Case: 3:17-cv-3615 As of: 06/17/2020 10:35 AM PDT 1 of 30
HABEAS,PROTO,REFSET−LB,STAYED
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:17−cv−03615−VC

Saravia v. Sessions et al Assigned to: Judge Vince Chhabria Referred to: Magistrate Judge Laurel Beeler (Settlement) Cause: 8:1105(a) Aliens: Habeas Corpus to Release INS Detainee
Plaintiff

Date Filed: 06/22/2017 Jury Demand: None Nature of Suit: 463 Habeas Corpus − Alien Detainee Jurisdiction: U.S. Government Defendant

Ilsa Saravia as next friend for A.H., a minor, and on her own behalf,

represented by Aadhithi Padmanabhan New York Civil Liberties Union 125 Broad Street, 19th Floor New York, NY 10004 212−607−3343 Email: apadmanabhan@nyclu.org TERMINATED: 05/29/2019 ATTORNEY TO BE NOTICED

Ashley K Corkery Cooley LLP 101 California Street, 5th Floor San Francisco, CA 94111 415−693−2158 Fax: 415−693−2222 Email: acorkery@cooley.com ATTORNEY TO BE NOTICED

Christopher Thomas Dunn New York Civil Liberties Union 125 Broad Street 19th Floor New York, NY 10004 212−607−3326 Fax: 212−607−3318 Email: cdunn@nyclu.org ATTORNEY TO BE NOTICED

Holly Stafford Cooper University of California, Davis School of Law Immigration Law Clinic One Shields Avenue TB 30 Davis, CA 95616 530 754 4833 Fax: 530 752 0822 Email: hscooper@ucdavis.edu ATTORNEY TO BE NOTICED

Jessica Perry New York Civil Liberties Union 125 Broad Street, 19th Fl. New York, NY 10004 212−607−3323 Email: jperry@nyclu.org ATTORNEY TO BE NOTICED

Judy Rabinovitz ACLU Foundation Immigrants' Rights Project 125 Broad Street, 18th Floor

Case: 3:17-cv-3615 As of: 06/17/2020 10:35 AM PDT 2 of 30
New York, NY 10004−2400 (212) 549−2618 Fax: (212) 549−2654 Email: Jrabinovitz@aclu.org ATTORNEY TO BE NOTICED
Julia Harumi Mass American Civil Liberties Union of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 415−621−2493 Fax: 415−255−8437 TERMINATED: 09/06/2018
Kathlyn Anne Querubin Cooley LLP 101 California Street 5th Floor San Francisco, CA 94111 415−693−2000 Email: kquerubin@cooley.com ATTORNEY TO BE NOTICED
Martin S. Schenker Cooley LLP 101 California Street 5th Floor San Francisco, CA 94111 (415) 693−2000 Fax: (415) 693−2222 Email: mschenker@cooley.com ATTORNEY TO BE NOTICED
Nathaniel Robert Cooper COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111 415−693−2195 Fax: 415−693−2222 Email: ncooper@cooley.com ATTORNEY TO BE NOTICED
Paige Austin New York Civil Liberties Union 125 Broad St. 19th Fl. New York, NY 10004 212−607−3398 TERMINATED: 02/27/2019
Sean Connor Riordan ACLU Foundation of Northern California 39 Drumm Street San Francisco, CA 94105 (415) 621−2493 Fax: (415) 255−1478 Email: sriordan@aclunc.org ATTORNEY TO BE NOTICED
Stephen B. Kang ACLU Immigrants' Rights Project 39 Drumm St San Francisco, CA 94111 415−343−0783 Email: skang@aclu.org

Case: 3:17-cv-3615 As of: 06/17/2020 10:35 AM PDT 3 of 30

Plaintiff
Lorenza Gomez TERMINATED: 11/21/2017

ATTORNEY TO BE NOTICED
Trevor Morehead Kempner Cooley LLP 101 California Street 5th floor San Francisco, CA 94111 415−693−2000 Fax: 415−693−2222 Email: tkempner@cooley.com ATTORNEY TO BE NOTICED
William S. Freeman ACLU Foundation of Northern California 39 Drumm St. San Francisco, CA 94111 415 621−2493 Fax: 415 255−1478 Email: wfreeman@aclunc.org ATTORNEY TO BE NOTICED
represented by Aadhithi Padmanabhan (See above for address) TERMINATED: 05/29/2019 ATTORNEY TO BE NOTICED
Amy L Belsher New York Civil Liberties Union 125 Broad Street Floor 19 New York, NY 10004 United Sta 212−607−3342 Fax: 212−607−3318 Email: abelsher@nyclu.org ATTORNEY TO BE NOTICED
Ashley K Corkery (See above for address) ATTORNEY TO BE NOTICED
Holly Stafford Cooper (See above for address) ATTORNEY TO BE NOTICED
Jessica Perry (See above for address) ATTORNEY TO BE NOTICED
Judy Rabinovitz (See above for address) ATTORNEY TO BE NOTICED
Julia Harumi Mass (See above for address) TERMINATED: 09/06/2018
Kathlyn Anne Querubin (See above for address) ATTORNEY TO BE NOTICED
Martin S. Schenker (See above for address)

Case: 3:17-cv-3615 As of: 06/17/2020 10:35 AM PDT 4 of 30

Plaintiff
Wilfredo Velasquez TERMINATED: 11/21/2017

ATTORNEY TO BE NOTICED
Nathaniel Robert Cooper (See above for address) ATTORNEY TO BE NOTICED
Sean Connor Riordan (See above for address) ATTORNEY TO BE NOTICED
Stephen B. Kang (See above for address) ATTORNEY TO BE NOTICED
Trevor Morehead Kempner (See above for address) ATTORNEY TO BE NOTICED
William S. Freeman (See above for address) ATTORNEY TO BE NOTICED
represented by Aadhithi Padmanabhan (See above for address) TERMINATED: 05/29/2019 ATTORNEY TO BE NOTICED
Amy L Belsher (See above for address) ATTORNEY TO BE NOTICED
Ashley K Corkery (See above for address) ATTORNEY TO BE NOTICED
Holly Stafford Cooper (See above for address) ATTORNEY TO BE NOTICED
Jessica Perry (See above for address) ATTORNEY TO BE NOTICED
Judy Rabinovitz (See above for address) ATTORNEY TO BE NOTICED
Julia Harumi Mass (See above for address) TERMINATED: 09/06/2018
Kathlyn Anne Querubin (See above for address) ATTORNEY TO BE NOTICED
Martin S. Schenker (See above for address) ATTORNEY TO BE NOTICED
Nathaniel Robert Cooper (See above for address) ATTORNEY TO BE NOTICED

Case: 3:17-cv-3615 As of: 06/17/2020 10:35 AM PDT 5 of 30
Sean Connor Riordan (See above for address) ATTORNEY TO BE NOTICED
Stephen B. Kang (See above for address) ATTORNEY TO BE NOTICED
Trevor Morehead Kempner (See above for address) ATTORNEY TO BE NOTICED
William S. Freeman (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Jefferson B. Sessions Attorney General of the United States
Defendant

represented by Sarah B. Fabian U.S. Department of Justice, Civil Division Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, DC 20044 (202) 532−4824 Fax: (202) 616−8962 Email: sarah.b.fabian@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
David W White U.S. Department of Justice OIL/DCS P.O. Box 868 Ben Franklin Station Washington, DC 20044 202−616−4863 Fax: 202−305−7000 Email: David.W.White@USDOJ.GOV ATTORNEY TO BE NOTICED
Nicole N Murley Office of Immigration Litigation United States Department of Justic, Civil Division P.O. Box 868 Ben Franklin Station Washington, DC 20044 202−616−0473 Fax: 202−305−7000 Email: nicole.murley@usdoj.gov ATTORNEY TO BE NOTICED
Vinita Andrapalliyal U.S. Department of Justice Civil Division P.O. Box 686 Benjamin Franklin St Washington, DC 20008 202−598−8085 Email: vinita.b.andrapalliyal@usdoj.gov TERMINATED: 01/19/2018

Case: 3:17-cv-3615 As of: 06/17/2020 10:35 AM PDT 6 of 30

James McHenry Acting Director of the United States Executive Office for Immigration Review
Defendant Thomas E. Price Secretary of the Department of Health and Human Services of the United States
Defendant Steven Wagner Acting Assistant Secretary of the Administration for Children and Families
Defendant Scott Lloyd Director of the Office of Refugee Resettlement of the United States

represented by Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David W White (See above for address) ATTORNEY TO BE NOTICED
Nicole N Murley (See above for address) ATTORNEY TO BE NOTICED
Vinita Andrapalliyal (See above for address) TERMINATED: 01/19/2018
represented by Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David W White (See above for address) ATTORNEY TO BE NOTICED
Nicole N Murley (See above for address) ATTORNEY TO BE NOTICED
Vinita Andrapalliyal (See above for address) TERMINATED: 01/19/2018
represented by Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David W White (See above for address) ATTORNEY TO BE NOTICED
Nicole N Murley (See above for address) ATTORNEY TO BE NOTICED
Vinita Andrapalliyal (See above for address) TERMINATED: 01/19/2018
represented by Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David W White (See above for address) ATTORNEY TO BE NOTICED

Case: 3:17-cv-3615 As of: 06/17/2020 10:35 AM PDT 7 of 30

Defendant Elicia Smith Federal Field Specialist of the Office of Refugee Resettlement of the United States
Defendant Brent Cardall Chief Probation Officer of Yolo County TERMINATED: 11/21/2017
Defendant Elaine Duke Acting Secretary of the Department of Homeland Security of the United States

Nicole N Murley (See above for address) ATTORNEY TO BE NOTICED
Vinita Andrapalliyal (See above for address) TERMINATED: 01/19/2018
represented by Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David W White (See above for address) ATTORNEY TO BE NOTICED
Nicole N Murley (See above for address) ATTORNEY TO BE NOTICED
Vinita Andrapalliyal (See above for address) TERMINATED: 01/19/2018
represented by Eric May Office of the County Counsel 625 Court Street Room 201 Woodland, CA 95695 United Sta 530−666−8278 Fax: 5306668278 Email: eric.may@yolocounty.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicole N Murley (See above for address) ATTORNEY TO BE NOTICED
represented by Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David W White (See above for address) ATTORNEY TO BE NOTICED
Nicole N Murley (See above for address) ATTORNEY TO BE NOTICED
Vinita Andrapalliyal

Case: 3:17-cv-3615 As of: 06/17/2020 10:35 AM PDT 8 of 30

Defendant Thomas D Homan Acting Director of U.S. Immigration and Customs Enforcement
Defendant James McCament Acting Director of U.S. Citizenship and Immigration Services
Defendant Jose Esquivel Interim Program Director, BCFS Health and Human Services TERMINATED: 11/21/2017

(See above for address) TERMINATED: 01/19/2018
represented by Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David W White (See above for address) ATTORNEY TO BE NOTICED
Nicole N Murley (See above for address) ATTORNEY TO BE NOTICED
Vinita Andrapalliyal (See above for address) TERMINATED: 01/19/2018
represented by Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David W White (See above for address) ATTORNEY TO BE NOTICED
Nicole N Murley (See above for address) ATTORNEY TO BE NOTICED
Vinita Andrapalliyal (See above for address) TERMINATED: 01/19/2018
represented by Melissa Ann Jones Stoel Rives, LLP 500 Capitol Mall, Suite 1600 Sacramento, CA 95814 (916) 447−0700 Fax: 916−447−4781 Email: majones@stoel.com TERMINATED: 12/20/2017 LEAD ATTORNEY
Nicole N Murley (See above for address) ATTORNEY TO BE NOTICED
Vinita Andrapalliyal (See above for address) TERMINATED: 01/19/2018

Date Filed 06/22/2017

# Docket Text
1 PETITION for Writ of Habeas Corpus AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF ( Filing fee $ 5.00 receipt number 0971−11494526.). Filed

Case: 3:17-cv-3615 As of: 06/17/2020 10:35 AM PDT 9 of 30

06/22/2017 06/22/2017 06/22/2017 06/23/2017
06/23/2017 06/23/2017
06/23/2017 06/23/2017 06/23/2017 06/23/2017 06/23/2017 06/26/2017 06/27/2017 06/27/2017

byIlsa Saravia. (Attachments: # 1 Civil Cover Sheet)(Mass, Julia) (Filed on 6/22/2017) (Entered: 06/22/2017)
2 Proposed Summons. (Mass, Julia) (Filed on 6/22/2017) (Entered: 06/22/2017)
3 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Ilsa Saravia.. (Mass, Julia) (Filed on 6/22/2017) (Entered: 06/22/2017)
4 Certificate of Interested Entities by Ilsa Saravia (Mass, Julia) (Filed on 6/22/2017) (Entered: 06/22/2017)
5 Case assigned to Hon. Vince Chhabria.
Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E−Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5−1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. (haS, COURT STAFF) (Filed on 6/23/2017) (Entered: 06/23/2017)
6 NOTICE of Appearance by Sarah B. Fabian (Fabian, Sarah) (Filed on 6/23/2017) (Entered: 06/23/2017)
7 MOTION for Temporary Restraining Order NOTICE OF MOTION, MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION FOR WRIT OF HABEAS CORPUS AND EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER filed by Ilsa Saravia. (Attachments: # 1 Proposed Order [PROPOSED] TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE)(Mass, Julia) (Filed on 6/23/2017) (Entered: 06/23/2017)
8 Declaration of A.H. IN SUPPORT OF PETITION FOR WRIT OF HABEAS CORPUS filed byIlsa Saravia. (Mass, Julia) (Filed on 6/23/2017) (Entered: 06/23/2017)
9 Declaration of Ilsa Saravia IN SUPPORT OF PETITION FOR WRIT OF HABEAS CORPUS filed byIlsa Saravia. (Attachments: # 1 Exhibit A−B)(Mass, Julia) (Filed on 6/23/2017) (Entered: 06/23/2017)
10 Declaration of Stephanie Gibbs, Esq. IN SUPPORT OF PETITION FOR WRIT OF HABEAS CORPUS AND MOTION FOR EX PARTE INJUNCTIVE AND DECLARATORY RELIEF filed byIlsa Saravia. (Attachments: # 1 Exhibit 1−12)(Mass, Julia) (Filed on 6/23/2017) (Entered: 06/23/2017)
11 Declaration of Julia Harumi Mass IN SUPPORT OF PETITION FOR WRIT OF HABEAS CORPUS filed byIlsa Saravia. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Mass, Julia) (Filed on 6/23/2017) (Entered: 06/23/2017)
12 ORDER RE APPLICATION FOR TEMPORARY RESTRAINING ORDER. Signed by Judge Chhabria on 6/23/2017. (vclc3S, COURT STAFF) (Filed on 6/23/2017) (Entered: 06/23/2017)
13 Summons Issued as to Brent Cardall, Scott Lloyd, James McHenry, Thomas E. Price, Jefferson B. Sessions, Elicia Smith, Steven Wagner, U.S. Attorney and U.S. Attorney General (farS, COURT STAFF) (Filed on 6/26/2017) (Entered: 06/26/2017)
14 NOTICE of Appearance by William S. Freeman William S. Freeman Notice of Appearance of Counsel (Freeman, William) (Filed on 6/27/2017) (Entered: 06/27/2017)
15 OPPOSITION/RESPONSE (re 7 MOTION for Temporary Restraining Order NOTICE OF MOTION, MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION FOR WRIT OF HABEAS CORPUS AND EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER ) filed byBrent Cardall,

Case: 3:17-cv-3615 As of: 06/17/2020 10:35 AM PDT 10 of 30

06/27/2017 06/27/2017 06/27/2017 06/28/2017 06/28/2017
06/28/2017 06/29/2017
06/30/2017
06/30/2017

Scott Lloyd, James McHenry, Thomas E. Price, Jefferson B. Sessions, Elicia Smith, Steven Wagner. (Attachments: # 1 Exhibit Loechner Decl, # 2 Exhibit De La Cruz Decl, # 3 Exhibit Matter of A−R−)(Fabian, Sarah) (Filed on 6/27/2017) (Entered: 06/27/2017)
16 ***PLEASE DISREGARD, SEE DOCKET NUMBER 17 FOR CORRECT ATTACHMENT.*** ORDER RE APPLICATION FOR TEMPORARY RESTRAINING ORDER. Signed by Judge Chhabria on 6/27/2017. (vclc3S, COURT STAFF) (Filed on 6/27/2017) Modified on 6/28/2017 (knmS, COURT STAFF). (Entered: 06/27/2017)
Set/Reset Hearing Temporary Restraining Order Hearing set for 6/29/2017 10:00 AM. (vclc3S, COURT STAFF) (Filed on 6/27/2017) (Entered: 06/27/2017)
17 *Correction of Dkt. No. 16 * ORDER RE APPLICATION FOR TEMPORARY RESTRAINING ORDER. Signed by Judge Chhabria on 6/27/2017.(vclc3S, COURT STAFF) (Filed on 6/27/2017) Modified on 6/28/2017 (knmS, COURT STAFF). (Entered: 06/27/2017)
18 Minute Entry for proceedings held before Hon. Vince Chhabria: Telephonic Status Conference held on 6/28/2017. Parties were given the Court's tentative view on the Motion for TRO and are invited to make argument in response tomorrow at the hearing. Total Time in Court: 8 minutes. Hearing not reported or recorded. Plaintiff Attorney: Bill Freemand and Julia Mass. Defendant Attorney: Sarah Fabian. This is a text−only Minute Entry (knm, COURT STAFF) (Date Filed: 6/28/2017) (Entered: 06/28/2017)
19 REPLY (re 7 MOTION for Temporary Restraining Order NOTICE OF MOTION, MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION FOR WRIT OF HABEAS CORPUS AND EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER ) filed byIlsa Saravia. (Attachments: # 1 Declaration SUPPLEMENTAL DECLARATION OF STEPHANIE GIBBS IN SUPPORT OF PETITION FOR WRIT OF HABEAS CORPUS AND APPLICATION FOR TEMPORARY RESTRAINING ORDER, # 2 Declaration SUPPLEMENTAL DECLARATION OF JULIA HARUMI MASS IN SUPPORT OF PETITION FOR WRIT OF HABEAS CORPUS, # 3 Exhibit 1−2)(Mass, Julia) (Filed on 6/28/2017) (Entered: 06/28/2017)
20 QUESTIONS FOR HEARING. Signed by Judge Chhabria on 6/28/2017. (vclc3S, COURT STAFF) (Filed on 6/28/2017) (Entered: 06/28/2017)
21 Minute Entry for proceedings held before Hon. Vince Chhabria: Motion Hearing held on 6/29/2017 re 7 MOTION for Temporary Restraining Order NOTICE OF MOTION, MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION FOR WRIT OF HABEAS CORPUS AND EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER filed by Ilsa Saravia. Court rules from the bench granting in part and denying in part 7 Motion for TRO.FTR Time 10:45 − 11:46; 12:36 − 1:14; 1:36 − 2:04. Court Reporter: Pamela Batalo (witness testimony and Court's ruling). Plaintiff Attorney: William Freeman and Julia Harumi Mass. Defendant Attorney: Sarah Fabian. This is a text−only Minute Entry (knm, COURT STAFF) (Date Filed: 6/29/2017) (Additional attachment(s) added on 6/30/2017: # 1 Witness/Exhibit Log) (knm, COURT STAFF). (Entered: 06/29/2017)
22 Partial Transcript of Proceedings held on 06/29/17, before Judge Chhabria. Court Reporter Pamela A. Batalo, telephone number pamela_batalo@cand.uccourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/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. Redaction Request due 7/21/2017. Redacted Transcript Deadline set for 7/31/2017. Release of Transcript Restriction set for 9/28/2017. (Batalo, Pam) (Filed on 6/30/2017) (Entered: 06/30/2017)
Set Hearing re 21 Minute Order re Motion Hearing. Telephonic Status Conference set for 7/7/2017 02:30 PM in Courtroom 4, 17th Floor, San Francisco before Hon. Vince

Case: 3:17-cv-3615 As of: 06/17/2020 10:35 AM PDT 11 of 30

06/30/2017 07/06/2017 07/07/2017
07/10/2017 07/11/2017 07/12/2017
07/12/2017
08/11/2017 08/11/2017 08/11/2017 08/15/2017

Chhabria. (knm, COURT STAFF) (Filed on 6/30/2017) (Entered: 06/30/2017)
23 FILED UNDER SEAL: DEFENDANT EXHIBITS 1−4. (farS, COURT STAFF) (Filed on 6/30/2017) (Entered: 06/30/2017)
24 TRANSCRIPT ORDER for proceedings held on 06/29/2017 before Hon. Vince Chhabria by Ilsa Saravia, for Court Reporter Pam Batalo. (Freeman, William) (Filed on 7/6/2017) (Entered: 07/06/2017)
25 Minute Entry for proceedings held before Hon. Vince Chhabria: Telephonic Status Conference held on 7/7/2017. ORR's decision to be filed with the Court by defense when issued. Telephonic Further Case Management Conference set for 7/12/2017 03:00 PM in Courtroom 4, 17th Floor, San Francisco. Plaintiff is required to provide the Court and opposing counsel a telephone conference line and access code for the upcoming hearing by way of email to the Court (vccrd@cand.uscourts.gov) with a cc to opposing counsel, by no later than 7/11/2017 at 10:00 a.m. PST.Total Time in Court 14 minutes. Hearing not reported or recorded. Plaintiff Attorneys: William Freeman and Julia Mass. Defendant Attorney: Sarah Fabian. This is a text−only Minute Entry (knm, COURT STAFF) (Date Filed: 7/7/2017) (Entered: 07/07/2017)
26 SUMMONS Returned Executed by Ilsa Saravia. All Defendants. (Freeman, William) (Filed on 7/10/2017) (Entered: 07/10/2017)
27 NOTICE by Brent Cardall, Scott Lloyd, James McHenry, Thomas E. Price, Jefferson B. Sessions, Elicia Smith, Steven Wagner of Decision (Attachments: # 1 Exhibit Decision)(Fabian, Sarah) (Filed on 7/11/2017) (Entered: 07/11/2017)
28 Transcript of Proceedings held on 06/29/17, before Judge Chhabria. Court Reporter Pamela A. Batalo, telephone number pamela_batalo@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/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. (Re 24 Transcript Order ) Redaction Request due 8/2/2017. Redacted Transcript Deadline set for 8/14/2017. Release of Transcript Restriction set for 10/10/2017. (Related documents(s) 24 ) (Batalo, Pam) (Filed on 7/12/2017) (Entered: 07/12/2017)
29 Minute Entry for proceedings held before Hon. Vince Chhabria: Telephonic Further Case Management Conference held on 7/12/2017. Petitioner verbally moves to amend the pleadings; GRANTED. Amended Pleadings due by 8/11/2017. Case Management Statement due by 8/22/2017. Telephonic Further Case Management Conference set for 8/29/2017 02:30 PM. Plaintiff is required to provide the Court and opposing counsel a telephone conference line and access code for the upcoming hearing by way of email to the Court (vccrd@cand.uscourts.gov) with a cc to opposing counsel, by no later than three court days prior to the hearing.Total Time in Court: 22 minutes. Hearing not reported or recorded. Plaintiff Attorneys: William Freeman and Julia Mass. Defendant Attorney: Sarah Fabian. This is a text−only Minute Entry (knm, COURT STAFF) (Date Filed: 7/12/2017) (Entered: 07/13/2017)
30 NOTICE of Appearance by Martin S. Schenker , Nathaniel R. Cooper, Ashley K. Corkery, and Trevor M. Kempner (Schenker, Martin) (Filed on 8/11/2017) (Entered: 08/11/2017)
31 AMENDED COMPLAINT FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS AND CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF against All Defendants. Filed byIlsa Saravia. (Mass, Julia) (Filed on 8/11/2017) (Entered: 08/11/2017)
32 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−11624369.) filed by Lorenza Gomez, Ilsa Saravia, Wilfredo Velasquez. (Rabinovitz, Judy) (Filed on 8/11/2017) (Entered: 08/11/2017)
33 NOTICE of Appearance by Stephen B. Kang (Kang, Stephen) (Filed on 8/15/2017) (Entered: 08/15/2017)

Case: 3:17-cv-3615 As of: 06/17/2020 10:35 AM PDT 12 of 30

08/15/2017 08/22/2017 08/28/2017 08/28/2017 08/29/2017
08/31/2017 08/31/2017 08/31/2017 08/31/2017 08/31/2017 09/01/2017

34 TRANSCRIPT ORDER for proceedings held on 6/29/17 before Hon. Vince Chhabria by Jefferson B. Sessions, for Court Reporter Pam Batalo. (Fabian, Sarah) (Filed on 8/15/2017) (Entered: 08/15/2017)
35 JOINT CASE MANAGEMENT STATEMENT filed by Lorenza Gomez, Ilsa Saravia, Wilfredo Velasquez. (Freeman, William) (Filed on 8/22/2017) (Entered: 08/22/2017)
36 Discovery Letter Brief filed by Lorenza Gomez, Ilsa Saravia, Wilfredo Velasquez. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Proposed Order re Plaintiffs' Request for Expedited Discovery (Plaintiffs), # 4 Proposed Order re Plaintiffs' Request for Expedited Discovery (Defendants))(Schenker, Martin) (Filed on 8/28/2017) (Entered: 08/28/2017)
37 Proposed Summons. (Freeman, William) (Filed on 8/28/2017) (Entered: 08/28/2017)
38 Minute Entry for proceedings held before Hon. Vince Chhabria: Telephonic Further Case Management Conference held on 8/29/2017.
The parties are ordered to meet and confer re what is reasonable to produce for discovery based on what was discussed amongst the parties and Court during this hearing. Status Report, which must include information re what discovery parties have agreed to and what is still at issue, due by 8/31/2017. Telephonic Further Case Management Conference set for 9/1/2017 10:30 AM in Courtroom 4, 17th Floor, San Francisco. Plaintiff shall provide the Court and all other parties a conference line and applicable access code to use during the hearing no later than three court days prior to the case management conference by way of email to the Court (vccrd@cand.uscourts.gov) with a cc to opposing counsel.
Defendants' Motions to Dismiss due by 9/14/2017 − page limits: Fed. is 25, Yolo is 10. Plaintiffs' opposition to Motions to Dismiss/opening brief re Motion for Preliminary Approval due by 9/25/2017 − page limit is 50 (includes response to both MTDs). Defendants' replies to Motions to Dismiss/opposition to Motion for Preliminary Approval due by 10/6/2017 − page limits: Fed. is 50, Yolo is 15. Plaintiffs' Reply to Motion for Preliminary Approval due by 10/13/2017 − page limit is 25. Motion Hearing set for 10/26/2017 10:00 AM in Courtroom 4, 17th Floor, San Francisco before Hon. Vince Chhabria.
Total Time in Court: 1 hour 11 minutes. Hearing not reported or recorded. Plaintiff Attorneys: William Freeman, Stephen Kang, Martin Schenker, Julia Mass, Ashley Corkery, Trevor Kempner, and Theodora Simon. Defendant Attorneys: Sarah Fabian, Vinita Andrapalliyal, and Nicole Murley for Federal Defendants; Philip Pogledich for Brent Cardall. This is a text−only Minute Entry (knm, COURT STAFF) (Date Filed: 8/29/2017) (Entered: 08/30/2017)
39 NOTICE of Appearance by Nathaniel Robert Cooper (Cooper, Nathaniel) (Filed on 8/31/2017) (Entered: 08/31/2017)
40 NOTICE of Appearance by Trevor Morehead Kempner (Kempner, Trevor) (Filed on 8/31/2017) (Entered: 08/31/2017)
41 NOTICE of Appearance by Ashley K Corkery (Corkery, Ashley) (Filed on 8/31/2017) (Entered: 08/31/2017)
42 Summons Issued as to Elaine Duke, Jose Esquivel, Thomas D Homan, James McCament (farS, COURT STAFF) (Filed on 8/31/2017) (Entered: 08/31/2017)
43 Discovery Letter Brief Joint Status Update re Expedited Discovery filed by Lorenza Gomez, Ilsa Saravia, Wilfredo Velasquez. (Attachments: # 1 Proposed Order)(Schenker, Martin) (Filed on 8/31/2017) (Entered: 08/31/2017)
44 Minute Entry for proceedings held before Hon. Vince Chhabria:
Telephonic Further Case Management Conference held on 9/1/2017. Discovery resolved. The parties are to submit to the Court a proposed order in accordance with the Court's ruling on the bench, by Wednesday, September 6, 2017.

Case: 3:17-cv-3615 As of: 06/17/2020 10:35 AM PDT 13 of 30

09/06/2017 09/07/2017 09/08/2017 09/08/2017
09/11/2017 09/13/2017 09/14/2017 09/14/2017 09/14/2017 09/14/2017
09/15/2017 09/15/2017
09/18/2017

Total Time in Court: 1 Hour; 36 Minutes. Digital FTR: 10:35 − 11:25; 11:32 − 12:18. Plaintiffs' Attorneys: Martin Schenker, Stephen Kang, Julia Mass, Trevor Kempner. Defendant;s Attorneys: Sarah Fabian, Vinita Andrapalliyal, Nicole Murley.
This is a text−only Minute Entry. There is no pdf image associated with this entry. (afmS, COURT STAFF) (Date Filed: 9/1/2017) Modified on 9/1/2017 (afmS, COURT STAFF). (Entered: 09/01/2017)
45 Proposed Order re 44 Case Management Conference − Further,,,, Set Deadlines,,, [Proposed] Order Granting Letter Motion for Expedited Discovery by Lorenza Gomez. (Schenker, Martin) (Filed on 9/6/2017) (Entered: 09/06/2017)
46 NOTICE of Appearance by Nicole N Murley (Murley, Nicole) (Filed on 9/7/2017) (Entered: 09/07/2017)
47 ORDER re Expedited Discovery (vclc3S, COURT STAFF) (Filed on 9/8/2017) (Entered: 09/08/2017)
48 SUMMONS Returned Executed by Wilfredo Velasquez, Lorenza Gomez, Ilsa Saravia. Elaine Duke served on 8/31/2017, answer due 9/21/2017; Jose Esquivel served on 8/31/2017, answer due 9/21/2017; Thomas D Homan served on 8/31/2017, answer due 9/21/2017; James McCament served on 8/31/2017, answer due 9/21/2017. (Freeman, William) (Filed on 9/8/2017) (Entered: 09/08/2017)
49 NOTICE of Appearance by Melissa Ann Jones (Jones, Melissa) (Filed on 9/11/2017) (Entered: 09/11/2017)
50 Order by Hon. Vince Chhabria granting 32 Motion for Pro Hac Vice − Rabinovitz.(knm, COURT STAFF) (Filed on 9/13/2017) (Entered: 09/13/2017)
51 MOTION to Dismiss Pursuant to Rules 12(b)(1) and 12(b)(6) filed by Brent Cardall. Motion Hearing set for 10/26/2017 10:00 AM in Courtroom 4, 17th Floor, San Francisco before Hon. Vince Chhabria. Responses due by 9/25/2017. Replies due by 10/6/2017. (May, Eric) (Filed on 9/14/2017) (Entered: 09/14/2017)
52 Brief re 51 MOTION to Dismiss Pursuant to Rules 12(b)(1) and 12(b)(6) filed byBrent Cardall. (Related document(s) 51 ) (May, Eric) (Filed on 9/14/2017) (Entered: 09/14/2017)
53 NOTICE of Appearance by Vinita Andrapalliyal (Andrapalliyal, Vinita) (Filed on 9/14/2017) (Entered: 09/14/2017)
54 MOTION to Dismiss the Amended Complaint, MOTION to Dismiss for Lack of Jurisdiction filed by Elaine Duke, Jose Esquivel, Thomas D Homan, Scott Lloyd, James McCament, James McHenry, Thomas E. Price, Jefferson B. Sessions, Elicia Smith, Steven Wagner. Motion Hearing set for 10/26/2017 10:00 AM in Courtroom 4, 17th Floor, San Francisco before Hon. Vince Chhabria. Responses due by 9/25/2017. Replies due by 10/6/2017. (Attachments: # 1 Proposed Order, # 2 Exhibit A, # 3 Exhibit B)(Andrapalliyal, Vinita) (Filed on 9/14/2017) (Entered: 09/14/2017)
55 Supplemental Brief re 51 MOTION to Dismiss Pursuant to Rules 12(b)(1) and 12(b)(6) JOINDER to Federal Defendants' Motion to Dismiss filed byBrent Cardall. (Related document(s) 51 ) (May, Eric) (Filed on 9/15/2017) (Entered: 09/15/2017)
56 Proposed Order [Proposed] Stipulated Protective Order For Litigation Involving Highly Sensitive Confidential Information by Lorenza Gomez. (Attachments: # 1 Exhibit Redline Comparison to NDCal Model Protective Order for Litigation Involving Patents, Highly Sensitive Confidential Information and/or Trade Secrets)(Schenker, Martin) (Filed on 9/15/2017) (Entered: 09/15/2017)
57 STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING HIGHLY SENSITIVE CONFIDENTIAL INFORMATION. Signed by Judge Vince Chhabria on 9/18/2017. (knm, COURT STAFF) (Filed on 9/18/2017) (Entered: 09/18/2017)

Case: 3:17-cv-3615 As of: 06/17/2020 10:35 AM PDT 14 of 30

09/21/2017 09/21/2017 09/25/2017
09/25/2017
09/27/2017 09/27/2017 09/28/2017 09/29/2017 10/06/2017

58 MOTION to Dismiss First Amended Petition for Writ of Habeas Corpus and Class Action Complaint for Injunctive and Declaratory Relief filed by Jose Esquivel. Motion Hearing set for 10/26/2017 10:00 AM in Courtroom 4, 17th Floor, San Francisco before Hon. Vince Chhabria. Responses due by 10/5/2017. Replies due by 10/12/2017. (Jones, Melissa) (Filed on 9/21/2017) (Entered: 09/21/2017)
59 Statement re Rule 7.1 Corporate Disclosure by Jose Esquivel. (Jones, Melissa) (Filed on 9/21/2017) (Entered: 09/21/2017)
60 Administrative Motion to File Under Seal Documents In Support of Plaintiffs' (1) Opposition to Defendants' Motion to Dismiss; (2) Motion for Preliminary Injunction; and (3) Motion for Provisional Class Certification filed by Lorenza Gomez, Ilsa Saravia, Wilfredo Velasquez. (Attachments: # 1 Declaration of Ashley Corkery ISO Plaintiffs' Admin Motion to File Under Seal Documents ISO of Plaintiffs' (1) Opposition to Defendants' Motion to Dismiss; (2) Motion for Preliminary Injunction; and (3) Motion for Provisional Class Certification, # 2 Proposed Order Granting Plaintiffs' Admin Motion, # 3 Exhibit E to Corkery Declaration, # 4 Exhibit F to Corkery Declaration, # 5 Exhibit G to Corkery Declaration, # 6 Exhibit Redacted Version of Exhibit N to Corkery Declaration, # 7 Exhibit Unredacted version of Exhibit N to Corkery Declaration, # 8 Exhibit 5 to Johnson Declaration, # 9 Exhibit 1 to Nanos Declaration, # 10 Exhibit 5 to Nanos Declaration, # 11 Exhibit 7 to Nanos Declaration, # 12 Exhibit 8 to Nanos Declaration, # 13 Exhibit 10 to Nanos Declaration, # 14 Exhibit Redacted version of Plaintiffs' Consolidated Motion, # 15 Exhibit Unredacted version of Plaintiffs' Consolidated Motion, # 16 Exhibit Redacted version of Cruz Declaration, # 17 Exhibit Unredacted version of Cruz Declaration)(Schenker, Martin) (Filed on 9/25/2017) (Entered: 09/25/2017)
61 MOTION for Preliminary Injunction , Opposition to Motion to Dismiss, and Motion for Provisional Class Certification filed by Lorenza Gomez, Ilsa Saravia, Wilfredo Velasquez. Motion Hearing set for 10/26/2017 10:00 AM in Courtroom 4, 17th Floor, San Francisco before Vince Chhabria. Responses due by 10/6/2017. Replies due by 10/13/2017. (Attachments: # 1 Consolidated Memorandum: (1) In Opposition to Defendants' Motions to Dismiss; (2) In Support of Motion for Preliminary Injunction; and (3) In Support of Motion for Provisional Class Certification, # 2 Declaration of Ashley Corkery, # 3 Exhibit to Declaration of Ashley Corkery, # 4 Declaration of Julia Harumi Mass, # 5 Declaration of Martin S. Schenker [with exhibits], # 6 Declaration of Stephen Kang [with exhibits], # 7 Declaration of Susan Cruz, # 8 Declaration of Dr. Lisa Fortuna, # 9 Declaration of J.G., # 10 Declaration of Lorenza Gomez, # 11 Declaration of F.E., # 12 Declaration of M.U., # 13 Declaration of A.H., # 14 Declaration of Ilsa Saravia, # 15 Declaration of K.A., # 16 Declaration of Carter White [with exhibit], # 17 Declaration of Bryan Johnson, # 18 Exhibit to Johnson Declaration, # 19 Declaration of Linda Nanos, # 20 Exhibit to Nanos Declaration, # 21 Declaration of Timothy Greenberg)(Schenker, Martin) (Filed on 9/25/2017) Modified on 9/26/2017 (fff, COURT STAFF). (Entered: 09/25/2017)
62 CERTIFICATE OF SERVICE by Lorenza Gomez, Ilsa Saravia, Wilfredo Velasquez re 60 Administrative Motion to File Under Seal Documents In Support of Plaintiffs' (1) Opposition to Defendants' Motion to Dismiss; (2) Motion for Preliminary Injunction; and (3) Motion for Provisional Class Certification (Schenker, Martin) (Filed on 9/27/2017) (Entered: 09/27/2017)
63 NOTICE of Appearance by Kathlyn Anne Querubin (Querubin, Kathlyn) (Filed on 9/27/2017) (Entered: 09/27/2017)
64 STIPULATION WITH PROPOSED ORDER EXTENDING TIME TO FILE DECLARATION RE MOTION TO SEAL filed by Lorenza Gomez, Ilsa Saravia, Wilfredo Velasquez. (Freeman, William) (Filed on 9/28/2017) (Entered: 09/28/2017)
65 Order by Judge Vince Chhabria granting 64 Stipulation EXTENDING TIME TO FILE DECLARATION RE MOTION TO SEAL.(knm, COURT STAFF) (Filed on 9/29/2017) (Entered: 09/29/2017)
66 REPLY (re 51 MOTION to Dismiss Pursuant to Rules 12(b)(1) and 12(b)(6) ) Reply Brief in Support of Motion to Dismiss and Opposition to Motion for Preliminary Injunction and Provisional Class Certification filed byBrent Cardall. (May, Eric) (Filed on 10/6/2017) (Entered: 10/06/2017)

Case: 3:17-cv-3615 As of: 06/17/2020 10:35 AM PDT 15 of 30

10/06/2017 10/11/2017
10/12/2017 10/12/2017 10/13/2017 10/13/2017
10/13/2017
10/16/2017 10/17/2017 10/18/2017

67 OPPOSITION/RESPONSE (re 61 MOTION for Preliminary Injunction , Opposition to Motion to Dismiss, and Motion for Provisional Class Certification ) and Reply in Support of Motion to Dismiss filed byElaine Duke, Thomas D Homan, Scott Lloyd, James McCament, Thomas E. Price, Jefferson B. Sessions, Elicia Smith, Steven Wagner. (Attachments: # 1 Declaration, # 2 Declaration, # 3 Declaration, # 4 Declaration)(Fabian, Sarah) (Filed on 10/6/2017) (Entered: 10/06/2017)
68 OPPOSITION/RESPONSE (re 60 Administrative Motion to File Under Seal Documents In Support of Plaintiffs' (1) Opposition to Defendants' Motion to Dismiss; (2) Motion for Preliminary Injunction; and (3) Motion for Provisional Class Certification ) filed byElaine Duke, Thomas D Homan, Scott Lloyd, James McCament, James McHenry, Thomas E. Price, Jefferson B. Sessions, Elicia Smith, Steven Wagner. (Attachments: # 1 Declaration Def.s' Ex. A, # 2 Exhibit Corkery G, # 3 Exhibit Corkery N, # 4 Exhibit Corkery E, # 5 Exhibit Johnson 5, # 6 Exhibit Nanos 1, # 7 Exhibit Nanos 5, # 8 Exhibit Nanos 7, # 9 Exhibit Nanos 8, # 10 Exhibit Nanos 10)(Murley, Nicole) (Filed on 10/11/2017) (Entered: 10/11/2017)
69 REPLY (re 58 MOTION to Dismiss First Amended Petition for Writ of Habeas Corpus and Class Action Complaint for Injunctive and Declaratory Relief ) filed byJose Esquivel. (Jones, Melissa) (Filed on 10/12/2017) (Entered: 10/12/2017)
70 EXHIBITS re 68 Opposition/Response to Motion,, Supplement filed byElaine Duke, Thomas D Homan, Scott Lloyd, James McCament, James McHenry, Thomas E. Price, Jefferson B. Sessions, Elicia Smith, Steven Wagner. (Attachments: # 1 Supplement Corkery E, # 2 Supplement Corkery F)(Related document(s) 68 ) (Murley, Nicole) (Filed on 10/12/2017) (Entered: 10/12/2017)
71 NOTICE of Appearance by Holly Stafford Cooper (Cooper, Holly) (Filed on 10/13/2017) (Entered: 10/13/2017)
72 Administrative Motion to File Under Seal Documents ISO Plaintiffs': (1) Reply ISO Motion for Preliminary Injunction; and (2) Reply ISO Motion for Class Cert filed by Lorenza Gomez, Ilsa Saravia, Wilfredo Velasquez. (Attachments: # 1 Declaration of Kempner ISO Plts Admin Motion to Seal, # 2 Proposed Order Granting Admin Motion to Seal, # 3 Exhibit Unredacted Version of Exhibit A to Kempner Declaration, # 4 Exhibit Unredacted Version of Exhibit 1 to Simon Declaration, # 5 Redacted Version of Plts' Consolidated Reply Memo: (1) ISO Motion for Preliminary Injunction and (2) ISO Motion for Class Cert, # 6 Unredacted Version of Plts' Consolidated Reply Memo: (1) ISO Motion for Preliminary Injunction and (2) ISO Motion for Class Cert, # 7 Declaration Redacted Version of Simon Declaration, # 8 Declaration Unredacted Version of Simon Declaration)(Schenker, Martin) (Filed on 10/13/2017) (Entered: 10/13/2017)
73 REPLY (re 61 MOTION for Preliminary Injunction , Opposition to Motion to Dismiss, and Motion for Provisional Class Certification ) Plaintiffs' Consolidated Reply Memorandum: (1) ISO Motion for Preliminary Injunction; and (2) ISO Motion for Provisional Class Certification filed byLorenza Gomez, Ilsa Saravia, Wilfredo Velasquez. (Attachments: # 1 Declaration of Kempner ISO Plts' Consolidated Reply Memo (with exhibits A & B) − Redacted, # 2 Declaration of Simon ISO Plts' Consolidated Reply Memo (with exhibit 1) − Redacted, # 3 Declaration of Holguin ISO Plts' Consolidated Reply Memo (with exhibits 1−5))(Schenker, Martin) (Filed on 10/13/2017) (Entered: 10/13/2017)
74 CERTIFICATE OF SERVICE by Lorenza Gomez, Ilsa Saravia, Wilfredo Velasquez re 72 Administrative Motion to File Under Seal Documents ISO Plaintiffs': (1) Reply ISO Motion for Preliminary Injunction; and (2) Reply ISO Motion for Class Cert (Schenker, Martin) (Filed on 10/16/2017) (Entered: 10/16/2017)
75 STIPULATION WITH PROPOSED ORDER re 72 Administrative Motion to File Under Seal Documents ISO Plaintiffs': (1) Reply ISO Motion for Preliminary Injunction; and (2) Reply ISO Motion for Class Cert filed by Elaine Duke, Thomas D Homan, Scott Lloyd, James McCament, James McHenry, Thomas E. Price, Jefferson B. Sessions, Elicia Smith, Steven Wagner. (Murley, Nicole) (Filed on 10/17/2017) (Entered: 10/17/2017)
76 ERRATA re 61 MOTION for Preliminary Injunction , Opposition to Motion to Dismiss, and Motion for Provisional Class Certification by Lorenza Gomez.

Case: 3:17-cv-3615 As of: 06/17/2020 10:35 AM PDT 16 of 30

10/18/2017 10/19/2017
10/19/2017 10/19/2017 10/20/2017 10/23/2017 10/25/2017
10/27/2017

(Schenker, Martin) (Filed on 10/18/2017) (Entered: 10/18/2017)
77 Order by Judge Vince Chhabria granting 75 Stipulation Extending Time to File Declaration Re: Motion to Seal.(knm, COURT STAFF) (Filed on 10/18/2017) (Entered: 10/18/2017)
78 CLERK'S NOTICE RESCHEDULING AND CHANGING THE LOCATION OF THE HEARING RE 51 MOTION to Dismiss Pursuant to Rules 12(b)(1) and 12(b)(6), 58 MOTION to Dismiss First Amended Petition for Writ of Habeas Corpus and Class Action Complaint for Injunctive and Declaratory Relief, 54 MOTION to Dismiss the Amended Complaint MOTION to Dismiss for Lack of Jurisdiction , 61 MOTION for Preliminary Injunction , Opposition to Motion to Dismiss, and Motion for Provisional Class Certification. Motion Hearing set for 10/27/2017 01:30 PM in Courtroom 2, 17th Floor, San Francisco before Judge Vince Chhabria. (This is a text−only entry generated by the court. There is no document associated with this entry.) (knm, COURT STAFF) (Filed on 10/19/2017) (Entered: 10/19/2017)
79 Administrative Motion to File Under Seal in Support of Plaintiffs Administrative Motion to Supplement Record re: Plaintiffs Motion for Preliminary Injunction filed by Lorenza Gomez, Ilsa Saravia, Wilfredo Velasquez. (Attachments: # 1 Declaration of Ashley K. Corkery, # 2 Exhibit Redacted Version of Exhibit 1 to Plaintiffs Administrative Motion to Supplement Record, # 3 Exhibit Unredacted Version of Exhibit 1 to Plaintiffs Administrative Motion to Supplement Record, # 4 Proposed Order)(Schenker, Martin) (Filed on 10/19/2017) (Entered: 10/19/2017)
80 ADMINISTRATIVE MOTION Supplement Record re: Plaintiffs Motion for Preliminary Injunction re 61 MOTION for Preliminary Injunction , Opposition to Motion to Dismiss, and Motion for Provisional Class Certification filed by Lorenza Gomez, Ilsa Saravia, Wilfredo Velasquez. Responses due by 10/23/2017. (Attachments: # 1 Exhibit Redacted Exhibit 1 to Administrative Motion to Supplement Record, # 2 Declaration of William S. Freeman, # 3 Proposed Order)(Schenker, Martin) (Filed on 10/19/2017) (Entered: 10/19/2017)
81 CERTIFICATE OF SERVICE by Lorenza Gomez, Ilsa Saravia, Wilfredo Velasquez re 79 Administrative Motion to File Under Seal in Support of Plaintiffs Administrative Motion to Supplement Record re: Plaintiffs Motion for Preliminary Injunction (Schenker, Martin) (Filed on 10/20/2017) (Entered: 10/20/2017)
82 OPPOSITION/RESPONSE (re 72 Administrative Motion to File Under Seal Documents ISO Plaintiffs': (1) Reply ISO Motion for Preliminary Injunction; and (2) Reply ISO Motion for Class Cert ) filed byElaine Duke, Thomas D Homan, Scott Lloyd, James McCament, James McHenry, Thomas E. Price, Jefferson B. Sessions, Elicia Smith, Steven Wagner. (Attachments: # 1 Exhibit, # 2 Exhibit)(Murley, Nicole) (Filed on 10/23/2017) (Entered: 10/23/2017)
83 CLERK'S NOTICE RESETTING THE TIME FOR THE HEARING RE 51 MOTION to Dismiss Pursuant to Rules 12(b)(1) and 12(b)(6), 58 MOTION to Dismiss First Amended Petition for Writ of Habeas Corpus and Class Action Complaint for Injunctive and Declaratory Relief, 54 MOTION to Dismiss the Amended Complaint MOTION to Dismiss for Lack of Jurisdiction , 61 MOTION for Preliminary Injunction , Opposition to Motion to Dismiss, and Motion for Provisional Class Certification. Motion Hearing set for 10/27/2017 10:00 AM in Courtroom 2, 17th Floor, San Francisco before Judge Vince Chhabria. (This is a text−only entry generated by the court. There is no document associated with this entry.) (knm, COURT STAFF) (Filed on 10/25/2017) (Entered: 10/25/2017)
84 Minute Entry for proceedings held before Judge Vince Chhabria:
Motion Hearing held on 10/27/2017 re 51 MOTION to Dismiss Pursuant to Rules 12(b)(1) and 12(b)(6) filed by Brent Cardall, 54 MOTION to Dismiss the Amended Complaint MOTION to Dismiss for Lack of Jurisdiction filed by Elaine Duke, Jefferson B. Sessions, Steven Wagner, Jose Esquivel, Elicia Smith, James McCament, Thomas D Homan, Thomas E. Price, James McHenry, Scott Lloyd, 58 MOTION to Dismiss First Amended Petition for Writ of Habeas Corpus and Class Action Complaint for Injunctive and Declaratory Relief filed by Jose Esquivel, 61 MOTION for Preliminary Injunction , Opposition to Motion to Dismiss, and Motion for Provisional Class Certification filed by Wilfredo

Case: 3:17-cv-3615 As of: 06/17/2020 10:35 AM PDT 17 of 30

10/30/2017 10/31/2017 11/01/2017
11/02/2017 11/02/2017 11/03/2017 11/03/2017 11/07/2017 11/07/2017 11/07/2017

Velasquez, Lorenza Gomez, Ilsa Saravia. Motions are taken under submission.
Total Time in Court: 4 Hours; 58 Minutes. Court Reporter: Debra Pas.
Plaintiff Attorneys: Martin S. Schenker, Julia Harumi Mass, Nathaniel Cooper, Trevor Kempner, Ashley Corkery, Kathlyn Querubin, Stephen Kang. Defendant Attorneys: Sarah Fabian, Nicole Murley, Philip Pogledich, Melissa Jones.
(Attachments: # 1 Log)(afmS, COURT STAFF) (Date Filed: 10/27/2017) (Entered: 10/30/2017)
85 ORDER RE FURTHER BRIEFING. Signed by Judge Vince Chhabria on October 30, 2017. (vclc3S, COURT STAFF) (Filed on 10/30/2017) (Entered: 10/30/2017)
86 TRANSCRIPT ORDER for proceedings held on 10/27/2017 before Judge Vince Chhabria by Lorenza Gomez, Ilsa Saravia, Wilfredo Velasquez, for Court Reporter Debra Pas. (Corkery, Ashley) (Filed on 10/31/2017) (Entered: 10/31/2017)
87 TRANSCRIPT ORDER for proceedings held on 10/27/2017 before Judge Vince Chhabria by Elaine Duke, Thomas D Homan, Scott Lloyd, James McCament, James McHenry, Thomas E. Price, Jefferson B. Sessions, Elicia Smith, Steven Wagner, for Court Reporter Debra Pas. (Murley, Nicole) (Filed on 11/1/2017) (Entered: 11/01/2017)
88 Supplemental Brief re 85 Order for Supplemental Briefing filed byElaine Duke, Thomas D Homan, Scott Lloyd, James McCament, James McHenry, Thomas E. Price, Jefferson B. Sessions, Elicia Smith, Steven Wagner. (Related document(s) 85 ) (Murley, Nicole) (Filed on 11/2/2017) (Entered: 11/02/2017)
89 ORDER re 88 Federal Defendants' Supplemental Brief. Signed by Judge Vince Chhabria on November 2, 2017. (vclc3S, COURT STAFF) (Filed on 11/2/2017) (Entered: 11/02/2017)
90 Supplemental Brief re 89 Order Supplemental Citations filed byElaine Duke, Thomas D Homan, Scott Lloyd, James McCament, James McHenry, Thomas E. Price, Jefferson B. Sessions, Elicia Smith, Steven Wagner. (Related document(s) 89 ) (Murley, Nicole) (Filed on 11/3/2017) (Entered: 11/03/2017)
91 Supplemental Brief re 85 Order re Further Briefing filed byLorenza Gomez, Ilsa Saravia, Wilfredo Velasquez. (Related document(s) 85 ) (Mass, Julia) (Filed on 11/3/2017) (Entered: 11/03/2017)
92 Order by Judge Vince Chhabria granting 80 Administrative Motion to Supplement Record re: Plaintiffs Motion for Preliminary Injunction.(knm, COURT STAFF) (Filed on 11/7/2017) (Entered: 11/07/2017)
93 CLERK'S NOTICE SCHEDULING A TELEPHONE STATUS CONFERENCE. Telephone Conference set for 11/7/2017 10:00 AM before Judge Vince Chhabria. (This is a text−only entry generated by the court. There is no document associated with this entry.) (knm, COURT STAFF) (Filed on 11/7/2017) (Entered: 11/07/2017)
94 Minute Entry for proceedings held before Judge Vince Chhabria: Telephone Conference held on 11/7/2017. The Court indicated his tentative impressions of the motions and invited the parties to appear for further argument. Motion Hearing set for 11/9/2017 11:00 AM in Courtroom 2, 17th Floor, San Francisco before Judge Vince Chhabria.Total Time in Court: 30 minutes. Hearing not reported or recorded. Plaintiff Attorney: Nathaniel Cooper, Holly Cooper, Ashley Corkery, Bill Freeman, Stephen Kang, Trevor Kempner, Martin Schenker, and Julia Mass. Defendant Attorney: Sarah Fabian, Nicole Murley, and Vinita Andrapalliyal for Federal Defendants; Eric May for Cardall. (This is a text−only entry generated by the court. There is no document associated with this entry.) (knm, COURT STAFF) (Date Filed: 11/7/2017) (Entered: 11/07/2017)

Case: 3:17-cv-3615 As of: 06/17/2020 10:35 AM PDT 18 of 30

11/09/2017
11/15/2017 11/16/2017 11/17/2017
11/18/2017 11/20/2017 11/21/2017 11/22/2017 11/27/2017

