ACCO,TRO,194,CLOSED
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA (Eastern Division − Riverside)
CIVIL DOCKET FOR CASE #: 5:18−cv−01317−ODW−KES

Gustavo Rodriguez, et al v. Kirstjen Nielsen, et al Assigned to: Judge Otis D. Wright, II Referred to: Magistrate Judge Karen E. Scott Cause: 28:2241 Petition for Writ of Habeas Corpus (federal)
Plaintiff

Date Filed: 06/19/2018 Date Terminated: 12/02/2019 Jury Demand: None Nature of Suit: 463 Habeas Corpus − Alien Detainee Jurisdiction: U.S. Government Defendant

Gustavo Rodriguez Castillo

represented by Cassandra Eva Havens Arnold and Porter Kaye Scholer LLP 777 South Figueroa Street 44th Floor Los Angeles, CA 90017−5844 213−243−4000 Fax: 213−243−4199 Email: cassandra.havens@arnoldporter.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ahilan T Arulanantham ACLU Foundation of Southern California 1313 West Eighth Street Los Angeles, CA 90017 213−977−9500 Fax: 213−977−5299 Email: aarulanantham@aclu−sc.org ATTORNEY TO BE NOTICED

Eva Lucia Bitran ACLU of Southern California 1313 West 8th Street Los Angeles, CA 90017 213−977−5232 Fax: 213−977−5297 Email: ebitran@aclusocal.org ATTORNEY TO BE NOTICED

Jaba Tsitsuashvili Institute for Justice 901 N. Glebe Road, Suite 900 Arlington, VA 22203 703−682−9320 Fax: 703−682−9321 Email: jtsitsuashvili@ij.org TERMINATED: 10/02/2019

John C Ulin Arnold and Porter Kaye Scholer LLP 777 South Figueroa Street 44th Floor Los Angeles, CA 90017−5844 213−243−4000 Fax: 213−243−4199 Email: john.ulin@arnoldporter.com ATTORNEY TO BE NOTICED

Michael Bryan Kaufman ACLU Foundation of Southern California 1313 West Eighth Street Los Angeles, CA 90017

Plaintiff Gabriela M. Lopez
Plaintiff Immigrant Defenders Law Center
V. Defendant Kirstjen Nielsen Secretary Department of Homeland

213−977−5232 Fax: 213−977−5297 Email: mkaufman@aclu−sc.org ATTORNEY TO BE NOTICED
represented by Cassandra Eva Havens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan T Arulanantham (See above for address) ATTORNEY TO BE NOTICED
Eva Lucia Bitran (See above for address) ATTORNEY TO BE NOTICED
Jaba Tsitsuashvili (See above for address) TERMINATED: 10/02/2019
John C Ulin (See above for address) ATTORNEY TO BE NOTICED
Michael Bryan Kaufman (See above for address) ATTORNEY TO BE NOTICED
represented by Cassandra Eva Havens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan T Arulanantham (See above for address) ATTORNEY TO BE NOTICED
Eva Lucia Bitran (See above for address) ATTORNEY TO BE NOTICED
Jaba Tsitsuashvili (See above for address) TERMINATED: 10/02/2019
John C Ulin (See above for address) ATTORNEY TO BE NOTICED
Michael Bryan Kaufman (See above for address) ATTORNEY TO BE NOTICED
represented by David E Pinchas AUSA − Office of US Attorney

Security
Defendant Thomas Homan Acting Director, Immigration and Customs Enforcement
Defendant David Marin Field Office Director, Los Angeles Field Office of ICE

Civil Division 300 North Los Angeles Street Suite 7516 Los Angeles, CA 90012 213−894−2920 Fax: 213−894−7819 Email: usacac.civil@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Assistant 2241−194 US Attorney LA−CV AUSA − Office of US Attorney Criminal Division − US Courthouse 312 North Spring Street 12th Floor Los Angeles, CA 90012−4700 213−894−2434 Email: USACAC.Habeas@usdoj.gov ATTORNEY TO BE NOTICED
Geoffrey Daniel Wilson AUSA − Office of US Attorney Civil Division 300 North Los Angeles Street Room 7516 Los Angeles, CA 90012 213−894−2420 Fax: 213−894−7819 Email: geoffrey.wilson@usdoj.gov TERMINATED: 08/01/2018
OIL−DCS Trial Attorney Office of Immigration Litigation District Court Section PO Box 868 Ben Franklin Station Washington, DC 20044 202−353−8806 Email: oil−dcs.cacd@usdoj.gov ATTORNEY TO BE NOTICED
represented by David E Pinchas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Assistant 2241−194 US Attorney LA−CV (See above for address) ATTORNEY TO BE NOTICED
Geoffrey Daniel Wilson (See above for address) TERMINATED: 08/01/2018
OIL−DCS Trial Attorney (See above for address) ATTORNEY TO BE NOTICED
represented by David E Pinchas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Assistant 2241−194 US Attorney LA−CV (See above for address) ATTORNEY TO BE NOTICED

Defendant Jefferson Beauregard Sessions U.S. Attorney General
Defendant Hugh J. Hurwitz Acting Director, Federal Bureau of Prisons
Defendant David Shinn Warden, FCI Victorville Medium I/II, in their official capacity only

Geoffrey Daniel Wilson (See above for address) TERMINATED: 08/01/2018
OIL−DCS Trial Attorney (See above for address) ATTORNEY TO BE NOTICED
represented by David E Pinchas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Assistant 2241−194 US Attorney LA−CV (See above for address) ATTORNEY TO BE NOTICED
Geoffrey Daniel Wilson (See above for address) TERMINATED: 08/01/2018
OIL−DCS Trial Attorney (See above for address) ATTORNEY TO BE NOTICED
represented by David E Pinchas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Assistant 2241−194 US Attorney LA−CV (See above for address) ATTORNEY TO BE NOTICED
Geoffrey Daniel Wilson (See above for address) TERMINATED: 08/01/2018
OIL−DCS Trial Attorney (See above for address) ATTORNEY TO BE NOTICED
represented by David E Pinchas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Assistant 2241−194 US Attorney LA−CV (See above for address) ATTORNEY TO BE NOTICED
Geoffrey Daniel Wilson (See above for address) TERMINATED: 08/01/2018
OIL−DCS Trial Attorney (See above for address) ATTORNEY TO BE NOTICED

Date Filed 06/19/2018
06/19/2018 06/19/2018 06/19/2018
06/20/2018
06/20/2018 06/20/2018
06/21/2018 06/21/2018 06/21/2018 06/21/2018 06/21/2018

# Docket Text
1 COMPLAINT Receipt No: 0973−21957619 − Fee: $400, filed by Plaintiffs Gustavo Rodriguez Castillo, Immigrant Defenders Law Center, Gabriela M. Lopez. (Attorney Michael Bryan Kaufman added to party Immigrant Defenders Law Center(pty:pla), Attorney Michael Bryan Kaufman added to party Gabriela M. Lopez(pty:pla), Attorney Michael Bryan Kaufman added to party Gustavo Rodriguez Castillo(pty:pla))(Kaufman, Michael) (Entered: 06/19/2018)
2 CIVIL COVER SHEET filed by Plaintiffs Immigrant Defenders Law Center, Gabriela M. Lopez, Gustavo Rodriguez Castillo. (Kaufman, Michael) (Entered: 06/19/2018)
3 Certification and Notice of Interested Parties filed by Plaintiffs Immigrant Defenders Law Center, Gabriela M. Lopez, Gustavo Rodriguez Castillo, (Kaufman, Michael) (Entered: 06/19/2018)
4 EX PARTE APPLICATION for Temporary Restraining Order filed by Plaintiffs Immigrant Defenders Law Center, Gabriela M. Lopez, Gustavo Rodriguez Castillo. (Attachments: # 1 Memorandum, # 2 Proposed Order, # 3 Declaration, # 4 Declaration, # 5 Declaration, # 6 Proof of Service) (Kaufman, Michael) (Entered: 06/19/2018)
5 NOTICE OF REFERENCE to a U.S. Magistrate Judge. This case has been assigned to the calendar of the Honorable District Judge Otis D. Wright, II and referred to Magistrate Judge Maria A. Audero, who is authorized to consider preliminary matters and conduct all further hearings as may be appropriate or necessary. Pursuant to Local Rule 83−2.4, the Court must be notified within five (5) days of any address change. See notice for additional details. (esa) (Entered: 06/20/2018)
6 Request for Clerk to Issue Summons on Complaint (Attorney Civil Case Opening), 1 filed by Plaintiffs Immigrant Defenders Law Center, Gabriela M. Lopez, Gustavo Rodriguez Castillo. (Kaufman, Michael) (Entered: 06/20/2018)
7 re: EX PARTE APPLICATION for Temporary Restraining Order 4 OPPOSITION TO EX PARTE APPLICATION FOR TRO filed by Defendants Hugh J. Hurwitz, David Marin, Kirstjen Nielsen, Jefferson Beauregard Sessions, David Shinn. (Attachments: # 1 Declaration of Jess Pino, # 2 Declaration of AUSA Geoffrey Wilson)(Attorney Geoffrey Daniel Wilson added to party Hugh J. Hurwitz(pty:dft), Attorney Geoffrey Daniel Wilson added to party David Marin(pty:dft), Attorney Geoffrey Daniel Wilson added to party Kirstjen Nielsen(pty:dft), Attorney Geoffrey Daniel Wilson added to party Jefferson Beauregard Sessions(pty:dft), Attorney Geoffrey Daniel Wilson added to party David Shinn(pty:dft))(Wilson, Geoffrey) (Entered: 06/20/2018)
8 REPLY in Support of EX PARTE APPLICATION for Temporary Restraining Order 4 filed by Plaintiffs Immigrant Defenders Law Center, Gabriela M. Lopez, Gustavo Rodriguez Castillo. (Kaufman, Michael) (Entered: 06/21/2018)
9 60 DAY Summons Issued, re: Complaint (Attorney Civil Case Opening), 1 as to All Defendants. (mz) (Entered: 06/21/2018)
10 TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE 4 The hearing on the order to show cause shall be on June 25, 2018, at 1:30 p.m. by Judge Otis D. Wright, II (SEE DOCUMENT FOR OTHER SPECIFICS AND REQUIREMENTS) (lc) Modified on 6/21/2018 (lc). (Entered: 06/21/2018)
11 Request for Clerk to Issue Summons on Complaint (Attorney Civil Case Opening), 1 filed by Plaintiffs Immigrant Defenders Law Center, Gabriela M. Lopez, Gustavo Rodriguez Castillo. (Kaufman, Michael) (Entered: 06/21/2018)
12 NOTICE of Appearance filed by attorney John C Ulin on behalf of Plaintiffs Immigrant Defenders Law Center, Gabriela M. Lopez, Gustavo Rodriguez Castillo (Attorney John C Ulin added to party Immigrant Defenders Law Center(pty:pla), Attorney John C Ulin added to party Gabriela M. Lopez(pty:pla), Attorney John C Ulin added to party Gustavo Rodriguez Castillo(pty:pla))(Ulin, John) (Entered: 06/21/2018)

