctive or

19 declaratory relief. The Agreement and its waiver and release will not impact the ability of any

20 individual class member (other than the Named Plaintiffs) (i) to bring a claim for monetary

21 damages in his or her individual capacity arising from or related to injury suffered as a result of

22 Defendants’ application of restraints to such class member, or (ii) to argue that the application of

23 restraints adversely affected such individual class member’s ability to defend or present his or

24 her case to the Immigration Court in San Francisco. Id. at § XIV.

25 IV. CLASS NOTICE AND RESPONSE TO PROPOSED SETTLEMENT

26

Pursuant to the Court’s January 23, 2014 Preliminary Approval Order, the parties:

27

(i) sent notice in English, Spanish, Chinese, and Punjabi via U.S. mail to all

28

organizations included on the list of low-fee and free legal services provided to

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1

respondents in removal proceedings before the San Francisco Immigration Court

2

on January 30, 2014. Declaration of Angie Young Kim (“Kim Decl.) ¶ 2.

3

(ii) sent notice in English, Spanish, Chinese, and Punjabi via email to the list-servs for

4

the Northern California chapter of AILA and the Northern California chapter of

5

the National Lawyers’ Guild on January 30, 2014. Declaration of Robin

6

Goldfaden (“Goldfaden Decl.”) ¶ 2.

7

(iii) posted notice in English, Spanish, Chinese, and Punjabi for at least thirty (30)

8

days in areas visible to immigration detainees in all facilities holding respondents

9

appearing before the San Francisco Immigration Court beginning January 30,

10

2014, except that the Punjabi translation was posted at the Yuba County Jail

11

beginning on February 3, 2014. Declaration of Eddie Robinson (“Robinson

12

Decl.”) ¶ 3.3

13

(iv) posted notice for at least thirty (30) days on the websites of ICE and EOIR in

14

English, Spanish, and Chinese, beginning on January 30, 2014, and in Punjabi

15

beginning on January 31, 2014. Id. ¶ 6; Declaration of Jeff Rosenblum

16

(“Rosenblum Decl.”) ¶¶ 3-4, 7.4

17

(v) posted notice in English, Spanish, Chinese, and Punjabi for at least thirty (30)

18

days on the websites of the ACLU of Northern California, and Lawyers’

19

Committee for Civil Rights of the San Francisco Bay Area, beginning on

20

January 30, 2014. Goldfaden Decl. ¶ 3; Declaration of Julia Harumi Mass (“Mass

21

Decl.”) ¶ 9.

22 3 The delay in posting the Punjabi translation of the notice at Yuba County Jail was due to
23 delay in receipt of the Punjabi translation and technical difficulties at Yuba County Jail. Id. at ¶¶ 4-5. The Punjabi translation remains posted, so that it has been available for at least the full
24 thirty (30) days called for by the Preliminary Approval Order. Id. at ¶¶ 3-5.

25

4 The delay in posting the Punjabi translation of the notice to the websites of ICE and EOIR

was due to what Defendants viewed as translation deficiencies in the Punjabi translation initially 26 provided by Plaintiffs and the time needed to modify the translation and provide Plaintiffs time

to review those changes. Robinson Decl. at ¶¶ 4, 6; Rosenblum Decl. at ¶¶ 4-5. The Punjabi 27 translation remains posted, so that it has been available for at least the full thirty (30) days called

for by the Preliminary Approval Order. Robinson Decl. at ¶ 6; Rosenblum Decl. at ¶¶ 3-4, 7. 28

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1

The deadline for receipt of Settlement Class members’ objections to the final approval of

2 the Agreement is March 20, 2014. To date, Plaintiffs’ counsel have not received any objections

3 in writing, via regular or electronic mail, or by telephone or voicemail. Goldfaden Decl. ¶ 4;

4 Mass Decl. ¶ 10; Kim Decl. ¶ 5. Nor have the parties received any requests for copies of the

5 notice in any alternate format. Goldfaden Decl.”) ¶ 4; Mass Decl. ¶ 10; Kim Decl. ¶ 5; Robinson

6 Decl. at ¶ 7; Rosenblum Decl. at ¶ 6. Should any objections be received prior to the final

7 approval hearing, the parties will promptly inform the Court.

8 V. ARGUMENT

9

A. The Court Should Grant Final Approval of the Settlement Agreement

10

1. Legal Standard

11

It is well established in the Ninth Circuit that “voluntary conciliation and settlement are

12 the preferred means of dispute resolution. This is especially true in complex class action

13 litigation[.]” Officers for Justice v. Civil Serv. Comm’n of City and County of San Francisco,

14 688 F.2d 615, 625 (9th Cir. 1982); see Van Bronkhorst v. Safeco Corp., 529 F.2d 943, 950 (9th

15 Cir. 1976) (“[T]here is an overriding public interest in settling and quieting litigation. This is

16 particularly true in class action suits which are now an ever increasing burden to so many federal

17 courts and which frequently present serious problems of management and expense.”).

18

In approving a proposed settlement of a class action under Federal Rule of Civil

19 Procedure 23(e), a court must find that the proposed settlement is “fair, adequate and

20 reasonable.” Officers for Justice, 688 F.2d at 625. To determine whether a settlement is fair,

21 adequate, and reasonable, courts in the Ninth Circuit typically evaluate it based upon the

22 following non-exclusive list of factors:

23

(1) the strength of the plaintiffs’ case; (2) the risk, expense, complexity, and likely

duration of further litigation; (3) the risk of maintaining class action status throughout

24

the trial; (4) the amount offered in settlement; (5) the extent of discovery completed

and the stage of the proceedings; (6) the experience and views of counsel; (7) the

25

presence of a governmental participant; and (8) the reaction of the class members to

the proposed settlement.

26

27 Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004) (citing Hanlon v.

28 Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998)). No one factor controls, and the

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1 “importance to be attached to any particular factor will depend upon and be dictated by the

2 nature of the claim(s) advanced, the type(s) of relief sought, and the unique facts and

3 circumstances presented by each individual case.” Officers for Justice, 688 F.2d at 625.

4

2. The Proposed Settlement Merits Final Approval

5

The parties respectfully request that the Court grant final approval of the Agreement

6 because it is well within the requisite range of fairness, adequacy, and reasonableness.

7

a. The Settlement Provides Substantial Relief for Settlement

Class Members

8

9

In assessing the consideration obtained by class members in a class action settlement,

10 “[i]t is the complete package taken as a whole, rather than the individual component parts, that

11 must be examined for overall fairness.” Officers for Justice, 688 F.2d at 628. The Agreement

12 unquestionably benefits the Settlement Class by ending Defendants’ policy and practice of

13 shackling all detainees at Bond and Merits Hearings. Under the Agreement, Defendants may not

14 restrain Settlement Class members in Bond and Merits Hearings except in emergency situations

15 (i.e., where a detainee becomes combative, disruptive, violent, or threatening). This represents a

16 sea change from Defendants’ challenged policy and practice, under which all detainees were

17 fully shackled during the entirety of their Bond and Merits Hearings – which in some instances

18 involve several different days of proceedings and often include the taking of testimony from the

19 respondents themselves – despite what Plaintiffs alleged to be shackles’ painful interference with

20 detainees’ ability to participate in their own proceedings.

21

Further, while Defendants may continue to restrain Settlement Class members during

22 Master Calendar Hearings, which typically involve several individuals appearing at the same

23 time, Defendants may no longer shackle detainees to one another (“daisy-chaining”), will set

24 aside spaces for private attorney-client consultations, and must allow detainees to request

25 removal or modification of restraints prior to and/or at the hearing itself based on physical,

26 psychological, or medical condition(s). Again, this change is significant and indisputably

27 benefits the Settlement Class. Eliminating “daisy-chaining” and setting aside spaces outside and,

28 when possible, within the courtroom will enable private attorney-client consultations otherwise

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1 not possible under Defendants’ challenged policy and practice. Additionally, to the extent that

2 shackles affect detainees’ mental state and/or physical condition, the Agreement will allow

3 Settlement Class members to request and obtain modification and/or removal of restraints even

4 in Master Calendar Hearings.

5

b. The Strength of Plaintiffs’ Claims Balanced Against the Risk,

Expense, Complexity, and Likely Duration of Further

6

Litigation Favors Approval of the Settlement

7

Given Plaintiffs’ aggressive prosecution of this action both before and after filing suit,

8 Plaintiffs’ counsel understood the strengths and weaknesses of their claims, both factually and

9 legally, throughout the action – including during the parties’ settlement discussions (which began

10 on June 13, 2012) – and were able to effectively engage in rigorous negotiations with Defendants

11 (See Dkt. No. 76). Entering into settlement negotiations, Plaintiffs and their counsel were

12 confident in the strength of their case, but also pragmatic in their awareness of the risks inherent

13 in litigation. For example, Plaintiffs would face the risk of dismissal at the summary judgment

14 stage. Resolution of such a dispositive motion would turn on the adjudication of matters such as

15 the required showing of prejudice to the Class as a result of Defendants’ restraints practices

16 relative to Defendants’ asserted interests.

17

Plaintiffs could certainly not have counted on injunctive relief as beneficial to the Class

18 as the terms of the Agreement had the case proceeded to trial, and success on the merits was by

19 no means guaranteed. Defendants were expected to adduce expert testimony and evidence

20 concerning their restraints practices, leading to a “battle of the experts” that inherently carries

21 some risk. Even if Plaintiffs did prevail through motion practice and at trial, relief to the Class

22 could be delayed for years by an appeal. Moreover, such relief, if it were attained, might be

23 narrower in scope and effect than that obtained as a result of this settlement. Given the

24 complexities of this constitutional class action and the continued risks if the parties were to

25 proceed, the Agreement represents a favorable resolution and eliminates the risk that the

26 Settlement Class might recover less or nothing at all.

27

c. The Stage of Proceedings and Discovery Thus Far Has

Enabled Sufficient Evaluation of the Merits of the Claims

28

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1

The extent of discovery completed and the stage of proceedings at the time of settlement

2 are relevant “in determining the adequacy of the parties’ knowledge of the case.” Nat’l Rural

3 Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 527 (C.D. Cal. 2004). These

4 considerations also weigh in favor of approval.

5

Prior to filing the Complaint on August 15, 2011, Plaintiffs conducted an extensive

6 investigation into the claims asserted therein. Plaintiffs’ counsel observed over one hundred

7 bond and master calendar hearings in Immigration Court in San Francisco, interviewed dozens of

8 adult immigrant detainees, and consulted with numerous legal practitioners and experts in the

9 fields of mental health and courtroom security. Dkt. No. 6 (Pls.’ Mem. in Supp. of Class Cert.)

10 at 15. Plaintiffs’ investigation continued after filing suit and successfully opposing Defendants’

11 motion to dismiss (Dkt. Nos. 27, 29) and obtaining class certification on behalf of “all current

12 and future adult immigration detainees who have or will have proceedings in immigration court

13 in San Francisco” (Dkt. No. 52).

14

Plaintiffs (and Defendants) engaged in extensive discovery, including numerous rounds

15 of discovery requests, several rounds of briefing and two discovery hearings before Magistrate

16 Judge Kandis Westmore aimed at expanding the scope of Defendants’ production, challenging

17 the applicability of asserted privileges, and/or compelling production of specific responsive

18 documents. In total, Plaintiffs reviewed over twenty thousand pages of documents obtained from

19 Defendants ICE and EOIR and third parties West County Detention Facility, Sacramento County

20 Sheriff’s Department, and Yuba County Jail. Plaintiffs also conducted outreach to the Class via

21 letter, procured a telephone line through which detainees could (and did) contact Plaintiffs’

22 counsel, and personally interviewed more than twenty detainees regarding their experiences with

23 restraints in Immigration Court in San Francisco. Defendants, for their part, sought documents

24 and testimony from the Named Plaintiffs and members of the Plaintiff class. Plaintiffs and

25 Defendants each noticed numerous depositions, and the parties respectively took and/or defended

26 several depositions before agreeing to stay discovery based on promising settlement discussions

27 before Magistrate Judge Beeler (as well as the intervening government shutdown).

28

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1

d. The Recommendation of Experienced Counsel Favors

Approval

2

3

“[T]he fact that experienced counsel involved in the case approved the settlement after

4 hard-fought negotiations is entitled to considerable weight.” Ellis v. Naval Air Rework Facility,

5 87 F.R.D. 15, 18 (N.D. Cal. 1980), aff’d, 661 F.2d 939 (9th Cir. 1981); see Boyd v. Bechtel

6 Corp., 485 F. Supp. 610, 622 (N.D. Cal. 1979) (“The recommendations of plaintiffs’ counsel

7 should be given a presumption of reasonableness.”).

8

Class Counsel is experienced in the litigation, certification, trial, and settlement of

9 complex claims, including class actions. Moreno Decl. at ¶¶ 3-8; Mass Decl. at ¶¶ 2-4;

10 Declaration of Paul Chavez (“Chavez Decl.”) at ¶¶ 2-3. Class Counsel has determined that the

11 Settlement is in the best interest of the Class, especially because it provides substantial relief and

12 eliminates the risk that the Settlement Class might obtain less or nothing at all if the litigation

13 proceeds.

14

e. The Presence of a Governmental Participant Favors Approval

15

All the defendants in this case are governmental entities or actors. Defendants include the

16 United States Department of Homeland Security (“DHS”); Rand Beers, Acting Secretary of DHS;

17 ICE; John Sandweg, Acting Director of ICE; Timothy Aitken, Field Office Director of the San

18 Francisco District of ICE; Eric H. Holder, Jr., United States Attorney General; EOIR; and Juan P.

19 Osuna, Director of EOIR (collectively, “DOJ Defendants”). The DOJ Defendants’ presence in

20 this litigation and endorsement of the settlement weigh in favor of approval. See Adoma v.

21 University of Phoenix, 913 F. Supp. 2d 964, 977 (E.D. Cal. 2012) (presence of governmental

22 participant weighed in favor of approving settlement).

23

f. The Class Members’ Reaction Favors Approval

24

“The lack of objections to the settlement is perhaps the most significant factor weighing

25 in favor of settlement.” West v. Circle K Stores, Inc., No. Civ. S-04-0438, 2006 U.S. Dist.

26 LEXIS 76558, at *19-*20 (E.D. Cal. Oct. 20, 2006); accord Nat’l Rural, 221 F.R.D. at 529

27 (“The absence of a single objection to the Proposed Settlement provides further support for final

28 approval of the Proposed Settlement.”).

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1

To date, Class Counsel has not received a single objection to the settlement despite

2 widespread notice of the settlement in four languages informing class members – and many of

3 the attorneys who represent class members in their immigration proceedings – that they may

4 object in writing, via regular or electronic mail, or by leaving a message with the Objection via

5 telephone. This further supports approval of the settlement.

6

Moreover, in the event any objections are received, it is “established that the absence of a

7 large number of objections to a proposed class action settlement raises a strong presumption that

8 the terms of a proposed class action settlement are favorable to the class members.” Nat’l Rural

9 Telecomms., 221 F.R.D. at 529; see Boyd, 485 F. Supp. at 624 (approving settlement where 16

10 percent of class filed some opposition to settlement).

11

g. The Risk of Maintaining Class Action Status Throughout the

Trial Is a Neutral Factor

12

13

The Court has already certified a class nearly identical to the Settlement Class proposed

14 by the parties. Plaintiffs are unaware of any specific difficulty in maintaining class-action status

15 in this case, and thus this factor is neutral. See Barbosa v. Cargill Meat Solutions Corp.,

16 No. 1:11-cv-00275, 2013 WL 3340939, at *13 (E.D. Cal. July 2, 2013) (“Because the Court is

17 not aware of any risks to maintaining class-action status throughout trial, this factor is neutral.”);

18 Murillo v. Pac. Gas & Elec. Co., No. CIV. 2:08-1974, 2010 WL 2889728, at *7 (E.D. Cal.

19 July 21, 2010) (where court was unaware of any specific difficulty in maintaining class-action

20 status through trial, court did not consider this factor for settlement purposes).

21

B. Certification of the Settlement Class Is Appropriate

22

A court may certify a settlement class if a plaintiff demonstrates that all of the

23 prerequisites of Federal Rule of Civil Procedure 23(a) have been met, and that at least one of the

24 requirements of Rule 23(b) have been met. See Fed. R. Civ. P. 23; Hanlon, 150 F.3d at 1022.

25 Here, the Court has already certified a class nearly identical to the Settlement Class proposed by

26 the parties. Indeed, if anything, the Settlement Class is narrower in that it is time-bound by the

27 term of the Agreement.

28

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1

Because the Court has already found that a class consisting of “all current and future

2 adult immigration detainees who have or will have proceedings in immigration court in San

3 Francisco” meets the requirements of Rule 23, the parties respectfully propose that certification

4 of the Settlement Class (i.e., “all current and future adult immigration detainees who have or will

5 have proceedings in immigration court in San Francisco between December 23, 2011, to three

6 years from the Effective Date of the Agreement”) is likewise appropriate in connection with final

7 approval of the settlement.

8

C. The Attorneys’ Fees Provision of the Agreement Is Reasonable

9

The attorneys’ fees and costs provision should be approved as part of the Agreement

10 because it: (1) was not the result of collusion or a sacrifice of the interests of the class; and

11 (2) represents a discount to the lodestar for the hours and rates Plaintiffs’ counsel have recorded

12 in connection with their prosecution of this action.

13

This Agreement was the product of extensive, months-long negotiations conducted with

14 the substantial guidance and assistance of Magistrate Judge Beeler. Indeed, the parties

15 participated in at least fifteen separate in-person or telephonic settlement conferences involving

16 Magistrate Judge Beeler, in addition to conducting numerous informal settlement talks by

17 telephone over the course of eighteen months. During the course of these negotiations, the

18 parties engaged in extensive discovery, including contentious related motion practice. The

19 parties did not negotiate attorneys’ fees until after there was an agreement in principle on all the

20 substantive aspects of the Agreement. Moreno Decl. at ¶ 12; Mass Decl. at ¶ 8; Chavez Decl. at

21 ¶ 7. Under such circumstances, it is clear that the Agreement is the product of vigorous, arm’s-

22 length bargaining and that “the fee was not the result of collusion or a sacrifice of the interests of

23 the class[.]” Hanlon, 150 F.3d at 1029.

24

“In employment, civil rights, and other injunctive relief class actions, courts often use a

25 lodestar calculation because there is no way to gauge the net value of the settlement or any

26 percentage thereof.” Id. The lodestar calculation “begins with the multiplication of the number

27 of hours reasonably expended by a reasonable hourly rate.” Id.

28

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1

Here, Defendants have agreed to pay Plaintiffs’ reasonable attorneys fees and costs in the

2 amount of three hundred and fifty thousand dollars ($350,000.00), which shall constitute the full

3 and final satisfaction of Plaintiffs’ claims for attorneys’ fees, costs, and litigation expenses that

4 could have been brought in the above-captioned matter, and is inclusive of any interest. Moreno

5 Decl. Ex. 1 at § XIII. The amount of attorneys’ fees to be paid is a figure negotiated with the

6 assistance of Magistrate Judge Beeler. Moreno Decl. at ¶ 12; Mass Decl. at ¶ 8; Chavez Decl. at

7 ¶ 7. It represents a discount to the lodestar for the hours and rates Plaintiffs’ counsel have

8 recorded in connection with their prosecution of this action. Moreno Decl. at ¶¶ 9-10 (noting

9 that lodestar for Wilson Sonsini Goodrich & Rosati attorney timekeepers for 2011-2013,

10 applying Equal Access to Justice Act rates, amounts to over $935,685 – a figure that does not

11 include costs or significant time devoted to this matter by staff); see also Mass Decl. at ¶¶ 5-6;

12 Chavez Decl. at ¶¶ 4-5. Moreover, the amount of attorneys’ fees was disclosed in the notice to

13 the Settlement Class (see, e.g., Kim Decl. Ex. 2), and no objections have been received to date.

14 Goldfaden Decl. ¶ 4; Mass Decl. ¶ 10; Kim Decl. ¶ 5.

15 VI. CONCLUSION

16

For the foregoing reasons, Plaintiffs respectfully request that the Court grant final

17 approval of the settlement.

18 Dated: March 6, 2014

Respectfully submitted,

19

By: /s/ Catherine E. Moreno

20

Catherine E. Moreno

21

WILSON SONSINI GOODRICH & ROSATI

Professional Corporation

22

David J. Berger

Thomas J. Martin

23

Angie Young Kim

Savith S. Iyengar

24

Briza Sanchez

25

26

27

28

UNOPPOSED NOTICE OF MOT., MOT., & MEM. OF P. & A. IN SUPP. OF FINAL APPROVAL 3:11-CV-4001 RS

-18-

Case3:11-cv-04001-RS Document209 Filed03/06/14 Page23 of 23

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
UNOPPOSED NOTICE OF MOT., MOT., & MEM. OF P. & A. IN SUPP. OF FINAL APPROVAL 3:11-CV-4001 RS

LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF THE SAN FRANCISCO BAY AREA Paul Chavez Robin Goldfaden AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, INC. Julia Harumi Mass Jingni (Jenny) Zhao Alan L. Schlosser Attorneys for Plaintiffs
-19-

 
 Case3:11-cv-04001-RS Document209-1 Filed03/06/14 Pagel of 4
1 DAVID J. BERGER, State Bar No. 147645 CATHERINE E. MORENO, State Bar No. 264517
2 THOMAS J. MARTIN, State Bar No. 150039 WILSON SONSINI GOODRICH & ROSATI
3 Professional Corporation 650 Page Mill Road
4 Palo Alto, CA 94304-1050 Telephone: (650) 493-9300
5 Facsimile: (650) 565-5100 Email: tmartin@wsgr.com
6 PAUL CHAVEZ, State BarNo. 241576
7 ROBIN GOLDFADEN, State Bar No. 208055 LAWYERS' COMMITTEE FOR CIVIL RIGHTS
8 OF THE SAN FRANCISCO BAY AREA 131 Steuart Street, Suite 400
9 San Francisco, CA 94105 Telephone: (415) 543-9444
10 Facsimile: (415) 543-0296 Email: pchavez@lccr.com
11 illLIA HARUMI MASS, State Bar No. 189649
12 JINGNI (JENNY) ZHAO, State Bar No. 284684 ALAN L. SCHLOSSER, State Bar No. 49957
13 AMERICAN CIVIL LffiERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, INC.
14 39 Drumm Street San Francisco, CA 94111
15 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
16 Email: jmass@aclunc.org
17 Attorneys for Plaintiffs
18 UNITED STATES DISTRICT COURT
19 NORTHERN DISTRICT OF CALIFORNIA
20 SAN FRANCISCO DIVISION

Case3:11-cv-04001-RS Document209-1 Filed03/06/14 Page2 of 4

1

Pursuant to Federal Rule of Civil Procedure 23(e), and in accordance with the settlement

2 agreement ("Agreement") entered into by all parties on December 18, 2013, it is hereby

3 ORDERED, ADJUDGED, and DECREED as follows:

4

I. This Final Order and Dismissal adopts and incorporates by reference the terms and

5

definitions of the Agreement submitted as Exhibit l to the Declaration of Catherine E.

6

Moreno, filed with Plaintiffs' Unopposed Motion for Preliminary Approval of Class

7

Action Settlement (Dkt. 203).

8

2. The Court has jurisdiction over the subject matter of this action under 28 U.S.C. § 1331

9

(federal question), 28 U.S.C. §§ 2201 and 2202 (declaratory relief), and 5 U.S.C. § 706

10

(waiver of sovereign immunity). The Court has personal jurisdiction over the Plaintiff

11

Class (as defined in the Court's order granting Plaintiffs' Motion for Class Certification

12

(Dkt. 52)), the Settlement Class (as defined in paragraph 5 herein), and Defendants.

13

3. The Notice of Proposed Settlement (the "Notice," in the form attached as Exhibit C to the

14

Agreement, was directed to members of the Settlement Class in accordance with the

15

Preliminary Approval Order (Dkt. 208), dated January 23, 2014, and (a) constituted the

16

best notice practicable under the circumstances and (b) was reasonably calculated, under

17

the circumstances, to apprise Class members of the pendency of the Settlement and the

18

release of rights contained in the Agreement. Pursuant to, and in accordance with,

19

Rule 23 of the Federal Rules of Civil Procedure, the Court hereby finds that the Notice

20

provided members of the Class due and adequate notice of the Settlement, the

21

Agreement, these proceedings, and the rights of members of the Settlement Class to

22

object to the Settlement.

23

4. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, this Court hereby approves

24

the Settlement as set forth in the Agreement and finds that the Settlement is in all respects

25

fair, reasonable, and adequate to the Settlement Class members. Accordingly, the

26

Settlement shall be consummated in accordance with the terms and provisions of the

27

Agreement, which are incorporated by reference into this Final Order and Stipulated

28

Dismissal.

-1-
fPROPOSED] FINAL ORDER AND DISMISSAL
Case No.: 3:11-cv-4001 RS

Case3:11-cv-04001-RS Document209-1 Filed03/06/14 Page3 of 4

1

5. By its Preliminary Approval Order, dated January 23, 2014, the Court preliminarily

2

certified the following Settlement Class: All current and future adult immigration

3

detainees who have or will have proceedings in immigration court in San Francisco

4

during the term of the Agreement.

5

6. The Court finds that this Settlement Class satisfies the requirements of Rule 23 of the

6

Federal Rules of Civil Procedure, including the requirements of numerosity,

7

commonality, typicality, and adequacy pursuant to Rule 23(a) and at least one of the

8

requirements of Rule 23(b). The Court hereby certifies the Settlement Class as described

9

in Paragraph 5 of this Final Order and Dismissal.

10

7. The Court approves Uelian De Abadia-Peixoto, Esmar Cifuentes, MiLian Wei, and

11

Pedro Nolasco Jose as Class Representatives for the Settlement Class.