95 Minute Entry for proceedings held before Judge Vince Chhabria: Motion Hearing held on 11/9/2017 re 61 MOTION for Preliminary Injunction , Opposition to Motion to Dismiss, and Motion for Provisional Class Certification filed by Ilsa Saravia, Wilfredo Velasquez, Lorenza Gomez. The Court heard further argument from counsel after his tentative ruling expressed on 11/7/2017. The Court will issue a written ruling. FTR Time: 11:05− 12:56 and 1:02− 1:19. Plaintiff Attorney: Nathaniel Cooper, Ashley Corkery, Holly Cooper, William Freeman, Trevor Kempner, and Julia Harumi Mass. Defendant Attorney: Sarah Fabian for Federal Defendants. (This is a text−only entry generated by the court. There is no document associated with this entry.) (knmS, COURT STAFF) (Date Filed: 11/9/2017) Modified on 11/15/2017: Matter transcribed by Tara Bauer (ECHO Reporting). (rjdS, COURT STAFF). (Entered: 11/09/2017)
96 TRANSCRIPT ORDER for proceedings held on November 9, 2017 before Judge Vince Chhabria by Lorenza Gomez, Ilsa Saravia, Wilfredo Velasquez, for Court Reporter FTR − San Francisco. (Corkery, Ashley) (Filed on 11/15/2017) (Entered: 11/15/2017)
97 TRANSCRIPT ORDER for proceedings held on 11/09/2017 before Judge Vince Chhabria by Brent Cardall, Elaine Duke, Thomas D Homan, Scott Lloyd, James McCament, James McHenry, Thomas E. Price, Jefferson B. Sessions, Elicia Smith, Steven Wagner, for Court Reporter FTR − San Francisco. (Murley, Nicole) (Filed on 11/16/2017) (Entered: 11/16/2017)
98 Transcript of Proceedings held on 10−27−2017, before Judge Vince Chhabria. Court Reporter/Transcriber Debra L. Pas, CRR, telephone number (415) 431−1477/email: Debra_Pas@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/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. (Re 86 Transcript Order ) Release of Transcript Restriction set for 2/15/2018. (Related documents(s) 86 ) (pasdl50S, COURT STAFF) (Filed on 11/17/2017) (Entered: 11/17/2017)
99 ADMINISTRATIVE MOTION Supplement the Record re 61 MOTION for Preliminary Injunction , Opposition to Motion to Dismiss, and Motion for Provisional Class Certification filed by Lorenza Gomez, Ilsa Saravia, Wilfredo Velasquez. Responses due by 11/27/2017. (Attachments: # 1 Exhibit, # 2 Declaration, # 3 Proposed Order)(Mass, Julia) (Filed on 11/18/2017) (Entered: 11/18/2017)
100 ORDER GRANTING THE MOTION FOR PRELIMINARY INJUNCTION; GRANTING THE MOTION FOR PROVISIONAL CLASS CERTIFICATION; GRANTING IN PART AND DENYING IN PART THE FEDERAL DEFENDANTS' MOTION TO DISMISS; GRANTING IN FULL THE NON−FEDERAL DEFENDANTS' MOTIONS TO DISMISS, re 51 , 54 , 58 , 61 . Signed by Judge Vince Chhabria on November 20, 2017. (vclc3S, COURT STAFF) (Filed on 11/20/2017) (Entered: 11/20/2017)
101 Order by Judge Vince Chhabria granting 99 Administrative Motion to Further Supplement the Record re Plaintiffs' Motion for Preliminary Injunction.(knm, COURT STAFF) (Filed on 11/21/2017) (Entered: 11/21/2017)
102 Order by Judge Vince Chhabria re Administrative Motions to File Under Seal.(knm, COURT STAFF) (Filed on 11/22/2017) (Entered: 11/22/2017)
103 Emergency Ex Parte Application PLAINTIFFS EMERGENCY APPLICATION FOR RELIEF RE HEARINGS FOR ALL CLASS MEMBERS AND IMMEDIATE RELEASE OF SOME CLASS MEMBERS filed by Lorenza Gomez, Ilsa Saravia, Wilfredo Velasquez. (Attachments: # 1 Declaration OF STEPHEN B. KANG IN SUPPORT OF EMERGENCY APPLICATION FOR RELIEF WITH EXHIBIT 1, # 2 Exhibit 2 OF KANG DECLARATION, # 3 Exhibit 3 OF KANG DECLARATION, # 4 Exhibit 4 OF KANG DECLARATION, # 5 Declaration OF JULIA HARUMI MASS IN SUPPORT OF EMERGENCY APPLICATION FOR RELIEF, # 6 Exhibit 1 OF MASS DECLARATION, # 7 Exhibit 2 OF MASS DECLARATION, # 8 Exhibit 3 OF MASS DECLARATION, # 9 Exhibit 4 OF MASS DECLARATION, # 10 Exhibit 5 OF MASS DECLARATION, # 11 Proposed Order GRANTING PLAINTIFFS

Case: 3:17-cv-3615 As of: 06/17/2020 10:35 AM PDT 19 of 30

11/27/2017 11/27/2017 11/27/2017
12/01/2017
12/06/2017 12/07/2017 12/08/2017 12/08/2017 12/08/2017

EMERGENCY APPLICATION FOR RELIEF)(Freeman, William) (Filed on 11/27/2017) (Entered: 11/27/2017)
104 CLERK'S NOTICE SCHEDULING A TELEPHONIC STATUS CONFERENCE. Status Conference set for 11/27/2017 03:00 PM in Chambers−SF before Judge Vince Chhabria. (This is a text−only entry generated by the court. There is no document associated with this entry.) (knm, COURT STAFF) (Filed on 11/27/2017) (Entered: 11/27/2017)
105 ORDER re 103 GRANTING IN PART PLAINTIFFS' EMERGENCY APPLICATION FOR RELIEF. Signed by Judge Vince Chhabria on November 27, 2017. (vclc3S, COURT STAFF) (Filed on 11/27/2017) (Entered: 11/27/2017)
106 Minute Entry for proceedings held before Judge Vince Chhabria: Telephonic Status Conference held on 11/27/2017 re: 103 Emergency Ex Parte Application PLAINTIFFS EMERGENCY APPLICATION FOR RELIEF RE HEARINGS FOR ALL CLASS MEMBERS AND IMMEDIATE RELEASE OF SOME CLASS MEMBERS filed by Ilsa Saravia, Wilfredo Velasquez, Lorenza Gomez. The Court issued a written ruling based on the discussions held during the telephonic conference today. Total Time in Court: 1 hour 30 minutes. Hearing not reported or recorded. Plaintiff Attorney: William Freeman, Julia Mass, Stephen Kang, Martin Schenker, and Holly Cooper. Defendant Attorney: Sarah Fabian and Nicole Murley. (This is a text−only entry generated by the court. There is no document associated with this entry.) (knm, COURT STAFF) (Date Filed: 11/27/2017) (Entered: 11/28/2017)
107 Transcript of Proceedings of the official sound recording held on 11/09/17, before Judge Vince Chhabria. FTR/Transcriber Echo Reporting, Inc., telephone number 8584537590. Tape Number: FTR 11:05 − 12:56/1:02 − 1:19. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/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. (Re 96 Transcript Order ) Redaction Request due 12/22/2017. Redacted Transcript Deadline set for 1/2/2018. Release of Transcript Restriction set for 3/1/2018. (Related documents(s) 96 ) (tgb, COURT STAFF) (Filed on 12/1/2017) (Entered: 12/01/2017)
108 Emergency Ex Parte Application PLAINTIFFS EMERGENCY APPLICATION FOR RELIEF RE RELEASE OF A.H. FROM ORR DETENTION filed by Lorenza Gomez, Ilsa Saravia, Wilfredo Velasquez. (Attachments: # 1 Declaration OF JULIA HARUMI MASS IN SUPPORT OF EMERGENCY APPLICATION FOR RELIEF RE RELEASE OF A.H. FROM DETENTION, # 2 Exhibit 1−4, # 3 Proposed Order)(Freeman, William) (Filed on 12/6/2017) (Entered: 12/06/2017)
109 ORDER REQUESTING RESPONSE TO EMERGENCY APPLICATION. Signed by Judge Vince Chhabria on December 7, 2017. (vclc3S, COURT STAFF) (Filed on 12/7/2017) (Entered: 12/07/2017)
110 RESPONSE to re 102 Order on Administrative Motion to File Under Seal (Plaintiffs' Response to Court's Request for Updated Proposed Redactions) by Lorenza Gomez, Ilsa Saravia, Wilfredo Velasquez. (Attachments: # 1 Declaration of Ashley K. Corkery, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9)(Schenker, Martin) (Filed on 12/8/2017) (Entered: 12/08/2017)
111 Proposed Order re 60 Administrative Motion to File Under Seal Documents In Support of Plaintiffs' (1) Opposition to Defendants' Motion to Dismiss; (2) Motion for Preliminary Injunction; and (3) Motion for Provisional Class Certification, 72 Administrative Motion to File Under Seal Documents ISO Plaintiffs': (1) Reply ISO Motion for Preliminary Injunction; and (2) Reply ISO Motion for Class Cert ([PROPOSED] FURTHER ORDER RE ADMINISTRATIVE MOTIONS TO FILE UNDER SEAL) by Lorenza Gomez, Ilsa Saravia, Wilfredo Velasquez. (Schenker, Martin) (Filed on 12/8/2017) (Entered: 12/08/2017)
112 RESPONSE to re 102 Order on Administrative Motion to File Under Seal, 101 Order on Administrative Motion per Civil Local Rule 7−11 by Elaine Duke, Thomas D

Case: 3:17-cv-3615 As of: 06/17/2020 10:35 AM PDT 20 of 30

12/11/2017
12/11/2017 12/12/2017 12/12/2017 12/12/2017 12/12/2017
12/13/2017 12/16/2017 12/19/2017 12/20/2017 12/21/2017 12/22/2017

Homan, James McCament, James McHenry, Thomas E. Price, Jefferson B. Sessions, Elicia Smith, Steven Wagner. (Attachments: # 1 Exhibit A)(Murley, Nicole) (Filed on 12/8/2017) (Entered: 12/08/2017)
113 OPPOSITION/RESPONSE (re 108 Emergency Ex Parte Application PLAINTIFFS EMERGENCY APPLICATION FOR RELIEF RE RELEASE OF A.H. FROM ORR DETENTION ) filed byElaine Duke, Thomas D Homan, Scott Lloyd, James McCament, James McHenry, Thomas E. Price, Jefferson B. Sessions, Elicia Smith, Steven Wagner. (Attachments: # 1 Declaration White, # 2 Exhibit, # 3 Exhibit)(Fabian, Sarah) (Filed on 12/11/2017) (Entered: 12/11/2017)
114 Administrative Motion to File Under Seal filed by Elaine Duke, Thomas D Homan, Scott Lloyd, James McCament, James McHenry, Thomas E. Price, Jefferson B. Sessions, Elicia Smith, Steven Wagner. (Attachments: # 1 Declaration of Nicole N Murley, # 2 Proposed Order, # 3 Exhibit, # 4 Exhibit)(Murley, Nicole) (Filed on 12/11/2017) (Entered: 12/11/2017)
115 REPLY (re 108 Emergency Ex Parte Application PLAINTIFFS EMERGENCY APPLICATION FOR RELIEF RE RELEASE OF A.H. FROM ORR DETENTION ) filed byLorenza Gomez, Ilsa Saravia, Wilfredo Velasquez. (Freeman, William) (Filed on 12/12/2017) (Entered: 12/12/2017)
116 CLERK'S NOTICE SCHEDULING A TELEPHONIC SCHEDULING CONFERNECE. Telephone Conference set for 12/12/2017 12:00 PM in Chambers−SF before Judge Vince Chhabria. (This is a text−only entry generated by the court. There is no document associated with this entry.) (knm, COURT STAFF) (Filed on 12/12/2017) (Entered: 12/12/2017)
117 ORDER RE 108 EMERGENCY APPLICATION CONCERNING RELEASE OF A.H. Signed by Judge Vince Chhabria on December 12, 2017. (vclc3S, COURT STAFF) (Filed on 12/12/2017) (Entered: 12/12/2017)
118 Minute Entry for proceedings held before Judge Vince Chhabria: Telephone Conference held on 12/12/2017. Hearing re Emergency Application held.Total Time in Court: 23 minutes. Hearing not reported or recorded. Plaintiff Attorney: William Freeman, Julia Mass, Martin Schenker, Holly Cooper, and Stephen Kang. Defendant Attorney: Sarah Fabian and Nicole Murley. (This is a text−only entry generated by the court. There is no document associated with this entry.) (knm, COURT STAFF) (Date Filed: 12/12/2017) (Entered: 12/13/2017)
119 Order by Judge Vince Chhabria granting 114 Administrative Motion to File Under Seal Documents in Support of Defendants' Response to Plaintiffs' Emergency Application for Relief.(knm, COURT STAFF) (Filed on 12/13/2017) (Entered: 12/13/2017)
120 ADMINISTRATIVE MOTION Expedited Briefing and Hearing Schedule filed by Elaine Duke, Thomas D Homan, Scott Lloyd, James McCament, James McHenry, Thomas E. Price, Jefferson B. Sessions, Elicia Smith, Steven Wagner. Responses due by 12/21/2017. (Attachments: # 1 Declaration of Nicole N Murley, # 2 Exhibit A, # 3 Proposed Order)(Murley, Nicole) (Filed on 12/16/2017) (Entered: 12/16/2017)
121 ORDER REQUIRING RESPONSE TO MOTION FOR STAY. Responses due by 1/4/2018. Signed by Judge Vince Chhbabria on 12/19/2017. (knm, COURT STAFF) (Filed on 12/19/2017) (Entered: 12/19/2017)
122 NOTICE by Jose Esquivel Requesting Removal from Courtesy Notification (Jones, Melissa) (Filed on 12/20/2017) (Entered: 12/20/2017)
123 MODIFIED FURTHER ORDER RE ADMINISTRATIVE MOTIONS TO FILE UNDER SEAL. Signed by Judge Vince Chhabria on 12/21/2017. (knm, COURT STAFF) (Filed on 12/21/2017) (Entered: 12/21/2017)
124 NOTICE by Elaine Duke, Thomas D Homan, Scott Lloyd, James McCament, James McHenry, Thomas E. Price, Jefferson B. Sessions, Elicia Smith, Steven Wagner Attaching Class Member Chart (Attachments: # 1 Exhibit)(Fabian, Sarah) (Filed on 12/22/2017) (Entered: 12/22/2017)

Case: 3:17-cv-3615 As of: 06/17/2020 10:35 AM PDT 21 of 30

01/02/2018
01/03/2018 01/04/2018
01/04/2018 01/05/2018 01/19/2018 01/19/2018 01/30/2018 01/31/2018 02/01/2018 02/01/2018 02/06/2018
02/08/2018

125 CLERK'S NOTICE SCHEDULING A TELEPHONIC FURTHER CASE MANAGEMENT CONFERENCE FOR 1/4/2018 AT 10:00 A.M. Plaintiff shall provide the Court and all other parties a conference line and applicable access code to use during the hearing by no later than 10:00 a.m. on 1/3/2018, by way of email to the Court (vccrd@cand.uscourts.gov) with a cc to opposing counsel. Telephonic Further Case Management Conference set for 1/4/2018 10:00 AM in Courtroom 2, 17th Floor, San Francisco. (This is a text−only entry generated by the court. There is no document associated with this entry.) (knm, COURT STAFF) (Filed on 1/2/2018) (Entered: 01/02/2018)
126 ORDER RE CASE MANAGEMENT CONFERENCE. Signed by Judge Vince Chhabria on 1/3/2018. (knm, COURT STAFF) (Filed on 1/3/2018) (Entered: 01/03/2018)
127 Minute Entry for proceedings held before Judge Vince Chhabria: Telephonic Further Case Management Conference held on 1/4/2018. Case Management Statement, which includes a proposal or cross proposals re how to advance the case is due by 2/1/2018. Telephonic Further Case Management Conference set for 2/8/2018 10:00 AM in Courtroom 4, 17th Floor, San Francisco. The Court does not feel the parties need to meet and confer re initial disclosures and ADR prior to the next CMC.FTR Time: 10:17− 10:32. Plaintiff Attorney: William Freeman, Julia Mass, Stephen Kang, Martin Schenker, Kathlyn Querubin, Trevor Kempner, Ashley Corker, Holly Cooper, Nathaniel Cooper. Defendant Attorney: Nicole Murley. (This is a text−only entry generated by the court. There is no document associated with this entry.) (knm, COURT STAFF) (Date Filed: 1/4/2018) (Entered: 01/04/2018)
128 RESPONSE to re 121 Order, Set Motion and Deadlines/Hearings Plaintiffs' Opposition to Defendants' Motion for a Stay Pending Authorization by Ilsa Saravia. (Schenker, Martin) (Filed on 1/4/2018) (Entered: 01/04/2018)
129 ORDER DENYING MOTION FOR STAY PENDING APPEAL AUTHORIZATION. Signed by Judge Vince Chhabria on 1/5/2018. (knm, COURT STAFF) (Filed on 1/5/2018) (Entered: 01/05/2018)
130 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Elaine Duke, Thomas D Homan, Scott Lloyd, James McCament, James McHenry, Thomas E. Price, Jefferson B. Sessions, Elicia Smith, Steven Wagner. Appeal of Order, 100 (Appeal fee FEE WAIVED.) (Fabian, Sarah) (Filed on 1/19/2018) (Entered: 01/19/2018)
131 NOTICE of Change In Counsel by Vinita Andrapalliyal (Andrapalliyal, Vinita) (Filed on 1/19/2018) (Entered: 01/19/2018)
132 Transcript Designation Form for proceedings held on 6/29/27, 10/27/17, 11/9/2017 before Judge Judge Chhabria, (Fabian, Sarah) (Filed on 1/30/2018) (Entered: 01/30/2018)
Exhibit Location: Shelf 94. (fabS, COURT STAFF) (Filed on 1/31/2018) (Entered: 01/31/2018)
133 ORDER of USCA (fabS, COURT STAFF) (Filed on 2/1/2018) (Entered: 02/01/2018)
134 JOINT CASE MANAGEMENT STATEMENT filed by Lorenza Gomez, Ilsa Saravia, Wilfredo Velasquez. (Freeman, William) (Filed on 2/1/2018) (Entered: 02/01/2018)
135 CLERK'S NOTICE: Plaintiff shall provide the Court and all other parties a conference line and applicable access code to use during the Telephonic CMC on 2/8/2018 by no later than 1:00 p.m. on 2/6/2018, by way of email to the Court (vccrd@cand.uscourts.gov) with a cc to opposing counsel. (This is a text−only entry generated by the court. There is no document associated with this entry.) (knm, COURT STAFF) (Filed on 2/6/2018) (Entered: 02/06/2018)
136 Minute Entry for proceedings held before Judge Vince Chhabria: Telephonic Further Case Management Conference held on 2/8/2018. The Court will issue a written order.FTR Time: 10:06− 10:20. Plaintiff Attorney: William Freeman, Julia Mass, Stephen Kang, Martin Schenker, and Holly Cooper. Defendant Attorney: Sarah Fabian and Nicole Murley. (This is a text−only entry generated by the court. There is no document associated with this entry.) (knm, COURT STAFF)

Case: 3:17-cv-3615 As of: 06/17/2020 10:35 AM PDT 22 of 30

02/14/2018 03/01/2018
03/07/2018 03/07/2018
03/08/2018 03/15/2018
03/15/2018 03/16/2018
03/22/2018
03/29/2018 04/09/2018 09/06/2018 09/06/2018 10/03/2018 10/09/2018 10/19/2018

(Date Filed: 2/8/2018) (Entered: 02/08/2018)
137 ORDER STAYING CASE AND DENYING PENDING MOTIONS WITHOUT PREJUDICE. Signed by Judge Vince Chhabria on 2/14/2018. (knm, COURT STAFF) (Filed on 2/14/2018) (Entered: 02/14/2018)
138 MOTION to Lift Stay filed by Lorenza Gomez, Ilsa Saravia, Wilfredo Velasquez. Motion Hearing set for 4/5/2018 10:00 AM in San Francisco, Courtroom 04, 17th Floor before Judge Vince Chhabria. Responses due by 3/15/2018. Replies due by 3/22/2018. (Attachments: # 1 Stipulation, # 2 Declaration of Stephen Kang and Exhibit, # 3 Declaration of Marty Schenker, # 4 Declaration of Mayra Jimenez, # 5 Declaration of Bryan Johnson and Exhibit)(Kang, Stephen) (Filed on 3/1/2018) Modified on 3/7/2018 (knm, COURT STAFF). (Entered: 03/01/2018)
139 Order by Judge Vince Chhabria granting 138 Stipulation to Advance Hearing re Motion to Lift Stay.(knm, COURT STAFF) (Filed on 3/7/2018) (Entered: 03/07/2018)
Reset Deadlines as to 138 MOTION to Lift Stay . Responses due by 3/15/2018. Motion Hearing set for 3/22/2018 10:00 AM in San Francisco, Courtroom 04, 17th Floor before Judge Vince Chhabria. (knm, COURT STAFF) (Filed on 3/7/2018) (Entered: 03/07/2018)
140 Clerk's Notice of Video Recording Request. Video Camera hearing set for 3/22/2018 10:00 AM. Objections to Video Recording due 3/15/2018. (knm, COURT STAFF) (Filed on 3/8/2018) (Entered: 03/08/2018)
141 OPPOSITION/RESPONSE (re 138 MOTION to Lift Stay ) filed byElaine Duke, Thomas D Homan, Scott Lloyd, James McCament, James McHenry, Thomas E. Price, Jefferson B. Sessions, Elicia Smith, Steven Wagner. (Murley, Nicole) (Filed on 3/15/2018) (Entered: 03/15/2018)
142 ORDER RE MOTION TO LIFT STAY. Signed by Judge Vince Chhabria on 3/15/2018. (vclc1S, COURT STAFF) (Filed on 3/15/2018) (Entered: 03/15/2018)
143 CLERK'S NOTICE: The hearing scheduled for 3/22/2018 re plaintiffs' Motion to Lift Stay has been vacated, which renders the request to video record the proceeding moot. (This is a text−only entry generated by the court. There is no document associated with this entry.) (knm, COURT STAFF) (Filed on 3/16/2018) (Entered: 03/16/2018)
144 Supplemental Brief re 142 Order, 141 Opposition/Response to Motion, filed byElaine Duke, Thomas D Homan, Scott Lloyd, James McCament, James McHenry, Thomas E. Price, Jefferson B. Sessions, Elicia Smith, Steven Wagner. (Related document(s) 142 , 141 ) (Murley, Nicole) (Filed on 3/22/2018) (Entered: 03/22/2018)
145 REPLY (re 138 MOTION to Lift Stay ) filed byLorenza Gomez, Ilsa Saravia, Wilfredo Velasquez. (Attachments: # 1 Affidavit Declaration of Timothy Greenberg)(Kang, Stephen) (Filed on 3/29/2018) (Entered: 03/29/2018)
146 Order by Judge Vince Chhabria denying 138 Motion to Lift Stay.(knm, COURT STAFF) (Filed on 4/9/2018) (Entered: 04/09/2018)
147 NOTICE by Lorenza Gomez, Ilsa Saravia, Wilfredo Velasquez Withdrawal of Counsel for Julia Harumi Mass (Freeman, William) (Filed on 9/6/2018) (Entered: 09/06/2018)
148 NOTICE by Lorenza Gomez, Ilsa Saravia, Wilfredo Velasquez Withdrawal of Counsel for Julia Harumi Mass CORRECTION OF DOCKET # 147 (Freeman, William) (Filed on 9/6/2018) (Entered: 09/06/2018)
149 USCA OPINION. (fabS, COURT STAFF) (Filed on 10/3/2018) (Entered: 10/03/2018)
150 NOTICE of Appearance by Sean Connor Riordan (Riordan, Sean) (Filed on 10/9/2018) (Entered: 10/09/2018)
151 CLERK'S NOTICE SCHEDULING A TELEPHONIC FURTHER CASE MANAGEMENT CONFERENCE FOR 11/1/2018. Plaintiff shall provide the Court and all other parties a conference line and applicable access code to use during the hearing no later than three court days prior to the case management conference by way of email to the Court (vccrd@cand.uscourts.gov) with a cc to opposing counsel.

Case: 3:17-cv-3615 As of: 06/17/2020 10:35 AM PDT 23 of 30

10/22/2018 10/25/2018 11/01/2018
11/01/2018

Telephonic Further Case Management Conference set for 11/1/2018 02:00 PM. (This is a text−only entry generated by the court. There is no document associated with this entry.) (knm, COURT STAFF) (Filed on 10/19/2018) (Entered: 10/19/2018)
152 NOTICE of Appearance by David W White (White, David) (Filed on 10/22/2018) (Entered: 10/22/2018)
153 JOINT CASE MANAGEMENT STATEMENT filed by Lorenza Gomez, Ilsa Saravia, Wilfredo Velasquez. (Freeman, William) (Filed on 10/25/2018) (Entered: 10/25/2018)
154 CLERK'S NOTICE RESETTING THE TIME FOR THE TELEPHONIC FURTHER CASE MANAGEMENT CONFERENCE FOR 11/1/2018. Telephonic Further Case Management Conference set for 11/1/2018 02:30 PM. (This is a text−only entry generated by the court. There is no document associated with this entry.) (knm, COURT STAFF) (Filed on 11/1/2018) (Entered: 11/01/2018)
155 Minute Entry for proceedings held before Judge Vince Chhabria: Telephonic Further Case Management Conference held on 11/1/2018.

Plaintiff's Motion to Enforce Injunction is due by 11/9/2018. Opposition to the motion is due by 11/16/2018. Reply to the motion is due 11/20/2018. Motion Hearing re Plaintiff's Motion to Enforce Injunction is set for 11/29/2018 10:00 AM in San Francisco, Courtroom 04, 17th Floor before Judge Vince Chhabria.

Plaintiff is given time to decide whether to amend their complaint. If they choose to, it will be due by 11/15/2018. Any Motions to Dismiss the current complaint or the amended complaint are due by 11/29/2018. Responses due by 12/13/2018. Replies due by 12/20/2018. Motion Hearing re Motion(s) to Dismiss set for 1/10/2019 10:00 AM in San Francisco, Courtroom 04, 17th Floor before Judge Vince Chhabria.

Case Management Statement due by 1/25/2019. Telephonic Further Case Management Conference set for 2/1/2019 10:00 AM in San Francisco, Courtroom 04, 17th Floor. Plaintiff shall provide the Court and all other parties a conference line and applicable access code to use during the hearing no later than three court days prior to the case management conference by way of email to the Court (vccrd@cand.uscourts.gov) with a cc to opposing counsel.

FTR Time: 2:37− 3:11. Plaintiff Attorney: William Freeman, Holly Cooper, Ashley Corkery, Martin Schenker, and Sean Riordan. Defendant Attorney: Nicole Murley and David White.

11/05/2018
11/06/2018 11/07/2018

(This is a text−only entry generated by the court. There is no document associated with this entry.) (knm, COURT STAFF) (Date Filed: 11/1/2018) Modified on 11/6/2018: Matter transcribed by Joan Columbini. (rjdS, COURT STAFF). (Entered: 11/05/2018)
156 AUDIO RECORDINGS ORDER (re: 155 Case Management Conference − Further,,,,,,, Set Deadlines/Hearings,,,,,, ), by Lorenza Gomez. Court will send to Cindy Cornell at ccornell@cooley.com a link to the files requested in this order. ( Filing fee $ 31, receipt number 0971−12823098). (Corkery, Ashley) (Filed on 11/5/2018) (Entered: 11/05/2018)
157 TRANSCRIPT ORDER for proceedings held on 11/01/2018 before Judge Vince Chhabria by Lorenza Gomez, for Court Reporter FTR − San Francisco. (Corkery, Ashley) (Filed on 11/6/2018) (Entered: 11/06/2018)
158 Transcript of Proceedings held on November 1, 2018, before Judge Vince Chhabria. Court Reporter/Transcriber Joan Marie Columbini, CSR, RPR, telephone number (510) 367−3043, joan.columbini.csr@gmail.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/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. (Re 157 Transcript Order )

Case: 3:17-cv-3615 As of: 06/17/2020 10:35 AM PDT 24 of 30

11/09/2018 11/09/2018
11/14/2018 11/15/2018 11/15/2018 11/15/2018 11/16/2018
11/20/2018 11/26/2018 11/28/2018 11/29/2018

Redaction Request due 11/28/2018. Redacted Transcript Deadline set for 12/10/2018. Release of Transcript Restriction set for 2/5/2019. (Related documents(s) 157 ) (Columbini, Joan) (Filed on 11/7/2018) (Entered: 11/07/2018)
159 MOTION to Enforce Judgment Notice of Motion to Clarify the Class Definition filed by Lorenza Gomez, Ilsa Saravia, Wilfredo Velasquez. Motion Hearing set for 11/29/2018 10:00 AM in San Francisco, Courtroom 04, 17th Floor before Judge Vince Chhabria. Responses due by 11/16/2018. Replies due by 11/20/2018. (Schenker, Martin) (Filed on 11/9/2018) (Entered: 11/09/2018)
160 Brief re 159 MOTION to Enforce Judgment Notice of Motion to Clarify the Class Definition Memorandum of Points and Authorities in Support of Motion to Clarify the Class Definition filed byLorenza Gomez, Ilsa Saravia, Wilfredo Velasquez. (Attachments: # 1 Declaration of Martin S. Schenker, # 2 Exhibit 1 to Schenker Declaration, # 3 Exhibit 2 to Schenker Declaration, # 4 Exhibit 3 to Schenker Declaration, # 5 Exhibit 4 to Schenker Declaration, # 6 Exhibit 5 to Schenker Declaration, # 7 Exhibit 6 to Schenker Declaration, # 8 Exhibit 7 to Schenker Declaration)(Related document(s) 159 ) (Schenker, Martin) (Filed on 11/9/2018) (Entered: 11/09/2018)
161 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−12846166.) filed by Ilsa Saravia. (Austin, Paige) (Filed on 11/14/2018) (Entered: 11/14/2018)
162 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−12846166.) Filing fee previously paid on 11/14/2018 filed by Ilsa Saravia. (Attachments: # 1 Exhibit Certificate of Good Standing)(Austin, Paige) (Filed on 11/15/2018) (Entered: 11/15/2018)
163 Order by Judge Vince Chhabria granting 162 Motion for Pro Hac Vice − Austin.(knm, COURT STAFF) (Filed on 11/15/2018) (Entered: 11/15/2018)
164 AMENDED COMPLAINT SECOND AMENDED PETITION FOR WRIT OF HABEAS CORPUS AND CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF against All Defendants. Filed byWilfredo Velasquez, Lorenza Gomez, Ilsa Saravia. (Riordan, Sean) (Filed on 11/15/2018) (Entered: 11/15/2018)
165 OPPOSITION/RESPONSE (re 159 MOTION to Enforce Judgment Notice of Motion to Clarify the Class Definition ) filed byBrent Cardall, Elaine Duke, Jose Esquivel, Thomas D Homan, Scott Lloyd, James McCament, James McHenry, Thomas E. Price, Jefferson B. Sessions, Elicia Smith, Steven Wagner. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit)(Murley, Nicole) (Filed on 11/16/2018) (Entered: 11/16/2018)
166 REPLY (re 159 MOTION to Enforce Judgment Notice of Motion to Clarify the Class Definition ) Plaintiff's Reply in Support of Motion to Clarify the Class Definition filed byIlsa Saravia. (Schenker, Martin) (Filed on 11/20/2018) (Entered: 11/20/2018)
167 ORDER regarding November 29, 2018, hearing. Signed by Judge Vince Chhabria on November 26, 2018. (vclc3S, COURT STAFF) (Filed on 11/26/2018) (Entered: 11/26/2018)
168 Supplemental Brief re 165 Opposition/Response to Motion, filed byBrent Cardall, Elaine Duke, Jose Esquivel, Thomas D Homan, Scott Lloyd, James McCament, James McHenry, Thomas E. Price, Jefferson B. Sessions, Elicia Smith, Steven Wagner. (Related document(s) 165 ) (Murley, Nicole) (Filed on 11/28/2018) (Entered: 11/28/2018)
169 Minute Entry for proceedings held before Judge Vince Chhabria: Motion Hearing held on 11/29/2018 re 159 MOTION to Enforce Judgment Notice of Motion to Clarify the Class Definition filed by Ilsa Saravia, Wilfredo Velasquez, Lorenza Gomez. The Court heard oral argument and takes the matter under submission. The Court will issue a written ruling. FTR Time: 10:07 − 11:11. Plaintiff Attorney: Martin Schenker, William Freeman, Ashley Corkery, Holly Cooper, and Nathaniel Cooper. Defendant Attorney: Sarah Fabian. (This is a text−only entry generated by the court. There is no document associated with this

Case: 3:17-cv-3615 As of: 06/17/2020 10:35 AM PDT 25 of 30

11/29/2018 11/29/2018
11/29/2018
12/03/2018 12/04/2018 12/04/2018 12/05/2018 12/10/2018 12/13/2018 12/19/2018
12/20/2018 12/20/2018

entry.) (knm, COURT STAFF) (Date Filed: 11/29/2018) Hearing transcribed by Leo Mankiewicz. Modified on 11/30/2018 (notewarelS, COURT STAFF). (Entered: 11/29/2018)
170 TRANSCRIPT ORDER for proceedings held on 11/29/2018 before Judge Vince Chhabria by Ilsa Saravia, for Court Reporter FTR − San Francisco. (Corkery, Ashley) (Filed on 11/29/2018) (Entered: 11/29/2018)
171 MOTION to Dismiss filed by Elaine Duke, Thomas D Homan, Scott Lloyd, James McCament, James McHenry, Thomas E. Price, Jefferson B. Sessions, Elicia Smith, Steven Wagner. Motion Hearing set for 1/10/2019 10:00 AM in San Francisco, Courtroom 04, 17th Floor before Judge Vince Chhabria. Responses due by 12/13/2018. Replies due by 12/20/2018. (Murley, Nicole) (Filed on 11/29/2018) Modified on 6/25/2019 (knm, COURT STAFF). (Entered: 11/29/2018)
172 MOTION to Dismiss Memorandum of Points and Authorities filed by Elaine Duke, Thomas D Homan, Scott Lloyd, James McCament, James McHenry, Thomas E. Price, Jefferson B. Sessions, Elicia Smith, Steven Wagner. Motion Hearing set for 1/10/2019 10:00 AM in San Francisco, Courtroom 04, 17th Floor before Judge Vince Chhabria. Responses due by 12/13/2018. Replies due by 12/20/2018. (Murley, Nicole) (Filed on 11/29/2018) Modified on 6/25/2019 (knm, COURT STAFF). (Entered: 11/29/2018)
173 Order by Judge Vince Chhabria granting in part and denying in part 160 Motion to Clarify the Class Definition.(knm, COURT STAFF) (Filed on 12/3/2018) (Entered: 12/03/2018)
174 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−12895857.) filed by Ilsa Saravia. (Attachments: # 1 Supplement Christopher Dunn Certificate of Good Standing)(Dunn, Christopher) (Filed on 12/4/2018) (Entered: 12/04/2018)
175 Order by Judge Vince Chhabria granting 174 Motion for Pro Hac Vice − Dunn.(knm, COURT STAFF) (Filed on 12/4/2018) (Entered: 12/04/2018)
176 MANDATE of USCA as to 130 Notice of Appeal, filed by Elaine Duke, Jefferson B. Sessions, Steven Wagner, Elicia Smith, James McCament, Thomas D Homan, Thomas E. Price, James McHenry, Scott Lloyd (fabS, COURT STAFF) (Filed on 12/5/2018) (Entered: 12/05/2018)
177 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−12914311.) filed by Ilsa Saravia. (Attachments: # 1 Exhibit Aadhithi Padmanabhan Certificate of Good Standing)(Padmanabhan, Aadhithi) (Filed on 12/10/2018) (Entered: 12/10/2018)
178 OPPOSITION/RESPONSE (re 171 MOTION to Dismiss ) Plaintiff's Opposition to Defendants' Motion to Dismiss filed byIlsa Saravia. (Attachments: # 1 Exhibit A)(Schenker, Martin) (Filed on 12/13/2018) (Entered: 12/13/2018)
179 Transcript of Proceedings held on 11/29/2018, before Judge Vince Chhabria. Court Reporter/Transcriber Leo T. Mankiewicz, CSR, CRR, RMR, telephone number (415) 722−7045; email: leomank@gmail.com. FTR 10:07 a.m. − 11:11 am. = 64 minutes. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/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. (Re 170 Transcript Order ) Redaction Request due 1/9/2019. Redacted Transcript Deadline set for 1/22/2019. Release of Transcript Restriction set for 3/19/2019. (Related documents(s) 170 ) (Mankiewicz, Leo) (Filed on 12/19/2018) (Entered: 12/19/2018)
180 REPLY (re 172 MOTION to Dismiss Memorandum of Points and Authorities, 171 MOTION to Dismiss ) filed byElaine Duke, Thomas D Homan, Scott Lloyd, James McCament, James McHenry, Thomas E. Price, Jefferson B. Sessions, Elicia Smith, Steven Wagner. (Murley, Nicole) (Filed on 12/20/2018) (Entered: 12/20/2018)
181 ADMINISTRATIVE MOTION Expedited Briefing Schedule filed by Elaine Duke, Thomas D Homan, Scott Lloyd, James McCament, James McHenry, Thomas E. Price, Jefferson B. Sessions, Elicia Smith, Steven Wagner. Responses due by 12/28/2018.

Case: 3:17-cv-3615 As of: 06/17/2020 10:35 AM PDT 26 of 30

12/20/2018
12/21/2018 12/22/2018 12/22/2018 12/26/2018 12/27/2018 12/27/2018 01/02/2019 01/08/2019
01/08/2019 01/10/2019
01/15/2019

(Attachments: # 1 Declaration, # 2 Exhibit Attachment A, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Proposed Order)(Murley, Nicole) (Filed on 12/20/2018) (Entered: 12/20/2018)
182 Administrative Motion to File Under Seal filed by Elaine Duke, Thomas D Homan, Scott Lloyd, James McCament, James McHenry, Thomas E. Price, Jefferson B. Sessions, Elicia Smith, Steven Wagner. (Attachments: # 1 Declaration, # 2 Proposed Order, # 3 Redacted Version of Exhibit 1, # 4 Unredacted Version of Exhibit 1, # 5 Redacted version of Exhibit 2, # 6 Unredacted Version of Exhibit 2, # 7 Redacted Version of Exhibit 3, # 8 Unredacted Version of Exhibit 3)(Murley, Nicole) (Filed on 12/20/2018) (Entered: 12/20/2018)
183 ORDER by Judge Vince Chhabria setting a schedule re: 181 Administrative Motion to Expedite Briefing. (vclc3S, COURT STAFF) (Filed on 12/21/2018) (Entered: 12/21/2018)
184 ORDER re: hearing on motion to dismiss. The hearing on the motion to dismiss is rescheduled to January 24, 2019, to take place with the hearing on the motion for clarification. Signed by Judge Vince Chhabria on December 22, 2018. (This is a text−only entry generated by the court. There is no document associated with this entry.) (vclc3S, COURT STAFF) (Filed on 12/22/2018) (Entered: 12/22/2018)
Set/Reset Hearing − Motion Hearing for Motion to Dismiss and Motion for Clarification set for 1/24/2019 10:00 AM in San Francisco, Courtroom 04, 17th Floor before Judge Vince Chhabria. (vclc3S, COURT STAFF) (Filed on 12/22/2018) (Entered: 12/22/2018)
185 MOTION to Stay Case Deadlines in Light of Lapse of Appropriations filed by Brent Cardall, Elaine Duke, Jose Esquivel, Thomas D Homan, Scott Lloyd, James McCament, James McHenry, Thomas E. Price, Jefferson B. Sessions, Elicia Smith, Steven Wagner. Responses due by 1/9/2019. (Murley, Nicole) (Filed on 12/26/2018) (Entered: 12/26/2018)
186 Order by Judge Vince Chhabria granting 177 Motion for Pro Hac Vice − Padmanabhan.(knm, COURT STAFF) (Filed on 12/27/2018) (Entered: 12/27/2018)
Set Hearings as to 171 MOTION to Dismiss , 172 MOTION to Dismiss Memorandum of Points and Authorities. Motion Hearing set for 1/24/2019 10:00 AM in San Francisco, Courtroom 04, 17th Floor before Judge Vince Chhabria. (knm, COURT STAFF) (Filed on 12/27/2018) (Entered: 12/27/2018)
187 Order by Judge Vince Chhabria granting in part 185 Motion to Stay Deadlines.(knm, COURT STAFF) (Filed on 1/2/2019) (Entered: 01/02/2019)
188 Brief re 183 Order on Administrative Motion per Civil Local Rule 7−11 Opposition to Defendants' Motion for Clarification filed byIlsa Saravia. (Attachments: # 1 Declaration Austin, # 2 Declaration YMMC Redacted, # 3 Declaration Freeman, # 4 Exhibit Freeman Exhibit 1, # 5 Exhibit Freeman Exhibit 2, # 6 Exhibit Freeman Exhibit 3, # 7 Exhibit Freeman Exhibit 4)(Related document(s) 183 ) (Kang, Stephen) (Filed on 1/8/2019) (Entered: 01/08/2019)
189 Administrative Motion to File Under Seal filed by Ilsa Saravia. (Attachments: # 1 Declaration Kang, # 2 Proposed Order, # 3 Redacted Version of Document Sought to be Filed under Seal, # 4 Unredacted Version of Document Sought to be Filed under Seal)(Kang, Stephen) (Filed on 1/8/2019) (Entered: 01/08/2019)
190 CLERK'S NOTICE ADVANCING THE FURTHER CASE MANAGEMENT CONFERENCE TO 1/24/2019, TO BE HEARD WITH THE MOTION HEARINGS ALREADY ON CALENDAR FOR THAT DATE. Case Management Statement due by 1/17/2019. Further Case Management Conference set for 1/24/2019 10:00 AM in San Francisco, Courtroom 04, 17th Floor. (This is a text−only entry generated by the court. There is no document associated with this entry.) (knm, COURT STAFF) (Filed on 1/10/2019) (Entered: 01/10/2019)
191 REPLY (re 182 Administrative Motion to File Under Seal ) filed byElaine Duke, Thomas D Homan, Scott Lloyd, James McCament, James McHenry, Thomas E. Price, Jefferson B. Sessions, Elicia Smith, Steven Wagner. (Murley, Nicole) (Filed on

Case: 3:17-cv-3615 As of: 06/17/2020 10:35 AM PDT 27 of 30

01/17/2019 01/22/2019 01/24/2019 01/24/2019

1/15/2019) (Entered: 01/15/2019)
192 JOINT CASE MANAGEMENT STATEMENT filed by Lorenza Gomez, Ilsa Saravia, Wilfredo Velasquez. (Freeman, William) (Filed on 1/17/2019) (Entered: 01/17/2019)
193 ORDER LIFTING RESTRICTIONS ON NONPARTY ACCESS TO ELECTRONIC FILINGS. Signed by Judge Vince Chhabria on January 22, 2019. (vclc3S, COURT STAFF) (Filed on 1/22/2019) (Entered: 01/22/2019)
194 ORDER REGARDING CONTINUATION OF STAY. Signed by Judge Vince Chhabria on January 24, 2019. (vclc3S, COURT STAFF) (Filed on 1/24/2019) (Entered: 01/24/2019)
195 Minute Entry for proceedings held before Judge Vince Chhabria on 1/24/2019 :

Motion Hearing held re 171 MOTION to Dismiss filed by Elaine Duke, Jefferson B. Sessions, Steven Wagner, Elicia Smith, James McCament, Thomas D Homan, Thomas E. Price, James McHenry, Scott Lloyd and 181 ADMINISTRATIVE MOTION for Expedited Briefing Schedule/Motion for Clarification filed by Elaine Duke, Jefferson B. Sessions, Steven Wagner, Elicia Smith, James McCament, Thomas D Homan, Thomas E. Price, James McHenry, Scott Lloyd. The Court heard argument and takes the motions under submission. The Court will issue a written order.

Further Case Management Conference held. Both sides heard regarding their positions on the stay that is currently in place pending the resolution of the Government shutdown.

(FTR Time: 10:05−12:59.)

Attorneys for Plaintiffs: Stephen Kang; Nathaniel Cooper; William Freeman; Sean Riordan; Holly Cooper; Martin Schenker. Attorney for Defendants: Sarah Fabian.

01/25/2019 01/25/2019 01/25/2019 01/25/2019 01/30/2019
02/01/2019

(This is a text−only entry generated by the court. There is no document associated with this entry.) (mklS, COURT STAFF) (Date Filed: 1/24/2019) Modified on 1/25/2019: Matter transcribed by Peggy Schuerger (AdHoc Reporting). (rjdS, COURT STAFF). (Entered: 01/24/2019)
196 ORDER re 181 Defendants' Motion for Clarification. Signed by Judge Vince Chhabria on January 25, 2019. (vclc3S, COURT STAFF) (Filed on 1/25/2019) Modified on 1/28/2019 (knm, COURT STAFF). (Entered: 01/25/2019)
197 TRANSCRIPT ORDER for proceedings held on 01/24/2019 before Judge Vince Chhabria by Lorenza Gomez, Ilsa Saravia, Wilfredo Velasquez, for Court Reporter FTR − San Francisco. (Corkery, Ashley) (Filed on 1/25/2019) (Entered: 01/25/2019)
198 ORDER by Judge Vince Chhabria granting 182 Administrative Motion to File Under Seal. (vclc3S, COURT STAFF) (Filed on 1/25/2019) (Entered: 01/25/2019)
199 ORDER by Judge Vince Chhabria granting 189 Administrative Motion to File Under Seal. (vclc3S, COURT STAFF) (Filed on 1/25/2019) (Entered: 01/25/2019)
200 Transcript of Proceedings held on 01/24/2019, before Judge Vince Chhabria. Court Reporter/Transcriber Peggy Schuerger/Ad Hoc Reporting, telephone number (619) 228−3774/adhocreporting@aol.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/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. (Re 197 Transcript Order ) Redaction Request due 2/20/2019. Redacted Transcript Deadline set for 3/4/2019. Release of Transcript Restriction set for 4/30/2019. (Related documents(s) 197 ) (pls, COURT STAFF) (Filed on 1/30/2019) (Entered: 01/30/2019)
201 EXHIBITS re 199 Order on Administrative Motion to File Under Seal [REDACTED] Exhibit 1 to Declaration of Paige Austin in Support of Plaintiffs Opposition to

Case: 3:17-cv-3615 As of: 06/17/2020 10:35 AM PDT 28 of 30

02/11/2019 02/12/2019 02/12/2019
02/12/2019
02/15/2019 02/26/2019 02/26/2019 02/27/2019 02/27/2019 03/07/2019 03/08/2019 03/18/2019
03/28/2019 03/29/2019 03/29/2019

Defendants Motion for Clarification filed byIlsa Saravia. (Related document(s) 199 ) (Schenker, Martin) (Filed on 2/1/2019) (Entered: 02/01/2019)
202 STIPULATION WITH PROPOSED ORDER filed by Brent Cardall, Elaine Duke, Jose Esquivel, Thomas D Homan, Scott Lloyd, James McCament, James McHenry, Thomas E. Price, Jefferson B. Sessions, Elicia Smith, Steven Wagner. (Attachments: # 1 Proposed Order)(Murley, Nicole) (Filed on 2/11/2019) (Entered: 02/11/2019)
203 ORDER REGARDING OVERLAPPING CASES. Signed by Judge Vince Chhabria on 2/12/2019. (knm, COURT STAFF) (Filed on 2/12/2019) (Entered: 02/12/2019)
204 *** DISREGARD − ENTERED IN ERROR (SEE DOCKET # 205 ) *** TRANSCRIPT ORDER for proceedings held on 1/24/2019 before Judge Vince Chhabria by Brent Cardall, Elaine Duke, Jose Esquivel, Thomas D Homan, Scott Lloyd, James McCament, James McHenry, Thomas E. Price, Jefferson B. Sessions, Elicia Smith, Steven Wagner, for Court Reporter Pam Batalo. (Murley, Nicole) (Filed on 2/12/2019) Modified on 2/12/2019 (rjdS, COURT STAFF). (Entered: 02/12/2019)
205 TRANSCRIPT ORDER for proceedings held on 1/24/2019 before Judge Vince Chhabria by Brent Cardall, Elaine Duke, Jose Esquivel, Thomas D Homan, Scott Lloyd, James McCament, James McHenry, Thomas E. Price, Jefferson B. Sessions, Elicia Smith, Steven Wagner, for Court Reporter FTR − San Francisco. (Murley, Nicole) (Filed on 2/12/2019) (Entered: 02/12/2019)
206 MOTION to Withdraw as Attorney for Plaintiff filed by Ilsa Saravia. Responses due by 3/1/2019. Replies due by 3/8/2019. (Austin, Paige) (Filed on 2/15/2019) (Entered: 02/15/2019)
207 RESPONSE re 203 Order by Elaine Duke, Thomas D Homan, Scott Lloyd, James McCament, James McHenry, Thomas E. Price, Jefferson B. Sessions, Elicia Smith, Steven Wagner. (Fabian, Sarah) (Filed on 2/26/2019) (Entered: 02/26/2019)
208 Brief re 203 Order Regarding Overlapping Cases filed byIlsa Saravia. (Attachments: # 1 Exhibit A 1/24 Hearing Transcript, # 2 Exhibit B Lucas R. First Am. Complaint, # 3 Exhibit C Lucas R. Scheduling Order, # 4 Exhibit D Flores Order)(Related document(s) 203 ) (Kang, Stephen) (Filed on 2/26/2019) (Entered: 02/26/2019)
209 Order by Judge Vince Chhabria granting 206 Motion to Withdraw as Attorney as to Paige Austin. (knm, COURT STAFF) (Filed on 2/27/2019) (Entered: 02/27/2019)
210 Order by Judge Vince Chhabria granting 202 Stipulation to Extend Defendants' Deadline to Comply with the Court's Order Regarding Defendants' Discovery Obligations.(knm, COURT STAFF) (Filed on 2/27/2019) (Entered: 02/27/2019)
211 STIPULATION WITH PROPOSED ORDER RE Stay of Proceedings filed by Lorenza Gomez, Ilsa Saravia, Wilfredo Velasquez. (Freeman, William) (Filed on 3/7/2019) (Entered: 03/07/2019)
212 Order by Judge Vince Chhabria granting 211 Stipulation re Stay of Proceedings.(knm, COURT STAFF) (Filed on 3/8/2019) (Entered: 03/08/2019)
213 CLERK'S NOTICE terminating 171 Motion to Dismiss, and 172 Motion to Dismiss. In light of the order staying this case, the motions to dismiss are terminated without prejudice to being refiled once the stay is lifted. (This is a text−only entry generated by the court. There is no document associated with this entry.) (knm, COURT STAFF) (Filed on 3/18/2019) (Entered: 03/18/2019)
214 Letter from Both Parties re Request for referral to settlement conference. (Freeman, William) (Filed on 3/28/2019) (Entered: 03/28/2019)
215 ORDER REFERRING CASE directly to Magistrate Judge Laurel Beeler for Settlement. Signed by Judge Vince Chhabria on 3/29/2019. (knm, COURT STAFF) (Filed on 3/29/2019) (Entered: 03/29/2019)
216 CLERK'S NOTICE SETTING SETTLEMENT CONFERENCE SCHEDULING CALL: This case was referred for a settlement conference to Magistrate Judge Laurel Beeler. The court sets a call with the parties to discuss the timing and logistics of the

Case: 3:17-cv-3615 As of: 06/17/2020 10:35 AM PDT 29 of 30

04/04/2019 04/09/2019

settlement conference for Thursday, 4/4/2019 at 11:00 AM. The court will email a call−in number separately. If this date does not work, parties may request to change the date by stipulation. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 3/29/2019) (Entered: 03/29/2019)
217 CLERK'S NOTICE RESETTING SETTLEMENT CONFERENCE SCHEDULING CALL: Pursuant to the parties' stipulation, the court resets the settlement conference scheduling call, previously set for 4/4/2019, to 4/9/2019 at 10:00 AM. The court will circulate a call−in number separately. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 4/4/2019) (Entered: 04/04/2019)
218 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Settlement Conference Call held on 4/9/2019. The court sets the in−person settlement conference for Tuesday, July 16, 2019 at 10:00 AM. (Not Reported).

04/09/2019 05/07/2019 05/08/2019 05/16/2019 05/20/2019
05/29/2019 07/15/2019
07/16/2019

Plaintiff's Attorneys: Ashley Corkery, Robert Paris, Martin S. Schenker, William S. Freeman, Sean Riordan, Holly Stafford Cooper, Steven Kang. Defendants' Attorneys: Nicole N. Murley, David White. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Date Filed: 4/9/2019) (Entered: 04/09/2019)
219 Order Setting Settlement Conference before Magistrate Judge. Settlement Conference set for 7/16/2019 at 10:00 AM in San Francisco, Courtroom B, 15th Floor. Signed by Judge Laurel Beeler on 04/09/2019. (ejkS, COURT STAFF) (Filed on 4/9/2019) (Entered: 04/09/2019)
220 MOTION for leave to appear in Pro Hac Vice for Plaintiffs/Petitioners ( Filing fee $ 310, receipt number 0971−13325297.) filed by Lorenza Gomez, Ilsa Saravia, Wilfredo Velasquez. (Attachments: # 1 Certificate of Good Standing)(Perry, Jessica) (Filed on 5/7/2019) (Entered: 05/07/2019)
221 Order by Judge Vince Chhabria granting 220 Motion for Pro Hac Vice − Perry.(knm, COURT STAFF) (Filed on 5/8/2019) (Entered: 05/08/2019)
222 NOTICE of Appearance by Amy L Belsher for Plaintiffs/Petitioners (Belsher, Amy) (Filed on 5/16/2019) (Entered: 05/16/2019)
223 MOTION to Withdraw as Attorney for Plaintiffs/Petitioners filed by Lorenza Gomez, Ilsa Saravia, Wilfredo Velasquez. Responses due by 6/3/2019. Replies due by 6/10/2019. (Attachments: # 1 Proposed Order Granting Motion to Withdraw as Counsel for Plaintiffs/Petitioners)(Padmanabhan, Aadhithi) (Filed on 5/20/2019) (Entered: 05/20/2019)
224 Order by Judge Vince Chhabria granting 223 Motion to Withdraw as Attorney as to Aadhithi Padmanabhan.(knm, COURT STAFF) (Filed on 5/29/2019) (Entered: 05/29/2019)
225 CLERK'S NOTICE RESETTING SETTLEMENT CONFERENCE TIME: The court has a trial with attendant scheduling issues and so moves the start time for the settlement from 10:00 AM to 11:00 AM. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 7/15/2019) (Entered: 07/15/2019)
226 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Settlement Conference held on 7/16/2019. Settlement conference held until 5:30 p.m. For claim 4, the plaintiffs will circulate the discussed revision as soon as is practicable and preferably this week. The parties will have a call on the remaining issues discussed on July 31, 2019 at 11 a.m. PST/2 p.m. EST. On claims 1 and 2, the government will circulate the proposed revision by August 15, 2019 and will try to provide any underlying documentation or information sooner. The parties will have a call on the issues for claims 1 and 2 on August 20, 2019 at 10 a.m. PST/1 p.m. EST and will send the court an update by noon on August 21, 2019 (by email to lbsettlement@cand.uscourts.gov) with their proposed next steps.

Case: 3:17-cv-3615 As of: 06/17/2020 10:35 AM PDT 30 of 30

Total Time in Court: 6 hours, 30 minutes. Not Reported.

08/29/2019 09/19/2019 10/21/2019 11/07/2019 12/09/2019

Plaintiff's Attorneys: Ashley Corkery, Martin S. Schenker, Nathaniel Cooper, William S. Freeman, Sean Riordan, Holly Stafford Cooper, Jessica Perry and Steven Kang. Also appearing: Amy Belsher and Hannah Pollack. Defendants' Attorneys: Sarah Fabian and Nicole N. Murley. Also appearing: Daniel Cicchini, Bryan Hudson, Jonathan Wall, Julia Fuma, Celia Hicks, David Jennings and Debra Parker. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Date Filed: 7/16/2019) (Entered: 07/17/2019)
227 CLERK'S NOTICE.The court thanks the parties for the update to Judge Beeler on their settlement discussions and asks the parties to provide a further update to lbsettlement@cand.uscourts.gov by September 18, 2019. (This is a text−only entry generated by the court. There is no document associated with this entry.) (lblc1S, COURT STAFF) (Filed on 8/29/2019) (Entered: 08/29/2019)
228 CLERK'S NOTICE.The court thanks the parties for the update to Judge Beeler on their settlement discussions and asks the parties to provide a further update to lbsettlement@cand.uscourts.gov by October 16, 2019. (This is a text−only entry generated by the court. There is no document associated with this entry.) (lblc1S, COURT STAFF) (Filed on 9/19/2019) (Entered: 09/19/2019)
229 CLERK'S NOTICE. The court thanks the parties for the update to Judge Beeler on their settlement discussions and asks the parties to provide a further update to lbsettlement@cand.uscourts.gov by November 21, 2019. (This is a text−only entry generated by the court. There is no document associated with this entry.) (lblc1S, COURT STAFF) (Filed on 10/21/2019) (Entered: 10/21/2019)
230 CLERK'S NOTICE SETTING SETTLEMENT CONFERENCE: Settlement Conference set for 12/9/2019 at 10:00 AM in San Francisco, Courtroom B, 15th Floor. Settlement Conference Statements due by 12/2/2019. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 11/7/2019) (Entered: 11/07/2019)
231 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Settlement Conference held on 12/9/2019. The court held a settlement conference. The parties reached agreement on all material terms of the settlement (subject to the contingency of agency and DOJ approval). The process for finalizing the draft settlement and obtaining the necessary approvals likely will extend into January. The parties will update the court by email by the end of January. The court reminds the plaintiffs that (assuming final agreement), they must give DOJ their billing records, any enhanced hourly rates, and an offer of compromise for the attorneys fees as a necessary first step for negotiating the fees. (Not Reported).