06/21/2018 06/22/2018 06/22/2018 06/25/2018 06/25/2018 06/27/2018 07/03/2018
07/16/2018 07/23/2018

13 NOTICE of Appearance filed by attorney John C Ulin on behalf of Plaintiffs Immigrant Defenders Law Center, Gabriela M. Lopez, Gustavo Rodriguez Castillo (Ulin, John) (Entered: 06/21/2018)
14 ORDER RETURNING CASE FOR REASSIGNMENT UPON RECUSAL by Magistrate Judge Maria A. Audero. ORDER case returned to the Clerk for random reassignment General Order 05−07 referral pursuant to General Order 05−07. Case randomly reassigned from Magistrate Judge Maria A. Audero to Magistrate Judge Karen E. Scott for all further proceedings. The case number will now reflect the initials of the transferee Judge 5:18−cv−01317 ODW(KES). (rn) (Entered: 06/22/2018)
15 Joint STIPULATION to Continue Hearing from June 25, 2018 to July 30, 2018 Re: Order on Motion for Temporary Restraining Order 10 filed by Defendants Thomas Homan, Hugh J. Hurwitz, David Marin, Kirstjen Nielsen, Jefferson Beauregard Sessions, David Shinn. (Attachments: # 1 Proposed Order)(Attorney Geoffrey Daniel Wilson added to party Thomas Homan(pty:dft))(Wilson, Geoffrey) (Entered: 06/22/2018)
16 60 DAY Summons Issued re Complaint (Attorney Civil Case Opening), 1 as to Defendant Thomas Homan, Hugh J. Hurwitz, David Marin, Kirstjen Nielsen, Jefferson Beauregard Sessions, David Shinn. (es) (Entered: 06/25/2018)
17 ORDER RE: STIPULATION TO SET BRIEFING SCHEDULE ON ORDER TO SHOW CAUSE 10 15 by Judge Otis D. Wright, II: The hearing on the OSC RE:TRO currently scheduled for June 25, 2018 at 1:30 p.m. is hereby CONTINUED to July 30, 2018 at 1:30 p.m. and the briefing schedule is set as follows: Defendants Response to the OSC is now due by July 16, 2018, and Plaintiffs Reply is now due by July 23, 2018. (lc) (Entered: 06/25/2018)
18 Notice of Appearance or Withdrawal of Counsel: for attorney Jaba Tsitsushvili counsel for Plaintiff Gustavo Rodriguez Castillo. Adding Jaba Tsitsuashvili as counsel of record for Gustavo Rodriguez Castillo, Gabriela M. Lopez, Immigrant Defenders Law Center for the reason indicated in the G−123 Notice. Filed by Plaintiffs−Petitioners Jaba Tsitsuashvili. (Attorney Jaba Tsitsushvili added to party Gustavo Rodriguez Castillo(pty:pla))(Tsitsushvili, Jaba) (Entered: 06/27/2018)
19 PROOF OF SERVICE Executed by Plaintiff Gustavo Rodriguez Castillo, Immigrant Defenders Law Center, Gabriela M. Lopez, upon Defendant Thomas Homan served on 6/28/2018, answer due 8/27/2018; Hugh J. Hurwitz served on 6/28/2018, answer due 8/27/2018; David Marin served on 6/28/2018, answer due 8/27/2018; Kirstjen Nielsen served on 6/28/2018, answer due 8/27/2018; Jefferson Beauregard Sessions served on 6/28/2018, answer due 8/27/2018; David Shinn served on 6/28/2018, answer due 8/27/2018. Service of the Summons and Complaint were executed upon the United States Attorneys Office by delivering a copy to Civil Process Clerk. Executed upon the Attorney Generals Office of the United States by delivering a copy to Counsel for Defendants. Executed upon the officer agency or corporation by delivering a copy to Counsel for Defendants. Service was executed in compliance with Federal Rules of Civil Procedure. Due diligence declaration NOT attached. Registered or certified mail return receipt attached. Original Summons NOT returned. (Attachments: # 1 Certified Mail Return Receipts)(Kaufman, Michael) (Entered: 07/03/2018)
20 RESPONSE filed by Defendants Thomas Homan, Hugh J. Hurwitz, David Marin, Kirstjen Nielsen, Jefferson Beauregard Sessions, David Shinnto Order on Motion for Temporary Restraining Order 10 and Request to Dissolve TRO (Attachments: # 1 Declaration Jess Pino, # 2 Declaration Ernesto Santacruz)(Wilson, Geoffrey) (Entered: 07/16/2018)
21 REPLY in support of the Order to Show Cause filed by Plaintiffs Immigrant Defenders Law Center, Gabriela M. Lopez, Gustavo Rodriguez Castillo. (Attachments: # 1 Declaration of Ahilan Arulanantham, # 2 Declaration of Rekha Arulanantham, # 3 Declaration of Lindsay Battles, # 4 Declaration of Michael Kaufman, # 5 Declaration of Corene Kendrick, # 6 Declaration of Karlyn Kurichety, # 7 Declaration of Munmeeth Soni, # 8 Declaration of Dilveer Singh Vahali, # 9 Declaration of Siobhan Waldron, # 10 Declaration of Mark Windsor, # 11 Declaration of Eva Bitran)(Kaufman, Michael) (Entered: 07/23/2018)

07/30/2018 07/31/2018 07/31/2018 08/01/2018
08/01/2018 08/10/2018 08/13/2018 08/14/2018 08/14/2018 08/15/2018 08/15/2018

22 MINUTES OF TEMPORARY RESTRAINING ORDER before Judge Otis D. Wright, II: Case called. The Court and counsel retire to chambers for further discussions off the record. The parties agree to file a stipulation and proposed order to continue the TRO hearing. Court Reporter: Cindy Nirenberg. (jp) (Entered: 07/31/2018)
23 STIPULATION for Order to Extend the Court's Temporary Restraining Order filed by Plaintiffs Immigrant Defenders Law Center, Gabriela M. Lopez, Gustavo Rodriguez Castillo. (Attachments: # 1 Proposed Order)(Kaufman, Michael) (Entered: 07/31/2018)
24 ORDER RE: STIPULATION TO EXTEND TEMPORARY RESTRAINING ORDER by Judge Otis D. Wright, II. Having considered the parties Stipulation to Extend the Courts Temporary Restraining Order (ECF No. 23), the Court GRANTS the parties' request and extends the Temporary Restraining Order to August 13, 2018. Additionally, the parties are ORDERED to submit a status report on or before August 13, 2018.IT IS SO ORDERED. re Stipulation for Order 23 (yl) (Entered: 08/01/2018)
25 Notice of Appearance or Withdrawal of Counsel: for attorney David E Pinchas counsel for Defendants Thomas Homan, Hugh J. Hurwitz, David Marin, Kirstjen Nielsen, Jefferson Beauregard Sessions, David Shinn. Adding David Pinchas as counsel of record for Kirstjen Nielsen; Thomas Homan; David Marin; Jefferson Beauregard Sessions; Hugh J. Hurwitz; and David Shinn for the reason indicated in the G−123 Notice. Filed by Defendants Kirstjen Nielsen, Thomas Homan, David Marin; Jefferson Beauregard Sessions, Hugh J. Hurwitz, and David Shinn. (Attorney David E Pinchas added to party Thomas Homan(pty:dft), Attorney David E Pinchas added to party Hugh J. Hurwitz(pty:dft), Attorney David E Pinchas added to party David Marin(pty:dft), Attorney David E Pinchas added to party Kirstjen Nielsen(pty:dft), Attorney David E Pinchas added to party Jefferson Beauregard Sessions(pty:dft), Attorney David E Pinchas added to party David Shinn(pty:dft))(Pinchas, David) (Entered: 08/01/2018)
26 Notice of Appearance or Withdrawal of Counsel: for attorney Geoffrey Daniel Wilson counsel for Defendants Thomas Homan, Hugh J. Hurwitz, David Marin, Kirstjen Nielsen, Jefferson Beauregard Sessions, David Shinn. Geoffrey D. Wilson is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G−123 Notice. Filed by Defendants Kirstjen Nielsen, et al. (Wilson, Geoffrey) (Entered: 08/01/2018)
27 EX PARTE APPLICATION to Enforce Court Order filed by plaintiffs Immigrant Defenders Law Center, Gabriela M. Lopez, Gustavo Rodriguez Castillo. (Attachments: # 1 Memorandum, # 2 Declaration Declaration of Munmeeth Soni, # 3 Proposed Order) (Havens, Cassandra) (Entered: 08/10/2018)
28 STATUS REPORT AND JOINT STIPULATION filed by Plaintiffs Immigrant Defenders Law Center, Gabriela M. Lopez, Gustavo Rodriguez Castillo. (Attachments: # 1 Proposed Order)(Kaufman, Michael) (Entered: 08/13/2018)
29 ORDER RE: STATUS REPORT AND JOINT STIPULATION 28 by Judge Otis D. Wright, II: The Temporary Restraining Order (ECF NO. 10)is extending by one week to August 20,2018. (lc) (Entered: 08/14/2018)
30 Defendant's Opposition to Plaintiff's Ex Parte Application filed by Defendants Thomas Homan, Hugh J. Hurwitz, David Marin, Kirstjen Nielsen, Jefferson Beauregard Sessions, David Shinn re: EX PARTE APPLICATION to Enforce Court Order 27 (Attachments: # 1 Declaration of David Pinchas, # 2 Declaration of Jess Pino, # 3 Exhibit 1, # 4 Exhibit A, # 5 Exhibit B)(Pinchas, David) (Entered: 08/14/2018)
31 REPLY in support of EX PARTE APPLICATION to Enforce Court Order 27 filed by Plaintiffs Immigrant Defenders Law Center, Gabriela M. Lopez, Gustavo Rodriguez Castillo. (Kaufman, Michael) (Entered: 08/15/2018)
32 TRANSCRIPT for proceedings held on MONDAY, JULY 30, 2018 1:53 P.M. Court Reporter: C. Nirenberg, OFFICIAL REPORTER, CONTACT www.msfedreporter.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through Court Reporter: C. Nirenberg, OFFICIAL REPORTER, CONTACT www.msfedreporter.com, or PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 9/5/2018.

