CLOSED,HABEAS,ECF
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:18-cv-01453-PAC

L.V.M. v. Lloyd et al Assigned to: Judge Paul A. Crotty Related Cases: 1:18-cv-08993-PAC
1:18-cv-10332-PAC-KNF Cause: 28:2241fd Petition for Writ of Habeas Corpus (Federal)

Date Filed: 02/16/2018 Date Terminated: 04/07/2021 Jury Demand: None Nature of Suit: 463 Habeas Corpus Alien Detainee Jurisdiction: U.S. Government Defendant

Petitioner
L.V.M. a minor, by and through his next friend Edith Esmeralda Mejia De Galindo, on his own behalf and on behalf of others similarly situated

represented by Paige Austin Make the Road New York 301 Grove St. Brooklyn, NY 11237 718-418-7690 Email: paustin@nyclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aadhithi Padmanabhan Legal Aid Society 199 Water Street, 3rd Floor New York, NY 10038 212-298-3144 Fax: 646-365-2717 Email: apadmanabhan@legalaid.org TERMINATED: 05/23/2019

Antony Philip Falconer Gemmell New York Civil Liberties Union 125 Broad Street, 19th Floor New York, NY 10024 212-607-3320 Email: agemmell@nyclu.org ATTORNEY TO BE NOTICED

Jessica Perry New York Civil Liberties Union

V.
Respondent
Scott Lloyd Director, Office Refugee Resettlement

125 Broad Street, 19th Floor New York, NY 10024 212-607-3323 Fax: 212-607-3318 Email: jperry@nyclu.org ATTORNEY TO BE NOTICED
Robert Andrew Hodgson New York Civil Liberties Union 125 Broad St. 19th Floor New York, NY 10004 (212)-607-3317 Email: rhodgson@nyclu.org ATTORNEY TO BE NOTICED
Scout Katherine Katovich Emery Celli Brinckerhoff Abady Ward Maazel LLP 600 Fifth Avenue Ste 10th Floor New York, NY 10020 212-763-5000 Email: skatovich@nyclu.org TERMINATED: 08/15/2018
Christopher Thomas Dunn New York Civil Liberties Union 125 Broad Street, 17th floor New York, NY 10004 (212) 344-3005 Fax: (212) 344-3318 Email: cdunn@nyclu.org ATTORNEY TO BE NOTICED
represented by Michael James Byars U.S. Attorney's Office, SDNY (Chambers Street) 86 Chambers Street New York, NY 10007 212-637-2793 Fax: 212-637-2786 Email: michael.byars@usdoj.gov

Respondent
Jonathan White Deputy Director, Office of Refugee Resettlement

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca Sol Tinio U.S. Attorney's Office, SDNY 86 Chambers Street, 3rd Floor New York, NY 10007 (212) 637-2774 Fax: (212) 637-2702 Email: rebecca.tinio@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey Stuart Oestericher U.S. Attorney's Office, SDNY (86 Chambers St.) 86 Chambers Street New York, NY 10007 212-637-2200 Fax: 212-637-2730 Email: Jeffrey.Oestericher@usdoj.gov ATTORNEY TO BE NOTICED
Natasha Waglow Teleanu United States Attorney's Office, SDNY 86 Chambers Street, 3rd fl. New York, NY 10007 212-637-2528 Fax: 212-637-2786 Email: natasha.teleanu@usdoj.gov ATTORNEY TO BE NOTICED
represented by Michael James Byars (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca Sol Tinio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey Stuart Oestericher

Respondent Steven Wagner Acting Assistant Secretary for the Administration for Children and Families, U.S. Department of Health and Human Services
Respondent Alex Azar Secretary, U.S. Department of Health and Human Services

(See above for address) ATTORNEY TO BE NOTICED
Natasha Waglow Teleanu (See above for address) ATTORNEY TO BE NOTICED
represented by Michael James Byars (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca Sol Tinio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey Stuart Oestericher (See above for address) ATTORNEY TO BE NOTICED
Natasha Waglow Teleanu (See above for address) ATTORNEY TO BE NOTICED
represented by Michael James Byars (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca Sol Tinio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey Stuart Oestericher (See above for address) ATTORNEY TO BE NOTICED
Natasha Waglow Teleanu (See above for address) ATTORNEY TO BE NOTICED

Respondent Elcy Valdez Federal Field Specialist, Office of Refugee Resettlement
Respondent Jeremy Kohomban President and Chief Executive Officer, Children's Village TERMINATED: 06/08/2018

represented by Michael James Byars (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca Sol Tinio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey Stuart Oestericher (See above for address) ATTORNEY TO BE NOTICED
Natasha Waglow Teleanu (See above for address) ATTORNEY TO BE NOTICED
represented by Benjamin Fisher Neidl E. Stewart Jones Hacker Murphy LLP 28 Second Street Troy, NY 12180 518-274-5820 Email: bneidl@joneshacker.com ATTORNEY TO BE NOTICED
Jeffrey Stuart Oestericher (See above for address) ATTORNEY TO BE NOTICED

Date Filed 02/20/2018

#

Docket Text

***NOTICE TO ATTORNEY REGARDING PARTY MODIFICATION. Notice to attorney Christopher T Dunn. The party information for the following party/parties has been modified: L.V.M., Scott Lloyd, Jonathan White, Steven R. Wagner, Alex Azar, Elcy Valdez, Jeremy Kohomban. The information for the party/parties has been modified for the following reason/reasons: party name contained a typographical error; party role was entered incorrectly; party text was omitted. (pc) (Entered: 02/20/2018)

02/20/2018
02/20/2018
02/20/2018
02/20/2018 02/21/2018 02/22/2018 02/22/2018 02/22/2018