12

8. The Court finds that Class Counsel, Wilson Sonsini Goodrich & Rosati PC, Lawyers'

13

Committee for Civil Rights of the San Francisco Bay Area, and the American Civil

14

Liberties Union Foundation of Northern California, Inc. have fairly and adequately

15

represented the interests of the Class and satisfied all the requirements of Rule 23(g) of

16

the Federal Rules of Civil Procedure.

17

9. Upon the Settlement becoming final in accordance with Section IX of the Agreement, the

18

parties agree that this action will be DISMISSED.

19

I0. Without in any way affecting the finality of this Final Order and Stipulated Dismissal,

20

this Court has continuing jurisdiction as to all matters relating to the interpretation,

21

administration, and enforcement of the Agreement.

22

11. The Court finds that this Final Order and Stipulated Dismissal adjudicates all of the

23

claims, rights, and liabilities of the Parties to the Settlement, and is intended to be final.

24 IT IS SO ORDERED.

25
26 Dated: Y/to(c'f --~-1--+i- - - -
27

28

-2-
rPROPOSED] FINAL ORDER AND DISMISSAL
Case No.: 3:11-cv-4001 RS

Case3:11-cv-04001-RS Document209-1 Filed03/06/14 Page4 of 4

1 Dated: March 6, 2014
2
3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21
22
23 24
25 26
27
28
rPROPOSED] FINAL ORDER AND DISMISSAL
Case No.: 3: 11-cv-400 1 RS

Respectfully submitted,
By: Is/ Catherine E. Moreno
Catherine E. Moreno WILSON SONSINI GOODRICH & ROSATI Additional Counsel on Caption Page
-3-

 
 Case3:11-cv-04001-RS Document203-3 Filed12/19/13 Page1 of 54
EXHIBIT 1

Case3:11-cv-04001-RS Document203-3 Filed12/19/13 Page2 of 54 EXECUTION COPY

1 STUART F. DELERY Acting Assistant Attorney General
2 Civil Division DAVID J. KLINE
3 Director, Office of Immigration Litigation District Court Section
4 WILL SILVIS Senior Litigation Counsel
5 EREZ REUVENI United States Department of Justice
6 Office of Immigration Litigation District Court Section
7 P.O. Box 868, Ben Franklin Station Washington, DC 20044
8 Telephone: (202) 307-4293 Facsimile: (202) 616-8962
9 Email: erez.r.reuveni@usdoj.gov

10 Attorneys for Defendants

11

UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

13

SAN FRANCISCO DIVISION

14 UELIAN DE ABADIA-PEIXOTO, et al., | No. Civ. 11-4001 RS (LB)

15

Plaintiffs,

| |

16

v.

| SETTLEMENT AGREEMENT |

17 UNITED STATES DEPARTMENT OF

| |

18

HOMELAND SECURITY, RAND BEERS, |

Acting Secretary of the United States

|

19

Department of Homeland Security, UNITED | STATES IMMIGRATION AND CUSTOMS |

20

ENFORCEMENT, JOHN SANDWEG, Acting Director of U.S. Immigration and

| |

21

Customs Enforcement, TIMOTHY AITKEN, | Field Office Director of the San Francisco |

22

District of U.S. Immigration and Customs | Enforcement, ERIC H. HOLDER, JR., United|

23

States Attorney General, THE EXECUTIVE | OFFICE FOR IMMIGRATION REVIEW, |

24

and JUAN P. OSUNA, Director of the Executive Office for Immigration Review,

| |

25

Defendants.

| |

26

| |

27

28

1

Case3:11-cv-04001-RS Document203-3 Filed12/19/13 Page3 of 54 EXECUTION COPY

1

This Settlement Agreement (“Agreement”) is entered into by all Plaintiffs and Defendants in

2 this class action lawsuit (collectively, “the Parties”). Plaintiffs are immigration detainees in the

3 custody of U.S. Immigration and Customs Enforcement (“ICE”) who have or will have proceedings

4 in immigration court in San Francisco, California. Defendants are the United States Department of

5 Homeland Security (“DHS”); Rand Beers, Acting Secretary of DHS; United States Immigration and

6 Customs Enforcement (“ICE”); John Sandweg, Acting Director of ICE; Timothy Aitken, Field

7 Office Director of the San Francisco District of ICE (collectively, “DHS Defendants”); Eric H.

8 Holder, Jr., United States Attorney General; the Executive Office for Immigration Review

9 (“EOIR”); and Juan P. Osuna, Director of EOIR (collectively, “DOJ Defendants”).

10

WHEREAS, Plaintiffs filed this class action lawsuit in the United States District Court for

11 the Northern District of California on August 15, 2011 (De Abadia-Peixoto, et al. v. DHS, et al., 11-

12 CV-4001 RS (N.D. Cal. 2011)), alleging that Defendants engage in the unconstitutional practice of

13 restraining Detained Respondents during in-court appearances at the San Francisco Immigration

14 Court “without an individualized determination” that restraints are necessary.

15

WHEREAS, Defendants deny all allegations;

16

WHEREAS, the Parties believe it is in their mutual interest to settle this action to avoid the

17 risk and burden of trial in this matter, and accordingly enter into this Agreement to resolve this class

18 action lawsuit;

19

NOW, THEREFORE, in full settlement of this action and in consideration of the promises

20 and undertakings set forth herein, the sufficiency of which is hereby acknowledged, it is hereby

21 stipulated and agreed, by and between the undersigned, as follows:

22

23

I. Definitions

24

1. “Plaintiffs” are the representatives and members of the class certified by this Court on

25 December 23, 2011, which is defined as “all current and future adult immigration detainees who

26 have or will have proceedings in immigration court in San Francisco.”

27

2. “Defendants” are the United States Department of Homeland Security (“DHS”); Rand

28 Beers, Acting Secretary of DHS; United States Immigration and Customs Enforcement (“ICE”);

2

Case3:11-cv-04001-RS Document203-3 Filed12/19/13 Page4 of 54 EXECUTION COPY

1 John Sandweg, Acting Director of ICE; Timothy Aitken, Field Office Director of the San Francisco

2 District of ICE (collectively, “DHS Defendants”); and Eric H. Holder, Jr., United States Attorney

3 General; the Executive Office for Immigration Review (“EOIR”); Juan P. Osuna, Director of EOIR

4 (collectively, “DOJ Defendants”).

5

3. The “Effective Date” is the date upon which the Court approves this Agreement and

6 adopts its terms in a final order.

7

4. “Immigration Court Practice Manual” refers to the Office of the Chief Immigration

8 Judge, “Immigration Court Practice Manual,” available at

9 www.justice.gov/eoir/vll/OCIJPracManual/ocij_page1.htm.

10

5. “San Francisco Immigration Court” consists of the immigration courtrooms in the

11 federal building at 630 Sansome Street, San Francisco, CA 94111 (including any “spill-over” rooms

12 sometimes utilized as immigration courtrooms).

13

6. “Detained Respondents” or “Respondents” are adults detained in the custody of ICE,

14 and whom ICE transports to the San Francisco Immigration Court so they may appear in person

15 before an Immigration Judge for their hearings.

16

7. “Restraints” is defined as a means to physically restrict the movement of an

17 individual by application of handcuffs, leg cuffs, leg weights, fetters, waist chains, or other

18 implements at the hands, wrists, ankles, feet, waist or elsewhere on the body.

19

8. “Merits Hearing” is a hearing in an immigration removal proceeding, as described in

20 chapter 4.16 of the “Immigration Court Practice Manual,” at which the Respondent may present to

21 the Immigration Judge any evidence and testimony in opposition to charges of removability or in

22 support of the detainee’s applications for relief from removal. “Merits Hearing” excludes bond

23 hearings, status conference hearings, and master calendar hearings.

24

9. “Bond Hearing” is a hearing, as described in chapter 9 of the “Immigration Court

25 Practice Manual,” at which the parties may present to the Immigration Judge any evidence and

26 testimony relevant to a bond redetermination for a Detained Respondent, including Joseph and

27 Casas hearings and any other hearings related to custody or supervision.

28

3

Case3:11-cv-04001-RS Document203-3 Filed12/19/13 Page5 of 54 EXECUTION COPY

1

10. “Master Calendar Hearing” is a brief hearing, as described in chapter 4.15 of the

2 “Immigration Court Practice Manual,” where multiple Respondents are present at the San Francisco

3 Immigration Court, during which the Immigration Judge takes pleadings, schedules the cases for

4 future hearings, and handles other similar routine administrative matters.

5

11. “Settlement Class” includes all current and future adult immigration detainees who

6 have or will have proceedings in immigration court in San Francisco during the period from

7 December 23, 2011, to three years from the Effective Date of this Agreement.

8

9

II. Temporal Scope and Expiration of the Agreement

10

This Agreement, and all responsibilities and obligations contained herein, shall begin on the

11 Effective Date and terminate three years from the Effective Date of this Agreement.

12

13

III. Use of Restraints in Immigration Court

14

Within 90 days of the Effective Date, application of restraints to members of the Settlement

15 Class appearing in person for their hearings in the San Francisco immigration courtrooms at 630

16 Sansome Street will be limited as follows:

17

1. General Principles: Defendants’ policy for the use of restraints in San Francisco

18 Immigration Court will preserve the dignity of immigration court proceedings as well as the dignity

19 of individual detainees appearing in court, while protecting the safety and security of all participants

20 and other detainees, ICE and EOIR personnel, and members of the public. With the exception of

21 Master Calendar Hearings, ICE will not restrain detainees for their hearings absent emergency

22 situations.

23

2. Master Calendar Hearings: In general, all detainees will appear at Master Calendar

24 Hearings in full restraints as defined in ERO Use of Restraints Policy, issued by Executive Associate

25 Director Gary Mead on November 19, 2012. However, any Supervisory Detention and Deportation

26 Officer (“SDDO”) assigned to ERO Detention Operations will be authorized to modify the level of

27 restraints in exigent circumstances. In addition, at any time prior to a Master Calendar Hearing or at

28 the hearing itself, any detainee shall have the ability to request a modification of the level of

4

Case3:11-cv-04001-RS Document203-3 Filed12/19/13 Page6 of 54 EXECUTION COPY

1 restraints if the detainee is suffering from a physical, psychological, or medical condition that would

2 prevent application of restraints in a safe and humane manner. Any ERO or G4S officer who

3 becomes aware of such concerns will, as soon as practicable, notify an SDDO assigned to ERO

4 Detention Operations. The SDDO will consider the detainee’s condition and, if necessary, seek

5 guidance from the Immigration Health Services Corps (IHSC). If an SDDO determines that

6 application of full restraints would impose undue hardship on the detainee (which determination will

7 include a consideration of whether the application of restraints would aggravate an existing injury or

8 disability), the SDDO will have the authority to reduce the level of restraints. If necessary, the

9 SDDO may also mitigate the security threat posed by the detainee by assigning additional officers to

10 the court or making arrangements with the immigration court for a separate appearance by the

11 detainee. The SDDO’s decision regarding a detainee’s request to remove or reduce the level of

12 restraints to be applied at a Master Calendar Hearing will be documented in the Comments screen of

13 the Enforce Alien Removal Module (“EARM”) and communicated to the detainee and/or his or her

14 attorney verbally or in writing, and will include the basis for the decision, to the extent it does not

15 reveal any specific information that would compromise law enforcement sensitive information.

16 Regardless of the level of restraints imposed, detainees shall not be attached to each other during

17 hearings.

18

3. Bond and Merits Hearings: In general, detainees appearing for Bond and Merits

19 Hearings will not be restrained for the duration of the hearing, except for emergency situations as

20 described in paragraph 4.

21

4. Emergency Situations: Officers are allowed to apply restraints in emergency

22 situations to protect the safety of the detainee, other detainees, the public, and ICE or EOIR

23 personnel, or to prevent escape. For example, should the detainee become combative, disruptive,

24 violent, or threatening, the officer may decide to apply restraints or keep them applied during the

25 hearing. The officer will contact the SDDO, contract security supervisor, or ERO Detention

26 Operations Control Room as soon as practicable to advise of the situation. Following notification,

27 the SDDO will document in the Comments screen of EARM any emergency situation that would

28 cause the use of restraints on the detainee during the hearing. If a detainee was previously restrained

5

Case3:11-cv-04001-RS Document203-3 Filed12/19/13 Page7 of 54 EXECUTION COPY

1 due to his or her behavior, then that detainee will be restrained for all future hearings. However, if a

2 detainee who was previously restrained due to his or her behavior believes that she or he has

3 medical, physical, or psychological grounds that would prevent the application of restraints in a safe

4 and humane manner, then the detainee can request to modify or eliminate the use of restraints in

5 future Bond or Merits Hearings. The detainee can make such a request by either submitting a written

6 request before his or her next Bond or Merits Hearing to ICE, or by making the request to ICE at the

7 hearing. If such a request is made, it will be communicated to the SDDO as soon as practicable.

8 This may require contacting a SDDO directly through a contract security supervisor via cell phone

9 or radio. The SDDO will consider the request and any undue hardship imposed on the detainee from

10 the application of full restraints, and provide a response as soon as practicable. The SDDO may

11 grant the request, deny the request, reduce the level of restraints, or consider additional available

12 alternatives. The decision will be documented in the Comments screen of EARM and

13 communicated to the detainee and/or his or her attorney verbally or in writing, and will include the

14 basis for the decision, to the extent it does not reveal any specific information that would

15 compromise law enforcement sensitive information.

16

17

IV. Notice

18

Within 90 days of the Effective Date, ICE will post, in English, Spanish, Chinese and

19 Punjabi the written notice attached as Exhibit A, in the detention facilities where Detained

20 Respondents are housed and in the holding areas of 630 Sansome Street. In addition, within 90 days

21 of the Effective Date, ICE will provide a copy of the written notice attached as Exhibit A in English,

22 Spanish, Chinese, and Punjabi to Settlement Class members during ICE’s intake process.

23

Also, within 90 days of the Effective Date, the immigration judge presiding over each Master

24 Calendar Hearing will make the statement (to be interpreted into every language represented in the

25 hearing for which there is a court interpreter who can provide such interpretation) that “ICE has a

26 policy regarding the use of restraints in Court, and under this policy, people are generally restrained

27 for this type of hearing. If you have not received a copy of the notice reflecting this policy, or if you

28

6

Case3:11-cv-04001-RS Document203-3 Filed12/19/13 Page8 of 54 EXECUTION COPY

1 wish to request a change to the use of restraints in your case at this hearing, please advise the court at

2 this time.”

3

4

V. Private Attorney Consultations for Master Calendar Hearings

5

To facilitate attorney-client consultations related to Master Calendar Hearings, the parties

6 agree and acknowledge that class members may engage in such consultations in ICE’s visiting

7 rooms on the sixth floor at 630 Sansome Street, San Francisco, California, prior to the hearings. ICE

8 will maintain two visiting rooms, one of which will be made available for confidential attorney

9 consultations from 7:00 a.m. to 8:45 a.m. in advance of Master Calendar Hearings, and absent

10 operational constraints arising from day-to-day management of ICE operations, from 8:45 a.m. to

11 11:00 a.m., during Master Calendar Hearings. Defendants will ensure that each Respondent has a

12 copy of his or her Notice to Appear. ICE will also make reasonable efforts, in light of daily

13 operational needs, to ensure attorneys are able to reasonably access detainees for consultations in the

14 visiting rooms from 7:00 a.m. to 11:00 a.m. on days when Master Calendar Hearings are scheduled.

15 In addition, Defendants will make best efforts to keep one pew in the courtroom free for brief

16 attorney-client consultations during Master Calendar hearings provided it does not interfere with or

17 disrupt Defendants’ ability to conduct proceedings or the safety and security of the courtroom. If

18 necessary, ICE may adjust the number of Respondents in the courtroom for Master Calendar

19 Hearings in order to ensure that one pew can be made available for private attorney-client

20 consultations.

21

22

VI. Notice of Policy Change and Training on Implementation

23

1. Within 30 days of the Effective Date, Defendants will provide written notice of the

24 policy referred to in Section III above to all SDDOs, EROs, and managers of SDDOs (collectively,

25 “Impacted ICE ERO San Francisco Personnel”) and to all G4S officers assigned to work with

26 Detained Respondents and to the Immigration Judges (including judges who only sometimes staff

27 the detained court) at the San Francisco Immigration Court.

28

7

Case3:11-cv-04001-RS Document203-3 Filed12/19/13 Page9 of 54 EXECUTION COPY

1

2. Within 45 days of the Effective Date, EOIR will instruct all affected Immigration

2 Judges at the San Francisco Immigration Court on the settlement agreement and EOIR’s role in the

3 new policy.

4

3. Within 60 days of the Effective Date, ICE will train all Impacted ICE ERO San

5 Francisco Personnel on the new policy. From the Effective Date of this Agreement and until the

6 termination of this Agreement, ICE Defendants will ensure that new ICE personnel impacted by the

7 new San Francisco restraints policy described in Section III also receive training on the restraints

8 policies and practices within a reasonable period after assuming their positions. Defendant ICE also

9 agrees to periodically monitor and assess Impacted ICE ERO San Francisco Personnel to ensure

10 their compliance with implementation of the new restraints policy referenced in this section. Upon

11 the Effective Date of this Agreement and until its termination, Defendants shall maintain copies of

12 this Settlement Agreement at their San Francisco offices and make it available for all personnel

13 involved with the custody and control of Settlement Class members.

14

15

VII. Monitoring Contract G4S Officers

16

Beginning 90 days from the Effective Date of this Agreement and continuing until

17 termination of this Agreement, Defendant ICE agrees to periodically monitor and assess G4S

18 contract officers to ensure their compliance with and implementation of the new restraints policy

19 referenced in Section III. ICE will document the monitoring process and maintain records of its

20 assessments of G4S’s performance for a period of three years from the Effective Date.

21

22

VIII. Data Collection and Production

23

After 90 days from the Effective Date of this Agreement and until the Agreement’s

24 termination, San Francisco ICE ERO agrees to maintain EARM Comments screens reflecting the

25 application of and reasons for applying restraints based on emergency situations as described in III.4.

26 to any Settlement Class members in Bond or Merits Hearings as well as EARM Comments screens

27 reflecting requests by Respondents to be accommodated with a lower level of restraint or removal of

28 restraints for Master Calendar Hearings and dispositions of such requests. Commencing 180 days

8

Case3:11-cv-04001-RS Document203-3 Filed12/19/13 Page10 of 54 EXECUTION COPY

1 after the Effective Date of this Agreement, San Francisco ICE ERO will provide Plaintiffs’ counsel,

2 on a bi-annual basis, copies of the EARM Comment screens for any detainee who was restrained for

3 a Bond or Merits Hearing due to an emergency situation, as described in III.4., during the preceding

4 six (6) month period or whose request for removal or lessening of restraints for a Master Calendar

5 Hearing was denied during that period. The EARM Comment screen will be produced under the

6 protective order the parties previously agreed to during this litigation, attached as Exhibit E. If, at

7 any time prior to 30 days after receiving the fourth bi-annual production of EARM Comment screens

8 under this section, Plaintiffs have not invoked the Dispute Resolution Process described in Section X

9 below to raise concerns regarding ICE’s compliance with Sections III, IV, or VIII of this Settlement

10 Agreement, ICE will be relieved of its obligation to provide EARM Comment screens to Plaintiffs

11 under this Section for the remainder of the term of the Settlement Agreement.

12

13

IX. Notice to Class and Approval of Settlement Terms

14

1. Following execution of this Agreement, the parties will file the Stipulation and

15 Proposed Order attached as Exhibit B, requesting that the Court preliminarily approve this

16 Agreement, approve the Settlement Notice attached hereto as Exhibit C, approve the notice process

17 set forth in paragraph 2 below, and set a hearing for Final Approval and Adoption of the Terms of

18 this Agreement.

19

2. The parties will propose to the Court that notice be 1) sent via U.S. mail and/or email

20 to all organizations included on the list of low-fee and free legal services provided to respondents in

21 removal proceedings before the San Francisco Immigration Court, 2) sent via email to the list-serv

22 for the Northern California chapter of AILA (American Immigration Lawyers Association) and the

23 Northern California chapter of the National Lawyers’ Guild, 3) posted in areas visible to

24 immigration detainees in all facilities holding respondents appearing before the San Francisco

25 Immigration Court, 4) posted on the websites of EOIR, ICE, ACLU of Northern California, and

26 Lawyers’ Committee for Civil Rights of the San Francisco Bay Area. All postings will be in

27 accessible formats and in English, Spanish, Chinese, and Punjabi. All parties will provide alternate

28 format copies of the notice upon request. Notice will be posted/distributed by the parties within

9

Case3:11-cv-04001-RS Document203-3 Filed12/19/13 Page11 of 54 EXECUTION COPY

1 seven (7) working days of the date of Preliminary Approval, and shall remain posted for no less than

2 thirty (30) days. The parties will submit declarations to the Court as part of the motion for Final

3 Approval confirming notice has been issued according to this paragraph.

4

3. The parties will propose to the Court that any Class Member may object to the

5 proposed Agreement by submitting his or her objection (“Objection”) to Class Counsel in writing,

6 via regular or electronic mail, or by leaving a message with his or her Objection via telephone to the

7 number previously provided by Defendants to facilitate contact with Class Counsel from persons

8 within immigration detention facilities, no later than a date set by the Court in this case after

9 preliminary approval of the Agreement. All Objections will be provided to counsel for Defendants

10 within five calendar days and filed with the Court. Only such objecting Class Members will have

11 the right, if they seek it in their Objections, to present objections at the fairness hearing.

12

4. The parties agree to amend the Settlement Notice and notice procedures as required

13 by the Court in order to obtain Court approval and adoption of the terms of this Agreement in a final

14 order in this case. If Court approval of the Settlement is not granted following compliance with the

15 notice provisions of this section, the terms of this Agreement will not become binding on the parties

16 until those specific sections or actions the Court finds unsatisfactory are modified to the Court’s

17 satisfaction. Notwithstanding the foregoing, the Court’s disapproval of the parties’ efforts to

18 effectuate notice shall not invalidate the remainder of the Agreement, provided the Court ultimately

19 grants final approval of this Settlement.

20

5. Upon final approval of the settlement, the Court shall enter a final approval order in

21 substantially the form attached hereto as Exhibit D, which will provide for the stipulated dismissal of

22 this action with prejudice, except that the Court shall retain continuing jurisdiction over this matter

23 for the purpose of administering, enforcing and overseeing this settlement. Upon entry of the final

24 approval order becoming final and no longer subject to an objector’s appeal, the parties will be

25 deemed to have released the Released Claims (as defined below), and the dismissal (except to the

26 extent that the Court retains continuing jurisdiction over this matter for the purpose of administering,

27 enforcing and overseeing this settlement) shall become effective.

28

10

Case3:11-cv-04001-RS Document203-3 Filed12/19/13 Page12 of 54 EXECUTION COPY

1

X. Dispute Resolution Process

2

1. In the event that either Plaintiffs or Defendants allege that the other party has failed to

3 comply with the terms of this Agreement, the complaining party shall inform the other party in

4 writing of the specific grounds upon which non-compliance is alleged. Defendants shall respond in

5 writing within a reasonable period, but no later than fourteen (14) business days. The parties agree

6 to make good faith attempts to resolve the issues informally, including a good faith attempt to agree

7 on a reasonable date by which to cure instances of non-compliance.

8

2. If any dispute cannot be resolved informally by the Parties pursuant to paragraph 1 of

9 this section of the Agreement, Plaintiffs shall notify Defendants by letter and request that counsel

10 meet and confer. The Parties shall meet within fourteen (14) business days of Plaintiffs’ notice, or

11 on some other mutually agreed upon date, in an attempt to arrive at an amicable resolution of the

12 dispute. Nothing said by any party or counsel for any party during any and all meetings held

13 pursuant to this paragraph may be used by any opposing party in subsequent litigation between the

14 Parties or in any other lawsuit.

15

3. Upon mutual agreement of the Parties, and the consent of Magistrate Judge Beeler,

16 the Parties may refer a dispute unresolved after the meetings held pursuant to Paragraph 2 of this

17 section to Magistrate Judge Beeler for mediation.

18

4. If the dispute has not been resolved through mediation in conformity with this

19 Agreement within 90 days, counsel for Plaintiffs may file a motion to enforce the terms of this

20 Agreement with District Court Judge Seeborg.

21

5. The parties agree that the United States District Court for the Northern District of

22 California has jurisdiction to enforce the provisions of this Agreement.

23

6. Good faith efforts to comply with the dispute resolution procedures set forth in this

24 Agreement are a condition precedent to any action to enforce the Agreement by Plaintiffs.

25

26

XI. Termination of Agreement

27

1. Except as provided in paragraph 2 of this section of this Agreement, infra, the relief

28 granted in this Agreement shall terminate three years from the Effective Date.

11

Case3:11-cv-04001-RS Document203-3 Filed12/19/13 Page13 of 54 EXECUTION COPY

1

2. Notwithstanding paragraph 1 of this section of this Agreement, this Agreement shall

2 not terminate to the extent that (a) Notice of Non-Compliance has been provided pursuant to Section

3 X prior to the date of termination; (b) a motion is pending pursuant to Section X that raises claims

4 that Defendants have, in whole or in part, failed to comply with this Agreement; or (c) to the extent

5 that mediation pursuant to Section X is pending. In the event that such a Notice of Non-Compliance

6 has been provided prior to the date of termination or such motion or mediation is pending, this

7 Agreement shall terminate as to any provision not at issue in the Notice of Non-Compliance, motion,

8 or mediation. If a Defendant is not subject to the Notice of Non-Compliance, motion or mediation

9 described in this Paragraph, this Agreement shall terminate as to that Party, and the Parties shall

10 stipulate to dismiss that Party from this action with prejudice.