Plaintiffs' Attorneys: Martin Schenker, Nathanial Cooper, Ashley Corkery, Holly Cooper, Stephen Kang and Sean Riordan. Defendants' Attorney: Nicole Murley. Also appearing: David Jennings, Jonathan Wall, Debra Parker, Julia Fuma, Toby Biswas, Bryan Longan, Dan Cicchini and John Kaplan. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Date Filed: 12/9/2019) (Entered: 12/09/2019)

 
 Case 3:17-cv-03615-VC Document 31 Filed 08/11/17 Page 1 of 40

1 AMERICAN CIVIL LIBERTIES UNION

FOUNDATION OF NORTHERN

2 CALIFORNIA

JULIA HARUMI MASS (SBN 189649)

3 WILLIAM S. FREEMAN (SBN 82002)

39 Drumm Street

4 San Francisco, CA 94111

Telephone: (415) 621-2493

5 Facsimile: (415) 255-8437

Email: jmass@aclunc.org

6

wfreeman@aclunc.org

7

COOLEY LLP MARTIN S. SCHENKER (SBN 109828) NATHANIEL R. COOPER (SBN 262098) ASHLEY K. CORKERY (SBN 301380) TREVOR M. KEMPNER (SBN 310853) 101 California Street, 5th Floor San Francisco, CA 94111 Telephone: (415) 693-2000 Facsimile: (415) 693-2222 Email: mschenker@cooley.com
ncooper@cooley.com acorkery@cooley.com tkempner@cooley.com

8 Attorneys for Petitioners/Plaintiffs Lorenza Gomez, Ilsa Saravia, and Wilfredo Velasquez, on behalf of themselves and others similarly situated.
9 (Additional Counsel listed on following page)

10

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA 11

12

Lorenza Gomez, as next friend for J.G., a minor, and on Case No.: 3:17-cv-03615-VC her own behalf; Ilsa Saravia, as next friend for A.H., a

13 minor, and on her own behalf; and Wilfredo Velasquez,

as next friend for F.E., a minor, and on his own behalf, FIRST AMENDED PETITION FOR

14

Petitioners/Plaintiffs, on behalf of themselves WRIT OF HABEAS CORPUS AND

and others similarly situated, 15
v.

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND

16

DECLARATORY RELIEF

Jefferson B. Sessions, Attorney General of the United 17 States; Thomas E. Price, M.D., Secretary of the

18 Department of Health and Human Services of the United States; Steven Wagner, Acting Assistant

IMMIGRATION ACTION

19 Secretary of the Administration for Children and

20

Families; Scott Lloyd, Director of the Office of Refugee Resettlement of the United States; Elicia

21 Smith, Federal Field Specialist of the Office of Refugee Resettlement of the United States; Elaine Duke, Acting
22 Secretary of the Department of Homeland Security of

23 the United States; Thomas D. Homan, Acting Director of U.S. Immigration and Customs Enforcement; James
24 McCament, Acting Director of U.S. Citizenship and

25 Immigration Services; Brent Cardall, Chief Probation Officer of Yolo County; and Jose Esquivel, Interim

26 Program Director, BCFS Health and Human Services,

in their official capacities,

27

Respondents/Defendants.

28

i

FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS AND CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF CASE NO.: 3:17-CV-03615-VC

Case 3:17-cv-03615-VC Document 31 Filed 08/11/17 Page 2 of 40

1 ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT
2 JUDY RABINOVITZ* 125 Broad Street, 18th Floor
3 New York, NY 10004 Telephone: (212) 549-2660
4 Facsimile: (212) 549-2654 Email: jrabinovitz@aclu.org
5 ACLU FOUNDATION
6 IMMIGRANTS’ RIGHTS PROJECT STEPHEN B. KANG** (SBN 292280)
7 39 Drumm Street San Francisco, CA 94111
8 Telephone: (415) 343-0770 Facsimile: (212) 395-0950
9 Email: skang@aclu.org

10 *Pro Hac Vice Forthcoming 11 **Application to the Bar of this Court Pending
12 Attorneys for Petitioners/Plaintiffs, on behalf of themselves and others similarly situated.

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ii

FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS AND CLASS ACTION COMPLAINT FOR INJUNCTIVE

AND DECLARATORY RELIEF CASE NO.: 3:17-CV-03615-VC

Case 3:17-cv-03615-VC Document 31 Filed 08/11/17 Page 3 of 40

1

Table of Contents

2 INTRODUCTION ...............................................................................................................1

3 JURISDICTION ..................................................................................................................2

4 VENUE ................................................................................................................................3

INTRADISTRICT ASSIGNMENT.....................................................................................3 5
PARTIES .............................................................................................................................3
6 FACTS AND LEGAL FRAMEWORK COMMON TO ALL PLAINTIFFS.....................6

7

ORR Custody of Unaccompanied Children.............................................................6

8

Other Rights of Unaccompanied Children...............................................................7

9

ICE “Sweeps” Target Unaccompanied Minors .......................................................8

Resulting Deprivations of Plaintiffs’ Rights..........................................................12 10
FACTS PERTAINING TO INDIVIDUAL PLAINTIFFS................................................16

11

A.H. ....................................................................................................................16

12

F.E. ....................................................................................................................20

13

J.G. ....................................................................................................................23

14 CLASS ACTION ALLEGATIONS ..................................................................................26
INJUNCTIVE AND DECLARATORY RELIEF ALLEGATIONS ................................28 15
CLAIMS FOR RELIEF .....................................................................................................29

16 PRAYER FOR RELIEF ....................................................................................................35

17

18

19

20

21

22

23

24

25

26

27

28

iii

FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS AND CLASS ACTION COMPLAINT FOR INJUNCTIVE

AND DECLARATORY RELIEF CASE NO.: 3:17-CV-03615-VC

Case 3:17-cv-03615-VC Document 31 Filed 08/11/17 Page 4 of 40

1

INTRODUCTION

2

1. Under the guise of a “crackdown” on transnational street gangs, federal

3 immigration authorities and the federal agency responsible for the care and custody of

4 unaccompanied immigrant children have undertaken a concerted effort to arrest, detain, and

5 transport children far from their families and attorneys, and to deny them immigration benefits 6 and services to which they are entitled under U.S. law, based on flimsy, unreliable and 7 unsubstantiated allegations of gang affiliation.

8

2. The agencies in charge of this effort do not undertake any meaningful review of

9 the allegations of gang affiliation on which their decisions are based; do not inform the children,

10 their families or their immigration counsel of the basis of these allegations; and do not provide

11 them any opportunity to review or challenge the evidence the government relies on to place the 12 children in jail-like conditions, destroy family integrity, and deny or interfere with access to 13 relief under U.S. immigration laws.

14

3. This treatment is not only extremely harmful; it is unlawful. But official

15 statements and actions confirm that the administration plans to continue and expand its efforts to

16 deport children profiled as gang members based on the neighborhoods they live in and their

17 countries of origin, and that responsible federal agencies will continue to deny these children

18 their statutory and constitutional rights.

19

4. Petitioners and Plaintiffs Lorenza Gomez, Ilsa Saravia, and Wilfredo Velasquez

20 (“Named Plaintiffs”), each acting as next friend for a minor child (“Named Minors”), and the 21 class they seek to represent (collectively “Plaintiffs”) have been victims of this unlawful conduct. 22 Each of the minor children had previously been evaluated by the U.S. Department of Health and

23 Human Services (“HHS”), Office of Refugee Resettlement (“ORR”), and each had been released 24 to a parent under an ORR sponsor agreement. All have been living with family in the United

25 States for extended periods of time. Though they have had only minor, if any, trouble in the

26 juvenile justice system, they were each arrested, denied access to family and legal counsel, 27 transported far from home, and held in jail-like conditions for weeks without any process

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1 through which they could challenge their confinement or deny the gang allegations that were the

2 reason for their harsh treatment. These and other actions by the federal authorities also threaten

3 Plaintiffs’ access to lawful status in the United States and therefore may result in their

4 deportation to countries from which they have fled abuse and violence.

5

5. Named Plaintiffs bring this action on behalf of the Named Minors and a class

6 consisting of all unaccompanied immigrant children (also referred to as “UCs”) who had

7 previously been detained in ORR custody and released by ORR to a parent or other sponsor, and

8 who thereafter have been or will be arrested by U.S. immigration authorities on or after April 1,

9 2017 with allegations of gang affiliation and detained in a secure or staff secure detention center

10 under the oversight authority of the San Francisco-based ORR Federal Field Specialist (the

11 “Class”). Plaintiffs seek declaratory and injunctive relief to prevent Defendants from continuing

12 to carry out an unlawful scheme to arrest, summarily incarcerate, and deny immigration benefits

13 to Class members in violation of (1) federal immigration law; (2) a federal court consent decree

14 setting forth additional protections to which they are entitled; and (3) fundamental rights

15 guaranteed to all persons under the U.S. Constitution. Injunctive relief is necessary to end these

16 ongoing violations of Plaintiffs’ constitutional and statutory rights.

17

JURISDICTION

18

6. This Court has subject matter jurisdiction over a writ of habeas corpus and

19 Plaintiffs’ complaint for injunctive and declaratory relief pursuant to Art. I, § 9, cl. 2 of the

20 United States Constitution; 28 U.S.C. § 2201; 28 U.S.C. § 2241; 28 U.S.C. § 1331; 28 U.S.C. 21 § 1343; 28 U.S.C. § 1361; and 5 U.S.C. § 702. This action arises under the First, Fourth and

22 Fifth Amendments of the United States Constitution; the Immigration and Nationality Act

23 (“INA”); the William Wilberforce Trafficking Victims Protection Reauthorization Act

24 (“TVPRA”), 8 U.S.C. § 1232; the Administrative Procedure Act, 5 U.S.C. § 701 et seq.; and

25 Paragraphs 24A and 24B of the class action consent decree entered in Flores v. Reno, Case No.

26 85-cv-4544-RJK(Px) (C.D. Cal. Jan. 17, 1997) (“Flores Decree”), which is binding on

27 Defendants.

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1

VENUE

2

7. Venue is properly with this Court pursuant to 28 U.S.C. § 2241 and 18 U.S.C.

3 § 1391(e). A substantial part of the events or omissions giving rise to the claims occurred in the

4 Northern District of California, including decisions concerning the detention of each of the

5 Plaintiffs, who are currently, or have been, or will be held in ORR custody in Yolo or Solano 6 Counties in northern California. Specifically, Defendant Elicia Smith, the Federal Field 7 Specialist who serves as the approval authority for transfer and release decisions pertaining to

8 unaccompanied minors within the Northern California region, is based in San Francisco. Venue 9 is proper in this Court pursuant to Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 10 484, 493-94 (1973).

11

INTRADISTRICT ASSIGNMENT

12

8. Pursuant to Civil L. R. 3-2(c), this case is properly assigned to the San Francisco

13 Division of this Court because the action arises in the City and County of San Francisco.

14

PARTIES

15

9. Plaintiff Lorenza Gomez, the next friend of J.G., is the mother of J.G. and is filing

16 this complaint and petition on J.G.’s behalf. She also seeks injunctive relief on her own behalf as

17 to the Second Claim for Relief only. Plaintiff Gomez resides in Brentwood, Suffolk County 18 (Long Island), New York. Plaintiff Gomez is J.G.’s sponsor under an agreement with ORR, and 19 is dedicated to J.G.’s best interests.

20

10. J.G. is a seventeen year old unaccompanied immigrant child and a citizen of El

21 Salvador. Until April 19, 2017, he resided with his mother on Long Island, but was then arrested

22 by the Suffolk County, New York Police Department (“SCPD”) and held in a local jail for nearly

23 two months. SCPD turned him over to ICE on June 16, 2017, and Defendants thereafter 24 transported him to a secure detention facility in Yolo County, California, in the custody of ORR.

25 ORR subsequently transferred him to an ORR contract facility in the state of Washington.

26 However, he remains subject to being transferred back to Yolo or another secure or staff secure 27 facility in Northern California at any time. As such, he is in custody under color of

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1 the authority of the United States, and he is in custody in violation of the Constitution or laws of

2 the United States, within the meaning of 28 U.S.C. § 2241.

3

11. Plaintiff Ilsa Saravia, the next friend of A.H., is the mother of A.H. and is filing

4 this complaint and petition on A.H.’s behalf. She also seeks injunctive relief on her own behalf

5 as to the Second Claim for Relief only. Plaintiff Saravia resides in Amityville, Suffolk County

6 (Long Island), New York. Plaintiff Saravia is A.H.’s sponsor under an agreement with ORR, has

7 been awarded sole custody of A.H. by the State of New York, and is dedicated to A.H.’s best

8 interests.

9

12. A.H. is a seventeen year old unaccompanied immigrant child and a citizen of

10 Honduras. Until June 12, 2017, he resided with his mother on Long Island, but was then arrested

11 by ICE and transported by Defendants to a secure detention facility in Woodland, California,

12 where he remained in the custody of ORR until being transferred by ORR to a staff secure

13 facility in Dobbs Ferry, NY. However, he remains subject to being transferred back to Yolo or

14 another secure or staff secure facility in Northern California at any time. As such, he is in

15 custody under color of the authority of the United States, and he is in custody in violation of the

16 Constitution or laws of the United States, within the meaning of 28 U.S.C. § 2241.

17

13. Plaintiff Wilfredo Velasquez, the next friend of F.E., is filing this complaint and

18 petition on F.E.’s behalf. Plaintiff Velasquez resides in Brentwood, Suffolk County (Long

19 Island), New York. Plaintiff Velasquez is dedicated to F.E.’s best interests.

20

14. F.E. is a seventeen year old unaccompanied immigrant child and a citizen of El

21 Salvador. Until June 9, 2017, he resided with his mother and stepfather on Long Island, but was

22 then arrested by the Suffolk County Police Department (“SCPD”), was released on June 14,

23 2016, re-arrested by SCPD on June 16, 2017, and turned over to ICE. Defendants then

24 transported him to a secure detention facility in Shenandoah, Virginia, in the custody of ORR.

25 ORR then transferred him to an ORR contract facility in Fairfield, California, and then to another

26 ORR contract facility in Lincolndale, New York. However, he remains subject to being

27

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1 transferred back to Yolo or another secure or staff secure facility in Northern California at any

2 time. As such, he is in custody under color of the authority of the United States, and he is in 3 custody in violation of the Constitution or laws of the United States, within the meaning of 28 4 U.S.C. § 2241.

5

15. Defendant Jefferson B. Sessions III is the Attorney General of the United States,

6 responsible for the enforcement of the nation’s immigration laws. He is sued solely in his official

7 capacity.

8

16. Defendant Thomas E. Price, M.D. is the Secretary of HHS, the federal agency

9 upon whose orders the individual Plaintiff Class members were detained. He is sued solely in his

10 official capacity.

11

17. Defendant Steven Wagner is the Acting Assistant Secretary of the Administration

12 for Children and Families. The Administration for Children and Families is an office within HHS

13 that has responsibility for ORR, the agency that is directly responsible for Plaintiffs’ detention.

14 He is sued solely in his official capacity.

15

18. Defendant Scott Lloyd is the Director of ORR. He is sued solely in his official

16 capacity.

17

19. Defendant Elicia Smith is a Federal Field Specialist for ORR, who serves as the

18 approval authority for the transfer and release of unaccompanied children within the geographic

19 region of Northern California. She works in the field and maintains a work space in San

20 Francisco, California. She is sued solely in her official capacity.

21

20. Defendant Elaine Duke is the Acting Secretary of the U.S. Department of

22 Homeland Security (“DHS”), the governmental department that is responsible for the arrests of

23 the Plaintiff Class members that are the subject of this litigation. She is sued solely in her 24 official capacity.

25

21. Defendant Thomas D. Homan is the Acting Director of ICE, the principal

26 investigative agency of DHS that carries out the arrests of UCs that are the subject of this action. 27 He is sued solely in his official capacity.

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1

22. Defendant James McCament is the Acting Director of U.S. Citizenship and

2 Immigration Services (“USCIS”), an agency of DHS that oversees lawful immigration into the

3 United States and, among other things, administers the process by which UCs can obtain Special

4 Immigrant Juvenile (“SIJ”) status, as explained more fully below. He is sued solely in his

5 official capacity.

6

23. Defendant Brent Cardall is the Chief Probation Officer of Yolo County. Upon

7 information and belief, he is responsible for providing care and custody to unaccompanied minor

8 children through a contract with ORR. He is sued solely in his official capacity.

9

24. Defendant Jose Esquivel is the Interim Program Director of BCFS Health and

10 Human Services in Fairfield, California. Upon information and belief, he is responsible for

11 providing care and custody to unaccompanied minor children through a contract with ORR. He

12 is sued solely in his official capacity.

13

FACTS AND LEGAL FRAMEWORK COMMON TO ALL PLAINTIFFS

14

ORR Custody of Unaccompanied Children

15

25. When a UC is initially detained by federal immigration authorities, the TVPRA

16 requires that the child be transferred to the custody of the Secretary of HHS within 72 hours. The

17 duties of the Secretary of HHS under the TVPRA are carried out by officials within ORR.

18

26. The Secretary of HHS must then ensure that pending the completion of any

19 removal proceedings, the child is “promptly placed in the least restrictive setting that is in the

20 best interest of the child.” 8 U.S.C. § 1232(c)(2)(A).

21

27. Under the TVPRA, “[a] child shall not be placed in a secure facility absent a

22 determination that the child poses a danger to self or others or had been charged with committing

23 a criminal offense.” 8 U.S.C. § 1232(c)(2)(A).

24

28. According to rules published on the ORR website under the title “Children

25 Entering the United States Unaccompanied” (“ORR Rules”), a “secure care facility” is, in

26 essence, a maximum security prison for children, characterized by “a secure perimeter, major 27 restraining construction inside the facility, and procedures typically associated with correctional

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1 facilities.” ORR Rules, § 1.2.4. A “staff secure facility” is for children “who may require close

2 supervision but do not need placement in a secure facility.” Id., Guide to Terms. A “staff secure”

3 facility “maintains stricter security measures . . . than a shelter in order to control disruptive

4 behavior and to prevent escape,” and may also contain a “secure perimeter with a ‘no climb’

5 fence.” Id. Detention in either kind of facility constitutes a significant deprivation of liberty.

6

29. The TVPRA permits ORR to consider a variety of factors in determining where to

7 place an unaccompanied minor who has been transferred into its custody, including “danger to

8 self, danger to the community, and risk of flight.” 8 U.S.C. § 1232(c)(2)(A). Section 1.2.4 of

9 the ORR Rules permits ORR to place a UC in a secure care facility if the UC “[h]as been

10 charged with, may be chargeable, or has been convicted of a crime,” but such crimes are not to

11 include “isolated offenses” or “petty offenses.”

12

30. As required by the TVPRA, many minors are released by ORR to the custody of a

13 “sponsor” – typically a parent or other close family member – under an agreement pursuant to

14 which the sponsor agrees to care for the UC (“Sponsored UCs”). 8 U.S.C. § 1232(c)(3)(A). The

15 process of releasing a UC to a sponsor involves a comprehensive evaluation by ORR of both the

16 UC and the sponsor.

17

Other Rights of Unaccompanied Children

18

31. The TVPRA further provides that the Secretary of HHS shall ensure, to the

19 greatest extent practicable, that unaccompanied minors in HHS custody “have counsel to

20 represent them in legal proceedings” and “[t]o the greatest extent practicable . . . shall make 21 every effort to utilize the services of pro bono counsel who agree to provide representation to 22 such children without charge.” 8 U.S.C. § 1232(c)(5).

23

32. Minors within the custody of ORR are also protected by the terms of the

24 Flores Decree, a nationwide consent decree entered into in 1995 to resolve class action litigation

25 in the U.S. District Court for the Central District of California. The Flores Decree sets national

26 standards for the detention, release, and treatment of all immigrant children in Government 27 custody, including a right of access to counsel.

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1

33. The Flores Decree also gives immigrant children the right to review of their

2 custody determinations by an Immigration Judge. As the Ninth Circuit recently re-affirmed, this

3 right to an Immigration Judge hearing remains valid today. See Flores v. Sessions, 862 F.3d 863 4 (9th Cir. 2017). The Flores Decree also provides for judicial review of such children’s 5 placement determinations and any other violations of the Decree in any United States District

6 Court with jurisdiction and venue over the matter.

7

34. The U.S. Constitution confers additional rights on minors in immigration

8 proceedings since relevant protections extend to all “persons” regardless of immigration status.

9 Among these rights are the First Amendment right to access to the courts and counsel and to

10 petition the government; the Fourth Amendment guarantee of freedom from unreasonable 11 searches and seizures; and Fifth Amendment guarantees of substantive and procedural due 12 process.

13

ICE “Sweeps” Target Unaccompanied Minors

14

35. On July 28, 2017, President Donald J. Trump gave a speech in Brentwood, NY, a

15 hamlet within the Long Island town of Islip, in which he decried the fact that “unaccompanied

16 alien minors arrived at the border and were released all throughout our country into United States

17 communities” – even though the release of UCs into “the least restrictive setting that is in the

18 best interest of the child” is explicitly required by the TVPRA. The President repeatedly asserted

19 that “the laws are stacked against us.” He declared that “we will restore law and order on Long

20 Island,” but also made clear that his ambitions were broader, stating, “we’re just getting

21 started . . . one by one, we’re liberating our American towns” from alleged gang members, whom

22 he referred to as “animals.”1

23

36. In an interview with Fox News commentator Tucker Carlson broadcast on August

24 3, 2017, Defendant Sessions said: “[W]e need to be able to deport people rapidly who enter the

25 country illegally, and we have to end this policy of taking unaccompanied minors . . . and turning

26 1 “Trump’s speech encouraging police to be ‘rough,’ annotated,” Washington Post, 7/28/17,

27 available at: https://www.washingtonpost.com/news/politics/wp/2017/07/28/trumps-speech-

encouraging-police-to-be-rough-annotated/?utm_term=.0be6120d2adc.

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1 them over to the Department of Health and Human Services, and then they take them to their

2 ‘destination city’. . . . So this is a very bad and dangerous policy and it can be ended and it must

3 be ended.”2

4

37. Consistent with these statements, Defendants enacted an aggressive enforcement

5 program against Plaintiffs and other juveniles like them, resulting in the harms that are the

6 subject of this lawsuit.

7

38. In the spring of 2017, ICE agents began a program of conducting immigration

8 “sweeps” in various locations, in which they arrest UCs whom local law enforcement authorities

9 have identified to ICE as being affiliated with gangs. One location in which such a sweep has

10 commenced is Brentwood, NY. As a result of this sweep, the individual Class members named 11 herein – each of whom is a Sponsored UC – have been arrested, transported to distant locations, 12 and incarcerated.

13

39. On June 14, 2017, ICE announced in a press release that it had launched

14 “Operation Matador,” a joint initiative with several local law enforcement agencies in and

15 around New York City including SCPD. ICE announced that during the previous 30 days, “45

16 individuals were arrested during this ongoing enforcement effort, all of which were confirmed as

17 gang members and affiliates.” This included 12 unaccompanied children, all of whom were

18 allegedly “confirmed as MS-13 gang members.” According to the same press release,

19 individuals are “confirmed as gang members” if they meet any of a number of criteria, including

20 “if they admit membership in a gang” or have been “identified as a gang member by a reliable

21 source.”3

22

40. Since the spring of 2017, numerous UCs living in and around Brentwood have

23 been arrested by ICE, purportedly on the basis that they are somehow “affiliated” with gangs or 24 gang members. They are then summarily transported to “secure care facilities,” which are prison-

25 2 Video of interview available at: http://insider.foxnews.com/2017/08/03/jeff-sessions-tucker-

26

carlson-tonight-ms-13-illegal-immigration. 3 “Operation Matador nets 39 MS-13 arrests in last 30 days,” 6/14/17, available at:

27 https://www.ice.gov/news/releases/operation-matador-nets-39-ms-13-arrests-last-30-days.

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1 like detention centers under the jurisdiction of ORR, including the Yolo County Juvenile

2 Detention Facility (“Yolo”) in Woodland, California. Yolo is under the jurisdiction of the

3 Northern California Field Office of ORR and Defendant Elicia Smith, the Federal Field

4 Specialist in charge of that office. Yolo is one of only two secure care facilities used by ORR,

5 the other being the Shenandoah Valley Juvenile Center in Staunton, Virginia (“Shenandoah”).

6

41. Plaintiffs allege on information and belief that Operation Matador is the leading

7 edge of a broader effort by the Trump Administration to target unaccompanied minors for arrest

8 and detention based on claimed gang affiliation. On July 21, 2017, Reuters reported that based

9 on an internal government memo it had seen, “U.S. immigration agents are planning nationwide

10 raids . . . to arrest, among others, teenagers who entered the country without guardians and are

11 suspected gang members . . . .” Reuters quoted ICE as contending that “a person can be

12 identified as a gang member if they meet two or more criteria, including having gang tattoos,

13 frequenting an area notorious for gangs and wearing gang apparel.” According to the document,

14 ICE field offices are directed “to identify people in their areas that meet the criteria.”4

15

42. ICE often relies on local law enforcement to identify suspected gang members.

16 During a White House press briefing on July 27, 2017, Defendant Homan was asked, “[H]ow are

17 suspected gang members being identified for ICE enforcement? Is it just through local law

18 enforcement . . . ?” He responded, in part: “Local law enforcement, they’re usually the ones that

19 – you know, they – they have the most intelligence on gang members. It’s part of what we look

20 for to find gang members.”5

21

43. For their part, at least some local law enforcement officials view ICE enforcement

22 as a way to remove from their communities youths that they view with suspicion, even in the

23

24 4 “Exclusive: U.S. Immigration raids to target suspected gang members,” by Julia Edwards

Ainsley, 7/21/17, available at: http://www.reuters.com/article/us-usa-immigration-raids25 exclusive-idUSKBN1A62K6?utm_source=twitter&utm_medium=Social. 26 5 Video available at: https://www.youtube.com/watch?v=_CrNlU9vAbk (beginning at 18:30).
The official White House text, which is slightly different, is available at:

27 https://www.whitehouse.gov/the-press-office/2017/07/27/press-briefing-press-secretary-sarah-

sanders-7272017-2.

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1 absence of evidence sufficient to support a criminal arrest, much less a criminal conviction.

2 Suffolk County Police Commissioner Timothy Sini recently admitted in an interview: “There

3 are times when we know someone is an MS-13 gang member . . . but we’re not in a position to

4 make a criminal arrest. So another tool in our toolbox is to work with the Department of

5 Homeland Security to target active known MS-13 gang members for violation of civil

6 immigration laws, which is another way to remove dangerous individuals from our streets.”6

7

44. In written testimony on May 22, 2017 to the Senate Committee on Homeland

8 Security and Governmental Affairs, Commissioner Sini elaborated on SCPD’s “gang eradication

9 strategy,” stating that its tactics include “effectuating street arrests” of suspected gang members,

10 “debriefing all of our arrestees,” and “shar[ing] intelligence with Homeland Security . . . in order

11 to facilitate the commencement of removal proceedings . . . .” He also stated that “we

12 automatically notify the Department of Homeland Security when we arrest an individual for a

13 misdemeanor or felony who was not born in this country so that immigration authorities can take

14 appropriate action . . . .”7

15

45. The SCPD is currently a party to an agreement with the U.S. Department of

16 Justice that requires SCPD to implement “significant changes in how it engages the Latino

17 community.” The agreement, entered into in 2014, is the culmination of an investigation

18 commenced by the Department of Justice in 2009, arising out of allegations of discriminatory

19 policing directed against Latinos.8

20

46. Notwithstanding this troubling history, ICE uncritically accepts allegations

21 of suspected gang membership made by SCPD in deciding to issue arrest warrants for

22

23 6 “39 Members of MS-13 Are Arrested, Authorities Say,” New York Times, June 14, 2017, available at: https://nyti.ms/2sq/JMWr.
24 7 Timothy D. Sini, Testimony Regarding MS-13, given to the United States Committee on

Homeland Security and Governmental Affairs, 5/22/17, at pp. 9-11, available at: 25 https://www.hsgac.senate.gov/download/05/22/2017/testimony-sini-2017-05-24. 26 8 U.S. Department of Justice Press Release, “United States Agrees to Comprehensive Settlement
To Resolve Its Investigation Of The Suffolk County Police Department For Discriminatory

27 Policing Against Latinos,” 12/3/13, located at: https://www.justice.gov/usao-edny/pr/united-

states-agrees-comprehensive-settlement-resolve-its-investigation-suffolk-county.

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1 unaccompanied minors in Suffolk County. To make matters worse, ORR does

2 not subject these allegations to any form of review before placing a child in secure detention.

3

Resulting Deprivations of Plaintiffs’ Rights

4

47. As a result of the administration’s current crackdown, Plaintiff Class members

5 have been subjected to a cascading series of deprivations of their statutory, court-ordered and 6 Constitutional rights. Because they are suspected of gang involvement – often based on nothing 7 more than conjecture and profiling – they have been placed by ORR in secure care or staff secure

8 facilities, making a mockery of the statutory requirement that they be placed in "the least 9 restrictive setting that is in the best interest of the child.” The deprivations described herein are 10 even more glaring in the case of the Plaintiff class members, who, as Sponsored UCs, have

11 already been apprehended, released to the custody of ORR, and released by ORR to the custody

12 of a sponsor.

13

48. On June 12, 2017, ORR amended § 1.2.4 of the ORR Rules to permit it to

14 consider, as a basis for placement in secure custody, whether the UC “has self-disclosed violent

15 history or gang involvement prior to placement in ORR custody . . . .” and “reported gang

16 affiliation or display[ing] gang affiliation while in care.” The timing of these amendments

17 coincided with the rollout of “Operation Matador” and the arrests of multiple Class members.

18

49. Evidence adduced in this case has shed light on Defendants’ practices regarding

19 the arrest, detention and transfer of UCs suspected of gang affiliation. When ICE arrests a UC

20 suspected of gang affiliation, it promptly notifies ORR of the arrest, but does not immediately 21 transfer physical custody of the UC to ORR. Instead, ICE keeps the UC in secure detention at an 22 undisclosed location, without making any effort to notify the UC’s sponsor, family members, or

23 counsel, or to provide the UC access to counsel.

24

50. While ICE keeps the UC imprisoned, it sends a bare summary of information

25 about the UC to ORR via email. This information may include significant errors, including

26 reporting the existence of criminal charges that have been dismissed or otherwise resolved, or 27 inaccurate notations that an individual is a “self-admitted gang member;” and relies on hearsay

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1 allegations by local law enforcement authorities that have not been tested or questioned in any

2 form by ICE.

3

51. On information and belief, ICE’s uniform policy and practice is to recommend

4 that ORR place UCs suspected of gang affiliation in a secure care facility.

5

52. Plaintiffs allege on information and belief that before ICE arrests an

6 unaccompanied minor in a non-exigent situation in the interior of the United States (i.e., not in

7 the course of committing an alleged serious crime and not proximate to the minor crossing the

8 border), it has the ability to access information maintained by ORR or other agencies that would

9 indicate whether the child is already a Sponsored UC.

10

53. Notwithstanding, these Sponsored UCs have been re-arrested by ICE based on

11 arrest warrants stating only that “there is probable cause to believe that [the UC] is removable

12 from the United States . . . based upon . . . the pendency of ongoing removal proceedings against

13 the subject.”

14

54. As to Sponsored UCs, such re-arrest based on nothing more than “removability”

15 violates the TVPRA. If ICE can upend ORR’s decisions to reunify UCs with their parents under

16 sponsor agreements and serially re-arrest Sponsored UCs solely based on “removability,” the

17 protections afforded UCs under the TVPRA are meaningless.

18

55. In addition, ICE arrests of sponsored UCs based on removability absent reliable

19 information about changed circumstances that justify such arrest—as opposed to a process by

20 which ORR reviews its own prior custody determination based on information provided by ICE

21 or other sources—are unreasonable under the Fourth Amendment.

22

56. When ICE notifies ORR that it has re-arrested a Sponsored UC, ORR treats the

23 UC as though this were the first time it had ever been in contact with the UC, ignoring its own 24 previous evaluation of the UC and his or her sponsor. In sworn testimony given in this Court on

25 June 29, 2017, ORR Senior Field Specialist Supervisor James De La Cruz stated that in the case

26 of a re-arrest of a Sponsored UC, it is ORR policy not to contact the UC’s sponsor prior to 27 deciding to place the UC in secure detention and permitting ICE to transport the UC to a location

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1 distant from the sponsor.

2

57. Within a few hours of receiving ICE’s notification and recommendation, ORR

3 takes steps to place the unaccompanied minor in accordance with ICE’s recommendation. In

4 making this decision, ORR relies exclusively on information provided by ICE via email, without

5 any attempt to review any of its own files concerning the UC or its own prior custody 6 determination, to corroborate any of ICE’s information, or to provide notice to the child (or his 7 or her guardian or attorney) as to what information is being considered. In his sworn testimony 8 in this Court, Mr. De La Fuente admitted that it has “no procedures for reviewing or challenging 9 [ICE’s] recommendation” before making a decision to send a UC to secure detention. In essence, 10 ORR merely accepts whatever is reported by ICE.

11

58. After ORR determines where the child will be detained, ICE transports the UC to

12 that facility, and transfers physical custody of the minor to ORR only after the transportation

13 process has been completed. During this time, neither ICE nor ORR makes any effort to inform

14 the minor’s family members, sponsor, or counsel concerning the child’s whereabouts, or to

15 permit them any opportunity to be informed of, much less challenge, ICE’s and ORR’s

16 placement decision.

17

59. Also during this time, ICE systematically deprives unaccompanied minors of their

18 Fifth Amendment rights by interrogating them without counsel present, even if the child has

19 attempted to resist answering questions and/or requested to contact his or her counsel before

20 answering.

21

60. ORR, for its part, is summarily placing these children in secure detention without

22 the required “determination that the child poses a danger to self or others or has been charged

23 with having committed a criminal offense.” 8 U.S.C. 1232(c)(2)(A). ORR’s placement decisions 24 also violate its obligation that a UC be placed in “the least restrictive setting that is in the best 25 interest of the child.” By reflexively accepting the recommendations of ICE, it is only

26 considering the alleged “interest” of law enforcement authorities. Moreover, because ORR’s 27 policy and practice is to take 30 days to complete any re-evaluation of its initial placement

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1 decision, ORR’s conduct imposes a 30-day period of confinement in jail-like conditions on

2 Plaintiffs.

3

61. Even in the 30-day period following this initial placement, ORR does not provide

4 unaccompanied minors, their sponsors, or their attorneys the evidence upon which ORR relies to

5 detain them in the most restrictive settings available for children in ORR custody. Neither a UC, 6 nor his or her counsel or sponsor, has any opportunity to test this evidence, to cross examine the 7 witnesses who may be the source of incriminating information, or to present additional facts to a

8 neutral decision-maker who could weigh the evidence impartially.

9

62. The arrest and transfer of unaccompanied minors to distant locations and their

10 detention in jail-like conditions is extremely harmful. It a severe deprivation of liberty that

11 imposes psychological harm and suffering upon the children who are detained. It also prevents 12 unaccompanied minors from seeing their families, meeting with counsel, and participating 13 meaningfully in ongoing immigration proceedings and other matters that impact their ultimate

14 ability to remain in the United States. These harms are imposed even when not required by 15 geographic limitations of available facilities. Many unaccompanied minors, including two of the 16 Named Minors, who were originally placed in secure facilities were later “stepped down” to

17 “staff secure” facilities geographically distant from their families, lawyers, and court

18 proceedings, despite the presence of “staff secure” ORR facilities in their home regions.

19

63. In addition to the practical effect that detention in remote facilities has on

20 unaccompanied minors’ participation in ongoing legal proceedings, USCIS has issued notices of 21 intent to deny or revoke approval of SIJ status for unaccompanied minors who are alleged to 22 have gang affiliations. Plaintiffs are informed and believe, and thereon allege, that USCIS has

23 issued these notices and taken other actions to deny or obstruct unaccompanied minors’ access to 24 immigration benefits to which they are entitled based on DHS’s recommendations, without any 25 independent review of the evidence upon with DHS’s recommendations are made.

26 /// 27 ///

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1

FACTS PERTAINING TO INDIVIDUAL PLAINTIFFS

2

A.H.

3

64. After suffering severe abuse and neglect from his father in Honduras, A.H. fled

4 Honduras and entered the United States as an unaccompanied minor on or about April 26, 2015.

5 He was detained by U.S. Customs and Border Protection upon his arrival, and placed in the 6 custody of ORR. Upon his arrival, A.H. spent one month in ORR custody at Lincoln Hall Boys’ 7 Haven in Lincolndale, New York, before being released to the custody of his mother, Plaintiff

8 Saravia, on or about May 28, 2015. Plaintiff Saravia signed a sponsor agreement with ORR and

9 became A.H.’s official sponsor.

10

65. For over two years, between May 28, 2015 and June 12, 2017, A.H. lived with

11 Plaintiff Saravia, his mother and sponsor, in Long Island, New York. By order of the New York 12 State Family Court for Nassau County dated January 29, 2016, Plaintiff Saravia was awarded 13 sole residential and legal custody of A.H.

14

66. A.H. is eligible to apply for SIJ status upon the issuance of an appropriate state

15 court order (commonly referred to as a “Predicate Order”) finding that (1) he is a dependent of

16 the court; (2) he cannot be reunited with one parent due to abuse, abandonment and/or neglect;

17 and (3) it is not in his best interest to return to his home country. 8 U.S.C. § 1101(a)(27)(J). A.H. 18 qualifies for the issuance of the Predicate Order. Once the Predicate Order is issued, A.H. can 19 file a SIJ Status Petition (U.S. Citizenship and Immigration Services Form I-360), he can obtain

20 lawful permanent residency and a path to citizenship, and he can be protected from removal from 21 the United States. On or about January 3, 2017, through his New York attorney, Stephanie 22 Gibbs, A.H. filed a Motion for Special Findings in the Family Court in Nassau County,

23 requesting that the Family Court issue a Predicate Order containing the findings required under 24 the TVPRA.

25

67. A.H. is also the subject of removal proceedings under 8 U.S.C. § 1229a in

26 Immigration Court in New York, New York. 27 ///

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1

68. On or about June 12, 2017, A.H. was arrested outside his home by two

2 plainclothes officers who identified themselves as ICE officers and said they had an order to 3 arrest him. The DHS arrest warrant stated, as the sole cause for the arrest, that DHS had 4 “probable cause to believe” that A.H. was “removable from the United States … based on … the 5 pendency of ongoing removal proceedings ….” A.H. asked why the officers were arresting him 6 and they told A.H. he had admitted to being in a gang, which was untrue. The officers 7 handcuffed him and transported him to a holding cell. They did not give him an opportunity to

8 gather any belongings or to communicate with either his mother or his attorney.

9

69. At the time of his arrest, A.H. did not meet any of the ORR’s criteria for detention

10 in a secure facility. During his time in the United States, A.H. has had two minor brushes with

11 law enforcement, neither of which resulted in a conviction of any offense. In April or May 2016, 12 a classmate alleged that A.H. had threatened him with a knife. Although A.H. was charged with 13 “menacing with a weapon,” A.H. denies having even been in possession of a knife and the

14 charges were later adjourned in contemplation of dismissal. In March 2017, A.H. was charged 15 with fifth degree marijuana possession, the lowest possible possession offense. This charge, too, 16 was adjourned in contemplation of dismissal. At the time of his arrest, A.H. informed the

17 arresting officers that his criminal cases had been resolved.

18

70. Under New York criminal law, adjournment in contemplation of dismissal is a

19 final adjudication that does not involve either an admission or a finding of guilt, and therefore

20 should not be treated as a “conviction” that carries adverse immigration consequences.

21

71. Shortly after arresting A.H., ICE informed ORR via email that it had arrested

22 A.H., and provided ORR with information concerning A.H., much of which was incomplete or

23 incorrect, or both. ICE informed ORR of A.H.’s two arrests, but falsely stated that the arrest for 24 “menacing” had occurred within the previous three weeks and that criminal charges were 25 “pending,” when in fact the arrest had occurred a year earlier and the charges had been adjourned

26 in contemplation of dismissal. ICE also falsely informed ORR that the charge for possession of 27 marijuana was “pending,” when in fact it too had been adjourned in contemplation of dismissal.

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1 Finally, ICE falsely reported that A.H. was a “self-admitted gang member,” based on a double-

2 hearsay statement in a SCPD arrest report that is inconsistent with an earlier statement in the 3 same report, which explicitly stated that A.H. denied being a gang member. ICE recommended 4 to ORR that A.H. be placed in secure confinement.

5

72. Based on this incomplete and largely inaccurate information, in less than three

6 hours ORR accepted ICE’s recommendation that A.H. should be sent to secure confinement, and

7 arranged for him to be sent to Yolo. During this time, ORR did not review its own extensive

8 files on A.H. relating to its earlier decision to release him to the custody of his mother; did 9 nothing to question or verify any of the third-hand information reported by ICE; did not inform 10 A.H., his mother or his counsel of its determination or the information it was relying on in

11 making the determination; and did not allow A.H., his mother or his counsel any opportunity to

12 challenge the information or confront witnesses against him.

13

73. A.H. remained in ICE custody for approximately 36 hours, during which time

14 ICE transported him first to a secure detention facility in New York City; and then by airplane to 15 Los Angeles and Sacramento, California; and finally to Yolo. During this entire time he was 16 detained by, and in the physical custody of, ICE agents. A.H. was not formally transferred to

17 ORR custody until after ICE had placed him in secure detention at Yolo.

18

74. During his detention by ICE, A.H. made repeated requests to be permitted to

19 contact his attorney, but every such request was denied. He was interrogated by ICE officers

20 notwithstanding that he had an attorney and had requested to be able to talk to his attorney.

21

75. Even though ICE had already sent information to ORR stating that A.H. was a

22 “self-admitted gang member,” the ICE agents repeatedly asked A.H. if he was in a gang. A.H.

23 denied all involvement with a gang.

24

76. A.H. also requested to be permitted to contact his mother, but his requests were

25 denied until he told the agents that he would not talk to them until he had been permitted to

26 speak with his mother. When he was permitted to call his mother for a very short time, he told 27 her that he had been arrested by ICE and that she should contact his attorney.

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1

77. During the time of his initial detention and transportation across country, A.H.’s

2 attorney, Ms. Gibbs, repeatedly requested of Defendants and their agents information concerning

3 A.H.’s location, his condition, and the reasons he had been detained. Defendants did not even

4 confirm that they had arrested A.H. until the day after his arrest; and even then, they provided no

5 information as to A.H.’s whereabouts until approximately 5:00 p.m. on Tuesday, June 13, 2017,

6 when Mr. De La Cruz of ORR finally told A.H.’s attorney that A.H. was “en route” to Yolo.

7 Even then, Mr. De La Cruz did not provide information about who had decided to send him there

8 or why A.H. had been taken into custody.

9

78. At a hearing in this case on June 29, 2017, after hearing testimony from Mr. De

10 La Cruz of ORR, the Court ruled that because ORR “had already screened the child, screened the

11 mother, made a decision that the child could be placed with the mother, and entered into a

12 contract with the mother regarding the care of the child,” ORR “had an obligation to investigate

13 the information it was receiving from DHS about A.H.” The Court ordered Defendants “to look

14 much more carefully than it has done up to now into whether it should have taken the child into

15 custody,” including that it must “conduct a careful check of the accuracy of the information it

16 received from DHS … including contacting the appropriate local law enforcement officials who

17 might have information about the child’s status as a member or affiliate of MS-13.” The Court

18 also ruled that “ORR must give the child an opportunity to be heard in the presence of his

19 attorney and must give his attorney the opportunity to be heard in connection with this decision,”

20 and that “ORR must give the attorney access to all the information on which the decision would

21 be based and give her an opportunity to respond to that information before the final decision is 22 made . . . .”9

23

79. ORR took some of the steps ordered by the Court. In response to the Court’s

24 order, ORR produced a written report dated July 10, 2017. That report described the steps taken

25 by ORR in revisiting its initial decision regarding A.H.’s placement, but did not indicate that

26 ORR had contacted local law enforcement officials about the allegations of gang membership,

27 9 ECF 22, at 5-6.

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1 noting only that “[w]e believe the documents we received are authentic, and A.H.’s counsel 2 makes no claim that they are otherwise.”10 While refusing to concede that it had acted

3 improperly or reached an erroneous conclusion in connection with its initial decision to place 4 A.H. in secure confinement, ORR decided that A.H. should be “stepped down” to a less 5 restrictive “staff secure facility,”11 and subsequently transferred A.H. to a staff secure facility in

6 Dobbs Ferry, NY, closer to his home.

7

80. In the time since A.H. was transferred to Dobbs Ferry, his attorney and Plaintiff

8 Saravia have diligently provided information and access as required by ORR to seek his

9 reunification with Plaintiff Saravia. To date, A.H.’s reunification petition has been denied.

10

81. Among the documents ORR provided to A.H. in response to this Court’s order

11 was a memo dated June 26, 2017 bearing the seal of Defendant DHS that concludes, “In light of

12 [A.H.’s] affiliation to a violent street gang, he should not be afforded any type of immigration

13 services, relief, benefit or otherwise released from custody pending the outcome of removal

14 proceedings.” On information and belief, Defendants’ refusal to release A.H. to his mother’s

15 custody is based in part on Defendants’ continuing reliance on unfounded allegations of gang

16 affiliation.

17

82. As a result of Defendants’ wrongful acts, A.H. was arrested without cause, placed

18 in a secure holding cell 2,500 miles from his mother and guardian, deprived of access to his

19 counsel, deprived of notice and an opportunity to be heard on whether he should be detained, and

20 continues to be held in custody and denied reunification with his parent and release into her

21 custody, in violation of due process and federal law.

22

F.E.

23

83. F.E. is a seventeen year old who entered the United States in June 2014 to escape

24 death threats from gang members in his native El Salvador, where he was living with his 25 maternal grandparents. After being apprehended by immigration authorities and released to the

26

27 10 ECF 27-1, at 2. 11 Id, at 5.

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1 custody of ORR, he was released by ORR to the custody of his mother under a sponsor

2 agreement, and thereafter lived with his mother in Brentwood, NY.

3

84. F.E. began to encounter problems with local police in the spring of 2017, after he

4 was briefly suspended from Brentwood High School based on an unsubstantiated allegation of

5 gang affiliation. After that time, he was frequently stopped by local police, who repeatedly

6 asked him his name and address.

7

85. F.E. asked to meet with the police to explain that he was not in a gang and to ask

8 them to stop harassing him. Their response was that he should “stop hanging out with bad

9 company,” even though he did not spend time with gang members.

10

86. On Friday, June 9, 2016, F.E. was walking home with a friend after playing

11 soccer when he was arrested on a charge of disorderly conduct. He was taken to the local police

12 station, where he was held overnight. For several hours, he was handcuffed and shackled to the

13 wall, unable to walk around in the cell. An ICE officer showed up at the station but did not talk

14 with him, and several police officers repeatedly told him he was “illegal” and would possibly be

15 deported. His mother came and tried to see him, but the police would not allow her to do so.

16

87. At a court hearing the next day, Saturday, June 10, the judge told him that she

17 could release him because his alleged offense was only an infraction, but that because the police 18 had called immigration authorities, he would not be released. F.E. was then taken to the 19 Riverhead Correctional Facility in Riverhead, NY, where he was held until Wednesday, June 14,

20 when family members posted bail.

21

88. On Friday, June 16, F.E. was again apprehended by the same local police officer,

22 who informed him that he was being detained because “you aren’t legal. I need to give you to

23 immigration. You’ll probably be deported.” He was then taken to Central Islip, NY, where he 24 was arrested by an ICE officer, who told him that he was not being arrested for gang affiliation,

25 but because he had an open immigration case. From Central Islip he was taken to an ICE

26 detention center in Manhattan. On Saturday evening, he was informed that he would be sent to

27 Shenandoah. On Sunday morning, June 18, he was driven to an airport, then put on a plane, and

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1 taken to a secure facility in Shenandoah, Virginia.

2

89. On information and belief, ICE recommended to ORR that F.E. be transferred to a

3 secure facility, and ORR accepted ICE’s recommendation without ever reviewing or questioning

4 any of the evidence on which ICE was basing its recommendation; without informing F.E. or

5 anyone acting on its behalf of any of this information; or offering to F.E. or anyone acting on his

6 behalf an opportunity to review this evidence or offer evidence on his behalf.

7

90. On information and belief, ICE based its recommendation, at least in part, on

8 unsupported and unreliable allegations of gang affiliation. While he was as Shenandoah, F.E.

9 was told that he was there because he had been accused of being in a gang; but he was never told

10 who had accused him of this, or why.

11

91. F.E. was held at Shenandoah until July 6, 2017, when he was “stepped down” to a

12 staff secure facility run by Baptist Child & Family Services under contract with ORR in

13 Fairfield, California.

14

92. On August 4, 2017, shortly after meeting with an investigator from the ACLU of

15 Northern California, he was transferred to Lincoln Hall Boys’ Haven, an ORR contract facility

16 located in Lincolndale, NY.

17

93. Since he was taken into ORR custody in June, 2017, F.E.’s attorney and mother

18 have diligently provided information and repeatedly sought F.E.’s release and reunification with

19 his family. To date ORR has denied F.E.’s release. On information and belief, ORR’s refusal to

20 release F.E. is based on Defendants’ inaccurate, unfounded, and unreliable gang allegations.

21

94. Meanwhile, F.E. had applied for SIJ status on October 28, 2016. On February 13,

22 2017, USCIS issued a notice of action indicating its approval of SIJ status. On the basis of this

23 approval, F.E. had applied to adjust his status to lawful permanent resident. However, on June 24 21, 2017, just days after his arrest in Brentwood, USCIS notified F.E. of its intent to revoke his

25 SIJ status, based in part on a claim that the Family Court that had issued the predicate order on

26 which SIJ status was based had not been informed of F.E.’s alleged “gang activities.” On

27 information and belief, this action was nothing more than an attempt to interfere with F.E.’s

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1 lawful and proper efforts to put himself on a path to U.S. citizenship. USCIS to this day has

2 never explained who alleged that F.E. had participated in “gang activities,” or what “activities”

3 he is alleged to have participated in.

4

J.G.

5

95. J.G. is a seventeen year old native of El Salvador who grew up in the care of his

6 maternal grandparents after his mother had immigrated to the United States and his father had

7 abandoned him when he was one year old. He entered the United States in 2015, was detained at

8 the border and released to the custody of ORR. ORR subsequently released him to the custody

9 of his mother under a sponsor agreement, and he went to live with her in Brentwood, NY.

10

96. After being expelled from high school for cutting class in 2015, J.G. was

11 frequently followed by members of SCPD, who would stop him and question him for no

12 apparent reason. Since then, he has been charged with trespassing on several occasions.

13

97. On April 19, 2017 at about 12:30 p.m., he was stopped by SCPD officers while

14 walking to a deli with a friend. About five minutes after the initial stop, plainclothes detectives 15 arrived and handcuffed and searched both youth. The detectives said J.G. was a member of a 16 gang because of who he was associating with and because he was wearing a blue soccer jersey

17 with the name of his country, El Salvador, on it. He responded that he was not in a gang. The 18 detectives accused J.G. of killing someone, which he denied, and repeatedly referred to J.G. by 19 using vulgar epithets. One of them, said “bye bye,” and that he was going to be deported, and

20 the rest of the police officers laughed.

21

98. J.G. was taken to a police station where he was made to sit in an interrogation

22 room with his handcuffs shackled to the floor. He asked to be able to call his mother, but his

23 request was refused. Later that evening he was taken out of his cell and interrogated about a 24 murder by two new detectives who accused him of the murder and of being a gang member; he

25 denied both accusations.

26 /// 27 ///

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1

99. The next day, April 20, 2017, J.G. appeared in court, where the judge set bail at

2 $250 for a charge of false personation, but told him that if he paid bail and were released, he 3 would go straight into immigration custody. On April 21, 2017, he was questioned by an ICE 4 officer, who told him that even if someone made bail for him, “you’re going with us to Virginia.”

5 Based on the threat that he would be taken into immigration custody rather than released on bail, 6 J.G.’s family did not post bail, and J.G. was transferred to the Riverhead Detention Center in 7 Riverhead, NY, where he remained for nearly two months, until June 16, 2017.

8

100. At a court hearing on June 13, 2017, on the advice of his attorney, J.G. pled guilty

9 in order to obtain his release, and he was returned to Riverhead. But he was not immediately

10 released. ICE agents came to the jail at about 5:00 a.m. on June 16, 2017 and arrested him. He

11 was taken to an ICE detention center in Manhattan, and from there to an airport, and transported 12 by plane to Sacramento and by car to Yolo. J.G. was permitted to call his stepfather from 13 Manhattan but did not have any information to share about what was happening to him.

14 Therefore, neither his mother, his stepfather nor his criminal attorney were informed of his 15 whereabouts or of ICE’s plan to detain him and send him to Yolo. He was not able to call his 16 mother again until June 19, 2017.

17

101. In response to a records request by counsel for Plaintiffs, ORR has made available

18 records pertaining to J.G. Among the documents created by personnel at Yolo are notes stating

19 that J.G. is “self-admitted MS-13.” This information is not reflected in, or supported by, any

20 other records made available by ORR and is inconsistent with J.G.’s denial of gang membership. 21 Nowhere in any records made available by ORR is there any first-person account of any person 22 to whom J.G. supposedly “admitted” gang membership.

23

102. On July 26, 2017, following visits by counsel for Plaintiffs, J.G. was “stepped

24 down” by ORR to the Selma Carson Home, a staff secure facility in Tacoma, Washington, where

25 he remains to this day.

26

103. Prior to his most recent arrest, J.G. had applied for a U-3 visa as a derivative of

27 his mother’s U Visa (a visa for which certain crime victims are eligible). He was placed in

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1 removal proceedings when he arrived in the U.S. in 2015, but those proceedings were

2 administratively closed because of the pending U-3 visa application. In February 2017, U.S.

3 Citizenship and Immigration Service, the agency considering J.G.’s visa petition, notified his

4 attorney that it considers J.G. inadmissible based on a record that includes “information

5 indicating that he is a confirmed member of the Mara Salvatrucha (MS-13) street gang,” based in

6 part on such nebulous factors as “frequenting an area notorious for gangs,” “being seen by law

7 enforcement or by a source previously deemed reliable displaying gang signs or symbols,” and

8 “being identified as a gang member by documented or undocumented sources of information

9 previously deemed reliable by law enforcement personnel.”

10

104. While J.G. was in local custody at Riverhead, DHS filed a motion to recalendar

11 the removal proceedings that had been administratively closed, despite his pending U-3 visa

12 application. The motion was filed in the Immigration Court in New York, New York and

13 requested that J.G.’s removal proceedings be “recalendared and proceed to a final decision on the

14 merits without further delay.”

15

105. On June 23, 2017, DHS moved the Immigration Court to change the venue of

16 J.G.’s removal proceedings to Arlington, Virginia, based on an assertion that he had taken into

17 custody and detained at Shenandoah. The Immigration Court granted the motion before J.G.’s 18 attorney had received notice of the motion and had an opportunity to oppose it. DHS has since 19 moved to change venue to San Francisco, California.

20

106. J.G.’s transfers – first to Yolo and then to the Tacoma, Washington facility – and

21 the changes of venue in his immigration proceedings to courts outside his immigration attorney’s

22 area have interfered with J.G.’s relationship with his immigration attorney. If J.G. were released

23 to his mother’s custody, his counsel would request a change of venue back to New York.

24

107. At no time has J.G. been given any explanation of the reasons upon which ORR

25 based its decision to place him in a secure facility or to move him to staff-secure facility far from

26 his home, family, and immigration attorney, or any opportunity to examine the evidence on 27 which ORR relied in making its decision, or any opportunity confront the evidence or witnesses

28

25

FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS AND CLASS ACTION COMPLAINT FOR INJUNCTIVE

AND DECLARATORY RELIEF CASE NO.: 3:17-CV-03615-VC

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1 against him, or to present evidence on his own behalf.

2

CLASS ACTION ALLEGATIONS

3

108. Plaintiffs, as individuals and in their representative capacities, bring the claims set

4 forth herein against Defendants pursuant to Federal Rule of Civil Procedure 23(b)(2) to certify an

5 injunctive relief class (the “Class”) defined as follows:

6

All unaccompanied immigrant children (also referred to as “UCs”)

who had previously been detained in ORR custody and released by

7

ORR to a parent or other sponsor, and who thereafter have been or

will be arrested by U.S. immigration authorities on or after April 1,

8

2017 with allegations of gang affiliation and detained in a secure or

staff-secure detention center under the oversight authority of the San

9

Francisco-based ORR Federal Field Specialist.