***NOTICE TO ATTORNEY REGARDING CIVIL. CASE OPENING STATISTICAL ERROR CORRECTION: Notice to attorney Christopher T Dunn. The following case opening statistical information was erroneously selected/entered: Cause of Action code 05:551; Nature of Suit code 440 (Civil Rights: Other). The following correction(s) have been made to your case entry: the Cause of Action code has been modified to 28:2241; the Nature of Suit code has been modified to 463 (Habeas Corpus - Alien Detainee). (pc) (Entered: 02/20/2018)
CASE OPENING INITIAL ASSIGNMENT NOTICE: The aboveentitled action is assigned to Judge Paul A. Crotty. Please download and review the Individual Practices of the assigned District Judge, located at http://nysd.uscourts.gov/judges/District. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at http://nysd.uscourts.gov/ecf_filing.php. (pc) (Entered: 02/20/2018)
Magistrate Judge Kevin Nathaniel Fox is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: http://nysd.uscourts.gov/forms.php. (pc) (Entered: 02/20/2018)
Case Designated ECF. (pc) (Entered: 02/20/2018)
5 NOTICE OF APPEARANCE by Paige Austin on behalf of L.V.M.. (Austin, Paige) (Entered: 02/21/2018)
6 REQUEST FOR ISSUANCE OF SUMMONS as to Jeremy Kohomban, re: 1 Petition for Writ of Habeas Corpus. Document filed by L.V.M.. (Austin, Paige) (Entered: 02/22/2018)
7 REQUEST FOR ISSUANCE OF SUMMONS as to Steven Wagner, re: 1 Petition for Writ of Habeas Corpus. Document filed by L.V.M.. (Austin, Paige) (Entered: 02/22/2018)
8 REQUEST FOR ISSUANCE OF SUMMONS as to Scott Lloyd, re: 1 Petition for Writ of Habeas Corpus. Document filed by L.V.M.. (Austin, Paige) (Entered: 02/22/2018)

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02/26/2018 02/27/2018 02/27/2018

9 REQUEST FOR ISSUANCE OF SUMMONS as to Elcy Valdez, re: 1 Petition for Writ of Habeas Corpus. Document filed by L.V.M.. (Austin, Paige) (Entered: 02/22/2018)
10 REQUEST FOR ISSUANCE OF SUMMONS as to Alex Azar, re: 1 Petition for Writ of Habeas Corpus. Document filed by L.V.M.. (Austin, Paige) (Entered: 02/22/2018)
11 REQUEST FOR ISSUANCE OF SUMMONS as to Jonathan White, re: 1 Petition for Writ of Habeas Corpus. Document filed by L.V.M.. (Austin, Paige) (Entered: 02/22/2018)
12 ELECTRONIC SUMMONS ISSUED as to Jeremy Kohomban. (sj) (Entered: 02/23/2018)
13 ELECTRONIC SUMMONS ISSUED as to Steven Wagner. (sj) (Entered: 02/23/2018)
14 ELECTRONIC SUMMONS ISSUED as to Scott Lloyd. (sj) (Entered: 02/23/2018)
15 ELECTRONIC SUMMONS ISSUED as to Elcy Valdez. (sj) (Entered: 02/23/2018)
16 ELECTRONIC SUMMONS ISSUED as to Alex Azar. (sj) (Entered: 02/23/2018)
17 ELECTRONIC SUMMONS ISSUED as to Jonathan White. (sj) (Entered: 02/23/2018)
18 LETTER MOTION for Conference on Motion for Preliminary Injunction and Expedited Discovery Schedule addressed to Judge Paul A. Crotty from Paige Austin dated 2/26/2018. Document filed by L.V.M..(Austin, Paige) (Entered: 02/26/2018)
19 NOTICE OF APPEARANCE by Michael James Byars on behalf of Alex Azar, Scott Lloyd, Elcy Valdez, Steven Wagner, Jonathan White. (Byars, Michael) (Entered: 02/26/2018)
20 NOTICE OF APPEARANCE by Aadhithi Padmanabhan on behalf of L.V.M.. (Padmanabhan, Aadhithi) (Entered: 02/27/2018)
21 AFFIDAVIT OF SERVICE of Letter Motion served on Scott Lloyd; Jonathan White; Steven Wagner; Alex Azar; Elcy Valdez on 2/27/2018. Service was made by Mail. Document filed by L.V.M.. (Austin, Paige) (Entered: 02/27/2018)

03/01/2018 03/02/2018 03/06/2018 03/11/2018 03/14/2018 03/15/2018
03/20/2018

22 AFFIDAVIT OF SERVICE of Letter Motion served on Jeremy Kohomban on 3/1/2018. Service was made by Mail. Document filed by L.V.M.. (Austin, Paige) (Entered: 03/01/2018)
Notice of Pre-Motion Conference: A Pre-Motion Conference is scheduled to go forward on: Wednesday, March 14, 2018 @ 12:00 PM, 500 Pearl Street, Courtroom 14-C before Judge Paul A. Crotty. If the date is not convenient, either party can e-mail three (3) mutually convenient dates to the Courtroom Deputy at: David_C_Gonzalez@nysd.uscourts.gov ----- A PDF IS NOT ATTACHED TO THIS ENTRY ----- (By: David Gonzalez Courtroom Deputy).(dgo) (Entered: 03/02/2018)
Calendar Entry *DATE CHANGE*: The Pre-Motion Conference scheduled to go forward on Wednesday, March 14, 2018 is rescheduled to: Thursday, March 15, 2018 @ 10:30 AM before Judge Paul A. Crotty, U.S.D.J, Courtroom 14C, 500 Pearl Street, NY, NY. Reason for adjournment (on consent): the 3/14/18 not a convenient date for the parties. A PDF IS NOT ATTACHED TO THIS ENTRY (reset via e-mail communication by: David Gonzalez - Courtroom Deputy). (dgo) (Entered: 03/06/2018)
23 LETTER addressed to Judge Paul A. Crotty from AUSA Michael J. Byars dated March 11, 2018 re: response to February 26, 2018 letter (ECF 18). Document filed by Alex Azar, Scott Lloyd, Elcy Valdez, Steven Wagner, Jonathan White.(Byars, Michael) (Entered: 03/11/2018)
CALENDAR ENTRY **REMINDER**: Pre-Motion Conference scheduled to go forward on: Thursday, March 15, 2018 @ 10:30 AM, 500 Pearl Street, Courtroom 14-C before Judge Paul A. Crotty, U.S.D.J. ----- A PDF IS NOT ATTACHED TO THIS ENTRY ----- (By David Gonzalez - Courtroom Deputy).(dgo) (Entered: 03/14/2018)
Minute Entry for proceedings held before Judge Paul A. Crotty: Pre-Motion Conference held on 3/15/2018. REMARK: Paige Austin, Christopher Dunn, Aadhithi Padmanabhan, and Scout Katovich appeared for the plaintiff. AUSA Michael Byars appeared for the government. The Court directs the plaintiff to make its discovery demands in writing and to meet and confer with the government. A conference is set for Thursday, March 22, 2018 at 11:15 AM. See transcript for details. (Court Reporter Rose Prater) (dgo) (Entered: 03/15/2018)
CALENDAR ENTRY **REMINDER**: Status Conference scheduled to go forward on: Thursday, March 22, 2018 @ 11:15