11

12

XII. Admission of Liability

13

1. Neither this Agreement nor anything contained herein shall constitute an admission of

14 liability or fault on the part of the DHS or DOJ Defendants, sued in their official or personal

15 capacities, or their agents, servants, or employees. This Agreement is entered into by the parties for

16 the purpose of compromising disputed claims, avoiding the expenses and risks of litigation, and

17 achieving resolution of this contested action.

18

2. No Precedential Value. This Agreement, whether or not executed, and any

19 proceedings taken pursuant to it: shall not be offered or received against any party as evidence of, or

20 construed as or deemed to be evidence of, any presumption, concession, or admission by any of the

21 parties of the truth or falsity of any fact, claim, defense or argument that was or could have been

22 asserted in the action, or any admission of liability, negligence, fault, or wrongdoing by either party

23 referred to in any other way for any other reason as against the parties to this Agreement, in any

24 other civil, criminal, or administrative action or proceedings, other than in proceedings to enforce

25 this Agreement; provided, however, that if this Agreement is approved by the Court, either party

26 may refer to it and rely upon it to effectuate the protections granted them hereunder.

27

28

12

Case3:11-cv-04001-RS Document203-3 Filed12/19/13 Page14 of 54 EXECUTION COPY

1

XIII. Attorney’s Fees and Costs

2

Defendants agree to pay Plaintiffs reasonable attorney fees and costs in the amount of three

3 hundred and fifty thousand dollars ($350,000.00). Payment shall be made as soon as practicable,

4 and in any event within thirty (30) days of the Effective Date, in the form of a wire transfer made to

5 Wilson Sonsini Goodrich & Rosati. The wire transfer instruction are as follows:

6

Account Name:

Wilson Sonsini Goodrich & Rosati

Transactions Trust Account

7

Bank:

Bank of America

530 Lytton Avenue

8

Palo Alto, CA 94301

Account No.:

16645-62842

9

ABA Routing No.: 026009593

SWIFT Code:

BOFAUS3N

10

Reference:

15316/598 (Client/Matter)

11

This payment shall constitute the full and final satisfaction of any and all of Plaintiffs’ claims

12 for attorneys’ fees, costs, and litigation expenses that could have been brought in the above

13 captioned matter, and is inclusive of any interest.

14

15

XIV. Finality and Release of Claims

16

Upon Final Approval of the settlement by the Court and subject to the fulfillment of the

17 conditions set forth in this Agreement, the parties agree that the plaintiff class certified in this action

18 (the “Plaintiff Class”) on behalf of themselves, their guardians, heirs, executors, administrators, and

19 assigns waive, release, and discharge Defendants, and all of their past and present agencies, officials,

20 employees, agents, attorneys, successors, and assigns from any and all claims (whether known or

21 unknown, suspected or unsuspected, arising in law or equity) that were or could have been asserted

22 on behalf of the Plaintiff Class arising from or are related to the facts and circumstances alleged in

23 the Complaint. The foregoing release includes all claims for injunctive or declaratory relief, whether

24 known or unknown, that could have been brought on behalf of members of the Plaintiff Class at any

25 time prior to the date of settlement challenging the lawfulness of any policies or procedures

26 governing the use of restraints in San Francisco Immigration Court (“Released Claims”).

27

Defendants agree and acknowledge that this settlement, and specifically this waiver and

28 release shall not impact any individual class member’s (other than the named Plaintiffs) ability to

13

Case3:11-cv-04001-RS Document203-3 Filed12/19/13 Page15 of 54 EXECUTION COPY

1 bring a claim for monetary damages in his or her individual capacity arising from or related to injury

2 suffered as a result of Defendants’ application of restraints on such class member. Defendants

3 further agree and acknowledge that this settlement, and specifically this waiver and release, shall not

4 impact any individual class member’s (other than the named Plaintiffs’) ability to argue (whether on

5 a Petition for Review, motion to reopen, or other appeal, application, request for review or petition to

6 modify such class member’s order of removal or other immigration order) that the application of

7 restraints adversely affected such individual class member’s ability to defend or present his or her

8 case to the San Francisco Immigration Court. Defendants further agree and acknowledge that this

9 settlement, and specifically this waiver and release, shall not impact claims against future actions by

10 Defendants occurring after the expiration of the term of this Agreement, or not arising from the facts,

11 circumstances, and subject matter that gave rise to this action (including any individual habeas

12 challenge to the application of the agreed-to policies and procedures as to any Plaintiff alleging that

13 those policies and procedures are not being followed), any class-wide challenge to any policies or

14 procedures from the date of the settlement forward, provided that the policies and procedures have

15 changed since that time and are no longer materially identical to the agreed-to policies and

16 procedures of the settlement, and any claims for monetary damages arising out of any restraints-

17 related claim going forward.

18

19

XV. Modification of Agreement

20

1. This Agreement (including the attached exhibits) constitutes the entire agreement

21 among the parties as to all claims raised by Plaintiffs in this action, and supersedes all prior

22 agreements, representations, warranties, statements, promises, covenants, and understandings,

23 whether oral or written, express or implied, with respect to the subject matter hereof.

24

2. This is an integrated agreement and may not be altered or modified, except according

25 to the specific provisions of this Agreement that address alteration or modification, or by a writing

26 signed by all parties in interest at the time of authorization or modification.

27

3. The parties further acknowledge that the parties have mutually participated in the

28 drafting of this Agreement and it is agreed that no provision herein shall be construed against any

14

Case3:11-cv-04001-RS Document203-3 Filed12/19/13 Page16 of 54 EXECUTION COPY

1 party hereto by virtue of the drafting of this Agreement. If any provision of this Agreement shall be

2 held invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining

3 provisions shall not in any way be affected or impaired thereby. This instrument shall constitute the

4 entire agreement between the parties, and it is expressly understood and agreed that this agreement

5 has been freely and voluntarily entered into by the parties hereto with the advice of counsel, who

6 have explained the legal effect of this agreement. The parties further acknowledge that no

7 warranties or representations have been made on any subject other than as set forth in this

8 Agreement.

9

10

XVI. Successors

11

This Agreement shall be binding on all successors, assignees, employees, and all those

12 working for or on behalf of Defendants and Plaintiffs. If any provision of this Agreement is held to

13 be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining

14 provisions shall not in any way be affected or impaired thereby.

15

16

17 Dated: December 18, 2013 18 19 20 21 22 23 24 25 26 27 28

STUART F. DELERY Assistant Attorney General Civil Division DAVID J. KLINE Director, Office of Immigration Litigation District Court Section WILL SILVIS Senior Litigation Counsel
/s/ Erez Reuveni EREZ REUVENI Trial Attorney United States Department of Justice Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Telephone: (202) 307-4293 Facsimile: (202) 616-8962 Email: erez.r.reuveni@usdoj.gov
Attorneys for Defendants

15

Case3:11-cv-04001-RS Document203-3 Filed12/19/13 Page17 of 54 EXECUTION COPY

1

WILSON SONSINI GOODRICH & ROSATI

Professional Corporation

2

David J. Berger

Catherine E. Moreno

3

Thomas J. Martin

Angie Young Kim

4

Savith S. Iyengar

Briza Sanchez

5

By: /s/ Catherine E. Moreno

6

Catherine E. Moreno

7

LAWYERS’ COMMITTEE FOR CIVIL RIGHTS

OF THE SAN FRANCISCO BAY AREA

8

Paul Chavez

Robin Goldfaden

9

By: /s/ Paul Chavez

10

Paul Chavez

11

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION OF NORTHERN CALIFORNIA,

12

INC.

Julia Harumi Mass

13

Alan L. Schlosser

Jingni (Jenny) Zhao

14

By: /s/ Julia Harumi Mass

15

Julia Harumi Mass

16

Attorneys for Plaintiffs

17

18

19

20

21

22

23

24

25

26

27

28

16

Case3:11-cv-04001-RS Document203-3 Filed12/19/13 Page18 of 54
EXHIBIT A

Case3:11-cv-04001-RS Document203-3 Filed12/19/13 Page19 of 54
Notice to Detainees Regarding Use of Restraints in San Francisco Immigration Court
You are being detained in ICE (U.S. Immigration and Customs Enforcement) custody while you have immigration proceedings before the Immigration Court in San Francisco. While in ICE custody, you may be transported to appear in person before an Immigration Judge in San Francisco.
During your brief court hearings with a group of detainees (called “master calendar hearings”) you will generally be restrained. This means that you may wear leg restraints, a waist chain, and/or handcuffs. For your longer hearings (called “bond” or “merits” hearings), during which you may be called to testify, you will generally not be restrained in court, unless there is an emergency situation. Officers are allowed to apply restraints in emergency situations to protect your safety and the safety of other detainees, the public, and ICE or EOIR personnel, or to prevent escape. For example, if you become combative, disruptive, violent, or threatening, an officer may decide to apply restraints or keep them applied during the hearing. If you are restrained due to this behavior, then you will be restrained for all future hearings. However, you may request that ICE modify your restraints for any hearing because of a medical, physical, or psychological hardship that would prevent the application of restraints in a safe and humane manner. You can make this request to ICE either (1) before your next hearing (in writing), or (2) at your next hearing (orally). ICE may deny the request, reduce the level of restraints, remove restraints, or consider other available alternatives. At any time that you are in restraints in Immigration Court, if the restraints are too tight or are causing pain, you may raise the issue with the Immigration Judge, who can refer the matter to an ICE officer. You may also ask an officer to adjust the restraints. The officer will inspect the restraints and, if possible, make appropriate adjustments. You may also raise any concerns about restraints at any time by contacting ICE through your attorney, through an officer, or through the Agent Request Form.

Case3:11-cv-04001-RS Document203-3 Filed12/19/13 Page20 of 54
EXHIBIT B

Case3:11-cv-04001-RS Document203-3 Filed12/19/13 Page21 of 54

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

NORTHERN DISTRICT OF CALIFORNIA

9

SAN FRANCISCO DIVISION

10 UELIAN DE ABADIA-PEIXOTO, et al.,

)

)

11

Plaintiffs,

)

)

12

v.

)

)

13 UNITED STATES DEPARTMENT OF

)

HOMELAND SECURITY, RAND BEERS,

)

14 Acting Secretary of the United States Department )

of Homeland Security, UNITED STATES

)

15 IMMIGRATION AND CUSTOMS

)

ENFORCEMENT, JOHN SANDWEG, Acting )

16 Director of U.S. Immigration and Customs

)

Enforcement, TIMOTHY AITKEN, Field Office )

17 Director of the San Francisco District of U.S. )

Immigration and Customs Enforcement, ERIC H. )

18 HOLDER, JR., United States Attorney General, )

THE EXECUTIVE OFFICE FOR

)

19 IMMIGRATION REVIEW, and JUAN P.

)

OSUNA, Director of the Executive Office for )

20 Immigration Review,

)

)

21

Defendants.

)

)

22

Case No.: 3:11-cv-4001 RS
CLASS ACTION
[PROPOSED] PRELIMINARY APPROVAL ORDER
Judge: Honorable Richard Seeborg Action Filed: August 15, 2011

23

24

25

26

27

28
[PROPOSED] PRELIMINARY APPROVAL ORDER 3:11-CV-4001 RS

597989_1.docx

Case3:11-cv-04001-RS Document203-3 Filed12/19/13 Page22 of 54

1

This matter having come before the Court on Plaintiffs’ unopposed motion for

2 preliminary approval of the proposed settlement of the above-captioned class action (the

3 “Action”) pursuant to the parties’ settlement agreement (“Agreement”), and having duly

4 considered the papers and arguments of counsel, the Court hereby finds and orders as follows:

5

1. Unless defined herein, all defined terms in this Order shall have the respective

6 meanings set forth in the Agreement.

7

2. The Court has conducted a preliminary evaluation of the Agreement for fairness,

8 adequacy, and reasonableness. Based on this preliminary evaluation, the Court finds that (i)

9 there is cause to believe that the Agreement is fair, reasonable, and adequate, and within the

10 range of possible approval, (ii) the Agreement has been negotiated in good faith at arm’s-length

11 between experienced attorneys familiar with the legal and factual issues of this case, and (iii) the

12 notice of the material terms of the Agreement to members of the Settlement Class for their

13 consideration and reaction is warranted. Therefore, the Court grants preliminary approval of the

14 Agreement.

15

3. On _______________________, 2014 at ________ _.m. , or at such other date

16 and time later set by Court Order, this Court will hold a hearing on the fairness, adequacy, and

17 reasonableness of the Agreement (“Fairness Hearing”) and will determine whether final approval

18 of the Agreement should be granted via entry of the Proposed Final Order and Stipulated

19 Dismissal attached as Exhibit D to the Agreement.

20

4. The Court approves the form and manner of giving direct notice to the Settlement

21 Class by: (i) sending notice via U.S. mail and/or email to all organizations included on the list of

22 low-fee and free legal services provided to respondents in removal proceedings before the San

23 Francisco Immigration Court; (ii) sending notice via email to the list-serv for the Northern

24 California chapter of AILA (American Immigration Lawyers Association) and the Northern

25 California chapter of the National Lawyers’ Guild; (iii) posting notice in areas visible to

26 immigration detainees in all facilities holding respondents appearing before the San Francisco

27 Immigration Court; and (iv) posting notice on the websites of EOIR, ICE, ACLU of Northern

28 California, and Lawyers’ Committee for Civil Rights of the San Francisco Bay Area. All
-1-
[PROPOSED] PRELIMINARY APPROVAL ORDER 3:11-CV-4001 RS

Case3:11-cv-04001-RS Document203-3 Filed12/19/13 Page23 of 54

1 postings will be in English, Spanish, Chinese, and Punjabi, and all parties will provide alternate

2 format copies of the notice upon request. Notice will be posted/distributed by the parties within

3 seven (7) working days of the date of entry of the Preliminary Approval Order, and shall remain

4 posted for no less than thirty (30) days. The parties will submit declarations to the Court as part

5 of the motion for Final Approval confirming that notice has been issued according to this

6 paragraph. The notice in form, method, and content complies with the requirements of Rule 23

7 and due process, and constitutes the best notice practicable under the circumstances. The Court

8 hereby directs the parties to complete all aspects of the notice process no later than ________

9 days following the entry of the Preliminary Approval Order and in accordance with the terms of

10 the Agreement.

11

5. Any member of the Settlement Class may object to final approval of the

12 Agreement by submitting his or her objection (“Objection”) to Class Counsel in writing, via

13 regular or electronic mail, or by leaving a message with his or her Objection via telephone to the

14 number previously provided by Defendants to facilitate contact with Class Counsel from persons

15 within immigration detention facilities; provided, however, that all Objections must be received

16 by Class Counsel no later than twenty-one (21) days prior to the Fairness Hearing. Class

17 Counsel shall file any Objections with the Court no later than fourteen (14) days prior to the

18 Fairness Hearing and will forward copies of any Objections to Defendants’ counsel within five

19 (5) calendar days of receipt. A Settlement Class member who objects to the Settlement need not

20 appear at the Fairness Hearing for his or her objection to be considered by the Court; however,

21 any additional papers, briefs, pleadings, or other documents that any objector would like the

22 Court to consider must be filed with the Court, with a copy postmarked to the parties’ counsel,

23 no later than twenty-one (21) days prior to the final approval hearing. All papers filed by an

24 objector shall include the caption De Abadia-Peixoto, et al., No. 3:11-cv-4001 RS, and provide:

25 (i) the Settlement Class member’s full name and current address; (ii) a signed declaration that he

26 or she believes himself or herself to be a member of the Settlement Class; (iii) the specific

27 grounds for the objection; (iv) all documents or writings that such Settlement Class member

28
-2-
[PROPOSED] PRELIMINARY APPROVAL ORDER 3:11-CV-4001 RS

Case3:11-cv-04001-RS Document203-3 Filed12/19/13 Page24 of 54

1 desires the Court to consider; and (vii) a notice of intention (if any) to appear at the Fairness

2 Hearing.

3

6. Any Settlement Class member who fails to object in the manner prescribed herein

4 shall be deemed to have waived his or her objections and forever be barred from making any

5 such objections in this Action. While the declaration described in subparagraph 5(ii) is prima

6 facie evidence that the objector is a member of the Settlement Class, the parties may take

7 discovery regarding the matter, subject to Court approval. If an objector does not submit his or

8 her Objection in accordance with the deadline and procedure set forth in the notice, and the

9 Settlement Class member is not granted relief by the Court, the Settlement Class member will be

10 deemed to have waived his or her right to be heard at the Fairness Hearing.

11

7. The Agreement, and the proceedings and statements made pursuant to the

12 Agreement or papers filed relating to the approval of the Agreement, and this Order, shall not be

13 offered or received against any party as evidence of, or construed as or deemed to be evidence

14 of, any presumption, concession, or admission by any of the parties of the truth or falsity of any

15 fact, claim, defense, or argument that was or could have been asserted in the Action, or any

16 admission of liability, negligence, fault, or wrongdoing by any party, or referred to in any other

17 way for any other reason as against the parties to the Agreement, in any other civil, criminal, or

18 administrative action or proceedings, other than in proceedings to enforce the Agreement.

19 Nothing contained herein, however, shall be construed to prevent the parties from offering the

20 Agreement into evidence for the purposes of enforcement of the Agreement.

21

IT IS SO ORDERED this _____th day of __________________, 2014.

22

23

24 Dated: ________________ 25 26

Honorable Richard Seeborg United States District Judge

27

28
-3-
[PROPOSED] PRELIMINARY APPROVAL ORDER 3:11-CV-4001 RS

Case3:11-cv-04001-RS Document203-3 Filed12/19/13 Page25 of 54
EXHIBIT C

Case3:11-cv-04001-RS Document203-3 Filed12/19/13 Page26 of 54

1 DAVID J. BERGER, State Bar No. 147645 THOMAS J. MARTIN, State Bar No. 150039
2 CATHERINE E. MORENO, State Bar No. 264517 WILSON SONSINI GOODRICH & ROSATI
3 Professional Corporation 650 Page Mill Road
4 Palo Alto, CA 94304-1050 Telephone: (650) 493-9300
5 Facsimile: (650) 565-5100 Email: tmartin@wsgr.com
6 PAUL CHAVEZ, State Bar No. 241576
7 ROBIN GOLDFADEN, State Bar No. 208055 LAWYERS’ COMMITTEE FOR CIVIL RIGHTS
8 OF THE SAN FRANCISCO BAY AREA 131 Steuart Street, Suite 400
9 San Francisco, CA 94105 Telephone: (415) 543-9444
10 Facsimile: (415) 543-0296 Email: pchavez@lccr.com
11 JULIA HARUMI MASS, State Bar No. 189649
12 JINGNI (JENNY) ZHAO, State Bar No. 284684 ALAN L. SCHLOSSER, State Bar No. 49957
13 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, INC.
14 39 Drumm Street San Francisco, CA 94111
15 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
16 Email: jmass@aclunc.org

17 Attorneys for Plaintiffs

18

UNITED STATES DISTRICT COURT

19

NORTHERN DISTRICT OF CALIFORNIA

20

SAN FRANCISCO DIVISION

21

UELIAN DE ABADIA-PEIXOTO, et al.,

) Case No.: 3:11-cv-4001 RS

22

)

Plaintiffs,

) CLASS ACTION

23

)

v. 24
UNITED STATES DEPARTMENT OF 25 HOMELAND SECURITY, et al.,

) [PROPOSED] NOTICE OF ) PROPOSED CLASS ACTION ) SETTLEMENT )

)

26

Defendants.

)

)

27

)

)

28

[PROPOSED] NOTICE OF PROPOSED CLASS ACTION SETTLEMENT Case No.: 3:11-cv-4001 RS

Case3:11-cv-04001-RS Document203-3 Filed12/19/13 Page27 of 54

1

IMPORTANT: PLEASE READ CAREFULLY

2 To: All current and future adult immigration detainees who have or will have proceedings in

3 immigration court in San Francisco during the period from December 23, 2011 to

4 _____________________ [three years from the date on which the Court enters a final order

5 approving the settlement] (the “Class”).

6

This notice is being given by Order of the Court to individuals who may be members of a

7 class of current and future adult immigration detainees who have or will have proceedings in

8 immigration court in San Francisco during the period from December 23, 2011 to

9 _____________________, who are affected by the settlement of a class action lawsuit called De

10 Abadia Peixoto et al. v. United States Dept. of Homeland Security, et al., Case No.: 3:11-CV-4001

11 RS (U.S. District Court, Northern District of California).

12

The lawsuit claims that the practice, employed by Immigration and Customs Enforcement

13 (“ICE”), of restraining all immigration detainees during their appearances in San Francisco

14 Immigration Court was unconstitutional, and a violation of detainees’ due process rights.

15 Defendants, which include the United States Department of Homeland Security (“DHS”); Rand

16 Beers, Acting Secretary of DHS; United States Immigration and Customs Enforcement (“ICE”);

17 John Sandweg, Acting Director of ICE; Timothy Aitken, Field Office Director of the San

18 Francisco District of ICE; Eric H. Holder, Jr., United States Attorney General; the Executive

19 Office for Immigration Review (“EOIR”); and Juan P. Osuna, Director of EOIR (collectively,

20 “Defendants”) deny all wrongdoing.

21

The District Court has scheduled a hearing to consider the settlement on ______________

22 at _______ __.m. in Courtroom ____, at the United States District Court, United States

23 Courthouse, 450 Golden Gate Avenue, San Francisco, California 94102.

24

This hearing is referred to as the settlement hearing or fairness hearing. If the District

25 Court approves this settlement, all claims by Class members against Defendants that were or could

26 have been asserted on behalf of the Class arising from or related to the facts and circumstances

27 alleged in the lawsuit will be forever released (the “Released Claims”). The Released Claims

28 include all claims for injunctive or declaratory relief (whether known or unknown) that could have

-1-
[PROPOSED] NOTICE OF PROPOSED CLASS ACTION SETTLEMENT Case No.: 3:11-cv-4001 RS

Case3:11-cv-04001-RS Document203-3 Filed12/19/13 Page28 of 54

1 been brought on behalf of members of the Class at any time prior to the settlement challenging the

2 lawfulness of policies or procedures governing the use of restraints in San Francisco Immigration

3 Court. This settlement does not release any individual class member’s (other than the named

4 plaintiffs’) ability to bring a claim for monetary damages in his or her individual capacity arising

5 from or related to injury suffered as a result of Defendants’ application of restraints on such class

6 member. Nor does it impact any individual class member’s (other than the named plaintiffs’)

7 ability to argue that the application of restraints adversely affected his or her ability to defend or

8 present his or her case to the San Francisco Immigration Court.

9

The purpose of this notice is to inform you of:

10

 The nature of the lawsuit, and who is a member of the class;

11

 Your right to object to the settlement;

12

 A description of the terms of the proposed settlement; and

13

 How to find out more information about the proposed settlement.

14

THE LAWSUIT AND THE CLASS

15

This lawsuit was filed as a class action on August 15, 2011 by four immigration detainees

16 who had, or were scheduled to have, proceedings before the San Francisco Immigration Court.

17 The lawsuit claims that Defendants’ then-extant policy of restraining all immigration detainees

18 during their immigration court proceedings was unconstitutional, and in violation of detainees’

19 due process rights. The plaintiffs sought injunctive relief and attorneys’ fees.

20

On December 23, 2011, the Court ruled that plaintiffs’ claims could go forward on behalf

21 of a class defined as “all current and future adult immigration detainees who have or will have

22 proceedings in immigration court in San Francisco.”

23

The Court’s order designated the following lawyers to serve as counsel to the class (“Class

24 Counsel”) in this action:

25 DAVID J. BERGER, State Bar No. 147645 CATHERINE E. MORENO, State Bar No. 264517
26 WILSON SONSINI GOODRICH & ROSATI Professional Corporation
27 650 Page Mill Road Palo Alto, CA 94304-1050
28 Telephone: (650) 493-9300 Facsimile: (650) 565-5100 -2-
[PROPOSED] NOTICE OF PROPOSED CLASS ACTION SETTLEMENT Case No.: 3:11-cv-4001 RS

Case3:11-cv-04001-RS Document203-3 Filed12/19/13 Page29 of 54

1 PAUL CHAVEZ, State Bar No. 241576 LAWYERS’ COMMITTEE FOR CIVIL RIGHTS
2 OF THE SAN FRANCISCO BAY AREA 131 Steuart Street, Suite 400
3 San Francisco, CA 94105 Telephone: (415) 543-9444
4 Facsimile: (415) 543-0296

5 JULIA HARUMI MASS, State Bar No. 189649 ALAN L. SCHLOSSER, State Bar No. 49957
6 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, INC.
7 39 Drumm Street San Francisco, CA 94111
8 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
9

10

The Court’s order also appointed named plaintiffs Uelian De Abadia Peixoto, Pedro

11 Nolasco Jose, Mi Lian Wei, and Esmar Cifuentes as Class Representatives.

12

DESCRIPTION OF THE PROPOSED SETTLEMENT

13

On December 18, 2013, the parties to this lawsuit reached a proposed settlement. The

14 settlement agreement provides, in summary, that:

15

1. Defendants’ policy for the use of restraints in San Francisco Immigration Court will

16

preserve the dignity of immigration court proceedings as well as the dignity of

17

individual detainees appearing in court, while protecting the safety and security of all

18

participants and other detainees, ICE and EOIR personnel, and members of the public.

19

2. In general, all detainees will appear at Master Calendar hearings in full restraints

20

(meaning leg restraints, a waist chain and/or handcuffs). However, any Supervisory

21

Detention and Deportation Officer (“SDDO”) may modify the level of restraints used

22

at Master Calendar hearings in exigent circumstances, or upon a detainee’s request to

23

have such restraints removed or reduced, if the detainee is suffering from a physical,

24

psychological or medical condition that would prevent the application of restraints in a

25

safe and humane manner. The SDDO’s decision regarding a detainee’s request to

26

remove or reduce the level of restraints to be applied in a Master Calendar Hearing will

27

be documented by ICE and communicated to the detainees and/or his or her counsel.