10

109. On information and belief, the Class consists of a large number of similarly

11 situated individuals located throughout the country, such that joinder of all members of the Class

12 is impracticable.

13

110. There are common questions of law and fact affecting individual Class members,

14 including but not limited to, the following:

15

a. Whether Defendants’ policies, practices and conduct of arresting and detaining

16

unaccompanied minors based on allegations of gang affiliation are implemented

17

without reliable information supporting those allegations;

18

b. Whether ICE’s arrests of Plaintiffs were based on reliable evidence of changed

19

circumstances following ORR’s release of Plaintiffs to a parent or other sponsor;

20

c. Whether Defendants’ policies, practices and conduct result in the placement of

21

unaccompanied minors in secure or staff-secure care facilities without notice to

22

the unaccompanied minors’ family members, sponsors, or counsel;

23

d. Whether Defendants’ policies, practices and conduct result in the placement of

24

unaccompanied minors in secure or staff-secure care facilities with the effect of

25

interfering with their access to counsel;

26

e. Whether Defendants’ policies, practices and conduct result in the placement of

27

unaccompanied minors in ORR secure or staff-secure care facilities without

28

26

FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS AND CLASS ACTION COMPLAINT FOR INJUNCTIVE

AND DECLARATORY RELIEF CASE NO.: 3:17-CV-03615-VC

Case 3:17-cv-03615-VC Document 31 Filed 08/11/17 Page 30 of 40

1

notice or opportunity to rebut the allegations ORR relies on to justify secure or

2

staff-secure custody;

3

f. Whether Defendants’ criteria for placement of unaccompanied minors in a secure

4

or staff secure facility are so overbroad so as not to be justified by Defendants’

5

interests;

6

g. Whether Defendants have an obligation to transfer unaccompanied minors who

7

are stepped down to lower security facilities to available facilities near the

8

minors’ homes and/or families;

9

h. Whether Defendants’ policies, practices and conduct with respect to Sponsored

10

UCs unlawfully denies or obstructs the unaccompanied minors’ access to

11

immigration benefits and protections;

12

i. Whether such policies, practices and conduct violated and continue to violate

13

Plaintiffs’ rights to be free from unreasonable seizures under the Fourth

14

Amendment of the United States Constitution;

15

j. Whether such policies, practices and conduct violated and continue to violate the

16

Plaintiffs’ rights, absent changed circumstances based on credible information, to

17

remain in the custody of a parent or other sponsor once released thereto by ORR

18

under the TVPRA, 8 U.S.C. § 1232;

19

k. Whether such policies, practices and conduct violated and continue to violate the

20

Plaintiffs rights to petition the government for access to the courts and/or

21

immigration benefits, under the First and Fifth Amendments to the United States

22

Constitution;

23

l. Whether such policies, practices and conduct violated and continue to violate the

24

Plaintiffs rights of access to counsel, under the First and Fifth Amendments;

25

m. Whether such policies, practices and conduct violated and continue to violate the

26

Plaintiffs rights to procedural and substantive due process under the Fifth

27

Amendment;

28

27

FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS AND CLASS ACTION COMPLAINT FOR INJUNCTIVE

AND DECLARATORY RELIEF CASE NO.: 3:17-CV-03615-VC

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1

n. Whether such polices, practices and conduct violated and continue to violate the

2

Plaintiffs’ rights to be placed in the least restrictive setting under the TVPRA, 8

3

U.S.C. § 1232(c)(2)(A); and

4

o. Whether injunctive relief should issue to enjoin the policies, practices and conduct

5

of the Defendants’ agents and employees.

6

111. Plaintiffs’ claims are typical of those of the Class members with respect to the

7 constitutionality and legality of Defendants’ policies, practices and conduct at issue here. The

8 prosecution of individual actions against Defendants by individual members of the Class would 9 create a risk of inconsistent and varying adjudications, which would result in variable standards 10 of conduct for Defendants and a lack of uniform immigration policy nationwide.

11

112. Plaintiffs will fairly and adequately protect the interests of members of the Class

12 and are unaware of any conflict among or between the members of the Class that would preclude

13 their fair and adequate representation. Plaintiffs are represented by counsel who have extensive

14 experience litigating similar matters.

15

INJUNCTIVE AND DECLARATORY RELIEF ALLEGATIONS

16

113. Plaintiffs repeat and reallege the allegations contained in all preceding paragraphs

17 as though fully set forth herein.

18

114. An actual and substantial controversy exists between Plaintiffs and Defendants

19 regarding their respective legal rights and duties. Plaintiffs contend that Defendants have

20 violated Class members’ constitutional and statutory rights as alleged above. Defendants deny

21 that their conduct violates any such rights and intend to continue such conduct.

22

115. Moreover, in view of Defendants’ policies and practices, Plaintiffs are threatened

23 with continuing and future deprivations of their rights, because they can be “stepped up” to 24 secure detention without due process, or, in the event they are released to their sponsors, they can

25 be re-arrested based on the continuing status of being in removal proceedings and sent again to

26 secure detention. 27 ///

28

28

FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS AND CLASS ACTION COMPLAINT FOR INJUNCTIVE

AND DECLARATORY RELIEF CASE NO.: 3:17-CV-03615-VC

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1

116. Defendants’ conduct as alleged above has caused and, absent injunctive relief or a

2 writ of habeas corpus, will continue to cause irreparable harm to Plaintiffs by denying Class 3 members liberty without due process, as well as their statutory and contractual rights to be placed 4 in the least restrictive setting that is in their best interest. In the absence of immediate relief,

5 Class members will continue to be deprived of these rights.

6

117. Under the Administrative Procedure Act, “final agency action for which there is

7 no other adequate remedy in a court [is] subject to judicial review.” 5 U.S.C. § 704. This Court

8 “shall…hold unlawful and set aside agency action, findings, and conclusions found to be…not in

9 accordance with law.” 5 U.S.C. § 706.

10

118. There is no adequate remedy at law for the continuing violations by Defendants of

11 Class members’ constitutional and statutory rights.

12

FIRST CLAIM FOR RELIEF

Unlawful Arrest

13

Fourth Amendment to the U.S. Constitution; 8 U.S.C. § 1232; 5 U.S.C. §§ 702, 706

By All Plaintiffs Against Defendants Sessions, Duke and Homan 14

15

119. Plaintiffs repeat and reallege the allegations contained in all preceding paragraphs

16 as though fully set forth herein.

17

120. At the time that ICE arrested each of the Plaintiffs, each Plaintiff had been

18 released to a parent or other sponsor pursuant to an ORR sponsorship agreement and was living

19 at liberty.

20

121. Prior to their release to sponsors under an ORR sponsorship agreement, each of

21 the Plaintiffs had been in ORR custody, and had been previously released to ORR by an agency

22 of DHS pursuant to the TVPRA.

23

122. Although ICE has broad authority to arrest undocumented persons, the TVPRA

24 limits that authority in the case of Sponsored UCs, who have been previously arrested, placed in

25 immigration proceedings, and transferred to the custody of HHS. Consistent with the TVPRA’s

26 mandate that “the care and custody of all unaccompanied alien children, including responsibility

27 for their detention, where appropriate, shall be the responsibility of the Secretary of Health and

28

29

FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS AND CLASS ACTION COMPLAINT FOR INJUNCTIVE

AND DECLARATORY RELIEF CASE NO.: 3:17-CV-03615-VC

Case 3:17-cv-03615-VC Document 31 Filed 08/11/17 Page 33 of 40

1 Human Services,” 8 U.S.C. § 1232(b)(1), from and after the time an arresting agency transfers

2 custody of a UC to ORR, ORR takes responsibility for the UC care and custody, and is required 3 to place the UC in “the least restrictive setting that is in the best interest of the child.” 8 U.S.C. § 4 1232(c)(2).

5

123. It is implicit in the structure and language of the TVPRA that once ORR makes a

6 determination that it is in the best interest of a UC’s to be released to a parent or other sponsor,

7 ICE may not simply re-arrest a Sponsored UC on grounds of removability, but may act only in

8 the face of changed circumstances that are exigent in nature and based on credible information. 9 Were this not the case, the protections conferred by the TVPRA would be meaningless, as 10 Sponsored UCs would be perpetually subject to re-arrest by ICE.

11

124. ICE lacked reliable information of changed or exigent circumstances that would

12 justify Plaintiffs’ arrests after ORR had made a determination that it was in the best interests of

13 each Plaintiff to be released to a parent or other sponsor pursuant to an ORR sponsorship

14 agreement; and accordingly, ICE did not have a reasonable basis to re-arrest the Class members.

15

125. For all of the above reasons, ICE’s arrests of Class members violated the TVPRA,

16 8 U.S.C. § 1232.

17

126. For all of the above reasons, ICE’s arrest of Plaintiffs also constituted

18 unreasonable seizures in violation of the Fourth Amendment to the U.S. Constitution.

19

127. Unless enjoined, ICE will continue to re-arrest minors who have been previously

20 released to sponsors by ORR without reliable information of changed or exigent circumstances 21 that would justify arrest in violation of the TVPRA, 8 U.S.C. § 1232 and the Fourth Amendment 22 to the U.S. Constitution.

23

SECOND CLAIM FOR RELIEF

Deprivation of Liberty without Procedural Due Process

24

Fifth Amendment to the U.S. Constitution, 5 U.S.C. §§ 702, 706

25

(By All Plaintiffs Against All Defendants except Defendant McCament)

26

128. Plaintiffs repeat and reallege the allegations contained in all preceding paragraphs

27 as though fully set forth herein.

28

30

FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS AND CLASS ACTION COMPLAINT FOR INJUNCTIVE

AND DECLARATORY RELIEF CASE NO.: 3:17-CV-03615-VC

Case 3:17-cv-03615-VC Document 31 Filed 08/11/17 Page 34 of 40

1

129. The Fifth Amendment to the U.S. Constitution protects all “persons” from

2 deprivation of liberty without due process of law.

3

130. Plaintiffs have liberty interests in family integrity, which is protected by

4 procedural due process.

5

131. Confinement in a secure or staff secure ORR contract facility is a significant

6 deprivation of liberty.

7

132. In making its determinations to place Plaintiffs in secure and staff secure

8 facilities, ORR relies on DHS’s unsubstantiated allegations of gang membership and fails to

9 provide Plaintiffs, their attorneys, and their sponsors notice and an opportunity to be heard before

10 a neutral decision maker, to examine the evidence upon which ORR purports to base its

11 determinations, and to cross-examine witnesses.

12

133. In addition to unlawfully transporting Plaintiffs far from family to detain them in

13 secure facilities, Defendants fail to consistently transfer Plaintiffs who are “stepped down” to

14 lower security facilities to available facilities near Plaintiffs’ homes and families.

15

134. By these actions, Defendants have violated and, unless enjoined, will continue to

16 violate Plaintiffs’ procedural due process rights under the Fifth Amendment.

17

THIRD CLAIM FOR RELIEF

Excessive Restraint of Liberty 18 Fifth Amendment to the U.S. Constitution, TVPRA (8 U.S.C. § 1232); 5 U.S.C. §§ 702, 706

(By All Plaintiffs Against All Defendants except Defendant McCament ) 19

20

135. Plaintiffs repeat and reallege the allegations contained in all preceding paragraphs

21 as though fully set forth herein.

22

136. The TVPRA requires that unaccompanied minors in HHS custody be “promptly

23 placed in the least restrictive setting that is in the best interest of the child,” and other protections

24 to ensure compliance with the “least restrictive setting” standard and family reunification. 8

25 U.S.C. § 1232(c).

26

137. The Due Process Clause of the Fifth Amendment permits civil detention of

27 individuals only where it is reasonably related to the Government’s stated interests in preventing

28

31

FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS AND CLASS ACTION COMPLAINT FOR INJUNCTIVE

AND DECLARATORY RELIEF CASE NO.: 3:17-CV-03615-VC

Case 3:17-cv-03615-VC Document 31 Filed 08/11/17 Page 35 of 40

1 flight risk and danger.

2

138. Plaintiffs do not meet Defendants’ own criteria for placement in a secure or staff

3 secure care facility.

4

139. To the extent Plaintiffs meet Defendants’ criteria for placement in a secure or

5 staff secure care facility, those criteria are so overbroad as to impose liberty restrictions that are

6 not reasonably related to Defendants’ interests.

7

140. Detention of Plaintiffs in secure or staff secure facilities is so unnecessarily

8 restrictive as to be punitive in nature and therefore violates their right to substantive due process.

9

141. Defendants have violated, and, unless enjoined, will continue to violate,

10 Plaintiffs’ rights under the TVPRA and the substantive due process component of the Fifth

11 Amendment.

12

FOURTH CLAIM FOR RELIEF

Violation of Flores v. Reno Consent Decree

13

(By Named Plaintiffs Against All Defendants Except Defendant McCament)

14

142. Plaintiffs repeat and reallege the allegations contained in all preceding paragraphs

15 as though fully set forth herein.

16

143. Named Plaintiffs, as individuals, seek the Court’s review and an order to remedy

17 violations of the Named Minors’ rights under the Flores Decree pursuant to Paragraph 24B,

18 which provides: “[a]ny minor who disagrees with the INS's determination to place that minor in

19 a particular type of facility … may seek judicial review in any United States District Court with

20 jurisdiction and venue over the matter to challenge that placement determination ….”

21

144. Defendants have violated, and, unless enjoined, will continue to violate the

22 Named Plaintiffs’ rights under the following paragraphs of the Flores Decree:

23

a. Paragraph 11: requiring the Government to detain a minor in the “least restrictive

24

setting appropriate to the minor’s age and special needs . . . .”

25

b. Paragraph 14: requiring that the Government release a minor to the minor’s parent

26

unless “the detention of the minor is . . . required either to secure his or her timely

27

appearance before the INS or the immigration court, or to ensure the minor’s

28

32

FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS AND CLASS ACTION COMPLAINT FOR INJUNCTIVE

AND DECLARATORY RELIEF CASE NO.: 3:17-CV-03615-VC

Case 3:17-cv-03615-VC Document 31 Filed 08/11/17 Page 36 of 40

1

safety or that of others.”

2

c. Paragraph 27: “No minor who is represented by counsel shall be transferred

3

without advance notice to such counsel, except in unusual and compelling

4

circumstances such as where the safety of the minor or others is threatened or the

5

minor has been determined to be an escape-risk, or where counsel has waived

6

such notice . . . .”

7

FIFTH CLAIM FOR RELIEF

Interference with Right to Counsel

8

First and Fifth Amendments to the U.S. Constitution, 5 U.S.C. §§ 702, 706

INA (8 U.S.C. §§ 1362, 1229a) and TVPRA (8 U.S.C. § 1232)

9

(By All Plaintiffs Against All Defendants except Defendant McCament)

10

145. Plaintiffs repeat and reallege the allegations contained in all preceding paragraphs

11 as though fully set forth herein.

12

146. The Due Process Clause of the Fifth Amendment guarantees respondents in

13 removal proceedings the right to representation by counsel of their choice, at no expense to the

14 government.

15

147. Civil litigants and applicants for government benefits have a First Amendment

16 right to be represented by counsel of their choice free from unreasonable interference with the

17 attorney-client relationship.

18

148. Plaintiffs have a statutory right to representation by counsel, at no expense to the

19 government under the INA. 8 U.S.C. §§ 1362, 1229a(b)(4)(A).

20

149. Defendant Price has a statutory obligation to ensure Plaintiffs’ access to

21 representation to the greatest extent practicable under the TVPRA. 8 U.S.C. § 1232(c)(5).

22

150. By their conduct, Defendants have interfered with and denied, and, unless

23 enjoined, will continue to interfere with and deny, Class members’ access to counsel in violation

24 of their constitutional and statutory rights.

25 ///

26 ///

27 ///

28

33

FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS AND CLASS ACTION COMPLAINT FOR INJUNCTIVE

AND DECLARATORY RELIEF CASE NO.: 3:17-CV-03615-VC

Case 3:17-cv-03615-VC Document 31 Filed 08/11/17 Page 37 of 40

1

SIXTH CLAIM FOR RELIEF

2

Interference with Constitutional Rights to Access the Courts and Petition the Government First and Fifth Amendments to the U.S. Constitution, 5 U.S.C. §§ 702, 706

3

(By All Plaintiffs Against All Defendants)

4

151. Plaintiffs repeat and reallege the allegations contained in all preceding paragraphs

5 as though fully set forth herein.

6

152. The First Amendment right to petition the government includes the right to file

7 civil actions in court that have a reasonable basis in law or fact and to seek government benefits

8 and services, including immigration benefits and protection, from government agencies.

9

153. The Fifth Amendment right to due process also includes the right to access the

10 courts and government benefits without undue governmental interference.

11

154. The arrest, transportation to distant locations and continuing detention of Class

12 members impede their ability to participate in judicial proceedings, both in Family Court and in

13 Immigration Court, that are critical to their ability to establish entitlement to immigration

14 benefits and protections, to put them on a path to citizenship, and to prevent their removal.

15

155. Defendant DHS has issued memos directing that, due to alleged gang allegations,

16 Plaintiffs should be denied any immigration services or benefits or release from custody pending

17 their removal from the United States.

18

156. Defendant ORR has made custody decisions that interfere with Plaintiffs’ ability

19 to petition the government for immigration benefits and services.

20

157. Defendant USCIS has denied or revoked approval for immigration protection,

21 benefits, and services for which Plaintiffs are eligible under U.S. and international law.

22

158. Through the above described conduct, Defendants have violated and, unless

23 enjoined, will continue to violate Plaintiffs’ rights to access the courts and government benefits, 24 and to petition the government under First and Fifth Amendments to the U.S. Constitution.

25 ///

26 /// 27 ///

28

34

FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS AND CLASS ACTION COMPLAINT FOR INJUNCTIVE

AND DECLARATORY RELIEF CASE NO.: 3:17-CV-03615-VC

Case 3:17-cv-03615-VC Document 31 Filed 08/11/17 Page 38 of 40

1

PRAYER FOR RELIEF

2 Wherefore, Plaintiffs pray for the following relief:

3

1. A declaration that Defendants have violated the rights of Plaintiff Class members

4 under the First, Fourth, and Fifth Amendments to the U.S. Constitution, the TVPRA, the INA,

5 and the Flores Decree in connection with their arrest, transportation, and detention to secure or

6 staff secure detention facilities and their denial of immigration benefits and services;

7

2. A declaration that:

8

a. ICE may not re-arrest UCs who have previously been released to the care

9

and custody of ORR, including those that ORR has released to the care

10

and custody of a parent or other sponsor, without reliable evidence of

11

changed circumstances that are sufficiently serious and exigent to justify

12

arrest;

13

b. Before placing a UC into secure or staff-secure custody, ORR must

14

provide the UC notice of the evidence upon which ORR bases its custody

15

decision and an opportunity to respond to that evidence at a hearing before

16

a neutral decision maker in which ORR has the burden of justifying the

17

custody decision and the UC has the right to be represented by counsel

18

and cross-examine witnesses;

19

c. ORR may not place a UC in secure custody absent admissible evidence of

20

non-trivial criminal conduct or evidence that the UC poses a danger to

21

himself or others, and dangerousness cannot be based on gang allegations

22

based solely on clothing, appearance, and associations; and

23

d. Defendants may not deny access to immigration benefits and services,

24

including by interfering in a UC’s state court proceedings, based on gang

25

allegations that are based solely on clothing, appearance, and associations;

26 /// 27 ///

28

35

FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS AND CLASS ACTION COMPLAINT FOR INJUNCTIVE

AND DECLARATORY RELIEF CASE NO.: 3:17-CV-03615-VC

Case 3:17-cv-03615-VC Document 31 Filed 08/11/17 Page 39 of 40

1

3. A preliminary and permanent injunction ordering Defendants, and all persons

2 acting under their direction:

3

a. to immediately release Named Plaintiffs to the custody of their guardians,

4

sponsors, or representatives;

5

b. to immediately afford Plaintiffs who are currently in custody in secure or

6

staff secure facilities access to the evidence upon with ORR based its

7

custody decision and an opportunity to be heard before a neutral decision-

8

maker regarding that evidence, including the opportunity to cross-examine

9

witnesses upon whose statements ORR relies;

10

c. to immediately transfer Plaintiffs in staff secure facilities to a facility

11

within no more than two hours’ driving distance from their guardians,

12

sponsors or representatives;

13

d. to refrain from arresting UCs who were previously released by ORR to a

14

parent or other sponsor without reliable information of changed

15

circumstances that are sufficiently serious and exigent to justify arrest;

16

e. to afford Plaintiffs who come into ORR custody in the future and as to

17

whom ORR receives or makes a recommendation to place in secure

18

custody notice of the evidence upon which this recommendation is based

19

and an opportunity to respond to that evidence at a hearing before a

20

neutral decision maker in which ORR has the burden of justifying the

21

custody decision and the UC has the right to be represented by counsel

22

and cross-examine witnesses before transferring the UC to secure custody

23

or within 48 hours of referral to ORR, whichever comes first; and

24

f. to refrain from interfering with Plaintiffs’ access to counsel, to the courts,

25

and to their efforts to petition the government for immigration services

26

and benefits including by detaining them and denying benefits due to

27

unsubstantiated gang allegations, including gang allegations that are based

28

36

FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS AND CLASS ACTION COMPLAINT FOR INJUNCTIVE

AND DECLARATORY RELIEF CASE NO.: 3:17-CV-03615-VC

Case 3:17-cv-03615-VC Document 31 Filed 08/11/17 Page 40 of 40

1

solely on clothing, appearance, and associations;

2

4. Attorneys’ fees and costs; and

3

5. For such other and further relief as the Court may deem proper.

4

5 Dated: August 11, 2017 6

AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA

7

By: _/s/ Julia Harumi Mass

.

8

Julia Harumi Mass

William S. Freeman

9

10

COOLEY LLP

11

12

By: _/s/ Martin S. Schenker

.

Martin S. Schenker

13

Nathaniel R. Cooper Ashley K. Corkery

14

Trevor M. Kempner

15

ACLU FOUNDATION

IMMIGRANTS’ RIGHTS PROJECT

16

17

By: _/s/ Stephen B. Kang

.

18

Stephen B. Kang

Judy Rabinovitz

19

Attorneys for Petitioners/Plaintiffs, on behalf of

20

themselves and others similarly situated.

21

22

23

24

25

26

27

28

37

FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS AND CLASS ACTION COMPLAINT FOR INJUNCTIVE

AND DECLARATORY RELIEF CASE NO.: 3:17-CV-03615-VC

 
 Case 3:17-cv-03615-VC Document 100 Filed 11/20/17 Page 1 of 44

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

ILSA SARAVIA, et al., Petitioners/Plaintiffs,
v. JEFFERSON B. SESSIONS, et al.,
Respondents/Defendants.

Case No. 17-cv-03615-VC
ORDER GRANTING THE MOTION FOR PRELIMINARY INJUNCTION; GRANTING THE MOTION FOR PROVISIONAL CLASS CERTIFICATION; GRANTING IN PART AND DENYING IN PART THE FEDERAL DEFENDANTS' MOTION TO DISMISS; GRANTING IN FULL THE NON-FEDERAL DEFENDANTS' MOTIONS TO DISMISS
Re: Dkt. No. 51, 54, 58, 61

The federal government sometimes releases noncitizens on bond or parole while their removal proceedings are pending. Release reflects a determination by the government that the noncitizen is not a danger to the community or a flight risk. Once a noncitizen has been released, the law prohibits federal agents from rearresting him merely because he is subject to removal proceedings. Rather, the federal agents must be able to present evidence of materially changed circumstances – namely, evidence that the noncitizen is in fact dangerous or has become a flight risk, or is now subject to a final order of removal. And if the noncitizen disputes the notion that changed circumstances justify his rearrest, he is entitled to a prompt hearing before an immigration judge. These protections against the erroneous deprivation of liberty arose out of a 1981 decision by the Board of Immigration Appeals and are embodied in the current practices of the Department of Homeland Security.
A small group of similarly situated noncitizens, however, has not been receiving

Case 3:17-cv-03615-VC Document 100 Filed 11/20/17 Page 2 of 44
comparable protections when rearrested. Specifically, some noncitizens enter the country as unaccompanied minors – that is, children with no parent or guardian available to care for them. Under existing law, the federal government conducts an assessment of the minor, and either keeps him in custody while his removal proceedings are pending or places him with a suitable "sponsor" in the United States. The sponsor is often a family member, and the minor's placement with the sponsor reflects a determination by the federal government that the minor is neither dangerous nor a flight risk (and that such a placement is in the child's best interest).
Recently, federal agents have been arresting noncitizens – including some minors who were previously placed with sponsors – based on allegations of gang involvement. Instead of giving those minors a prompt hearing to dispute that their detention is now justified based on changed circumstances, the government has been transferring them to different parts of the country for placement in high-security facilities for an indefinite period.
The issue in this case is not whether federal agents may arrest and detain undocumented minors who truly are members of dangerous criminal gangs. If federal agents have probable cause to believe that a minor is a member of a criminal gang, certainly that could be a "changed circumstance" that would justify detention, even if the government had previously determined that the minor was not dangerous. But there is no reason to deny these minors protections that noncitizens typically get after having been released on bond or parole. The minors and their sponsors have the right to participate in a prompt hearing before an immigration judge in which the government's evidence of changed circumstances is put to the test. By shipping the minors across the country for indefinite detention in a high-security facility before providing that hearing, the government has violated their due process rights.
Accordingly, for any noncitizen minor previously placed with a sponsor who has been arrested on allegations of gang activity, the government is ordered to provide a hearing before an immigration judge by no later than November 29, 2017, to allow the minor and his sponsor to contest the government's evidence of changed circumstances. The government must restore the minor to the sponsor's custody if such evidence is lacking. Going forward, at least while this
2