03/21/2018 03/22/2018
03/27/2018
03/27/2018
03/28/2018 03/29/2018

AM, 500 Pearl Street, Courtroom 14-C before Judge Paul A. Crotty, U.S.D.J. ----- A PDF IS NOT ATTACHED TO THIS ENTRY ----- (By David Gonzalez - Courtroom Deputy).(dgo) (Entered: 03/20/2018)
24 JOINT LETTER addressed to Judge Paul A. Crotty from Counsel for Plaintiffs and Federal Defendants dated 3/21/2018 re: Parties' Joint Letter Regarding Expedited Discovery and Proposed Briefing Schedule. Document filed by L.V.M..(Austin, Paige) (Entered: 03/21/2018)
Calendar Entry *DATE CHANGE*: The Status Conference scheduled to go forward on Thursday, March 22, 2018 is rescheduled to: Thursday, March 29, 2018 @ 11:00 AM before Judge Paul A. Crotty, U.S.D.J, Courtroom 14C, 500 Pearl Street, NY, NY. Reason for adjournment: the 3/22/18 no longer a convenient date for the Court. A PDF IS NOT ATTACHED TO THIS ENTRY (reset via e-mail communication by: David Gonzalez - Courtroom Deputy). (dgo) Modified on 3/23/2018 (dgo). (Entered: 03/22/2018)
25 TRANSCRIPT of Proceedings re: conference held on 3/15/2018 before Judge Paul A. Crotty. Court Reporter/Transcriber: Rose Prater, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/17/2018. Redacted Transcript Deadline set for 4/27/2018. Release of Transcript Restriction set for 6/25/2018.(McGuirk, Kelly) (Entered: 03/27/2018)
26 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a confernece proceeding held on 3/15/18 has been filed by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 03/27/2018)
27 NOTICE OF APPEARANCE by Benjamin Fisher Neidl on behalf of Jeremy Kohomban. (Attachments: # 1 Affidavit Affirmation of Service)(Neidl, Benjamin) (Entered: 03/28/2018)
Minute Entry for proceedings held before Judge Paul A. Crotty: Status Conference held on 3/29/2018. REMARK: Paige Austin,

04/04/2018 04/05/2018 04/10/2018 04/12/2018 04/17/2018
04/17/2018

Christopher Dunn, Aadhithi Padmanabhan, and Scout Katovich appeared for the plaintiff. AUSA Michael Byars appeared for the government. Benjamin Neidle apeared for respondent K. Kohomban. The Court ordered the following: S. Lloyd and E. Valdez are to be deposed; Depositions will take place between April 11 and April 13; April 13, 2018 is the close of discovery; Mr. Neidl and the government can move the Court together for a MTD; The Agency is to produce what the parties have agreed to. The PI is due on April 23, 2018. See transcript for details. (Court Reporter Eve Giniger) (dgo) (Entered: 03/29/2018)
28 NOTICE OF APPEARANCE by Natasha Waglow Teleanu on behalf of Alex Azar, Scott Lloyd, Elcy Valdez, Steven Wagner, Jonathan White. (Teleanu, Natasha) (Entered: 04/04/2018)
29 STIPULATED PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material...So Ordered. (Signed by Judge Paul A. Crotty on 4/5/18) (yv) (Entered: 04/05/2018)
30 JOINT LETTER addressed to Judge Paul A. Crotty from Paige Austin dated 4/10/2018 re: Request to Modify Discovery and Briefing Schedule. Document filed by L.V.M..(Austin, Paige) (Entered: 04/10/2018)
31 MEMO ENDORSEMENT on re: 30 Letter filed by L.V.M. ENDORSEMENT: The proposed modifications are approved. So ordered.(Deposition due by 4/17/2018. Motions due by 4/27/2018. Responses due by 5/21/2018. Replies due by 5/29/2018.) (Signed by Judge Paul A. Crotty on 4/12/2018) (anc) (Entered: 04/12/2018)
32 TRANSCRIPT of Proceedings re: conference held on 3/29/2018 before Judge Paul A. Crotty. Court Reporter/Transcriber: Eve Giniger, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/8/2018. Redacted Transcript Deadline set for 5/18/2018. Release of Transcript Restriction set for 7/16/2018.(McGuirk, Kelly) (Entered: 04/17/2018)
33 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a conference proceeding held on 3/29/18 has been filed by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction

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of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 04/17/2018)
34 LETTER MOTION for Extension of Time addressed to Judge Paul A. Crotty from Paige Austin, Counsel for the Plaintiffs dated 4/24/18. Document filed by L.V.M..(Padmanabhan, Aadhithi) (Entered: 04/24/2018)
35 ORDER granting 34 Letter Motion for Extension of Time. The briefing schedule is modified as requested on pg 2. SO ORDERED. (Motions due by 5/14/2018.) (Signed by Judge Paul A. Crotty on 4/25/18) (yv) (Entered: 04/26/2018)
Set/Reset Deadlines: Responses due by 5/24/2018. Replies due by 5/31/2018. (yv) (Entered: 04/26/2018)
36 FILING ERROR - DEFICIENT DOCKET ENTRY - FIRST MOTION for Preliminary Injunction . Document filed by L.V.M.. (Attachments: # 1 Affidavit Maria Rafael Declaration, # 2 Affidavit Luis Zayas Declaration, # 3 Affidavit Lisa Fortuna Declaration, # 4 Affidavit Robert Carey Declaration, # 5 Affidavit Carolyn Corrado Declaration, # 6 Affidavit Bryan Johnson Declaration, # 7 Affidavit Cesar Francia Declaration, # 8 Affidavit Dawn Guidone Declaration, # 9 Affidavit LVM Declaration, # 10 Affidavit Edith E. G. Mejia Declaration, # 11 Affidavit Marta E. G. Abrego Declaration, # 12 Affidavit Margarita M. Rodriguez Declaration)(Austin, Paige) Modified on 5/9/2018 (db). (Entered: 04/30/2018)
37 FILING ERROR - DEFICIENT DOCKET ENTRY - MEMORANDUM OF LAW in Support re: 36 FIRST MOTION for Preliminary Injunction . . Document filed by L.V.M.. (Padmanabhan, Aadhithi) Modified on 5/9/2018 (db). (Entered: 04/30/2018)
38 FILING ERROR - DEFICIENT DOCKET ENTRY (SEE 39 Declaration) - DECLARATION of Scout Katovich in Support re: 36 FIRST MOTION for Preliminary Injunction .. Document filed by L.V.M.. (Austin, Paige) Modified on 5/4/2018 (db). (Entered: 04/30/2018)
39 FILING ERROR - DEFICIENT DOCKET ENTRY - DECLARATION of Scout Katovich in Support re: 36 FIRST MOTION for Preliminary Injunction .. Document filed by L.V.M.. (Austin, Paige) Modified on 5/9/2018 (db). (Entered: 04/30/2018)