28

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1

3. Except for emergency situations (discussed below), detainees appearing for bond or

2

merits hearings will not be restrained.

3

4. Officers may apply restraints in bond and merits hearing only in emergency situations

4

to protect the safety of the detainee, other detainees, the public, ICE or EOIR

5

personnel, or to prevent escape. Emergency situations include those in which the

6

detainee becomes combative, disruptive, violent or threatening. If a detainee was

7

previously restrained due to his or her behavior, that detainee will be restrained for all

8

future hearings. However, if a detainee who was previously restrained due to his or her

9

behavior believes that he or she has a medical, physical, or psychological grounds that

10

would prevent the application of restraints in a safe and humane manner, he or she can

11

request to modify or eliminate the use of restraints in future bond or merits hearings.

12

The SDDO’s decision regarding a detainee’s request to remove or reduce the level of

13

restraints to be applied in a bond or merits hearing will be documented by ICE and

14

communicated to the detainees and/or his or her counsel.

15

5. Class members will receive a summary notice of the above-described change in

16

Defendants’ policies, to be posted in the detention facilities where they are housed, and

17

in the holding areas of 630 Sansome Street. In addition, the immigration judge

18

presiding over each master calendar hearing will make the following statement: “ICE

19

has a policy regarding the use of restraints in Court, and under this policy, people are

20

generally restrained for this type of hearing. If you have not received a copy of the

21

notice reflecting this policy, or if you wish to request a change to the use of restraints

22

in your case at this hearing, please advise the court at this time.”

23

6. To facilitate attorney-client consultations related to master calendar hearings, ICE will

24

maintain two visiting rooms, one of which will be made available for confidential

25

attorney consultations from 7:00 a.m. to 8:45 a.m. in advance of master calendar

26

hearings, and absent operational constraints arising from day-to-day management of

27

ICE operations, from 8:45 a.m. to 11:00 a.m., curing master calendar hearings.

28

Defendants will also ensure that detainees have a copy of his or her notice to appear.

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1

In addition, Defendants will make best efforts to keep one pew in the courtroom free

2

for brief attorney-client consultations during master calendar hearings, provided it does

3

not interfere with or disrupt Defendants’ ability to conduct proceedings or the safety or

4

security of the courtroom.

5

7. For a period of at least two years, Class Counsel will receive documents and

6

information concerning detainees who were restrained at bond or merits hearings due

7

to an emergency situation, as well as requests by detainees to modify or reduce the

8

level of restraints.

9

8. Defendants will pay Class Counsel reasonable attorneys’ fees and costs in the amount

10

of $350,000.

11

9. Class members will release the Released Claims against Defendants.

12

WHAT ARE YOUR RIGHTS AS A CLASS MEMBER?

13

You do not need to do anything if you are satisfied with the settlement. If you are

14 dissatisfied with any terms of the proposed settlement, you may object to the settlement by

15 submitting your objection to Class Counsel in writing, via regular or electronic mail, or by leaving

16 a message with your objection via telephone. If you are calling from inside a detention facility,

17 you can use the free call system and dial 9160#. If you are calling from outside of detention,

18 please call _____________. If you make your objection in writing, you must direct it to:

19

Julia Harumi Mass

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

20

OF NORTHERN CALIFORNIA, INC.

39 Drumm Street

21

San Francisco, CA 94111

Jmass@aclunc.org

22

Your objection must be received no later than _______________. If you do not make your

23

objection by that date, you will lose the right to object. If you do object, you have the right to

24

appear personally or through an attorney at the settlement hearing to present your objection to the

25

Court. Except with special permission of the Court, you will not be permitted to object at the

26

hearing if your objection is not received as described above on or before ______________.

27

28

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1

If, after the hearing, the Court rejects the settlement, it will be voided and litigation of this

2 case will continue. If that happens, however, there is no assurance: (a) that any decision at trial

3 would be in favor of the Class; (b) that a favorable trial decision, if any, would be as favorable to

4 the Class as this settlement; or (c) that any such favorable trial decision would be upheld if any

5 appeal were filed.

6

HOW TO GET MORE INFORMATION ABOUT THE SETTLEMENT

7

If you have questions about the proposed settlement agreement, or would like to obtain a

8 copy of it, you may contact the lawyers who represent the class, at the address below:

9

JULIA HARUMI MASS

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

10

OF NORTHERN CALIFORNIA, INC.

39 Drumm Street

11

San Francisco, CA 94111

Telephone: (415) 621-2493

12

Facsimile: (415) 255-8437

13

From detention facilities you can use the free call system and dial 9160#. There will be

14 no charge.

15 DO NOT CONTACT DEFENDANTS, THE DISTRICT COURT OR THE JUDGE.

16 Dated this ____ day of ____________, 2014.

17

______________________________________________________

18

Clerk of the Court

United States District Court, Northern District of California

19

20

21

22

23

24

25

26

27

28

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EXHIBIT D

Case3:11-cv-04001-RS Document203-3 Filed12/19/13 Page34 of 54

1 DAVID J. BERGER, State Bar No. 147645 CATHERINE E. MORENO, State Bar No. 264517
2 THOMAS J. MARTIN, State Bar No. 150039 WILSON SONSINI GOODRICH & ROSATI
3 Professional Corporation 650 Page Mill Road
4 Palo Alto, CA 94304-1050 Telephone: (650) 493-9300
5 Facsimile: (650) 565-5100 Email: tmartin@wsgr.com
6 PAUL CHAVEZ, State Bar No. 241576
7 ROBIN GOLDFADEN, State Bar No. 208055 LAWYERS’ COMMITTEE FOR CIVIL RIGHTS
8 OF THE SAN FRANCISCO BAY AREA 131 Steuart Street, Suite 400
9 San Francisco, CA 94105 Telephone: (415) 543-9444
10 Facsimile: (415) 543-0296 Email: pchavez@lccr.com
11 JULIA HARUMI MASS, State Bar No. 189649
12 JINGNI (JENNY) ZHAO, State Bar No. 284684 ALAN L. SCHLOSSER, State Bar No. 49957
13 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, INC.
14 39 Drumm Street San Francisco, CA 94111
15 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
16 Email: jmass@aclunc.org

17 Attorneys for Plaintiffs

18

UNITED STATES DISTRICT COURT

19

NORTHERN DISTRICT OF CALIFORNIA

20

SAN FRANCISCO DIVISION

21

UELIAN DE ABADIA-PEIXOTO, et al.,

) Case No.: 3:11-cv-4001 RS

22

)

Plaintiffs,

) CLASS ACTION

23

)

v. 24
UNITED STATES DEPARTMENT OF

) [PROPOSED] FINAL ORDER AND ) STIPULATED DISMISSAL )

25 HOMELAND SECURITY, et al.,

)

)

26

Defendants.

)

)

27

)

)

28

[PROPOSED] FINAL ORDER AND DISMISSAL Case No.: 3:11-cv-4001 RS

Case3:11-cv-04001-RS Document203-3 Filed12/19/13 Page35 of 54

1

Pursuant to Federal Rule of Civil Procedure 23(e), and in accordance with the settlement

2 agreement (“Agreement”) entered into by all parties on December 18, 2013, it is hereby

3 ORDERED, ADJUDGED, and DECREED as follows:

4 1. This Final Order and Dismissal adopts and incorporates by reference the terms and

5

definitions of the Agreement submitted as Exhibit 1 to the Declaration of Catherine E.

6

Moreno, filed with Plaintiffs’ Unopposed Motion for Preliminary Approval of Class

7

Action Settlement (Dkt. _____), attached hereto as Exhibit A.

8 2. The Court has jurisdiction over the subject matter of this action under 28 U.S.C. § 1331

9

(federal question), 28 U.S.C. §§ 2201 and 2202 (declaratory relief), and 5 U.S.C. § 706

10

(waiver of sovereign immunity). The Court has personal jurisdiction over the Plaintiff

11

Class (as defined in the Court’s order granting Plaintiffs’ Motion for Class Certification

12

(Dkt. 52)), the Settlement Class (as defined in paragraph 5 herein), and Defendants.

13 3. The Notice of Proposed Settlement (the “Notice,” in the form attached as Exhibit C to the

14

Agreement, was directed to members of the Settlement Class in accordance with the

15

Preliminary Approval Order (Dkt. _____), dated _____________________, and (a)

16

constituted the best notice practicable under the circumstances and (b) was reasonably

17

calculated, under the circumstances, to apprise Class members of the pendency of the

18

Settlement and the release of rights contained in the Agreement. Pursuant to, and in

19

accordance with, Rule 23 of the Federal Rules of Civil Procedure, the Court hereby finds

20

that the Notice provided members of the Class due and adequate notice of the Settlement,

21

the Agreement, these proceedings, and the rights of members of the Settlement Class to

22

object to the Settlement.

23 4. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, this Court hereby approves

24

the Settlement as set forth in the Agreement and finds that the Settlement is in all respects

25

fair, reasonable, and adequate to the Settlement Class members. Accordingly, the

26

Settlement shall be consummated in accordance with the terms and provisions of the

27

Agreement, which are incorporated by reference into this Final Order and Stipulated

28

Dismissal.

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Case3:11-cv-04001-RS Document203-3 Filed12/19/13 Page36 of 54

1 5. By its Preliminary Approval Order, dated _____________________, the Court

2

preliminarily certified the following Settlement Class: All current and future adult

3

immigration detainees who have or will have proceedings in immigration court in San

4

Francisco during the term of the Agreement.

5 6. The Court finds that this Settlement Class satisfies the requirements of Rule 23 of the

6

Federal Rules of Civil Procedure, including the requirements of numerosity,

7

commonality, typicality, and adequacy pursuant to Rule 23(a) and at least one of the

8

requirements of Rule 23(b). The Court hereby certifies the Settlement Class as described

9

in Paragraph 5 of this Final Order and Dismissal.

10 7. The Court approves Uelian De Abadia Peixoto, Esmar Cifuentes, Mi Lian Wei, and

11

Pedro Nolasco Jose as Class Representatives for the Settlement Class.

12 8. The Court finds that Class Counsel, Wilson Sonsini Goodrich & Rosati PC, Lawyers’

13

Committee for Civil Rights of the San Francisco Bay Area, and the American Civil

14

Liberties Union Foundation of Northern California, Inc. have fairly and adequately

15

represented the interests of the Class and satisfied all the requirements of Rule 23(g) of

16

the Federal Rules of Civil Procedure.

17 9. Upon the Settlement becoming final in accordance with Section IX of the Agreement, the

18

parties agree that this action will be DISMISSED.

19 10. Without in any way affecting the finality of this Final Order and Stipulated Dismissal,

20

this Court has continuing jurisdiction as to all matters relating to the interpretation,

21

administration, and enforcement of the Agreement.

22 11. The Court finds that this Final Order and Stipulated Dismissal adjudicates all of the

23

claims, rights, and liabilities of the Parties to the Settlement, and is intended to be final.

24 IT IS SO ORDERED.

25

26 Dated: __________________ 27

_________________________________ United States District Court Judge

28

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Case3:11-cv-04001-RS Document203-3 Filed12/19/13 Page37 of 54

1 Dated: _____, 2014 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
[PROPOSED] FINAL ORDER AND DISMISSAL Case No.: 3:11-cv-4001 RS

Respectfully submitted, By: /s/ Catherine E. Moreno
Catherine E. Moreno WILSON SONSINI GOODRICH & ROSATI Additional Counsel on Caption Page
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EXHIBIT E

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1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

11 UELIAN DE ABADIA-PEIXOTO, et al.,

Case No. CV 11-4001 RS

12

Plaintiffs,

13

v.

SECOND STIPULATED AMENDED PROTECTIVE ORDER FOR STANDARD LITIGATION

14 UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al.,
15
Defendants. 16

17 1. 18

PURPOSES AND LIMITATIONS The Parties anticipate that during discovery in this action they will exchange documents,

19 items, materials, and other information that contain sensitive, confidential, proprietary, and/or

20 private information for which special protection from public disclosure and from use for any

21 purpose other than prosecuting this litigation would be warranted. Accordingly, the parties

22 hereby stipulate to and petition the Court to enter the following Stipulated Amended Protective

23 Order. Such sensitive and confidential information may include (1) certain law enforcement

24 operations, policies and procedures, methods, techniques, guidelines, and reports of internal

25 investigations that derive value from not being generally known to the public and which are the

26 subject of reasonable efforts to maintain their secrecy and confidentiality, in order to protect the

27 security interests of law enforcement officers and the integrity of law enforcement operations; (2)

28 security arrangements, security plans, practices, policies, procedures, protocols or guidelines,

Second Stipulated Amended Protective Order

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1 security audits or reviews, building layouts, documents reflecting architectural plans, blueprints

2 or schematics, including but not limited to floor plans or plans specific to building security

3 features, enhancements or vulnerabilities; (3) employee records, educational, medical and mental

4 health records to the extent that such materials may be highly sensitive and confidential, in order

5 to protect the privacy interests of the individuals to whom those records pertain; (4) information

6 subject to the Privacy Act (codified at 5 U.S.C. § 552a) or the official information privilege that is

7 protected from disclosure, in order to comply with the law; and (5) material containing private

8 and confidential third-party information protected by the right to privacy guaranteed in Federal

9 Constitution and the First Amendment, in order to protect the privacy interests of those third-

10 parties.

11

The parties acknowledge that this Order does not confer blanket protections on all

12 disclosures or responses to discovery and that the protection it affords from public disclosure and

13 use extends only to the limited information or items that are entitled to confidential treatment

14 under the applicable legal principles. The parties further acknowledge, as set forth in Section

15 12.3, below, that this Stipulated Protective Order does not entitle them to file confidential

16 information under seal; Civil Local Rule 79-5 and General Order 62 set forth the procedures that

17 must be followed and the standards that will be applied when a party seeks permission from the

18 court to file material under seal.

19 2. DEFINITIONS

20

2.1 Challenging Party: a Party or Non-Party that challenges the designation of

21 information or items under this Order.

22

2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is

23 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule

24 of Civil Procedure 26(c), under the Privacy Act, 5 U.S.C. § 552a, and/or HIPAA, 45 C.F.R. §

25 164.512, including confidential non-privileged information concerning members of the class

26 certified in this action and other individuals. This Order authorizes Defendants to produce

27 personally identifiable information that would otherwise be prohibited from disclosure under

28 Privacy Act, 5 U.S.C. § 552a, and/or HIPAA, 45 C.F.R. § 164.512, without presenting Privacy

Stipulated Amended Protective Order

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1 Act or HIPAA objections to this Court for a decision regarding disclosure. Some of this

2 identifying information is likely to be contained within various law enforcement reports, agency

3 records, and databases which are in the possession, custody, and control of Defendants and

4 Defendants’ counsel. To the extent the Privacy Act and/or HIPAA allows the disclosure of

5 information pursuant to a Court order, this Order constitutes such a Court Order and authorizes

6 the disclosure of that information. However, nothing in this Order shall require production of

7 information that is prohibited from disclosure (even with the entry of this protective order) by

8 other applicable privileges, statutes, regulations or authorities by which Defendants may be

9 bound.

10

2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as

11 well as their support staff).

12

2.4 Designating Party: a Party or Non-Party that designates information or items that

13 it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”

14

2.5 Disclosure or Discovery Material: all items or information, regardless of the

15 medium or manner in which it is generated, stored, or maintained (including, among other things,

16 testimony, transcripts, and tangible things), that are produced or generated in disclosures or

17 responses to discovery in this matter.

18

2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to

19 the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a

20 consultant in this action.

21

2.7 House Counsel: attorneys who are employees of a party to this action. House

22 Counsel does not include Outside Counsel of Record or any other outside counsel.

23

2.8 Non-Party: any natural person, partnership, corporation, association, or other legal

24 entity not named as a Party to this action.

25

2.9 Outside Counsel of Record: attorneys who are not employees of a party to this

26 action but are retained to represent or advise a party to this action and have appeared in this action

27 on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party.

28

Stipulated Amended Protective Order

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1

2.10 Party: any party to this action, including all of its officers, directors, employees,

2 consultants, retained experts, and Outside Counsel of Record (and their support staffs).

3

2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery

4 Material in this action.

5

2.12 Professional Vendors: persons or entities that provide litigation support services

6 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and

7 organizing, storing, or retrieving data in any form or medium) and their employees and

8 subcontractors.

9

2.13 Protected Material: any Disclosure or Discovery Material that is designated as

10 “CONFIDENTIAL.”

11

2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a

12 Producing Party.

13 3. SCOPE

14

The protections conferred by this Stipulation and Order cover not only Protected Material

15 (as defined above), but also (1) any information copied or extracted from Protected Material; (2)

16 all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,

17 conversations, or presentations by Parties or their Counsel that might reveal Protected Material.

18 However, the protections conferred by this Stipulation and Order do not cover the following

19 information: (a) any information that is in the public domain at the time of disclosure to a

20 Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as

21 a result of publication not involving a violation of this Order, including becoming part of the

22 public record through trial or otherwise; and (b) any information known to the Receiving Party

23 prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who

24 obtained the information lawfully and under no obligation of confidentiality to the Designating

25 Party. Any use of Protected Material at trial shall be governed by a separate agreement or order.

26 4. DURATION

27

Even after final disposition of this litigation, the confidentiality obligations imposed by

28 this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court

Stipulated Amended Protective Order

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1 order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all

2 claims and defenses in this action, with or without prejudice; and (2) final judgment herein after

3 the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,

4 including the time limits for filing any motions or applications for extension of time pursuant to

5 applicable law.

6 5. DESIGNATING PROTECTED MATERIAL

7

5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party

8 or Non-Party that designates information or items for protection under this Order must take care

9 to limit any such designation to specific material that qualifies under the appropriate standards.

10 The Designating Party must designate for protection only those parts of material, documents,

11 items, or oral or written communications that qualify – so that other portions of the material,

12 documents, items, or communications for which protection is not warranted are not swept

13 unjustifiably within the ambit of this Order.

14

Mass, indiscriminate, or routinized designations are prohibited. Designations that are

15 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to

16 unnecessarily encumber or retard the case development process or to impose unnecessary

17 expenses and burdens on other parties) expose the Designating Party to sanctions.

18

If it comes to a Designating Party’s attention that information or items that it designated

19 for protection do not qualify for protection, the Designating Party must promptly notify all other

20 Parties that it is withdrawing the mistaken designation.

21

5.2 Manner and Timing of Designations. Except as otherwise provided in this Order

22 (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,

23 Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so

24 designated before the material is disclosed or produced.

25

Designation in conformity with this Order requires:

26

(a) for information in documentary form (e.g., paper or electronic documents, but

27 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing

28 Party affix the legend “CONFIDENTIAL” to each page that contains protected material. If only a

Stipulated Amended Protective Order

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1 portion or portions of the material on a page qualifies for protection, the Producing Party also

2 must clearly identify the protected portion(s) (e.g., by making appropriate markings in the

3 margins).

4

A Party or Non-Party that makes original documents or materials available for inspection

5 need not designate them for protection until after the inspecting Party has indicated which

6 material it would like copied and produced. During the inspection and before the designation, all

7 of the material made available for inspection shall be deemed “CONFIDENTIAL.” After the

8 inspecting Party has identified the documents it wants copied and produced, the Producing Party

9 must determine which documents, or portions thereof, qualify for protection under this Order.

10 Then, before producing the specified documents, the Producing Party must affix the

11 “CONFIDENTIAL” legend to each page that contains Protected Material. If only a portion or

12 portions of the material on a page qualifies for protection, the Producing Party also must clearly

13 identify the protected portion(s) (e.g., by making appropriate markings in the margins).

14

(b) for testimony given in deposition or in other pretrial or trial proceedings, that

15 the Designating Party identify on the record, before the close of the deposition, hearing, or other

16 proceeding, all protected testimony.

17

(c) for information produced in some form other than documentary and for any

18 other tangible items, that the Producing Party affix in a prominent place on the exterior of the

19 container or containers in which the information or item is stored the legend “CONFIDENTIAL.”

20 If only a portion or portions of the information or item warrant protection, the Producing Party, to

21 the extent practicable, shall identify the protected portion(s).

22

5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to

23 designate qualified information or items does not, standing alone, waive the Designating Party’s

24 right to secure protection under this Order for such material. Upon timely correction of a

25 designation, the Receiving Party must make reasonable efforts to assure that the material is

26 treated in accordance with the provisions of this Order.

27

28

Stipulated Amended Protective Order

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1 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS

2

6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of

3 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality

4 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic

5 burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to

6 challenge a confidentiality designation by electing not to mount a challenge promptly after the

7 original designation is disclosed.

8

6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution

9 process by providing written notice of each designation it is challenging and describing the basis

10 for each challenge. To avoid ambiguity as to whether a challenge has been made, the written

11 notice must recite that the challenge to confidentiality is being made in accordance with this

12 specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in

13 good faith and must begin the process by conferring directly (in voice to voice dialogue; other

14 forms of communication are not sufficient) within 14 days of the date of service of notice. In

15 conferring, the Challenging Party must explain the basis for its belief that the confidentiality

16 designation was not proper and must give the Designating Party an opportunity to review the

17 designated material, to reconsider the circumstances, and, if no change in designation is offered,

18 to explain the basis for the chosen designation. A Challenging Party may proceed to the next

19 stage of the challenge process only if it has engaged in this meet and confer process first or

20 establishes that the Designating Party is unwilling to participate in the meet and confer process in

21 a timely manner.

22

6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court

23 intervention, the Designating Party shall file and serve a motion to retain confidentiality under

24 Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5 and General Order 62, if

25 applicable) within 21 days of the initial notice of challenge or within 14 days of the parties

26 agreeing that the meet and confer process will not resolve their dispute, whichever is earlier. Each

27 such motion must be accompanied by a competent declaration affirming that the movant has

28 complied with the meet and confer requirements imposed in the preceding paragraph. Failure by

Stipulated Amended Protective Order

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Case No. CV-11-4001 RS

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1 the Designating Party to make such a motion including the required declaration within 21 days (or

2 14 days, if applicable) shall automatically waive the confidentiality designation for each

3 challenged designation. In addition, the Challenging Party may file a motion challenging a

4 confidentiality designation at any time if there is good cause for doing so, including a challenge to

5 the designation of a deposition transcript or any portions thereof. Any motion brought pursuant to

6 this provision must be accompanied by a competent declaration affirming that the movant has

7 complied with the meet and confer requirements imposed by the preceding paragraph.

8

The burden of persuasion in any such challenge proceeding shall be on the Designating

9 Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose

10 unnecessary expenses and burdens on other parties) may expose the Challenging Party to

11 sanctions. Unless the Designating Party has waived the confidentiality designation by failing to

12 file a motion to retain confidentiality as described above, all parties shall continue to afford the

13 material in question the level of protection to which it is entitled under the Producing Party’s

14 designation until the court rules on the challenge.

15 7. 16

ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. In accordance with the terms of this Privacy Act Protective

17 Order, pursuant to 5 U.S.C. § 552a(b)(11), Defendants are authorized to produce to counsel for

18 Plaintiffs and the Court in this case private identifying information, and other information

19 discoverable pursuant to Fed. R. Civ. P. 26(c) that Plaintiffs seek, without first requiring officials

20 of the United States to pre-screen each document for objections, and presenting those objections

21 to this Court for a decision regarding disclosure. A Receiving Party may use Protected Material

22 that is disclosed or produced by another Party or by a Non-Party in connection with this case only

23 for prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be

24 disclosed only to the categories of persons and under the conditions described in this Order.

25 When the litigation has been terminated, a Receiving Party must comply with the provisions of

26 section 13 below (FINAL DISPOSITION).

27

28

Stipulated Amended Protective Order

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1

Protected Material must be stored and maintained by a Receiving Party at a location and

2 in a secure manner that ensures that access is limited to the persons authorized under this Order.

3

7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered

4 by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any

5 information or item designated “CONFIDENTIAL” only to:

6

(a) the Receiving Party’s Outside Counsel of Record in this action, as well as

7 employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the

8 information for this litigation and who have signed the “Acknowledgment and Agreement to Be

9 Bound” that is attached hereto as Exhibit A;

10

(b) the officers, directors, and employees (including House Counsel) of the

11 Receiving Party to whom disclosure is reasonably necessary for this litigation and who have

12 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

13

(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is

14 reasonably necessary for this litigation and who have signed the “Acknowledgment and

15 Agreement to Be Bound” (Exhibit A);

16

(d) the court and its personnel;

17

(e) court reporters and their staff, professional jury or trial consultants, mock

18 jurors, and Professional Vendors to whom disclosure is reasonably necessary for this litigation

19 and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

20

(f) during their depositions, witnesses in the action to whom disclosure is

21 reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound”

22 (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of

23 transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be

24 separately bound by the court reporter and may not be disclosed to anyone except as permitted

25 under this Stipulated Protective Order.

26

(g) the author or recipient of a document containing the information or a custodian

27 or other person who otherwise possessed or knew the information.

28

Stipulated Amended Protective Order

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8. 1

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION

2

If a Party is served with a subpoena or a court order issued in other litigation that compels

3 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that Party

4 must:

5

(a) promptly notify in writing the Designating Party. Such notification shall

6 include a copy of the subpoena or court order;

7

(b) promptly notify in writing the party who caused the subpoena or order to issue

8 in the other litigation that some or all of the material covered by the subpoena or order is subject

9 to this Protective Order. Such notification shall include a copy of this Stipulated Protective Order;

10 and

11

(c) cooperate with respect to all reasonable procedures sought to be pursued by

12 the Designating Party whose Protected Material may be affected.