08/15/2018 08/20/2018 08/22/2018 08/22/2018 08/27/2018 08/28/2018 08/29/2018
09/06/2018 09/28/2018
10/10/2018 10/16/2018

Redacted Transcript Deadline set for 9/17/2018. Release of Transcript Restriction set for 11/13/2018. (Nirenberg, C) (Entered: 08/15/2018)
33 NOTICE OF FILING TRANSCRIPT filed for proceedings MONDAY, JULY 30, 2018 1:53 P.M. re Transcript 32 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (Nirenberg, C) TEXT ONLY ENTRY (Entered: 08/15/2018)
34 STATUS REPORT AND JOINT STIPULATION filed by Plaintiffs Immigrant Defenders Law Center, Gabriela M. Lopez, Gustavo Rodriguez Castillo. (Attachments: # 1 Proposed Order)(Kaufman, Michael) (Entered: 08/20/2018)
35 MINUTE ORDER IN CHAMBERS by Judge Otis D. Wright, II: re: On August 10, 2018, Plaintiffs filed an Ex Parte Application for enforcement of the Temporary Restraining Order (TRO) 27 . For the following reasons, the Court DENIES Plaintiffs Ex Parte Application because Plaintiffs allegations do not violate the TRO or will be remedied by Defendants, and the scope of Plaintiffs third request far exceeds the harm at issue. (SEE DOCUMENT FOR SPECIFICS). (lc) (Entered: 08/22/2018)
36 ORDER RE: STATUS REPORTAND JOINT STIPULATION 34 by Judge Otis D. Wright, II: The Court herebyextends the Temporary Restraining Order (ECF NO. 10) by one week to August 27,2018. (lc) (Entered: 08/22/2018)
37 STATUS REPORT AND JOINT STIPULATION filed by Plaintiffs Immigrant Defenders Law Center, Gabriela M. Lopez, Gustavo Rodriguez Castillo. (Attachments: # 1 Proposed Order)(Kaufman, Michael) (Entered: 08/27/2018)
38 ORDER RE: STATUS REPORT AND JOINT STIPULATION 37 by Judge Otis D. Wright, II: parties to submit a status report by August 29, 2018, in which theparties will describe their respective positions on whether a preliminary injunction should issue. The Court also hereby extends the Temporary Restraining Order (ECF No. 10) pending the Courts consideration of whether a preliminary injunction should issue. (lc) (Entered: 08/28/2018)
39 STATUS REPORT Re Respective Positions on Whether a Preliminary Injunction Should Issue filed by Plaintiffs Immigrant Defenders Law Center, Gabriela M. Lopez, Gustavo Rodriguez Castillo. (Attachments: # 1 Declaration of Grace Lee for Plaintiffs, # 2 Declaration of Elizabeth Jordan for Plaintiffs, # 3 Declaration of David Menninger for Plaintiffs, # 4 Declaration of Munmeeth Soni for Plaintiffs, # 5 Declaration of Fanxi Wang for Plaintiffs, # 6 Declaration of Silvina Hernandez for Plaintiffs, # 7 Declaration of Eva Bitran for Plaintiffs, # 8 Declaration of Michael Kaufman for Plaintiffs, # 9 Declaration of David Pinchas for Defendants)(Kaufman, Michael) (Entered: 08/29/2018)
40 MINUTE ORDER IN CHAMBERS by Judge Otis D. Wright, II: On August 29, 2018, the Parties submitted a Joint Status Report presenting their respective positions on whether a Preliminary Injunction should issue 39 . After reviewing the Parties submissions, the Court concludes that a hearing is necessary.Accordingly, a Preliminary Injunction hearing is hereby scheduled for Friday, October 19, 2018, at 10:00 a.m. (lc) (Entered: 09/06/2018)
41 MEMORANDUM of Points and Authorities in Opposition filed by Defendants Thomas Homan, Hugh J. Hurwitz, David Marin, Kirstjen Nielsen, Jefferson Beauregard Sessions, David Shinn. to Motion for Preliminary Injunction filed as Re: Status Report,, 39 (Attachments: # 1 Declaration of Ian Herrera, # 2 Declaration of Tae D. Johnson, # 3 Declaration of Jennifer M. Merkle, # 4 Declaration of Marianne Hong, # 5 Declaration of Jess Pino, # 6 Exhibits "A" − "E")(Pinchas, David) (Entered: 09/28/2018)
42 Notice of Withdrawal of Status Report,, 39 filed by Plaintiffs Immigrant Defenders Law Center, Gabriela M. Lopez, Gustavo Rodriguez Castillo. (Kaufman, Michael) (Entered: 10/10/2018)
43 MINUTE ORDER IN CHAMBERS by Judge Otis D. Wright, II: On October 10, 2018, Plaintiff Immigrant Defenders Law Center filed a Notice of Withdrawal of Plaintiffs Request for a Preliminary Injunction 42 . Therein, Plaintiffrequested the Court vacate the hearing scheduled for October 19, 2018. The Court hereby GRANTS Plaintiffs request. Accordingly, the Preliminary Injunction hearing scheduled for

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Friday, October 19, 2018, at 10:00 a.m. is hereby VACATED. (lc) (Entered: 10/17/2018)
44 MINUTE ORDER IN CHAMBERS by Judge Otis D. Wright, II: On October 16, 2018, Plaintiffs withdrew their Motion for Preliminary Injunction, and requested that the Court vacate the Preliminary Injunction hearing scheduled for October 19, 2018. (ECF No. 42.) The Court granted Plaintiffs request, and neither party to date has taken steps to prosecute the matter. Accordingly, the Parties are hereby ORDERED to file a joint status report informing the Court why this matter should not be dismissed on or before December 21, 2018. (lc) (Entered: 12/14/2018)
45 JOINT STATUS REPORT filed by Plaintiffs Immigrant Defenders Law Center, Gabriela M. Lopez, Gustavo Rodriguez Castillo. (Kaufman, Michael) (Entered: 12/21/2018)
46 Notice of Appearance or Withdrawal of Counsel: for attorney Jaba Tsitsushvili counsel for Plaintiffs Immigrant Defenders Law Center, Gabriela M. Lopez, Gustavo Rodriguez Castillo. Jaba Tsitsuashvili is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G−123 Notice. Filed by Plaintiffs Gustavo Rodriguez Castillo, Gabriela M. Lopez, Immigrant Defenders Law Center. (Attorney Jaba Tsitsushvili added to party Immigrant Defenders Law Center(pty:pla), Attorney Jaba Tsitsushvili added to party Gabriela M. Lopez(pty:pla))(Tsitsushvili, Jaba) (Entered: 10/02/2019)
47 NOTICE of Change of Attorney Business or Contact Information: for attorney Jaba Tsitsuashvili counsel for Plaintiffs Immigrant Defenders Law Center, Gabriela M. Lopez, Gustavo Rodriguez Castillo. Changing Address to 1629 Columbia Road NW 623, Washington, DC 20009. Changing E−mail to jtsitsua@gmail.com. Filed by Plaintiffs Immigrant Defenders Law Center, Gabriela M. Lopez, Gustavo Rodriguez Castillo. (Tsitsuashvili, Jaba) (Entered: 10/02/2019)
48 STIPULATION to Dismiss Case pursuant to RULE 41(a)(1)(A)(ii) filed by Plaintiff Immigrant Defenders Law Center, Gabriela M. Lopez, Gustavo Rodriguez Castillo.(Kaufman, Michael) (Entered: 10/30/2019)
49 First NOTICE OF MOTION AND MOTION for Attorney Fees filed by Plaintiff Immigrant Defenders Law Center, Gabriela M. Lopez, Gustavo Rodriguez Castillo. Motion set for hearing on 12/23/2019 at 01:30 PM before Judge Otis D. Wright II. (Attachments: # 1 Memorandum of Points and Authorities in Support of Plaintiffs' Motion for Attorneys' Fees, # 2 Proposed Order GRANTING PLAINTIFFS MOTION FOR ATTORNEYS FEES) (Kaufman, Michael) (Entered: 11/21/2019)
50 DECLARATION of Gabriela M. Lopez in Support of Plaintiffs' Motion for Attorneys' Fees First NOTICE OF MOTION AND MOTION for Attorney Fees 49 filed by Plaintiffs Immigrant Defenders Law Center, Gabriela M. Lopez, Gustavo Rodriguez Castillo. (Kaufman, Michael) (Entered: 11/21/2019)
51 DECLARATION of Gustavo Rodriguez Castillo in Support of Plaintiffs' Motion for Attorneys' Fees First NOTICE OF MOTION AND MOTION for Attorney Fees 49 filed by Plaintiffs Immigrant Defenders Law Center, Gabriela M. Lopez, Gustavo Rodriguez Castillo. (Kaufman, Michael) (Entered: 11/21/2019)
52 DECLARATION of Jayashri Srikantiah in Support of Plaintiffs' Motion for Attorneys' Fees First NOTICE OF MOTION AND MOTION for Attorney Fees 49 filed by Plaintiffs Immigrant Defenders Law Center, Gabriela M. Lopez, Gustavo Rodriguez Castillo. (Kaufman, Michael) (Entered: 11/21/2019)
53 DECLARATION of LINDSAY TOCZYLOWSK in Support of Plaintiffs' Motion for Attorneys' Fees First NOTICE OF MOTION AND MOTION for Attorney Fees 49 filed by Plaintiffs Immigrant Defenders Law Center, Gabriela M. Lopez, Gustavo Rodriguez Castillo. (Kaufman, Michael) (Entered: 11/21/2019)
54 DECLARATION of Michael Kaufman in Support of Plaintiffs' Motion for Attorneys' Fees First NOTICE OF MOTION AND MOTION for Attorney Fees 49 filed by Plaintiffs Immigrant Defenders Law Center, Gabriela M. Lopez, Gustavo Rodriguez Castillo. (Attachments: # 1 Exhibit to Declaration of Michael Kaufman in Support of Plaintiffs' Motion for Attorneys' Fees)(Kaufman, Michael) (Entered: 11/21/2019)