Case 3:17-cv-03615-VC Document 100 Filed 11/20/17 Page 3 of 44
lawsuit is pending, the government is ordered to provide such a hearing within seven days of arrest of any such minor.
The plaintiffs have asked for further relief, and they have asserted additional legal theories. Further relief may be warranted, but because the minors are clearly entitled to at least this due process protection, and because their need for that protection is time-sensitive, a preliminary injunction on this issue is warranted at this time.
I.
In the Spring of 2017, agents from Immigration and Customs Enforcement ("ICE"), which is a division of the Department of Homeland Security ("DHS"), executed "Operation Matador" in two New York counties. Operation Matador targeted undocumented immigrants in Suffolk and Nassau Counties who had alleged connections to criminal gangs. After receiving allegations of gang affiliation from local law enforcement officers, ICE agents proceeded to arrest the alleged gang members, relying on ICE's authority under federal law to arrest noncitizens who are subject to removal from the country. See Tr. of Oct. 27, 2017 Hearing at 2328, Dkt. No. 98.
Some of the people arrested were minors. And ICE decided, after making the arrests, that some of the minors fell within a certain legal category: "unaccompanied" minors. Under federal law, an unaccompanied minor is a child who comes across the border without any parent or legal guardian in the United States available to take care of them. 6 U.S.C. § 279(g)(2). When DHS takes custody of an unaccompanied minor, federal law requires that agency to transfer custody of the minor to the Office of Refugee Resettlement ("ORR"), a division within a different cabinetlevel agency, namely, the Department of Health and Human Services ("HHS"). The statutory purpose behind this transfer requirement is to provide special protections for unaccompanied minors, a particularly vulnerable group. In particular, Congress created this framework to address the concern that unaccompanied minors may be victims of human trafficking operations or other criminal activity, concluding that HHS was better equipped to assess and attend to the needs of these minors than DHS. The primary federal statute that confers this and other
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protections on unaccompanied minors is called the Trafficking Victims Protection Reauthorization Act, or TVPRA. Pub. L. No. 110-457, § 235, 122 Stat. 5044, 5074-82 (2008) (codified at 8 U.S.C. § 1232); see also 6 U.S.C. § 279.
When an unaccompanied minor is taken into custody by DHS and then ORR, typically proceedings begin before an immigration judge (under the auspices of the Department of Justice) to decide whether the minor should be removed from the country. The TVPRA requires ORR to decide where to place the minor while the removal proceedings are pending. The statute requires ORR to place the unaccompanied minor "in the least restrictive setting that is in the best interest of the child," considering, among other things, whether the minor is dangerous. 8 U.S.C. § 1232(c)(2)(A). ORR may release the minor to a "sponsor" who already lives in the country but was not with the minor when DHS picked him up – often a parent or relative – so long as the minor is not dangerous and the placement is otherwise suitable. If placement with a sponsor is not appropriate (either because there is no sponsor, or because the proposed sponsor is unsuitable, or because the minor is dangerous), ORR will detain the minor in a facility pending resolution of the removal proceedings. Id.; see also 6 U.S.C. § 279(b)(2)(B).
The facilities used by ORR have three security levels. The least restrictive level is a shelter facility, the medium level is a staff-secure facility, and the most restrictive level is a secure facility. The secure facility is akin to a local juvenile hall – in fact, ORR uses local juvenile halls to house the most dangerous unaccompanied minors, pursuant to contracts with local governments. See, e.g., Supp. Decl. of Julia Mass (June 23, 2017), Ex. 2 at 1-3, Dkt. No. 19-3; Decl. of Ashley Corkery ("Corkery Decl."), Ex. B at 77, Dkt. No. 61-3. In addition to local governments, ORR contracts with private entities (typically nonprofits) to take custody of unaccompanied minors. See, e.g., Corkery Decl., Ex. B at 77; Esquivel Mot. To Dismiss at 4 n.2, Dkt. No. 58.
But under Operation Matador, the minors that ICE arrested and classified as "unaccompanied" minors were not your typical unaccompanied minors. That is, they were not people who just came across the border, with no parent or guardian immediately available to care
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for them. Rather, these minors had come across the border previously – often years before – as unaccompanied minors, and had already once been placed into the custody of ORR. As required by the TVPRA, ORR conducted an assessment of these unaccompanied minors shortly after they arrived, to determine where they should be placed while the federal government decided whether to remove them from the country. And it appears that for each minor, ORR made the determination that the minors should be placed with sponsors rather than detained. Placement was often with parents who were eventually identified as already living in the country. In other words, the federal government had already determined, some time previously, that the minors arrested in Operation Matador were not dangerous.1
Three of those minors are now part of this lawsuit, although initially it was only one. The first minor, who goes by the initials A.H., came into the country from Honduras in 2015, unaccompanied by a parent or guardian. Decl. of A.H. (June 22, 2017) at 2, Dkt. No. 8. He fled an abusive father, and shortly after arriving in the United States he was placed in an ORR facility in New York. Approximately one month later, ORR released A.H. to live with his mother in Long Island, where he remained until this past June. Id. at 2-3. A.H. had two encounters with the criminal justice system during this time. The first was an incident with a fellow student at his high school that resulted in charges of menacing and possession of a weapon, both of which were adjourned in contemplation of dismissal after A.H. completed a pre-plea community service program. The second was a low-level charge for possession of marijuana, which also was adjourned in contemplation of dismissal. Decl. of Stephanie Gibbs (June 22, 2017) at 4-5, Dkt. No. 10. According to A.H., a friend with whom he was arrested admitted to having been part of a gang in the past, but A.H. denied any involvement with gangs. Decl. of A.H. (June 22, 2017) at 3.
1 As mentioned later, it's not clear whether ICE was correct to classify these minors as "unaccompanied minors" upon rearrest, at least to the extent the minors had been placed with sponsors who are parents or legal guardians, but both sides assume that ICE was correct, and it's not necessary to decide that question in the context of this motion.
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On June 12, A.H. was arrested by two plainclothes ICE officers on the street near his house. A.H. was placed in a cell in Central Islip, New York, and then in a cell in Manhattan. Around 3:30 a.m. the next morning, A.H. was put on a flight to California. He was then taken to the Yolo County Juvenile Detention Facility in Woodland, California. Decl. of A.H. (June 22, 2017) at 3-5. The detention facility where A.H. was sent is run by Yolo County, in the Eastern District of California, pursuant to a contract with ORR. Supp. Decl. of Julia Mass (June 23, 2017), Ex. 2 at 1-3. Prior to his transfer, DHS reported to ORR that A.H. was gang affiliated and provided a criminal history summary. This summary incorrectly reported the date for A.H.'s 2016 menacing and weapons charges, stating they had occurred a few weeks prior to his arrest by ICE. The summary did not acknowledge that all of A.H.'s charges had been adjourned in contemplation of dismissal. See Corkery Decl., Ex. B at 12:24-15:25, 47:14-49:6, 52:20-53:16; Corkery Decl., Ex. N, Dkt. No. 68-3; Decl. of Daniel Loechner at 2, Dkt. No. 15-1.2
On June 22, 2017, while he was in the Yolo County Juvenile Detention Facility, A.H. filed this lawsuit, which was captioned as a "Petition for Writ of Habeas Corpus and Complaint for Injunctive and Declaratory Relief." He brought the lawsuit against a variety of federal defendants, including the Attorney General, the Secretary of HHS, and the Director of ORR. The lawsuit also named as a defendant ORR Federal Field Specialist Elicia Smith, who is located in San Francisco and is responsible for ensuring that the Yolo County Juvenile Detention Facility performs its obligations under the contract with ORR. Finally, the lawsuit named Brent Cardall, who, as Chief Probation Officer for Yolo County, is in charge of day-to-day operations at the Detention Facility.3
As the caption implies, the lawsuit sought two different types of relief. First, it sought a
2 The menacing and weapons possession charges have since been dismissed. Pls.' Mot. To Further Supp. Record, Ex. 1, Dkt. No. 99. 3 Technically, A.H.'s mother has brought this lawsuit on behalf of her child (and the parents of the other two minors have brought suit on behalf of their children), because minors can't bring lawsuits on their own. But for ease of reference this ruling describes the lawsuit as having been brought by the minors.
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writ of habeas corpus. The purpose of a petition for a writ of habeas corpus is typically to obtain release from custody, based on a wrongful conviction or some other unlawful detention. Second, A.H.'s lawsuit included a request for declaratory and injunctive relief. That is, he sought a judicial declaration that his detention by the federal government was unlawful, and an injunction requiring the government to either release him or give him a prompt hearing to allow him to challenge the determination that he was dangerous and needed to be locked in a secure facility. He asserted several different legal theories, including under the Due Process Clause of the Fifth Amendment and the TVPRA. He also complained that ORR's conduct was preventing him from participating in his ongoing immigration proceedings in New York. A.H. appeared to assert each of these legal theories in connection with his pursuit of habeas relief as well as his pursuit declaratory and injunctive relief, although the lawsuit was unclear on this point.4
Along with his lawsuit, A.H. filed an application for a temporary restraining order ("TRO") in which he asked the Court to order ORR to release him, or at least to require that ORR give him an opportunity to contest the allegations that he was gang-affiliated or otherwise dangerous enough to warrant placement in a secure facility. The Court held a hearing on a very tight timeframe and ruled on the TRO application from the bench. The Court concluded that A.H. had raised serious questions about whether the government had violated the TVPRA by failing to give him an opportunity to demonstrate that ORR had not placed him in the least restrictive setting appropriate for his circumstances, and ordered ORR to promptly provide him that opportunity to be heard. Tr. of June 29, 2017 Hearing at 86-94, Dkt. No. 28. In response to the presentation by A.H. and his lawyers regarding the alleged gang affiliation, ORR determined that A.H. should be moved from the secure facility in Yolo County to a staff-secure facility (which provides the middle level of security) in New York. See Notice of Decision, Ex. A at 5, Dkt. No. 27-1; Decl. of James De La Cruz (Sept. 14, 2017) at 1, Dkt. No. 54-3. Counsel for A.H. informed the Court at a case management conference that, in light of this transfer to a less
4 Usually a habeas petition is brought separately from a complaint for declaratory and injunctive relief, but the government has not argued that it is improper to bring them together.
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restrictive facility much closer to home and to his ongoing immigration proceedings, A.H. would not be seeking further emergency relief by way of the TRO application.
On August 11, an amended lawsuit was filed. The amended lawsuit is again a combined petition for a writ of habeas corpus and a complaint for declaratory and injunctive relief. But it adds two other minors in ORR custody – F.E. and J.G. – both of whom had previously been released by ORR to family members under sponsorship agreements. ICE arrested F.E. in Suffolk County on June 16, presumably as part of Operation Matador, and transferred him to a secure facility, Shenandoah Valley Juvenile Center in Virginia, three days later. Decl. of Bryan S. Johnson at 2, Dkt. No. 61-17. On July 6, F.E. was "stepped down" to a staff-secure facility in Fairfield, California, and on August 4, F.E. was further stepped down to a shelter facility in Lincolndale, New York. Decl. of James De La Cruz (Sept. 14, 2017) at 2. ICE also arrested J.G. on June 16 in Suffolk County. He was transferred the following day to the secure facility in Yolo County and, on July 26, was moved to a staff-secure facility in Tacoma, Washington. Id.; Decl. of J.G. at 4-5, Dkt. No. 61-9.
The lawsuit seeks relief for not just the three minors who are now bringing the action, but for a class of similarly situated minors in ORR custody. And the amended lawsuit names a wider array of defendants. Recall that A.H.'s initial lawsuit named the Attorney General, officials in HHS/ORR, and the person in charge of the Yolo detention facility. The new lawsuit continues to name those people as defendants, but adds the Acting Secretary of DHS and other officials within DHS/ICE. It also adds Jose Esquivel, an employee of the private nonprofit organization BCFS Health and Human Services, which operates, pursuant to a contract with ORR, the Fairfield staff-secure facility that F.E. passed through. Esquivel is the interim program director of that facility.
The amended lawsuit also asserts a somewhat different series of legal theories (all of which, again, seem to be put forward in connection with both the request for habeas relief and the request for declaratory/injunctive relief). The first alleged legal violation is that the minors were unlawfully arrested in violation of the Fourth Amendment, the TVPRA, and the
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Administrative Procedure Act. (This new claim for unlawful arrest is why the amended lawsuit added the defendants from DHS/ICE – those officials were responsible for the arrests.) The second alleged legal violation is that the minors were deprived of their liberty without procedural due process, contrary to the Fifth Amendment. The third is that the minors were deprived of their liberty in violation of the substantive component of the Due Process Clause of the Fifth Amendment and the TVPRA. The plaintiffs further allege that the defendants violated the terms of the consent decree in Flores v. Reno, which sets standards the government must follow in housing noncitizen minors, and that the defendants interfered with their First and Fifth Amendment rights to access the courts and petition the government.5
The federal defendants have filed a motion to dismiss the entire case, on a variety of procedural and substantive grounds. The most significant procedural objections, described more fully below, are that there is no habeas jurisdiction in this judicial district with respect to any of the three minors, and that this district is also not the proper venue for their declaratory and injunctive relief claims. Meanwhile, the two non-federal defendants (Cardall, the official who runs the Yolo County detention facility, and Esquivel, the employee of the nonprofit organization that operates the facility in Fairfield) have filed motions to dismiss on the ground that they are not proper defendants in this lawsuit.
In turn, the minors have filed a motion for a preliminary injunction, and they seek to provisionally certify a class of unaccompanied minors for purposes of that motion. The minors contend that at least thirteen others have been arrested for similar reasons and are being detained without a meaningful opportunity to contest the basis for their detention. The minors assert only two of their legal theories in support of their request for a class-wide preliminary injunction: unlawful arrest and violation of procedural due process.
The minors and their attorneys ask the Court to rule quickly on their request for a
5 The new petition/complaint also alleged a sixth claim for interference with the minors' right to counsel, but the plaintiffs have since agreed to dismiss that claim. Pls.' Consol. Br. at 19 n.7, Dkt. No. 61-1.
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preliminary injunction. That is understandable – the minors are in custody, they've been in custody for several months now, and they contend the custody is unlawful. But the manner in which this action was brought and then expanded (beginning with a combined habeas petition and complaint by A.H., then growing to a combined habeas petition and complaint by three different minors, held in three different facilities around the country, against an expanded group of defendants, seeking relief not merely for themselves but for all other similarly situated undocumented minors) creates a host of difficult and time-consuming procedural questions. This puts the Court in a difficult position. In an effort to balance the need for a prompt ruling on the request for preliminary injunctive relief for minors being detained by the federal government against the need to ensure that such relief would be procedurally and substantively proper, this ruling addresses only the strongest claim for preliminary injunctive relief and only the one with no potentially significant procedural obstacles to granting that relief. The issues presented by the pending motions that are not decided in this ruling will remain under submission.
II.
As discussed, three people are now suing in this case. They have combined two distinct types of action in this one lawsuit – a petition for a writ of habeas corpus and a complaint for declaratory and injunctive relief. They assert a variety of different legal claims, under a variety of different constitutional provisions and statutes, against a variety of different defendants. The case largely arises from a law enforcement operation that took place in New York and the implementation of policies developed in Washington, D.C. The first task, therefore, is to determine which people may properly sue in this judicial district, which types of action they may bring, and which defendants they may sue.
For the reasons that follow, A.H. may pursue habeas relief in this judicial district against Elicia Smith, the local ORR official. However, F.E. and J.G. may not pursue habeas relief in this district, because they have not named the proper respondents, nor do the proper respondents reside in this district. Furthermore, F.E. and J.G. may not pursue their claims for declaratory and injunctive relief in this district, because venue is not proper for those claims. F.E. and J.G. are
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therefore dismissed as named plaintiffs, without prejudice to refiling their actions in the appropriate jurisdiction.
The most difficult procedural question is whether A.H. may, in conjunction with seeking habeas relief in this district, pursue his action for additional declaratory and injunctive relief here. In light of the unusual circumstances of this case, the Court will exercise its discretion to adjudicate the declaratory and injunctive relief claims under the doctrine of pendent venue, rather than requiring A.H. to pursue habeas relief in this judicial district while pursuing his closelyintertwined declaratory and injunctive relief claims in a different judicial district.
A.
The first question is whether A.H. may seek habeas relief in this district. The government contends there is no habeas jurisdiction here, because A.H.'s custodian at the time he brought his original lawsuit does not reside here. As the government notes, when A.H. brought his habeas claim, he was held in the Juvenile Detention Facility in Yolo County, which is in the Eastern District of California. This means, according to the government, that the proper respondent to A.H.'s habeas petition is the head of the Detention Facility. In support of its position, the government cites Rumsfeld v. Padilla, a case that structures the inquiry but which does not resolve whether this Court has habeas jurisdiction over A.H. 542 U.S. 426, 435 n.8 (2004).6
Rumsfeld v. Padilla applied the "immediate custodian rule" to a habeas petition filed by a U.S. citizen detained in military custody in South Carolina. See id. at 430-32, 442. The
6 The parties don't contest that, as to A.H., the relevant time period for purposes of determining the proper respondent is when he filed his initial habeas petition, notwithstanding his later transfer to a different facility and his decision to amend his pleading after that transfer. See Mujahid v. Daniels, 413 F.3d 991, 994 (9th Cir. 2005) ("[J]urisdiction attaches on the initial filing for habeas corpus relief, and it is not destroyed by a transfer of the petitioner and the accompanying custodial change." (quoting Francis v. Rison, 894 F.2d 353, 354 (9th Cir. 1990))); see also 28 U.S.C. § 2242; Fed. R. Civ. P. 15(c)(1)(B); Padilla, 542 U.S. at 441 ("[W]hen the Government moves a habeas petitioner after she properly files a petition naming her immediate custodian, the District Court retains jurisdiction and may direct the writ to any respondent within its jurisdiction who has legal authority to effectuate the prisoner's release.").
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immediate custodian rule is the long-held "default rule" that the proper respondent to a habeas petition challenging present physical confinement "is the warden of the facility where [a] prisoner is being held, not the Attorney General or some other remote supervisory official." Id. at 435-39; see also Wales v. Whitney, 114 U.S. 564, 574 (1885). Unlike a typical habeas petitioner challenging imprisonment following a criminal conviction, Padilla challenged detention resulting from a military order by the President deeming him an enemy combatant. 542 U.S. at 431. The Supreme Court concluded that, notwithstanding the unique circumstances leading to his detention, Padilla's habeas petition was ultimately still a challenge to present physical confinement by the executive branch and, as such, jurisdiction was governed by the default rule. Id. at 441-42. Applying the immediate custodian rule to Padilla's case, the Court held that the only proper respondent to his habeas petition was the commander in charge of the brig in South Carolina where he was held. Id. at 439-42.
Because Padilla had named the correct respondent, among other officials, the Court then turned to the question whether the Southern District of New York, the federal court in which Padilla's petition was filed, had habeas jurisdiction over that petition.7 The Court interpreted its prior cases addressing the scope of habeas jurisdiction as consistent with "the general rule that for core habeas petitions challenging present physical confinement, jurisdiction lies in only one district: the district of confinement." Id. at 443. It then applied that rule to Padilla's case, concluding that Padilla was required to file in the District of South Carolina, the district of his confinement, and that the Southern District of New York therefore could not entertain Padilla's petition. Id. at 451.
Padilla refused to decide who the proper respondent is in the immigration detention context, and no controlling authority since has resolved the issue. See id. at 435 n.8.8 Courts
7 The Court made clear that the term "jurisdiction" as used in the habeas statute, 28 U.S.C. § 2241(a), and the Padilla opinion was not equivalent to subject-matter jurisdiction. 542 U.S. at 434 n.7; see also id. at 451 (Kennedy, J., concurring) (viewing the concept of habeas jurisdiction as akin to personal jurisdiction or venue). 8 In a pre-Padilla opinion that was later withdrawn, the Ninth Circuit held that the proper
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have taken various approaches. Some have applied the immediate custodian rule in a straightforward fashion. See, e.g., Kholyavskiy v. Achim, 443 F.3d 946, 953 (7th Cir. 2006) (warden of the county facility holding an immigration detainee was the proper respondent); Nken v. Napolitano, 607 F. Supp. 2d 149, 159-61 (D.D.C. 2009) (correct respondent was the warden of the facility holding an individual subject to a final order of removal); Zhen Yi Guo v. Napolitano, No. 09 CIV 3023 PGG, 2009 WL 2840400, at *5 (S.D.N.Y. Sept. 2, 2009) (warden of county prison was the appropriate respondent).
Other courts have held that national-level policymaking officials are proper respondents. See, e.g., Carmona v. Aitken, No. 14-CV-05321-JSC, 2015 WL 1737839, at *4 (N.D. Cal. Apr. 10, 2015) (U.S. Attorney General and DHS Secretary were the proper respondents, as officials "with the actual authority to effectuate the prisoner's release"); Bogarin-Flores v. Napolitano, No. 12CV0399 JAH (WMC), 2012 WL 3283287, at *2 (S.D. Cal. Aug. 10, 2012) (Attorney General and DHS were the proper respondents, not the warden of the contract facility in which the petitioner was held); Farez-Espinoza v. Chertoff, 600 F. Supp. 2d 488, 494 (S.D.N.Y. 2009) (DHS Secretary and Attorney General were proper respondents); see also Santos v. Smith, No. 5:17-CV-00020, 2017 WL 2389722, at *8 (W.D. Va. June 1, 2017) (declining to dismiss ORR director where a minor was held in an ORR contract facility).
Still other courts have concluded that the federal agent charged with overseeing the nonfederal detention facility in which the noncitizen is held should be sued. See Khodr v. Adduci, 697 F. Supp. 2d 774, 776 (E.D. Mich. 2010) (proper respondent was the ICE District Director, not the warden of county jail); Abner v. Sec'y of Dep't of Homeland Security, No.
respondents to a habeas petition in the immigration context were the Attorney General and the Secretary of the Department of Homeland Security. Armentero v. INS, 340 F.3d 1058, 1071-74 (9th Cir. 2003), reh'g granted, opinion withdrawn, 382 F.3d 1153 (9th Cir. 2004). Rather than revisit the issue after withdrawing the opinion, the Ninth Circuit panel dismissed the appeal on grounds unrelated to the question of the proper respondent. Armentero v. INS, 412 F.3d 1088 (9th Cir. 2005). Judge Berzon dissented from that order and expressed the view that the panel's prior position was consistent with Padilla. Id. at 1090 (Berzon, J., dissenting).
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06CV308(JBA), 2006 WL 1699607, at *3-4 (D. Conn. June 19, 2006) (ICE field office director, not warden of county facility, was the correct respondent); Zabadi v. Chertoff, No. C 05-01796 WHA, 2005 WL 1514122, at *3 (N.D. Cal. June 17, 2005) (ICE district director, also known as the field office director, who could direct the county warden to release the petitioner was the proper respondent); see also Roman v. Ashcroft, 340 F.3d 314, 320 (6th Cir. 2003) (INS District Director for the area including the detention center was the proper respondent).
There is no compelling distinction between criminal custody and immigration custody as such. Courts holding that immigration cases should be treated differently, and that the Attorney General or Secretary of DHS should be the proper respondent in those cases, tend to base this conclusion on the fact that these national officials have the true authority to order the release of the detainee. But if that logic drove the "proper respondent" inquiry, Padilla would have come out differently. Under the logic of Padilla, there's no reason to conclude that, if A.H. were confined in a detention facility administered by federal immigration officials when he brought his habeas petition, he could have named anyone other than the federal official acting as the warden of that facility.
But A.H. faced a different situation here: he was held in a facility run by an entity other than the federal government, pursuant to a contract with the federal government. Where a petitioner is held in a facility solely pursuant to a contract, rather than by the state or federal government itself, application of the immediate custodian rule must take account of that fact. See, e.g., Bogarin-Flores, 2012 WL 3283287, at *2. Instead of naming the individual in charge of the contract facility – who may be a county official or an employee of a private nonprofit organization – a petitioner held in federal detention in a non-federal facility pursuant to a contract should sue the federal official most directly responsible for overseeing that contract facility when seeking a habeas writ. In other words, the distinction is not between a "traditional" detention and an immigration-related detention. The distinction is between a case where the detainee is held in a federal facility, and a case where the detainee is held in a facility operated by some other entity pursuant to contract with the federal government.
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This rule is a sensible reconciliation of Padilla's instruction to look to the person with "the power to produce the body of [the petitioner] before the court," ordinarily the warden of the facility holding the petitioner, and the reality that the named plaintiffs are being held in federal custody by other-than-federal actors who are poorly situated to defend federal interests. Padilla, 542 U.S. at 435 (citation omitted). When A.H. filed his original habeas petition, he was held in a secure facility administered by Yolo County. Decl. of A.H. (June 22, 2017) at 5-6. The federal defendants contend that A.H. should have named only Cardall, the Chief Probation Officer for Yolo County, as a respondent, because Cardall acted as the warden of that secure facility. But a Yolo County employee has custody of an immigration detainee like A.H. only to the extent provided by the facility's contract with the federal government. It is pursuant to the power and authority of the federal government – not Yolo County – that A.H. is in custody. So, the federal official with most immediate control over the facility holding the petitioner – that is, the federal official tasked with ensuring that Yolo County complies with the requirements of its contract with ORR – is the proper respondent.
This case provides a telling example of the conflicts of interest that could arise under the government's contrary rule. Were Cardall the only proper respondent to A.H.'s habeas petition, he would presumably be tasked with defending the federal government's decision to hold A.H. in custody. But Cardall, who is not a federal actor and who is not represented by the Department of Justice in this case, has taken the position that the Yolo County Probation Department did not have just cause to keep most of the undocumented minors that passed through Yolo County prior to August 26, 2017 in secure custody. See Corkery Decl., Ex. C at 3; Corkery Decl., Ex. D, Dkt. No. 61-3. Requiring Cardall to be the sole defender of the federal government's interests under the circumstances would make little sense. Padilla, which held that the federal actor with immediate control over the petitioner was the proper respondent for a petitioner in federal custody, does not stand for the proposition that a person in what is indisputably federal custody should sue a county official like Cardall (or, as would be true in many cases, an employee of a private nonprofit organization) to seek habeas relief.
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Therefore, A.H. properly sued Federal Field Specialist Elicia Smith, the federal official tasked with enforcing the contract pursuant to which A.H. was held in Yolo County. ORR Senior Field Program Specialist Supervisor James De La Cruz agreed that it was Smith's responsibility to make "sure that [ORR] policies regarding the custody of unaccompanied minors are followed by those county officials." Corkery Decl., Ex. B at 80. She "has jurisdiction over the . . . detention of persons under ORR supervision within th[e] geographic area" including Yolo County, and her responsibilities include "ensur[ing] that children placed under the auspices of the Office[] of Refugee Resettlement receive the services required by the Office of Refugee Resettlement, and that the programs that are in [the] geographical . . . location assigned to her follow ORR's policies and procedures . . . ." Id. at 54-55. Since it appears that she is the individual most immediately responsible for enforcing the federal contract under whose authority A.H. is held, she is the proper target of his habeas petition.9
What makes Smith the proper respondent with respect to A.H. is not any power to make binding decisions about A.H.'s custody. The record strongly suggests she had no such authority over A.H. when he was in her custody, just as the commander of the brig in Padilla did not actually have legal authority to release Padilla. See Decl. of James De La Cruz (Sept. 14, 2017) at 1-2, Dkt. No. 54-3; Decl. of James De La Cruz (June 27, 2017) at 3-4, Dkt. No. 15-2. Although one can imagine a sensible contrary rule, Padilla instructs courts not to look to the official who exercises legal control over the petitioner where present physical confinement is at issue. 542 U.S. at 439. Otherwise, Padilla cautions, any convicted federal prisoner could name the Attorney General as a respondent, a result "the statutory language, established practice, and [Supreme Court] precedent" counsel against. Id. at 439-40. At least where a readily identifiable federal official exercises more immediate control over a contract facility than the Attorney General or another department head, as is the case here, Padilla requires a petitioner challenging
9 Particularly in a situation in which it is difficult to discern who has oversight responsibility with respect to a given contract facility, the director of the local office might also be a proper respondent.
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present physical custody to name that more immediate official. See Abner, 2006 WL 1699607, at *3.
Because Smith is the proper respondent, this Court has habeas jurisdiction over A.H.'s habeas petition. So long as the proper respondent falls within this Court's territorial jurisdiction, habeas jurisdiction exists. See Padilla, 542 U.S. at 442-44. No party disputes that Elicia Smith is based in San Francisco, within this Court's territorial jurisdiction. See Corkery Decl., Ex. B at 54; Corkery Decl., Ex. E (HHS) at 4493-94, 5733, Dkt. No. 68-4. A.H.'s individual habeas petition therefore is properly before this court, even if the practical effect of habeas relief would be that the conduct of officials elsewhere, and not the conduct of Smith, is affected.10
B.
When the amended complaint was filed, J.G. and F.E. joined the case, and they sought habeas relief as well. However, unlike A.H., who was confined in Yolo County when he first filed the case on his own, J.G. and F.E. were not in ORR custody in California when they joined the case. Rather, J.G. was detained by ORR in a contract facility in Tacoma, Washington, and F.E. was in a contract facility in Lincolndale, New York. See Am. Pet. at 22, 24, Dkt. No. 31.
10 It is true that Padilla states that a "core" habeas petition challenging present confinement should be filed in the "district of confinement." 542 U.S. at 443. Here, that district is arguably the Eastern District of California, which has territorial jurisdiction over Yolo County. However, Padilla also emphasizes that the habeas writ is directed toward the respondent. Id. at 442. Padilla did not address a situation where the custodian was physically located in a different district than the petitioner, and nothing in that opinion suggests that anything other than the respondent's location controls under the present circumstances. See id. at 442-47. Several courts considering analogous contractual arrangements in the criminal context have taken a similar approach. For instance, in Al-Amin v. Davis, the petitioner was serving a Georgia state court sentence in a federal prison in Colorado, pursuant to a contract between the Georgia Department of Corrections and the Federal Bureau of Prisons. No. 12-CV-01197-BNB, 2012 WL 1698175, at *1 (D. Colo. May 15, 2012). The U.S. District Court for the District of Colorado concluded that, under the circumstances, the Georgia Department of Corrections remained the petitioner's "true custodian," and therefore transferred the case to a federal court in Georgia. Id. at *3; see also Holder v. Curley, 749 F. Supp. 2d 644, 646-47 (E.D. Mich. 2010) (listing cases in which courts transferred a case "to the jurisdiction of conviction when the petitioner is housed in another state only for the convenience of and pursuant to a contractual relationship with the state wherein the conviction was rendered").
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J.G. and F.E. do not contend that Elicia Smith is responsible for overseeing the operation of these ORR facilities in Washington and New York, nor do they name any other respondent who could plausibly be construed to be their immediate custodian. The plaintiffs instead contend that Smith is a proper respondent for J.G. and F.E. because it is possible that J.G. and F.E. will be returned to her custody in the future. Pls.' Reply Br. at 19-20, Dkt. No. 73. But as already discussed, where a habeas petitioner challenges his present physical confinement, as J.G. and F.E. do, Padilla leaves no room for him to select the proper respondent from among possible future custodians. See 542 U.S. at 439.
In light of the interpretation of Padilla articulated above, J.G. and F.E. have not named the proper respondents to their habeas petitions – the Federal Field Specialists (or perhaps the directors of the regional offices) charged with overseeing the contract facilities in which they presently are held. Even had they named the appropriate federal custodians, it is unlikely that this Court would have habeas jurisdiction over them, as the proper respondents presumably are based in the Pacific Northwest and on the East Coast. Accordingly, J.G. and F.E.'s individual habeas petitions must be dismissed without prejudice. See Stanley v. Cal. Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994), as amended (May 18, 1994).
C.
Although this Court does not have jurisdiction over J.G. and F.E.'s habeas petitions, their claims for declaratory and injunctive relief could in theory proceed separately in this district. But because venue is not proper in this district for these additional claims, J.G. and F.E. will be dismissed entirely from this case.
Because the defendants here have challenged venue, the burden is on the plaintiffs to demonstrate that venue is proper in the Northern District of California. United Tactical Sys. LLC v. Real Action Paintball, Inc., 108 F. Supp. 3d 733, 751 (N.D. Cal. 2015); see also Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 496 (9th Cir. 1979). In the absence of any nexus to this district grounded in habeas, J.G. and F.E. must show that their declaratory and injunctive relief claims are independently subject to venue in this Court. Whether they can
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depends on the provisions of the federal venue statute, which provides that, in a case against a federal officer acting in her official capacity, venue is proper where "(A) a defendant in the action resides, (B) a substantial part of the events or omissions giving rise to the claim occurred . . . , or (C) the plaintiff resides if no real property is involved in the action." 28 U.S.C. § 1391(e)(1). The Court works through these different bases for venue in reverse.
The first inquiry is straightforward. There is no contention that J.G. and F.E. reside in this district. Both J.G. and F.E. lived in Brentwood, New York prior to their arrests. Decl. of J.G. at 2, Dkt. No. 61-9; Decl. of F.E. at 1, Dkt. No. 61-11. When the amended complaint was filed, J.G. was detained in Tacoma, Washington, while F.E. was detained in Lincolndale, New York. Decl. of J.G. at 5; Decl. of F.E. at 4.
The second inquiry is somewhat closer, but the Court ultimately concludes that only an insubstantial portion of the events giving rise to J.G. and F.E's claims occurred in this district. "To determine whether a substantial part of the events giving rise to the claim occurred in the forum, the court first considers what acts or omissions by the defendants give rise to the plaintiffs' claims." United Tactical Sys. LLC, 108 F. Supp. 3d at 752 (alteration and citation omitted). After "identif[ying] the alleged wrongful acts, the court must determine whether a substantial part of those acts took place in the forum." All. for Multilingual Multicultural Educ. v. Garcia, No. C 11-0215 PJH, 2011 WL 2532478, at *7 (N.D. Cal. June 24, 2011) (citing Daniel v. Am. Bd. of Emergency Med., 428 F.3d 408, 432 (2d Cir. 2005); and Jenkins Brick Co. v. Bremer, 321 F.3d 1366, 1372 (11th Cir. 2003)).
Some of J.G. and F.E.'s declaratory and injunctive relief claims are predicated on their allegedly unlawful arrests by ICE agents in New York. The remainder are based on the absence of any process provided by DHS and ORR for ensuring a reliable factual basis for their rearrests and detentions in ORR facilities, with the minors arguing that they should have received a hearing either before they were arrested in New York, or immediately after they were arrested in New York and before they were transferred across the country. Every indication is that DHS and ORR handled J.G. and F.E.'s cases in accordance with nationwide agency policy, set in
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Washington, D.C. See Corkery Decl., Ex. E (HHS) at 3728-31, Dkt. No. 60-3; Corkery Decl., Ex. N. Pursuant to those challenged DHS and ORR policies, J.G. and F.E. were detained in various locations, each of which might give rise to venue but none of which was in the Northern District of California. J.G. was transferred to a secure detention facility in Yolo County, in the Eastern District of California, shortly after his arrest, and then to a staff-secure facility in Tacoma, Washington, where he remains. Decl. of J.G. at 4-5. F.E. was first transferred to a secure facility in Shenandoah, Virginia, then to a staff-secure facility in Fairfield, California – also in the Eastern District – and finally to a shelter facility in New York. Decl. of F.E. at 3-4. The evidence shows that ORR officials in Washington, D.C., and Phoenix approved each of these custody changes. Decl. of James De La Cruz Decl. (Sept. 14, 2017) at 1-2.
Although none of these events took place in the Northern District, the plaintiffs contend that Smith's involvement in J.G. and F.E.'s cases is sufficient to constitute a "substantial part of the events" giving rise to their claims for declaratory and injunctive relief. The plaintiffs allege that Smith "serves as the approval authority for transfer and release decisions" regarding the named plaintiffs and proposed class members, but the evidence does not bear out this allegation. Am. Pet. at 3, 5, Dkt. No. 31; see Doe 1 v. AOL LLC, 552 F.3d 1077, 1081 (9th Cir. 2009) (stating that, when assessing a motion to dismiss for improper venue, "pleadings need not be accepted as true, and facts outside the pleadings may be considered").
The record merely shows that Smith was ORR's point of contact with Yolo County. She ensured that Yolo County was aware of ORR's policies, facilitated communication between more senior ORR officials and Yolo County officials, and received feedback on the appropriateness of the named plaintiffs' placements. Corkery Decl., Ex. F (YOLO) at 60-61, 69-70, Dkt. No. 60-4; Ex. E (HHS) at 818-19, 4493-94, 5904-11. Smith also helped coordinate the response to the earlier TRO application in this case. Corkery Decl., Ex. E (HHS) at 5904-11. And after this Court granted the TRO application, she was apparently involved in helping ensure compliance with the Court's order, seeking corroborating information that would justify the minors' initial placements in secure facilities. Corkery Decl., Ex. E (HHS) at 5734; Ex. F. (YOLO) at 13-16,
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39-44. But this conduct largely took place after the fact – that is, after the allegedly unlawful arrest, and after the allegedly unlawful decision to deny A.H. a hearing before shipping him across the country to Yolo County.
It's true that the venue statute "does not require that a majority of the events have occurred in the district where suit is filed, nor does it require that the events in that district predominate." United Tactical Sys. LLC, 108 F. Supp. 3d at 752 (quoting Rodriguez v. Cal. Highway Patrol, 89 F. Supp. 2d 1131, 1136 (N.D. Cal. 2000)). But "significant events or omissions material to the plaintiff's claim must have occurred in the district in question, even if other material events occurred elsewhere." Id. (citation omitted). In comparison to the primary events and omissions giving rise to J.G. and F.E.'s declaratory and injunctive relief claims – their arrests, their lack of a hearing before being transferred to ORR facilities, and their continued detention in those facilities without a proper assessment of dangerousness – Smith's role is marginal, not significant.
The final inquiry under the venue statute turns on a related analysis: whether Elicia Smith, the only defendant who resides in the Northern District of California, is a proper defendant as to J.G. and F.E.'s declaratory and injunctive relief claims. If she is, then it seems venue would be proper as to all the federal defendants. See 28 U.S.C. § 1391(e)(1) (providing that venue in a lawsuit against a federal officer exists "where a defendant in the action resides" (emphasis added)). But she is not a proper defendant.
As described above, Smith played a relatively minor role in the trajectory of the named plaintiffs' arrest and custody. She was not involved in the New York arrests, nor is there any evidence she was involved in developing the current policy providing for the transfer of previously released noncitizen minors to secure ORR custody without prior notice and an opportunity to be heard. Accordingly, the declaratory and injunctive relief the plaintiffs seek – which aims to halt such arrests and impose a process for testing the factual basis for detaining a previously released minor – is not directed at Smith, who appears to have no policy-making authority and no ability to finally approve placement decisions regarding minors in the named
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plaintiffs' position. See Am. Pet. at 35-37; Decl. of James De La Cruz (June 27, 2017) at 3-4. To the extent Smith might be implicated at all by the amended petition's requested relief, it is only as to the request to release A.H. from custody, in other words, the habeas relief already discussed. Smith is therefore not a proper defendant to J.G. and F.E.'s declaratory and injunctive relief claims. She thus cannot serve as the anchor to the Northern District of California that makes venue proper in this district for their non-habeas claims.
Finally, the fact that J.G. and F.E. seek to be named plaintiffs alongside A.H., whose action is properly brought in this district, does not allow them to overcome these venue problems. At least in most instances, the rule in a proposed class action is that each named plaintiff must independently establish venue. See Ambriz v. Coca Cola Co., No. 13-CV-03539JST, 2014 WL 296159, at *5 (N.D. Cal. Jan. 27, 2014) (citing Dukes v. Wal-Mart Stores, Inc., No. 1-cr-2252-MJJ, 2001 WL 1902806 (N.D. Cal. Dec. 3, 2001) for the proposition that "the general rule [is] that each plaintiff in a class action must individually satisfy venue"); Amochaev v. Citigroup Glob. Markets Inc., No. C-05-1298 PJH, 2007 WL 484778, at *1 (N.D. Cal. Feb. 12, 2007). The plaintiffs have provided no convincing explanation for why that rule should not apply here.
Therefore, along with their habeas claims, the declaratory and injunctive relief claims by J.G. and F.E. are dismissed without prejudice. This means J.G. and F.E. are dismissed entirely as named plaintiffs from this lawsuit.11
D.
Notwithstanding the conclusion that there is habeas jurisdiction over A.H.'s petition in this district, whether venue is proper for A.H.'s additional declaratory and injunctive relief claims is a separate and difficult question. For the same reasons discussed above, Elicia Smith, the only defendant with a nexus to this district, is not the proper defendant for the separate declaratory
11 It's worth noting that, even though J.G. and F.E.'s individual claims were not properly brought in this forum, as members of the proposed class, they could still benefit from relief granted on a class-wide basis.
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and injunctive relief A.H. seeks.12 And, even as to A.H., no substantial portion of the events giving rise to his declaratory and injunctive relief claims occurred here. Like J.G. and F.E., A.H. grounds these additional claims on an arrest that occurred in New York and the absence of a prompt and adequate process for challenging the bases for that arrest and his subsequent detention in ORR custody. Importantly, A.H. seeks through this lawsuit to implement a process that would occur before similarly situated minors are transported from their place of arrest to Yolo County, where they might plausibly fall under Smith's jurisdiction.
Because there appears to be no independent basis for venue over declaratory and injunctive relief claims going beyond the relief sought in A.H.'s habeas petition, venue in this district would have to arise under the doctrine of pendent venue. Under this doctrine, "[o]nce a court has determined that venue is proper as to one claim, it may exercise pendent venue to adjudicate closely related claims." United Tactical Sys. LLC, 108 F. Supp. 3d at 753; see also, e.g., Beattie v. United States, 756 F.2d 91, 100-04 (D.C. Cir.1984), overruled on other grounds in Smith v. United States, 507 U.S. 197 (1993); Legal Additions LLC v. Kowalski, No. C-08-2754 EMC, 2009 WL 1226957, at *11 (N.D. Cal. Apr. 30, 2009). Whether to do so is a discretionary determination, and informing the exercise of discretion are "principles of judicial economy, convenience, avoidance of piecemeal litigation, and fairness to the litigants." Am. Civil Liberties Union of N. Cal. v. Burwell, No. 16-CV-03539-LB, 2017 WL 4551492, at *4 (N.D. Cal. Oct. 11, 2017); see also Martensen v. Koch, 942 F. Supp. 2d 983, 998 (N.D. Cal. 2013), on reconsideration in part, No. C-12-05257 JSC, 2013 WL 4734000 (N.D. Cal. Sept. 3, 2013).
On the one hand, A.H.'s habeas petition is properly before this Court, and it's quite clear
12 There is, to be sure, some tension in saying that a person can be a proper respondent – indeed, perhaps the only proper respondent – to a habeas petition and yet an improper defendant to the same petitioner's claims for declaratory and injunctive relief targeting the same official actions that resulted in the allegedly unlawful detention. This tension appears to be a natural result of the Supreme Court's instruction to name not the person exercising legal control over a habeas petitioner as the respondent but instead the immediate custodian.
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that any additional declaratory and injunctive relief he seeks is closely related to the factual and legal bases for his habeas petition. The same witnesses and evidence are relevant to both sets of claims. Resolution of each requires this Court to identify DHS and ORR's policies and practices concerning children released to sponsors who are later rearrested, as well as to evaluate the statutory, constitutional, and contractual limits that circumscribe those policies and practices. Where a case is built around a "single wrong, common issues of proof, and similar witnesses," pendent venue is more likely to be appropriate. Am. Civil Liberties Union of N. Cal., 2017 WL 4551492, at *5. Further, the federal government and its lawyers are already required to appear in this district to defend against A.H.'s habeas petition, so the additional burden imposed on the government by requiring it to defend against A.H.'s declaratory and injunctive relief claims, too, is minimal. In contrast, requiring A.H. to split his claims would result in duplicative proceedings concerning the same series of events regarding his arrest and custody, the same policies, and the same legal theories. And, as A.H. and those similarly situated are minors detained in federal custody, a rule that requires him to file two lawsuits about the same series of events in two separate forums seems unduly burdensome.
On the other hand, additional defendants are implicated by A.H.'s claims for declaratory and injunctive relief, and pendent venue is generally invoked to decide additional claims between the same parties. See, e.g., Martensen, 942 F. Supp. 2d at 998; Charles Alan Wright et al., Venue Issues Raised by Assertion of Multiple Claims, Including Exercise of "Pendent Venue," 14D Fed. Prac. & Proc. Juris. § 3808 (4th ed. 2017). However, this court would not be the first to conclude that the concerns animating pendent venue can apply with equal force where closely related claims against additional defendants are at issue. See Pacer Glob. Logistics, Inc. v. Nat'l Passenger R.R. Corp., 272 F. Supp. 2d 784, 789-91 (E.D. Wis. 2003) (applying the doctrine of pendent venue to hear claims against a defendant over which the court otherwise would not have had venue and noting that, "[i]f two or more claims arise out of the same set of facts, it is wasteful of judicial resources and unfair to one or more of the parties to require that the claims be litigated in separate judicial districts"). But see Gamboa v. USA Cycling, Inc., No. 2:12-CV-
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10051-ODW (MRWx), 2013 WL 1700951, at *4 (C.D. Cal. Apr. 18, 2013) (rejecting the notion of "pendent-party venue"). In a somewhat analogous procedural context, courts often conclude that they may hear claims against third-party defendants added to a case after it is filed, even though venue would not otherwise be proper over those third-party defendants. See, e.g., Gundle Lining Constr. Corp. v. Adams Cty. Asphalt, Inc., 85 F.3d 201, 209 (5th Cir. 1996) ("[S]tatutory venue limitations have no application to Rule 14 claims even if they would require the thirdparty action to be heard in another district had it been brought as an independent action." (citation omitted)); Stronghold Sec. LLC v. Sectek, Inc., 582 F. Supp. 2d 726, 728 (D. Md. 2008) ("Under the doctrine of ancillary venue, third party defendants do not have standing to challenge the venue of the primary action."); Wright et al., supra, § 3808. Courts have allowed such claims to proceed even though a forum that does not otherwise satisfy venue requirements is as likely to be inconvenient for a third-party defendant as for an original defendant.
Although it's a close question, application of the doctrine of pendent venue is warranted here. A.H.'s habeas, declaratory, and injunctive relief claims challenge one course of conduct, carried out by various federal actors, and one part of his case is clearly before this Court; indeed, this Court may well be the only place he can bring his habeas petition. Moreover, the concerns that would normally attend application of pendent venue to claims against new defendants – namely, the inconvenience and expense imposed on the additional defendants – are attenuated where all the defendants objecting to venue are also federal officers. See Kings Cty. Econ. Cmty. Dev. Ass'n v. Hardin, 333 F. Supp. 1302, 1303 (N.D. Cal. 1971) (noting that Congress amended the federal venue statute to "make it easier to sue" the "head of a governmental department"); but see Am. Civil Liberties Union of N. Cal., 2017 WL 4551492, at *5 (questioning whether an exercise of pendent venue would be appropriate in the context of claims against the government). The Department of Justice has appeared in this case to represent all the federal defendants for purposes of defending the lawfulness of A.H.'s custody. In light of the statutory framework governing his detention, this defense will involve the actions of multiple agencies, acting pursuant to several statutes. Judicial economy, convenience, and avoidance of piecemeal
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litigation all counsel in favor of evaluating the decisions of these actors at once.13 Having concluded that all of A.H.'s claims may proceed in this district, the Court must
next determine whether to grant his motion for a preliminary injunction. And, because A.H. seeks relief on behalf of a class of similarly situated minors in ORR custody, the Court must also decide whether it is appropriate to provisionally certify the plaintiffs' proposed class for purposes of issuing a preliminary injunction.
III.
A.H. seeks, on behalf of the proposed class, a preliminary injunction to halt the practices giving rise to his unlawful arrest and Fifth Amendment procedural due process claims. He also seeks his own immediate release from ORR custody, on the theory that his continued confinement violates his substantive due process rights and the Flores consent decree. Pls.' Consol. Br. at 31 n.21.
To obtain a preliminary injunction, A.H. "must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). He may also be able to obtain preliminary injunctive relief if he has raised "serious questions going to the merits" and the balance of hardships "tips sharply towards" granting an injunction, so long as he also shows that he is likely to suffer irreparable harm and that the injunction is in the public interest. Disney Enters., Inc. v. VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017) (quoting All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011)).
In light of the time-sensitive nature of the claims at issue in this case, the Court addresses in this order only the claim on which A.H. is most likely to succeed on the merits: his procedural due process claim. The remainder of the claims on which A.H. seeks preliminary injunctive
13 Because the allegations against the two non-federal defendants, Cardall and Esquivel, are based only on their roles as one-time custodians of A.H., F.E., and J.G. under federal contract, and because they are not the proper respondents for any of the named minors' habeas petitions, Cardall and Esquivel's motions to dismiss are granted.
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relief will remain under submission, as will the aspects of defendants' motions to dismiss not addressed by this order.
A.
When the federal government has previously deemed an unaccompanied minor suitable for placement in the community with a sponsor, and when federal agents later arrest and detain the minor based on allegations of gang affiliation, the government cannot simply ship the minor across the country and place him in a secure detention facility for an indefinite period. Rather, due process requires the government to give the minor a prompt hearing before an immigration judge or other neutral decisionmaker, where the government must set forth the basis for its decision to rearrest the minor, and where the minor and his sponsor may seek to rebut the government's showing.
As a threshold matter, it is clear, notwithstanding the government's argument to the contrary, that minors like A.H. have procedural due process rights rooted in the Constitution. The arrests and detentions at issue raise questions regarding the extent to which a person is entitled to notice and an opportunity to be heard before being removed from the custody of a sponsor in the United States – often a parent or family member – and sent across the country to a juvenile detention facility. The Due Process Clause imposes limits on what the government can do under these circumstances. See Hernandez v. Sessions, 872 F.3d 976, 981 (9th Cir. 2017) ("[T]he government's discretion to incarcerate non-citizens is always constrained by the requirements of due process."); id. at 993-94 (analyzing constitutional procedural due process requirements in the context of a class of noncitizens detained pursuant to 8 U.S.C. § 1226(a)); F.L.B. v. Lynch, 180 F. Supp. 3d 811, 817-21 (W.D. Wash. 2016) (concluding that "nonadmitted" juvenile noncitizens "[c]learly" had Fifth Amendment procedural due process rights); cf. Yamataya v. Fisher, 189 U.S. 86, 100-01 (1903); United States v. Raya-Vaca, 771 F.3d 1195, 1202-03 (9th Cir. 2014) ("The Supreme Court has categorically declared that once an individual has entered the United States, he is entitled to the protection of the Due Process Clause," even if that person "has run some fifty yards into the United States.").
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The government's citation to Angov v. Lynch, 788 F.3d 893 (9th Cir. 2015), is of limited relevance. Angov addressed a question regarding the evidence an immigration judge can consider in adjudicating an asylum petition. Id. at 896-97. Angov presented himself at a port of entry and sought asylum, then asserted that the Due Process Clause imposed limits on how the government could conduct that asylum hearing. Id. at 898. The Ninth Circuit concluded that Angov had no constitutional right to procedural due process in the asylum proceeding. Id. Here, unlike in Angov, the rights at issue do not concern the procedures by which the validity of an application for admission will be assessed; they concern the arrest and detention of minors living under the supervision of sponsors in the United States, pursuant to a prior decision by the federal government.
The government next contends that, even assuming minors like A.H. have constitutional procedural due process rights, its existing procedures adequately protect their rights. But the government understates the nature of the liberty interest possessed by these minors, as well as the degree to which existing procedures protect against the erroneous deprivation of that liberty interest.
To determine what due process requires, courts consider: (1) "the private interest that will be affected by the official action;" (2) "the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards;" and (3) "the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
With respect to the private interest at stake, "[f]reedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty" the Due Process Clause protects. Hernandez, 872 F.3d at 990 (quoting Zadvydas v. Davis, 533 U.S. 678, 690 (2001)); White Decl., Dkt. No. 61-16 (depicting the secure detention facility in Yolo County); compare Reno v. Flores, 507 U.S. 292, 302 (1993) (addressing the interest of a child where no "shackles, chains, or barred cells" are at stake). "In the context of
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immigration detention, it is well-settled that 'due process requires adequate procedural protections to ensure that the government's asserted justification for physical confinement outweighs the individual's constitutionally protected interest in avoiding physical restraint.'" Hernandez, 872 F.3d at 990 (quoting Singh v. Holder, 638 F.3d 1196, 1203 (9th Cir. 2011)). Although A.H. and the other similarly situated minors are not adults, and thus are always in some form of custody, they retain a strong interest in being free from unnecessary government interference with their liberty. See Schall v. Martin, 467 U.S. 253, 265 (1984); cf. 8 U.S.C. § 1232(c)(2)(A) (requiring placement in the "least restrictive setting that is in the best interest of the child").
Moreover, the government seems to assume that minors like A.H. have no greater interest in freedom from detention than any noncitizen caught crossing the border. This ignores the context in which these detentions arose. The federal government has already made a determination that minors like A.H. should not be detained, and has therefore made a decision to place them with a parent or other sponsor in the community. There is, as discussed previously, a statute that requires the federal government to protect unaccompanied minors in this way, rather than simply processing them as other immigrants caught crossing the border would be processed. And by placing people like A.H. with their parents, as opposed to other suitable sponsors, the federal government triggers the long-recognized interest of a parent in "the companionship, care, custody and management of his or her children." Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 27 (1981); see also D.B. v. Cardall, 826 F.3d 721, 740 (4th Cir. 2016) (recognizing this right along with the reciprocal right held by children "to be raised and nurtured by their parents" (citing Berman v. Young, 291 F.3d 976, 983 (7th Cir. 2002))). Therefore, the liberty deprivation in this case is not the same as when someone is caught coming across the border and detained in the nearest facility. The minors in this case have been taken away from their families, their schools, and their communities, often to be shipped across the country to a high-security institution and held for an indefinite period.
Given the nature of the liberty deprivation involved, a minor previously placed with a
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sponsor by ORR cannot be rearrested solely on the ground that he is subject to removal proceedings. That the minor was subject to removal proceedings formed the basis of his first arrest; after DHS transferred the minor to ORR custody, as the TVPRA requires DHS to do on every occasion in which an unaccompanied minor is arrested, ORR determined that the appropriate place for the minor was not in federal custody. If DHS could, the day after a minor was released to a parent or other sponsor, arrest the minor on the same basis and restart the process, the TVPRA's instruction to place the minor in the least restrictive appropriate setting would mean little. See United States v. Holmes, 452 F.2d 249, 261 (7th Cir. 1971); United States v. Kordosky, No. 88-CR-52-C, 1988 WL 238041, at *7 n.14 (W.D. Wis. Sept. 12, 1988) ("Absent some compelling justification, the repeated seizure of a person on the same probable cause cannot, by any standard, be regarded as reasonable under the Fourth Amendment.").
This is not to say that DHS may never rearrest, using a removability warrant, a minor previously released by ORR to a sponsor. But to be lawful, the arrest must be based on evidence that the circumstances relevant to that original release decision have changed. In other words, DHS must have probable cause to believe that, notwithstanding ORR's prior determination, the minor is now a danger to himself or the community, or a flight risk. See 8 U.S.C. § 1232(c)(2)(A).
A similar rule governs DHS conduct in a closely analogous context, namely, when DHS arrests noncitizens previously released on bond or parole pending a removal decision. This includes, by the way, DHS rearrests of minors who are classified as "accompanied" rather than "unaccompanied."14 As with ORR's decision to release proposed class members to their sponsors, prior release of an accompanied minor on bond or parole means that a federal agency has already made a determination that he is not dangerous or a flight risk. See Matter of Guerra,
14 Because the parties agree that A.H. and the minors in the proposed class are properly classified as "unaccompanied alien children" notwithstanding their prior release to a sponsor, and because the accuracy of this classification does not matter for purposes of determining the minors' procedural due process rights, there is no need to decide in this ruling whether the parties are correct. Cf. D.B., 826 F.3d at 744 (Floyd, J., dissenting).
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24 I. & N. Dec. 37, 38 (B.I.A. 2006). By statute, DHS "at any time may revoke a bond or parole" issued pending a removal decision and then "rearrest the alien under the original warrant." 8 U.S.C. § 1226(b). But, notwithstanding the breadth of this statutory language, the Board of Immigration Appeals ("BIA") has recognized an important implicit limitation on DHS's authority. The BIA has held that "where a previous bond determination has been made by an immigration judge, no change should be made by a District Director absent a change of circumstance." Matter of Sugay, 17 I. & N. Dec. 637, 640 (B.I.A. 1981). According to government counsel, DHS has incorporated this holding into its practice, requiring a showing of changed circumstances both where the prior bond determination was made by an immigration judge and where the previous release decision was made by a DHS officer. "Thus," says the government, "DHS generally only re-arrests an alien pursuant to § 1226(b) after a material change in circumstances." Defs.' Second Supp. Br. at 1, Dkt. No. 90.
And when an accompanied minor (or other noncitizen) is rearrested after having been released on bond, he is entitled to a prompt hearing to ensure that changed circumstances indeed justify the rearrest. See Tr. of Oct. 27, 2017 Hearing at 148-49, 157-58. As counsel for the government stated during the November 9, 2017 oral argument, this "bond redetermination hearing" typically takes place before an immigration judge within seven to fourteen days. And at the hearing, DHS must make a showing of the changed circumstances that justify rearrest, and the rearrested noncitizen has the opportunity to rebut DHS's basis for his rearrest and detention. Id.
If any noncitizen released on bond is entitled to this process, surely an unaccompanied minor placed with a sponsor is entitled to at least the same level of protection. ORR previously determined that the minor should be released to a suitable sponsor. That decision reflects its determination that the minor is neither dangerous nor a flight risk. See 8 U.S.C. § 1232(c)(2)(A). And because the minor cannot reasonably be rearrested absent a material change in circumstances, due process likewise requires that the minor receive a prompt hearing in which the government must show that these changed circumstances exist. At that hearing, the minor
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must have the opportunity to rebut the government's showing, and, if he does so successfully, the neutral decision maker must have the ability to order a return to the status quo.
Although the government is in the best position to determine precisely how such proceedings are conducted, certain minimal protections are required to ensure that a minor is not erroneously taken away from his family, transported across the country to a high-security facility, and processed no differently from an unaccompanied minor first entering the country. For example, the sponsor, as well as the minor, must receive notice of the basis for the rearrest and an opportunity to be heard. The hearing must, consistent with existing practice for other immigrants rearrested on grounds of changed circumstances, take place within seven days of arrest, absent extraordinary circumstances. The hearing must take place in the jurisdiction where the minor has been arrested or where the minor lives, to provide a meaningful opportunity for the minor, his sponsor, and any existing counsel to rebut the factual basis for the minor's rearrest and detention. This requirement will allow the parties to call necessary witnesses, and the hearing may even occur before the same immigration judge already presiding over any removal proceedings in which the minor is involved.
The government has raised concerns about which federal agency could keep custody of the minor from the time DHS arrests him until the hearing takes place. But the government can address these concerns consistent with its constitutional, statutory, and contractual responsibilities. On the one hand, the government notes that the TVPRA requires DHS to transfer custody of an unaccompanied minor to ORR within 72 hours, except in exceptional circumstances. 8 U.S.C. § 1232(b)(3). But this provision would not prevent DHS from retaining custody of minors like A.H. in a facility appropriate for minors for up to seven days to give them a hearing before shipping them across the country to a secure ORR facility – the rearrest of a previously released minor, and the need for a prompt hearing on the propriety of that rearrest, is an "exceptional circumstance" that would allow DHS to hold the minor for longer than 72 hours. On the other hand, the government expresses concern that if the minor is indeed transferred to ORR custody pending the hearing, then any ruling by an immigration judge repudiating the
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decision to rearrest the minor could not automatically result in the minor's release. According to the government, the TVPRA requires ORR to conduct a reassessment of the sponsor's fitness to care for the child once the child is returned to ORR custody. But it's not at all clear why this is so – if an immigration judge determines that no changed circumstances justified the rearrest, this means the immigration judge has restored the status quo. The status quo is the decision ORR made previously, which is that the minor should be placed with the sponsor, whom ORR already deemed suitable.15
The government contends that the process set forth above is not necessary, because current ORR procedures adequately protect against the risk of erroneous deprivation of liberty for these minors. At least on the current record, existing ORR procedures appear to be inadequate. A prompt hearing after rearrest before an immigration judge, like those already given to noncitizens rearrested after having been released on bond, is far better suited to protect the liberty of minors placed with sponsors who are rearrested by federal agents on the basis of alleged gang affiliation.
Although current ORR procedures – the right to challenge a finding of dangerousness in a Flores bond hearing, the right to challenge a placement under the Administrative Procedure Act, and regular review by ORR to determine the appropriate security level – may be adequate for an unaccompanied minor first arriving in the country, they appear inadequate to protect against the risk of minors being erroneously taken away from their sponsors by federal agents through a program like Operation Matador. It's not clear, for instance, that the sponsor with an interest in the minor's release could participate in any of the government's existing processes, or that the result of a successful challenge to the basis for the minor's rearrest and detention would be an
15 To the extent ORR has legitimate concerns about the sponsor's suitability, its existing procedures, including coordination with state welfare agencies, would presumably be sufficient to address those concerns. See Tr. of Oct. 27, 2017 Hearing at 104-08. And, to the extent that the logistical difficulties associated with housing minors for the period between their rearrests and hearings prove daunting, the government could instead have a hearing before arresting them in the first place. See Zinermon v. Burch, 494 U.S. 113, 132 (1990) (noting the preference for a pre-deprivation hearing).
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immediate return to the sponsor already deemed suitable. In the absence of a prompt adversarial hearing of the type other rearrested noncitizens
receive, there is a serious risk that minors who were appropriately placed with sponsors, in accordance with the TVPRA and the Flores settlement agreement, will – after rearrest on the basis of insufficiently substantial allegations of gang affiliation – erroneously be placed into ORR custody, and without an opportunity obtain prompt relief. As the Ninth Circuit has recognized, "[d]etermining whether an individual is an active gang member presents a considerable risk of error. The informal structure of gangs, the often fleeting nature of gang membership, and the lack of objective criteria in making the assessment all heighten the need for careful factfinding." Vasquez v. Rackauckas, 734 F.3d 1025, 1046 (9th Cir. 2013). As the evidence regarding A.H., F.E., and J.G. shows, DHS sometimes makes an inference of gang membership from conduct, clothing, or associations that are far from unequivocal evidence of that conclusion. For instance, F.E. was classified as a gang member because he wrote "503," the country code for El Salvador, in his school notebook, and because he had been seen associating with known gang members at school and in the community. Decl. of Joe Pisciotta (F.E.) at 2-5, Dkt. No. 67-3. As a direct result of DHS's inference, F.E. was arrested and taken to a secure facility in another state. Although he has since been stepped down, five months later he remains in an ORR facility and not in his mother's care. Moreover, Defendant Cardall (the local official in charge of the facility in Yolo County) has asserted that evidence regarding allegedly gangaffiliated minors sent to that facility was often insufficient, and that the Yolo County Probation Department concluded it did not have just cause to detain most of these minors. Corkery Decl. Ex. C at 3; Corkery Decl., Ex. D.
The record does not show that the current procedure permits the necessary adversarial factfinding process to occur close enough in time to the minor's arrest, thus making it significantly more likely that the minor will be sent across the country to a secure facility without sufficient evidence of dangerousness. In that event, the secure placement would not be reasonably related to a legitimate government purpose. See Hernandez, 872 F.3d at 990 (citing
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Zadvydas, 533 U.S. at 690). And it would fly in the face of the requirements of the TVPRA and Flores decree that the child be in the least restrictive setting that is in his best interest. 8 U.S.C. § 1232(c)(2)(A); Fed. Defs.' Mot. To Dismiss, Ex. A (Flores Consent Decree) ¶ 11, Dkt. No. 54-2.
Nor will these procedural protections impose any significant burden on the federal government. In fact, the process required by this ruling, which is similar to the process provided to noncitizens rearrested after release on bond, seems less cumbersome than attempting to subject these minors to a process that was designed for a different situation (namely, the situation where a minor is first picked up by the federal government after coming across the border and before a suitable caretaker has been identified). To the extent the procedural protections required by this ruling impose some additional burden, this burden is reasonable in light of the government's asserted interests in public safety and welfare, including the welfare of the minor. First, this safeguard will enhance, rather than hinder, the government's capacity to act in the child's best interest by ensuring that the child is placed in the least restrictive setting appropriate to his needs and the needs of the community. Second, adopting an additional procedural safeguard that will reduce the risk that a child is erroneously removed from a sponsor's custody and placed into a taxpayer-funded juvenile detention facility will in no way negatively impact the government's interest in public safety. If the government adduces sufficient credible evidence of gang-related conduct during the hearing, the child will be placed into appropriate ORR custody.
It's also worth recalling that this ruling applies only to situations where the government arrests a noncitizen minor without probable cause to believe he committed a crime. If there is probable cause to believe the minor actually committed a crime, local law enforcement may arrest him and charge him with the crime. Furthermore, federal immigration agents may arrest noncitizens for committing federal felonies. See 8 U.S.C. § 1357(a); Tr. of Oct. 27, 2017 Hearing at 21-22. But if federal agents choose to rearrest a minor based on something short of that – such as allegations of gang involvement or other changed circumstances that would warrant detention notwithstanding ORR's prior determination that the minor should be placed with a sponsor – any cost of providing a prompt hearing before an immigration judge is far
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outweighed by the benefit of protecting against erroneous deprivation of liberty.
B.
A.H. has shown a likely deprivation of his constitutional rights. That is generally sufficient to demonstrate irreparable injury. See Hernandez, 872 F.3d at 994-95 (citing Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)). A.H. and the putative class members' procedural due process rights were violated when they were shipped across the country to a secure facility on the basis of gang allegations without adequate notice and an opportunity to be heard. And the evidence suggests they will remain in ORR custody on that basis indefinitely in the absence of a preliminary injunction. See Corkery Decl., Ex. E (HHS) at 3729; e.g., Motion To Supp. Record, Ex. 1, Dkt. No. 80-1 (denying F.E.'s mother's reunification petition primarily on the basis of F.E.'s alleged gang affiliation).
In addition to the irreparable harm of the constitutional violation itself, A.H. has submitted evidence suggesting that the magnitude of the harm will increase as time goes on. According to the declaration of child psychiatrist Dr. Fortuna submitted by A.H. in support of his motion, the longer children remain in confinement, the more likely they are to experience lasting negative mental health repercussions. See Decl. of Dr. Fortuna at 9-10, Dkt. No. 61-8. Further, if the putative class members are still in detention when they turn eighteen, they will be transferred to ICE custody and lose the protections afforded to juveniles. Corkery Decl. Ex. E (HHS) at 3729. Thus, the required showing of irreparable harm has been more than satisfied here.
C.
When the government is a party, the balance of the equities and public interest analysis generally merge. Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014). On the one hand is the public interest in ensuring the protection of constitutional rights, together with the individual interests of the proposed class members in being free from unnecessary detention. See Hernandez, 872 F.3d at 994-95. Also on the plaintiffs' side of the balance are the interests of the sponsors in the care and custody of their children. See id.
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The government contends that the public's interest in enforcement of the immigration laws weighs against an injunction here. But the added procedural protections required by this preliminary injunction will protect the interests embodied in immigration statutes directed toward minors. A prompt adversarial hearing after arrest will ensure that only those minors actually eligible for secure and staff-secure detention are held in such custody. It will also support the goal of the TVPRA and the Flores decree that minors be placed with a sponsor whenever it is in their best interest. As already discussed, any administrative burden this injunction places on the government is greatly minimized by the fact that the government already has a process in place for adjudicating allegations of changed circumstances for a different group of noncitizens who have previously been released – a process it simply hasn't been using for this particular class of rearrested minors. And the burden is justified in light of the hardships endured by minors taken from their sponsors and placed in ORR custody. See id..
A.H. has thus shown that he is highly likely to succeed on the merits of his procedural due process claim, that he (and, as discussed below, others like him) will suffer irreparable harm in the absence of an injunction requiring a prompt hearing to test the basis of the government's gang allegations, and that the equities and the public interest weigh strongly in favor of issuing the injunction he requests. Even assuming that implementation of the hearing process described above constitutes a "mandatory" rather than a "prohibitory" injunction, A.H. is entitled to the relief he seeks. See id. at 998-99. The detention of minors without due process results in "extreme or very serious damage" to this vulnerable population that is not "capable of compensation in damages." Id. at 999 (quoting Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009)). And, as discussed above, with respect to A.H.'s procedural due process claim "the merits of the case are not doubtful." Id. (internal quotation marks and citation omitted).16
16 In addition to meeting the first prong of the preliminary injunction analysis, A.H.'s likelihood of success on his procedural due process claim requires the Court to deny the federal defendants' motion to dismiss as to that claim.
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IV.
As alluded to throughout this ruling, A.H. moved the Court to provisionally certify a class of similarly situated minors in conjunction with his motion for a preliminary injunction. Whether class treatment of A.H.'s claims is appropriate is determined by the requirements of Federal Rule of Civil Procedure 23. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 345 (2011). Rule 23 sets out the four basic requirements for class certification: (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. See Fed R. Civ. P. 23(a). Because A.H. seeks to provisionally certify the class for purposes of obtaining declaratory and injunctive relief, he must also demonstrate that "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." Fed. R. Civ. P. 23(b)(2).
For the reasons that follow, the Court will provisionally certify, for the limited purpose of issuing a preliminary injunction, a class of noncitizen minors meeting the following criteria: (1) the noncitizen came to the country as an unaccompanied minor; (2) the noncitizen was previously detained in ORR custody and then released by ORR to a sponsor; (3) the noncitizen has been or will be rearrested by DHS on the basis of a removability warrant on or after April 1, 2017 on allegations of gang affiliation.17
17 The plaintiffs initially requested certification of a similar class but limited to those minors "who have been detained or would, if arrested, be considered for detention in" a secure or staffsecure facility under the oversight of the San Francisco Federal Field Specialist. Pls.' Consol. Br. at 43. They then argued that "any Sponsored U[naccompanied] C[hild] who is arrested by ICE and referred to ORR with allegations of gang affiliation" would fall within the proposed class, because all minors with allegations of gang affiliation are referred to a secure facility under current policy, and therefore are considered for placement in Northern California. Pls.' Reply Br. at 25, Dkt. No. 73. In lieu of the plaintiffs' unwieldy definition, the Court concludes that a class definition clearly applicable to all noncitizen minors with the characteristics above is both advisable for purposes of administering the preliminary injunction and warranted on the facts of this case so far – facts which show that the defendants have adopted a policy that applies to sponsored noncitizen minors nationwide. See Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1501-02 (9th Cir. 1996) (noting that, even without class certification, injunctive relief may be extended beyond the named plaintiffs "if such breadth is necessary to give prevailing parties the relief to which they are entitled" (citation omitted)).
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A.
To succeed in his motion for class certification, A.H. must show that "the class is so numerous that joinder of all members is impracticable." Fed. R. Civ. P. 23(a)(1). The government contends that A.H. has failed to identify a sufficiently large number of existing class members and has not shown that joinder of all the class members would be impracticable.
The plaintiffs' showing is sufficient to meet the numerosity requirement for purposes of provisional class certification. The evidence suggests that at least 15 sponsored minors aside from A.H. already have been detained on the basis of alleged gang affiliation. Decl. of Trevor Kempner at 1, Dkt. No. 73-1; id., Ex. A (HHS) at 2572-802, Dkt. No. 82-2. Although this is not itself an especially large number of undocumented minors, there is evidence that additional class members will be added. See Bruce v. Christian, 113 F.R.D. 554, 557 (S.D.N.Y. 1986) (concluding that, although the plaintiff had identified only 16 class members, it was clear that the conduct at issue affected or would affect additional individuals, and further noting that the "fluid composition of the public housing population" supported class certification). In particular, a memorandum from ORR to the Domestic Policy Council notes that ORR currently has 58 beds available in secure facilities nationwide but that, "[d]ue to increased numbers of domestic apprehensions, particularly from DHS enforcement operations targeting gang members, as well as ORR's new policies regarding initial designation to secure beds of all [unaccompanied alien children] with past or present gang affiliation, additional secure beds are required." Corkery Decl., Ex. E (HHS) at 3731. Indeed, news reports suggest that DHS has recently arrested dozens more individuals who arrived in the United States as unaccompanied minors on allegations of gang affiliation, as part of "Operation Raging Bull."18 Where a plaintiff seeks "only injunctive
18 Makini Brice, More Than 200 Arrested in U.S. Crackdown on MS-13 Gang, Reuters (Nov. 16, 2017), https://www.reuters.com/article/us-usa-crime-gang/more-than-200-arrested-in-u-scrackdown-on-ms-13-gang-idUSKBN1DG32Z [https://perma.cc/7QCG-68DC]; Operation Raging Bull, Immigration and Customs Enforcement, https://www.ice.gov/features/raging-bull [https://perma.cc/E3YQ-ETN4].
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and declaratory relief, the numerosity requirement is relaxed and plaintiffs may rely on reasonable inferences arising from plaintiffs' other evidence that the number of unknown and future members is sufficient to make joinder impracticable." Civil Rights Educ. & Enf't Ctr. v. Hosp. Props. Tr., 317 F.R.D. 91, 100 (N.D. Cal. 2016), aff'd, 867 F.3d 1093 (9th Cir. 2017) (internal quotation marks, alterations, and citation omitted). In light of the tens of thousands of undocumented minors released to sponsors and currently living in the United States and ORR's anticipated expansion of the number of children held in secure facilities on the basis of gang affiliation, the plaintiff class is sufficiently numerous. See Decl. of Stephen B. Kang at 1, Dkt. No. 61-6.
Furthermore, given the characteristics of the members of the proposed class, joinder of all the class members would be impracticable. See McCluskey v. Trustees of Red Dot Corp. Emp. Stock Ownership Plan & Tr., 268 F.R.D. 670, 674 (W.D. Wash. 2010). The class consists of a changing population of noncitizen minors in government custody, some of whom have limited English proficiency. See, e.g., Decl. of A.H. (June 22, 2017) at 3; Decl. of J.G. at 3. The record in this case demonstrates that they are frequently held in detention far from the location in which they were arrested, and where they would presumably have improved access to the assistance of their sponsors and any existing counsel. Moreover, the class members are moved to different detention facilities with some frequency, which creates additional logistical difficulties. See, e.g., Decl. of Linda Nanos at 1, Dkt. No. 61-19. And, although unnecessary detention for the period of time prior to the minors' eighteenth birthdays is sufficient to constitute a serious deprivation of their constitutional rights, it is not reliably enough time to develop an individual lawsuit.
B.
A.H. next must demonstrate that "there are questions of law or fact common to the class." Fed. R. Civ. P. 23(a)(2). To satisfy this requirement, A.H. must show that proceeding as a class will not only raise common questions but also will "generate common answers apt to drive the resolution of the litigation." Wal-Mart, 564 U.S. at 350 (citation omitted). The defendants seize
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upon likely differences in each class member's circumstances – regarding, for instance, the nature and quantity of the evidence of gang affiliation adduced by DHS – to argue that commonality is lacking here.
The procedural due process claim for which A.H. seeks class-wide preliminary injunctive relief is amenable to common answers. See id. A.H. has shown "a common policy or practice" of rearresting sponsored minors using a removability warrant, on the basis of suspected gang affiliation, and then transferring the minors to ORR custody. See Civil Rights Educ. & Enf't Ctr. v. Hosp. Props. Tr., 867 F.3d 1093, 1105 (9th Cir. 2017); Corkery Decl., Ex. E (HHS) at 3407, 3549, 3729-31. A.H. contends that all minors previously released to a sponsor are entitled to a prompt hearing to determine whether there is any factual basis supporting DHS's arrest and ORR's decision to detain the minor in secure custody. If A.H. is correct, all the class members' rights were violated, regardless of whether, after the hearing is conducted, sufficient evidence supported the arrest and detention.
The Court does not, in provisionally certifying the class, purport to resolve whether every class member should be released from ORR custody; it seeks to determine whether DHS and ORR policies violate class members' rights in a systematic way. This basic question is common to all class members, and the answer is the same for each. See Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952, 957 (9th Cir. 2013) (observing that commonality "does not . . . mean that every question of law or fact must be common to the class; all that Rule 23(a)(2) requires is a single significant question of law or fact" (internal quotation marks and citation omitted)); see also Parsons v. Ryan, 754 F.3d 657, 675 (9th Cir. 2014) ("Where the circumstances of each particular class member vary but retain a common core of factual or legal issues with the rest of the class, commonality exists." (alteration and citation omitted)).
C.
The typicality requirement is satisfied where the named plaintiff's claims "are typical of the claims or defenses of the class." Fed. R. Civ. P. 23(a)(3). The government does not specifically dispute that A.H.'s claims are typical of the class, and for good reason.
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A.H., like all of the proposed class members, was rearrested by ICE after having been placed with a sponsor by ORR. And, like all of the class members, he was placed in a secure facility by ORR on the basis of alleged gang affiliation. Although he has since been stepped down to a staff-secure facility, he has experienced the same trajectory of release, rearrest, and transfer back to ORR custody on the basis of gang affiliation that characterizes all the class members. His claims are therefore "reasonably coextensive with those of absent class members," and, to the extent he has been harmed, he has experienced "the same or similar injury" as the unnamed class members. Parsons, 754 F.3d at 685 (internal quotation marks and citations omitted).
D.
To demonstrate that "representative parties will fairly and adequately protect the interests of the class," the Court must determine (1) whether A.H. and his counsel "have any conflicts of interest with other class members," and (2) whether A.H. and his counsel will "prosecute the action vigorously on behalf of the class." Fed. R. Civ. P. 23(a)(4); Ellis v. Costco Wholesale Corp., 657 F.3d 970, 985 (9th Cir. 2011) (citation omitted).
The government does not dispute that A.H. and his counsel will adequately represent the class members' interests. There is no reason to believe that A.H.'s interests, or those of his counsel, will conflict with those of the unnamed and similarly situated minors who are in the proposed class. A.H.'s declaration suggests he is aware of his role as a class representative and is willing to serve in that role. Decl. of A.H. (Sept. 20, 2017) at 3. Therefore, having reviewed the proof submitted by plaintiffs' counsel regarding their experience litigating complex civil actions and cases involving issues similar to those raised in this case, the Court is satisfied that the adequacy requirement is met. See Decl. of Julia Mass (Sept. 25, 2017), Dkt. No. 61-4; Decl. of Martin S. Schenker, Dkt. No. 61-5; Decl. of Stephen B. Kang at 3-7.
E.
A.H. has likewise demonstrated that the government "has acted or refused to act on grounds that apply generally to the class," such that preliminary injunctive relief would be
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appropriate as to the class as a whole. See Fed. R. Civ. P. 23(b)(2). For purposes of class certification, the Court need not "examine the viability or bases of class members' claims for declaratory and injunctive relief, but only to look at whether class members seek uniform relief from a practice applicable to all of them." Rodriguez v. Hayes, 591 F.3d 1105, 1125 (9th Cir. 2010).
The evidence demonstrates that DHS and ORR have adopted policies that subject all sponsored minors alleged to be gang affiliated to rearrest using a removability warrant, transfer to secure custody, and prohibition of their release to the sponsors previously charged with their care. Corkery Decl., Ex. E (HHS) at 3729-31 (stating, among other things, that "[a]ll [unaccompanied alien children] identified as having current or past gang affiliation are placed in secure facilities," and that "[n]o current gang members are eligible for release to a sponsor from the program"); see also id. at 3407, 3549; Corkery Decl., Ex. B at 53:6-54:4. This preliminary injunction clarifies how the federal government must treat those people after they've been rearrested. Because a single injunction can protect all class members' procedural due process rights, the requirements of Rule 23(b)(2) are satisfied. See Wal-Mart, 564 U.S. at 360.
Because A.H. has met the requirements for provisional certification of an injunctive relief class, and because he has shown that a preliminary injunction is warranted to remedy the procedural due process violation he has alleged, the Court orders a prompt hearing not only for A.H. but for all members of the class.19
V.
In conclusion, for the reasons discussed above, the motion for a preliminary injunction on behalf of a class of noncitizen minors is granted to remedy the government's likely violation of the class members' procedural due process rights. The government is ordered to provide A.H. and all other noncitizen minors previously released to a sponsor who were rearrested and are
19 Because this preliminary injunction neither enjoins nor restrains the proper operation of any part of Part IV of the immigration statutes, 8 U.S.C. § 1252(f)(1) does not bar the relief ordered. See Rodriguez, 591 F.3d at 1120-21.
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currently in federal custody based on allegations of gang affiliation with a hearing before an immigration judge by no later than November 29, 2017, to challenge the basis for those allegations, in conformity with the requirements set out in Part III.A of this order. The minor's sponsor must receive notice and be given an opportunity to participate in the hearing. At the hearing, the government must present evidence that the minor is a danger to the community, notwithstanding ORR's prior determination to the contrary. For all sponsored minors who will be arrested on the basis of gang affiliation, the government must provide this hearing within seven days of rearrest, in the jurisdiction where the minor was arrested or lives. A decision by the immigration judge that the government has not made an adequate showing of changed circumstances, or that the minor has successfully rebutted the showing, requires release into the custody of the previous sponsor. With respect to the class members currently in federal custody, the government must also provide prompt notice to class counsel about where the class member is being held, the basis for the detention, and the details regarding the hearing the minor will receive.
The defendants' motions to dismiss are granted as to the claims brought by F.E. and J.G. individually. The non-federal defendants, Brent Cardall and Jose Esquivel, are dismissed from the lawsuit. The federal defendants' motion to dismiss is denied with respect to the procedural due process claim, and otherwise remains under submission. Also under submission are A.H.'s motion for class-wide preliminary injunctive relief on his unlawful arrest claim, as well as his request for his own release from custody.

IT IS SO ORDERED. Dated: November 20, 2017

______________________________________
VINCE CHHABRIA United States District Judge

44

 
 No. 18-15114

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

ILSA SARAVIA, et al. Plaintiffs-Appellees,
v.
JEFFERSON B. SESSIONS III, Attorney General of the United States, et al. Defendants-Appellants.