13

If the Designating Party timely seeks a protective order, the Party served with the

14 subpoena or court order shall not produce any information designated in this action as

15 “CONFIDENTIAL” before a determination by the court from which the subpoena or order

16 issued, unless the Party has obtained the Designating Party’s permission. The Designating Party

17 shall bear the burden and expense of seeking protection in that court of its confidential material –

18 and nothing in these provisions should be construed as authorizing or encouraging a Receiving

19 Party in this action to disobey a lawful directive from another court.

20 9. 21

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION

22

(a) The terms of this Order are applicable to information produced by a Non-

23 Party in this action and designated as “CONFIDENTIAL.” Such information produced by Non-

24 Parties in connection with this litigation is protected by the remedies and relief provided by this

25 Order. Nothing in these provisions should be construed as prohibiting a Non-Party from seeking

26 additional protections.

27

(b) In the event that a Party is required, by a valid discovery request, to

28

Stipulated Amended Protective Order

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1 produce a Non-Party’s confidential information in its possession, and the Party is subject to an

2 agreement with the Non-Party not to produce the Non-Party’s confidential information, then the

3 Party shall:

4

(1) promptly notify in writing the Requesting Party and the Non-Party

5 that some or all of the information requested is subject to a confidentiality agreement with a Non-

6 Party;

7

(2) promptly provide the Non-Party with a copy of the Stipulated

8 Protective Order in this litigation, the relevant discovery request(s), and a reasonably specific

9 description of the information requested; and

10

(3) make the information requested available for inspection by the

11 Non-Party.

12

(c) If the Non-Party fails to object or seek a protective order from this court

13 within 14 days of receiving the notice and accompanying information, the Receiving Party may

14 produce the Non-Party’s confidential information responsive to the discovery request. If the Non-

15 Party timely seeks a protective order, the Receiving Party shall not produce any information in its

16 possession or control that is subject to the confidentiality agreement with the Non-Party before a 17 determination by the court.1 Absent a court order to the contrary, the Non-Party shall bear the

18 burden and expense of seeking protection in this court of its Protected Material.

19 10. 20

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected

21 Material to any person or in any circumstance not authorized under this Stipulated Protective

22 Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the

23 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the

24 Protected Material, (c) inform the person or persons to whom unauthorized disclosures were

25

26

27 1 The purpose of this provision is to alert the interested parties to the existence of confidentiality rights of a Non-Party and to afford the Non-Party an opportunity to protect its confidentiality
28 interests in this court.

Stipulated Amended Protective Order

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1 made of all the terms of this Order, and (d) request such person or persons to execute the

2 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A.

3 11. 4

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL

5

When a Producing Party gives notice to Receiving Parties that certain inadvertently

6 produced material is subject to a claim of privilege or other protection, the obligations of the

7 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This

8 provision is not intended to modify whatever procedure may be established in an e-discovery

9 order that provides for production without prior privilege review. Pursuant to Federal Rule of

10 Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a

11 communication or information covered by the attorney-client privilege or work product

12 protection, the parties may incorporate their agreement in the stipulated protective order

13 submitted to the court.

14 12. 15

MISCELLANOUS 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to

16 seek its modification by the court in the future.

17

12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective

18 Order no Party waives any right it otherwise would have to object to disclosing or producing any

19 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no

20 Party waives any right to object on any ground to use in evidence of any of the material covered

21 by this Protective Order.

22

12.3 Filing Protected Material. Without written permission from the Designating Party

23 or a court order secured after appropriate notice to all interested persons, a Party may not file in

24 the public record in this action any Protected Material. A Party that seeks to file under seal any

25 Protected Material must comply with Civil Local Rule 79-5 and General Order 62. Protected

26 Material may only be filed under seal pursuant to a court order authorizing the sealing of the

27 specific Protected Material at issue. Pursuant to Civil Local Rule 79-5 and General Order 62, a

28 sealing order will issue only upon a request establishing that the Protected Material at issue is

Stipulated Amended Protective Order

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1 privileged, protectable as a trade secret, or otherwise entitled to protection under the law. If a

2 Receiving Party's request to file Protected Material under seal pursuant to Civil Local Rule 79-

3 5(d) and General Order 62 is denied by the court, then the Receiving Party may file the

4 information in the public record pursuant to Civil Local Rule 79-5(e) unless otherwise instructed

5 by the court.

6 13. 7

FINAL DISPOSITION Within 60 days after the final disposition of this action, as defined in paragraph 4, each

8 Receiving Party must return all Protected Material to the Producing Party or destroy such

9 material. As used in this subdivision, “all Protected Material” includes all copies, abstracts,

10 compilations, summaries, and any other format reproducing or capturing any of the Protected

11 Material. Whether the Protected Material is returned or destroyed, the Receiving Party must

12 submit a written certification to the Producing Party (and, if not the same person or entity, to the

13 Designating Party) by the 60 day deadline that (1) identifies (by category, where appropriate) all

14 the Protected Material that was returned or destroyed and (2)affirms that the Receiving Party has

15 not retained any copies, abstracts, compilations, summaries or any other format reproducing or

16 capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to

17 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts,

18 legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work

19 product, and consultant and expert work product, even if such materials contain Protected

20 Material. Any such archival copies that contain or constitute Protected Material remain subject to

21 this Protective Order as set forth in Section 4 (DURATION).

22

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

23

24

25

26

27

28

Stipulated Amended Protective Order

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1 Dated: January 17, 2013 2 3 4 5 6 7 8 9 10 11 12 13
Dated: January 17, 2013 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Stipulated Amended Protective Order Case No. CV-11-4001 RS

Respectfully submitted,
By: /s/ Catherine E. Moreno CATHERINE E. MORENO
WILSON SONSINI GOODRICH & ROSATI Professional Corporation David J. Berger Thomas J. Martin Analisa M. Pratt Savith S. Iyengar
LAWYERS’ COMMITTEE FOR CIVIL RIGHTS Paul Chavez
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, INC. Julia Harumi Mass Alan L. Schlosser
Attorneys for Plaintiffs
By: /s/ Christopher W. Hollis CHRISTOPHER W. HOLLIS
District Court Section Office of Immigration Litigation Civil Division U.S. Department of Justice P.O. Box 868, Ben Franklin Station Washington, DC 20044 Telephone: (202) 305-0899 Facsimile (202) 616-8962 Email: christopher.hollis@usdoj.gov
STUART F. DELERY Principal Deputy Assistant Attorney General Civil Division
DAVID J. KLINE Director Office of Immigration Litigation District Court Section
VICTOR M. LAWRENCE Principal Assistant Director Office of Immigration Litigation
Attorneys for Defendants
-14-

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1

SIGNATURE ATTESTATION

2

I, Christopher W. Hollis, attest that I obtained the concurrence of Catherine E. Moreno

3 in filing this document. I declare under penalty of the laws of the United States that the

4 foregoing is true and correct.

5

Executed this 17th day of January 2013 in Washington, DC.

6

/s/ Christopher W. Hollis

7

CHRISTOPHER W. HOLLIS

8

9 PURSUANT TO STIPULATION, IT IS SO ORDERED.

10

11 Dated: _2/7/2013____________ 12 13

_______________________________________
Honorable Kandis A. Westmore United States Magistrate Judge Northern District of California

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Stipulated Amended Protective Order

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Case No. CV-11-4001 RS

CCCaaassesee333:1::1111-c--cvcv-v0--0044400000111-R--RRSSS DDDoooccucuummmeeennnt2tt11021337-3-1FFilFeileidled0d1202/01/17/19/17/13/133PPaPagagege1e5614oof f11564

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3

I, _____________________________ [print or type full name], of _________________ [print or

4 type full address], declare under penalty of perjury that I have read in its entirety and understand the

5 Stipulated Protective Order that was issued by the United States District Court for the Northern District of

6 California on ___________ [date] in the case of Uelian De Abadia-Peixoto, et al. v. United States
7 Department of Homeland Security, et al., Case No. CV 11-4001 RS. I agree to comply with and to be
8 bound by all the terms of this Stipulated Protective Order and I understand and acknowledge that failure to
9 so comply could expose me to sanctions and punishment in the nature of contempt. I solemnly promise
10
that I will not disclose in any manner any information or item that is subject to this Stipulated Protective 11

Order to any person or entity except in strict compliance with the provisions of this Order. 12

13

I further agree to submit to the jurisdiction of the United States District Court for the Northern

14 District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if

15 such enforcement proceedings occur after termination of this action.

16

I hereby appoint __________________________ [print or type full name] of

17 _______________________________________ [print or type full address and telephone number] as my

18 California agent for service of process in connection with this action or any proceedings related to

19 enforcement of this Stipulated Protective Order.

20

21 Date: _________________________________ 22

23 City and State where sworn and signed: _________________________________ 24

25 Printed name: ______________________________ 26

27 Signature: __________________________________
28

Ex. A to Second Stipulated Amended Prot. Order

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Case No. CV-11-4001 RS

 
 Case: 3:11-cv-4001 As of: 11/11/2017 03:23 PM PST 1 of 29
ADRMOP,CLOSED,REFDIS,REFSET−LB
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:11−cv−04001−RS

De Abadia−Peixoto et al v. United States Department of Homeland Security et al Assigned to: Hon. Richard Seeborg Referred to: Magistrate Judge Kandis A. Westmore
Magistrate Judge Laurel Beeler (Settlement) Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 08/15/2011 Date Terminated: 04/10/2014 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Uelian De Abadia−Peixoto

represented by Angie Young Kim Wilson Sonsini et al 650 Page Mill Road Palo Alto, CA 94304 650−493−9300 Fax: 650−493−6811 Email: aykim@wsgr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alan Lawrence Schlosser ACLU Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 415−621−2493 Fax: 415−255−1478 Email: aschlosser@aclunc.org ATTORNEY TO BE NOTICED

Analisa M Pratt Wilson Sonsini et al 650 Page Mill Rd Palo Alto, CA 94304 650−493−9300 Email: apratt@wsgr.com ATTORNEY TO BE NOTICED

Audrey Daniel Lawyers' Committee For Civil Rights 131 Steuart St. Suite 400 San Francisco, CA 94105 415−543−9444 Email: audrey.daniel@gmail.com TERMINATED: 11/21/2011 ATTORNEY TO BE NOTICED

Briza Sanchez Wilson Sonsini Goodrich Rosati 650 Page Mill Road Palo Alto, CA 94304 650−849−3027 Email: bsanchez@wsgr.com ATTORNEY TO BE NOTICED

Catherine Eugenia Moreno Wilson Sonsini Goodrich and Rosati 650 Page Mill Road Palo Alto, CA 94304−1050

Case: 3:11-cv-4001 As of: 11/11/2017 03:23 PM PST 2 of 29
650−493−9300 Email: cmoreno@wsgr.com PRO HAC VICE ATTORNEY TO BE NOTICED
David J. Berger Wilson Sonsini Goodrich & Rosati Professional Corporation 650 Page Mill Road Palo Alto, CA 94304−1050 650−493−9300 Fax: 650−565−5100 Email: dberger@wsgr.com ATTORNEY TO BE NOTICED
Julia Harumi Mass , Esq. American Civil Liberties Union of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 415−621−2493 Fax: 415−255−8437 Email: jmass@aclunc.org ATTORNEY TO BE NOTICED
Paul R Chavez Lawyers' Committee for Civil Rights 131 Steuart Street San Francisco, CA 94105 415−814−7621 Email: pchavez@lccr.com ATTORNEY TO BE NOTICED
Philip Kim Hwang Lawyers' Committee for Civil Rights of the San Francisco Bay 131 Steuart Street, No.400 San Francisco, CA 94105 415−543−9444 Fax: (415) 543−0296 Email: phwang@lccr.com TERMINATED: 02/17/2012 ATTORNEY TO BE NOTICED
Savith S Iyengar Wilson Sonsini Goodrich and Rosati 1 Market Street Spear Tower, Suite 3300 San Francisco, CA 94105 415−947−2000 Fax: 415−947−2099 Email: SIyengar@ci.berkeley.ca.us ATTORNEY TO BE NOTICED
Thomas James Martin Wilson Sonsini et al 650 Page Mill Road Palo Alto, CA 94304 415−493−3900 Fax: 650−565−5100 Email: tmartin@wsgr.com ATTORNEY TO BE NOTICED
Plaintiff

Case: 3:11-cv-4001 As of: 11/11/2017 03:23 PM PST 3 of 29

Esmar Cifuentes

represented by Angie Young Kim (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alan Lawrence Schlosser (See above for address) ATTORNEY TO BE NOTICED

Analisa M Pratt (See above for address) ATTORNEY TO BE NOTICED

Audrey Daniel (See above for address) TERMINATED: 11/21/2011 ATTORNEY TO BE NOTICED

Briza Sanchez (See above for address) ATTORNEY TO BE NOTICED

Catherine Eugenia Moreno (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

David J. Berger (See above for address) ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Paul R Chavez (See above for address) ATTORNEY TO BE NOTICED

Philip Kim Hwang (See above for address) TERMINATED: 02/17/2012 ATTORNEY TO BE NOTICED

Savith S Iyengar (See above for address) ATTORNEY TO BE NOTICED

Thomas James Martin (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Pedro Nolasco Jose

represented by Angie Young Kim (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alan Lawrence Schlosser (See above for address) ATTORNEY TO BE NOTICED

Analisa M Pratt (See above for address)

Case: 3:11-cv-4001 As of: 11/11/2017 03:23 PM PST 4 of 29

ATTORNEY TO BE NOTICED

Audrey Daniel (See above for address) TERMINATED: 11/21/2011 ATTORNEY TO BE NOTICED

Briza Sanchez (See above for address) ATTORNEY TO BE NOTICED

Catherine Eugenia Moreno (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

David J. Berger (See above for address) ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Paul R Chavez (See above for address) ATTORNEY TO BE NOTICED

Philip Kim Hwang (See above for address) TERMINATED: 02/17/2012 ATTORNEY TO BE NOTICED

Savith S Iyengar (See above for address) ATTORNEY TO BE NOTICED

Thomas James Martin (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Mi Lian Wei

represented by Angie Young Kim (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alan Lawrence Schlosser (See above for address) ATTORNEY TO BE NOTICED

Analisa M Pratt (See above for address) ATTORNEY TO BE NOTICED

Audrey Daniel (See above for address) TERMINATED: 11/21/2011 ATTORNEY TO BE NOTICED

Briza Sanchez (See above for address) ATTORNEY TO BE NOTICED

Case: 3:11-cv-4001 As of: 11/11/2017 03:23 PM PST 5 of 29
Catherine Eugenia Moreno (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David J. Berger (See above for address) ATTORNEY TO BE NOTICED
Jingni Zhao ACLU Foundation of Northern California 39 Drumm Street San Francisco, CA 94111 415−621−2493 Fax: 415−255−1478 Email: jzhao@aclunc.org ATTORNEY TO BE NOTICED
Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED
Paul R Chavez (See above for address) ATTORNEY TO BE NOTICED
Philip Kim Hwang (See above for address) TERMINATED: 02/17/2012 ATTORNEY TO BE NOTICED
Savith S Iyengar (See above for address) ATTORNEY TO BE NOTICED
Thomas James Martin (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
United States Department of Homeland Security

represented by Christopher W Hollis U.S. Dept. of Justice,Civil Division Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, DC 20044 202−305−0899 Fax: 202−616−8962 Email: christopher.hollis@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey Michael Bauer U.S. Department of Justice Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, DC 20044 202−532−4786 Fax: 202−616−8962 Email: jeffrey.bauer@usdoj.gov TERMINATED: 11/15/2012 LEAD ATTORNEY

Case: 3:11-cv-4001 As of: 11/11/2017 03:23 PM PST 6 of 29

ATTORNEY TO BE NOTICED

Samuel P. Go U.S. Department of Justice Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, DC 20044 202−353−9923 Fax: 202−616−8962 Email: samuel.go@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Theodore W Atkinson United States Department of Justice Office of Immigration Litigation − District Court Section Box 868, Ben Franklin Station Washington, DC 20044 202−532−4135 Email: theodore.atkinson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erez R. Reuveni United States Department of Justice Office of Immigration Litigation, District Court Section Ben Franklin Station P.O. Box 868 Washignton, DC 20044 202−307−4293 Fax: 202−305−7000 Email: erez.r.reuveni@usdoj.gov ATTORNEY TO BE NOTICED

Sarah Stevens Wilson USDOJ CIV/OIL−DCS PO Box 868, Ben Franklin Station Washington, DC 20044 202−532−4700 Fax: 203−305−7000 Email: sarah.s.wilson@usdoj.gov ATTORNEY TO BE NOTICED

Defendant
Janet Napolitano Secretary of the United States Department of Homeland Security TERMINATED: 11/25/2013

represented by Christopher W Hollis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey Michael Bauer (See above for address) TERMINATED: 11/15/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Samuel P. Go (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:11-cv-4001 As of: 11/11/2017 03:23 PM PST 7 of 29

Theodore W Atkinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erez R. Reuveni (See above for address) ATTORNEY TO BE NOTICED

Sarah Stevens Wilson (See above for address) ATTORNEY TO BE NOTICED

Defendant
United States Immigration and Customs Enforcement

represented by Christopher W Hollis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey Michael Bauer (See above for address) TERMINATED: 11/15/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Samuel P. Go (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Theodore W Atkinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erez R. Reuveni (See above for address) ATTORNEY TO BE NOTICED

Sarah Stevens Wilson (See above for address) ATTORNEY TO BE NOTICED

Defendant
John T. Morton Director of U.S. Immigration and Customs Enforcement TERMINATED: 11/25/2013

represented by Christopher W Hollis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey Michael Bauer (See above for address) TERMINATED: 11/15/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Samuel P. Go (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Theodore W Atkinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:11-cv-4001 As of: 11/11/2017 03:23 PM PST 8 of 29

Defendant Timothy Aitken Field Office Director of the San Francisco District of U.S. Immigration and Customs Enforcement
Defendant Eric H. Holder, Jr. United States Attorney General

Erez R. Reuveni (See above for address) ATTORNEY TO BE NOTICED
Sarah Stevens Wilson (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher W Hollis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey Michael Bauer (See above for address) TERMINATED: 11/15/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel P. Go (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Theodore W Atkinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erez R. Reuveni (See above for address) ATTORNEY TO BE NOTICED
Sarah Stevens Wilson (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher W Hollis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey Michael Bauer (See above for address) TERMINATED: 11/15/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel P. Go (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Theodore W Atkinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erez R. Reuveni (See above for address) ATTORNEY TO BE NOTICED

Case: 3:11-cv-4001 As of: 11/11/2017 03:23 PM PST 9 of 29

Defendant Executive Office for Immigration Review
Defendant Juan P. Osuna Director of the Executive Office for Immigration Review

Sarah Stevens Wilson (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher W Hollis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey Michael Bauer (See above for address) TERMINATED: 11/15/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel P. Go (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Theodore W Atkinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erez R. Reuveni (See above for address) ATTORNEY TO BE NOTICED
Sarah Stevens Wilson (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher W Hollis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey Michael Bauer (See above for address) TERMINATED: 11/15/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel P. Go (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Theodore W Atkinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erez R. Reuveni (See above for address) ATTORNEY TO BE NOTICED
Sarah Stevens Wilson (See above for address) ATTORNEY TO BE NOTICED

Case: 3:11-cv-4001 As of: 11/11/2017 03:23 PM PST 10 of 29

Defendant John Sandweg Acting Director of U.S. Immigration and Customs Enforcement
Defendant Rand Beers Acting Secretary of the United States Department of Homeland Security
Amicus The Asian Law Caucus The Asian Law Caucus
Amicus

represented by Christopher W Hollis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel P. Go (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Theodore W Atkinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erez R. Reuveni (See above for address) ATTORNEY TO BE NOTICED
Sarah Stevens Wilson (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher W Hollis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel P. Go (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Theodore W Atkinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erez R. Reuveni (See above for address) ATTORNEY TO BE NOTICED
Sarah Stevens Wilson (See above for address) ATTORNEY TO BE NOTICED
represented by Keith Leonard Slenkovich Wilmer Cutler Pickering Hale and Dorr LLP 950 Page Mill Road Palo Alto, CA 94304 (650) 858−6110 Fax: (650) 858−6100 Email: keith.slenkovich@wilmerhale.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by

Case: 3:11-cv-4001 As of: 11/11/2017 03:23 PM PST 11 of 29

Centro Legal De La Raza Centro Legal De La Raza

Keith Leonard Slenkovich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Dolores Street Community Services Dolores Street Community Services

represented by Keith Leonard Slenkovich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/15/2011
08/15/2011 08/15/2011 08/17/2011 08/17/2011 08/17/2011 08/17/2011 08/17/2011 08/17/2011 08/17/2011

# Docket Text
1 CLASS ACTION COMPLAINT against Timothy Aitken, Executive Office for Immigration Review, Eric H. Holder, Jr, John T. Morton, Janet Napolitano, Juan P. Osuna, United States Department of Homeland Security, United States Immigration and Customs Enforcement ( Filing fee $ 350, receipt number 34611063458.). Filed byEsmar Cifuentes, Uelian De Abadia−Peixoto, Mi Lian Wei, Pedro Nolasco Jose. (Attachments: # 1 Civil Cover Sheet)(vlk, COURT STAFF) (Filed on 8/15/2011) (Additional attachment(s) added on 8/18/2011: # 1 Civil Cover Sheet) (vlk, COURT STAFF). (Entered: 08/17/2011)
2 Summons Issued as to Timothy Aitken, Executive Office for Immigration Review, Eric H. Holder, Jr, John T. Morton, Janet Napolitano, Juan P. Osuna, United States Department of Homeland Security, United States Immigration and Customs Enforcement, U.S. Attorney and U.S. Attorney General (vlk, COURT STAFF) (Filed on 8/15/2011) (Entered: 08/17/2011)
3 ADR SCHEDULING ORDER: Case Management Statement due by 11/23/2011. Case Management Conference set for 11/30/2011 01:30 PM. (Attachments: # 1 Standing Order)(vlk, COURT STAFF) (Filed on 8/15/2011) (Entered: 08/17/2011)
4 Summons Returned Unexecuted by Esmar Cifuentes, Uelian De Abadia−Peixoto, Mi Lian Wei, Pedro Nolasco Jose as to Timothy Aitken, Executive Office for Immigration Review, Eric H. Holder, Jr, John T. Morton, Janet Napolitano, Juan P. Osuna, United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Pratt, Analisa) (Filed on 8/17/2011) (Entered: 08/17/2011)
5 MOTION to Certify Class filed by Esmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. Motion Hearing set for 10/27/2011 11:00 AM before Magistrate Judge Donna M. Ryu. Responses due by 8/31/2011. Replies due by 9/7/2011. (Attachments: # 1 Proposed Order)(vlk, COURT STAFF) (Filed on 8/17/2011) Modified on 10/14/2011 (gba, COURT STAFF). (Entered: 08/18/2011)
6 MEMORANDUM in Support re 5 MOTION to Certify Class filed byEsmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Related document(s) 5 ) (vlk, COURT STAFF) (Filed on 8/17/2011) (Entered: 08/18/2011)
7 Declaration of Paul R. Chavez in Support of 5 MOTION to Certify Class filed byEsmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Related document(s) 5 ) (vlk, COURT STAFF) (Filed on 8/17/2011) (Entered: 08/18/2011)
8 Declaration of Julia Harumi Mass in Support of 5 MOTION to Certify Class filed byEsmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Related document(s) 5 ) (vlk, COURT STAFF) (Filed on 8/17/2011) (Entered: 08/18/2011)
9 Declaration of Mi Lian Lei in Support of 5 MOTION to Certify Class filed byEsmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Related document(s) 5 ) (vlk, COURT STAFF) (Filed on 8/17/2011) (Entered: 08/18/2011)
10 Declaration of Pedro Nolasco Jose in Support of 5 MOTION to Certify Class filed byEsmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Related document(s) 5 ) (vlk, COURT STAFF) (Filed on 8/17/2011) (Entered: 08/18/2011)

Case: 3:11-cv-4001 As of: 11/11/2017 03:23 PM PST 12 of 29

08/17/2011 08/17/2011 08/17/2011
08/17/2011 08/18/2011 08/18/2011 08/19/2011 08/25/2011 08/25/2011 08/25/2011 09/01/2011 09/08/2011
09/08/2011
09/08/2011 09/12/2011