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40 NOTICE OF APPEARANCE by Scout Katherine Katovich on behalf of L.V.M.. (Katovich, Scout) (Entered: 05/03/2018)
***NOTICE TO ATTORNEY TO RE-FILE DOCUMENT DEFICIENT DOCKET ENTRY ERROR. Notice to Attorney Paige Austin to RE-FILE Document 36 FIRST MOTION for Preliminary Injunction . ERROR(S): Supporting Documents are filed separately, each receiving their own document #. (db) (Entered: 05/09/2018)
***NOTICE TO ATTORNEY TO RE-FILE DOCUMENT DEFICIENT DOCKET ENTRY ERROR. Notice to Attorney Paige Austin to RE-FILE Document 39 Declaration in Support of Motion, 37 Memorandum of Law in Support of Motion. ERROR(S): Documents linked to filing error(s). (db) (Entered: 05/09/2018)
NOTICE of Oral Argument: Oral Argument on the pending motions is scheduled to go forward on: Thursday, June 7, 2018 at 10:30 AM in Courtroom 14C, 500 Pearl Street, New York, NY 10007 before the Honorable Paul A. Crotty, U.S.D.J ----- A PDF IS NOT ATTACHED TO THIS ENTRY ----- (By: David Gonzalez - Courtroom Deputy).(dgo) (Entered: 05/09/2018)
41 FIRST MOTION for Preliminary Injunction . Document filed by L.V.M..(Austin, Paige) (Entered: 05/09/2018)
42 MEMORANDUM OF LAW in Support re: 41 FIRST MOTION for Preliminary Injunction . . Document filed by L.V.M.. (Austin, Paige) (Entered: 05/09/2018)
43 DECLARATION of Scout Katovich in Support re: 41 FIRST MOTION for Preliminary Injunction .. Document filed by L.V.M.. (Austin, Paige) (Entered: 05/09/2018)
44 DECLARATION of Maria Rafael in Support re: 41 FIRST MOTION for Preliminary Injunction .. Document filed by L.V.M.. (Austin, Paige) (Entered: 05/09/2018)
45 DECLARATION of Dr. Luis H. Zayas in Support re: 41 FIRST MOTION for Preliminary Injunction .. Document filed by L.V.M.. (Austin, Paige) (Entered: 05/09/2018)
46 DECLARATION of Dr. Lisa R. Fortuna in Support re: 41 FIRST MOTION for Preliminary Injunction .. Document filed by L.V.M.. (Austin, Paige) (Entered: 05/09/2018)

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05/11/2018

47 DECLARATION of Robert Carey in Support re: 41 FIRST MOTION for Preliminary Injunction .. Document filed by L.V.M.. (Austin, Paige) (Entered: 05/09/2018)
48 DECLARATION of Carolyn Corrado in Support re: 41 FIRST MOTION for Preliminary Injunction .. Document filed by L.V.M.. (Austin, Paige) (Entered: 05/09/2018)
49 DECLARATION of Bryan Johnson in Support re: 41 FIRST MOTION for Preliminary Injunction .. Document filed by L.V.M.. (Austin, Paige) (Entered: 05/09/2018)
50 DECLARATION of Cesar A. Francia in Support re: 41 FIRST MOTION for Preliminary Injunction .. Document filed by L.V.M.. (Austin, Paige) (Entered: 05/09/2018)
51 DECLARATION of Dawn Pipek Guidone in Support re: 41 FIRST MOTION for Preliminary Injunction .. Document filed by L.V.M.. (Austin, Paige) (Entered: 05/09/2018)
52 DECLARATION of L.V.M. in Support re: 41 FIRST MOTION for Preliminary Injunction .. Document filed by L.V.M.. (Austin, Paige) (Entered: 05/09/2018)
53 DECLARATION of Edith Esmeralda de Galindo Mejia in Support re: 41 FIRST MOTION for Preliminary Injunction .. Document filed by L.V.M.. (Austin, Paige) (Entered: 05/09/2018)
54 DECLARATION of Marta Elicia Gonzalez Abrego in Support re: 41 FIRST MOTION for Preliminary Injunction .. Document filed by L.V.M.. (Austin, Paige) (Entered: 05/09/2018)
55 DECLARATION of Margarita Mendoza Rodriguez in Support re: 41 FIRST MOTION for Preliminary Injunction .. Document filed by L.V.M.. (Austin, Paige) (Entered: 05/09/2018)
56 LETTER MOTION for Leave to File Excess Pages and Request for a One-Day Extension of Time addressed to Judge Paul A. Crotty from Natasha W. Teleanu dated 5/10/2018. Document filed by Alex Azar, Scott Lloyd, Elcy Valdez, Steven Wagner, Jonathan White.(Teleanu, Natasha) (Entered: 05/10/2018)
57 ORDER granting 56 Letter Motion for Leave to File Excess Pages. The request for an enlarged brief is granted, and the proposed schedule is adopted. SO ORDERED. (Signed by Judge Paul A. Crotty on 5/11/18) (yv) (Entered: 05/11/2018)

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Set/Reset Deadlines: Responses due by 5/25/2018. Replies due by 6/1/2018. (yv) (Entered: 05/14/2018)
58 MOTION to Dismiss . Document filed by Jeremy Kohomban. Responses due by 5/25/2018 Return Date set for 6/7/2018 at 10:30 AM.(Neidl, Benjamin) (Entered: 05/14/2018)
59 MEMORANDUM OF LAW in Support re: 58 MOTION to Dismiss ., 36 FIRST MOTION for Preliminary Injunction ., 2 MOTION to Certify Class . (Memorandum of Law in support of Jeremy Kohomban's motion to dismiss, and in response to plaintiff/petitioner's motions for preliminary injunction and class certification). Document filed by Jeremy Kohomban. (Neidl, Benjamin) (Entered: 05/14/2018)
60 AFFIRMATION of Benjamin F. Neidl in Support re: 41 FIRST MOTION for Preliminary Injunction ., 58 MOTION to Dismiss ., 2 MOTION to Certify Class .. Document filed by Jeremy Kohomban. (Attachments: # 1 Exhibit Exhibit A (TVPRA), # 2 Exhibit Exhibit B (ORR Policy Guide sec. 1.4.2), # 3 Exhibit Exhibit C (ORR Policy Guide sec. 2.7), # 4 Exhibit Excerpt of Elcy Valdez Deposition Transcript)(Neidl, Benjamin) (Entered: 05/14/2018)
61 MOTION to Dismiss . Document filed by Alex Azar, Scott Lloyd, Elcy Valdez, Steven Wagner, Jonathan White.(Byars, Michael) (Entered: 05/15/2018)
62 DECLARATION of E. Scott Lloyd in Opposition re: 41 FIRST MOTION for Preliminary Injunction .. Document filed by Alex Azar, Scott Lloyd, Elcy Valdez, Steven Wagner, Jonathan White. (Byars, Michael) (Entered: 05/15/2018)
63 DECLARATION of Jallyn Sualog in Opposition re: 41 FIRST MOTION for Preliminary Injunction .. Document filed by Alex Azar, Scott Lloyd, Elcy Valdez, Steven Wagner, Jonathan White. (Byars, Michael) (Entered: 05/15/2018)
64 MEMORANDUM OF LAW in Opposition re: 41 FIRST MOTION for Preliminary Injunction . . Document filed by Alex Azar, Scott Lloyd, Elcy Valdez, Steven Wagner, Jonathan White. (Byars, Michael) (Entered: 05/15/2018)
65 DECLARATION of Marivic Fields in Opposition re: 41 FIRST MOTION for Preliminary Injunction .. Document filed by Alex Azar, Scott Lloyd, Elcy Valdez, Steven Wagner, Jonathan White. (Byars, Michael) (Entered: 05/16/2018)