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55 DECLARATION of John C. Ulin in Support of Plaintiffs' Motion for Attorneys' Fees First NOTICE OF MOTION AND MOTION for Attorney Fees 49 filed by Plaintiffs Immigrant Defenders Law Center, Gabriela M. Lopez, Gustavo Rodriguez Castillo. (Attachments: # 1 Exhibit to Declaration of John C. Ulin in Support of Plaintiffs' Motion for Attorneys' Fees)(Kaufman, Michael) (Entered: 11/21/2019)
56 DECLARATION of Carol Sobel in Support of Plaintiffs' Motion for Attorneys' Fees First NOTICE OF MOTION AND MOTION for Attorney Fees 49 filed by Plaintiffs Immigrant Defenders Law Center, Gabriela M. Lopez, Gustavo Rodriguez Castillo. (Attachments: # 1 Exhibit 1−4 to Declaration of Carol Sobel in Support of Plaintiffs' Motion for Attorneys' Fees, # 2 Exhibit 5−8 to Declaration of John C. Ulin in Support of Plaintiffs' Motion for Attorneys' Fees)(Kaufman, Michael) (Entered: 11/21/2019)
57 OPPOSITION in Opposition to re: First NOTICE OF MOTION AND MOTION for Attorney Fees 49 filed by Defendants Thomas Homan, Hugh J. Hurwitz, David Marin, Kirstjen Nielsen, Jefferson Beauregard Sessions, David Shinn. (Pinchas, David) (Entered: 12/02/2019)
58 MINUTE ORDER IN CHAMBERS by Judge Otis D. Wright, II: Pursuant to Plaintiff Notice of Voluntary Dismissal 48 and Federal Rule of Civil Procedure 41(a)(1)(A)(ii): IT IS HEREBY ORDERED that: 1. The entire action and all claims asserted therein are hereby DISMISSED, WITHOUT PREJUDICE to Plaintiffs right to seek attorneys fees under the Equal Access to Justice Act(EAJA), 28 U.S.C. § 2412; and 2. All dates and deadlines in this action are VACATED and taken off calendar. The Clerk of the Court shall close this case (Made JS−6. Case Terminated.) (lc) (Entered: 12/03/2019)
59 REPLY Reply in support of Motion for Attorneys' Fees First NOTICE OF MOTION AND MOTION for Attorney Fees 49 filed by Plaintiffs Immigrant Defenders Law Center, Gabriela M. Lopez, Gustavo Rodriguez Castillo. (Kaufman, Michael) (Entered: 12/09/2019)
60 DECLARATION of Michael Kaufman re Reply (Motion related), 59 filed by Plaintiffs Immigrant Defenders Law Center, Gabriela M. Lopez, Gustavo Rodriguez Castillo. (Attachments: # 1 Exhibit to Declaration of Michael Kaufman in Support of Plaintiffs' Reply to Opposition for Fees)(Kaufman, Michael) (Entered: 12/09/2019)
61 DECLARATION of AHILAN ARULANANTHAM re Reply (Motion related), 59 to Defendants' Opp to Motion for Fees filed by Plaintiffs Immigrant Defenders Law Center, Gabriela M. Lopez, Gustavo Rodriguez Castillo. (Kaufman, Michael) (Entered: 12/09/2019)
62 SUPPLEMENT to First NOTICE OF MOTION AND MOTION for Attorney Fees 49 Plaintiffs' Notice of Supplemental Authority re Motion for Attorneys' Fees filed by Plaintiffs Immigrant Defenders Law Center, Gabriela M. Lopez, Gustavo Rodriguez Castillo. (Attachments: # 1 Exhibit Exhibit 1 to Plaintiffs' Notice of Supplemental Authority re Motion for Attorneys' Fees)(Kaufman, Michael) (Entered: 01/06/2020)

 
 Case 5:18-cv-01317-ODW-KES Document 10 Filed 06/21/18 Page 1 of 8 Page ID #:108

1

O

2

3

4

5

6

7

United States District Court

8

Central District of California

9

GUSTAVO RODRIGUEZ CASTILLO;

10 GABRIELA M. LOPEZ; IMMIGRANT

DEFENDERS LAW CENTER,
11

12

Plaintiffs-Petitioners,

13

v.

14

KIRSTJEN Department

NIELSEN, of Homeland

Secretary Security;

15

THOMAS HOMAN, Acting Director, Immigration and Customs Enforcement;

16

DAVID MARIN, Field Office Director, Los Angeles Field Office of ICE;

17

JEFFERSON SESSIONS, U.S.

BEAUREGARD Attorney General;

18

HUGH J. HURWITZ, Acting Director Federal Bureau of Prisons; DAVID

19 SHINN, Warden of FCI Victorville

Medium I/II., in their official capacity

20 only,

Case No. 5:18-cv-01317-ODW-MAA TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE [4]

21

Defendants-Respondents.

22

23

I. INTRODUCTION

24

Plaintiffs Gustavo Rodriguez Castillo, Gabriela M. Lopez, and Immigrant

25 Defenders Law Center (“IDLC”) bring this action challenging the policies and

26 practices related to immigrant detainees (“detainees”) held at FCI Victorville Medium

27 Security Prison (“FCI Victorville”). Plaintiffs have applied ex parte for a temporary

28 restraining order requiring Defendants to: (1) permit Lopez to meet with her client,

Case 5:18-cv-01317-ODW-KES Document 10 Filed 06/21/18 Page 2 of 8 Page ID #:109

1 Castillo, by phone or in person; (2) permit other detainees at FCI Victorville to

2 communicate, both in person or by phone, with immigration attorneys who wish to

3 communicate with them; (3) permit IDLC to conduct “know your rights” trainings for

4 the detainees at FCI Victorville; and (4) stop immigration proceedings of detainees at

5 FCI Victorville, or deportation of any such detainees, until the detainees have had an

6 opportunity to consult with an attorney and attend a training by IDLC. (Appl., ECF

7 No. 4.) For the following reasons, the Court GRANTS Plaintiffs’ Application.

8

II. BACKGROUND

9

Plaintiffs allege that on June 12, 2018, the federal government began

10 transferring detainees to FCI Victorville from other parts of the country. (Compl.

11 ¶ 19, ECF No. 1.) The detainees are incarcerated pending an initial screening known

12 as a “credible fear” interview and, if found to have “credible fear,” pending

13 immigration court proceedings. (Id. ¶ 20 (citing 8 C.F.R. § 208.30).) Plaintiffs allege

14 that, since their incarceration at FCI Victorville, detainees have been denied the ability

15 to visit, consult with, or contact an attorney. (Id. ¶ 22.)

16

Plaintiff Castillo is currently detained at FCI Victorville. (Decl. of Gabriela

17 Lopez (“Lopez Decl.”) ¶ 10, ECF No. 4-4.) Plaintiff Lopez is Castillo’s attorney. (Id.

18 ¶ 3.) On June 6, 2018, Castillo’s aunt called Lopez seeking legal representation for

19 her nephew. (Id. ¶ 4.) Castillo’s aunt learned that Castillo had already had a credible

20 fear interview and was awaiting further processing in the San Luis Regional Detention

21 Center in San Luis, Arizona. (Id. ¶ 5.) Castillo told his aunt that he needed an

22 attorney. (Id.) While in Arizona, Castillo was able to contact his aunt almost daily,

23 until the phone calls abruptly stopped on June 6, 2018. (Id.) Castillo’s aunt retained

24 Lopez to investigate Castillo’s case and assist in locating Castillo, who had stopped

25 communicating with her. (Id. ¶ 6.)

26

On June 14, 2018, Lopez discovered that Castillo was being held at FCI

27 Victorville. (Id. ¶ 11.) Lopez called FCI Victorville numerous times on June 14 and

28 15, 2018, with no answer. (Id.) She then called Immigration Customs Enforcement

2

Case 5:18-cv-01317-ODW-KES Document 10 Filed 06/21/18 Page 3 of 8 Page ID #:110

1 (“ICE”) at the Imperial Regional Detention Facility, and they were unable to assist.

2 (Id.) She called FCI Victorville another time, but there was, again, no response. (Id.)

3

On June 18, 2018, Lopez was able to learn Castillo’s Bureau of Prisons

4 (“BOP”) ID number from ICE Officer Linares in Adelanto, California. (Id. ¶ 12.)

5 Officer Linares told Lopez that all inquiries and requests to speak with her client had

6 to be directed to the BOP at Victorville. (Id.) She called FCI Victorville, but no one

7 answered. (Id.) She emailed a contact listed on the Victorville BOP website and later

8 that day received a call from Jess Pino, Public Information Officer at the Bureau of

9 Prisons. (Id. ¶ 13.) Pino told Lopez that ICE—not the BOP—would be handling calls

10 and visits to Victorville. (Id. ¶ 14.) Pino also informed her that BOP does not have a

11 practice established for visitors, does not have visiting forms ready, and that BOP

12 anticipates allowing visits for immediate family members only. (Id.) Pino indicated

13 that BOP was working with ICE to establish protocols but was unsure what the result

14 would be. (Id.)

15

Since Castillo left San Luis, Arizona, he has had no contact with family. (Id.