11 Declaration of Uelian De Abadia−Peixoto in Support of 5 MOTION to Certify Class filed byEsmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Related document(s) 5 ) (vlk, COURT STAFF) (Filed on 8/17/2011) (Entered: 08/18/2011)
12 Declaration of Esmar Cifuentes in Support of 5 MOTION to Certify Class filed byEsmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Related document(s) 5 ) (vlk, COURT STAFF) (Filed on 8/17/2011) (Entered: 08/18/2011)
13 Declaration of Savith S. Iyengar in Support of 5 MOTION to Certify Class filed byEsmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Related document(s) 5 ) (vlk, COURT STAFF) (Filed on 8/17/2011) (Entered: 08/18/2011)
14 Declaration of David J. Berger in Support of 5 MOTION to Certify Class filed byEsmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Attachments: # 1 Exhibit 1)(Related document(s) 5 ) (vlk, COURT STAFF) (Filed on 8/17/2011) Modified on 8/22/2011 (vlk, COURT STAFF). (Entered: 08/18/2011)
15 Summons Issued as to Timothy Aitken, Executive Office for Immigration Review, Eric H. Holder, Jr, John T. Morton, Janet Napolitano, Juan P. Osuna, United States Department of Homeland Security, United States Immigration and Customs Enforcement. (vlk, COURT STAFF) (Filed on 8/18/2011) (Entered: 08/18/2011)
16 CLERK'S NOTICE TO PLAINTIFFS re: Consent or Declination to Proceed before a U.S. Magistrate Judge (ig, COURT STAFF) (Filed on 8/18/2011) (Entered: 08/19/2011)
17 CERTIFICATE OF SERVICE by Esmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei (Pratt, Analisa) (Filed on 8/19/2011) (Entered: 08/19/2011)
18 NOTICE of Appearance by Theodore W Atkinson (Atkinson, Theodore) (Filed on 8/25/2011) (Entered: 08/25/2011)
19 NOTICE of Appearance by Jeffrey Michael Bauer (Bauer, Jeffrey) (Filed on 8/25/2011) (Entered: 08/25/2011)
20 CONSENT to Proceed Before a US Magistrate Judge by Esmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei.. (Berger, David) (Filed on 8/25/2011) (Entered: 08/25/2011)
21 CLERK'S NOTICE TO DEFENDANTS re: Consent or Declination to proceed before a U.S. Magistrate Judge (ig, COURT STAFF) (Filed on 9/1/2011) (Entered: 09/01/2011)
22 Declination to Proceed Before a U.S. Magistrate Judge by Timothy Aitken, Executive Office for Immigration Review, Eric H. Holder, Jr, John T. Morton, Janet Napolitano, Juan P. Osuna, United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Bauer, Jeffrey) (Filed on 9/8/2011) (Entered: 09/08/2011)
23 MOTION for Extension of Time to File Opposition to Plaintiffs' Motion for Class Certification and To Extend the Date for the Hearing on the Motion filed by Timothy Aitken, Executive Office for Immigration Review, Eric H. Holder, Jr, John T. Morton, Janet Napolitano, Juan P. Osuna, United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Attachments: # 1 Declaration, # 2 Proposed Order)(Bauer, Jeffrey) (Filed on 9/8/2011) (Entered: 09/08/2011)
24 CLERK'S NOTICE of Impending Reassignment to U.S. District Judge (ig, COURT STAFF) (Filed on 9/8/2011) (Entered: 09/09/2011)
25 ORDER REASSIGNING CASE. Case reassigned to Judge Hon. Richard Seeborg for all further proceedings. Magistrate Judge Donna M. Ryu no longer assigned to the case. Signed by Judge the Executive Committee on September 12, 2011. (cjl, COURT STAFF) (Filed on 9/12/2011) (Entered: 09/12/2011)

Case: 3:11-cv-4001 As of: 11/11/2017 03:23 PM PST 13 of 29

09/12/2011 09/12/2011 09/12/2011
09/12/2011 09/27/2011 09/27/2011
10/11/2011 10/11/2011
10/14/2011 10/14/2011
10/24/2011 10/24/2011 11/01/2011 11/01/2011

26 CLERKS NOTICE SCHEDULING A CASE MANAGEMENT CONFERENCE. Case Management Conference set for 12/1/2011 10:00 AM in Courtroom 3, 17th Floor, San Francisco. (cl, COURT STAFF) (Filed on 9/12/2011) (Entered: 09/12/2011)
27 RESPONSE (re 23 MOTION for Extension of Time to File Opposition to Plaintiffs' Motion for Class Certification and To Extend the Date for the Hearing on the Motion ) filed byEsmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Berger, David) (Filed on 9/12/2011) (Entered: 09/12/2011)
28 Declaration of David J. Berger in Support of 27 Opposition/Response to Motion, filed byEsmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D)(Related document(s) 27 ) (Berger, David) (Filed on 9/12/2011) (Entered: 09/12/2011)
29 ORDER RE SCHEDULING. Signed by Judge Richard Seeborg on 9/12/11. (cl, COURT STAFF) (Filed on 9/12/2011) (Entered: 09/12/2011)
30 STIPULATION and [Proposed] Order Setting Briefing Schedule for Plaintiffs' Motion for Class Certification and Defendants' Motion to Dismiss by Esmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Berger, David) (Filed on 9/27/2011) (Entered: 09/27/2011)
31 STIPULATION AND ORDER RE 30 SETTING BRIEFING SCHEDULE FOR PLAINTIFFS' MOTION FOR CLASS CERTIFICATION AND DEFENDANTS' MOTION TO DISMISS Stipulation, filed by Uelian De Abadia−Peixoto, Esmar Cifuentes, Mi Lian Wei, Pedro Nolasco Jose Signed by Judge Richard Seeborg on 9/27/11. (cl, COURT STAFF) (Filed on 9/27/2011) (Entered: 09/27/2011)
32 NOTICE of Appearance by Erez R Reuveni (Reuveni, Erez) (Filed on 10/11/2011) (Entered: 10/11/2011)
33 MOTION to Dismiss filed by Timothy Aitken, Executive Office for Immigration Review, Eric H. Holder, Jr, John T. Morton, Janet Napolitano, Juan P. Osuna, United States Department of Homeland Security, United States Immigration and Customs Enforcement. Motion Hearing set for 11/17/2011 01:30 PM in Courtroom 3, 17th Floor, San Francisco before Hon. Richard Seeborg. Responses due by 11/1/2011. Replies due by 11/10/2011. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Proposed Order)(Reuveni, Erez) (Filed on 10/11/2011) (Entered: 10/11/2011)
Set/Reset Deadlines as to 5 MOTION to Certify Class. Motion Hearing set for 11/17/2011 01:30 PM in Courtroom 3, 17th Floor, San Francisco before Hon. Richard Seeborg. (gba, COURT STAFF) (Filed on 10/14/2011) (Entered: 10/14/2011)
34 RESPONSE (re 5 MOTION to Certify Class ) filed byTimothy Aitken, Executive Office for Immigration Review, Eric H. Holder, Jr, John T. Morton, Janet Napolitano, Juan P. Osuna, United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Attachments: # 1 Declaration of Jeffrey M. Bauer, # 2 Exhibit A to Bauer Decl., # 3 Exhibit B to Bauer Decl., # 4 Exhibit C to Bauer Decl., # 5 Proposed Order)(Bauer, Jeffrey) (Filed on 10/14/2011) (Entered: 10/14/2011)
35 REPLY (re 5 MOTION to Certify Class ) filed byEsmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Berger, David) (Filed on 10/24/2011) (Entered: 10/24/2011)
36 Declaration of Savith S. Iyengar in Support of 35 Reply to Opposition/Response filed byEsmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Attachments: # 1 Exhibit A)(Related document(s) 35 ) (Berger, David) (Filed on 10/24/2011) (Entered: 10/24/2011)
37 MOTION for Leave to File BRIEF OF AMICUS CURIAE filed by The Asian Law Caucus, Centro Legal De La Raza, Dolores Street Community Services. (Attachments: # 1 Proposed Order Proposed Order)(Slenkovich, Keith) (Entered: 11/01/2011)
38 Brief re 37 MOTION for Leave to File BRIEF OF AMICUS CURIAE IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS filed byCentro Legal De La Raza, Dolores Street Community Services, The Asian Law

Case: 3:11-cv-4001 As of: 11/11/2017 03:23 PM PST 14 of 29

11/01/2011 11/01/2011 11/02/2011
11/02/2011
11/02/2011 11/04/2011 11/10/2011 11/17/2011
11/17/2011 11/21/2011 11/21/2011

Caucus. (Related document(s) 37 ) (Slenkovich, Keith) (Filed on 11/1/2011) (Entered: 11/01/2011)
39 Request for Judicial Notice In Support of 40 Plaintiffs' Opposition to Defendants' Motion to Dismiss filed by Esmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Mass, Julia) (Filed on 11/1/2011) Modified on 11/2/2011 (gba, COURT STAFF). (Entered: 11/01/2011)
40 RESPONSE (re 33 MOTION to Dismiss ) Opposition to Defendants' Motion to Dismiss filed byEsmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Mass, Julia) (Filed on 11/1/2011) (Entered: 11/01/2011)
41 ***ERRONEOUS ENTRY, PLEASE SEE DOCUMENT #43*** RESPONSE (re 37 MOTION for Leave to File BRIEF OF AMICUS CURIAE ) in opposition filed byTimothy Aitken, Executive Office for Immigration Review, Eric H. Holder, Jr, John T. Morton, Janet Napolitano, Juan P. Osuna, United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Attachments: # 1 Declaration, # 2 Proposed Order)(Reuveni, Erez) (Filed on 11/2/2011) Modified on 11/3/2011 (gba, COURT STAFF). (Entered: 11/02/2011)
42 ***ERRONEOUS ENTRY, PLEASE SEE DOCUMENT #43*** RESPONSE (re 37 MOTION for Leave to File BRIEF OF AMICUS CURIAE ) (CORRECTED) filed byTimothy Aitken, Executive Office for Immigration Review, Eric H. Holder, Jr, John T. Morton, Janet Napolitano, Juan P. Osuna, United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Attachments: # 1 Declaration Corrected Declaration, # 2 Proposed Order)(Reuveni, Erez) (Filed on 11/2/2011) Modified on 11/3/2011 (gba, COURT STAFF). (Entered: 11/02/2011)
43 RESPONSE (re 37 MOTION for Leave to File BRIEF OF AMICUS CURIAE ) (AMENDED) filed byTimothy Aitken, Executive Office for Immigration Review, Eric H. Holder, Jr, John T. Morton, Janet Napolitano, Juan P. Osuna, United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Attachments: # 1 Declaration, # 2 Proposed Order)(Reuveni, Erez) (Filed on 11/2/2011) (Entered: 11/02/2011)
44 REPLY (re 37 MOTION for Leave to File BRIEF OF AMICUS CURIAE ) filed byCentro Legal De La Raza, Dolores Street Community Services, The Asian Law Caucus. (Slenkovich, Keith) (Filed on 11/4/2011) (Entered: 11/04/2011)
45 REPLY (re 33 MOTION to Dismiss ) filed byTimothy Aitken, Executive Office for Immigration Review, Eric H. Holder, Jr, John T. Morton, Janet Napolitano, Juan P. Osuna, United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Reuveni, Erez) (Filed on 11/10/2011) (Entered: 11/10/2011)
46 Minute Entry: Motion Hearing held on 11/17/2011 before Judge Richard Seeborg; MATTER TAKEN UNDER SUBMISSION. (Date Filed: 11/17/2011) re 5 MOTION to Certify Class filed by Uelian De Abadia−Peixoto, Esmar Cifuentes, Mi Lian Wei, Pedro Nolasco Jose, 33 MOTION to Dismiss filed by Juan P. Osuna, Eric H. Holder, Jr., Janet Napolitano, United States Immigration and Customs Enforcement, Timothy Aitken, John T. Morton, Executive Office for Immigration Review, United States Department of Homeland Security. (Court Reporter Kathy Sullivan.) (cl, COURT STAFF) (Date Filed: 11/17/2011) (Entered: 11/17/2011)
47 CLERKS NOTICE Rescheduling Case Management Conference. Case Management Conference set for 1/5/2012 10:00 AM in Courtroom 3, 17th Floor, San Francisco. (cl, COURT STAFF) (Filed on 11/17/2011) (Entered: 11/17/2011)
48 MOTION to Withdraw as Attorney filed by Esmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. Responses due by 12/5/2011. Replies due by 12/12/2011. (Hwang, Philip) (Filed on 11/21/2011) (Entered: 11/21/2011)
49 MOTION to Appear by Telephone At Initial Case Management Conference filed by Timothy Aitken, Executive Office for Immigration Review, Eric H. Holder, Jr, John T. Morton, Janet Napolitano, Juan P. Osuna, United States Department of Homeland

Case: 3:11-cv-4001 As of: 11/11/2017 03:23 PM PST 15 of 29

11/21/2011 11/21/2011 12/23/2011 12/29/2011
01/05/2012
01/17/2012 01/17/2012 01/23/2012
02/09/2012 02/17/2012 02/17/2012 02/28/2012 03/01/2012 03/08/2012 03/09/2012
03/16/2012 03/20/2012

Security, United States Immigration and Customs Enforcement. (Attachments: # 1 Proposed Order)(Bauer, Jeffrey) (Filed on 11/21/2011) (Entered: 11/21/2011)
50 CLERKS NOTICE ALL PARTIES SHALLL APPEAR TELEPHONICALLY AT THE CASE MANAGEMENT CONFERENCE SET FOR JANUARY 5, 2012 AT 10:00 A.M.(cl, COURT STAFF) (Filed on 11/21/2011) (Entered: 11/21/2011)
51 ORDER granting 48 Motion to Withdraw as Attorney. by Judge Richard Seeborg (cl, COURT STAFF) (Filed on 11/21/2011) (Entered: 11/21/2011)
52 ORDER by Judge Seeborg denying 33 Motion to Dismiss; denying 37 Motion for Leave to File; granting 5 Motion to Certify Class (rslc1, COURT STAFF) (Filed on 12/23/2011) (Entered: 12/23/2011)
53 JOINT CASE MANAGEMENT STATEMENT and Rule 26(f) Statement and [Proposed] Order filed by Esmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Martin, Thomas) (Filed on 12/29/2011) (Entered: 12/29/2011)
54 Minute Entry: Initial Case Management Conference held on 1/5/2012 before Judge Richard Seeborg (Date Filed: 1/5/2012). Further Case Management Conference set for 3/8/2012 10:00 AM in Courtroom 3, 17th Floor, San Francisco. (Court Reporter Not Reported.) (cl, COURT STAFF) (Date Filed: 1/5/2012) (Entered: 01/05/2012)
55 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options (Bauer, Jeffrey) (Filed on 1/17/2012) (Entered: 01/17/2012)
56 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options ADR Certification by Parties and Counsel (Iyengar, Savith) (Filed on 1/17/2012) (Entered: 01/17/2012)
57 ANSWER to Complaint byTimothy Aitken, Eric H. Holder, Jr, John T. Morton, Janet Napolitano, Juan P. Osuna, United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Atkinson, Theodore) (Filed on 1/23/2012) (Entered: 01/23/2012)
58 NOTICE of Appearance by Sarah Stevens Wilson (Wilson, Sarah) (Filed on 2/9/2012) (Entered: 02/09/2012)
59 MOTION to Withdraw as Attorney filed by Esmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. Responses due by 3/2/2012. Replies due by 3/9/2012. (Hwang, Philip) (Filed on 2/17/2012) (Entered: 02/17/2012)
60 ORDER GRANTING MOTION TO WITHDRAW ATTORNEY. by Judge Richard Seeborg (cl, COURT STAFF) (Filed on 2/17/2012) (Entered: 02/17/2012)
61 CLERKS NOTICE All parties shall appear telephonically at the Case Management Conference scheduled on March 8, 2012. (rslc3, COURT STAFF) (Filed on 2/28/2012) (Entered: 02/28/2012)
62 CASE MANAGEMENT STATEMENT and [Proposed] Order filed by Esmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Moreno, Catherine) (Filed on 3/1/2012) (Entered: 03/01/2012)
63 Minute Entry: Further Case Management Conference held on 3/8/2012 before Judge Richard Seeborg (Date Filed: 3/8/2012). (Court Reporter Not reported.) (cl, COURT STAFF) (Date Filed: 3/8/2012) (Entered: 03/08/2012)
64 CASE MANAGEMENT SCHEDULING ORDER. Further Case Management Conference set for 10/4/2012 10:00 AM; Pretrial Conference set for 4/11/2013 10:00 AM; Jury Selection set for 4/22/2013 09:00 AM; Jury Trial set for 4/22/2013 09:00 AM in Courtroom 3, 17th Floor, San Francisco before Hon. Richard Seeborg. Signed by Judge Richard Seeborg on 3/9/12. (cl, COURT STAFF) (Filed on 3/9/2012) (Entered: 03/09/2012)
65 Letter from Joint Parties re Mediation Magistrate Judge Selection. (Moreno, Catherine) (Filed on 3/16/2012) (Entered: 03/16/2012)
66 ORDER REFERRING CASE to Magistrate Judge Beeler for Settlement. Signed by Judge Richard Seeborg on 3/21/12. (cl, COURT STAFF) (Filed on 3/20/2012)

Case: 3:11-cv-4001 As of: 11/11/2017 03:23 PM PST 16 of 29

03/21/2012 03/26/2012
03/26/2012 03/30/2012 03/30/2012 04/04/2012 04/16/2012
04/18/2012 04/19/2012 06/04/2012 06/05/2012 06/13/2012 07/27/2012 08/01/2012

Modified on 3/20/2012 (cl, COURT STAFF). (Entered: 03/20/2012)
CASE REFERRED to Magistrate Judge Laurel Beeler for Settlement (ahm, COURT STAFF) (Filed on 3/21/2012) (Entered: 03/21/2012)
67 MOTION for Extension of Temporary Stay of Discovery Pending Scheduled Mediation filed by Timothy Aitken, Executive Office for Immigration Review, Eric H. Holder, Jr, John T. Morton, Janet Napolitano, Juan P. Osuna, United States Department of Homeland Security, United States Immigration and Customs Enforcement. Responses due by 3/30/2012. (Attachments: # 1 Declaration of Jeffrey M. Bauer, # 2 Proposed Order)(Bauer, Jeffrey) (Filed on 3/26/2012) (Entered: 03/26/2012)
68 Notice and Order Setting Settlement Conference before Magistrate Judge Laurel Beeler. Settlement Conference set for 5/18/2012 at 9:30 AM in Courtroom C, 15th Floor, San Francisco. Signed by Magistrate Judge Laurel Beeler on 3/26/2012. (lsS, COURT STAFF) (Filed on 3/26/2012) (Entered: 03/26/2012)
69 RESPONSE (re 67 MOTION for Extension of Temporary Stay of Discovery Pending Scheduled Mediation ) filed byEsmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Attachments: # 1 Proposed Order)(Berger, David) (Filed on 3/30/2012) (Entered: 03/30/2012)
70 Declaration of Catherine E. Moreno in Support of 69 Opposition/Response to Motion, filed byEsmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Related document(s) 69 ) (Berger, David) (Filed on 3/30/2012) (Entered: 03/30/2012)
71 ORDER DENYING MOTION FOR EXTENSION OF DISCOVERY STAY. by Judge Richard Seeborg (cl, COURT STAFF) (Filed on 4/4/2012) (Entered: 04/04/2012)
CLERKS NOTICE RESETTING SETTLEMENT CONFERENCE: Settlement Conference reset to 6/13/2012 at 9:30 AM before Magistrate Judge Laurel Beeler, in Courtroom C, 15th Floor, San Francisco. The Notice and Order Setting a Settlement Conference issued on 3/26/2012, Docket No. 68 remains in affect.(This is a docket text entry only, there is no document associated with this entry) (ls, COURT STAFF) (Filed on 4/16/2012) (Entered: 04/16/2012)
72 STIPULATION WITH PROPOSED ORDER for Standard Litigation filed by Esmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Attachments: # 1 Exhibit A)(Moreno, Catherine) (Filed on 4/18/2012) (Entered: 04/18/2012)
73 STIPULATED PROTECTIVE ORDER FOR STANDARD LITIGATION. Signed by Judge Richard Seeborg on 4/19/12. (cl, COURT STAFF) (Filed on 4/19/2012) (Entered: 04/19/2012)
74 Letter from Plaintiffs Seeking to Excuse Plaintiffs Cifuentes, Wei and De Abadia−Peixoto from Attendance at Settlement Conference . (Mass, Julia) (Filed on 6/4/2012) (Entered: 06/04/2012)
75 ORDER APPROVING REQUEST; re 74 Letter filed by Uelian De Abadia−Peixoto, Esmar Cifuentes, Mi Lian Wei, Pedro Nolasco Jose. Signed by Magistrate Judge Laurel Beeler on 6/5/2012. (ls, COURT STAFF) (Filed on 6/5/2012) (Entered: 06/05/2012)
76 Minute Entry: Settlement Conference held (Date Filed: 6/13/2012). (ls, COURT STAFF) (Date Filed: 6/13/2012) (Entered: 06/14/2012)
77 NOTICE of Appearance by Samuel P. Go (Go, Samuel) (Filed on 7/27/2012) (Entered: 07/27/2012)
78 STIPULATION WITH PROPOSED ORDER to Extend Deadlines filed by Esmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Berger, David) (Filed on 8/1/2012) (Entered: 08/01/2012)

Case: 3:11-cv-4001 As of: 11/11/2017 03:23 PM PST 17 of 29

08/10/2012 08/20/2012 08/31/2012 08/31/2012 08/31/2012
08/31/2012 08/31/2012 09/04/2012 09/04/2012 09/07/2012
09/11/2012 09/12/2012
09/14/2012

79 STIPULATION WITH PROPOSED ORDER To Extend Deadlines (Amended) filed by Esmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Moreno, Catherine) (Filed on 8/10/2012) (Entered: 08/10/2012)
80 AMENDED JOINT STIPULATION AND ORDER RE 78 TO EXTEND DEADLINES. Pretrial Conference set for 10/24/2013 10:00 AM; Jury Selection set for 11/12/2013 09:00 AM; Jury Trial set for 11/12/2013 09:00 AM in Courtroom 3, 17th Floor, San Francisco before Hon. Richard Seeborg. Signed by Judge Richard Seeborg on 8/20/12. (cl, COURT STAFF) (Filed on 8/20/2012) (Entered: 08/20/2012)
81 Administrative Motion to File Under Seal filed by Esmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Moreno, Catherine) (Filed on 8/31/2012) (Entered: 08/31/2012)
82 STIPULATION re 81 Administrative Motion to File Under Seal filed by Esmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Moreno, Catherine) (Filed on 8/31/2012) (Entered: 08/31/2012)
83 MOTION for Protective Order filed by Timothy Aitken, Executive Office for Immigration Review, Eric H. Holder, Jr, John T. Morton, Janet Napolitano, Juan P. Osuna, United States Department of Homeland Security, United States Immigration and Customs Enforcement. Motion Hearing set for 10/25/2012 01:30 PM in Courtroom 4, 17th Floor, San Francisco before Hon. Richard Seeborg. Responses due by 9/14/2012. Replies due by 9/21/2012. (Attachments: # 1 Proposed Order, # 2 Exhibit Ex. 1, # 3 Exhibit Ex. 2, # 4 Exhibit Ex. 3, # 5 Exhibit Ex. 4, # 6 Exhibit Ex. 5, # 7 Exhibit Ex. 6, # 8 Exhibit Ex. 7, # 9 Declaration Ex. 8, # 10 Declaration Ex. 9, # 11 Declaration Ex. 10)(Reuveni, Erez) (Filed on 8/31/2012) (Entered: 08/31/2012)
84 CERTIFICATE OF SERVICE by Esmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei (Moreno, Catherine) (Filed on 8/31/2012) (Entered: 08/31/2012)
85 ORDER OF REFERENCE TO MAGISTRATE JUDGE. Signed by Judge Richard Seeborg on 8/31/12. (cl, COURT STAFF) (Filed on 8/31/2012) (Entered: 08/31/2012)
CASE REFERRED to Magistrate Judge Kandis A. Westmore for Discovery (ahm, COURT STAFF) (Filed on 9/4/2012) (Entered: 09/04/2012)
86 NOTICE by Timothy Aitken, Executive Office for Immigration Review, Eric H. Holder, Jr, John T. Morton, Janet Napolitano, Juan P. Osuna, United States Department of Homeland Security, United States Immigration and Customs Enforcement re 83 MOTION for Protective Order (Amended) (Reuveni, Erez) (Filed on 9/4/2012) (Entered: 09/04/2012)
87 Renotice motion hearing re 83 MOTION for Protective Order filed byTimothy Aitken, Executive Office for Immigration Review, Eric H. Holder, Jr, John T. Morton, Janet Napolitano, Juan P. Osuna, United States Department of Homeland Security, United States Immigration and Customs Enforcement. Motion Hearing set for 11/1/2012 11:00 AM in Courtroom 4, 3rd Floor, Oakland before Magistrate Judge Kandis A. Westmore. (Related document(s) 83 ) (Reuveni, Erez) (Filed on 9/7/2012) (Entered: 09/07/2012)
88 MOTION for Discovery Order Shortening Time, Consolidating Discovery Motions, Resolving Plaintiffs' Administrative Motion filed by Esmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. Responses due by 9/17/2012. (Attachments: # 1 Declaration, # 2 Proposed Order)(Mass, Julia) (Filed on 9/11/2012) (Entered: 09/11/2012)
89 RESPONSE (re 88 MOTION for Discovery Order Shortening Time, Consolidating Discovery Motions, Resolving Plaintiffs' Administrative Motion ) filed byTimothy Aitken, Executive Office for Immigration Review, Eric H. Holder, Jr, John T. Morton, Janet Napolitano, Juan P. Osuna, United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Attachments: # 1 Proposed Order, # 2 Exhibit Declaration of Erez Reuveni, Ex. 1)(Reuveni, Erez) (Filed on 9/12/2012) (Entered: 09/12/2012)
90 STIPULATION WITH PROPOSED ORDER re 81 Administrative Motion to File Under Seal , 83 MOTION for Protective Order filed by Timothy Aitken, Executive

Case: 3:11-cv-4001 As of: 11/11/2017 03:23 PM PST 18 of 29

09/17/2012
09/21/2012 09/21/2012
09/27/2012 09/27/2012 09/28/2012
10/02/2012
10/03/2012 10/03/2012 10/22/2012 10/25/2012 10/31/2012

Office for Immigration Review, Eric H. Holder, Jr, John T. Morton, Janet Napolitano, Juan P. Osuna, United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Reuveni, Erez) (Filed on 9/14/2012) (Entered: 09/14/2012)
91 ORDER re: Pending Motions and Further Discovery Disputes. The Court will hear Defendants' motion for protective order on November 1, 2012 at 11:00 am, in Courtroom 4, 3rd Floor, 1301 Clay St., Oakland, CA. Signed by Judge Kandis A. Westmore on 9/17/2012. (kawlc1, COURT STAFF) (Filed on 9/17/2012) (Entered: 09/17/2012)
92 RESPONSE (re 83 MOTION for Protective Order ) filed byEsmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Attachments: # 1 Proposed Order)(Moreno, Catherine) (Filed on 9/21/2012) (Entered: 09/21/2012)
93 Declaration of Catherine E. Moreno in Support of 92 Opposition/Response to Motion filed byEsmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(Related document(s) 92 ) (Moreno, Catherine) (Filed on 9/21/2012) (Entered: 09/21/2012)
94 STIPULATION WITH PROPOSED ORDER to Continue Case Management Conference filed by Esmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Moreno, Catherine) (Filed on 9/27/2012) (Entered: 09/27/2012)
95 CLERKS NOTICE Further Case Management Conference set for 11/8/2012 10:00 AM in Courtroom 3, 17th Floor, San Francisco. (rslc3, COURT STAFF) (Filed on 9/27/2012) (Entered: 09/27/2012)
96 REPLY (re 83 MOTION for Protective Order ) filed byTimothy Aitken, Executive Office for Immigration Review, Eric H. Holder, Jr, John T. Morton, Janet Napolitano, Juan P. Osuna, United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Reuveni, Erez) (Filed on 9/28/2012) (Entered: 09/28/2012)
97 STIPULATION WITH PROPOSED ORDER re Settlement Conference filed by Timothy Aitken, Executive Office for Immigration Review, Eric H. Holder, Jr, John T. Morton, Janet Napolitano, Juan P. Osuna, United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Go, Samuel) (Filed on 10/2/2012) (Entered: 10/02/2012)
98 STIPULATION AND ORDER RE SETTLEMENT CONFERENCE by Magistrate Judge Laurel Beeler: granting 97 Stipulation. Settlement Conference set for November 28, 2012 at 10:30 a.m. (ls, COURT STAFF) (Filed on 10/3/2012) (Entered: 10/03/2012)
Set/Reset Hearing: Settlement Conference set for 11/28/2012 at 10:30 AM in Courtroom C, 15th Floor, San Francisco. (ls, COURT STAFF) (Filed on 10/3/2012) (Entered: 10/03/2012)
99 Joint Discovery Letter BriefConcerning Discovery Disputes filed by Uelian De Abadia−Peixoto. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Moreno, Catherine) (Filed on 10/22/2012) (Entered: 10/22/2012)
100 NOTICE of Appearance by Savith S Iyengar Notice of Appearance of Angie Young Kim as Counsel for Plaintiffs (Iyengar, Savith) (Filed on 10/25/2012) (Entered: 10/25/2012)
CLERKS NOTICE − Motion hearing will be held in Courtroom 5 on the 2nd Floor.