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06/07/2018

66 LETTER MOTION to Seal Document addressed to Judge Paul A. Crotty from Natasha W. Teleanu dated 5/16/2018. Document filed by Alex Azar, Scott Lloyd, Elcy Valdez, Steven Wagner, Jonathan White.(Teleanu, Natasha) (Entered: 05/16/2018)
67 ORDER granting 66 LETTER Motion to Seal Document. The declaration and exhibits may be filed under seal. SO ORDERED. (Signed by Judge Paul A. Crotty on 5/16/18) (yv) Modified on 5/16/2018 (yv). (Entered: 05/16/2018)
68 SEALED DOCUMENT placed in vault.(mps) (Entered: 05/18/2018)
69 REPLY MEMORANDUM OF LAW in Support re: 41 FIRST MOTION for Preliminary Injunction . . Document filed by L.V.M.. (Austin, Paige) (Entered: 05/25/2018)
70 REPLY AFFIDAVIT of Maria Rafael in Support re: 41 FIRST MOTION for Preliminary Injunction .. Document filed by L.V.M.. (Austin, Paige) (Entered: 05/25/2018)
71 RESPONSE in Opposition to Motion re: 58 MOTION to Dismiss ., 61 MOTION to Dismiss . . Document filed by L.V.M.. (Austin, Paige) (Entered: 05/25/2018)
72 REPLY MEMORANDUM OF LAW in Support re: 58 MOTION to Dismiss . . Document filed by Jeremy Kohomban. (Neidl, Benjamin) (Entered: 05/31/2018)
73 NOTICE OF APPEARANCE by Robert Andrew Hodgson on behalf of L.V.M.. (Hodgson, Robert) (Entered: 06/01/2018)
74 REPLY MEMORANDUM OF LAW in Support re: 2 MOTION to Certify Class . . Document filed by L.V.M.. (Hodgson, Robert) (Entered: 06/01/2018)
75 REPLY MEMORANDUM OF LAW in Support re: 61 MOTION to Dismiss . . Document filed by Alex Azar, Scott Lloyd, Elcy Valdez, Steven Wagner, Jonathan White. (Teleanu, Natasha) (Entered: 06/01/2018)
Minute Entry for proceedings held before Judge Paul A. Crotty: Oral Argument held on 6/7/2018 in regards to the pending motions. REMARK: Paige Austin, Aadhithi Padmanabhan, Christopher Dunn, Scout Katovich and Robert Hodgson appeared for the plaintiff. AUSA's Michael Byars and Natasha Teleanu appeared for the government. Benjamin Neidl appeared for

06/08/2018 06/27/2018
06/29/2018 07/02/2018 07/13/2018 07/20/2018

Defendant Jeremy Kohomban. Jeremy Kohombans' motion is granted. The Court heard argument from both sides. A ruling will be rendered in due time. See transcript for details. (Court Reporter Karen Gorlaski & Jerry Harrison) (dgo) (Entered: 06/07/2018)

76 ORDER. Kohomban's motion to dismiss the complaint is granted. The Clerk of Court is directed to close the motion at ECF 58. So ordered. Granting 58 Motion to Dismiss. Jeremy Kohomban (President and Chief Executive Officer, Children's Village) terminated. (Signed by Judge Paul A. Crotty on 6/8/2018) (rjm) (Entered: 06/08/2018)

OPINION & ORDER re: 41 FIRST MOTION for Preliminary

77

Injunction filed by L.V.M., 61 MOTION to Dismiss filed by

Steven Wagner, Alex Azar, Jonathan White, Scott Lloyd, Elcy

Valdez, 2 MOTION to Certify Class filed by L.V.M.: The motion

to dismiss the Complaint is denied; the motion for class

certification is granted; and the motion for a preliminary injunction

is granted-in-part and denied-in-part. Defendants are ordered to

vacate the director review policy, as reflected in ORR Guide:

Children Entering the United States Unaccompanied as revised on

June 12, 2017, until further order of the Court. The Clerk of the

Court is directed to close the pending motions at ECF 2, 41, and

61. (Signed by Judge Paul A. Crotty on 6/27/2018) (jwh) (Entered:

06/27/2018)

78 LETTER addressed to Judge Paul A. Crotty from Paige Austin, counsel for the plaintiffs dated June 29, 2018 re: LVM v. Lloyd et al.. Document filed by L.V.M..(Hodgson, Robert) (Entered: 06/29/2018)

MEMO ENDORSEMENT on re: 78 Letter requests an additional

79

time to respond to the plaintiffs complaint, filed by L.V.M.

ENDORSEMENT: The time to respond to the complaint is

extended to July 25, 2018. SO ORDERED., (Alex Azar answer

due 7/25/2018; Scott Lloyd answer due 7/25/2018; Elcy Valdez

answer due 7/25/2018; Steven Wagner answer due 7/25/2018;

Jonathan White answer due 7/25/2018.) (Signed by Judge Paul A.