16 ¶ 16.) He has not talked to his attorney since he was detained. (Id.)

17

Lindsay Toczylowski is the Executive Director of Plaintiff IDLC, a non-profit

18 agency located in Los Angeles, California that provides pro bono legal representation

19 and assistance to individuals in immigration court proceedings. (Decl. of Lindsay

20 Toczylowski (“Toczylowski Decl.”) ¶ 2, ECF No. 4-3.) IDLC representatives

21 routinely visit immigration detention facilities to meet with and screen immigration

22 detainees to determine whether they may be eligible to receive free legal

23 representation in their removal proceedings. (Id.)

24

On June 8, 2018, Toczylowski learned that detainees had been transferred to

25 FCI Victorville. (Id. ¶ 3.) On June 11, 2018, Toczylowski called FCI Victorville

26 three times to determine the guidelines for visiting detainees, but no one answered the

27 phone. (Id. ¶ 4.) On June 12, 2018, she drove to Victorville and arrived at the facility

28 at approximately 10:00 a.m. (Id. ¶ 5.) Toczylowski asked to meet with certain

3

Case 5:18-cv-01317-ODW-KES Document 10 Filed 06/21/18 Page 4 of 8 Page ID #:111

1 detainees for pro bono representation. (Id. ¶ 6.) After being told by one officer that

2 they were not sure of the procedure for such visits, Toczylowski met with one

3 representative who told her that she could not meet with any detainees that day as the

4 facility was not set up for visits. (Id. ¶ 8.) Toczylowski was told that there was a

5 visitation ban in place, including attorney visits, because there was no space for

6 attorneys to meet with detainees and because ICE had not authorized any visits. (Id.)

7 The representative took the list of detainees with whom Toczylowski sought to meet

8 and said that ICE would contact her shortly. (Id. ¶ 11.) On June 14, 2018,

9 Toczylowski’s paralegal submitted a formal visitation request to FCI Victorville. As

10 of June 20, 2018, IDCL has not received a response. (Id. ¶ 16.)

11

Plaintiffs initiated this lawsuit and applied ex parte for a temporary restraining

12 order on June 19, 2018. Defendants opposed Plaintiffs’ Application on June 20, 2018.

13 (Opp’n, ECF No. 7.)

14

Defendants argue that the relief Plaintiffs seek is either moot or unripe. ICE

15 began transferring large groups of detainees to FCI Victorville between June 8, 2018,

16 and June 12, 2018. (Decl. of Jess Pino (“Pino Decl.”) ¶ 4, ECF No. 7-1.) BOP staff

17 had to then conduct initial screening of the detainees to determine their name, obtain

18 identifying information, and assign a register number to them. (Id.) BOP staff had to

19 conduct medical screenings to prevent the potential spread of communicable diseases.

20 (Id. ¶ 5.) Due to these administrative tasks, BOP was not able to finalize visitation

21 procedures for the detainees until June 19, 2018. (Id. ¶ 6.)

22

Defendants now claim that such visitation procedures have been implemented.

23 (Id. ¶ 7.) Social and legal visits may take place Tuesday through Friday, other than

24 Federal Holidays, from 8:30 a.m. through 3:00 p.m. (Id.) Attorneys must present a

25 valid form of non-expired identification, a valid bar card or other credential showing

26 their active status, and provide the name and either Alien number or Register number

27 of the detainee with whom they wish to visit. (Id.) The attorney must also provide

28 two standard BOP forms, a Visiting Attorney Statement and an Application to Enter

4

Case 5:18-cv-01317-ODW-KES Document 10 Filed 06/21/18 Page 5 of 8 Page ID #:112

1 Institution as Representative (if a non-lawyer is also present). (Id.) Attorneys must 2 also fill out the “Notification to Visitor” form prior to being admitted. (Id.)

3 Defendants state that one attorney visit was allowed with a detainee on June 20, 2018,

4 and they are in the process of updating their website to include information regarding

5 detainee attorney visits. (Id. ¶ 8.)

6

Defendants also explain that a few exceptions to the visitation policies apply;

7 namely that detainees placed on medical quarantine may not leave their housing until

8 the quarantine is lifted and that visitation is only allowed Tuesday through Friday,

9 because federal inmates also housed in Victorville have visitation Saturdays, Sundays,

10 Mondays, and Federal Holidays.

11

Due to the implementation of these procedures, Defendants argue that

12 Plaintiffs’ requests for relief regarding access to attorney visits are moot. (Opp’n 5–

13 6.) Additionally, Defendants argue that Plaintiffs’ request for relief regarding the

14 “know your rights” training session is not ripe, because Plaintiffs have not shown that

15 they have complied with the proper protocol or that they have specifically requested to

16 conduct such trainings and were then denied. (Id. at 6.)

17

III. LEGAL STANDARD

18

The standard for issuing a temporary restraining order is “substantially

19 identical” to that for issuing a preliminary injunction. Stuhlbarg Int’l Sales Co. v. 20 John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). “‘A plaintiff seeking a 21 preliminary injunction must establish that he is likely to succeed on the merits, that he

22 is likely to suffer irreparable harm in the absence of preliminary relief, that the

23 balance of equities tips in his favor, and that an injunction is in the public interest.’”

24 Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) 25 (quoting Winter v. Nat. Res. Def. Council, Inc., 129 S. Ct. 365, 374 (2008)).

26

27

28

5

Case 5:18-cv-01317-ODW-KES Document 10 Filed 06/21/18 Page 6 of 8 Page ID #:113

1

IV. DISCUSSION

2

Plaintiffs meet their burden, and establish they are entitled to a temporary

3 restraining order. Despite Defendants’ representations regarding the new visitation

4 procedures, Plaintiffs still maintain that injunctive relief is necessary.

5

First, Plaintiffs argue that Defendants’ new protocol does not address phone

6 calls, which are particularly important because of the limited time permitted for

7 visitation for the 800+ detainees. (Reply 1, ECF No. 8.) The Court agrees that the

8 lack of any protocols regarding phone calls, when the proposed visitation schedule

9 provides such a limited time frame for a large number of detainees, is troubling.

10

Second, Plaintiffs argue that they would be happy to follow any reasonable

11 protocols and clearances to become a “Legal Orientation Provider” in order to conduct

12 “know your rights” clinics, but that they did not have an opportunity to even begin

13 that process until June 19, 2018. Additionally, Plaintiffs explain that Defendants have

14 not affirmatively stated that they would allow such trainings to take place in a prison.

15

Further, the parties do not dispute that many of the detainees were without

16 access to legal communication for as many as to 9 to 13 days, possibly longer as in

17 Castillo’s case. Defendants have made no representations regarding the status of

18 removal proceedings for those detainees who have not had access to counsel. The

19 Court finds these circumstance the most concerning.

20

The Court finds that Plaintiffs will suffer irreparable harm if injunctive relief is

21 not granted. The Court also finds that such relief is in the public interest. Therefore,

22 the Court ORDERS as follows:

23

(1) Defendants-Respondents shall permit Attorney Lopez to conduct an

24

attorney-client conversation, either in person or by phone (as she

25

prefers), with Castillo;

26

(2) Defendants-Respondents shall permit other detainees held at FCI

27

Victorville to communicate, both in person and by phone, with other

28

immigration attorneys who wish to communicate with them—the in-

6

Case 5:18-cv-01317-ODW-KES Document 10 Filed 06/21/18 Page 7 of 8 Page ID #:114

1

person visitations may proceed according to the protocol Defendants set

2

forth in their Opposition (ECF No. 7);

3

(3) No later than July 9, 2018, Defendants-Respondents shall implement a

4

protocol to permit Plaintiff Immigrant Defenders Law Center to conduct

5

“know your rights” trainings for the immigration detainees at FCI

6

Victorville; and

7

(4) Defendants-Respondents shall not proceed with the immigration

8

proceedings of immigration detainees at FCI Victorville, nor shall it

9

deport any such detainees, until the detainees have had an opportunity to

10

consult with an attorney or attend a “know your rights” training by

11

Plaintiff Immigrant Defenders Law Center or another immigration legal

12

13

service provider.

14

Defendants are hereby ORDERED TO SHOW CAUSE why a preliminary

15 injunction shall not issue. Any declarations, affidavits, points and authorities, or

16 other submissions in opposition to the issuance of such a preliminary injunction shall

17 be filed with the Court no later than 8:00 p.m. on June 22, 2018. Any reply shall be

18 filed no later than 9:00 a.m. June 25, 2018. The hearing on the order to show cause

19 shall be on June 25, 2018 at 1:30 p.m. The briefing and hearing dates on the Court’s

20 Order to Show Cause can be continued if Defendants consent to the temporary

21 restraining order remaining in effect until the new date scheduled for the hearing.

22 Indeed, the Court encourages the parties to meet and confer to attempt to reach an
23 amicable resolution of this dispute. The next available hearing date after June 25, 24 2018, is July 9, 2018.
25

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27

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Case 5:18-cv-01317-ODW-KES Document 10 Filed 06/21/18 Page 8 of 8 Page ID #:115

1

IV. CONCLUSION

2

For the reasons discussed above, the Court GRANTS Plaintiffs’ Ex Parte

3 Application for a Temporary Restraining Order. (ECF No. 4.) The hearing on the

4 order to show cause shall be on June 25, 2018, at 1:30 p.m.

5

6

IT IS SO ORDERED.

7

8

June 21, 2018

9

10

____________________________________

11

OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE

12

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8

 
 1 AHILAN T. ARULANANTHAM (SBN 237841) aarulanantham@aclusocal.org
2 MICHAEL KAUFMAN (SBN 254575) mkaufman@aclusocal.org
3 EVA BITRAN (SBN 302081) ebitran@aclusocal.org
4 ACLU FOUNDATION OF SOUTHERN CALIFORNIA 1313 West 8th Street
5 Los Angeles, CA 90017 Telephone: (213) 977-5232
6 Facsimile: (213) 977-5297

7 UNITED STATES DISTRICT COURT
8 CENTRAL DISTRICT OF CALIFORNIA
9

10

GUSTAVO RODRIGUEZ CASTILLO, ) Case No. 5:18-CV-001317

11 GABRIELA M. LOPEZ, IMMIGRANT )

DEFENDERS LAW CENTER, 12

) )

COMPLAINT

Plaintiffs-Petitioners,

)

13

)

v.