(This is a text only docket entry, there is no document associated with this notice.)

11/01/2012

(sisS, COURT STAFF) (Filed on 10/31/2012) (Entered: 10/31/2012)
101 STIPULATION WITH PROPOSED ORDER (Amended) for Standard Litigation filed by Timothy Aitken, Executive Office for Immigration Review, Eric H. Holder, Jr, John T. Morton, Janet Napolitano, Juan P. Osuna, United States Department of

Case: 3:11-cv-4001 As of: 11/11/2017 03:23 PM PST 19 of 29

11/01/2012
11/02/2012 11/02/2012
11/05/2012 11/08/2012 11/08/2012
11/09/2012 11/13/2012 11/16/2012 11/19/2012 11/25/2012
11/28/2012 11/30/2012 12/12/2012

Homeland Security, United States Immigration and Customs Enforcement. (Attachments: # 1 Exhibit A)(Go, Samuel) (Filed on 11/1/2012) (Entered: 11/01/2012)
102 Minute Entry: Arguments heard. Matter submitted. Court to issue order. Parties are to meet and confer and report to the court, in a joint letter by 11/19/12.Motion Hearing held on 11/1/2012 before Kandis A. Westmore (Date Filed: 11/1/2012) re 83 MOTION for Protective Order filed by Juan P. Osuna, Eric H. Holder, Jr., Janet Napolitano, United States Immigration and Customs Enforcement, Timothy Aitken, John T. Morton, Executive Office for Immigration Review, United States Department of Homeland Security. (Court Reporter Raynee Mercado.) (sisS, COURT STAFF) (Date Filed: 11/1/2012) (Entered: 11/01/2012)
103 Order by Magistrate Judge Kandis A. Westmore granting 101 Stipulated Amended Protective Order.(kawlc1, COURT STAFF) (Filed on 11/2/2012) (Entered: 11/02/2012)
104 JOINT CASE MANAGEMENT STATEMENT filed by Timothy Aitken, Executive Office for Immigration Review, Eric H. Holder, Jr, John T. Morton, Janet Napolitano, Juan P. Osuna, United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Go, Samuel) (Filed on 11/2/2012) (Entered: 11/02/2012)
105 CLERKS NOTICE Parties will appear telephonically at their Case Management Conference scheduled for 11:00 a.m. on Thursday, November 8, 2012. (rslc3, COURT STAFF) (Filed on 11/5/2012) (Entered: 11/05/2012)
106 Minute Entry: Further Case Management Conference held on 11/8/2012 before Judge Richard Seeborg (Date Filed: 11/8/2012). (Court Reporter Not Reported.) (cl, COURT STAFF) (Date Filed: 11/8/2012) (Entered: 11/08/2012)
107 CASE MANAGEMENT SCHEDULING ORDER. Further Case Management Conference set for 5/16/2013 10:00 AM; Motion Hearing set for 8/8/2013 01:30 PM; Pretrial Conference set for 11/7/2013 10:00 AM; Jury Selection set for 11/18/2013 09:00 AM; Jury Trial set for 11/18/2013 09:00 AM in Courtroom 3, 17th Floor, San Francisco before Hon. Richard Seeborg. Signed by Judge Richard Seeborg on 11/8/12. (cl, COURT STAFF) (Filed on 11/8/2012) (Entered: 11/08/2012)
108 NOTICE of Substitution of Counsel by Christopher W Hollis Defendants' Notice of Substitution of Counsel (Hollis, Christopher) (Filed on 11/9/2012) (Entered: 11/09/2012)
109 Order by Magistrate Judge Kandis A. Westmore denying 83 Motion for Protective Order.(kawlc1, COURT STAFF) (Filed on 11/13/2012) (Entered: 11/13/2012)
110 ORDER re 99 Joint Discovery Letter BriefConcerning Discovery Disputes filed by Uelian De Abadia−Peixoto. Signed by Judge Kandis A. Westmore on 11/16/2012. (kawlc1, COURT STAFF) (Filed on 11/16/2012) (Entered: 11/16/2012)
111 Discovery Letter Brief filed by Esmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Moreno, Catherine) (Filed on 11/19/2012) (Entered: 11/19/2012)
112 ORDER RE SETTLEMENT CONFERENCE SET FOR 11/28/12: if there is any additional information that either party would like to submit, either in a shared communication or confidentially, they may (but are not required to) do so by email to the courts orders box at lbpo@cand.uscourts.gov by November 27, 2012, at 1:30 p.m. (Beeler, Laurel) (Filed on 11/25/2012) (Entered: 11/25/2012)
113 Minute Entry: Settlement Conference held. (Date Filed: 11/28/2012 (ls, COURT STAFF) (Date Filed: 11/28/2012) (Entered: 11/29/2012)
114 ORDER re 111 Joint Discovery Status Letter Brief filed by Uelian De Abadia−Peixoto, Esmar Cifuentes, Mi Lian Wei, Pedro Nolasco Jose. Signed by Judge Kandis A. Westmore on 11/30/2012. (kawlc1, COURT STAFF) (Filed on 11/30/2012) (Entered: 11/30/2012)
CLERKS NOTICE: The parties appeared for a Settlement Conference on November 28, 2012. The court sets a Further Settlement Conference for February 25, 2013 at 9:30

Case: 3:11-cv-4001 As of: 11/11/2017 03:23 PM PST 20 of 29

12/17/2012
01/07/2013 01/17/2013
01/22/2013 01/24/2013 01/25/2013 01/25/2013 01/29/2013 02/01/2013 02/07/2013 02/08/2013

a.m. in Courtroom C, 15th Floor, 450 Golden Gate Avenue, San Francisco, CA. The parties are directed to file Updated Settlement Conference Statements on February 15, 2013 in compliance with the court's procedures set forth in the court's Settlement Conference Order dated March 26, 2012 and filed at ECF No. 67. The parties need not repeat their earlier settlement conference statements in any updated statement and instead should add new information only. (This is a docket text entry only. There is no document associated with this entry.) (ls, COURT STAFF) (Filed on 12/12/2012) (Entered: 12/12/2012)
115 STIPULATION WITH PROPOSED ORDER re 110 Order Joint Stipulation and Proposed Order to Extend Certain Discovery Deadlines filed by Timothy Aitken, Executive Office for Immigration Review, Eric H. Holder, Jr, John T. Morton, Janet Napolitano, Juan P. Osuna, United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Hollis, Christopher) (Filed on 12/17/2012) (Entered: 12/17/2012)
116 Discovery Order RE: Defendants' In Camera Document Review. Signed by Judge Kandis A. Westmore on 1/7/2013. (kawlc1, COURT STAFF) (Filed on 1/7/2013) (Entered: 01/07/2013)
117 STIPULATION WITH PROPOSED ORDER Second Stipulated Amended Protective Order for Standard Litigation filed by Timothy Aitken, Executive Office for Immigration Review, Eric H. Holder, Jr, John T. Morton, Janet Napolitano, Juan P. Osuna, United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Attachments: # 1 Exhibit Ex. A −− Acknowledgment and Agreement to be Bound)(Hollis, Christopher) (Filed on 1/17/2013) (Entered: 01/17/2013)
118 STIPULATION WITH PROPOSED ORDER Joint Stipulation and [Proposed] Order to Extend Discovery Deadlines filed by Esmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Moreno, Catherine) (Filed on 1/22/2013) (Entered: 01/22/2013)
119 STIPULATION AND ORDER TO EXTEND DISCOVERY DEADLINES. Further Case Management Conference set for 7/18/2013 10:00 AM in Courtroom 3, 17th Floor, San Francisco.Signed by Judge Richard Seeborg on 1/24/13. (cl, COURT STAFF) (Filed on 1/24/2013) (Entered: 01/24/2013)
120 NOTICE of Appearance by Angie Young Kim Notice of Appearance of Jingni (Jenny) Zhao as Counsel for Plaintiffs (Kim, Angie) (Filed on 1/25/2013) (Entered: 01/25/2013)
121 NOTICE of Appearance by Angie Young Kim Notice of Appearance of Briza Sanchez as Counsel for Plaintiffs (Kim, Angie) (Filed on 1/25/2013) (Entered: 01/25/2013)
CLERKS NOTICE SETTING AN ON−SITE VISIT RE Settlement Conference for 2/20/2013 at 9:30 A.M. before Magistrate Judge Laurel Beeler. (This is a docket text entry only. There is no document associated with this entry.) (ls, COURT STAFF) (Filed on 1/29/2013) (Entered: 01/29/2013)
122 Second Discovery Order RE In Camera Review. Signed by Judge Kandis A. Westmore on 2/1/2013. (kawlc1, COURT STAFF) (Filed on 2/1/2013) (Entered: 02/01/2013)
123 Order by Magistrate Judge Kandis A. Westmore granting 117 Second Stipulated Amended Protective Order.(kawlc1, COURT STAFF) (Filed on 2/7/2013) (Entered: 02/07/2013)
124 RESPONSE to re 122 Discovery Order Defendants' Response to the Court's 2/1/13 Order by Timothy Aitken, Executive Office for Immigration Review, Eric H. Holder, Jr, John T. Morton, Janet Napolitano, Juan P. Osuna, United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Attachments: # 1 Declaration Declaration of Andrew Lorenzen−Strait, # 2 Exhibit Ex. A −− ICE initial finalized guidance governing use of restraints on asylum seekers, # 3 Exhibit Ex. B −− ERO Taskings email dated Aug. 19, 2011, 2:39 pm)(Hollis, Christopher) (Filed on 2/8/2013) (Entered: 02/08/2013)

Case: 3:11-cv-4001 As of: 11/11/2017 03:23 PM PST 21 of 29

02/11/2013 02/20/2013 02/25/2013 02/25/2013 02/27/2013 03/06/2013 03/11/2013 03/15/2013 03/27/2013 04/02/2013
04/09/2013 04/23/2013
04/23/2013 04/24/2013

CLERKS NOTICE SETTING A TELEPHONIC SETTLEMENT CONFERENCE WITH DEFENDANT'S COUNSEL ONLY. Settlement Conference set for 2/19/2013 at 10:00 AM. Counsel to provide the court with a dial−in phone number. (This is a docket text entry only. There is no document associated with this entry.) (ls, COURT STAFF) (Filed on 2/11/2013) (Entered: 02/11/2013)
125 Minute Entry: Further Settlement Conference held. Further Settlement Conference set for 2/25/2013 at 9:30 a.m. (Date Filed: 2/20/2013) (ls, COURT STAFF) (Date Filed: 2/20/2013) (Entered: 02/20/2013)
126 Order Directing Production of Information and Setting Settlement Conference before Magistrate Judge. Telephonic Settlement Conference set for 3/6/2013 (govt to circulate call−in). Settlement Conference set for 3/11/2013 09:30 AM in Courtroom C, 15th Floor, San Francisco.. Signed by Judge Beeler on 2/25/13. (Beeler, Laurel) (Filed on 2/25/2013) (Entered: 02/25/2013)
127 Minute Entry: Further Settlement Conference held. (Date Filed: 2/25/2013)(ls, COURT STAFF) (Date Filed: 2/25/2013) (Entered: 02/26/2013)
128 THIRD ORDER RE IN CAMERA REVIEW re 124 Response ( Non Motion ), filed by the United States. The Government must respond by March 6, 2013. Signed by Judge Kandis A. Westmore on 2/27/2013. (kawlc1, COURT STAFF) (Filed on 2/27/2013) (Entered: 02/27/2013)
129 Minute Entry: Further Telephonic Settlement Conference held (Date Filed: 3/6/2013). (ls, COURT STAFF) (Date Filed: 3/6/2013) (Entered: 03/07/2013)
130 Minute Entry: Further Settlement Conference held. (Date Filed: 3/11/2013) Further Telephonic Settlement Conference set for 3/18/2013 at 3:00 P.M. before Magistrate Judge Laurel Beeler. (ls, COURT STAFF) (Date Filed: 3/11/2013) (Entered: 03/12/2013)
131 Minute Entry: Further Telephonic Settlement Conference held (Date Filed: 3/15/2013). (lsS, COURT STAFF) (Date Filed: 3/15/2013) (Entered: 03/18/2013)
132 FOURTH ORDER RE: IN CAMERA REVIEW. Signed by Judge Kandis A. Westmore on 3/27/2013. (kawlc1, COURT STAFF) (Filed on 3/27/2013) (Entered: 03/27/2013)
133 MOTION for Leave to File Motion for Reconsideration of the Court's March 27, 2013 Discovery Order filed by Timothy Aitken, Executive Office for Immigration Review, Eric H. Holder, Jr, John T. Morton, Janet Napolitano, Juan P. Osuna, United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Attachments: # 1 Proposed Order, # 2 Exhibit Motion for Reconsideration of Court's March 27, 2013 Discovery Order, # 3 Exhibit Proposed Order Granting Motion for Reconsideration of Court's March 27, 2013 Discovery Order)(Reuveni, Erez) (Filed on 4/2/2013) (Entered: 04/02/2013)
134 Order by Magistrate Judge Kandis A. Westmore granting in part and denying in part 133 Motion for Leave to File Motion for Reconsideration of the Court's March 27, 2013 Order.(kawlc1, COURT STAFF) (Filed on 4/9/2013) (Entered: 04/09/2013)
135 MOTION relief from a nondispositive order of the magistrate judge re 134 Order on Motion for Leave to File filed by Timothy Aitken, Executive Office for Immigration Review, Eric H. Holder, Jr, John T. Morton, Janet Napolitano, Juan P. Osuna, United States Department of Homeland Security, United States Immigration and Customs Enforcement. Motion Hearing set for 5/30/2013 01:30 PM in Courtroom 3, 17th Floor, San Francisco before Hon. Richard Seeborg. Responses due by 5/7/2013. Replies due by 5/14/2013. (Attachments: # 1 Proposed Order, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Reuveni, Erez) (Filed on 4/23/2013) (Entered: 04/23/2013)
136 ORDER SETTING BRIEFING SCHEDULE FOR OBJECTION TO MAGISTRATE JUDGE'S ORDER. Signed by Judge Richard Seeborg on 4/23/13. (cl, COURT STAFF) (Filed on 4/23/2013) (Entered: 04/23/2013)
137 *** FILED IN ERROR. PLEASE SEE DOCKET # 138 . *** Joint Discovery Letter BriefLetter Concerning Discovery Disputes filed by Esmar

Case: 3:11-cv-4001 As of: 11/11/2017 03:23 PM PST 22 of 29

04/24/2013 04/24/2013 04/25/2013
04/29/2013 05/07/2013 05/07/2013 05/08/2013

Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. See Order, docket #151, granting removal of this efiled document. (Attachments: # 1 Exhibit A, *** # 2 Exhibit B FILED IN ERROR. DOCUMENT LOCKED. *** , # 3 Exhibit C)(Moreno, Catherine) (Filed on 4/24/2013) Modified on 4/25/2013 (ewn, COURT STAFF). Modified on 6/17/2013 (cjl, COURT STAFF). (Entered: 04/24/2013)
138 Joint Discovery Letter BriefLetter Concerning Discovery Disputes CORRECTION OF DOCKET # 137 filed by Esmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Moreno, Catherine) (Filed on 4/24/2013) (Entered: 04/24/2013)
139 MOTION to Remove Incorrectly Filed Document Docket Number 137 filed by Esmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Attachments: # 1 Proposed Order)(Moreno, Catherine) (Filed on 4/24/2013) (Entered: 04/24/2013)
140 MOTION leave to file declarations in support of Defendants' position in the April 24, 2013 Joint Letter re 138 Joint Discovery Letter BriefLetter Concerning Discovery Disputes CORRECTION OF DOCKET # 137 filed by Timothy Aitken, Executive Office for Immigration Review, Eric H. Holder, Jr, John T. Morton, Janet Napolitano, Juan P. Osuna, United States Department of Homeland Security, United States Immigration and Customs Enforcement. Motion Hearing set for 5/16/2013 11:00 AM in Courtroom 4, 3rd Floor, Oakland before Magistrate Judge Kandis A. Westmore. Responses due by 5/9/2013. Replies due by 5/16/2013. (Attachments: # 1 Proposed Order, # 2 Exhibit Ex. A, # 3 Exhibit Ex. B, # 4 Exhibit Ex. C)(Reuveni, Erez) (Filed on 4/25/2013) (Entered: 04/25/2013)
141 RESPONSE (re 140 MOTION leave to file declarations in support of Defendants' position in the April 24, 2013 Joint Letter re 138 Joint Discovery Letter BriefLetter Concerning Discovery Disputes CORRECTION OF DOCKET # 137 ) Plaintiffs' Opposition to Defendants' Administrative Motion for Order Granting Leave to File Declarations filed byEsmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Attachments: # 1 Proposed Order, # 2 Declaration, # 3 Exhibit A to Declaration)(Kim, Angie) (Filed on 4/29/2013) (Entered: 04/29/2013)
142 RESPONSE (re 135 MOTION relief from a nondispositive order of the magistrate judge re 134 Order on Motion for Leave to File ) Plaintiffs' Opposition to Defendants' Motion for Relief From NonDispositive Order of Magistrate Judge filed byEsmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Moreno, Catherine) (Filed on 5/7/2013) (Entered: 05/07/2013)
143 Declaration of Catherine Moreno in Support of 142 Opposition/Response to Motion, Plaintiffs' Opposition to Defendants' Motion for Relief From NonDispositive Order of Magistrate Judge filed byEsmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C)(Related document(s) 142 ) (Moreno, Catherine) (Filed on 5/7/2013) (Entered: 05/07/2013)
CLERKS NOTICE − The motion hearing scheduled for 5/16/13 (Doc. #140) is hereby vacated. The court deems the matter suitable for decision on the papers, pursuant to Civil L.R. 7−1(b).

(This is a text only docket entry, there is no document associated with this notice.)

05/14/2013 05/14/2013

(sisS, COURT STAFF) (Filed on 5/8/2013) (Entered: 05/08/2013)
144 STIPULATION WITH PROPOSED ORDER Joint Stipulation and [Proposed] Order to Modify Case Schedule filed by Esmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Moreno, Catherine) (Filed on 5/14/2013) (Entered: 05/14/2013)
145 JOINT STIPULATION AND ORDER RE 144 TO MODIFY CASE SCHEDULE. Further Case Management Conference set for 11/14/2013 10:00 AM; Pretrial Conference set for 7/17/2014 10:00 AM; Jury Selection set for 7/28/2014 09:00 AM; Jury Trial set for 7/28/2014 09:00 AM in Courtroom 3, 17th Floor, San Francisco before Hon. Richard Seeborg. Signed by Judge Richard Seeborg on 5/14/13. (cl, COURT STAFF) (Filed on 5/14/2013) (Entered: 05/14/2013)

Case: 3:11-cv-4001 As of: 11/11/2017 03:23 PM PST 23 of 29

05/15/2013 06/06/2013 06/11/2013
06/11/2013 06/11/2013
06/12/2013 06/17/2013 06/18/2013
06/25/2013 06/25/2013 06/25/2013 06/25/2013 06/28/2013 07/12/2013 07/16/2013

Motion Hearing on 5/30/13 submitted without oral argument pursuant to Order #136. (cl, COURT STAFF) (Filed on 5/15/2013) (Entered: 05/15/2013)
146 STIPULATION WITH PROPOSED ORDER JOINT STIPULATION AND [PROPOSED] ORDER SETTING FURTHER SETTLEMENT CONFERENCE filed by Esmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Moreno, Catherine) (Filed on 6/6/2013) (Entered: 06/06/2013)
147 STIPULTION AND ORDER SETTING FURTHER SETTLEMENT CONFERENCE by Magistrate Judge Laurel Beeler: Granting 146 Stipulation. Settlement Conference set for June 19, 2013 at 10:30 a.m. Updated Settlement Conference Statements should be emailed (lbpo@cand.uscourts.gov) with only new information by 6/17/2013 at Noon. (ls, COURT STAFF) (Filed on 6/11/2013) (Entered: 06/11/2013)
Set/Reset Hearing: Settlement Conference set for 6/19/2013 at 10:30 AM in Courtroom C, 15th Floor, San Francisco. (ls, COURT STAFF) (Filed on 6/11/2013) (Entered: 06/11/2013)
CLERKS NOTICE: The court would like a short pre−conference telephone call, for June 12, 2013 at 10:30 a.m. and asks counsel to confer, confirm with the courtroom deputy, Lashanda Scott at 415−522−3140, and circulate a call−in number. Counsel to provide Lashanda Scott with the dial−in phone number. (This is a docket text entry only. There is no document associated with this entry.) (ls, COURT STAFF) (Filed on 6/11/2013) (Entered: 06/11/2013)
150 AMENDED ORDER DENYING Defendants' 140 MOTION for Leave to File Declarations in support of Defendants' position in the April 24, 2013 Joint Letter. Signed by Judge Kandis A. Westmore on 6/12/2013. (kawlc1, COURT STAFF) (Filed on 6/12/2013) (Entered: 06/12/2013)
151 Order by Magistrate Judge Kandis A. Westmore granting 139 Motion to Remove Incorrectly Filed Document.(kawlc1, COURT STAFF) (Filed on 6/17/2013) (Entered: 06/17/2013)
CLERKS NOTICE VACATING SETTLEMENT CONFERENCE on June 19, 2013 at 10:30 a.m. before Magistrate Judge Laurel Beeler Settlement Conference set for 6/28/2013 at 10:30 AM in Courtroom C, 15th Floor, San Francisco. Counsel to provide the court with an update on June 21, 2013 to the court's orders box: lbpo@cand.uscourts.gov. (This is a docket text entry only. There is no document associated with this entry.) (ls, COURT STAFF) (Filed on 6/18/2013) (Entered: 06/18/2013)
152 ORDER REGARDING SETTLEMENT CONFERENCE. Signed by Magistrate Judge Laurel Beeler on 6/25/2013. (ls, COURT STAFF) (Filed on 6/25/2013) (Entered: 06/25/2013)
153 Joint Discovery Letter BriefConcerning Discovery Disputes Regarding Court's November 2012 Orders filed by Esmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Moreno, Catherine) (Filed on 6/25/2013) (Entered: 06/25/2013)
154 ORDER for update before 6/28 settlement conference (Beeler, Laurel) (Filed on 6/25/2013) (Entered: 06/25/2013)
155 Minute Entry: Further Telephonic Settlement Conference held (Date Filed: 6/25/2013). (lsS, COURT STAFF) (Date Filed: 6/25/2013) (Entered: 06/26/2013)
156 Minute Entry: Further Settlement Conference (Date Filed: 6/28/2013). Further Telephonic Settlement Conference set for 7/16/2013 at 11:00 A.M. Counsel to phone in directly to chambers with everyone on one line. (lsS, COURT STAFF) (Date Filed: 6/28/2013) (Entered: 07/01/2013)
157 Order by Magistrate Judge Kandis A. Westmore regarding 138 Discovery Letter Brief.(kawlc1, COURT STAFF) (Filed on 7/12/2013) (Entered: 07/12/2013)
158 CLERKS NOTICE VACATING SETTLEMENT CONFERENCE ON July 16, 2013 at 11:00 a.m. before Magistrate Judge Laurel Beeler. A Further Telephonic Settlement Conference set for 7/18/2013 at 12:00 P.M. Counsel to provide the court with a dial−in

Case: 3:11-cv-4001 As of: 11/11/2017 03:23 PM PST 24 of 29

07/16/2013 07/19/2013
07/19/2013 07/19/2013 07/19/2013 07/24/2013 07/26/2013

phone number and an attendance list of participants. Counsel to send the information to the court's orders box: lbpo@cand.uscourts.gov by 7/17/2013. (This is a docket text entry only. There is no document associated with this entry.) (lsS, COURT STAFF) (Filed on 7/16/2013) (Entered: 07/16/2013)
Set/Reset Hearing: Telephonic Settlement Conference set for 7/18/2013 at 12:00 P.M. (lsS, COURT STAFF) (Filed on 7/16/2013) (Entered: 07/16/2013)
159 CLERKS NOTICE VACATING TELEPHONIC SETTLEMENT CONFERENCE on July 18, 2013 at 12:00 p.m. before Magistrate Judge Laurel Beeler. Telephonic Settlement Conference with defendant's counsel only set for 7/19/2013 at 11:30 AM. pacific time. Counsel to initiate the conference call and dial−in to chambers with all the parties on the line. (This is a docket text entry only. There is no document associated with this entry.) (ls, COURT STAFF) (Filed on 7/19/2013) (Entered: 07/19/2013)
Set/Reset Hearing: Telephonic Settlement Conference set for 7/19/2013 at 11:30 A.M. (ls, COURT STAFF) (Filed on 7/19/2013) (Entered: 07/19/2013)
160 Minute Entry: Further Telephonic Settlement Conference held (Date Filed: 7/19/2013). Further telephonic settlement conference with Defendants only to be held on Wednesday, July 24, 2013 at 11:30 a.m. (ls, COURT STAFF) (Date Filed: 7/19/2013) (Entered: 07/19/2013)
Set/Reset Hearing Re 160 Settlement Conference Settlement Conference set for 7/24/2013 11:30 A.M. (ls, COURT STAFF) (Filed on 7/19/2013) (Entered: 07/19/2013)
161 Minute Entry: Telephonic Settlement Conference held (Date Filed: 7/24/2013). (ls, COURT STAFF) (Date Filed: 7/24/2013) (Entered: 07/24/2013)
162 CLERKS NOTICE −Notice is hereby given that the hearing on the Joint Letter (Doc. 153) will be held on August 15, 2013 at 11:00 am.