Crotty on 7/2/18) (yv) (Entered: 07/02/2018)

80 LETTER addressed to Judge Paul A. Crotty from All parties dated July 13, 2018 re: Status of ongoing discovery discussions. Document filed by L.V.M..(Austin, Paige) (Entered: 07/13/2018)

81 LETTER addressed to Judge Paul A. Crotty from All Parties dated 7/20/2018 re: Proposed Civil Case Management Plan and Scheduling Order. Document filed by Alex Azar, L.V.M., Scott

07/23/2018
07/25/2018 07/26/2018 07/26/2018

Lloyd, Elcy Valdez, Steven Wagner, Jonathan White. (Attachments: # 1 Civil Case Management Plan and Scheduling Order)(Austin, Paige) (Entered: 07/20/2018)

CIVIL CASE MANAGEMENT PLAN AND SCHEDULING

82

ORDER: All parties do not consent to conducting all further

proceedings before a Magistrate Judge, including motions and

trial. 28 U.S.C. § 636(e). This case is not to be tried to a jury.

Initial disclosure pursuant to Rules 26(a)(1), Fed. R. Civ. P., shall

be completed by: 7/31/18. Deposition due by 10/31/2018. Fact

Discovery due by 10/31/2018. Expert Discovery due by

12/14/2018. Counsel for the parties have conferred and their

present best estimate of the length of trial is: 10 days. Parties to

meet to confer on scheduled for expert disclosures no later than:

11/1/18. All counsel to meet face-to-face to discuss settlement no

later than: 11/14/18. Date recommended by counsel for alternate

dispute resolution: 11/1/18. Pretrial Conference set for 9/27/2018

at 10:45 AM in Courtroom 14C, 500 Pearl Street, New York, NY

10007 before Judge Paul A. Crotty. (Signed by Judge Paul A.

Crotty on 7/23/18) (yv) (Entered: 07/23/2018)

83 RESPONSE to 1 Petition for Writ of Habeas Corpus. Document filed by Alex Azar, Scott Lloyd, Elcy Valdez, Steven Wagner, Jonathan White.(Teleanu, Natasha) (Entered: 07/25/2018)

84 TRANSCRIPT of Proceedings re: hearing held on 6/7/2018 before Judge Sidney H. Stein. Court Reporter/Transcriber: Jerry Harrison, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/16/2018. Redacted Transcript Deadline set for 8/27/2018. Release of Transcript Restriction set for 10/24/2018.(McGuirk, Kelly) (Entered: 07/26/2018)

85 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a hearing proceeding held on 6/7/18 has been filed by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 07/26/2018)

08/01/2018 08/01/2018 08/14/2018 08/15/2018
09/25/2018 09/26/2018
10/04/2018 10/09/2018

86 NOTICE OF APPEARANCE by Rebecca Sol Tinio on behalf of Alex Azar, Scott Lloyd, Elcy Valdez, Steven Wagner, Jonathan White. (Tinio, Rebecca) (Entered: 08/01/2018)

87 NOTICE OF APPEARANCE by Jeffrey Stuart Oestericher on behalf of Alex Azar, Jeremy Kohomban, Scott Lloyd, Elcy Valdez, Steven Wagner, Jonathan White. (Oestericher, Jeffrey) (Entered: 08/01/2018)

88 MOTION for Scout Katovich to Withdraw as Attorney . Document filed by L.V.M.. (Attachments: # 1 Text of Proposed Order Proposed Order for Withdrawal as Counsel)(Katovich, Scout) (Entered: 08/14/2018)

89 ORDER GRANTING MOTION TO WITHDRAW AS COUNSEL FOR PLAINTIFFS/PETITIONERS 88 Motion to Withdraw as Attorney. Scout Katovich seeks leave to withdraw as counsel for Plaintiffs/Petitioners in this matter. As attorneys from the New York Civil Liberties Union will continue to represent Plaintiffs/Petitioners in this matter, this Court concludes that the motion be granted. (Attorney Scout Katherine Katovich terminated.) (Signed by Judge Paul A. Crotty on 8/15/18) (yv) (Entered: 08/15/2018)

90 LETTER addressed to Judge Paul A. Crotty from Paige Austin, Counsel for Plaintiffs dated 09/25/2018 re: Issues in Advance of Conference Scheduled for Sep. 27, 2018. Document filed by L.V.M..(Austin, Paige) (Entered: 09/25/2018)

MEMO ENDORSEMENT on re: 90 Letter in Advance of

91

Conference, filed by L.V.M. ENDORSEMENT: The Conference

set for 9/27 is adjourned. The scheduling order is modified as

requested. There is no need for a pre-motion conference. The

parties should meet and confer to develop a discovery motion

schedule for submission to the Court. SO ORDERED.,

(Deposition due by 12/17/2018., Expert Discovery due by

2/15/2019.) (Signed by Judge Paul A. Crotty on 9/26/18) (yv)

(Entered: 09/26/2018)

92 LETTER addressed to Judge Paul A. Crotty from Plaintiffs' counsel dated October 4, 2018 re: Proposed agreed-upon briefing schedule for the plaintiffs' upcoming motion to compel discovery. Document filed by L.V.M..(Hodgson, Robert) (Entered: 10/04/2018)

MEMO ENDORSEMENT on re: 92 Letter filed by L.V.M.

93

ENDORSEMENT: The schedule proposed at pg 2 is adopted. So

10/15/2018 10/15/2018 10/15/2018 10/15/2018
10/15/2018 10/22/2018 10/23/2018 10/23/2018 10/24/2018

ordered. (Motions due by 10/15/2018, Responses due by 10/22/2018, Replies due by 10/24/2018.) (Signed by Judge Paul A. Crotty on 10/9/2018) (ne) (Entered: 10/09/2018)
94 NOTICE OF LIMITED APPEARANCE OF PRO BONO COUNSEL for L.V.M.. (Wood, Julia) (Entered: 10/15/2018)
95 MOTION to Compel Production of Documents and to Enlarge Number of Depositions. Document filed by L.V.M..(Padmanabhan, Aadhithi) (Entered: 10/15/2018)
96 MEMORANDUM OF LAW in Support re: 95 MOTION to Compel Production of Documents and to Enlarge Number of Depositions. . Document filed by L.V.M.. (Padmanabhan, Aadhithi) (Entered: 10/15/2018)
97 DECLARATION of Paige Austin in Support re: 95 MOTION to Compel Production of Documents and to Enlarge Number of Depositions.. Document filed by L.V.M.. (Attachments: # 1 Exhibit A to Austin Declaration, # 2 Exhibit B to Austin Declaration, # 3 Exhibit C to Austin Declaration, # 4 Exhibit D to Austin Declaration)(Padmanabhan, Aadhithi) (Entered: 10/15/2018)
98 DECLARATION of Robert Carey in Support re: 95 MOTION to Compel Production of Documents and to Enlarge Number of Depositions.. Document filed by L.V.M.. (Padmanabhan, Aadhithi) (Entered: 10/15/2018)
99 LETTER MOTION for Extension of Time addressed to Judge Paul A. Crotty from Rebecca S. Tinio dated October 22, 2018. Document filed by Alex Azar, Scott Lloyd, Elcy Valdez, Steven Wagner, Jonathan White.(Tinio, Rebecca) (Entered: 10/22/2018)
103 ORDER granting 99 Letter Motion for Extension of Time. Request granted. So Ordered. (Signed by Judge Paul A. Crotty on 10/23/2018) (js) ( Modified on 10/25/2018 (js). (Entered: 10/24/2018)
Set/Reset Deadlines as to 95 MOTION to Compel Production of Documents and to Enlarge Number of Depositions.. Responses due by 10/24/2018 Replies due by 10/26/2018. (js) (Entered: 10/24/2018)
100 MEMORANDUM OF LAW in Opposition re: 95 MOTION to Compel Production of Documents and to Enlarge Number of Depositions. . Document filed by Alex Azar, Scott Lloyd, Elcy