)

14

)

KIRSTJEN NIELSEN, Secretary,

)

15 Department of Homeland Security,

)

THOMAS HOMAN, Acting Director, )

16 Immigration and Customs Enforcement, )

DAVID MARIN, Field Office Director, )

17 Los Angeles Field Office of ICE,

)

JEFFERSON BEAUREGARD

)

18 SESSIONS, U.S. Attorney General,

)

HUGH J. HURWITZ, Acting Director, )

19 Federal Bureau of Prisons, DAVID

)

SHINN, Warden, FCI Victorville

)

20 Medium I/II, in their official capacity )

only,

)

21

)

Defendants-Respondents. )

22

)

)

23

)

)

24

)

)

25

)

)

26

)

27

28

1

INTRODUCTION

2 1. The federal government is currently imprisoning several hundred individuals

3 incommunicado at the FCI Victorville Medium Security Prison. Beginning a week

4 ago, the government transferred these individuals—who are being detained under

5 color of the immigration laws—to the Victorville prison from other parts of the

6 country. The federal government has refused to allow attorneys to visit or contact the

7 detainees or, it appears, permit the detainees to contact an attorney.

8 2. Because the federal government has denied all attorney access to immigration

9 detainees at the Victorville prison, the immigrants may face summary deportation

10 without much-needed legal assistance. In addition, detainees may have no way to

11 contact their children and other family members from whom they have been forcibly

12 separated as result of the federal government’s newly-instituted “zero-tolerance”

13 policies.

14 3. The federal government’s unlawful denial of attorney access to imprisoned

15 immigrants at the Victorville prison contravenes our most basic values. “There is a

16 well established tradition against holding prisoners incommunicado in the United

17 States. It would be hard to find an American who thought people could be picked up

18 by a policeman and held incommunicado, without the opportunity to let anyone know

19 where they were, and without the opportunity for anyone on the outside looking for

20 them to confirm where they were.” Halvorsen v. Baird, 146 F.3d 680, 688–89 (9th

21 Cir. 1998).

22 4. Fundamental principles of constitutional law forbid the government from

23 holding prisoners incommunicado, without permitting them an opportunity to

24 communicate with attorneys. In addition, the federal government’s standard operating

25 rules governing individuals imprisoned for immigration proceedings also forbid the

26 government from barring attorneys at the prison’s doors when they seek to represent

27 their clients or provide legal assistance.

28

1

1

PARTIES

2 5. Plaintiff Gustavo Rodriguez Castillo is a native of Venezuela who is detained at

3 Victorville prison pending immigration proceedings. On or about May 30, 2018, Mr.

4 Rodriguez Castillo was apprehended by immigration agents and requested protection

5 under U.S. asylum laws. Mr. Rodriguez Castillo was subsequently found to have a

6 “credible fear” of persecution or torture in Venezuela and was referred to the

7 immigration courts for a hearing on his claims to protection. Mr. Rodriguez Castillo

8 has retained Gabriela Lopez to represent him in his immigration case.

9 6. Plaintiff Gabriela Lopez is an attorney licensed to practice law in the state of

10 the California. Ms. Lopez was retained to represent Mr. Rodriguez Castillo in his

11 immigration case. On June 14, 2018, Ms. Lopez learned that Mr. Rodriguez Castillo

12 was transferred to the Victorville prison. Since that date, Ms. Lopez has repeatedly

13 contacted Victorville prison and ICE officials, but has been denied all access to Mr.

14 Rodriguez Castillo.

15 7. Plaintiff Immigrant Defenders Law Center (“Imm Def”) is a nonprofit

16 organization that provides free legal services to noncitizens in Southern California.

17 Imm Def seeks to provide “know your rights” trainings to immigration detainees at

18 the Victorville prison about the immigration system and detainees’ rights. In addition,

19 some of the Victorville detainees have, through their family members, asked attorneys

20 from Imm Def to represent them. Attorneys from Imm Def have been turned away

21 from the Victorville prison when they attempted to visit immigrants at the facility and,

22 despite following the prescribed procedures for visitation, have not been cleared to

23 visit the facility.

24 8. Defendant Kirstjen Nielsen is the Secretary of the U.S. Department of

25 Homeland Security (“DHS”), an agency of the United States. Secretary Nielsen is

26 ultimately responsible for the actions of Immigration and Customs Enforcement and

27 Customs and Border Protection. She is the legal custodian of immigration detainees

28 incarcerated at the Victorville prison. She is named in her official capacity.

2

1 9. Defendant Thomas Homan is the Acting Director of U.S. Immigration and

2 Customs Enforcement (“ICE”), a component of DHS. ICE is responsible for

3 apprehension, detention, and removal of noncitizens from the United States. He is the

4 legal custodian of immigration detainees incarcerated at the Victorville prison.

5 Director Homan is named in his official capacity.

6 10. Defendant David Marin is the Field Office Director for the Los Angeles Field

7 Office of ICE. Director Marin is responsible for the enforcement of the immigration

8 laws within this district, and for ensuring that ICE officials follow the agency’s

9 policies and procedures. He is the legal custodian of immigration detainees

10 incarcerated at the Victorville prison. He is named in his official capacity.

11 11. Defendant Jefferson Beauregard Sessions is the Attorney General of the United

12 States and the most senior official in the U.S. Department of Justice (“DOJ”). The

13 Attorney General is ultimately responsible for the actions of the Federal Bureau of

14 Prisons (“BOP”). He is the legal custodian of immigration detainees incarcerated at

15 the Victorville prison. He is named in his official capacity.

16 12. Defendant David Shinn is the Warden of the FCI Victorville Medium Security

17 Prison in Victorville, California. He is the legal custodian of immigration detainees

18 incarcerated at the Victorville prison. He is named in his official capacity.

19

JURISDICTION AND VENUE

20 13. Jurisdiction is proper under 28 U.S.C. §§ 1331, 1361, 1651, 2241; the

21 Suspension Clause, U.S. Const. art. I, § 2; and 5 U.S.C. § 702.

22 14. Plaintiffs seek declaratory and injunctive relief pursuant to 28 U.S.C. § 1331, 5

23 U.S.C. § 706, 28 U.S.C. § 2241, and the Declaratory Judgment Act, 28 U.S.C. §§

24 2201 and 2202. A substantial, actual, and continuing controversy exists between the

25 parties.

26 15. The federal government has waived its sovereign immunity for suits seeking

27 injunctive relief against constitutional violations. 5 U.S.C. § 702. Presbyterian Church

28 v. United States, 870 F.2d 518, 524 (9th Cir. 1989).

3

1 16. Venue is proper in the Central District of California under 28 U.S.C. § 1391

2 because at least one federal Defendant is in this District, Plaintiff Rodriguez Castillo is

3 detained in this District, Plaintiff Imm Def resides in this District, and a substantial

4 part of the events giving rise to the claims in this action took place in this District.

5 Venue is proper under 28 U.S.C. 2243 because the warden of the facility at issue

6 resides in this district.

7

FACTUAL ALLEGATIONS

8 17. The FCI Victorville Medium Security Prison is a “medium security federal

9 correctional institution” that typically houses prisoners serving sentences for criminal

10 convictions.1

11 18. The federal government recently announced that it would incarcerate

12 individuals in civil immigration proceedings at the Victorville prison. ICE officials

13 indicated that they intend to incarcerate approximately 1,000 immigration detainees at

14 the prison. Officials claim that the additional detention space is needed because of the

15 federal government’s recently instituted “zero-tolerance” policies, under which the

16 government intends to prosecute all misdemeanor illegal entry violations and to

17 forcibly separate immigrants subject to prosecution from their children and other

18 family members.2

19 19. On June 12, 2018, the federal government began transferring immigration

20 detainees to the Victorville prison from other parts of the country. On information and

21 belief, at least several hundred noncitizens are currently incarcerated at the Victorville

22 prison pending immigration proceedings.

23 20. A substantial number of the Victorville immigration detainees were likely

24 apprehended at or near the border and are seeking protection under the asylum laws.

25 They are incarcerated pending an initial screening known as a “credible fear”

26 interview and, if found to have a “credible fear,” pending immigration court

27 1 https://www.bop.gov/locations/institutions/vvm/
28 2 http://www.latimes.com/local/lanow/la-me-ln-victorville-ice-detention-20180607story.html 4

1 proceedings. See 8 C.F.R. § 208.30. Plaintiff Rodriguez Castillo is one such 2 individual. He was apprehended on or about May 30, 2018, and requested asylum. He 3 subsequently was found to have a “credible fear” of persecution or torture in his native 4 Venezuela and has been referred for a hearing on his asylum claims. 5 21. Other detainees at the Victorville prison were likely apprehended in the interior 6 of the country, and are incarcerated pending immigration court proceedings at which 7 they can litigate defenses to removal or request relief from removal under the 8 immigration laws. 9 22. Since their incarceration at Victorville, immigration detainees have been denied 10 the ability to visit, consult with, or contact an attorney. In turn, attorneys seeking to 11 meet with their clients at the Victorville prison or to meet and screen immigrants for 12 potential legal representation have been denied any access to the Victorville prison. 13 Attorney Gabriela Lopez Denied Access to Her Client Mr. Rodriguez Castillo 14 23. Since June 6, 2018, Attorney Gabriela M. Lopez has been diligently trying to 15 locate her client, Gustavo Rodriguez Castillo, and to set up a call and arrange a visit to 16 meet with him. 17 24. Mr. Rodriguez Castillo is a native of Venezuela. He was apprehended by 18 immigration authorities on approximately May 30, 2018 and requested asylum. 19 Shortly after his apprehension, Mr. Rodriguez Castillo’s aunt—who resides in San 20 Leandro, California—retained Attorney Lopez to represent Mr. Rodriguez Castillo in 21 his immigration case. 22 25. Since May 30, 2018, Mr. Rodriguez Castillo has been transferred numerous 23 times. No one in his family has heard or had any contact from him since June 6, 2018. 24 On Thursday, June 14, 2018, Attorney Lopez was able to locate him at the Victorville 25 prison. 26 26. Attorney Lopez called Victorville numerous times on Thursday, June 14, 2018 27 and Friday, June 15, 2018, with no answer. She then tried multiple ICE offices, who 28 each directed her to call Victorville prison; again, she received no response.
5