(This is a text only docket entry, there is no document associated with this notice.)

07/31/2013 08/07/2013
08/09/2013

Set/Reset Deadlines as to 153 Joint Discovery Letter BriefConcerning Discovery Disputes Regarding Court's November 2012 Orders. Discovery Dispute Hearing set for 8/15/2013 11:00 AM before Magistrate Judge Kandis A. Westmore. (sisS, COURT STAFF) (Filed on 7/26/2013) (Entered: 07/26/2013)
Motion Hearing previously set for 8/1/13 (#107) vacated. (cl, COURT STAFF) (Filed on 7/31/2013) (Entered: 07/31/2013)
163 Minute Entry: Further Settlement Conference held (Date Filed: 8/7/2013). Plaintiffs to circulate response hopefully by the end the week and cc the court at lbpo@cand.ucourts.gov. The government thereafter should update the court by email about its response. (ls, COURT STAFF) (Date Filed: 8/7/2013) (Entered: 08/08/2013)
164 CLERKS NOTICE − Discovery Dispute hearing will be held in Courtroom 4 on the 3rd floor.

(This is a text only docket entry, there is no document associated with this notice.)

08/09/2013 08/15/2013 08/23/2013

(sisS, COURT STAFF) (Filed on 8/9/2013) (Entered: 08/09/2013)
165 Joint Discovery Letter Brief to Magistrate Judge Kandis A. Westmore filed by Esmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Moreno, Catherine) (Filed on 8/9/2013) (Entered: 08/09/2013)
166 Minute Entry: Arguments heard. Matter submitted. Court to issue order.Discovery Hearing held on 8/15/2013 before Kandis A. Westmore (Date Filed: 8/15/2013). (Court Reporter N/A.) (sisS, COURT STAFF) (Date Filed: 8/15/2013) (Entered: 08/15/2013)
167 Order by Magistrate Judge Kandis A. Westmore regarding 153 6/25/13 Joint Discovery Letter Brief.(kawlc1, COURT STAFF) (Filed on 8/23/2013) (Entered: 08/23/2013)

Case: 3:11-cv-4001 As of: 11/11/2017 03:23 PM PST 25 of 29

09/05/2013 09/06/2013
09/10/2013
09/10/2013 09/16/2013 09/16/2013 09/19/2013 09/23/2013
09/25/2013 09/26/2013

168 TRANSCRIPT ORDER by Uelian De Abadia−Peixoto for Court Reporter Raynee Mercado. (Iyengar, Savith) (Filed on 9/5/2013) (Entered: 09/05/2013)
169 MOTION for Relief from Nondispositive Pretrial Order of Magistrate Judge re 167 Order on Discovery Letter Brief filed by Timothy Aitken, Executive Office for Immigration Review, Eric H. Holder, Jr, John T. Morton, Janet Napolitano, Juan P. Osuna, United States Department of Homeland Security, United States Immigration and Customs Enforcement. Motion Hearing set for 10/10/2013 01:30 PM in Courtroom 3, 17th Floor, San Francisco before Hon. Richard Seeborg. Responses due by 9/20/2013. Replies due by 9/27/2013. (Attachments: # 1 Exhibit Ex. A −− Rosenblum Declaration, # 2 Proposed Order)(Hollis, Christopher) (Filed on 9/6/2013) (Entered: 09/06/2013)
170 Transcript of Proceedings held on November 1, 2012, before Judge Kandice A. Westmore, Magistrate. Court Reporter Raynee H. Mercado, CSR, Telephone number 510−451−7530, cacsr8258@gmail.com, raynee_mercado@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 12/9/2013. (Related documents(s) 168 ) (rhm) (Filed on 9/10/2013) (Entered: 09/10/2013)
171 TRANSCRIPT ORDER by Timothy Aitken, Executive Office for Immigration Review, Eric H. Holder, Jr, John T. Morton, Janet Napolitano, Juan P. Osuna, United States Department of Homeland Security, United States Immigration and Customs Enforcement for Court Reporter Raynee Mercado. (Hollis, Christopher) (Filed on 9/10/2013) (Entered: 09/10/2013)
172 CLERKS NOTICE SETTING Further Telephonic Settlement Conference with Plaintiff's Counsel Only for 9/24/2013 at 3:00 P.M. Counsel to provide the courtroom deputy, Lashanda Scott with a dial−in phone number and attendance list by 9/23/2013. (This is a docket text entry only. There is no document associated with this entry.) (ls, COURT STAFF) (Filed on 9/16/2013) (Entered: 09/16/2013)
173 CLERKS NOTICE SETTING FURTHER Settlement Conference with all counsel and parties for 10/2/2013 at 9:30 AM in Courtroom C, 15th Floor, San Francisco. Counsel to provide the court with any updated settlement statements by 9/27/2013 at Noon to the court's orders box: lbpo@cand.uscourts.gov. (This is a docket text entry only. There is no document associated with this entry.) (ls, COURT STAFF) (Filed on 9/16/2013) (Entered: 09/16/2013)
174 STIPULATION WITH PROPOSED ORDER re 169 MOTION for Relief from Nondispositive Pretrial Order of Magistrate Judge re 167 Order on Discovery Letter Brief filed by Esmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Kim, Angie) (Filed on 9/19/2013) (Entered: 09/19/2013)
175 Transcript of Proceedings held on August 15, 2013, before Judge Kandis A. Westmore. Transcriber Diane E. Skillman, Telephone number 510−451−2930, Diane_Skillman@cand.uscourts.gov, diane.transcripts@aol.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 12/23/2013. (Skillman, Diane) (Filed on 9/23/2013) (Entered: 09/23/2013)
176 Minute Entry: Telephonic Settlement Conference held (Date Filed: 9/25/2013). (ls, COURT STAFF) (Date Filed: 9/25/2013) (Entered: 09/25/2013)
177 CLERKS NOTICE: The parties should submit their latest red−lined version no later than 12 noon on Tuesday, October 1, 2013. At the same time, they should submit a joint letter of up to five pages with all remaining issues with their positions as to each issue. The letter should allow side−by−side review of each issue in a format such as sequential paragraphs (as opposed to separate lists). They may submit separate letters of up to three pages with any confidential information. All must be emailed by October

Case: 3:11-cv-4001 As of: 11/11/2017 03:23 PM PST 26 of 29

09/30/2013
09/30/2013 10/01/2013 10/04/2013 10/14/2013 10/15/2013 10/15/2013 10/21/2013
10/22/2013

1 at noon to the court's orders box at lbpo@cand.uscourts.gov. (This is a docket text entry only. There is no document associated with this entry.) (ls, COURT STAFF) (Filed on 9/26/2013) (Entered: 09/26/2013)
178 ORDER VACATING SETTLEMENT CONFERENCE AND SETTING TELEPHONIC CONFERENCE. Given recent developments, the court VACATES the settlement conference scheduled for Wednesday, October 2, 2013, ORDERS the government to provide an updated proposal by Monday, October 14, 2013, and SETS a follow−up telephone call for Tuesday, October 15, 2013 at 12:00 p.m. The parties shall meet and confer about extending the discovery deadline and shall provide each other and the court will a call−in number. If the federal government shuts down, the court will adjust dates accordingly. Signed by Magistrate Judge Laurel Beeler on 9/30/2013. (lblc2, COURT STAFF) (Filed on 9/30/2013) (Entered: 09/30/2013)
179 ORDER REGARDING SETTLEMENT DEADLINES. It has come to the court's attention that Monday, October 14, 2013 is a federal holiday. Therefore, the deadline for the government to provide an updated proposal is Tuesday, October 15, 2013 (not Monday, October 14, 2013, as previously ordered in ECF No. 178 ). Signed by Magistrate Judge Laurel Beeler on 9/30/2013. (lblc2, COURT STAFF) (Filed on 9/30/2013) (Entered: 09/30/2013)
Set/Reset Hearing: Telephonic Settlement Conference set for 10/15/2013 at 12:00 P.M. (ls, COURT STAFF) (Filed on 10/1/2013) (Entered: 10/01/2013)
180 JOINT STIPULATION AND ORDER RE DEFENDANT'S MOTION. Motion Hearing set for 11/7/2013 01:30 PM in Courtroom 3, 17th Floor, San Francisco before Hon. Richard Seeborg. Signed by Judge Richard Seeborg on 10/4/13. (cl, COURT STAFF) (Filed on 10/4/2013) (Entered: 10/04/2013)
181 STIPULATION WITH PROPOSED ORDER REGARDING DISCOVERY DEADLINES AND DEFENDANTS' MOTION FOR RELIEF filed by Esmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Iyengar, Savith) (Filed on 10/14/2013) (Entered: 10/14/2013)
182 CLERKS NOTICE VACATING SETTLEMENT CONFERENCE on October 15, 2013 at 12:00 p.m. due to government furlough. The Telephonic Settlement Conference is reset to 10/23/2013 at 10:00 A.M. before Magistrate Judge Laurel Beeler. Counsel to provide a dial−in phone number and attendance list by 10/22/2013. (This is a docket text entry only. There is no document associated with this entry.) (ls, COURT STAFF) (Filed on 10/15/2013) (Entered: 10/15/2013)
183 STIPULATION AND ORDER REGARDING DISCOVERY DEADLINES AND DEFENDANTS' MOTION FOR RELIEF. Signed by Judge Richard Seeborg on 10/15/13. (cl, COURT STAFF) (Filed on 10/15/2013) (Entered: 10/15/2013)
184 CLERKS NOTICE: The court set a telephone settlement conference call for Wednesday, October 23, 2013, at 10 a.m. to keep track of the case while government counsel were furloughed. Now that the government is back in business, the court extends the deadline for the government to provide its revised proposal to Plaintiffs by the precise number of days of the agency's furlough. The deadline previously was October 15, 2013. The government must file a one−page statement with that deadline as soon as possibly, preferably by close of business on Monday, October 21, 2013, and in any event no later than Tuesday, October 22, 2013 at noon. That afternoon, the parties should confer about their availability after the proposal is circulated for a telephone conference call. The time of that call should allow Plaintiffs enough time to digest the proposal. The parties shall by 10:00 a.m. on Wednesday, October 23, 2013 confer with courtroom deputy Lashanda Scott to set a further telephone call with the undersigned. The court leaves the 10:00 a.m. call on calendar, but it now will be a scheduling call with Ms. Scott. (This is a docket text entry only. There is no document associated with this entry.) (ls, COURT STAFF) (Filed on 10/21/2013) (Entered: 10/21/2013)
185 CLERKS NOTICE RESETTING TELEPHONIC SETTLEMENT: Telephonic Settlement Conference set for 10/30/2013 at 1:30 P.M. Counsel to provide the court with a dial−in phone number and attendance list by 10/29/2013. (This is a docket text entry only. There is no document associated with this entry.) (lsS, COURT STAFF)

Case: 3:11-cv-4001 As of: 11/11/2017 03:23 PM PST 27 of 29

10/23/2013 10/30/2013
11/04/2013
11/05/2013 11/05/2013
11/06/2013 11/06/2013 11/07/2013 11/12/2013 11/13/2013
11/15/2013 11/18/2013 11/19/2013

(Filed on 10/22/2013) (Entered: 10/22/2013)
Motion Hearing on 11/7/13 Vacated re 183 Stipulation and Order. (cl, COURT STAFF) (Filed on 10/23/2013) (Entered: 10/23/2013)
186 CLERKS NOTICE VACATING TELEPHONIC SETTLEMENT CONFERENCE on October 30, 2013 at 1:30 p.m. before Magistrate Judge Laurel Beeler. Further Telephonic Settlement Conference set for 11/5/2013 at 11:00 A. M. Counsel to submit update by email (joint to the extent possible) about all outstanding issues, by Monday, November 4, 2013 at noon. Counsel to provide the court with a dial−in phone number and attendance list by November 4, 2013. (This is a docket text entry only. There is no document associated with this entry.) (ls, COURT STAFF) (Filed on 10/30/2013) (Entered: 10/30/2013)
187 CLERKS NOTICE RESETTING TELEPHONIC SETTLEMENT CONFERENCE. Telephonic Settlement Conference reset to 11/6/2013 at 11:00 A.M. before Magistrate Judge Laurel Beeler. Counsel to provide the court with a dial−in phone number and attendance list by 11/5/2013. The Settlement Conference set for 11/5/2013 is VACATED. (This is a docket text entry only. There is no document associated with this entry.) (lsS, COURT STAFF) (Filed on 11/4/2013) (Entered: 11/04/2013)
188 CLERKS NOTICE VACATING TELEPHONIC SETTLEMENT CONFERENCE on November 6, 2013 at 11:00 a.m. before Magistrate Judge Laurel Beeler. (This is a docket text entry only. There is no document associated with this entry.) (ls, COURT STAFF) (Filed on 11/5/2013) (Entered: 11/05/2013)
189 CLERK'S NOTICE RESETTING TELEPHONIC SETTLEMENT CONFERENCE. Telephonic Settlement Conference reset to 11/6/2013 at 11:00 A.M. before Magistrate Judge Laurel Beeler. Counsel to provide the court with a dial−in phone number and attendance list by 6:00 pm PST on 11/5/2013. Settlement Conference set for 11/6/2013 11:00 AM. (lblc2, COURT STAFF) (Filed on 11/5/2013) (Entered: 11/05/2013)
190 Minute Entry: Further Telephonic Settlement Conference held (Date Filed: 11/6/2013). Further Telephonic Settlement Conference set for 11/13/2013 at 1:30 P.M. Counsel to provide the court with a dial−in phone number and attendance list by 11/12/2013. (ls, COURT STAFF) (Date Filed: 11/6/2013) (Entered: 11/06/2013)
191 STIPULATION WITH PROPOSED ORDER TO CONTINUE CASE MANAGEMENT CONFERENCE filed by Esmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Iyengar, Savith) (Filed on 11/6/2013) (Entered: 11/06/2013)
192 CLERKS NOTICE Case Management Conference set for 2/13/2014 10:00 AM in Courtroom 3, 17th Floor, San Francisco. (rslc2, COURT STAFF) (Filed on 11/7/2013) (Entered: 11/07/2013)
193 CLERKS NOTICE SETTING AN IN PERSON Settlement Conference for 11/18/2013 at 9:30 A.M. in Courtroom C, 15th Floor, San Francisco. (This is a docket text entry only. There is no document associated with this entry.) (ls, COURT STAFF) (Filed on 11/12/2013) (Entered: 11/12/2013)
194 CLERKS NOTICE VACATING TELEPHONIC SETTLEMENT CONFERENCE on November 13, 2013 at 1:30 p.m. before Magistrate Judge Laurel Beeler. Counsel will provide the court with an update at lbpo@cand.uscourt.gov. (This is a docket text entry only. There are no documents associated with this entry.) (ls, COURT STAFF) (Filed on 11/13/2013) (Entered: 11/13/2013)
195 Minute Entry: Further Telephonic Settlement Conference held (Date Filed: 11/15/2013). (ls, COURT STAFF) (Date Filed: 11/15/2013) (Entered: 11/18/2013)
197 Minute Entry: Further Settlement Conference held (Date Filed: 11/18/2013). (ls, COURT STAFF) (Date Filed: 11/18/2013) (Entered: 11/19/2013)
196 CLERKS NOTICE SETTING TELEPHONIC Settlement Conference with defendants only for 11/19/2013 at 9:30 A.M. before Magistrate Judge Laurel Beeler. (This is a docket text entry only. There is no document associated with this entry.) (ls, COURT STAFF) (Filed on 11/19/2013) (Entered: 11/19/2013)

Case: 3:11-cv-4001 As of: 11/11/2017 03:23 PM PST 28 of 29

11/19/2013 11/19/2013 11/19/2013 11/22/2013 11/25/2013 12/19/2013
01/03/2014
01/08/2014 01/09/2014 01/23/2014

198 CLERKS NOTICE: The court directs counsel to meet and confer today at noon. (This is a docket text entry only. There is no document associated with this entry.) (ls, COURT STAFF) (Filed on 11/19/2013) (Entered: 11/19/2013)
199 CLERKS NOTICE: Settlement conference held on 11/19/2013. Parties to provide update after their noon drafting conference on the timing of the district court proceedings.(This is a docket text entry only. There is no document associated with this entry.) (ls, COURT STAFF) (Filed on 11/19/2013) (Entered: 11/19/2013)
200 Minute Entry: Further Settlement Conference held (Date Filed: 11/19/2013). (ls, COURT STAFF) (Date Filed: 11/19/2013) (Entered: 11/20/2013)
201 STIPULATION WITH PROPOSED ORDER Setting Briefing and Hearing Date on Anticipated Unopposed Motion for Preliminary Approval of Class Action Settlement and Substituting Certain Defendants filed by Esmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Iyengar, Savith) (Filed on 11/22/2013) (Entered: 11/22/2013)
202 JOINT STIPULATION AND ORDER SETTING BRIEFING AND HEARING DATE ON PLAINTIFFS' ANTICIPATED UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT, AND SUBSTITUTING CERTAIN DEFENDANTS. Signed by Judge Richard Seeborg on 11/25/13. (cl, COURT STAFF) (Filed on 11/25/2013) (Entered: 11/25/2013)
203 First MOTION for Settlement PLAINTIFFS' UNOPPOSED NOTICE OF MOTION, MOTION, AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT filed by Esmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. Motion Hearing set for 1/23/2014 01:30 PM in Courtroom 3, 17th Floor, San Francisco before Hon. Richard Seeborg. Responses due by 1/2/2014. Replies due by 1/9/2014. (Attachments: # 1 Proposed Order [PROPOSED] PRELIMINARY APPROVAL ORDER, # 2 Declaration DECLARATION OF CATHERINE MORENO IN SUPPORT OF PLAINTIFFS' UNOPPOSED NOTICE OF MOTION, MOTION, AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT, # 3 Exhibit EXHIBIT 1 TO MORENO DECLARATION, # 4 Declaration DECLARATION OF PAUL CHAVEZ IN SUPPORT OF PLAINTIFFS' UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT, # 5 Declaration DECLARATION OF JULIA HARUMI MASS IN SUPPORT OF PLAINTIFFS' UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT)(Moreno, Catherine) (Filed on 12/19/2013) (Entered: 12/19/2013)
204 Statement of Non−Opposition re 203 First MOTION for Settlement PLAINTIFFS' UNOPPOSED NOTICE OF MOTION, MOTION, AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT filed byTimothy Aitken, Rand Beers, Executive Office for Immigration Review, Eric H. Holder, Jr, John T. Morton, Janet Napolitano, Juan P. Osuna, John Sandweg, United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Related document(s) 203 ) (Reuveni, Erez) (Filed on 1/3/2014) (Entered: 01/03/2014)
205 CLERKS NOTICE RESETTING TIME ON MOTION HEARING. Motion Hearing set for 1/23/2014 at 09:00 AM in Courtroom 3, 17th Floor, San Francisco before Hon. Richard Seeborg. (cl, COURT STAFF) (Filed on 1/8/2014) This is a text only entry. There is no document associated with this notice. (Entered: 01/08/2014)
206 REPLY (re 203 First MOTION for Settlement PLAINTIFFS' UNOPPOSED NOTICE OF MOTION, MOTION, AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT ) PLAINTIFFS' REPLY IN SUPPORT OF UNOPPSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT filed byEsmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Moreno, Catherine) (Filed on 1/9/2014) (Entered: 01/09/2014)
207 Minute Entry: Motion Hearing held on 1/23/2014 before Judge Richard Seeborg (Date Filed: 1/23/2014). (Court Reporter Kathy Wyatt.) (cl, COURT STAFF) (Date Filed: 1/23/2014) (Entered: 01/23/2014)

Case: 3:11-cv-4001 As of: 11/11/2017 03:23 PM PST 29 of 29

01/23/2014 03/06/2014
03/06/2014 03/27/2014 04/10/2014 04/10/2014

208 PRELIMINARY APPROVAL ORDER. Fairness Hearing set for 4/10/2014 01:30 PM.Signed by Judge Richard Seeborg on 1/23/14. (cl, COURT STAFF) (Filed on 1/23/2014) (Entered: 01/23/2014)
209 MOTION for Settlement PLAINTIFFS' UNOPPOSED NOTICE OF MOTION, MOTION, AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF FINAL APPROVAL OF CLASS ACTION SETTLEMENT filed by Esmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. Motion Hearing set for 4/10/2014 01:30 PM in Courtroom 3, 17th Floor, San Francisco before Hon. Richard Seeborg. Responses due by 3/20/2014. Replies due by 3/27/2014. (Attachments: # 1 Proposed Order [Proposed] Final Order and Stiipulated Dismissal, # 2 Exhibit A to Motion, # 3 Exhibit B to Motion, # 4 Declaration Declaration of Catherine Moreno in Support of Plaintiffs' Unopposed Motion for Final Approval of Class Action Settlement, # 5 Exhibit Exhibit 1 to Moreno Declaration, # 6 Declaration Declaration of Angie Young Kim in Support of Plaintiffs' Unopposed Motion for Final Approval of Class Action Settlement, # 7 Exhibit Exhibit 2 to Kim Declaration, # 8 Declaration Declaration of Julia Harumi Mass in Support of Plaintiffs' Unopposed Motion for Final Approval of Class Action Settlement, # 9 Declaration Declaration of Paul Chavez in Support of Plaintiffs' Unopposed Motion for Final Approval of Class Action Settlement, # 10 Declaration Declaration of Robin Goldfaden in Support of Plaintiffs' Unopposed Motion for Final Aprpoval of Class Action Settlement)(Moreno, Catherine) (Filed on 3/6/2014) (Entered: 03/06/2014)
210 Statement of Non−Opposition re 209 MOTION for Settlement PLAINTIFFS' UNOPPOSED NOTICE OF MOTION, MOTION, AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF FINAL APPROVAL OF CLASS ACTION SETTLEMENT filed byTimothy Aitken, Rand Beers, Executive Office for Immigration Review, Eric H. Holder, Jr, John T. Morton, Janet Napolitano, Juan P. Osuna, John Sandweg, United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Related document(s) 209 ) (Reuveni, Erez) (Filed on 3/6/2014) (Entered: 03/06/2014)
211 REPLY (re 209 MOTION for Settlement PLAINTIFFS' UNOPPOSED NOTICE OF MOTION, MOTION, AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF FINAL APPROVAL OF CLASS ACTION SETTLEMENT ) Plaintiffs' Reply in Support of Unopposed Motion for Final Approval of Class Action Settlement filed byEsmar Cifuentes, Uelian De Abadia−Peixoto, Pedro Nolasco Jose, Mi Lian Wei. (Attachments: # 1 Declaration Supplemental Declaration of Angie Young Kim, # 2 Declaration Supplemental Declaration of Robin Goldfaden, # 3 Declaration Declaration of Yakov Grinberg, # 4 Declaration Supplemental Declaration of Julia Harumi Mass, # 5 Declaration Declaration of Jeff Rosenblum)(Kim, Angie) (Filed on 3/27/2014) (Entered: 03/27/2014)
212 Minute Entry: Motion Hearing held on 4/10/2014 before Judge Richard Seeborg (Date Filed: 4/10/2014) re 209 MOTION for Settlement. (Court Reporter Belle Ball.) (cl, COURT STAFF) (Date Filed: 4/10/2014) (Entered: 04/10/2014)
213 FINAL ORDER AND STIPULATED DISMISSAL. Signed by Judge Richard Seeborg on 4/10/14. (cl, COURT STAFF) (Filed on 4/10/2014) (Entered: 04/10/2014)