10/24/2018 10/25/2018
10/25/2018 10/26/2018 10/26/2018 10/26/2018 11/05/2018 11/08/2018

Valdez, Steven Wagner, Jonathan White. (Tinio, Rebecca) (Entered: 10/24/2018)
101 DECLARATION of Judith Haron in Opposition re: 95 MOTION to Compel Production of Documents and to Enlarge Number of Depositions.. Document filed by Alex Azar, Scott Lloyd, Elcy Valdez, Steven Wagner, Jonathan White. (Tinio, Rebecca) (Entered: 10/24/2018)
102 LETTER MOTION for Extension of Time (nunc pro tunc) addressed to Judge Paul A. Crotty from Rebecca S. Tinio dated October 25, 2018. Document filed by Alex Azar, Scott Lloyd, Elcy Valdez, Steven Wagner, Jonathan White. (Attachments: # 1 Exhibit Proposed Declaration of Sarah Viola)(Tinio, Rebecca) (Entered: 10/25/2018)
104 ORDER granting 102 Letter Motion for Extension of Time: The late filing is accepted. Permission granted to file additional supporting agency declaration. (Signed by Judge Paul A. Crotty on 10/25/2018) (jwh) (Entered: 10/26/2018)
105 DECLARATION of Sarah Viola in Opposition re: 95 MOTION to Compel Production of Documents and to Enlarge Number of Depositions.. Document filed by Alex Azar, Scott Lloyd, Elcy Valdez, Steven Wagner, Jonathan White. (Tinio, Rebecca) (Entered: 10/26/2018)
106 REPLY MEMORANDUM OF LAW in Support re: 95 MOTION to Compel Production of Documents and to Enlarge Number of Depositions. . Document filed by L.V.M.. (Padmanabhan, Aadhithi) (Entered: 10/26/2018)
107 AFFIRMATION of Robert Hodgson in Support re: 95 MOTION to Compel Production of Documents and to Enlarge Number of Depositions.. Document filed by L.V.M.. (Padmanabhan, Aadhithi) (Entered: 10/26/2018)
108 LETTER MOTION for Conference addressed to Judge Paul A. Crotty from Jeffrey Oestericher dated 11/05/2018. Document filed by Alex Azar, Scott Lloyd, Elcy Valdez, Steven Wagner, Jonathan White.(Oestericher, Jeffrey) (Entered: 11/05/2018)
109 LETTER RESPONSE to Motion addressed to Judge Paul A. Crotty from Paige Austin, Counsel for Plaintiffs dated 11/08/2018 re: 108 LETTER MOTION for Conference addressed to Judge Paul A. Crotty from Jeffrey Oestericher dated 11/05/2018. . Document filed by L.V.M.. (Austin, Paige) (Entered: 11/08/2018)

11/21/2018
12/07/2018
12/11/2018 12/12/2018 12/27/2018 12/27/2018 01/04/2019

Notice of Pre-Motion Conference: A Pre-Motion Conference is scheduled to go forward on: Monday, December 10, 2018 @ 4:15 PM, 500 Pearl Street, Courtroom 14-C before Judge Paul A. Crotty. If the date is not convenient, either party can e-mail three (3) mutually convenient dates to the Courtroom Deputy at: David_C_Gonzalez@nysd.uscourts.gov ----- A PDF IS NOT ATTACHED TO THIS ENTRY ----- (By: David Gonzalez Courtroom Deputy).(dgo) (Entered: 11/21/2018)
Calendar Entry *DATE CHANGE*: The Pre-Motion Conference scheduled to go forward on Monday, December 10, 2018 is rescheduled to: Tuesday, January 8, 2019 @ 4:15 PM before Judge Paul A. Crotty, U.S.D.J, Courtroom 14C, 500 Pearl Street, NY, NY. Reason for adjournment (on consent): the 12/10/18 not a convenient date for the Court. If the date is not convenient, either party can e-mail three (3) mutually convenient dates to the Courtroom Deputy at: David_C_Gonzalez@nysd.uscourts.gov. A PDF IS NOT ATTACHED TO THIS ENTRY. (dgo) (Entered: 12/07/2018)
110 LETTER MOTION for Extension of Time to Complete Discovery addressed to Judge Paul A. Crotty from Paige Austin dated December 11, 2018. Document filed by L.V.M..(Austin, Paige) (Entered: 12/11/2018)
111 ORDER granting 110 Letter Motion for Extension of Time to Complete Discovery. The discovery period is kept open until a briefing schedule for defendants' motion is set. SO ORDERED. (Signed by Judge Paul A. Crotty on 12/12/18) (yv) (Entered: 12/13/2018)
112 STANDING ORDER M10-468 The United States Attorney's Office shall notify the Court immediately upon the restoration of Department of Justice funding. (As further set forth in this Order.) (Signed by Judge Colleen McMahon on 12/27/2018) (ks) (Entered: 01/02/2019)
Case Stayed (rro) (Entered: 01/14/2019)
113 LETTER MOTION to Stay (Opposing Stay) addressed to Judge Paul A. Crotty from Paige Austin dated January 4, 2019. Document filed by L.V.M.. (Attachments: # 1 Exhibit A: DOJ FY2019 Contingency Plan During Lapse in Appropriation, # 2 Exhibit B: Lucas R. v. Azar, 2:18-cv-5741 (DMG) (C.D. Cal. Dec. 27, 2018), # 3 Exhibit C: Garcia Ramirez v. U.S. Immigration and Custom Enforcement, 18-cv-00508 (RC) (D.D.C. Dec. 31, 2018), # 4 Exhibit D: J.E.C.M. v. Hayes, 1:18cv-903