1 27. On Monday, June 18, 2018, Attorney Lopez found information online that the 2 Adelanto Detention Facility and ICE office would serve as the point of contact for 3 ICE detainees. She called and spoke to ICE Officer Linares at the Adelanto Detention 4 Facility. He was able to provide the BOP number for Mr. Rodriguez Castillo. Officer 5 Linares, who is Mr. Rodriguez Castillo’s immigration officer, indicated that he would 6 be visiting the Victorville prison on June 19, 2018. He told Attorney Lopez that he 7 was new to the case and to the facility and did not know the process. He indicated 8 that at this point, he did not believe that ICE was doing parole or bonds for those who 9 had been detained; any such requests would have to go through the courts. He did not 10 know when a hearing might be scheduled, or whether and when the detainees might 11 be transferred to the Adelanto Detention Facility. 12 28. Officer Linares instructed Attorney Lopez that any inquiries and requests to 13 speak with Mr. Rodriguez Castillo had to be directed to the BOP at Victorville. She 14 informed Officer Linares the she had been calling the number that appears on the BOP 15 website for Victorville but that it either just rang or went to voicemail, and no one 16 called back. She asked for another number and Officer Linares told her that he had the 17 same number. She called that number, but the phone rang once again without answer. 18 29. Since she was unable to reach Victorville by phone, Attorney Lopez conducted 19 some online research and located an email address for the facility and sent an email 20 requesting a call with her client. She received a phone call shortly thereafter from Mr. 21 Jess Pino, Public Information Officer at the Bureau of Prisons. 22 30. Mr. Pino stated that ICE – not the BOP – would be handling calls and visits to 23 Victorville prison, in direct contradiction to what Officer Linares had said. Mr. Pino 24 shared the following: the BOP does not have a practice established for visitors; the 25 BOP does not have visiting forms yet; and, at this point, the BOP anticipates allowing 26 visits for immediate family members only. Mr. Pino indicated that the BOP had been 27 working with ICE on protocols for calls and visits, but he had no sense of what those 28 protocols would be.
6

1 31. Mr. Pino also indicated that Attorney Lopez would need to fill in an attorney 2 visitation form, once they were available. Mr. Pino also said that, in addition to Form 3 G-28 (which is the notice of appearance form used by immigration attorneys), she 4 might also need to fill out additional paperwork (which Mr. Pino did not describe) to 5 speak to her client. Mr. Pino said it was unclear how long that process would take, as 6 it was a new situation for BOP and for ICE. When Attorney Lopez asked Mr. Pino to 7 arrange a call with her client, he responded that she would have to contact ICE to set 8 up a call. 9 32. Since Mr. Rodriguez Castillo was detained on or about May 30, 2018, he has 10 had no contact with counsel and has not communicated with his family since June 6, 11 2018. 12 33. Attorney Lopez and Mr. Rodriguez Castillo’s family have been directed back 13 and forth between ICE and the BOP, with each claiming that the other is responsible 14 for arranging calls, visits and providing any information and updates. Neither ICE nor 15 the BOP appears any process or policy for attorney visitation or communication to be 16 followed for immigration detainees in Victorville prison, and as a result, the 17 government has denied all access to immigration detainees at Victorville prison. 18 Attorneys from Immigrant Defenders Law Center Denied Access to Conduct 19 Screening Interviews. 20 34. Attorneys from Immigrant Defenders Law Center (“Imm Def”) have also been 21 denied access to Victorville prison. 22 35. Imm Def is a legal services organization that provides pro bono representation 23 to immigrants and “know your rights” trainings to immigrants in detention. Imm Def 24 is the recipient of funding from the city and county of Los Angeles, and the state of 25 California, to represent individuals in removal proceedings if they meet certain 26 qualifications. Attorneys from Imm Def seek access to Victorville to screen potential 27 clients for representation and to conduct “know your rights” presentations for the 28 detainees who lack counsel.
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1 36. Imm Def routinely conducts screenings for clients and “know your rights” 2 presentations at Southern California detention centers. Under well-established 3 policies at these immigration detention facilities, Imm Def attorneys may request an 4 attorney consultation by visiting the detention facility and requesting access. Under 5 these well-established policies, no prior notice or clearance is required for an attorney 6 visit. 7 37. On June 11, 2018, after learning that hundreds of immigrants had been 8 transferred to Victorville prison, legal services attorneys at Imm Def called Victorville 9 prison several times to determine the rules for visits to the immigrants held there. 10 38. On June 12, 2018, Lindsay Toczylowski, an attorney and Imm Def’s Executive 11 Director, drove from Los Angeles, California to the Victorville prison. She arrived at 12 around 10 AM. A guard at the front entrance, after hearing that Attorney Toczylowski 13 was an attorney who wanted to meet with immigration detainees, directed her to 14 Pod/Building 2. 15 39. Attorney Toczylowski informed the front desk officer that she was an attorney 16 and identified several immigration detainees with whom she intended to conduct 17 attorney consultations. The front desk officer said he was not sure what the process 18 would be for attorney visitation with immigration detainees because the facility had 19 not yet been set up for visitation. 20 40. The front desk officer called several people before anyone was able to provide 21 any response on what to do and how to proceed. The last person he called – Octavia 22 Brown – came out and spoke with Attorney Toczylowski. Ms. Brown did not have a 23 card and did not share her title, though she appeared to be a supervisor. 24 41. After Attorney Toczylowski explained the reason for her visit, Ms. Brown 25 responded that there was no way that an attorney could meet with anyone, as the 26 facility was not set up for visits. Ms. Brown explained that the facility had no space 27 for attorneys to meet with clients and ICE had not authorized any visits. 28
8

1 42. In response to a request for clarification from Attorney Toczylowski, Ms. 2 Brown reiterated that an attorney could not meet with immigration detainees without 3 prior clearance and an appointment. Ms. Brown said she would need to speak with 4 ICE about Attorney Toczylowski’s request. When asked if anyone from ICE was 5 present at the facility, Ms. Brown informed Attorney Toczylowski that she had missed 6 the ICE representative by 10 minutes, and that no one from ICE would be back that 7 day. 8 43. Attorney Toczylowski then asked for an assurance that no one would be 9 deported or appear before a judge before they had the opportunity to meet with 10 counsel who could potentially provide legal representation. Ms. Brown then 11 responded that “no one is seeing a judge because they haven’t even set up the video 12 thing yet.” She told Attorney Toczylowski that she would personally give the 13 information to ICE and that she thought they would get back to her immediately. Ms. 14 Brown also said that Attorney Toczylowski need not worry that immigration detainees 15 would be removed or appear before a judge because Victorville prison was still 16 “processing people through medical.” 17 44. Attorney Toczylowski provided Ms. Brown with a list of the detainees with 18 whom she had intended to meet, along with her business card. Ms. Brown indicated 19 that she would give the list directly to ICE, and ICE would be in contact shortly. She 20 also told Attorney Toczylowski to submit a formal request that included a copy of her 21 REAL ID-compliant identification, bar card, and the visitation request on 22 organizational letterhead. Attorney Toczylowski asked if there was a chance that, 23 when she provided that information, she might be able to visit with immigration 24 detainees later that day. Ms. Brown said no, and that ICE would be in touch. 25 45. When Attorney Toczylowski returned to her car, a big pickup truck pulled up 26 next to the car in the visitor parking area and the man in the truck started yelling: “Are 27 you the lady that just tried to go inside?” Attorney Toczylowski responded: “Yes. Is 28 there a problem?” He responded: “You need to leave the premises immediately.”
9

1 Attorney Toczylowski asked again if there was a problem, and he once again 2 responded “you need to leave the premises immediately.” The pickup truck followed 3 her car closely to the front entrance. 4 46. As she approached the front entrance, the guard indicated that she should stop. 5 He then asked “Are you the lady who just tried to enter? Did my officer catch you 6 before you left?” As they were talking, an additional guard walked up and stood 7 behind the front entrance guard. When Attorney Toczylowski again asked if there was 8 a problem, the front entrance guard said that he might be speaking out of turn, but 9 Attorney Toczylowski needed to have an appointment before she came back there. He 10 stated that she could not visit people unless she had been added to their approved visit 11 list. When she responded that the process he described would not work for Imm Def 12 attorneys or others seeking to provide legal representation to immigrants, as they 13 typically do not have a prior relationship with the immigration detainees they come to 14 assist, he simply reiterated that she was not cleared for a visit and that she needed to 15 respect the rules for visitation, whatever those were. Attorney Toczylowski felt 16 intimidated by all of the security presence and threatened because of the manner in 17 which the man in the pickup truck demanded that she leave the premises. 18 47. On Thursday, June 14, 2018, Attorney Toczylowski submitted the documents 19 that Ms. Brown requested by fax to Victorville prison. Attorney Toczylowski 20 requested a visit with a specified list of immigration detainees (with BOP numbers 21 included) on Monday, June 18, 2018. As of June 19, 2018, Imm Def has received no 22 response to their request. 23 48. Imm Def was refused access to the Victorville prison despite repeated attempts 24 to determine the process for meeting with the immigrants imprisoned there, and 25 despite Imm Def attorneys having followed the procedures normally in place for 26 visitation. The government has provided no procedure by which attorneys can meet 27 with or contact immigrants held at Victorville prison. 28
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1 Immigrant Detainees Are Harmed By Denial of Access to Counsel. 2 49. The government’s denial of attorney access to the Victorville prison causes 3 serious irreparable harm to the immigration detainees incarcerated there. Unlike in 4 criminal proceedings, individuals in immigration proceedings are not generally 5 entitled to appointed counsel if they cannot afford one. See generally CJLG v. 6 Sessions, 880 F.3d 1122, 1128 (9th Cir. 2018). Because attorneys are not 7 automatically provided by the government, immigration detainees seeking 8 representation must contact a private attorney to retain them or rely on a patchwork of 9 legal service providers who provide “know your rights” trainings and, in some cases, 10 pro bono representation. By denying attorney access, the federal government has 11 effectively prevented detainees from retaining counsel or obtaining any legal 12 assistance. In addition, the government’s practices prevent retained counsel from 13 consulting with their clients, preparing for hearings or simply communicating with 14 clients about the status of their cases. 15 50. The assistance of an attorney is essential for noncitizens navigating the 16 notoriously complex immigration system. The immigration laws “have been termed 17 second only to the Internal Revenue Code in complexity.” Castro-O’Ryan v. INS, 847 18 F.2d 1307, 1312 (9th Cir. 1987) (internal quotation marks omitted); see also Baltazar19 Alcazar v. INS, 386 F.3d 940, 948 (9th Cir. 2004) (emphasizing the complexity of 20 immigration laws and noting that lawyers may be the only ones capable of navigating 21 through it). 22 51. Legal assistance is particularly critical for noncitizens at the outset of their 23 cases, who must make important decisions about what claims or defenses to pursue. 24 For noncitizens seeking asylum, “credible fear” interviews may be conducted within 25 days of apprehension. A denial of “credible fear” may result in the noncitizen’s 26 immediate deportation to the country where they believe they will be persecuted, 27 tortured or worse. See 8 U.S.C. 1225(b)(1)(B)(iii). For such individuals, the assistance 28 of counsel may mean the difference between life and death.
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1