ON APPEAL FROM A FINAL JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA D.C. No. 3:17-cv-03615-VC

APPELLANTS’ OPENING BRIEF

CHAD A. READLER Acting Assistant Attorney General Civil Division
WILLIAM C. PEACHEY Director, District Court Section Office of Immigration Litigation
WILLIAM C. SILVIS Assistant Director, District Court Section Office of Immigration Litigation

SARAH B. FABIAN NICOLE N. MURLEY Senior Litigation Counsel Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Tel: (202) 532-4824 Fax: (202) 305-7000 Email: sarah.b.fabian@usdoj.gov
Attorneys for Defendants-Appellant

TABLE OF CONTENTS
INTRODUCTION .....................................................................................................1 JURISDICTIONAL STATEMENT ..........................................................................2 STATEMENT OF THE ISSUES...............................................................................2 STATEMENT OF THE CASE..................................................................................2
I. STATUTORY AND REGULATORY BACKGROUND ..............................2 A. The Homeland Security Act of 2002 ....................................................2 B. Trafficking Victims Protection Reauthorization Act of 2008...............3 C. ORR Policy Guide and Practice ............................................................6 D. U.S. Department of Homeland Security’s Immigration Enforcement Authority..........................................................................9
II. PROCEEDINGS BELOW ............................................................................10 SUMMARY OF THE ARGUMENT ......................................................................20 ARGUMENT ...........................................................................................................20
I. The District Court Erred in Ruling That A.H. was Denied Due Process with Regard to His Arrest and Custody by the Government.........................20
CONCLUSION ........................................................................................................30
i

CASES F.L. v. Thompson,
293 F. Supp. 2d 86 (D.D.C. 2003)..........................................................................2 Flores v. Sessions,
862 F.3d 863 (9th Cir. 2017) ............................................................................9, 22 Mathews v. Eldridge,
424 U.S. 319 (1976) ...................................................................................... 21, 25 Preap v. Johnson,
831 F.3d 1193 (9th Cir. 2016) ................................................................................9 Rumsfeld v. Padilla,
542 U.S. 426 (2004) .............................................................................................13 Zinermon v. Burch,
494 U.S. 113 (1990) .............................................................................................21 ADMINISTRATIVE DECISIONS
Matter of Sugay, 17 I. & N. Dec. 637 (BIA 1981)............................................................................17 STATUTES
6 U.S.C. § 279............................................................................................................3 8 U.S.C. § 1226 ............................................................................................... passim. 8 U.S.C. § 1232 ............................................................................................... passim.
ii

OTHER AUTHORITIES Immigration and Nationality Act of 1952, ch. 477, 66 Stat. 163
(June 27, 1952) .....................................................................................................12 Office of Refugee Resettlement, ORR Guide: Childeren Entering the United States
Unaccompanied. see http://www.acf.hhs.gov/orr/resource/children-entering-theunited-states-unaccompanied ....................................................................... passim
iii

INTRODUCTION In this case, the district court issued a preliminary injunction dictating new procedures to be applied to a class of minors who had previously been released to a sponsor under the Trafficking Victims Protection and Reauthorization Act of 2008, but were later arrested by U.S. Immigration and Customs Enforcement based on allegations of gang membership. The district court’s order creates heavy burdens on the Government and conflicts with existing law and procedure that already provide adequate due process. Thus, the district court’s preliminary injunction order should be reversed. The district court concluded that the government’s arrest and custody of A.H. violated his due process rights, and on that basis granted preliminary relief on behalf of a provisionally certified class. That was erroneous. First, existing procedures satisfy due process, and the district court failed to consider those procedures or their adequacy. Second, the district court improperly and without good reason required the Government instead to apply alternate standards and procedures that do not apply to unaccompanied alien children such as A.H., resulting in novel procedures that are inconsistent with, and in some cases in conflict with, existing law. And third, the district court’s order creates new administrative procedures that will unnecessarily overburden the Government, while providing no greater protections to class
1

members. Thus, for all of these reasons, the district court’s conclusion that Plaintiff A.H. was likely to succeed on this claim was in error, and as a result this Court should reverse the district court’s preliminary injunction order.
JURISDICTIONAL STATEMENT This Court has jurisdiction under 28 U.S.C. § 1291(a)(1), which confers jurisdiction over appeals from interlocutory orders of district courts granting or refusing to dissolve or modify injunctions.
STATEMENT OF THE ISSUES This appeal raises the following issue: I. Did the district court err in concluding that the government’s arrest and subsequent custody of A.H. violated A.H.’s procedural due process rights?
STATEMENT OF THE CASE I. STATUTORY AND REGULATORY BACKGROUND
A. The Homeland Security Act of 2002 Before 2002, the care and placement of unaccompanied alien children (“UACs”) in the United States was the responsibility of the Office of Juvenile Affairs in the former Immigration and Naturalization Service (“INS”). See F.L. v. Thompson, 293 F. Supp. 2d 86, 96 (D.D.C. 2003). In 2002, Congress enacted the Homeland Security Act (“HSA”), which created DHS and transferred to DHS and its components most immigration enforcement functions performed by INS. The
2

HSA also transferred to HHS, Office of Refugee Resettlement (“ORR”) the responsibility for the care and placement of UACs “who are in Federal custody by reason of their immigration status.” 6 U.S.C. § 279(a), (b)(1)(A), (b)(1)(C). The HSA defines an “unaccompanied alien child” as:
a child who— (A) has no lawful immigration status in the United States; (B) has not attained 18 years of age; and (C) with respect to whom—(i) there is no parent or legal guardian in the United States; or (ii) no parent or legal guardian in the United States is available to provide care and physical custody. Id. § 279(g)(2). The HSA transferred to HHS the responsibility for making all placement decisions for UACs, and required HHS to consult with DHS and others in making such decisions. Id. § 279(b)(l)(C), (D), (b)(2)(A). The HSA prohibited HHS from releasing UACs on their own recognizance. Id. § 279(b)(2)(B). B. Trafficking Victims Protection Reauthorization Act of 2008 In 2008, the Trafficking Victims Protection Reauthorization Act (“TVPRA”) codified further protections related to the processing, custody, and detention of UACs. The TVPRA required that “the care and custody of all unaccompanied alien children, including responsibility for their detention, where appropriate, shall be the responsibility of the Secretary of Health and Human Services.” 8 U.S.C. §
3

1232(b)(1). The TVPRA also provides:
Except in the case of exceptional circumstances, any department or agency of the Federal Government that has an unaccompanied alien child in custody shall transfer the custody of such child to the Secretary of Health and Human Services not later than 72 hours after determining that such child is [a UAC].
Id. § 1232(b)(3). The statute makes no differentiation between a UAC who is in
government custody for the first time, and a UAC who has previously been in
government custody and been released to a sponsor.
The TVPRA makes clear that HHS is responsible for all placement decisions
for UACs in government custody, and provides guidelines for placing UACs with
suitable custodians, including requirements for HHS to evaluate the suitability of
any placement. 8 U.S.C. § 1232(c)(3). The TVPRA prohibits HHS from releasing to
a proposed custodian unless:
[HHS] makes a determination that the proposed custodian is capable of providing for the child’s physical and mental well-being. Such determination shall, at a minimum, include verification of the custodian’s identity and relationship to the child, if any, as well as an independent finding that the individual has not engaged in any activity that would indicate a potential risk to the child.
Id. § 1232(c)(3)(A). In some instances, HHS must conduct a home study before
placing a UAC with a proposed custodian. Id. § 1232(c)(3)(B). If the proposed
custodian is found to be a suitable custodian to whom an unaccompanied child may
4

be released, the custodian receives a legal orientation presentation addressing his responsibility to ensure the juvenile’s appearance at all immigration proceedings, and to protect the child from mistreatment, exploitation, and trafficking. See id. § 1232(c)(3)–(4). When reunification is complete, HHS must conduct follow-up services, during the pendency of removal proceedings, on children for whom a home study was conducted pursuant to the statute, and is authorized to conduct follow-up services in cases involving children with mental-health or other needs who could benefit from ongoing assistance from a social welfare agency. Id. § 1232(c)(3)(B).
The statute further requires that UACs who remain in HHS custody must be “promptly placed in the least restrictive setting that is in the best interest of the child.” 8 U.S.C. § 1232(c)(2)(A). It delegates to the Secretary of HHS the authority to (1) make such placement decisions, considering “danger to self, danger to the community, and risk of flight,” id., and (2) create review “procedures” to be used when a UAC is placed in a secure facility. When a secure placement is necessary, such placement “shall be reviewed, at a minimum, on a monthly basis, in accordance with procedures prescribed by the Secretary, to determine if such placement remains warranted.” Id. § 1232(c)(2)(A).
5

C. ORR Policy Guide and Practice ORR has created a comprehensive policy guide for carrying out its statutory mandate. OFFICE OF REFUGEE RESETTLEMENT, ORR Guide: Children Entering the United States Unaccompanied (“ORR Guide”), available at http://www.acf.hhs.gov/orr/resource/children-entering-the-united-statesunaccompanied. When a UAC is referred to ORR, the agency places the UAC with a care provider. ORR Guide § 3.1. The ORR Intakes staff makes an initial care provider placement decision for each UAC.1 ORR Guide § 1.3.2. Most care providers operate one of three types of facilities: shelter-type facilities, staff secure facilities, or secure facilities. Id. § 1.1. Shelter care is a residential care facility in which all programs are administered onsite, in the least restrictive setting. See ORR Guide: Guide to terms. Staff secure facilities maintain stricter security measures than shelters, such as a higher staff-toUAC ratio for supervision and a secure perimeter with a “no climb” fence. Id. They have a more shelter, home-like setting than secure detention, and do not have locked pods or cell units. Id. Secure facilities are the most restrictive level of care. They are
1 There are two types of placement decisions: (1) the initial placement with an ORR care provider; and (2) transfer between ORR care providers. ORR Guide § 1.2. When DHS refers a UAC to ORR, ORR makes an initial placement decision. Once in care, a UAC may be transferred between facilities.
6

physically secure structures with staff able to control violent behavior and may be a licensed juvenile detention center or a highly structured therapeutic facility. Id.
When deciding placement, ORR places the child in the “least restrictive setting that is in the best interest of the child,” subject to considerations of danger to self, danger to others, or risk of flight, in accordance with the TVPRA. 8 U.S.C. § 1232(c)(2)(A). By statute, ORR may place children in a secure facility only if it determines that the child poses a danger to herself or others, or has been charged with a criminal offense. Id. § 1232(c)(2)(A); see also ORR Guide § 1.2.4. For those cases in which a UAC may be placed in a secure or staff secure facility, such as those UACs with possible gang involvement, ORR uses a standardized “Placement Tool” to input all available information on the UAC’s history and condition. ORR Guide § 1.3.2. Based on the score, the placement tool suggests a level of care. Id. This score can be overridden in consultation with Supervisory Federal Field Specialists. Id.
After a child is placed in an appropriate facility, the care provider conducts ongoing assessments of the UAC’s needs. ORR Guide § 1.4. If a care provider determines that a different placement would better meet the child’s needs, care providers make a recommendation to ORR, and ORR may transfer the child between ORR care providers. Id. ORR assesses each child in secure or staff secure care at least once every 30 days to determine whether the child should remain in such care
7

and must step-down the child to a less restrictive facility if the child’s circumstances warrant the change. Id. § 1.4.2. The ORR Federal Field Specialist may allow a review to occur earlier, particularly if new information indicates that another placement is appropriate. Id. § 1.4.2. Further, after 30 days in a secure facility, a UAC may ask the ORR Director to reconsider her placement. Id. § 1.4.7. In making a step-down decision, ORR reviews the criteria for the secure placement as well as any mitigating factors, such as the UAC’s current behavior, previous conduct, selfdisclosures, and criminal/delinquent history. Id. § 1.4.2.
ORR makes an ongoing assessment of whether there is a suitable sponsor for each child in its care, so that children may be released as quickly as is safe and appropriate. ORR Guide § 2.2. Under the TVPRA, ORR must make “a determination that the proposed custodian is capable of providing for the child’s physical and mental well-being.” 8 U.S.C. § 1232(c)(3)(A). The assessment reviews a potential sponsor’s strengths, resources, risk factors, and special concerns within the context of the UAC’s needs, strengths, risk factors, and relationship to the sponsor. ORR Guide § 2.4. A potential sponsor must fill out an application, provide identification documentation, and (along with any adult living in his or her household) undergo a background check. Id. §§ 2.2.3 and 2.5.
Once the assessment of the potential sponsor is complete, the care provider
8

makes a release recommendation. ORR Guide § 2.7. ORR makes the final release decision. Id. For children in secure or staff secure facilities, or for children who have been in these facilities previously, the release decision is elevated to the ORR Director or his designee for a final decision. Id. ORR will deny release if: (1) the potential sponsor is not willing or able to provide for the child’s physical or mental well-being; (2) the physical environment of the home presents a risk to the child’s safety or well-being; (3) release of the UAC would present a risk to him or herself, the sponsor, household, or community. ORR Guide § 2.7.4.
Under Flores v. Sessions, 862 F.3d 863 (9th Cir. 2017), a UAC in HHS custody may seek a bond hearing before an immigration judge to determine if the child is a flight risk or a danger to the community. ORR Guide § 2.9. ORR will release a child if an immigration judge determines that the child is not a danger to the community and is therefore eligible for bond, but only if the child has a suitable sponsor to whom he or she may be released. Id.; see also 862 F.3d at 878.
D. U.S. Department of Homeland Security’s Immigration Enforcement Authority
DHS’s enforcement authority includes the authority to arrest and detain any alien on a warrant “pending a decision on whether the alien is to be removed from the United States.” 8 U.S.C. § 1226(a); Preap v. Johnson, 831 F.3d 1193, 1198 (9th Cir. 2016) (“8 U.S.C. § 1226(a), grants the AG discretion to arrest and detain any
9

alien upon the initiation of removal proceedings.”). The Executive Branch has possessed this authority in some form since Congress enacted the Immigration and Nationality Act of 1952, ch. 477, 66 Stat. 163 (June 27, 1952). See id. § 242(a) (“Pending a determination of deportability in the case of any alien as provided in subsection (b) of this section, such alien may, upon warrant of the Attorney General, be arrested and taken into custody.”).
Generally, the arrest and detention of aliens, including juveniles, is governed by 8 U.S.C. § 1226(a). However, if a juvenile is found to be a UAC, DHS must follow the TVPRA and “transfer the custody of such child to the Secretary of Health and Human Services” not later than “72 hours after determining that such child is [a UAC].” 8 U.S.C. § 1232(b)(3). II. PROCEEDINGS BELOW
This lawsuit was brought as a habeas petition by Ilsa Saravia as next friend of A.H. and on her own behalf against HHS and Brent Cardall, the chief probation officer of Yolo County, California. ECF No. 1. A.H. was arrested by ICE, and transferred to ORR’s care and custody at the Yolo County Juvenile Detention Facility. ECF No. 1, ¶ 33. Plaintiffs raised seven claims and sought a TRO. Id. at 14–18; see also ECF No. 7. Following a hearing on the TRO application, the district court concluded that ORR had a statutory obligation to “make sure that the child
10

should be in custody and . . . that being in a secure facility was the least restrictive setting that is in the best interest of the child.” June 29, 2017, Hearing Tr., ECF No. 28, at 88:10-13. To effectuate this, the court ordered ORR to respond to the following questions: (1) should ORR have initially taken A.H. into custody on June 13, 2017; (2) should A.H. initially have been placed into secure ORR custody; (3) whether it remains appropriate for A.H. to remain in ORR custody; and (4) if so, whether A.H. should remain in secure care at Yolo. Id. at 88:17-89:18. ORR timely responded to these inquiries, ECF No. 27, and A.H. was subsequently transferred to a staff-secure facility in Dobbs Ferry, New York. ECF No. 31, ¶¶ 78–79.
On August 11, 2017, Plaintiffs filed an amended complaint. ECF No. 31. The new pleading added new Plaintiffs, Defendants, claims, and class-action allegations. Id. The added Plaintiffs are Lorenza Gomez, her son J.G., and F.E., who is represented by his next friend Wilfredo Velazquez. Id. The added Defendants are DHS, ICE, U.S. Citizenship & Immigration Services, and officials from those agencies in their official capacities. Id.
Minors A.H., F.E., and J.G. are seventeen years old and lack legal status in the United States. ECF No. 31, ¶¶ 10, 12, 14; see also id. ¶¶ 64, 66–67, 83, 94–95, 103–05. ICE officers arrested each of them in Long Island, New York. Id. ¶¶ 68, 88, 100. ICE temporarily detained each of them for less than 72 hours, and thereafter
11

they were transferred to the care and custody of ORR. Id. ¶¶ 73, 88, 100. In arresting A.H., F.E. and J.G., and in making placement decisions for them, ICE and ORR have relied on information and evidence showing that each of them is affiliated with, or is a member of, a gang. Id. ¶¶ 71, 90, 101. That evidence was gathered by law enforcement agencies in New York, and shared as part of Operation Matador—a law enforcement operation targeting gang operations in Long Island, New York. See ECF Nos. 67-2, 67-3, 67-4, Record Excerpts (“R.E.”) 425-45; see also October 27, 2017 Hearing Tr. at 15-85, R.E. 159-229. When Plaintiffs filed their amended habeas petition and complaint, A.H. was in a staff-secure ORR facility in Dobbs Ferry, New York, id. ¶ 12, F.E. was at Lincoln Hall Boys’ Haven, an ORR grantee shelter facility in Lincolndale, New York, id. ¶ 92, and J.G. was in the Selena Carson Home, a staff secure ORR grantee facility in Tacoma, Washington, id. ¶ 102.
After Plaintiffs filed the amended complaint they moved for a preliminary injunction and for provisional class certification. ECF No. 61-1. The government moved to dismiss all claims. ECF No. 54. Among other things, the government contended that the district court lacked habeas jurisdiction because the complaint named the wrong respondent (and the correct respondent was located in a different district), that the Northern District of California was the wrong venue for Plaintiffs’
12

suit, and that Plaintiffs were not likely to succeed on their procedural-due-process claim.
Following two lengthy hearings, See ECF Nos. 98, 107, the district court issued the order at issue here, provisionally certifying a class for the purposes of the preliminary-injunction order, and granting a preliminary injunction on behalf of the provisional class based on one of the claims in the amended complaint. Saravia, et al. v. Sessions, et al., No. 3:17-cv-03615-VC, --- F. Supp. 3d ----, 2017 WL 5569838 (N.D. Cal. Nov. 20, 2017) (“Op.”), R.E. 1-44.2
First, the district court concluded that it had jurisdiction over A.H.’s habeas claim, because it found that Elicia Smith, an HHS Federal Field Specialist in San Francisco, was the proper respondent to A.H.’s habeas petition. Op. at 11-17, R.E. 11-17. The court relied on the fact that A.H. was in federal custody, but in a facility run by a Yolo County employee. Id. at 14-15, R.E. 14-15. When his habeas petition was filed, A.H. was in the Yolo facility, which is located within the Eastern District of California. Id. at 11, R.E. 11. But the court rejected application of the properrespondent rule articulated in Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004) (in habeas challenges to present physical confinement the proper respondent is the
2 The order leaves pending the majority of the Government’s motion to dismiss, and two claims in Plaintiffs’ preliminary-injunction motion which have since been dismissed by Plaintiffs.
13

warden of the facility where the prisoner is being held), because “[i]t is pursuant to the power and authority of the federal government—not Yolo County—that A.H. is in custody. So, the federal official with most immediate control over the facility holding the petitioner—that is, the federal official tasked with ensuring that Yolo County complies with the requirements of its contract with ORR—is the proper respondent.” Id. at 15, R.E. 15. Thus, the court ruled that the HHS Federal Field Specialist, Elicia Smith, and not the county employee who was the warden of the Yolo facility, was the proper respondent to A.H.’s habeas petition. Because Elicia Smith is located in San Francisco, the district court held that jurisdiction over A.H.’s habeas petition was properly in the Northern District of California. Id. at 17, R.E. 17. The district court also acknowledged that it did not have jurisdiction over the habeas claims for J.G. or F.E. because neither of them was in a facility under Elicia Smith’s oversight when the amended complaint was filed. Id. at 17-18, R.E. 17-18. The district court therefore dismissed those claims. Id.
Second, turning to the issue of venue for the remainder of the claims, the district court acknowledged that the Northern District of California was not the proper venue for the declaratory and injunctive relief claims of any of the three named Plaintiffs because those claims do not meet the requirements for venue under 28 U.S.C. § 1391(e). Id. at 18-22, R.E. 18-22. The district court therefore dismissed
14

those claims with regard to J.G. and F.E. Id. at 22, R.E. 22. Notably, in so ruling, the
court also found that Elicia Smith was not a proper Defendant for any Plaintiff’s
claims for declaratory and injunctive relief. Id. Nonetheless, the district court
concluded that it could take venue over A.H.’s declaratory and injunctive relief
claims under the doctrine of pendent venue.3 Id. at 22-26, R.E. 22-26. The district
court emphasized that “[t]he same witnesses and evidence are relevant to both sets
of claims,” and that “[r]esolution of each requires this Court to identify DHS and
ORR’s policies and practices concerning children released to sponsors who are later
rearrested, as well as to evaluate the statutory, constitutional, and contractual limits
that circumscribe those policies and practices.” Id. at 24, R.E. 24. The court added
that government lawyers were already required to appear in this district to defend
the habeas claims, and that although applying pendent venue here required adding
parties that otherwise would not be respondents to the habeas claim, this was
3 Because pendent venue had not been raised by any party, but was first raised by the district court in an oral tentative ruling just prior to the second oral argument, the government had no opportunity to brief the issue. See November 9, 2017 Hearing Tr., ECF No. 107, at 37, R.E. 90. Rather, the government objected at oral argument to applying this doctrine, arguing that application of this judge-made doctrine was not appropriate because there was no precedent applying it in the context of either a habeas claim, or to venue under Section 1391(e). Id. at 39:9-19, R.E. 92. The government had also noted that applying the doctrine to allow a court in California to issue a nationwide injunction that primarily affected actions taking place in New York was particularly inappropriate. Id. at 45:25-46:25, R.E. 98-99.
15

permissible because “[c]ourts have allowed such claims to proceed even though a
forum that does not otherwise satisfy venue requirements is as likely to be
inconvenient for a third-party defendant as for an original defendant.” Id. at 25, R.E.
25. Ultimately, the court rejected Defendants’ contention that applying the doctrine
was unfair, and stated that because Defendants were federal actors, applying the doctrine was particularly appropriate in this context. Id.4
Finally, the court concluded that A.H. was likely to succeed on the merits of
his procedural-due-process claim and otherwise met the requirements for a
preliminary injunction on that claim. Id. at 27-37, R.E. 27-37. The court held that
due process required that, for a minor whom ORR had previously found was not
dangerous and released to a sponsor, ICE could not simply rearrest him on the basis
of removability under Section 1226(a). Id. at 30, R.E. 30. The court held that “the
liberty deprivation in this case is not the same as when someone is caught coming
across the border and detained in the nearest facility. The minors in this case have
been taken away from their families, their schools, and their communities, often to
4 Based on its ruling that it had venue over A.H.’s claims, the court provisionally certified “a class of noncitizen minors meeting the following criteria: (1) the noncitizen came to the country as an unaccompanied minor; (2) the noncitizen was previously detained in ORR custody and then released by ORR to a sponsor; (3) the noncitizen has been or will be rearrested by DHS on the basis of a removability warrant on or after April 1, 2017, on allegations of gang affiliation.” Op. at 38, R.E. 38.
16

be shipped across the country to a high-security institution and held for an indefinite period.” Id. at 29, R.E. 29. Thus, the court concluded, “a minor previously placed with a sponsor by ORR cannot be rearrested solely on the ground that he is subject to removal proceedings.” Id. at 29-30, R.E. 29-30. Instead, “to be lawful, the arrest must be based on evidence that the circumstances relevant to that original release decision have changed.” Id. at 30, R.E. 30.
The court based its holding—that a showing of changed circumstances was necessary to satisfy due process in these circumstances—on its understanding of the process available to an alien who is rearrested under Section 1226(b), and for whom ICE must show “changed circumstances” in order to detain the individual. See id. at 31, R.E. 31 (citing 8 U.S.C. § 1226(b) (“The Attorney General at any time may revoke a bond or parole authorized under subsection (a), rearrest the alien under the original warrant, and detain the alien.”); and Matter of Sugay, 17 I. & N. Dec. 637, 640 (BIA 1981) (“[W]here a previous bond determination has been made by an immigration judge, no change should be made by a District Director absent a change of circumstance.”)).5 The court thus held that ICE must provide a “prompt hearing
5 The court’s understanding of the process available to an alien who is rearrested under Section 1226(b) is incorrect in certain respects. DHS generally only re-arrests an alien pursuant to § 1226(b) after a material change in circumstances consistent with Matter of Sugay, 17 I. & N. Dec. 637 (BIA 1981); however, the court
17

in which the government must show that these changed circumstances exist.” Id. at
31, R.E. 31. The court further held that “[a]t that hearing, the minor must have the
opportunity to rebut the government’s showing, and, if he does so successfully, the
neutral decision maker must have the ability to order a return to the status quo.” Id.
at 31-32, R.E. 31-32. The court stated that the government was in the best position
to determine how the hearing should be conducted, but that at a minimum:
[T]he sponsor, as well as the minor, must receive notice of the basis for the rearrest and an opportunity to be heard. The hearing must, consistent with existing practice for other immigrants rearrested on grounds of changed circumstances, take place within seven days of arrest, absent extraordinary circumstances. The hearing must take place in the jurisdiction where the minor has been arrested or where the minor lives, to provide a meaningful opportunity for the minor, his sponsor, and any existing counsel to rebut the factual basis for the minor’s rearrest and detention. This requirement will allow the parties to call necessary witnesses, and the hearing may even occur before the same immigration judge already presiding over any removal proceedings in which the minor is involved.
Id. at 32, R.E. 32. The court noted that the need for such a hearing constituted
“exceptional circumstances” that would allow ICE to hold a minor in its custody for
mistakenly concluded that Matter of Sugay requires an Immigration Judge to conduct a “changed circumstances” hearing within seven days of the alien’s rearrest. While an Immigration Judge has authority to conduct a bond hearing for certain aliens in DHS custody, including aliens who have been re-arrested, Matter of Sugay does not stand for the proposition that an alien is entitled “to a prompt hearing to ensure that changed circumstances indeed justify the rearrest.”
18

longer than the 72 hours provided in the TVPRA for the purposes of providing such
a hearing. Id.
Ultimately, then, the district court ordered that the government provide:
A.H. and all other noncitizen minors previously released to a sponsor who were rearrested and are currently in federal custody based on allegations of gang affiliation with a hearing before an immigration judge by no later than November 29, 2017, to challenge the basis for those allegations, in conformity with the requirements set out in . . . this order. The minor’s sponsor must receive notice and be given an opportunity to participate in the hearing. At the hearing, the government must present evidence that the minor is a danger to the community, notwithstanding ORR’s prior determination to the contrary. For all sponsored minors who will be arrested on the basis of gang affiliation, the government must provide this hearing within seven days of rearrest, in the jurisdiction where the minor was arrested or lives. A decision by the immigration judge that the government has not made an adequate showing of changed circumstances, or that the minor has successfully rebutted the showing, requires release into the custody of the previous sponsor.
Id. at 43-44, R.E. 43-44.
The government has complied with the district court’s order with regard to all
class members who were already in government custody at the time of the order by
providing all of those class members with Saravia hearings before an immigration
judge, as well as one additional class member who was arrested immediately
following issuance of that order. No new class members have since been arrested.
19

On January 5, 2018, the district court denied the government’s motion to stay the district court’s order with regard to future class members. ECF No. 129.
SUMMARY OF THE ARGUMENT The district court’s preliminary injunction order should be reversed. The district court erroneously concluded that the government’s arrest and custody of A.H. violated his due process rights, and on that basis granted preliminary relief on behalf of a provisionally certified class. However, the district court’s conclusion was improper. The existing procedures applicable to class members satisfy due process, and the district court failed to consider those procedures or their adequacy. Moreover, the district court’s order creates new administrative procedures that will unnecessarily overburden the Government, while providing no greater protections to class members. These new procedures also are inconsistent with existing law. For all of these reasons the district court’s conclusion that Plaintiff A.H. was likely to succeed on this claim was in error, and as a result this Court should reverse the district court’s preliminary injunction order.
ARGUMENT I. The District Court Erred in Ruling That A.H. Was Denied Due Process
With Regard to His Arrest And Custody By The Government. The district court’s entry of a preliminary injunction on behalf of a provisional class was improper and should be reversed. The district court concluded that the
20

government’s arrest and custody of A.H. violated his due process rights. This conclusion was improper because the existing procedures available to UACs satisfy due process, and this ruling will create new administrative procedures for UACs when they are rearrested that will unnecessarily overburden ICE and ORR resources while providing no greater protections to class members.
“In procedural due process claims, the deprivation by state action of a constitutionally protected interest in ‘life, liberty, or property’ is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law.” Zinermon v. Burch, 494 U.S. 113, 125 (1990). To determine what procedural due process requires in a given situation, courts consider: (1) “the private interest that will be affected by the official action”; (2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards”; and (3) “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
As discussed above, unaccompanied minors such as A.H. receive significant due process protections from the extensive regime established by the TVPRA and the Flores settlement agreement (“Flores Agreement”). Under that regime, any time
21

a UAC is taken into Government custody, he is “promptly placed in the least restrictive setting that is in the best interest of the child.” 8 U.S.C. § 1232(c)(2)(A). This placement decision considers “danger to self, danger to the community, and risk of flight,” id., and when a secure placement is necessary, such placement “shall be reviewed, at a minimum, on a monthly basis, in accordance with procedures prescribed by the Secretary, to determine if such placement remains warranted.” Id. § 1232(c)(2)(A). Moreover, if held in custody based on a determination of danger, whether upon initial apprehension or after having been returned to custody following a prior release, the UAC may seek a bond hearing before an immigration judge to determine whether he is a danger to the community. Flores, 862 F.3d at 863; ORR Guide § 2.9. If he is found not to be a danger, he will be released by ORR, subject only to ORR fulfilling its mandate under the TVPRA to ensure that he is released to a suitable custodian. See Flores, 862 F.3d at 878; 8 U.S.C. § 1232(c)(3); ORR Guide § 2.9.
This regime created by the TVPRA and Flores takes into account a UAC’s interest in being free from custody, an interest that is necessarily limited by the fact that UACs are “always in some form of custody.” Op. at 29, R.E. 29. At the same time, the risk of erroneous deprivation under this structure is minimal, because a UAC is accorded a bond hearing in front of an immigration judge—a neutral
22

decision-maker—who must determine that a UAC is a danger to the community before permitting his continued custody where a suitable custodian is available to take custody. See Flores, 862 F.3d at 881.
In addition, the government’s interest in preserving public welfare, including A.H.’s own welfare, is significant. This interest is reflected in the TVPRA’s clear delegation to HHS of the duty to ensure that every UAC released from Government custody is released to a sponsor who has been fully vetted and determined to be suitable by ORR. 8 U.S.C. § 1232(c)(3); see also Flores Agreement ¶ 17, R.E. 11 (“A positive suitability assessment may be required prior to release to any individual or program . . . .”). The TVPRA and Flores Agreement thus adequately protect the limited liberty interests of UACs, and provide a constitutionally appropriate procedure to minimize the risk of erroneous deprivation, while also protecting the public interest in ensuring the safety of UACs who are being released from the custody of the Government into the custody of another.
The district court did not consider these procedures, nor did it acknowledge that these are the procedures that apply. The district court therefore reached no conclusion as to whether the procedures provided under the TVPRA and Flores Agreement are constitutionally adequate. Rather, the district court’s ruling is premised in its finding that class members, who were “previously detained in ORR
23

custody and then released by ORR to a sponsor,” and later rearrested by ICE on the basis of gang membership, should be entitled to different procedures from UACs taken into government custody for the first time. Op. at 38, R.E. 38. It is on the basis of this distinction that the district court rejected the procedures that apply to all UACs under the TVPRA and Flores Agreement, and instead looked to apply what it misunderstood to be the procedures that apply to adult aliens who are re-arrested by ICE after having been released on bond, in accordance with 8 U.S.C. § 1226(b). Op. at 30-32, R.E. 30-32. As a result, the district court’s preliminary injunction requires the Government to undertake procedures that are inconsistent with, and in some instances in violation of, the existing regime that applies to UACs.
As an initial matter, the district court was incorrect because there is no basis for the distinction applied by the district court to reject the existing procedures. Nothing in the TVPRA suggests that it is only intended to apply only to UACs who are taken into custody for the first time, and the district court’s order provides no explanation for why class members should be removed from the custody framework provided by the TVPRA and Flores Agreement, which clearly are intended to provide protections to UACs, and instead subject to arrest and custody provisions from the Immigration and Nationality Act, 8 U.S.C. § 1226, that apply to all other aliens. Despite the district court’s best intentions, this result plainly, and without
24

good reason, goes against Congressional intent in enacting the TVPRA and the many protections it provides for UACs.
This analysis also is erroneous because the newly created procedures provide only minimally different protections and, in some instances eliminate protections afforded to UACs, while imposing a significant fiscal and administrative burden on the government. See Mathews, 424 U.S. at 335 (due process requires consideration of “fiscal and administrative burdens that the additional or substitute procedural requirement would entail”). For example, the seven-day time frame and requirement that the hearing be in the district where the minor’s arrest occurred impose a significant burden on ICE and ORR resources because of the difficulty of holding unaccompanied minors in facilities in close proximity to where the newly-created Saravia hearing must take place. Under the TVPRA and Flores Agreement, ICE may only hold UACs in facilities not designated for their detention for up to 72 hours. 8 U.S.C. § 1232(c)(3); Flores Agreement ¶ 12.A, R.E. 452-53 (requiring transfer within three days after arrest). And when in ICE custody, minors must be placed in facilities that are compliant with the Flores Agreement. See Flores Agreement ¶¶ 6, 8, 12.A, 14, 19, and Exhibit 1, R.E. 449-71. The Flores Agreement requires, inter alia, that the facilities separate UACs from unrelated adults. Id. ¶ 12.A, R.E. 452-53. While the district court’s order does avoid the 72-hour
25

limitation of the TVPRA for transferring UACs to ORR, Op. at 32, R.E. 32, nothing in the order releases ICE from the requirements of the Flores Agreement concerning the conditions that must be maintained for minors in ICE custody. Thus, ICE is limited by these requirements as to the facilities where it can hold minors while complying with the preliminary injunction order.
At the same time, the reality of the procedures provided by the preliminary injunction order is that even if a class member receives his hearing within seven days of arrest, there is a strong possibility he will remain in ICE custody longer than the 72 hours that Congress believed was appropriate before transfer to ORR.6 ICE has only a limited number of facilities that are designated to hold juveniles, none of which is located in New York. See Nov. Hearing Tr. 62:7-15, R.E. 115. Holding minors in the existing ICE facilities thus likely would require that they be subjected to long and difficult transportation between the ICE detention facilities and the immigration court to attend their hearings. ORR also does not have any facilities (nor do they contract with any) that are able to hold minors in secure custody—the
6 Moreover, if the class member wishes to request that his hearing be delayed so that he can obtain counsel, or locate additional evidence, then he will be forced to choose between these interests and his right to be transferred to the custody of ORR and to a facility compliant with the Flores Agreement, along with his right to seek release to a suitable custodian in accordance with the TVPRA.
26

level necessary if the minor is believed to be a danger to himself or others—in the
New York area. Id.7
The district court’s due process analysis also fails to acknowledge that there
are many instances where the procedures provided by the preliminary injunction
order necessarily conflict with the procedures that would exist under the TVPRA
and Flores Agreement, and in doing so eliminate protections that Congress intended
should be provided to class members. For example, if a class member prevails at a
Saravia hearing he must be immediately released to his previous custodian. Thus, if
the Government were to provide a Saravia hearing to a UAC in HHS custody, if that
UAC prevailed at his hearing HHS would be required to violate the TVPRA’s
requirement that it assess the suitability of a potential custodian before a UAC is
released from its custody. 8 U.S.C. 1232(c)(3). This requirement exists to ensure the
safety of UACs who are being released from Government custody, and HHS has
7 To lessen the travel burden imposed by the required in-person hearing, ICE is exploring the option of establishing new contracts with two juvenile detention facilities, one located in Essex County, New Jersey, and the other located in Richmond, Virginia. ICE is also attempting to modify its contract with the Northern Virginia Juvenile Detention Center so that it can hold minors for longer than 72 hours. The cost of these contracting efforts is expected to be $162,000 per year. To date, these contracts have not been finalized. Moreover, while this order presently affects New York primarily, it would apply to ICE arrests in any location, and ICE has only nine facilities designed to hold minors throughout the United States, only three of which can hold vulnerable minors for more than 72 hours. See Declaration of Melissa B. Harper, ECF No. 120-2, ¶¶ 7-8, R.E. 51-52.
27

reasonably interpreted this requirement to apply even when a UAC is being released to a custodian that was previously approved, because there are many reasons why circumstances related to suitability may change. See Oct. Hearing Tr. at 94:2-95:23, E.R. 238-39. Thus, requiring HHS to release UACs in violation of the TVPRA necessarily deprives class members of this Congressionally-provided protection.
Of course, the Government also can avoid violating the TVPRA by instead applying the provision of the preliminary injunction order allowing it to hold minors in ICE custody for longer than 72 hours under the “exceptional circumstances” exception to the TVPRA. Op. at 32, R.E. 32. And in fact, in many instances the Government will need to do so because of the seven-day time frame of the order, and the requirement that the hearing be in the district where the arrest occurred. Op. at 44, R.E. 44. However, proceeding in this manner not only eliminates protections for UACs that would be provided by compliance with the TVPRA, but also imposes a significant burden on ICE resources because of the difficulty of holding unaccompanied minors in facilities in close proximity to where the Saravia hearing must occur.
Thus, as described above, the procedures required by the preliminary injunction order deprive class members of protections to which they are entitled under the TVPRA and Flores Agreement, while also burdening government
28

resources. At the same time, the district court provides no basis on which to conclude that the existing procedures under the TVPRA and the Flores Agreement would not provide adequate due process to class members. Therefore, there is good reason for this Court to find that the district court erred in issuing its preliminary injunction order, and that the order should be reversed.
29

CONCLUSION

For the foregoing reasons, this Court should reverse the decision of the lower

court.

DATED: February 16, 2018

Respectfully submitted,

CHAD A. READLER Acting Assistant Attorney General Civil Division

WILLIAM C. PEACHEY Director, District Court Section Office of Immigration Litigation

WILLIAM C. SILVIS Assistant Director, District Court Section Office of Immigration Litigation

/s/ Sarah B. Fabian SARAH B. FABIAN Senior Litigation Counsel NICOLE M. MURLEY Trial Attorney Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Tel: (202) 532-4824 Fax: (202) 305-7000 Email: sarah.b.fabian@usdoj.gov

Attorneys for Defendants-Appellants

30

STATEMENT OF RELATED CASES There are no related cases pending before this Court.
By: /s/ Sarah B. Fabian SARAH B. FABIAN Senior Litigation Counsel U.S. Department of Justice Attorney for Defendants-Appellants
31

CERTIFICATE OF SERVICE I hereby certify that on February 16, 2018, I electronically filed the foregoing BRIEF FOR APPELLANTS with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.
By: /s/ Sarah B. Fabian SARAH B. FABIAN Senior Litigation Counsel U.S. Department of Justice Attorney for Defendants-Appellants
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Date Feb 16, 2018
(Rev.12/1/16)

 
 Case 3:17-cv-03615-VC Document 105 Filed 11/27/17 Page 1 of 2

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

ILSA SARAVIA, et al., Petitioners/Plaintiffs,
v. JEFFERSON B. SESSIONS, et al.,
Respondents/Defendants.

Case No. 17-cv-03615-VC
ORDER GRANTING IN PART PLAINTIFFS' EMERGENCY APPLICATION FOR RELIEF Re: Dkt. No. 103

Having reviewed the plaintiffs' request for emergency relief relating to implementation of the Court's November 20, 2017 Order, and after holding two telephonic conferences with the parties, the Court grants the request in part and denies it in part, as set forth below. 1. Defendants must use best efforts to provide notice, for any hearings required by the
November 20, 2017 Order for which notice has not previously been given, to all Class Members, their sponsors, individual attorneys of record, and Class Counsel, by 7:00 a.m. (PST) on Tuesday, November 28, 2017, setting forth in detail the time and place of the hearing. 2. Defendants will support any Class Member who requests a brief extension of time for the commencement of the hearing, or following the conclusion of the Government’s presentation of its evidence, to secure legal representation, prepare for the hearing, and/or respond to previously undisclosed allegations or evidence. Where the Class Member is unrepresented, the Government will request that the Immigration Judge continue the hearing to allow the Class Member to obtain counsel.

Case 3:17-cv-03615-VC Document 105 Filed 11/27/17 Page 2 of 2

3. Defendants will provide facility staff contact information for all facilities where Class Members are held to allow Class Counsel and attorneys representing Class Members in their hearings access to currently detained Class Members. This information shall be used only for the purpose of representing currently detained Class Members in hearings required by the Court's November 20, 2017 Order. Defendants have agreed to instruct all facilities where Class Members are being held to immediately allow their attorneys and Class Counsel to have access to them in person, by video conference and/or by telephone.
4. Because a further hearing pursuant to the Court's November 20, 2017 Order would be largely or entirely duplicative, Defendants must immediately release from detention any currently detained Class Member who has already had a Flores hearing after being rearrested, at which the Immigration Judge ruled that the Class Member has not been shown to be a danger or a flight risk, including three Class Members, O.C., J.G.R. and L.V.
5. Defendants must hold all hearings required by the November 20, 2017 Order in the jurisdiction in which the Class Member was living or was arrested when requested by the Class Member or his counsel. Where a Class Member is unrepresented, the Immigration Judge must inform the Class Member that the Class Member can request a transfer of the hearing to the jurisdiction of his home or arrest. The hearing must take place within two weeks of any request with respect to any Class Member who requests transfer under this paragraph. Plaintiffs agree to meet and confer with the Government in the event the Government notifies Class Counsel or a Class Member’s counsel that two weeks is impracticable and the Government believes additional time is required.

IT IS SO ORDERED. Dated: November 27, 2017

______________________________________
VINCE CHHABRIA United States District Judge

2

 
 Case 3:17-cv-03615-VC Document 109 Filed 12/07/17 Page 1 of 3

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

ILSA SARAVIA, Petitioner/Plaintiff,
v. JEFFERSON B. SESSIONS, et al.,
Respondents/Defendants.

Case No. 17-cv-03615-VC
ORDER REQUESTING RESPONSE TO EMERGENCY APPLICATION Re: Dkt. No. 108

The government is ordered to file a response to the emergency application by Monday, December 11, 2017 at 5 p.m. In its response, the government should make sure to address the following, in addition to whatever other points it wishes to make:
Although the Court's preliminary injunction ruling is admittedly ambiguous in places, it appears the government is making implementation of the ruling more complicated than it needs to be. The ruling holds that the government, to justify arrest and continued detention of a noncitizen minor who had previously been placed with a sponsor by ORR, must be able to present evidence at a hearing before an immigration judge that circumstances have changed since ORR made the placement decision. Specifically, the government must present evidence that the minor is dangerous or a flight risk (or that his removal is imminent), and the minor and his sponsor must have the opportunity to rebut the government's showing. If the government loses at this hearing, the minor must be released back to the sponsor. See November 20, 2017 Order at 2, Dkt. No. 100 ("Instead of giving those minors a prompt hearing to dispute that their detention is now justified based on changed circumstances . . . " (emphasis added)); id. ("[F]or any noncitizen minor previously placed with a sponsor who has been arrested on allegations of gang

Case 3:17-cv-03615-VC Document 109 Filed 12/07/17 Page 2 of 3
activity, the government is ordered to provide a hearing before an immigration judge . . . to allow the minor and his sponsor to contest the government's evidence of changed circumstances. The government must restore the minor to the sponsor's custody if such evidence is lacking."). Therefore, even if agents had probable cause to believe that changed circumstances exist when they arrested the minor, if the immigration judge concludes that changed circumstances do not actually exist (that is, if the immigration judge concludes that the minor is not dangerous or a flight risk), the minor must be released back into his previously-approved sponsor's care. See id. at 2; id. at 31-32 ("[T]he minor must have the opportunity to rebut the government's showing, and, if he does so successfully, the neutral decision maker must have the ability to order a return to the status quo."); id. at 44 ("A decision by the immigration judge that the government has not made an adequate showing of changed circumstances, or that the minor has successfully rebutted the showing, requires release into the custody of the previous sponsor.").
It is therefore unclear why the government thinks there needs to be both what it calls a "Saravia hearing" and what it calls a "Flores hearing" for a minor rearrested by the government after previously being placed with a sponsor by ORR. To the extent the government believes that the preliminary injunction ruling in Saravia requires merely prompt adjudication of whether there was probable cause to arrest a minor previously placed with a sponsor, as opposed to prompt adjudication of whether changed circumstances actually exist to justify the minor's continued detention, that is a cramped interpretation of the ruling. To the extent the government believes it would somehow violate the TVPRA or the Ninth Circuit's recent decision in Flores to release a minor who falls in this category without re-conducting the suitability assessment previously made by ORR, that seems wrong. First, as has been previously discussed, it is far from clear that minors previously placed with sponsors by ORR who are later rearrested by the federal government should continue to be considered "unaccompanied minors" covered by the TVPRA.1 Second, even if these minors are covered by the TVPRA, that statute merely requires
1 Query whether this emergency application will force a ruling on that question.
2

Case 3:17-cv-03615-VC Document 109 Filed 12/07/17 Page 3 of 3

ORR to make a determination, before releasing a minor to a sponsor, "that the proposed

custodian is capable of providing for the child's physical and mental well-being." 8 U.S.C. §

1232(c)(3)(A). As discussed in the preliminary injunction ruling, ORR has already made that

determination with respect to these minors, because ORR has already placed them with sponsors;

this language from the TVPRA does not seem to stand for the proposition that ORR must make

this determination again if the minor happens to be improperly detained by the federal

government after having been released. See November 20, 2017 Order at 32-33. The language

of the Flores ruling appears to be in accord – it says merely that "the TVPRA prevents ORR

from releasing an unaccompanied minor from custody unless the agency has identified a suitable

custodian . . . ." Flores v. Sessions, 862 F.3d 863, 878 (9th Cir. 2017). ORR has already

identified suitable custodians for this narrow class of minors, so the release of an improperly-

detained minor to a previously-approved sponsor appears consistent with that ruling, not in

conflict with it.

If the above analysis is incorrect, the government's response should explain why. In

addition, the government should specify and explain whether: (i) it believes that the approach it

has taken towards A.H. (with the "combined Saravia/Flores hearing" and the possibility that

detention could continue if the minor loses on the first but wins on the second) is the approach

that should be taken towards class members going forward; or (ii) it believes this is a problem

unique to A.H. based on his specific circumstances.

Any reply in support of the emergency motion must be filed by Tuesday, December 12,

2017, at 10:00 a.m. The Court is of the tentative view that a hearing will not be required to

resolve this emergency motion, but if the parties request a hearing they should include that

request in their response and/or reply, after conferring about a mutually acceptable hearing date.

IT IS SO ORDERED.

Dated: December 7, 2017

______________________________________
VINCE CHHABRIA United States District Judge

3

 
 Case 3:17-cv-03615-VC Document 117 Filed 12/12/17 Page 1 of 3

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

ILSA SARAVIA, Petitioner/Plaintiff,
v. JEFFERSON B. SESSIONS, et al.,
Respondents/Defendants.

Case No. 17-cv-03615-VC
ORDER RE EMERGENCY APPLICATION CONCERNING RELEASE OF A.H. Re: Dkt. No. 108

In light of the immigration judge's ruling that A.H. is not a danger to the community, A.H.'s emergency application for release from ORR custody is granted.
A.H. was rearrested roughly six months ago, even though ORR had previously determined that A.H. was not a danger to the community and could be placed with his mother, who is his sponsor. As explained in the preliminary injunction ruling, for a noncitizen minor like A.H. who has previously been placed with a sponsor, the government is required to provide a hearing promptly upon rearrest, to allow the minor to test whether changed circumstances justified the government's decision to rearrest and detain him. By failing to give A.H. a prompt hearing, the government violated his procedural due process rights.
A.H. has now had a hearing at which an immigration judge ruled that he "proved he was not a danger to the community." Decl. of Julia Harumi Mass (Dec. 6, 2017), Ex. 2, Dkt. No. 108-2. The government therefore must release A.H. to his mother because, when A.H. was finally given the opportunity to test the basis for his detention before an immigration judge, he showed that he was not a danger to the community or a flight risk.
The government appears to concede that, if it had given A.H. a prompt hearing following

Case 3:17-cv-03615-VC Document 117 Filed 12/12/17 Page 2 of 3
his rearrest, and if the immigration judge had ruled at that hearing that A.H. was not a danger to the community, the government would have been required to release A.H. to his mother immediately under this Court's preliminary injunction ruling. This is what will happen in the ordinary course: (i) a minor will have a prompt hearing after rearrest at which the government must present evidence that changed circumstances justify the minor's rearrest and continued detention; (ii) the minor must have the opportunity to rebut that showing; and (iii) if the government fails to present sufficient evidence that the minor is now a danger or a flight risk, or if the minor successfully rebuts the government's presentation, the minor will be released back into his sponsor's custody. But in A.H.'s case, the government argues that, having denied A.H. this hearing for six months, it may now refuse to release A.H. to his mother despite the immigration judge's conclusion that A.H. is not a danger to the community, because it has developed doubts, between the time A.H. was arrested and the time he finally got his hearing, about whether his mother is a suitable sponsor. In other words, the government contends that its violation of A.H.'s due process rights empowers it to refuse to release A.H. to his mother.
That argument is not consistent with due process, or with the remedial purpose of this Court's preliminary injunction ruling. Under these unusual circumstances (which appear to involve A.H. only, or perhaps A.H. and one other minor), where the government arrests a noncitizen minor previously placed with his mother, fails to give the minor a prompt hearing, and develops second thoughts about the suitability of the mother as a sponsor at some point during the detention period, it cannot use those second thoughts as a basis for continuing to detain the minor after an immigration judge has finally found that the minor is not a danger to the community. On these unique facts, the immigration judge's determination that A.H. is not a danger to the community must be understood to have restored the status quo that existed prior to the arrest, requiring A.H.'s release. See November 20, 2017 Order at 31-32, Dkt. No. 100.
The government notes that it has appealed the immigration judge's determination that A.H. is not dangerous to the BIA. But the government has not obtained a stay of the immigration judge's order from the BIA, which would be required to continue detaining A.H.
2

Case 3:17-cv-03615-VC Document 117 Filed 12/12/17 Page 3 of 3

pending the appeal of that order. See 8 C.F.R. § 1003.19(i). By no later than December 13, 2017, at 3:00 p.m. Eastern time, the government must inform A.H.'s counsel whether it intends to seek an emergency stay of the immigration judge's ruling from the BIA. If the government does not intend to seek a stay, it must release A.H. by December 13. If the government informs A.H.'s counsel that it intends to seek a stay from the BIA, this ruling will be stayed until December 20, 2017, to allow the government time to seek the stay from the BIA.

IT IS SO ORDERED. Dated: December 12, 2017

______________________________________
VINCE CHHABRIA United States District Judge

3

 
 No. 18-15114
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ILSA SARAVIA, et. al., Plaintiffs-Appellees, versus JEFFERSON B. SESSIONS, III,
Attorney General of the United States, et. al., Defendants-Appellants.

On Appeal From the United States District Court for the Northern District of California The Honorable Judge Vince Chhabria
District Court Case No. 3:17-cv-03615-VC

APPELLEES’ ANSWERING BRIEF

COOLEY LLP MARTIN S. SCHENKER NATHANIEL R. COOPER KATHLYN A. QUERUBIN TREVOR M. KEMPNER 101 California Street, 5th Floor San Francisco, CA 94111-5800 Telephone: (415) 693-2000 Facsimile: (415) 693-2222 Email: mschenker@cooley.com ncooper@cooley.com; kquerubin@cooley.com; tkempner@cooley.com

AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA JULIA HARUMI MASS WILLIAM S. FREEMAN 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437 Email: jmass@aclunc.org wfreeman@aclunc.org
Attorneys for Plaintiffs-Appellees

Attorneys for Plaintiffs-Appellees

ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT JUDY RABINOVITZ (pro hac vice) 125 Broad Street, 18th Floor New York, NY 10004 Telephone: (212) 549-2660 Facsimile: (212) 549-2654 E-mail: jrabinovitz@aclu.org

LAW OFFICES OF HOLLY S. COOPER HOLLY S. COOPER P.O. Box 4358 Davis, CA 95617 Telephone: (530) 574-8200 Facsimile: (530) 752-0822 Email: hscooper@ucdavis.edu

Attorneys for Plaintiffs-Appellees

Attorneys for Plaintiffs-Appellees

ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT STEPHEN B. KANG 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 343-0770 Facsimile: (212) 395-0950 Email: skang@aclu.org
Attorneys for Plaintiffs-Appellees

Table of Contents

Page

I. INTRODUCTION ..................................................................................1
II. STATEMENT OF THE CASE ..............................................................5
A. Statutory and Regulatory Background .........................................5
B. Factual Background .....................................................................8
1. The Named Plaintiffs .........................................................9
2. Facts Concerning the Government’s Policies and Practices with Respect to the Re-Arrest of Juveniles Based on Gang Allegations............................................. 16
C. Proceedings Below.................................................................... 19
III. COUNTER-STATEMENT OF THE ISSUE PRESENTED .............. 23
IV. STANDARD OF REVIEW AND LEGAL STANDARD .................. 23
V. SUMMARY OF THE ARGUMENT.................................................. 24
VI. ARGUMENT....................................................................................... 26
A. The District Court Properly Found That the Government’s Practices Violated the Due Process Rights of A.H. and the Class. ......................................................................................... 26
1. The Private Interests at Stake Are Powerful................... 27
2. The District Court Correctly Found That the Preexisting Procedures Presented an Unacceptably High Risk of Erroneous Deprivation. ............................. 28
a. ORR’s Process for Making Initial Placement Decisions is Fraught with Error............................ 29
b. The Step Down and Reunification Processes Are Opaque and Unilateral, and Deny Class Members Notice and an Opportunity to be Heard. ................................................................... 33
c. Class Members Cannot Obtain Release through the Flores Hearing Process...................... 37
3. The Government Overstates the Burden It Faces in Complying with the Order .............................................. 38
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Table of Contents (continued)

Page

B. The Preliminary Injunction Does Not Conflict With the TVPRA or the Flores Agreement.............................................. 43
C. There is No Dispute that the Remaining Preliminary Injunction Factors Favor the Plaintiffs...................................... 49
VII. CONCLUSION ................................................................................... 52
VIII. STATEMENT OF RELATED CASES .............................................. 54

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Table of Authorities
Page(s)
Cases
All. for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) ....................................................................24
Arc of Cal. v. Douglas, 757 F.3d 975 (9th Cir. 2014) ............................................................... 23, 24
Beltran v. Cardall, 222 F. Supp. 3d 476 (E.D. Va. 2016) .........................................................35
D.B. v. Cardall, 826 F.3d 721 (4th Cir. 2016) ......................................................................28
Elrod v. Burns, 427 U.S. 347 (1976)....................................................................................50
Flores v. Lynch, No. 85-cv-04544-DMG-AGRx (C.D. Cal. Aug. 6, 2015)..........................49
Flores v. Sessions, 862 F.3d 863 (9th Cir. 2017) .............................................................. passim
Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th Cir. 2004) ....................................................................44
Frank v. United Airlines, Inc., 216 F.3d 845 (9th Cir. 2000) ......................................................................50
Goldberg v. Kelly, 397 U.S. 254 (1970)....................................................................................42
Golden Gate Rest. Ass’n v. City & Cty. of S.F., 512 F.3d 1112 (9th Cir. 2008) ....................................................................51
Hernandez v. Sessions, 872 F.3d 976 (9th Cir. 2017) ......................................................... 27, 41, 51
Int’l Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401 (9th Cir. 1985) ....................................................................50 -iii-

Table of Authorities (continued)

Page(s)

Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993) ....................................................................40
Keates v. Koile, ---- F.3d ----, No. 16-cv-16568, 2018 WL 1161890 (9th Cir. Mar. 6, 2018) ..............................................................................................28
Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18 (1981)............................................................................... 28, 42
Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982)....................................................................................42
Lopez v. Heckler, 713 F.2d 1432 (9th Cir. 1983) ....................................................................41
Mathews v. Eldridge, 424 U.S. 319 (1976)............................................................................ passim
Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) ......................................................................50
Reno v. Flores, 507 U.S. 292 (1993)....................................................................................28
Santos v. Smith, 260 F. Supp. 3d 598 (W.D. Va. 2017)................................................. 28, 35
Schall v. Martin, 467 U.S. 253 (1984)............................................................................. 34, 39
Spain v. Procunier, 600 F.2d 189 (9th Cir. 1979) ......................................................................40
Stanley v. Illinois, 405 U.S. 645 (1972)....................................................................................36
Matter of Sugay, 17 I&N Dec. 637 (BIA 1981) .....................................................................39
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Table of Authorities (continued)

Page(s)

Thalheimer v. City of San Diego, 645 F.3d 1109 (9th Cir. 2011) ....................................................................23
United States v. Gill, 264 F.3d 929 (9th Cir. 2001) ......................................................................45
Vasquez v. Rackauckas, 734 F.3d 1025 (9th Cir. 2013) ............................................................ passim
Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005) ......................................................................50
Winter v. Nat’l Res. Def. Council, Inc., 555 U.S. 7 (2008)........................................................................................24
Yamataya v. Fisher, 189 U.S. 86 (1903)......................................................................................44
Zadvydas v. Davis, 533 U.S. 678 (2001)....................................................................................27
Zinermon v. Burch, 494 U.S. 113 (1990)....................................................................................43
Statutes
42 Pa. Stat. Ann. § 6332(a) ..............................................................................34
8 U.S.C. § 1232(b)(3) ............................................................................................4, 48 § 1232(c)(2)(A)................................................................................... passim § 1232(c)(3)(A)............................................................................ 1, 6, 44, 46
Cal. Welf. & Inst. Code § 632(a)-(b)...............................................................34
Colo. Rev. Stat. Ann. § 19-2-508(2)(a) ...........................................................34
D.C. Code Ann. § 16-2312(a)(2) .....................................................................34

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Table of Authorities (continued)

Page(s)

Ga. Code Ann. § 15-11-472(a)-(b) ......................................................................................34 § 15-11-506(b)-(c) ......................................................................................34
Ill. Comp. Stat. Ann. § 405/5-415(1)...............................................................34
Immigration and Nationality Act, 8 U.S.C. § 1226 .........................................46
Mo. Ann. Stat. § 211.061(4) ............................................................................34
N.Y. Fam. Ct. Act § 307.3(4) ..........................................................................34
Pub. L. No. 110-457, § 235, 122 Stat. 5044, 5074-82 (2008) (codified at 8 U.S.C. § 1232)........................................................................5
Tex. Fam. Code Ann. § 54.01(a)-(b) ...............................................................34
Trafficking Victims Protection Reauthorization Act............................... passim
Va. Code Ann. § 16.1-250(A)..........................................................................34
Other Authorities
Mass. Dist. Ct. Standing Order 2-88, Sec. III, paragraph 1.............................34
Mass. R. Crim. P. 7(a)(1).................................................................................34
ORR Guide, “Children Entering the United States Unaccompanied,” https://www.acf.hhs.gov/orr/resource/children-entering-theunited-states-unaccompanied (last visited Mar. 15, 2018) § 1.2.4 ................................................................................................ 6, 7, 16 § 1.2.6 ...........................................................................................................7 § 1.3.2 .........................................................................................................13 § 1.4.2 .................................................................................................. 18, 33 § 2.2.6 .........................................................................................................34 § 2.7 ............................................................................................................18 § 2.9 ........................................................................................................8, 37

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I. INTRODUCTION Plaintiffs are a provisionally-certified class of noncitizen youths who came to the United States as unaccompanied children (“UCs”) and were previously detained in the custody of the United States Office of Refugee Resettlement (“ORR”). ORR released each youth to a parent or other sponsor after concluding that release was in the youth’s best interests and that the sponsor was “capable of providing for the child’s physical and mental wellbeing.” 8 U.S.C. § 1232(c)(3)(A). In the spring of 2017, the Government began re-arresting the Class Members based on allegations of gang membership. ORR, disregarding its prior determinations that these youth were eligible for release, and uncritically accepting flawed allegations of gang affiliation, swiftly transferred them to secure juvenile facilities hundreds or thousands of miles away from their families. Before they were jailed, neither the youth, their families, nor their immigration lawyers were given prior notice of the charges against them or any opportunity to challenge their arrests. Their transfers were often effectuated in mere days, with lawyers and parents frantically contacting Government officers for information about their clients and children, only to discover that the youth had been transported across the country. Following
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their arrests, Class Members spent months in ORR custody without a hearing to contest the basis for their detention.
The District Court’s class-wide preliminary injunction (the “Order”) correctly applied Mathews v. Eldridge and found that before engaging in such severe deprivations of liberty, the Government must provide re-arrested juveniles with a fair hearing before a neutral decisionmaker to contest the allegations against them. As the District Court found, “in the absence of a prompt adversarial hearing . . . there is a serious risk that minors who were appropriately placed with sponsors . . . will . . . erroneously be placed into ORR custody, and without an opportunity to obtain prompt relief.” Order, Record Excerpts (“R.E.”) at 34. The District Court’s carefully-reasoned Order is supported by detailed factual findings based on an extensive evidentiary record.
Numerous Class Members have now received hearings pursuant to the Order. At these “Saravia hearings,” an overwhelming majority—including the three Named Plaintiffs—have been released from detention after showing that they did not present a danger or risk of flight that warranted their continued detention. Absent preliminary relief, all these children would remain wrongfully detained.
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On appeal, the Government does not dispute that the Class Members would suffer irreparable harm in the absence of an injunction; that the balance of hardships favors the Plaintiffs; or that the public interest supports a preliminary injunction. The Government raises only one question: Did the District Court correctly conclude that the Government violated Class Members’ procedural due process rights? Appellants’ Opening Br. (“Opening Br.”), ECF (9th Cir.) 8, at 2. In support, it raises three arguments, none of which has merit.
First, the Government argues that the District Court failed to consider preexisting procedures available to unaccompanied children. To the contrary, the District Court expressly considered the preexisting system, as well as the substantial evidence documenting that system’s numerous flaws, and rightly concluded that it was inadequate.
Second, the Government argues that the Order conflicts with the requirements of the Trafficking Victims Protection Reauthorization Act (“TVPRA”). To the contrary, the Order’s safeguards further the TVPRA’s purpose of ensuring that juveniles are placed “in the least restrictive setting that is in the best interest of the child.” 8 U.S.C. § 1232(c)(2)(A). The Order is also entirely consistent with the TVPRA’s sponsorship provisions because
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every Class Member in this case has a sponsor whom ORR had already deemed suitable to take custody of and provide care for the Class Member. And nothing in the Order requires the Government to hold Class Members in the custody of United States Immigration and Customs Enforcement (“ICE”) for longer than the 72 hours generally authorized by the TVPRA. Even if it did, the Government concedes that it could do so without violating the statute. Order, R.E. at 32; Opening Br. at 28 (“[T]he Government also can avoid violating the TVPRA . . . under the ‘exceptional circumstances’ exception to [8 U.S.C. § 1232(b)(3)]”).
Third, the Government argues that the Order imposes “heavy” and “unnecessary” burdens on the Government. Not only does the Government overstate any burden it would suffer, but, as the District Court found, any minimal burden imposed is “reasonable in light of the government’s asserted interests in public safety and welfare, including the welfare of the minor.” Order, R.E. at 35.
For these reasons, this Court should affirm the District Court’s Order.
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II. STATEMENT OF THE CASE A. Statutory and Regulatory Background
The TVPRA was enacted in 2008 to protect unaccompanied immigrant minors from human trafficking and other criminal activity. See Pub. L. No. 110-457, § 235, 122 Stat. 5044, 5074-82 (2008) (codified at 8 U.S.C. § 1232). Among other things, the TVPRA requires that a UC detained by federal immigration authorities must be transferred to the custody of the Secretary of Health and Human Services (“HHS”) within 72 hours, absent “exceptional circumstances.” ORR, the agency within HHS that is responsible for the care of UCs, is then tasked with ensuring that the UC is “promptly placed in the least restrictive setting that is in the best interest of the child.” 8 U.S.C. § 1232(c)(2)(A).
Unaccompanied children are apprehended by DHS officers after coming to the border, or through arrests in the interior of the United States. With certain exceptions not relevant here, the minor is then put in removal proceedings before an immigration judge to determine whether the minor will have the right to remain in the country. Order, R.E. at 4. In the meantime, the TVPRA requires ORR to identify a placement for the child, consistent with its obligation to put the child in “the least restrictive setting that is” in the
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child’s best interests. See 8 U.S.C. § 1232(c)(2)(A), (3)(A). Often, that placement is with a “sponsor”—frequently a parent or other relative—who is already residing in the United States. Order, R.E. at 4. All Class Members in this case were previously released to sponsors after ORR determined both that it was appropriate to release the minor from custody and that the sponsor was “capable of providing for the child’s physical and mental well-being.” 8 U.S.C. § 1232(c)(3)(A); Order, R.E. at 4-5.
For children in ORR custody, the agency maintains facilities at three levels of security: shelter, “staff-secure” and “secure.” Order, R.E. at 4; Opening Br. at 6-7. The secure facility is “akin to a local juvenile hall”; ORR uses local juvenile halls to house children in secure custody. Order, R.E. at 4. A staff secure facility is somewhat less restrictive, but still employs certain security measures, including a secure perimeter and fence. Suppl. Record Excerpts (“S.R.E.”) at 74-75 (ORR Guide, § 1.2.4).1
The TVPRA provides that “[a] child shall not be placed in a secure facility absent a determination that the child poses a danger to self or others or

1 The ORR Guide, titled “Children Entering the United States

Unaccompanied,”

is

also

available

at

https://www.acf.hhs.gov/orr/resource/children-entering-the-united-states-

unaccompanied (last visited Mar. 15, 2018).

6.

has been charged with having committed a criminal offense.” 8 U.S.C. § 1232(c)(2)(A). The placement decision also requires ORR to consider other factors, such as “risk of flight.” Id. ORR has interpreted this provision to mean that it may place a UC in a secure facility only if a UC “1. poses a danger to self or others; or 2. has been charged with having committed a criminal offense.” S.R.E. at 74-75 (ORR Guide, § 1.2.4). ORR may also determine that the UC in question is not dangerous, and place him in a staff secure facility or shelter care. Id. 74-76 (ORR Guide §§ 1.2.4, 1.2.6). The TVPRA contains a clear mandate that ORR must consider the “best interest of the child” in its placement decisions at all times. 8 U.S.C. § 1232(c)(2)(A).
As of the filing of the First Amended Petition, ORR used only two secure facilities in the entire country: one in Woodland, California (the Yolo County facility); and one in Staunton, Virginia (the Shenandoah Valley facility). S.R.E. at 283-84 (Am. Pet. ¶ 40). If a youth is arrested far from one of these places, the decision to place that youth in a secure facility entails significant travel. See, e.g., S.R.E. at 226 (J.G. Decl., ¶ 20) (describing J.G. being placed on a plane by ICE and transported from New York to Woodland, California); S.R.E. at 325-26 (A.H. Decl., ¶¶14-18).
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Minors in ORR facilities are also protected by the terms of the Flores Decree, a nationwide consent decree that sets national standards for the detention, release, and treatment of all immigrant children in Government custody. See Flores v. Sessions, 862 F.3d 863, 869 (9th Cir. 2017). The Flores Decree provides children in ORR custody with the right to challenge any allegations of danger or flight risk in a hearing before an immigration judge. ORR Guide § 2.9. An immigration judge’s finding that a child poses no risk of danger or flight is relevant to ORR’s placement decision, but the Flores Decree permits ORR to retain the child in custody pending the agency’s own determination of whether the child should be released to his sponsor. ORR Guide § 2.9; S.R.E. at 43 (Holguin Decl., Ex. 2 at 1). B. Factual Background
The following facts are drawn from the District Court’s findings, as well as the extensive documentary evidence and testimony presented regarding Plaintiffs’ motion for class-wide preliminary relief.
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1. The Named Plaintiffs2 A.H. On or about April 26, 2015, Named Plaintiff A.H. entered the United States after fleeing abuse and neglect at the hands of his father in Honduras. S.R.E. at 323 (A.H. Decl., ¶ 2). After approximately a month, ORR released A.H. to live with his mother in Long Island, New York. Id.; Order, R.E. at 5. A.H. lived with his mother for almost two years. Order, R.E. at 5. During this period, he was in removal proceedings represented by counsel and pursuing a path to lawful immigration status. S.R.E. at 330 (Gibbs Decl., ¶ 2). On June 12, 2017, A.H. was arrested by plainclothes ICE officers on the street near his house. Order, R.E. at 6. The warrant for A.H.’s arrest listed removability as the sole basis for his arrest. S.R.E. at 320 (Loechner Decl., ¶ 5). The officers told A.H. that they were arresting him because he had admitted to being in a gang, despite A.H.’s protestations to the contrary. S.R.E. at 324, 327 (A.H. Decl., ¶¶ 9, 23).
2 Although the District Court dismissed J.G. and F.E.’s individual claims without prejudice, Order, R.E. at 17-22, they remain members of the provisionally-certified Class. For ease of reference, Plaintiffs refer to all three collectively as the “Named Plaintiffs.”
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The next morning, A.H. was put on a flight to California, where he was taken to the Yolo County facility. Order, R.E. at 6. ICE transferred him without providing any prior notice to his immigration lawyer, or to his family. S.R.E. at 333-34 (Gibbs Decl., ¶¶ 19-27). A.H.’s lawyer only obtained information about his whereabouts after numerous inquiries to ORR officials, who only told her of A.H.’s transfer after he was already in California. Id.
ICE told ORR to place A.H. in secure detention “per the new policy.” S.R.E. at 210; see also R.E. at 333-34 (June 29, 2017 Hr’g Tr.); S.R.E. at 190208 (Sini Test.). Prior to the transfer, ICE reported to ORR that A.H. was affiliated with a gang, and provided ORR with a criminal history summary. Order, R.E. at 6. That summary incorrectly reported the date of A.H.’s pending juvenile charges, stating that they had occurred only a few weeks prior to his arrest by ICE. Id. In fact, the arrests had occurred in 2016, approximately a year prior to his arrest by ICE. Id. The summary also failed to acknowledge that all of A.H.’s charges were “adjourned in contemplation of dismissal.” Id. Those charges have since been dismissed. Id. at 6, n.2.
ORR did not question ICE’s instructions or conduct any independent inquiry to verify whether ICE’s allegations concerning A.H.’s juvenile history were correct. R.E. at 380-82 (June 29, 2017 Hr’g Tr.). A.H. initiated
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the instant lawsuit by filing a petition for writ of habeas corpus on June 22, 2017. See ECF (N.D. Cal.) 1. Following initial proceedings on this petition, ORR transferred A.H. to a less restrictive facility in Dobbs Ferry, New York. S.R.E. at 248 (Suppl. Saravia Decl., ¶ 7). A.H. then remained in detention for months while ORR reassessed his mother as a sponsor, despite already having approved her upon A.H.’s initial entry into the country. S.R.E. at 248-49 (Suppl. Saravia Decl., ¶¶ 8-12). Subsequent to the District Court’s Order, A.H. received a Saravia hearing and was released after an immigration judge found that he presented no risk of flight or danger sufficient to justify his secure detention. See Appellees’ Request for Judicial Notice (“RJN”), Ex. 1 at 2.
F.E. F.E. was born in El Salvador in 2000 and came to the United States in 2014, after local gang members threatened his life. S.R.E. at 237 (F.E. Decl., ¶¶ 1-4). At that time, ORR facilitated F.E.’s reunification with his mother in about three days. S.R.E. at 245 (M.U. Decl., ¶ 14); S.R.E. at 48-52 (F.E.’s ORR reunification documents). He lived with his mother in Brentwood, New York, and attended a local high school. S.R.E. at 237 (F.E. Decl., ¶ 4).
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In February 2017, a school resource officer accused F.E. of “loitering” in the hallways. S.R.E. at 237-38 (F.E. Decl., ¶ 6). The officer searched F.E. and found a piece of paper with the number “503” written on it—the area code of his home country. Id. F.E. was suspended for several days and, after that, the local police began harassing and stopping him on the streets. S.R.E. at 238 (F.E. Decl., ¶ 7). F.E. requested two meetings with the police to explain that he was not a gang member, but the harassment continued. Id. (F.E. Decl., ¶ 9).
On June 9, 2017, F.E. was walking home with his friend from playing soccer when he was stopped by police officers, who told him he was “acting stupid” and arrested him on a juvenile charge of disorderly conduct (a noncriminal violation under New York law). Id. (F.E. Decl., ¶ 10); S.R.E. at 252 (Johnson Decl., ¶ 5). Shortly thereafter, ICE agents came to his home and rearrested him, telling him that “because you aren’t legal[,] I need to give you to immigration. You’ll probably be deported.” S.R.E. at 239 (F.E. Decl., ¶ 13); S.R.E. at 253 (Johnson Decl., ¶ 7).
ICE classified F.E. as a gang member because he had written “503” on his school notebook, and because he had allegedly been seen “associating with known gang members at school and in the community.” Order, R.E. at
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34; R.E. at 434-36 (Decl. of Joe Pisciotta (F.E.) at 2-5). The ICE officer who explained this classification admitted under oath that he had no personal or indirect knowledge of the facts supporting F.E.’s alleged gang membership; that he had never interviewed or even met F.E. personally; and that display of “503” is an inconclusive indicator of gang affiliation. R.E. at 211-13 (Oct. 27, 2017 Hr’g Tr.).
F.E. was transported to a secure detention facility in Virginia. Order, R.E. at 34. In sending him there, ORR overrode its own placement tool, which indicated that he should not have been placed in secure detention.3 See S.R.E. at 58-60. He was held there until July 6, 2017, when he was transferred to a lower-security detention facility in Fairfield, California. S.R.E. at 240 (F.E. Decl., ¶ 19). Notably, staff at both the Shenandoah and Fairfield facilities acknowledged that they “do not have any evidence confirming that [F.E.] is a gang member.” S.R.E. at 254, 260 (Johnson Decl., ¶ 12(a), Ex. 4). Likewise, ORR staff recommended his release from ORR custody and return to his sponsor. S.R.E. at 7-9, 11-13.
3 ORR’s Placement Score is a risk assessment matrix that helps inform ORR of the level of recommended detention for each child. ORR Guide § 1.3.2.
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F.E.’s mother and attorney worked for months to bring F.E. home. S.R.E. at 254 (Johnson Decl., ¶ 11); S.R.E. at 243-45 (M.U. Decl., ¶¶ 4-16). Despite a positive home study by an ORR-contracted case worker and recommendations from both facility and ORR staff that F.E. be released, ORR delayed its decision with constant and repetitive requests for information. S.R.E. at 256-57 (Johnson Decl., ¶ 12(k)); S.R.E. at 7-9. Finally, on October 11, 2017, ORR Director E. Scott Lloyd denied F.E.’s reunification request, citing his alleged gang affiliation. S.R.E. at 36-39 (F.E. Reunification Denial Letter).
The day after the preliminary injunction issued, F.E. won his Saravia hearing and was released from custody. RJN, Ex. 2.
J.G. J.G. was born in El Salvador in 2000 and came to the United States in 2015 after gang members threatened him and beat him up, breaking his arm. S.R.E. at 223 (J.G. Decl., ¶¶ 1-3). Upon coming to the United States, he was apprehended by immigration authorities and detained by ORR. S.R.E. at 223-24 (J.G. Decl. ¶ 5); S.R.E. at 66-67 (Nanos Decl., Ex. 1). Within a month, ORR released him to his mother’s care in Brentwood, New York. She took good care of him, even changing her work schedule so she
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could spend more time with him. S.R.E. at 231 (Gomez Decl., ¶¶ 3-5); S.R.E. at 225 (J.G. Decl., ¶ 11).
On April 19, 2017, J.G. was stopped by local police while walking to a deli with a friend; the officer alleged J.G. was a gang member because he was wearing a Salvadoran soccer jersey. S.R.E. at 225 (J.G. Decl., ¶¶ 12-13). The police insulted him, threatened him with deportation, and ultimately arrested him on the charge of “false personation.” S.R.E. at 225-26 (Id. ¶¶ 12-16); S.R.E. at 231 (Gomez Decl., ¶ 7).
After his release from local custody, ICE arrested him, put him on a plane, and transported him thousands of miles away to the Yolo facility. See S.R.E. at 225-26 (J.G. Decl., ¶¶ 15-20); S.R.E. at 271-72 (Nanos Decl., ¶¶ 1415). The ORR intake matrix designated J.G. as appropriate for a medium or “staff secure” placement, but ORR officials overrode that recommendation and placed him in secure custody. S.R.E. at 61-63. J.G. remained at the juvenile detention center in Woodland for over one month, during which time Yolo County never received corroboration of J.G.’s alleged gang activity. See S.R.E. at 188. On July 26, 2017, he was transferred to a lower-security facility in Washington state. S.R.E. at 227 (J.G. Decl. ¶ 23).
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Facility staff described J.G. as “a very positive and respectful individual,” who “has not demonstrated any concerning behaviors,” and “showed no signs that he is part of the MS-13 gang.” S.R.E. at 53-55. In a positive home study report dated August 27, 2017, an ORR contractor recommended that J.G. be released to his mother. S.R.E. at 56-57. But ORR kept J.G. in custody until an immigration judge ordered his release following his Saravia hearing on December 11, 2017. See RJN, Ex. 1, at 2.
2. Facts Concerning the Government’s Policies and Practices with Respect to the Re-Arrest of Juveniles Based on Gang Allegations
The District Court found that the Named Plaintiffs’ experiences are typical of other juveniles detained on the basis of unsubstantiated gang allegations. Order, R.E. at 2-3. Many of the Class Members were arrested as part of “Operation Matador,” a joint initiative between ICE and local law enforcement in the New York area targeting alleged MS-13 gang members. Order, R.E. at 3. Operation Matador began in June 2017, the same month that ORR amended its detention policies to add “gang involvement” to the list of bases to place juveniles in secure custody. ORR Guide § 1.2.4; see also S.R.E. at 32 (ORR policy stating that “all [UCs] identified as having current or past gang affiliation are placed in secure facilities.”). Local officials in
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New York stated publicly that DHS uses “its immigration enforcement tools” in cases “when [local police are] not able to effectuate a criminal arrest.” S.R.E. at 200 (Sini Test.).4
ICE’s classifications of gang membership were based on various forms of circumstantial evidence, such as being seen with alleged gang members, or wearing certain types of clothing, shoes, or colors. ICE also relied heavily on supposed “self-admissions” by the Class Members that they were gang affiliated. See R.E. at 428 (Pisciotta Decl. (A.H.), ¶ 5); R.E. at 443 (Pisciotta Decl. (J.G.), ¶ 4(a)). However, expert testimony in the record showed that such evidence was highly unreliable as a method of identification. S.R.E. at 19, 22-28 (Cruz Decl., ¶¶ 17, 28-49). In addition, law enforcement and school officers had a tendency to “label[] all things rooted in Latin American culture as gang significant,” such as phone numbers, wearing certain colors, and social media postings. S.R.E. at 21 (Cruz Decl., ¶ 23).
In making secure placement determinations, ORR accepted ICE’s allegations of dangerousness without conducting any independent
4 The Government has since continued to arrest noncitizens who came to the United States as unaccompanied minors on allegations of gang affiliation. See Order, R.E. at 39 & n.18 (citing to news reports and releases on “Operation Raging Bull”).
17.

investigation. See R.E. at 381 (June 29, 2017 Hr’g Tr.); S.R.E. at 313-17 (ORR Letter re: A.H.). Once a Class Member was placed in secure detention, ORR’s only check on the level of detention was a unilateral 30-day review process that might result in a “step-down” to a less secure facility. ORR Guide § 1.4.2. The District Court noted “[It is] not clear . . . that the sponsor with an interest in the minor’s release could participate in any of the government’s existing processes, or that the result of a successful challenge to the basis for the minor’s arrest and detention would be an immediate return to the sponsor already deemed suitable.” Order, R.E. at 33-34 (emphasis added).
ORR personnel and the staff of the ORR-contracted secure facilities attempted to corroborate the allegations of dangerousness against the Class Members. In response, ICE and local police were frequently unable to provide any corroboration of the juveniles’ alleged gang affiliation. See S.R.E. at 184-85 (Yolo County Chief Probation Officer admitting that Yolo “could not verify gang affiliations for most of the [UCs] sent to Yolo.”).
In June 2017, ORR also amended its rules to require approval from the Director of ORR before reunifying any juvenile who is, or previously was, held in a secure or staff secure facility. ORR Guide § 2.7. This process,
18.

combined with the automatic placement of any UC accused of gang membership into secure detention, meant that no alleged gang member could be released without the approval of the ORR Director. Plaintiffs are not aware of the Director ever providing such approval. C. Proceedings Below
On June 22, 2017, A.H. filed a habeas petition for his release from ORR custody. See ECF (N.D. Cal.) 1. A.H. sought a temporary restraining order (“TRO”) seeking release, or, alternatively, that he be given an opportunity to contest the allegations that the Government was using to justify his confinement. ECF (N.D. Cal.) 7. After a lengthy hearing, which included testimony from ORR officials, the District Court found that, because ORR had “already . . . made a decision that [A.H.] could be placed with [his] mother,” ORR had “an obligation to investigate the information it was receiving from DHS about A.H.,” and to ensure that A.H. was placed in “the least restrictive setting that is in the best interests of the child.” R.E. at 41516 (June 29, 2017 Hearing Tr.). Accordingly, the District Court ordered ORR to check the accuracy of the information it received from ICE, provide him a hearing where he could contest the allegations against him, and determine whether his continued detention was proper. Id. at 417-18. After the TRO
19.

issued, A.H. was “stepped down” to a staff-secure facility in New York, though still over 50 miles from his mother, whom he was still only able to see every two weeks for two hours at a time. S.R.E. at 248 (Suppl. Saravia Decl., ¶ 7).
Named Plaintiffs then filed an Amended Petition on behalf of themselves and a putative class of similarly situated UCs who had likewise been re-arrested on allegations of gang affiliation. S.R.E. at 274-311 (Am. Pet.). After expedited discovery, the Plaintiffs filed a Motion for Preliminary Injunction and Provisional Class Certification. See Joint Case Management Statement, ECF (N.D. Cal.) 35; see also ECF (N.D. Cal.) 38, 61, 67, 73.5
On October 27, 2017, the District Court held a hearing on the Plaintiffs’ motions. ECF (N.D. Cal.) 84, R.E. at 145-328 (Oct. 27, 2017 Hr’g Tr.). The Court heard testimony from Joseph Pisciotta, an ICE agent, and Jonathan White, an ORR employee, related to the Government’s practices at issue in this case. Id. The District Court heard additional argument at a
5 Plaintiffs’ Motion sought classwide relief under the Fourth Amendment, the Fifth Amendment, and the TVPRA, challenging both ICE’s arrests of the Class Members as well as their subsequent detention without adequate process. See ECF (N.D. Cal.) 61-1 at 2. The Motion also sought the three Named Plaintiffs’ immediate release from custody. Id.
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further hearing. ECF (N.D. Cal.) 95; see also Nov. 9, 2017 Hearing Tr., R.E. at 54-144.
On November 20, 2017, the District Court issued a class-wide preliminary injunction, and held that the Government violated Plaintiffs’ rights to procedural due process. Order, R.E. at 1-44.6 The District Court concluded that, in order for the Government to justify arresting a Class Member, taking him away from his previously-approved sponsor, and placing him in secure detention, there must be a showing that the “circumstances relevant to” the Government’s original placement decision had “changed.” Id. at 30. The District Court found that “due process requires the government to give the minor a prompt hearing before an immigration judge or other neutral decisionmaker, where the government must set forth the basis for its decision to rearrest the minor, and where the minor and his sponsor may seek to rebut the government’s showing.” Id. at 27.
6 The class is defined as a class of noncitizen minors who: “(1) [] came to the country as an unaccompanied minor; (2) [were] previously detained in ORR custody and then released by ORR to a sponsor; (3) [were or are] rearrested by DHS on the basis of a removability warrant on or after April 1, 2017 on allegations of gang affiliation.” Order, R.E. at 38. The Government has not contested the District Court’s class certification decision on appeal.
21.

The Government provided the Class Members with the “Saravia hearings” the Order requires. See RJN, Ex. 1. Numerous Class Members, finally given a meaningful opportunity to contest this evidence, established that the evidence on which the Government had been relying was insufficient. As of December 22, 2017, 26 of 29 Class Members who had completed Saravia hearings were ordered released after immigration judges found insufficient evidence of each Class Member’s gang affiliation or other indicia of dangerousness or flight risk. Id.; see also RJN, Ex. 2 (Order issued by immigration judge ordering Named Plaintiff F.E.’s release).7
7 On December 22, 2017, the Government filed a report with the Court concerning the results of the hearings held to date. See RJN, Ex. 1. That report stated that 25 children had received findings from immigration judges that they did not present flight risks or dangers warranting their detention. Id. F.E. was omitted from the Government’s chart, but he had previously won his hearing the day after the Order issued. RJN, Ex. 2.
Of the three Class Members who had hearings but were not released, the Chart notes one had a prior removal order that the immigration judge stated warranted his re-arrest. However, the Judge noted that this child had a pending motion to reopen that order.
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III. COUNTER-STATEMENT OF THE ISSUE PRESENTED 1. Did the District Court abuse its discretion when it issued a
preliminary injunction requiring the Government to provide a prompt hearing to unaccompanied children who, having previously been released to the care and custody of an approved sponsor, are re-arrested based on gang allegations? IV. STANDARD OF REVIEW AND LEGAL STANDARD The District Court’s decision to grant a preliminary injunction is reviewed for abuse of discretion. Thalheimer v. City of San Diego, 645 F.3d 1109, 1115 (9th Cir. 2011). This standard of review is highly deferential. Id. “Under this standard, as long as the district court got the law right, it will not be reversed simply because the appellate court would have arrived at a different result if it had applied the law to the facts of the case.” Id. (internal quotation and citation omitted). This Court reviews legal conclusions de novo, and factual findings for clear error. Vazsquez v. Rackauckas, 734 F.3d 1025, 1041-42 (9th Cir. 2013). A district court’s factual findings must be affirmed unless they are “illogical, implausible, or without support . . . in the record.” Arc of Cal. v. Douglas, 757 F.3d 975, 983-84 (9th Cir. 2014) (internal quotations and citation omitted). To obtain a preliminary injunction, a plaintiff must establish (1) “that he is likely to succeed on the merits,” (2) “that he is likely to suffer irreparable harm in the absence of preliminary relief,” (3) “that the balance of
23.

equities tips in his favor,” and (4) “that an injunction is in the public interest.” Winter v. Nat’l Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (citations omitted). This Court evaluates these factors on a “sliding scale.” Arc of Cal., 757 F.3d at 983 (internal quotation and citation omitted). Thus, a “stronger showing of irreparable harm to plaintiff might offset a lesser showing of likelihood of success on the merits.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). Regardless, “the moving party [must] demonstrate a fair chance of success on the merits or questions serious enough to require litigation.” Arc of Cal., 757 F.3d at 993-94 (internal quotation and citation omitted).
V. SUMMARY OF THE ARGUMENT This Court should affirm the District Court’s Order, which crafted a targeted and limited injunction ordering processes necessary to safeguard the due process rights of the Class Members. First, the Government does not dispute that the familiar balancing framework in Mathews v. Eldridge, 424 U.S. 319 (1976), supplies the governing legal standard; it argues only that the District Court erred in determining that “existing procedures applicable to class members” were insufficient to “satisfy due process.” Opening Br. at 20. To the contrary, the
24.

District Court carefully evaluated all of those procedures based on a rich record and concluded that they created a serious risk that Class Members would be unjustifiably detained. This is especially so because assessing whether a juvenile is an active gang member is a “fact-intensive” and nuanced question that “heighten[s] the need for careful factfinding.” Vasquez, 734 F.3d at 1045-46. As to this determination, the Government has failed to show that the District Court abused its discretion.
Second, the Government asserts that the Order’s procedures conflict with the statutory framework governing the treatment of unaccompanied children, but the opposite is true. The Order’s safeguards actually further the statutory mandate that ORR place unaccompanied children in the “least restrictive setting that is in the best interest of the child.” 8 U.S.C. § 1232(c)(2)(A). The Order is also entirely consistent with the TVPRA’s sponsor reunification provisions because nothing in the statute requires that ORR reassess the suitability of a sponsor it has already approved following the child’s unjustified arrest. The Government also argues that the Order might require Plaintiffs to remain in ICE custody for longer than the 72 hours generally authorized by the TVPRA while they await their hearings. In fact, the Order contains no such requirement. And even if ICE determined that it
25.

needed to hold juveniles for longer than 72 hours pending their hearings, the Government concedes that doing so would not violate the statute. Order, R.E. at 32; Opening Br. at 28 (“[T]he Government also can avoid violating the TVPRA . . . under the ‘exceptional circumstances’ exception.”).
Third, the Government claims that the Order “impose[s] a significant burden” on its resources, Opening Br. at 25, but any burdens the Order places on the Government are minor, and are justified by the Government’s responsibility to protect against erroneous deprivations of liberty.
Finally, the Government has waived any argument as to the remaining preliminary injunction factors. The District Court rightly found that those factors favored granting a preliminary injunction here, particularly in light of the grave risk of irreparable harm to the Class Members.
VI. ARGUMENT A. The District Court Properly Found That the Government’s
Practices Violated the Due Process Rights of A.H. and the Class. The District Court correctly concluded that the challenged practices violated A.H.’s right to procedural due process, and fashioned a remedy that appropriately protects his and other Class Members’ rights. In doing so, the District Court applied the three-pronged test laid out in Mathews v. Eldridge, which the Government agrees provides the applicable legal standard.
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Opening Br. at 21, 25. This test requires consideration of: (1) “the private interest that will be affected by the official action”; (2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards”; and (3) “the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews, 424 U.S. at 335. The Government argues that the District Court incorrectly weighed these considerations, but fails to establish that the District Court erred at all, much less abused its discretion.
1. The Private Interests at Stake Are Powerful. This case implicates two fundamental private interests: the freedom from bodily restraint and the right to family integrity. “Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty” interest the Due Process Clause safeguards. Zadvydas v. Davis, 533 U.S. 678, 690 (2001); see also Hernandez v. Sessions, 872 F.3d 976, 981 (9th Cir. 2017) (characterizing freedom from confinement as a “fundamental” liberty interest). Similarly, the right to family integrity is “perhaps the oldest of the fundamental liberty
27.

interests recognized by [the Supreme] Court.” Keates v. Koile, ---- F.3d ----,
No. 16-cv-16568, 2018 WL 1161890, at *5 (9th Cir. Mar. 6, 2018) (internal
quotation and citations omitted); see also Lassiter v. Dep’t of Soc. Servs., 452
U.S. 18, 27-28 (1981) (“[A] parent’s desire for and right to the
companionship, care, custody and management of his or her children . . .
undeniably warrants deference and, absent a powerful countervailing interest, protection.”).8 Consequently, “under the first Mathews factor, Plaintiffs’
interests are truly weighty.” Vasquez v. Rackauckas, 734 F.3d 1025, 1045
(9th Cir. 2013).
2. The District Court Correctly Found That the Preexisting Procedures Presented an Unacceptably High Risk of Erroneous Deprivation.
The Government argues that the District Court “did not consider
[preexisting ORR] procedures” in issuing its Order and injunction. Opening
8 The Government does not seriously dispute the gravity of the private interests at stake, and instead suggests that those interests are attenuated here because children are “‘always in some form of custody.’” Opening Br. at 2223 (quoting Order, R.E. at 29). To the contrary, “[c]hildren, too, have a core liberty interest in remaining free.” Reno v. Flores, 507 U.S. 292, 316 (1993) (O’Connor, J., concurring). The Class Members here were detained in secure, jail-like facilities, and were seeking reunification with their parents and family members. Those liberty interests are undeniably powerful. See D.B. v. Cardall, 826 F.3d 721, 742 (4th Cir. 2016); Santos v. Smith, 260 F. Supp. 3d 598, 611 (W.D. Va. 2017).
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Br., at 23. To the contrary, the District Court thoroughly reviewed ORR’s procedures, see, e.g., Order, R.E. at 3-8, 27, 34, and found them seriously inadequate. Id., R.E. at 33. Specifically, the District Court determined that the Government’s previous procedures suffered from two fatal flaws: first, the Government relied on “insufficiently substantial allegations of gang affiliation” to justify its initial arrest and placement decisions; and second, it provided no way for Class Members to meaningfully challenge those allegations. Order, R.E. at 34 (noting that preexisting procedures lacked “the necessary adversarial factfinding” to minimize the risk of error). The result was a system that lacked even “minimal protections . . . to ensure that a minor is not erroneously taken away from his family, [and] transported across the country to a high-security facility.” Order, R.E. at 32.
a. ORR’s Process for Making Initial Placement Decisions is Fraught with Error.
The District Court’s finding that the preexisting ORR placement process was insufficient to safeguard the liberty interests of the Class Members was supported by ample evidence of the numerous defects in the Government’s preexisting processes. First, ORR placed the Class Members in highly restrictive, jail-like settings based entirely on ICE’s unsupported and unspecific allegations of gang affiliation. R.E. at 381 (June 29, 2017 Hr’g
29.

Tr.). ORR’s own officials repeatedly testified that they conducted no independent evaluation of ICE’s allegations, and were unable to even examine the evidence underlying those allegations. Id.; see also R.E. at 26667 (Oct. 27, 2017 Hr’g Tr.) As a result, the Class Members were whisked across the country and put in jail-like facilities with no notice of the charges against them and no notice to their lawyers or family members.
The nature of the allegations at issue made the risk of unjustified detention even more likely. Order, R.E. at 34. As this Court has explained, “[d]etermining whether an individual is an active gang member presents a considerable risk of error.” Vasquez, 734 F.3d at 1046. “The informal structure of gangs, the often fleeting nature of gang membership, and the lack of objective criteria in making the assessment all heighten the need for careful factfinding.” Id. (observing that gangs are “secretive, loosely defined associations” whose membership is “continually changing”) (internal quotation and citations omitted).
ICE’s methods of determining gang affiliation were rife with defects. Joseph Pisciotta, the ICE officer who testified regarding the Named Plaintiffs’ gang allegations, stated that ICE classifies a person as a gang member if they meet “two or more” of certain criteria, including: being seen “displaying
30.

gang signs/symbols;” “frequent[ing] an area” where other gang members are seen; or being seen “wearing gang apparel.” R.E. at 427-28. Pisciotta testified that rosary beads; the colors red, blue, and black; wearing Nike shoes; and even F.E.’s written notation of his country’s area code could be indicia of gang membership. Id., R.E. at 426-44; see also R.E. at 207-09, 211-13 (Oct. 27, 2017 Hr’g Tr.).
Plaintiffs’ gang expert found that these methods were gravely flawed. Among other reasons, these methods failed to corroborate evidence of alleged “self-admissions” with specific and reliable details, and mistook the mere emulation of media figures and “pride for one’s home country” as evidence of actual gang affiliation. S.R.E. at 18-21 (Cruz Decl., ¶¶ 12, 17-19, 22-23). Plaintiffs’ expert also explained that being seen with alleged gang members could simply be the “natural consequence[] of living in a community where gangs are present.” S.R.E. at 19 (Cruz Decl., ¶ 17); see also Vasquez, 734 F.3d at 1047 (“Distinguishing an individual's social association with a gang member on a familial or friendship—i.e. non-gang related—basis, from an association with the gang as an organization is [] a nuanced task.”). What is more, Mr. Pisciotta himself acknowledged that his classifications were based on reports produced by unnamed others and conversations with unnamed
31.

officers, without independent evaluation as to those reports’ reliability, and no direct interviews with the Plaintiffs or anyone who had even met them. R.E. at 200-30 (Oct. 27, 2017 Hr’g Tr.).
Even the Government’s own contractors agreed that the evidence of the Class Members’ gang affiliation did not support their placement in secure custody. Brent Cardall, the official who oversees the Yolo secure facility (where A.H. and J.G. were held), attempted to corroborate the evidence of gang membership of numerous Class Members referred to his custody, and concluded that he “did not have just cause to keep most of the undocumented minors . . . in secure custody.” Order, R.E. at 15; see also S.R.E. at 182-88. Despite the best efforts of his staff, he received no information from the Government that corroborated the alleged gang membership of at least seven Class Members within 30 days of sending them to Yolo. S.R.E. at 182-85. Cardall also admitted that, as of August 26, 2017, months after many Class Members had been arrested and sent across the country to his facility, Yolo still had not received corroboration of gang affiliation justifying secure detention for most Class Members in its custody. S.R.E. at 185. See also, e.g., S.R.E. at 53-54 (Yolo was not provided “any criminal history records” or “any legal documentation stating that [J.G.] is an MS-13 gang member”.);
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S.R.E. at 64 (official in charge of facility detaining F.E. noting that “[w]hile in our care . . . [F.E.] does not show evidence of being associated [with] or part of any gang or other similar criminal organization.”); S.R.E. at 260 (Johnson Decl., Ex. 4) (F.E. case manager noting that she does not “have any evidence confirming that [F.E.] is a gang member.”).
b. The Step Down and Reunification Processes Are Opaque and Unilateral, and Deny Class Members Notice and an Opportunity to be Heard.
The District Court properly found that “on the current record, existing ORR procedures”—including step down hearings and reunification processes—“appear to be inadequate” to “protect against the risk of minors being erroneously taken away from their sponsors . . . .” Order, R.E. at 33. The District Court’s finding was amply supported by the record.
The Government cites its monthly review process for children held in secure custody as providing sufficient procedural protections, Opening Br. at 22, but fails to note that this process is entirely unilateral. This process offers the juvenile no notice of the charges against him, no opportunity to answer those charges before a neutral decisionmaker, and no chance for the child’s counsel or family to participate. See ORR Guide § 1.4.2 (describing placement review and step down process); S.R.E. at 327-28 (A.H. Decl., ¶ 23)
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(no information provided to A.H. about basis for government’s belief that he is in a gang); see also Order, R.E. at 33-34 (District Court finding that it was
not clear that a sponsor with an interest in a minor’s release could participate in ORR processes). Far from facilitating prompt review of ORR’s detention decisions akin to that provided in the juvenile delinquency context, this unilateral process takes a month to complete.9 Cf. Schall v. Martin, 467 U.S. 253, 277 (1984).
Even if successful, the “step down” process can only lower the restrictiveness of the facility in which a UC is housed; it will not result in the
child’s release. ORR engages in a separate process for approving release to a sponsor, which is known as the “reunification” process. ORR Guide § 2.2.6 (referring to “reunification packet” submitted by family member seeking
9 The Government has pointed to no juvenile custody regime in the entire country that operates as unilaterally or slowly as its previous system. Indeed, the Order’s requirements merely bring ORR’s custody regime in line with the juvenile justice system, which requires prompt hearings where juveniles can challenge their detention. See, e.g., Cal. Welf. & Inst. Code § 632(a)-(b); Colo. Rev. Stat. Ann. § 19-2-508(2)(a); D.C. Code Ann. § 16-2312(a)(2); 705 Ill. Comp. Stat. Ann. § 405/5-415(1): Ga. Code Ann. § 15-11-472(a)-(b); Ga. Code Ann. §§ 15-11-506(b)-(c); Mass. Dist. Ct. Standing Order 2-88, Sec. III, paragraph 1; Mass. R. Crim. P. 7(a)(1); Mo. Ann. Stat. § 211.061(4); N.Y. Fam. Ct. Act § 307.3(4); Ohio R. Juv. P. 7(F); 42 Pa. Stat. Ann. § 6332(a); Tex. Fam. Code Ann. § 54.01(a)-(b); Va. Code Ann. § 16.1-250(A).
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custody of UC); Beltran v. Cardall, 222 F. Supp. 3d 476, 479 (E.D. Va. 2016) (reviewing challenge to “ORR’s family reunification procedures”).
Although the Government suggests that the reunification process affords “adequate[]” protection for UCs, Opening Br. at 23, this process suffers from significant flaws. Multiple courts have criticized ORR’s procedures as “opaque” and “extremely troubling.” Beltran, 222 F. Supp. 3d at 485; Santos v. Smith, 260 F. Supp. 3d 598, 614 (W.D. Va. 2017). Among other deficiencies, sponsors are not given any notice of the evidence or factual findings ORR relies upon to deny reunification, and there are “very lengthy delays in processing” requests for reunification. Santos, 260 F. Supp. 3d at 613-14; Beltran, 222 F. Supp. at 486-87 (observing that ORR’s then-existing reunification procedures “[v]irtually all . . . consisted of internal evaluation and unilateral investigation”). ORR also denies reunification without providing the sponsor a hearing to contest the agency’s evidence or allegations. Santos, 260 F. Supp. 3d at 613; Beltran, 222 F. Supp. 3d at 486 (stating that “ORR owed Petitioner some form of adversarial process.”). And, despite the powerful liberty interests at stake, ORR wrongly puts “the burden of initiation and persuasion” on the sponsor. Santos, 260 F. Supp. 3d at 613; Beltran, 222 F. Supp. 3d at 485 (“Once the government decides to withhold a
35.

child from a parent’s care, the state has the burden to initiate proceedings to justify its action.”) (citing, inter alia, Stanley v. Illinois, 405 U.S. 645, 656-57 (1972)).
The Named Plaintiffs’ experiences with the reunification process embody all of these flaws. Ilsa Saravia, A.H.’s mother, submitted a reunification packet that required her to duplicate information she had previously submitted. S.R.E. at 248 (Suppl. Saravia Decl., ¶¶ 2-5). She acquiesced to a required home study, which ORR informed her she had failed, without providing any reasons. See S.R.E. at 249 (Suppl. Saravia Decl., ¶¶ 910). Similarly, ORR required F.E.’s mother to submit and resubmit information in support of her reunification application, as well as respond to repeated requests for new information. S.R.E. at 255 (Johnson Decl., ¶ 12(c)); S.R.E. at 244-45 (M.U. Decl., ¶¶ 7-11). She also consented to a home study that resulted in a positive finding, corroborating multiple recommendations by facility and ORR staff that F.E. be released to his mother’s care. S.R.E. at 245 (M.U. Decl., ¶ 12). After months, ORR denied her reunification application, deeming F.E.’s mother an unfit sponsor based on the same faulty gang allegations that led to F.E.’s placement in secure
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custody in the first place. S.R.E. at 245 (M.U. Decl., ¶¶ 12, 15-16). See S.R.E. at 36-39 (F.E. Reunification Denial Letter).
c. Class Members Cannot Obtain Release through the Flores Hearing Process.
The Government also argues that hearings available pursuant to the Flores Decree provided a means for Class Members to challenge their detention. See Opening Br. at 22-23. But Flores hearings cannot afford complete relief to the Class Members because winning such a hearing does not necessarily result in a juvenile’s release. Order, R.E. at 33-34 (“[T]he right to challenge a finding of dangerousness in a Flores bond hearing” and other ORR procedures do not result in “return to the sponsor already deemed suitable.”); see also Flores, 862 F.3d at 878 (explaining that “there must still be a separate decision with respect to the implementation of the child’s appropriate care and custody”). The Government does not dispute, and in fact insists, that it retains the authority to continue to detain a juvenile even if he wins a Flores hearing and obtains a finding that he is not dangerous. See Opening Br., at 22; ORR Guide, § 2.9; S.R.E. at 43 (e-mail from ORR stating that bond hearings “cannot order a UAC released from ORR. For UAC in shelter care, group homes, and in some cases staff secure facilities, ORR has already determined that the UAC is not a danger, and a bond hearing would
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have no effect.”) (emphasis added).10 Thus, any Class Member who prevailed in a Flores hearing would be still be subject to ORR’s reunification process and the ORR Director’s approval prior to being released and reunited with his or her sponsor.
The District Court’s conclusion that ORR’s lengthy, opaque, and unilateral processes did not provide adequate safeguards against erroneous deprivations of liberty was well supported by the evidence in the record. See Order, R.E. at 33-34.
3. The Government Overstates the Burden It Faces in Complying with the Order
The protection afforded by the Order’s safeguards heavily outweigh any burden placed on the Government. Mathews, 424 U.S. at 335. The District Court rightly found that the procedural protections required by the Order will not “impose any significant burden on the federal government;” that the process required by its ruling would be “less cumbersome than” beginning the sponsor approval process anew; and that any “burden is reasonable in light of the government’s asserted interests in public safety and
10 The record also raises doubts as to whether a Class Member could even receive a Flores hearing on a reasonable timeline. See S.R.E. at 257 (Johnson Decl., ¶ 14).
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welfare, including the welfare of the minor.” Order, R.E. at 35. Indeed, the District Court ordered a process analogous to that available to adults who are
re-arrested after posting bond pending removal proceedings. Order, R.E. at 30-31.11 The District Court also left the Government significant flexibility in implementing the Order. See Order, R.E. at 32-33.
In light of these findings, none of the Government’s claims of burden are persuasive. First, the Government asserts that “ORR [] does not have any facilities . . . that are able to hold minors in secure custody . . . in the New York area,” where many Class Members’ arrests took place. Opening Br. at
26-27. This assumes that the Class Members must be held in secure custody in the first place, contrary to ORR’s own initial placement recommendations, which indicated that the Named Plaintiffs could be held in lower-security
facilities because they did not present sufficient risks of danger. S.R.E. at 58-
11 The Government faults the District Court for ordering a prompt “changed circumstances” hearing similar to that available to adults under Matter of Sugay, 17 I&N Dec. 637 (BIA 1981). Opening Br. at 8, 17-18 & n.5. However, the Order’s seven-day timeframe relied on the Government’s own representations about the timing of those hearings. See R.E. at 106 (Nov. 9, 2017 Hr’g Tr.) (counsel for Government stating that such hearings are available in “an average of 10 days”). The Order’s “prompt hearing” requirement is also required as a matter of due process. See Schall, 467 U.S. at 275 (upholding juvenile custody scheme in part because child was provided prompt initial appearance and robust probable cause hearings).
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63. The District Court also considered the Government’s stated concerns about where to detain Class Members and concluded “the government can address these concerns consistent with its constitutional, statutory, and contractual responsibilities.” Order, R.E. at 32.
Second, the Government now relies on unsupported assertions that were never made to the District Court to argue that it would cost money to hold Class Members in ICE facilities until they can receive Saravia hearings. Opening Br. at 27 n.7 (alleging, without evidence, that the cost of contracting with two new juvenile detention facilities may cost certain sums). Once again, this assumes that the Class Members must be held in ICE facilities at all, when many can be held in lower-level ORR facilities.
Regardless, this Court has recognized that there are almost always financial and administrative costs associated with vindicating constitutional rights. See Spain v. Procunier, 600 F.2d 189, 200 (9th Cir. 1979) (explaining that “cost or inconvenience of providing adequate facilities is not a defense” to Eighth Amendment claim); Jordan v. Gardner, 986 F.2d 1521, 1537 (9th Cir. 1993) (“Almost any accommodation of constitutional rights will result in some ‘administrative burden,’” and “most accommodations are not ‘costfree’”) (citation omitted) (en banc) (Reinhardt, J., concurring). And “any
40.

additional administrative costs to the government are far outweighed by the considerable harm to Plaintiffs’ constitutional rights in the absence of the injunction.” Hernandez, 872 F.3d at 995-96; see also Lopez v. Heckler, 713 F.2d 1432, 1437 (9th Cir. 1983) (finding that, when faced with “a conflict between financial concerns and preventable human suffering,” human suffering should be given more weight); Order, R.E. at 37 (finding that any a burden was “justified in light of the hardships endured by minors taken from their sponsors and placed in ORR custody.”). Moreover, the cost of a brief period of temporary initial detention before affording the Class Member a prompt hearing is almost certainly less than the cost of holding Class Members in protracted detention in secure facilities, as well as the administrative costs of requiring Class Members and their families to undergo ORR’s cumbersome reunification process.
Third, the Government remarkably alleges that the Order will harm Class Members by “subject[ing] [them] to long and difficult transportation between the ICE detention facilities and the immigration court to attend their hearings.” Opening Br. at 26. Yet the Government showed no such concern for the Class Members’ well-being when it decided to transport them
41.

hundreds or thousands of miles away from their families and communities in

order to place them in secure juvenile detention facilities.

Fourth and finally, the Order’s due process safeguards serve the

Government’s own interest in “accurate and just results.” Lassiter, 452 U.S.

at 28.

*

*

*

The above analysis makes clear that the District Court correctly applied

the Mathews factors when it concluded that in the absence of a preliminary

injunction, there would be no meaningful process for Class Members to

challenge the factual assumptions that purportedly justified ORR’s ongoing

detention of the youth in jail-like facilities. Order, R.E. at 35. And there is

nothing remarkable about the processes the Court ordered, which simply

compel the Government to provide the Class Members with the core

requirements of due process: prompt notice of the charges against them, and

a fair hearing before a neutral decisionmaker to contest those charges. Id. at

32; see also Logan v. Zimmerman Brush Co., 455 U.S. 422, 433 (1982)

(“[T]he Due Process Clause grants the aggrieved party the opportunity to

present his case and have its merits fairly judged.”); Goldberg v. Kelly, 397

U.S. 254, 269 (1970) (“In almost every setting where important decisions turn

42.

on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.”); Vasquez, 734 F.3d at 1054 (indicating that county should provide “robust, neutral administrative process” to individuals before subjecting them to gang injunction). And, in light of the powerful interests at stake, the District Court rightly found that such a hearing must take place promptly, before the juveniles are taken thousands of miles away from their families. See Zinermon v. Burch, 494 U.S. 113, 132 (1990) (explaining that where the state “feasibly can provide a predeprivation hearing . . . it generally must do so”).
As to the value of the District Court’s safeguards, the results of the Saravia hearings speak for themselves. As of December 22, 2017, 26 of the 29 Class Members who had completed their hearings were found by immigration judges not to present indicia of danger or flight risk sufficient to justify their detention. See RJN, Exs. 1-2. The risk of erroneous deprivation has therefore become a documented history of erroneous deprivation. B. The Preliminary Injunction Does Not Conflict With the TVPRA or
the Flores Agreement Having failed to show that its existing procedures comply with basic principles of procedural due process, the Government attempts to conjure conflict between the Order and the TVPRA and the Flores Decree. But far
43.

from “eliminat[ing] protections afforded to” unaccompanied children, Opening Br. at 25, the Order in fact furthers the purposes of both sources of law by ensuring that children are placed in the least restrictive settings appropriate for their needs. And in any event, it is black-letter law that statutes must be read to avoid violating the Constitution. See Flores-Chavez v. Ashcroft, 362 F.3d 1150, 1153 (9th Cir. 2004) (reading regulations concerning service of charges on noncitizen children in light of constitutional concerns); see also Yamataya v. Fisher, 189 U.S. 86, 99-101 (1903) (construing immigration statutes to require fair hearing before depriving noncitizen of “right to be and remain in the United States”). As set forth below, the TVPRA can easily be construed to avoid any alleged conflict with the Order’s safeguards.
First, the Government contends that the Order’s procedures conflict with the TVPRA’s sponsor suitability provisions, which state that a UC “may not be placed with a person or entity unless [HHS] makes a determination that the proposed custodian is capable of providing for the child’s physical and mental well-being.” 8 U.S.C. § 1232(c)(3)(A). The Government argues that “[n]othing in [this provision] suggests that it is only intended to apply only [sic] to [UCs] who are taken into custody for the first time,” Opening Br. at
44.

24, but that misses the point. For each Class Member in this case, ORR has already made the requisite “determination” that the proposed sponsor can care for the child when each Class Member was first in ORR custody. Each time, the agency determined both that the Class Member was appropriate for release, and that the sponsor could adequately “provid[e] for [his] . . . wellbeing.” Order, R.E. at 30. In doing so, ORR effectuated its statutory mandate to “promptly” place the child “in the least restrictive setting that is in the [child’s] best interest.” 8 U.S.C. § 1232(c)(2)(A).
The Government now argues that it can nullify ORR’s previous determination by re-arresting the child on new allegations of danger, even if those allegations turn out to be unfounded. But if that were permissible, then ICE and ORR could subject the child and his family to a revolving door of custody: the day after ORR releases a child, ICE could simply re-arrest the child and refer him back to ORR to begin the reunification process anew. Order, R.E. at 30. Interpreting the TVPRA in such a manner would frustrate one of its core purposes, which is to ensure that children are “promptly placed in the least restrictive setting” that would serve the child’s best interests. 8 U.S.C. § 1232(c)(2)(A); United States v. Gill, 264 F.3d 929, 933 (9th Cir.
45.

2001) (declining to adopt construction of statute that would contradict its text
and "manifest purposes") (internal quotation and citation omitted).
Moreover, the purpose of the Saravia hearing is to allow the
Government to present evidence of changed circumstances that would warrant
a departure from its previous release decision—namely changed circumstances relevant to flight risk or danger. Order, R.E. at 31-32.12 If the
allegations are found to be unsubstantiated at the hearing, then ORR has no
basis to revisit its prior determination that the Class Member’s sponsor is
suitable to provide care and custody. As the District Court pointed out, 8
U.S.C. § 1232(c)(3)(A) “was designed for a different situation (namely, the
situation where a minor is first picked up by the federal government after
12 The Government argues that the District Court’s preliminary injunction removes Class Members from the “custody framework provided by the TVPRA . . . and instead subject to arrest and custody provisions from the Immigration and Nationality Act, 8 U.S.C. § 1226.” Opening Br. at 24. But the District Court did not base its finding on applying § 1226(b), which all parties agreed was not directly applicable to the Class Members. See R.E. at 294 (Oct. 27, 2017 Hr’g Tr.) (District Court acknowledging that 1226(b) is part of a different “statutory scheme,” and explaining that “I understand. I was just trying to understand how it works with adults.”). Instead, the Court reasoned by analogy to conclude that “there is no reason to deny these minors protections that [adult] noncitizens typically get after having been released on bond or parole.” See Order, R.E. at 1-2; see also Order, R.E. at 30-31 (noting that the § 1226(b) context is “closely analogous”).
46.

coming across the border and before a suitable caretaker has been identified).” Order, R.E., at 35.
This conclusion finds support in the experiences of the Plaintiffs. For example, when F.E. was re-arrested by ICE and referred to ORR secure custody on the basis of faulty gang allegations, ORR required his mother to undergo the reunification process even though ORR had previously approved her as F.E.’s sponsor. S.R.E. at 244-45 (M.U. Decl., ¶¶ 7-11). After positive release recommendations from a home study caseworker and staff at the facilities where F.E. was detained, the ORR Director refused release based on the same unfounded gang allegations that led to F.E.’s re-arrest in the first place; the only difference was that those gang allegations were reframed as evidence of F.E.’s mother’s inability to ensure that he would stay out of trouble. S.R.E. at 36-39. F.E. later demonstrated to the satisfaction of an immigration judge that the only legitimate basis for holding him in ORR custody—flight risk or danger—did not exist. RJN, Ex. 2. Once he did so, he necessarily demonstrated that there is no reason to revisit ORR’s previous sponsorship determination.
Second, the Government argues that providing Class Members a prompt Saravia hearing may require ICE to hold them in custody for longer
47.

than 72 hours, which would supposedly violate the TVPRA. See 8 U.S.C. § 1232(b)(3) (requiring any federal agency that has care of UC to transfer UC to ORR within 72 hours, “[e]xcept in the case of exceptional circumstances”). Not so. As stated above, nothing in the Order requires the Government to maintain class members in ICE custody at all; Class Members can be held in available ORR facilities upon their arrest. See S.R.E. at 58-63 (placement tools noting that J.G. and F.E. do not require secure placement).13 And, of course, the hearing may take place within 72 hours, after which the child would either be released or transferred to ORR custody.
Even assuming that children would be held in ICE custody for longer than 72 hours pending their Saravia hearings, this provision of the TVPRA contains an express exception for “exceptional circumstances.” 8 U.S.C. § 1232(b)(3). As the District Court explained, “the rearrest of a previously released minor, and the need for a prompt hearing on the propriety of that rearrest,” is easily such an “exceptional circumstance.” Order, R.E. at 32-33.
13 To the extent the Government complains that it does not have enough ORR facilities to hold newly arrested juveniles, see S.R.E. at 4 (White Decl. ¶¶ 89), it cannot defend its practices by claiming that it lacks resources to detain children in a manner consistent with the requirements of the Constitution and the statute. See supra Section VI(A)(3).
48.