CLAIMS FOR RELIEF

2

First Claim

3

Violation of the Administrative Procedure Act

4 52. All of the foregoing allegations are repeated and realleged as though fully set

5 forth herein.

6 53. The Detention Standards governing immigration detainees provide that “each

7 facility shall permit legal visitation seven days a week, including holidays, for a

8 minimum of eight hours per day on regular business days . . . and a minimum of four

9 hours per day on weekends and holidays.” ICE Performance Based Detention

10 Standards 2011 5.7.J.2.3

11 54. Similarly, the Bureau of Prisons’ standards governing inmates who are not

12 serving a criminal sentence require attorney visits to be available all seven days of

13 each week. “The Warden shall provide the opportunity for pretrial inmate-attorney

14 visits on a seven-days-a-week basis. Attorney visits for pretrial inmates may be

15 conducted at times other than established visiting hours with the approval of the

16 Warden or designee.” BOP Policy re Pretrial Detainees, 7331.04. See also id. at 5

17 (classifying ICE detainees as “pretrial” for purposes of the BOP regulations).

18 55. An agency’s unexplained failure to follow its own rules constitutes “arbitrary,

19 capricious” conduct in violation of the Administrative Procedures Act. 5 U.S.C.

20 706(2)(A); United States ex. rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954); FCC

21 v. Fox Television Stations, Inc., 556 U.S. 502 (2009).

22 56. In addition, the agency’s failure to comply with the attorney access

23 requirements of the Constitution and 8 U.S.C. 1229a(b)(4)(A) is not “in accordance

24 with law.” 5 U.S.C. 706(2)(A).

25 //

26 //

27 //

28 3 See https://www.ice.gov/detention-standards/2011 12

1

Second Claim

2

Violation of the Immigration and Nationality Act

3 57. All of the foregoing allegations are repeated and realleged as though fully set

4 forth herein.

5 58. The Immigration and Nationality Act guarantees noncitizens in removal

6 proceedings the right to counsel of their choosing at no expense to the government.

7 8 U.S.C. § 1229a(b)(4)(A); Biwot v. Gonzales, 403 F.3d 1094, 1098 (9th Cir. 2005).

8 This right necessarily entails the right to consult with an attorney in advance of any

9 hearing. Rios-Berrios v. INS, 776 F.2d 859, 862 (9th Cir. 1985).

10 59. Defendants’ acts of preventing attorneys from meeting with their clients

11 violates 8 U.S.C. 1229a(b)(4)(A).

12

Third Claim

13

Violation of the Due Process Clause of the Fifth Amendment

14

to the United States Constitution

15 60. All of the foregoing allegations are repeated and realleged as though fully set

16 forth herein.

17 61. The Due Process Clause of the Fifth Amendment guarantees noncitizen

18 detainees the right of access to the courts; the government may not unjustifiably

19 obstruct that access. See Procunier v. Martinez, 416 U.S. 396 (1974); Biwot v.

20 Gonzales, 403 F.3d 1094, 1098 (9th Cir. 2005).

21 62. This protection includes rights related to retaining and communicating with

22 attorneys: Detainees must be afforded “reasonable time to locate counsel,” and

23 counsel must be “permit[ted] . . . to prepare for the hearing.” Rios-Berrios v. INS, 776

24 F.2d 859, 862 (9th Cir. 1985). Impediments to communication after transfer to a

25 remote facility can constitute a “constitutional deprivation” where they obstruct an

26 “established on-going attorney-client relationship.” Comm. of Cent. Am. Refugees v.

27 INS, 795 F.2d 1434, 1439 (9th Cir. 1986).

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1 63. The Fifth Amendment further prohibits the government from barring an

2 attorney from meeting an incarcerated client, even where the client is imprisoned

3 merely for a few hours. See generally Edwards v. Arizona, 451 U.S. 477, 482 (1981)

4 (person subjected to custodial interrogation has the right to be represented by

5 counsel); Halvorsen v. Baird, 146 F.3d 680, 689 (9th Cir. 1998) (six-hour

6 confinement “cannot be held too short, as a matter of law,” to entitle a civil detainee

7 the right to communicate).

8 64. These protections apply to prisoners held under color of the immigration laws.

9 Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 554, 565 (9th Cir. 1990)

10 (recognizing “aliens have a due process right to obtain counsel of their choice at their

11 own expense,” and affirming injunction against government practices “the cumulative

12 effect of which was to prevent aliens from contacting counsel and receiving any legal

13 advice,” including the practice of denying visits with counsel). See also Lyon v. ICE,

14 171 F. Supp. 3d 961 (N.D. Cal. 2016) (plaintiffs stated a claim and survived summary

15 judgment on access to courts and related due process claim based on insufficient

16 phone access to call attorneys); cf. Halvorsen v. Baird, 146 F.3d 680, 689 (9th Cir.

17 1998) (“That a person is committed civilly . . . cannot diminish his right not to be held

18 incommunicado.”).

19 65. Defendants’ acts of preventing attorneys from representing their imprisoned

20 clients violate the Fifth Amendment’s Due Process Clause.

21

22

Fourth Claim Violation of the First Amendment

23

to the United States Constitution

24 66. All of the foregoing allegations are repeated and realleged as though fully set

25 forth herein.

26 67. Prisoners and detainees have the “obvious” right, arising under both the First

27 Amendment and the Due Process Clause, not to be held incommunicado by the state.

28 Halvorsen v. Baird, 146 F.3d 680, 688–89 (9th Cir. 1998). The First Amendment

14

1 guarantees prisoners and detainees the right to communicate with the outside world.

2 Valdez v. Rosenbaum, 302 F.3d 1039, 1048 (9th Cir. 2002). This protection

3 encompasses the right to make telephone calls, exchange correspondence, and receive

4 in-person visitors. See id; Strandberg v. City of Helena, 791 F.2d 744, 747 (9th Cir.

5 1986). Detention facilities may not in effect deprive those who are incarcerated of

6 telephone access altogether. Johnson v. California, 207 F.3d 650, 656 (9th Cir. 2000).

7 68. The First Amendment protects the right to hire and consult with an attorney.

8 Mothershed v. Justices of Supreme Court, 410 F.3d 602, 611 (2005), as amended on

9 denial of reh’g (9th Cir. July 21, 2005). The state may not unreasonably restrict this

10 right. Id. Similarly, it protects an attorney’s right to advise both retained clients and

11 prospective litigants. See NAACP v. Button, 371 U.S. 415, 428–429 (1963); In re

12 Primus, 436 U.S. 412, 414, 423–24 (1978).

13 69. By depriving the detained Plaintiffs of any means of communication with the

14 outside world, Defendants have violated and continue to violate the detained

15 Plaintiffs’ rights under the First Amendment. And by denying the attorney Plaintiffs

16 access to detainees who have sought and would benefit from their counsel, Defendants

17 infringe on Ms. Lopez’s and Imm Def attorneys’ First Amendment rights.

18

19

PRAYER FOR RELIEF

20 Plaintiffs ask this Court to grant the following relief:

21 1. Take jurisdiction over this complaint and petition for writ of habeas corpus;

22 2. Declare that the actions and practices of Defendants described above constitute

23 violations of federal regulatory, statutory, and constitutional law;

24 3. Permanently enjoin Defendants and their directors, officers, agents, and

25 employees from preventing attorneys from visiting or communicating with

26 immigration detainees at FCI Victorville, except as permitted under the ICE 2011

27 Detention Standards;

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15

1 4. Permanently enjoin Defendants and their directors, officers, agents, and

2 employees by requiring that Immigrant Defenders Law Center be permitted to conduct

3 “know your rights” trainings for all immigration detainees at FCI Victorville;

4 5. Permanently enjoin Defendants and their directors, officers, agents, and

5 employees from proceeding with their immigration cases or deporting them until they

6 have been provided an adequate opportunity to consult with an attorney or attend a

7 “know your rights” training by Immigrant Defenders Law Center;

8 6. Order Defendants to release Plaintiff Rodriguez Castillo and others imprisoned

9 with him at FCI Victorville Medium Security under color of the immigration laws

10 unless Defendants provide attorney access and permit Immigration Defenders Law

11 Center to conduct “know your rights” trainings for all detainees at the facility;

12 7. Grant an award of attorneys’ fees and costs; and

13 8. Grant such other relief as may be just and reasonable.

14

15

Respectfully submitted,

16

ACLU FOUNDATION OF

17

SOUTHERN CALIFORNIA

18 Dated: June 19, 2018 19
20

/s/ Michael Kaufman MICHAEL KAUFMAN Counsel for Plaintiffs-Petitioners

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