Indeed, the Government concedes that it “can avoid violating the TVPRA” by applying this exception to the Class Members, and offers no reason why it should not, beyond a conclusory assertion that Class Members would lose unspecified “protections.” Opening Br. at 28.
Third, the Government suggests that the Order conflicts with the Flores Decree, which it reads to forbid ICE from holding UCs for longer than 72 hours in facilities not designated for juvenile detention. Opening Br. at 25. But, as stated above, nothing in the Order requires the Government to hold children in ICE custody pending their hearings. Moreover, this is a remarkable reversal of the Government’s position in proceedings to enforce the Flores Decree itself, where it argued vigorously that it should retain authority to hold children in ICE facilities for longer than three to five days. See Defendants’ Response to the Court’s Order Show Cause, Flores v. Lynch, No. 85-cv-04544-DMG-AGRx (C.D. Cal. Aug. 6, 2015), at 4, 6 n.7, 26, 51.
In sum, the TVPRA’s purposes are served, not undermined, by the Order’s procedural safeguards. C. There is No Dispute that the Remaining Preliminary Injunction
Factors Favor the Plaintiffs. In its Opening Brief, the Government fails to argue any prong of the preliminary injunction standard other than the likelihood of success on the
49.

merits. Arguments not raised in an appellant’s Opening Brief are deemed waived. See Int’l Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir. 1985) (noting that this Court “will not ordinarily consider matters on appeal that are not specifically and distinctly raised and argued in appellant’s opening brief.”); accord Frank v. United Airlines, Inc., 216 F.3d 845, 856 n.11 (9th Cir. 2000) (“An appellant ordinarily must raise an argument in its opening brief on appeal in order to preserve it for our review.”) (citation omitted).
Regardless, the Government cannot plausibly contest the District Court’s findings concerning the remaining preliminary injunction factors. Order, R.E. at 36-37. First and foremost, there is no disputing the District Court’s finding that the Class Members would suffer irreparable harm in the absence of preliminary relief. Order, R.E. at 36. “[T]he deprivation of constitutional rights ‘unquestionably constitutes irreparable injury.’” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)); see also Warsoldier v. Woodford, 418 F.3d 989, 1001-02 (9th Cir. 2005) (indicating that even “colorable claim” of constitutional violation can establish irreparable harm). This is to say nothing of the “negative mental health repercussions” endured by Class Members
50.

during their months of unjust detention, the consequences of which grow more likely to become lasting “the longer children remain in confinement.” Order, R.E. at 36; S.R.E. at 214-19 (Decl. of Dr. Lisa Fortuna, ¶¶ 10-31).14
Similarly, the District Court rightly found that “the public interest in ensuring the protection of constitutional rights, together with the [Class Members’ interests] . . . in being free from unnecessary detention” supported preliminary relief here. Order, R.E. at 36 (citing Hernandez, 872 F.3d at 99495). The public interest is also measured in “the indirect hardship to [the Class Members’] friends and family members,” Golden Gate Rest. Ass’n v. City & Cty. of S.F., 512 F.3d 1112, 1126 (9th Cir. 2008); the record reflects the numerous harms that the Class Members’ families have suffered as a result of their unlawful detention. See, e.g., S.R.E. at 231-35 (Gomez Decl., ¶¶ 5-6, 11-12, 17-20); S.R.E. at 244-45 (M.U. Decl., ¶¶ 8-9, 11, 14, 16); S.R.E. at 248-49 (Suppl. Saravia Decl., ¶¶ 4, 8, 10-12). Any harm to the Government is also mitigated by the form of relief Plaintiffs seek here—they ask only for procedural protections before the Government deprives them of
14 The Government’s claim that indefinite ORR detention without a hearing is in the “best interests” of Class Members, see Opening Br. at 21-22, defies both common sense and the evidentiary record. See S.R.E. at 215-19 (Fortuna Decl. ¶¶ 12, 14-22, 28-31) (detailing psychological harm to class members resulting from detention and separation from family).
51.

fundamental liberty interests, and their requested relief would not result in the automatic release of any class member without a finding that his detention is not justified.
VII. CONCLUSION The District Court’s grant of the Preliminary Injunction should be affirmed.
52.

Dated: March 16, 2018 Dated: March 16, 2018 Dated: March 16, 2018 Dated: March 16, 2018

COOLEY LLP
By: /s/ Martin S. Schenker Martin S. Schenker
Attorneys for Plaintiffs-Appellees AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA
By: /s/ Julia Harumi Mass Julia Harumi Mass
Attorneys for Plaintiffs-Appellees AMERICAN CIVIL LIBERTIES UNION IMMIGRANTS’ RIGHTS PROJECT
By: /s/ Stephen B. Kang Stephen B. Kang
Attorneys for Plaintiffs-Appellees LAW OFFICES OF HOLLY COOPER
By: /s/ Holly S. Cooper Holly S. Cooper
Attorneys for Plaintiffs-Appellees

53.

VIII. STATEMENT OF RELATED CASES There are no related cases pending before this court.

Dated: March 16, 2018

COOLEY LLP

By: /s/ Martin S. Schenker Martin S. Schenker
Attorneys for Plaintiffs-Appellees

54.

CERTIFICATE OF SERVICE I hereby certify that on March 16, 2018, I electronically filed the

foregoing APPELLEES’ ANSWERING BRIEF with the Clerk of the Court

for the United States Court of Appeals for the Ninth Circuit by using the

appellate CM/ECF system. I certify that all participants in the case are

registered CM/ECF users and that service will be accomplished by the

appellate CM/ECF system.

Dated: March 16, 2018

COOLEY LLP

By: /s/ Martin S. Schenker Martin S. Schenker
Attorneys for Plaintiffs-Appellees

55.

Form 8. Certificate of Compliance Pursuant to 9th Circuit Rules 28.1-1(f), 29-2(c)(2) and (3), 32-1, 32-2 or 32-4 for Case Number 18-15114
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App. P. 32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and

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Date Mar 16, 2018
(Rev.12/1/16)

 
 No. 18-15114

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

ILSA SARAVIA, et al. Plaintiffs-Appellees,
v.
JEFFERSON B. SESSIONS III, Attorney General of the United States, et al. Defendants-Appellants.

ON APPEAL FROM A FINAL JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA D.C. No. 3:17-cv-03615-VC

APPELLANTS’ REPLY BRIEF

CHAD A. READLER Acting Assistant Attorney General Civil Division
WILLIAM C. PEACHEY Director, District Court Section Office of Immigration Litigation
WILLIAM C. SILVIS Assistant Director, District Court Section Office of Immigration Litigation

SARAH B. FABIAN NICOLE N. MURLEY Senior Litigation Counsel Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Tel: (202) 532-4824 Fax: (202) 305-7000 Email: sarah.b.fabian@usdoj.gov
Attorneys for Defendants-Appellant

TABLE OF CONTENTS INTRODUCTION .....................................................................................................1 ARGUMENT .............................................................................................................3
I. Plaintiffs Appear to Recognize That Class Members Have the Same Liberty Interest as Any Other UAC in Government Custody...................................................................................3
II. Plaintiffs and The District Court Improperly Ignore the Fact That ICE Lawfully Arrested A.H. on the Ground That He Was Removable, Not on the Basis of Gang Membership.................4
III. Plaintiffs Erroneously Focus a Significant Portion of Their Argument on Their Contention That ORR’s Placement and Step-Down Procedures are Insufficient, but Those Are Irrelevant to the Issues Before The Court.................................................6
IV. Plaintiffs are Incorrect In Asserting That Existing ORR Reunification Procedures Combined With Flores Hearings Do Not Provide Due Process ...........................................................................7
V. Plaintiffs’ Assessment of the Burden Placed on the Government by the District Court’s Order is Erroneous.................................................................9
CONCLUSION ........................................................................................................13 CERTIFICATE OF SERVICE ................................................................................14
i

TABLE OF AUTHORITIES CASES
Nat'l Wildlife Fed’n v. Burlington N. R.R., Inc., 23 F.3d 1508 (9th Cir. 1994) ................................................................................11 STATUTES
8 U.S.C. § 1226(a) .................................................................................................1, 5 8 U.S.C. § 1232..........................................................................................................1 8 U.S.C. § 1232(b)(1)...............................................................................................12 8 U.S.C. § 1232(b)(3)...............................................................................................10 8 U.S.C. § 1232(c)(3)...........................................................................................5, 12 8 U.S.C. § 1232(c)(3)(A) ...........................................................................................8
RULES Fed. R. App. P. 10 ....................................................................................................11
ii

INTRODUCTION Provisional class members in this case have no greater liberty interest than any other unaccompanied alien child (“UAC”) who is taken into Government custody and placed into the custody of the U.S. Department of Health and Human Services, Office of Refugee Resettlement (“ORR”). Plaintiffs recognize this fact, and yet they assert that the district court did not err in providing for entirely different procedures for the arrest and custody of class members than have been provided by Congress for all other UACs. The law is clear that any alien who is in removal proceedings may be arrested by U.S. Immigration and Customs Enforcement (“ICE”). 8 U.S.C. § 1226(a). And the law is further clear that when that occurs, and the alien is determined to be a UAC, then the procedures governing his or her custody and release are those found in the Trafficking Victims Protection and Reauthorization Act (“TVPRA”). 8 U.S.C. § 1232. Those procedures include a reunification process, which is designed to ensure that no minor is released from Government custody unless the sponsor seeking custody of that minor has been independently evaluated and found to be a suitable custodian to whom the minor may be released. Where release to a parent or legal guardian is denied, existing procedures also offer the opportunity for appeal and subsequent review of that denial. Moreover, the existing procedures for any minor
1

who is subject to any finding that he or she is considered dangerous also include a Flores custody hearing in front of an independent immigration judge who will determine if, in fact, the minor should remain in custody on the basis of dangerousness. If the immigration judge finds that the minor is not dangerous, then the minor will be released as soon as ORR can confirm the suitability of any proposed sponsor to care for that UAC. Through these procedures, Plaintiffs—like all UACs—have notice of the basis for their custody, and the opportunity to challenge their continued custody if it is based on either a finding of dangerousness, or a finding of non-suitability of their proposed custodian. Thus, due process is satisfied.
Nonetheless, Plaintiffs contend that the district court’s wholesale rejection of these procedures in favor of applying novel procedures with inapplicable standards that nominally stem from procedures related to custody under the Immigration and Nationality Act (“INA”) was correct. In support of their argument, Plaintiffs, like the district court, continue to ignore the reality of the existing framework, and the purposes for which Congress enacted the applicable statutes. By failing to consider the purposes of the existing framework, and instead creating novel procedures that conflict with it and with the purposes for which the governing statutes were enacted, the district court reached a conclusion that is erroneous and subject to reversal.
2

Plaintiffs, by furthering the same erroneous view of existing procedures as was relied on by the district court, provide no basis to find otherwise.
ARGUMENT I. Plaintiffs Appear to Recognize That Class Members Have the Same
Liberty Interest as Any Other UAC in Government Custody. The district court based its conclusion that class members—who have previously been released to a sponsor and are re-arrested by ICE—should be subject to different procedures than minors who are arrested for the first time, because they have a heightened liberty interest. Order, ECF 100, at 28, R.E. 28. But Plaintiffs, correctly, adopt no such argument, and instead contend only that class members have the same liberty interest as any other minor in government custody, based on the dual interests of bodily freedom and family integrity. Appellees’ Brief at 27-28. In this, Plaintiffs correctly do not assert that there is any greater liberty interest that should be found for class members simply on the basis that those individuals had previously been released to a sponsor. And nothing in the district court’s order supports its conclusion to the contrary. Notably, the district court did not adopt the Government’s request to limit the class to minors who had previously been released to a parent, and instead included any previous release to any sponsor as a trigger for class membership. See Nov. Hearing Tr. at 47:2-48:25, R.E. 100-101. Yet the district court based its
3

finding of a heightened liberty interest for class members entirely on language discussing the interests of parents in the case and management of their children. R.E. 29. And the court pointed to no language that would provide any basis to find that the nature of this interest changes simply because ORR previously assessed the suitability of that sponsor and released the minor to his or her care. This is because there is none. Thus, the district court’s conclusion on this point was erroneous, and Plaintiffs correctly acknowledge that putative class members in this case share the same liberty interest as any other minor in Government custody. II. Plaintiffs and the District Court Improperly Ignore the Fact That ICE
Lawfully Arrested A.H. on the Ground That He Was Removable, Not on the Basis of Gang Membership. Plaintiffs’ opening brief contends that the district court correctly found that the pre-existing procedures presented an unacceptably high risk of erroneously depriving A.H. and class members of their right to be free from Government custody. However, in support of this argument, Plaintiffs erroneously rely in the first instance on the district court’s conclusion that “the Government relied on ‘insufficiently substantial allegations of gang affiliation’ to justify its initial arrest and custody decisions . . . .” Appellees’ Brief at 29 (quoting R.E. 34). This argument is erroneous because it is not an accurate statement of the legal authority for A.H.’s arrest.
4

DHS’s enforcement authority includes the authority to arrest and detain any alien on a warrant “pending a decision on whether the alien is to be removed from the United States.” 8 U.S.C. § 1226(a). A.H. was lawfully arrested by ICE based on an administrative warrant under 8 U.S.C. § 1226(a). R.E. 425-45. Following arrest, A.H. was transferred to ORR in accordance with the clear mandate of the TVPRA. 8 U.S.C. § 1232(c)(3). Neither the applicable INA authority, nor the TVPRA, make any distinction in this process regarding arrest or custody for UACs who had previously been in ORR custody and were released to a sponsor.
However, without any discussion of this authority, the district court erroneously found that a provisional class member has a heightened liberty interest, and thus “cannot be rearrested solely on the ground that he is subject to removal proceedings.” R.E. 30. Nothing in the district court’s opinion, however, supports this cursory rejection of ICE’s existing arrest authority or, relatedly, its decision to instead erroneously impose inapplicable immigration court authority related to the custody of aliens under the INA, in lieu of the protections provided in the TVPRA. R.E. 31. In arguing that the district court properly analyzed the existing procedures, Plaintiffs also fail to acknowledge ICE’s arrest authority, or to show how the district court’s analysis of existing procedures could be proper where it erroneously
5

disregarded this authority. Thus, Plaintiffs’ contention that the district court properly considered existing procedures is incorrect. III. Plaintiffs Erroneously Focus a Significant Portion of Their Argument on
Their Contention That ORR’s Placement And Step-Down Procedures Are Insufficient, But Those Procedures Are Irrelevant to The Issues Before This Court. Plaintiffs argue extensively that ORR erroneously considers gang membership in making its placement and step-down decision. Appellees’ Brief at 29-37. However this discussion is entirely irrelevant to the issue at hand because the district court’s order evaluated only the arrest and release process, and did not address ORR’s placement decisions. While the district court did note that an arrest for gang membership was likely to result in a secure placement, R.E. 34, the court’s preliminary injunction in this case is entirely concerned with whether a class member has been provided sufficient due process regarding his arrest, and does not evaluate in any way the sufficiency of ORR’s placement procedures once a minor is found to be properly in ORR custody. Therefore, to the extent Plaintiffs focus several pages of their brief on the topics of ORR’s initial placement decisions and step-down procedures, this Court should disregard this discussion.
6

IV. Plaintiffs Are Incorrect In Asserting That Existing ORR Reunification Procedures Combined With Flores Hearings Do Not Provide Due Process. Plaintiffs argue that Flores custody hearings do not provide provisional class
members with sufficient due process protections because such a hearing cannot result in the release of the class member. However, this argument highlights the fundamental problem with the district court’s order. Specifically, both Plaintiffs and the district court ignore the protections provided by Flores custody hearings to address the issue of gang membership and dangerousness with which Plaintiffs’ complaint purports to be concerned, and the district court orders new procedures which undercut the protections of the TVPRA reunification process. Further, the district court appears to do so based on the problematic assumption that despite the passage of time since the prior release of provisional class members to a sponsor there will have been no changes to the suitability of any provisional class member’s previous sponsor—an assumption that is entirely contradicted by the record.
First, this approach is erroneous because it fails to acknowledge that the very concern Plaintiffs are raising—what they allege is erroneous custody by the Government based on unfounded allegations of gang membership—can be addressed through the Flores custody hearing process. UACs receive notice of their right to such hearings any time the Government is holding them in custody based on
7

any finding of dangerousness, and at that hearing they have the opportunity to challenge the Government’s finding of dangerousness before a neutral immigration judge, and to appeal to the Board of Immigration Appeals if they disagree with the immigration judge’s ruling. If the UAC is successful before the immigration judge, then ORR will release that UAC from custody immediately once it has fulfilled the TVPRA’s mandate that it assure itself that the UAC is being released to a suitable custodian. 8 U.S.C. § 1232(c)(3)(A).
Contrary to Plaintiffs’ assertions, this available procedure is not deficient simply because it does not provide for immediate release. Rather, the fact that it leaves in place the TVPRA’s protections related to the suitability of custodians reflects a balancing of the UAC’s interest in being released from Government custody, and the Government’s interest in assuring itself that the UAC is being released to a custodian who can provide for the safety and well-being of the minor (an interest also shared by the UAC himself). The district court’s approach eliminates the Government’s interest from this equation solely on the basis that the custodian had, at some prior point in time, been deemed suitable. See Order at 3132. But testimony in this case makes clear that the TVPRA’s requirement that ORR review the suitability of a custodian prior to releasing a minor to that custodian is important, and should not be suspended even when a UAC is being released to a
8

custodian that was previously approved because there are many reasons why circumstances related to suitability may change. See Oct. Hearing Tr. at 94:2-95:23, R.E. 238-39. Neither Plaintiffs nor the district court explain why the existing process, which adequately balances and protects these interests, should be replaced with a process that entirely eliminates the Government’s consideration of the suitability of proposed custodians, despite the very likely possibility that the suitability analysis may have changed since the previous analysis was made. This failure constitutes error and requires reversal of the district court’s opinion. V. Plaintiffs’ Assessment of The Burden Placed on The Government by The
District Court’s Order Is Erroneous. Plaintiffs’ assertions that the district court’s order does not burden the Government or run afoul of TVPRA and the Flores Settlement Agreement suffer from the same erroneous assumptions discussed above. Specifically, Plaintiffs ignore the fact that the existing procedures protect UACs by placing very specific restrictions on the manner in which minors may be held in Government custody. The district court’s order requires the Government to work around these protections, or to violate specific provisions of the TVPRA and the Flores Agreement, neither of which serves the interests of the Government, or of provisional class members. Inherent in the TVPRA (and to some extent the Flores Agreement) is the principle that minors should be transferred as soon as possible to facilities that are
9

designed for their custody. 8 U.S.C. § 1232(b)(3); Flores Settlement Agreement ¶ 12, R.E. 453-54. However, as discussed in the Government’s opening brief, in order to read the district court’s order not to conflict with the release requirements of the TVPRA the Government is obligated to hold minors in ICE custody until they can have their Saravia hearing, meaning that in many cases minors will remain in ICE custody for longer than seventy-two hours. Plaintiffs seek to minimize the Government’s concerns on this front first by asserting, without support, that the Government could simply hold provisional class members in ORR custody while awaiting their Saravia hearing. Appellees’ Brief at 40, 44-47. However, while both Plaintiffs and the district court appear to believe that ORR could simply reinstate a stale suitability determination and release a provisional class member who prevailed on his or her Saravia hearing, nothing in the language of the TVPRA itself provides for this type of abrogation of its release requirements. Moreover, nothing in the district court’s order provides a basis for ORR to fail to otherwise comply with the TVPRA. Therefore, without more, there is no basis to find that minors could be transferred to ORR custody prior to their Saravia hearings without creating the potential that ORR would be required to violate the TVPRA in order to release them to a custodian without a suitability analysis in accordance with the district court’s
10

order.1
Plaintiffs also assert that the Government is incorrect that the need to hold
provisional class members in ICE custody for a longer time period violates the
TVPRA. Plaintiffs are correct on this front to the extent that the district court found
that the need to hold a Saravia hearing would constitute an “exceptional
circumstance” sufficient to waive the requirement for a seventy-two hour transfer.
However, Plaintiffs do not explain how the provision to hold a UAC for longer than
seventy-two hours gives ICE the authority to release a UAC to a sponsor. The
1 Plaintiffs contend that the “value of the District Court’s safeguards” is exhibited by the fact that a large number of provisional class members were released following their Saravia hearings. Appellees’ Brief at 43, 47. As an initial matter, evidence of the results of these hearings was not part of the district court’s consideration below, and therefore is not properly considered by this Court on appeal in determining whether the district court’s order was correct in the first instance. Nat'l Wildlife Fed’n v. Burlington N. R.R., Inc., 23 F.3d 1508, 1511 n.5 (9th Cir. 1994) (“Facts not presented to the district court are not part of the record on appeal.”); Fed. R. App. P. 10. Moreover, these results stem from the fact that Saravia hearings reflect the district court’s misapplication of the law regarding ICE’s authority to arrest provisional class members in the first place, and thus erroneously provide for release based on a legal standard of “changed circumstances” that does not apply, rather than the proper standard of present dangerousness that is evaluated at a Flores custody hearing. Equally important, these results provide no information about whether any of these provisional class members has been released as the result of prevailing in his Saravia hearing to a custodian who is no longer suitable to provide him adequate care. In each of these cases ORR was deprived of the opportunity to complete a suitability assessment for the sponsor before the class member was released as it would have otherwise been required to do under the TVPRA.
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TVPRA makes clear that only ORR has the authority to release UACs. See 8 U.S.C. § 1232(b)(1) (providing exclusive care and custody of UAC to HHS); 8 U.S.C. § 1232(c)(3) (forbidding placement of UAC with a sponsor unless HHS makes a suitability assessment). Moreover, Plaintiffs do not explain how the waiver of this requirement is preferable to complying with this provision of the TVPRA which is intended to protect UACs and ensure that they are held in facilities designed for their custody. And finally, Plaintiffs do not explain how the need to hold provisional class members in ICE facilities for longer periods of time in order to conduct Saravia hearings would not be in violation of the Flores Agreement, where the district court’s order contains no similar waiver of the Agreement’s requirements on that front.2
2 Plaintiffs also scoff at the notion that the Government is seeking to avoid the need to transport provisional class members hundreds of miles in a single day in order to ensure their presence at an immigration court hearing that is located a great distance from any facility that is designed for the custody of minors. Appellees’ Brief at 4142. However, Plaintiffs’ comparison of this situation to the need for a single transfer—even if potentially a great distance—to be placed in a facility for the care of minors does nothing to undercut the fact that this difficulty presents a burden for both the Government, and for provisional class members who must experience it.
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CONCLUSION

For the foregoing reasons, this Court should reverse the decision of the lower

court.

DATED: April 6, 2018

Respectfully submitted,

CHAD A. READLER Acting Assistant Attorney General Civil Division

WILLIAM C. PEACHEY Director, District Court Section Office of Immigration Litigation

WILLIAM C. SILVIS Assistant Director, District Court Section Office of Immigration Litigation

/s/ Sarah B. Fabian SARAH B. FABIAN Senior Litigation Counsel NICOLE M. MURLEY Trial Attorney Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Tel: (202) 532-4824 Fax: (202) 305-7000 Email: sarah.b.fabian@usdoj.gov

Attorneys for Defendants-Appellants

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CERTIFICATE OF SERVICE I hereby certify that on April 6, 2018, I electronically filed the foregoing REPLY BRIEF FOR APPELLANTS with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.
By: /s/ Sarah B. Fabian SARAH B. FABIAN Senior Litigation Counsel U.S. Department of Justice Attorney for Defendants-Appellants
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Form 8. Certificate of Compliance Pursuant to 9th Circuit Rules 28.1-1(f), 29-2(c)(2) and (3), 32-1, 32-2 or 32-4 for Case Number 18-15114

Note: This form must be signed by the attorney or unrepresented litigant and attached to the end of the brief. I certify that (check appropriate option):

This brief complies with the length limits permitted by Ninth Circuit Rule 28.1-1.

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words or

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32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).

This brief complies with the length limits permitted by Ninth Circuit Rule 32-1.

The brief is

words or

pages, excluding the portions exempted by Fed. R. App. P.

32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).

This brief complies with the length limits permitted by Ninth Circuit Rule 32-2(b).

The brief is

words or

pages, excluding the portions exempted by Fed. R. App. P.

32(f), if applicable, and is filed by (1) separately represented parties; (2) a party or parties filing a

single brief in response to multiple briefs; or (3) a party or parties filing a single brief in response to a

longer joint brief filed under Rule 32-2(b). The brief's type size and type face comply with Fed. R. App. P.

32(a)(5) and (6).

This brief complies with the longer length limit authorized by court order dated

The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6). The brief is

words or

pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable.

This brief is accompanied by a motion for leave to file a longer brief pursuant to Ninth Circuit Rule 32-2

(a) and is

words or

pages, excluding the portions exempted by Fed. R. App. P. 32

(f), if applicable. The brief’s type size and type face comply with Fed. R .App. P. 32(a)(5) and (6).

This brief is accompanied by a motion for leave to file a longer brief pursuant to Ninth Circuit Rule 29-2

(c)(2) or (3) and is

words or

pages, excluding the portions exempted by Fed. R.

App. P. 32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and

(6).

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32(f), if applicable. The brief’s type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).

Signature of Attorney or Unrepresented Litigant

s/

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B.

Fabian

("s/" plus typed name is acceptable for electronically-filed documents)

Date Apr 6, 2018
(Rev.12/1/16)

 
 Case 3:17-cv-03615-VC Document 146 Filed 04/09/18 Page 1 of 2

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

ILSA SARAVIA, et al., Petitioners/Plaintiffs,
v. JEFFERSON B. SESSIONS, et al.,
Respondents/Defendants.

Case No. 17-cv-03615-VC
ORDER DENYING MOTION TO LIFT STAY Re: Dkt. No. 138

The plaintiffs seek to lift the stay of proceedings in this case, arguing primarily that immediate adjudication of Claim Six is necessary to avoid harm to A.H. and the members of the class provisionally certified as to Claim Two. Claim Six is based in part on alleged interference with state-court and other ongoing proceedings resulting from the minors’ detention on the basis of unfounded allegations of gang activity. First Am. Pet. & Compl. ¶¶ 62, 66, 110(h), 110(k), 154, 156, Dkt. No. 31. This aspect of Claim Six does not justify lifting the stay, because A.H. – along with the vast majority of class members so far – has been released from detention. See Decl. of Stephen Kang at 1-2, Dkt. No. 138-2. The preliminary injunction provides a mechanism by which class members may continue to seek release from unjustified detention. Further, resolution by the Ninth Circuit of the pending appeal will likely provide guidance on this aspect of the plaintiffs’ claim. See CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962); Washington v. Trump, No. C17-0141JLR, 2017 WL 1050354, at *4-5 (W.D. Wash. Mar. 17, 2017).
Claim Six also includes allegations that A.H. and members of the provisionally certified class are being precluded from seeking and obtaining immigration benefits on the basis of the allegations of gang affiliation themselves. See First Am. Pet. & Compl. ¶¶ 63, 81, 110(h),

Case 3:17-cv-03615-VC Document 146 Filed 04/09/18 Page 2 of 2

110(k), 155, 157. (This is actually best understood as a separate claim because it is distinct from the aspect of Claim Six mentioned in the previous paragraph.) To the extent the plaintiffs’ motion for lifting the stay turns on their inability to seek Special Immigrant Juvenile status or other immigration benefits, there appears to be no current basis for that claim because named plaintiff A.H.’s attorney has been able to submit his SIJ status application to USCIS for consideration. Decl. of Timothy Greenberg ¶¶ 3-6, Ex. A, Dkt. No. 145-1. To the extent the plaintiffs’ argument for lifting the stay turns on their inability to obtain SIJ status or other immigration benefits based on the same allegations of gang activity found insufficient by an immigration judge to justify detention, this portion of the claim is not a basis for lifting the stay at this juncture either. A.H. has shown neither that his SIJ status application was rejected on the basis of the allegations the IJ found insufficient to justify his detention nor that this Court can make a firm prediction that the status he seeks will be denied on that basis. See Chang v. United States, 327 F.3d 911, 922 (9th Cir. 2003).1
Accordingly, the plaintiffs’ motion to lift the stay of proceedings pending appeal is denied without prejudice. Should circumstances change, the plaintiffs may file a new motion.

IT IS SO ORDERED. Dated: April 9, 2018

______________________________________
VINCE CHHABRIA United States District Judge

1 The Court is not aware of any reason why individual class members whose SIJ status or other applications were denied, revoked, or unreasonably delayed on the basis of gang affiliation, even after an IJ found the government’s allegations insufficient to support detention, would be unable to seek relief on an individual basis in a separate proceeding.
2

 
 Case: 18-15114, 10/01/2018, ID: 11029738, DktEntry: 41-1, Page 1 of 18

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

ILSA SARAVIA, as next friend for A.H., a minor, and on her own behalf; LORENZA GOMEZ, as next friend for A.H., a minor, and on her own behalf; WILFREDO VELASQUEZ, as next friend for F.E., a minor, and on his own behalf,
Plaintiffs-Appellees,
v.
JEFFERSON B. SESSIONS III, Attorney General; JAMES MCHENRY, Acting Director of the United States Executive Office for Immigration Review; THOMAS E. PRICE, Secretary of the Department of Health and Human Services of the United States; STEVEN WAGNER, Acting Assistant Secretary of the Administration for Children and Families; SCOTT LLOYD, Director of the Office of Refugee Resettlement of the United States; ELICIA SMITH, Federal Field Specialist of the Office of Refugee Resettlement of the United States; ELAINE C. DUKE, Acting Secretary of the Department of Homeland Security of the United

No. 18-15114
D.C. No. 3:17-cv-03615-
VC
OPINION

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States; THOMAS HOMAN, Acting Director of U.S. Immigration and Customs Enforcement; James McCament, Acting Director of U.S. Citizenship and Immigration Services,
Defendants-Appellants.

Appeal from the United States District Court for the Northern District of California
Vince Chhabria, District Judge, Presiding
Argued and Submitted July 13, 2018 San Francisco, California
Filed October 1, 2018
Before: Michael Daly Hawkins, Carlos T. Bea, and Andrew D. Hurwitz, Circuit Judges.
Opinion by Judge Hurwitz

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SUMMARY*

Immigration
In an action arising from Immigration and Customs Enforcement’s rearrest and detention of noncitizens who came to this country as unaccompanied minors, the panel affirmed the district court’s grant of a preliminary injunction, requiring a prompt hearing before a neutral decisionmaker at which the minors could contest the basis for their rearrest.
The plaintiffs are noncitizen minors who entered the United States unaccompanied by a parent or guardian and were placed in the custody of the United States Office of Refugee Resettlement (“ORR”). ORR subsequently released the minors to a parent or sponsor after concluding that each minor was not dangerous to himself or the community nor a flight risk. However, in 2017, Immigration and Customs Enforcement arrested plaintiffs because of alleged gang membership and transferred them to secure juvenile detention facilities.
After plaintiff A.H. filed this putative class action, the district court provisionally certified a class of certain noncitizen minors and granted a preliminary injunction, requiring a prompt hearing before a neutral decisionmaker at which the minors could contest the gang allegations.

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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The panel held that the district court did not abuse its discretion in granting the preliminary injunction, rejecting the government’s contention that the relief ordered conflicts with the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA”). The panel concluded that the preliminary injunction is entirely consistent with the TVPRA’s mandate that ORR place unaccompanied children in the least restrictive setting that is in the best interest of the child, explaining that: (1) the preliminary injunction calls for minors to be released back to their previous sponsors, whom the government has already determined to be suitable; and (2) nothing in the order prohibits the government from transferring minors to ORR custody within 72 hours, as required by the TVPRA.

The panel also rejected the government’s contention the district court failed to consider existing procedural protections allegedly available to the minors: (1) an internal review process mandated by the TVPRA and (2) the bond hearings required by the 1997 settlement in Flores v. Sessions. The panel explained that the district court expressly considered current ORR procedures, including Flores bond hearings and regular review by ORR. However, the district court concluded that, on the current record, these procedures appeared inadequate to protect against the risk of minors being erroneously taken away from their sponsors. The panel concluded that the district court did not abuse its discretion in this regard, explaining that the ORR review process is entirely unilateral such that the juvenile is not provided with notice of the reason for incarceration or an opportunity to answer any charges.

The panel also concluded that the district court did not abuse its discretion in concluding that Flores hearings were not sufficient to protect the TVPRA rights of the members

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of the plaintiff class, each of whom had initially been found to qualify for placement with a parent or sponsor previously approved by ORR. The panel explained that Flores hearings were designed to consider ORR’s initial determination that a minor should be detained and, thus, a favorable finding in a Flores hearing does not entitle minors to release. The government must still identify a safe and secure placement into which the child can be released – a process that can take months. Noting that the government conceded that the record is unclear as to how promptly minors receive Flores hearings, the panel also concluded that the district court reasonably found that the evidence suggests class members will remain in ORR custody indefinitely in the absence of a preliminary injunction.

COUNSEL
Scott G. Stewart (argued), Attorney; Sarah B. Fabian and Nicole N. Murley, Senior Litigation Counsel; William C. Silvis, Assistant Director; William C. Peachey, Director, District Court Section; Chad A. Readler, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellants.
Julia Harumi Mass (argued) and William S. Freeman, ACLU Foundation of Northern California, San Francisco, California; Martin S. Schenker, Nathaniel R. Cooper, Kathlyn A. Querubin, and Trevor M. Kempner, Cooley LLP, San Francisco, California; Judy Rabinovitz, ACLU Foundation Immigrants’ Rights Project, New York, New York; Holly S. Cooper, Law Offices of Holly S. Cooper, Davis, California; Stephen B. Kang, ACLU Foundation

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Immigrants’ Rights Project, San Francisco, California; for Plaintiffs-Appellees.

OPINION
HURWITZ, Circuit Judge:
This case involves noncitizen minors who entered the United States unaccompanied by a parent or guardian and were then placed in the custody of the United States Office of Refugee Resettlement (“ORR”). ORR subsequently released the plaintiffs to a parent or sponsor after concluding that each minor was not dangerous to himself or the community nor a flight risk.
In 2017, the government arrested plaintiffs because of alleged gang membership and transferred them to secure juvenile detention facilities. The district court granted a preliminary injunction, requiring a prompt hearing before a neutral decisionmaker at which the minors could contest the gang allegations. We find no abuse of discretion and affirm.
I. Background
a. The Legal Framework
The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA”), Pub. L. No. 110457, 122 Stat. 5044 (2008), requires the Department of Homeland Security (“DHS”) to transfer an unaccompanied noncitizen minor to the custody of the Secretary of Health and Human Services (“HHS”) within 72 hours of determining that the minor is unaccompanied, absent “exceptional circumstances.” 8 U.S.C. § 1232(b)(3). ORR then must ensure that the minor is “promptly placed in the

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least restrictive setting that is in the best interest of the child.” Id. § 1232(c)(2)(A). “In making such placements, [ORR] may consider danger to self, danger to the community, and risk of flight.” Id. The TVPRA requires that minors be placed either with a “suitable family member” or in an ORR facility.1 Id. “A child shall not be placed in a secure facility absent a determination that the child poses a danger to self or others or has been charged with having committed a criminal offense.” Id.

In 1997, the United States entered into a settlement agreement with a plaintiff class in Flores v. Sessions, providing a minor in an ORR facility the right to a bond hearing before an immigration judge to challenge the agency’s initial determination that the minor is a danger to the community. See Flores v. Sessions, 862 F.3d 863, 879 (9th Cir. 2017); see also ORR Guide § 2.9; Flores Settlement ¶ 24A.

b. Factual Background

In 2017, Immigration and Customs Enforcement (“ICE”)

agents and New York law enforcement officials executed

“Operation Matador.”

The operation targeted

undocumented immigrants with alleged connections to

criminal gangs. After receiving allegations of gang

1 “ORR may place a child in a shelter facility, foster care or group home (which may be therapeutic), staff-secure or secure care facility, residential treatment center, or other special needs care facility.” U.S. Dep’t of Health & Human Servs., Children Entering the United States Unaccompanied § 1.1 (“ORR Guide”), https://www.acf.hhs.gov/orr/res ource/children-entering-the-united-states-unaccompanied (last updated Sept. 5, 2018). Secure facilities “have a secure perimeter, major restraining construction inside the facility, and procedures typically associated with correctional facilities.” Id. § 1.2.4.

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affiliation from local law enforcement, ICE agents arrested the alleged gang members, relying on the agency’s general authority to arrest noncitizens subject to removal.
Among the minors arrested was A.H., who was born in Honduras in 2000 and entered the United States without inspection in April 2015. After requesting the assistance of immigration officials at the border, A.H. was initially detained in an ORR facility. After determining that A.H. was not a flight risk and posed no danger to himself or the community, ORR released him to live with his mother in New York.
In 2016, A.H. was charged in state juvenile court with menacing and possession of a weapon. The action was adjourned in contemplation of dismissal after A.H. completed a community service program. In March 2017, A.H. was charged in state court with possession of marijuana; this action was also adjourned in contemplation of dismissal.2
In June 2017, ICE officers arrested A.H. pursuant to a warrant that alleged removability. A.H. was flown to California and detained at the Yolo County Juvenile Detention Facility.3

2 A.H. was arrested on the marijuana charge together with a friend who admitted to a previous gang affiliation. A.H., however, denied any gang involvement.
3 After filing this lawsuit, A.H. was transferred to a lower-security ORR facility in New York.

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c. Procedural Background
A.H. filed this action in the United States District Court for the Northern District of California in June 2017, seeking a writ of habeas corpus, a declaratory judgment, and injunctive relief.4 In August 2017, A.H. filed an amended habeas corpus petition and a putative class action complaint.5 Relevant to this appeal, the complaint alleged violation of the Fifth Amendment procedural due process rights of the putative class. A.H. then moved for a preliminary injunction and provisional class certification.
For purposes of ruling on the preliminary injunction motion, the district court provisionally certified
a class of noncitizen minors meeting the following criteria: (1) the noncitizen came to the country as an unaccompanied minor; (2) the noncitizen was previously detained in ORR custody and then released by ORR to a sponsor; (3) the noncitizen has been or will be rearrested by DHS on the basis of a

4 A.H.’s mother, Ilsa Saravia, filed this suit on his behalf. For ease of reference, we refer to A.H. as the plaintiff.
5 The amended complaint added two plaintiffs, F.E. and J.G. Like A.H., the two new plaintiffs had originally been released by ORR to the custody of their mothers in New York. Federal immigration authorities later detained F.E. and J.G. in secure juvenile detention, alleging gang affiliation. The district court dismissed F.E. and J.G.’s claims without prejudice for improper venue, but noted that “as members of the proposed class, they could still benefit from relief granted on a classwide basis.” Saravia v. Sessions, 280 F. Supp. 3d 1168, 1191 n.11 (N.D. Cal. 2017). F.E. and J.G. do not challenge the venue ruling in this appeal.

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removability warrant on or after April 1, 2017 on allegations of gang affiliation.6

Saravia, 280 F. Supp. 3d at 1202. The court also granted a preliminary injunction, ordering a “prompt hearing” before a neutral decisionmaker, “in which the government must show that . . . changed circumstances” justified the minors’ detention. Id. at 1197, 1205–06. The injunction provided that the minor and sponsor “must receive notice of the basis for the rearrest,” and the hearing must occur “within seven days of arrest, absent extraordinary circumstances,” “in the jurisdiction where the minor has been arrested or where the minor lives.” Id. The government timely appealed.7
II. Jurisdiction and Standard of Review
We have jurisdiction of this appeal from the grant of a preliminary injunction under 28 U.S.C. § 1292(a)(1). See Thalheimer v. City of San Diego, 645 F.3d 1109, 1115 (9th Cir. 2011). “We review a district court’s decision to grant or deny a preliminary injunction for abuse of discretion.” Id. “Abuse-of-discretion review is highly deferential to the district court.” Microsoft Corp. v. Motorola, Inc., 696 F.3d 872, 881 (9th Cir. 2012). We do not “determine the ultimate merits,” but rather “determine only whether the district court correctly distilled the applicable rules of law and exercised permissible discretion in applying those rules to the facts at

6 The government does not challenge the provisional class certification on appeal.
7 Plaintiffs have moved to supplement the record on appeal with records of hearings subsequently held for conditional class members, which show that the great majority of hearings resulted in release from detention. Because these records are unnecessary for the disposition of this appeal, we DENY the motion.

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hand.” Fyock v. Sunnyvale, 779 F.3d 991, 995 (9th Cir. 2015).
III. Discussion
The familiar Winter standard provides that “[a] plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). In this case, however, we need consider only the plaintiffs’ likelihood of success on their Fifth Amendment claims; the government does not quarrel with the district court’s application of the other Winter factors.
Applying Mathews v. Eldridge, 424 U.S. 319 (1976), the district court found the minors could likely show they were entitled to a hearing to challenge the allegations of gang involvement. Saravia, 280 F. Supp. 3d at 1194–1201. The government has correctly conceded that Mathews supplies the governing legal standard, and that plaintiffs are entitled a hearing in which they can contest the allegations that led to their arrests, see Oral Argument at 1:55–2:09, 13:07–:30, Saravia v. Sessions (No. 18-15114), https://youtu.be/7wuO aflXrLk; see generally Hernandez v. Sessions, 872 F.3d 976, 981 (9th Cir. 2017) (“[T]he government’s discretion to incarcerate non-citizens is always constrained by the requirements of due process.”).8 ORR has previously

8 Whether existing procedures gave Plaintiffs sufficient opportunity to contest allegations of gang affiliation matters only if the legality of their rearrests and detention stand or fall on those allegations. DHS’s enforcement authority under the INA includes the authority to arrest and

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determined that each of the class members was neither dangerous nor posed a flight risk, and that the TVPRA therefore mandated placement with a suitable sponsor. See 8 U.S.C. § 1232(c)(2)(A). Thus, we focus not on the minors’ arrests, but the revocation of their previous placements under the TVPRA. See Goldberg v. Kelly, 397 U.S. 254, 261–62 (1970) (recognizing that the denial or removal of statutory benefits is constrained by procedural due process); see also Logan v. Zimmerman Brush Co., 455 U.S. 422, 430–31 (1982) (collecting cases); Vitek v. Jones, 445 U.S. 480, 488 (1980) (similar).
The issues before us are therefore narrow. While agreeing that the minors are entitled to a hearing to contest the gang allegations, the government contends that the district court abused its discretion in entering the preliminary injunction because (1) the relief ordered conflicts with the TVPRA and the Flores settlement and (2) existing procedures provide the minors an adequate opportunity to challenge the revocation of their placements. We address these arguments in turn.

detain any alien on a warrant “pending a decision on whether the alien is to be removed from the United States.” 8 U.S.C. § 1226(a); see also Preap v. Johnson, 831 F.3d 1193, 1198 (9th Cir. 2016) (“8 U.S.C. § 1226(a) grants the AG discretion to arrest and detain any alien upon the initiation of removal proceedings.”) (emphasis added). But the Government conceded at oral argument that Plaintiffs were entitled to a hearing to contest the finding of dangerousness that led to their rearrest. We therefore assume only for purposes of this appeal that the Government’s plenary power to enforce immigration laws is an insufficient basis to justify Plaintiffs’ rearrests, and that Plaintiffs have a due process right to contest the allegations of gang affiliation that led to their rearrests and detention at a higher level of custody.

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a. The TVPRA and Flores Settlement
The TVPRA mandates that ORR place unaccompanied children in the “least restrictive setting that is in the best interest of the child.” 8 U.S.C. § 1232(c)(2)(A). The preliminary injunction is entirely consistent with that statutory mandate. For each member of the plaintiff class, ORR has already determined that the “least restrictive setting that is in the best interest of the child” is placement with a sponsor. As the district court recognized, “[i]f DHS could, the day after a minor was released to a parent or other sponsor, arrest the minor . . . and restart the process, the TVPRA’s instruction to place the minor in the least restrictive appropriate setting would mean little.” Saravia, 280 F. Supp. 3d at 1196.
The preliminary injunction therefore orders the minor’s release to the previous custodian if a neutral adjudicator determines, after a hearing, that the minor poses no danger to the community or himself and is not a flight risk. Id. at 1176–77, 1197. The government first complains the injunction somehow conflicts with the TVPRA provision prohibiting the government from placing a minor “with a person or entity unless [ORR] makes a determination that the proposed custodian is capable of providing for the child’s physical and mental well-being.” 8 U.S.C. § 1232(c)(3)(A). But, the preliminary injunction calls for the minors to be released back to their previous sponsors; the government has already determined each of these sponsors is suitable. Nothing in the TVPRA requires the government to conduct this review a second time.9

9 The district court recognized that if “ORR has legitimate concerns about the sponsor’s suitability, its existing procedures, including

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Although the preliminary injunction requires a hearing within seven days of a minor’s arrest, it provides the government significant flexibility in deciding whether and where to detain the minor in the interim. Contrary to the government’s assertions on appeal, nothing in the order prohibits the government from transferring the minors to ORR custody within 72 hours, as required by the TVPRA. See id. § 1232(b)(3). Moreover, the government concedes that it can avoid the 72 hour rule when appropriate “under the ‘exceptional circumstances’ exception to the TVPRA.” See id.
The government argues in passing that the preliminary injunction’s requirement to hold the hearing “in the jurisdiction where the minor has been arrested or where the minor lives,” Saravia, 280 F. Supp. 3d at 1197, is burdensome, because the government only maintains juvenile immigration detention facilities in limited locations. But, at the preliminary injunction stage, the district court was well within its discretion to conclude that the cost of transporting minors to the hearing location was not likely to outweigh the benefits provided by its order, given that witnesses and evidence concerning the gang allegations that led to the minor’s current predicament are most likely to be found where they lived. See Hernandez, 872 F.3d at 993 (noting “minimal costs to the government . . . are greatly outweighed by the likely reduction it will effect in unnecessary deprivations of individuals’ physical liberty”); see also Vasquez v. Rackauckas, 734 F.3d 1025, 1046 (9th Cir. 2013) (“Determining whether an individual is an active

coordination with state welfare agencies, would presumably be sufficient to address those concerns.” Saravia, 280 F. Supp. 3d at 1198 n.15. At the preliminary injunction hearing, a government witness testified that ORR typically refers such cases to Child Protective Services.

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gang member presents a considerable risk of error. The informal structure of gangs, the often fleeting nature of gang membership, and the lack of objective criteria in making the assessment all heighten the need for careful factfinding.”).

b. Adequacy of Existing Procedures
The government next contends that the district court failed to consider two existing procedural protections allegedly available to the minors: (1) an internal review process mandated by the TVPRA and (2) the bond hearings required by the Flores settlement. To the contrary, the district court expressly considered “current ORR procedures,” including “the right to challenge a finding of dangerousness in a Flores bond hearing . . . and regular review by ORR to determine the appropriate security level” and concluded that “on the current record” these procedures “appear inadequate to protect against the risk of minors being erroneously taken away from their sponsors.” Saravia, 280 F. Supp. 3d at 1198–99.
The district court did not abuse its discretion in so concluding. The TVPRA requires ORR to review a minor’s placement in a secure facility on a monthly basis. 8 U.S.C. § 1232(c)(2)(A). But, the process is entirely unilateral; the juvenile is not provided with notice of the reason for incarceration or an opportunity to answer any charges. See id.; ORR Guide § 1.4.2. “Due process always requires, at a minimum, notice and an opportunity to respond.” United States v. Raya-Vaca, 771 F.3d 1195, 1204 (9th Cir. 2014); see also Zimmerman Brush Co., 455 U.S. at 434 (reciting rule). “The mere availability and utilization of some procedures does not mean they were constitutionally sufficient.” D.B. v. Cardall, 826 F.3d 721, 743 (4th Cir. 2016); see Vitek, 445 U.S. at 491.

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Flores hearings provide minors in ORR custody the right to a bond hearing before an immigration judge to challenge the agency’s determination that the minor is a danger to himself or the community. See Flores, 862 F.3d at 879; see also ORR Guide § 2.9; Flores Settlement ¶ 24A. But, these hearings were designed to consider ORR’s initial determination under the TVPRA that a minor should be detained in a secure facility. Thus, “a favorable finding in a [Flores hearing] does not entitle minors to release” because “the government must still identify a safe and secure placement into which the child can be released.” Flores, 862 F.3d at 867; ORR Guide § 2.9. This requires a “verification of the custodian’s identity and relationship to the child, if any, as well as an independent finding that the individual has not engaged in any activity that would indicate a potential risk to the child.” See 8 U.S.C. § 1232(c)(3)(A). That process can take months. See, e.g., Santos v. Smith, 260 F. Supp. 3d 598, 613–14 (W.D. Va. 2017); Beltran v. Cardall, 222 F. Supp. 3d 476, 483–84 (E.D. Va. 2016). The district court did not abuse its discretion in concluding that Flores hearings were not sufficient to protect the TVPRA rights of the members of the plaintiff class, each of whom had initially been found to qualify for placement with a parent or sponsor previously approved by ORR.
Moreover, due process requires “the opportunity to be heard ‘at a meaningful time.’” Mathews, 424 U.S. at 333 (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). But, as the government candidly conceded at oral argument, see Oral Argument at 1:01–:09, 4:19–6:47, 8:33–:42, the record is unclear as to how promptly minors receive Flores hearings. One class member, for example, was arrested on June 16, 2017, and requested a Flores hearing on August 22, 2017. As of September 22, 2017, no such hearing had been

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scheduled. See Flores Settlement ¶ 12.A (providing only that the government “shall expeditiously process the minor and shall provide the minor with a notice of . . . the right to a bond redetermination hearing”); ORR Guide § 2.9. In the district court, the government did not provide a clear timeline for hearings for members of the conditional class under the Flores settlement, instead describing the hearings as a “new requirement” and “a work in progress.” Thus, the district court reasonably found “the evidence suggests [class members] will remain in ORR custody . . . indefinitely in the absence of a preliminary injunction.” Saravia, 280 F. Supp. 3d at 1200. It was plainly not an abuse of discretion for the court to conclude “on the current record” that current procedures “appear inadequate.” 10 Id. at 1198.
IV. Conclusion
We affirm. We, of course, express no view whether a permanent injunction should issue or, if so, what it should provide. Nor do we suggest that the government cannot seek

10 The government also argues the district court abused its discretion by modeling its preliminary injunction order on the procedures applicable to adults re-arrested by ICE after having been released on bond pursuant to 8 U.S.C. § 1226(b). In Matter of Sugay, 17 I. & N. Dec. 637, 640 (BIA 1981), the BIA recognized that “where a previous bond determination has been made by an immigration judge, no change should be made . . . absent a change of circumstance.” At the preliminary injunction hearing, the government explained that DHS complies with Sugay by conducting a “changed circumstances” bond hearing before an immigration judge within seven to fourteen days of an arrest. Contrary to the government’s characterization on appeal, the district court never held that Sugay requires these hearings; the court simply noted that “[a]ccording to government counsel, DHS has incorporated this holding into its practice” by holding such hearings. Saravia, 280 F. Supp. 3d at 1197. The district court then reasonably looked to these procedures for guidance in structuring preliminary relief.

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modification of the preliminary injunction based on new arguments or evidence. We hold only that, on this record, the district court did not abuse its discretion in concluding that the minors were entitled to some sort of due process hearing and ordering the government, pendente lite, to provide members of the minor class with the procedural protections set forth in its order.
AFFIRMED.

 
 Case 3:17-cv-03615-VC Document 173 Filed 12/03/18 Page 1 of 2

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

ILSA SARAVIA, Plaintiff,
v. JEFFERSON B. SESSIONS, et al.,
Defendants.

Case No. 17-cv-03615-VC
ORDER GRANTING IN PART AND DENYING IN PART THE MOTION TO CLARIFY THE CLASS DEFINITION
Re: Dkt. No. 160

The plaintiffs have filed a motion to clarify the provisional class definition – a motion that appears to be, in part, an effort to expand the class definition. The motion is granted in part and denied in part.
To the extent the plaintiffs seek to clarify that the provisional class is not limited to minors who are taken into DHS custody solely on allegations of gang affiliation (and who otherwise meet the class definition), but rather includes those minors taken into custody based partly on allegations of gang affiliation, their motion is granted. Nowhere does the preliminary injunction ruling suggest that it would not apply to a minor who otherwise meets the class definition and is taken into DHS custody based partly on allegations of gang affiliation and partly on other factors. Because the preliminary injunction ruling was already clear on this point, the government must apply this ruling both retrospectively and prospectively.
However, to the extent the plaintiffs seek to “clarify” that the provisional class includes any minor who otherwise meets the class definition and for whom DHS happens to have information about gang affiliation when he is taken into custody, their motion is denied. This aspect of the plaintiffs’ motion appears directed primarily at minors taken into DHS custody

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through the Criminal Alien Program, or “CAP.” But to the extent a minor is automatically transferred from local custody to DHS custody through CAP based on a factor such as a conviction or arrest, the fact that DHS happens to possess information about gang affiliation would not place that minor in the provisional class. Presumably if DHS made a discretionary decision to take a minor who otherwise meets the class definition into custody through CAP based in part on allegations of gang affiliation, this minor would be a member of the provisional class, but the parties have not provided the Court with enough information about how CAP operates to assess whether that takes place. The plaintiffs may conduct discovery related to unaccompanied minors previously placed with sponsors who are subsequently taken into custody through CAP or other similar programs, because this issue squarely relates to the due process claim brought on behalf of the class.
To the extent there are any further disagreements over the application of the provisional class definition, this written ruling controls, rather than any comments the Court made during the hearing.

IT IS SO ORDERED. Dated: December 3, 2018

______________________________________
VINCE CHHABRIA United States District Judge

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 Case 3:17-cv-03615-VC Document 196 Filed 01/25/19 Page 1 of 3

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

ILSA SARAVIA, Plaintiff,
v. JEFFERSON B. SESSIONS, et al.,
Defendants.

Case No. 17-cv-03615-VC
ORDER GRANTING IN PART AND DENYING IN PART THE MOTION TO CLARIFY THE COURT'S DECEMBER 3, 2018, ORDER
Re: Dkt. No. 181

The defendants have filed a motion for clarification, in which they seek guidance on the application of the preliminary injunction to two unaccompanied minors, Y.M.M.C. and K.D.C.S. The defendants also request clarification on the general application of the Court’s December 3, 2018, order. The motion is granted in part and denied in part.
1. Whether an unaccompanied minor can be released from ORR custody involves two questions: (1) whether the minor is a danger to the community or a flight risk; and (2) whether there is a suitable sponsor to whom the minor can be released. The preliminary injunction involves the procedures that must be made available to challenge the government’s decision to take a released minor back into custody when the government has changed its mind on the first question, operating on the assumption that the answer to the second question has remained the same. The government has now presented two minors who were detained after encounters with local law enforcement, but who, the government alleges, cannot be safely returned to their original sponsors. According to the government, both minors might be members of the Saravia class, but the government is concerned that if it provides them with hearings, and if the hearings result in a conclusion by an immigration judge that the minors are still not a danger to the

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community or a flight risk, and if ORR then fails to release the minors on the ground that the sponsors are no longer suitable, the government will be deemed out of compliance with the preliminary injunction.
The government need not be concerned about this. The preliminary injunction ruling requires the release of minors who were rearrested after previously being placed with a sponsor when an immigration judge concludes that changed circumstances do not exist with respect to their being a danger or a flight risk, but only if there is a suitable sponsor. In other words, the preliminary injunction ruling did not override HHS’s obligation under the TVPRA to ensure that minors are placed with custodians “capable of providing for the child’s physical and mental wellbeing.” 8 U.S.C. § 1232(c)(3)(A). To resolve the presumably very small percentage of cases where the government believes it cannot comply with the TVPRA by releasing minors to their previously-designated sponsors, ORR should follow its existing policies for unaccompanied minors.1 See U.S. Department of Health and Human Services, ORR Guide: Children Entering the United States Unaccompanied, available at https://perma.cc/4QCP-CQGD (last visited Jan. 25, 2018). This includes, of course, making sure that the minors are not held in a more restrictive facility than necessary.
2. With respect to the defendants’ general request for a further ruling regarding the class definition, the motion is denied. The defendants’ brief largely repeats the arguments made with respect to the prior motion for clarification. See Dkt. No. 173. Until the parties have had a chance to complete discovery and provide the Court with additional information surrounding the defendants’ policies, it is not appropriate to revisit the class definition, or to pre-adjudicate all the possible situations in which it might be difficult to determine whether a minor is a member of the provisional class. However, as discussed at the hearing, the government should, when in doubt,
1 The Court is cognizant of its prior order rejecting the government’s arguable attempt to use sponsor suitability to flout the preliminary injunction as to A.H., the named plaintiff. See Dkt. No. 117. But there is no indication that the government has engaged in similar conduct since then, and certainly no indication that it’s doing so with respect to the two minors currently at issue.
2

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err on the side of providing a hearing. And agents in the field must, when in doubt, consult with

counsel.

IT IS SO ORDERED.

Dated: January 25, 2019

______________________________________
VINCE CHHABRIA United States District Judge

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