01/16/2019
01/16/2019 01/16/2019 01/25/2019 01/25/2019
01/25/2019

(LBM) (E.D. Va. Jan. 3, 2018), # 5 Exhibit E: Letter from Benjamin M. Moss, Senior Litigation Counsel, Office of Immigration Litigation, U.S. DOJ (Dec. 31, 2018))(Austin, Paige) (Entered: 01/04/2019)
Minute Entry for proceedings held before Judge Paul A. Crotty: Conference held on 1/16/2019. REMARK: Paige Austin, Christopher Dunn, Aadhithi Padmanabhan, and Robert Hodgson appeared for the petitioner. AUSA's Jeffrey Oestericher, Rebecca Tinio, Rachael Doud, and Anthony Sun appeared for the government. A Protective Order Motion schedule is set: Motion due by January 29, 2019. Response due by February 5, 2019. Reply due by February 12, 2019. The stay is lifted, an order will be placed on the docket. A control date for a conference is set for January 28, 2019 at 11 AM. See transcript for details. (Court Reporter Michael McDaniel) (dgo) (Entered: 01/16/2019)
114 ORDER granting 113 Letter Motion to Stay. Plaintiffs' motion to lift the stay as it relates to the above-captioned case is GRANTED. (Signed by Judge Paul A. Crotty on 1/16/19) (yv) (Entered: 01/16/2019)
Case Stay Lifted. (tro) (Entered: 06/27/2019)
115 LETTER MOTION for Extension of Time addressed to Judge Paul A. Crotty from Paige Austin dated January 25, 2019. Document filed by L.V.M..(Austin, Paige) (Entered: 01/25/2019)
116 TRANSCRIPT of Proceedings re: CONFERENCE held on 1/15/2019 before Judge Paul A. Crotty. Court Reporter/Transcriber: Michael McDaniel, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/15/2019. Redacted Transcript Deadline set for 2/25/2019. Release of Transcript Restriction set for 4/25/2019.(McGuirk, Kelly) (Entered: 01/25/2019)
117 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERNECE proceeding held on 1/15/19 has been filed by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available

01/25/2019 01/28/2019 01/28/2019 01/30/2019 01/30/2019 01/30/2019 02/08/2019 02/08/2019 02/15/2019 04/17/2019

to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 01/25/2019)
118 NOTICE OF APPEARANCE by Antony Philip Falconer Gemmell on behalf of L.V.M.. (Gemmell, Antony) (Entered: 01/25/2019)
119 ORDER granting 115 Letter Motion for Extension of Time. The proposed schedule is adopted. SO ORDERED. (Motions due by 1/30/2019.) (Signed by Judge Paul A. Crotty on 1/28/19) (yv) (Entered: 01/29/2019)
Set/Reset Deadlines: Responses due by 2/8/2019. Replies due by 2/15/2019. (yv) (Entered: 01/29/2019)
120 MOTION for Protective Order Barring Further Discovery. Document filed by Alex Azar, Scott Lloyd, Elcy Valdez, Steven Wagner, Jonathan White.(Oestericher, Jeffrey) (Entered: 01/30/2019)
121 DECLARATION of Julia Fuma in Support re: 120 MOTION for Protective Order Barring Further Discovery.. Document filed by Alex Azar, Scott Lloyd, Elcy Valdez, Steven Wagner, Jonathan White. (Oestericher, Jeffrey) (Entered: 01/30/2019)
122 MEMORANDUM OF LAW in Support re: 120 MOTION for Protective Order Barring Further Discovery. . Document filed by Alex Azar, Scott Lloyd, Elcy Valdez, Steven Wagner, Jonathan White. (Oestericher, Jeffrey) (Entered: 01/30/2019)
123 MEMORANDUM OF LAW in Opposition re: 120 MOTION for Protective Order Barring Further Discovery. . Document filed by L.V.M.. (Austin, Paige) (Entered: 02/08/2019)
124 DECLARATION of Paige Austin in Opposition re: 120 MOTION for Protective Order Barring Further Discovery.. Document filed by L.V.M.. (Austin, Paige) (Entered: 02/08/2019)
125 REPLY MEMORANDUM OF LAW in Support re: 120 MOTION for Protective Order Barring Further Discovery. . Document filed by Alex Azar, Scott Lloyd, Elcy Valdez, Steven Wagner, Jonathan White. (Oestericher, Jeffrey) (Entered: 02/15/2019)
126 LETTER addressed to Judge Paul A. Crotty from Plaintiffs/Petitioners dated April 17, 2019 re: Status Update. Document filed by L.V.M.. (Attachments: # 1 Exhibit Excerpt

from Transcript of Hearing on Jan. 15, 2019)(Gemmell, Antony) (Entered: 04/17/2019)

05/06/2019

127 NOTICE OF APPEARANCE by Jessica Perry on behalf of L.V.M.. (Perry, Jessica) (Entered: 05/06/2019)

05/20/2019

128 FILING ERROR - DEFICIENT DOCKET ENTRY - MOTION for Aadhithi Padmanabhan to Withdraw as Attorney for Plaintiffs/Petitioners. Document filed by L.V.M.. (Attachments: # 1 Text of Proposed Order Granting Motion to Withdraw as Counsel for Plaintiffs/Petitioners, # 2 Affidavit of Aadhithi Padmanabhan in support of Motion to Withdraw as Counsel for Plaintiffs/Petitioners)(Padmanabhan, Aadhithi) Modified on 7/30/2019 (db). (Entered: 05/20/2019)

05/23/2019

129 MEMO ENDORSEMENT granting 128 Motion to Withdraw as Attorney. ENDORSEMENT: SO ORDERED. Attorney Aadhithi Padmanabhan terminated. (Signed by Judge Paul A. Crotty on 5/23/2019) (kv) (Entered: 05/23/2019)

06/03/2019 130

OPINION & ORDER re: 95 MOTION to Compel Production of Documents and to Enlarge Number of Depositions. filed by L.V.M., 120 MOTION for Protective Order Barring Further Discovery. filed by Steven Wagner, Alex Azar, Jonathan White, Scott Lloyd, Elcy Valdez. The Government's motion for a protective order is DENIED. Given that discovery in this action will continue, Plaintiffs are further instructed to update the Court as to the status of any outstanding discovery requests set forth in the motion to compel at Dkt. 95. The Clerk of the Court is instructed to close the motion at Dkt. 120. SO ORDERED. (Signed by Judge Paul A. Crotty on 6/3/2019) (ks) (Entered: 06/03/2019)

02/07/2020

NOTICE OF CASE REASSIGNMENT to Judge Mary Kay Vyskocil. Judge Paul A. Crotty is no longer assigned to the case..(wb) (Entered: 02/07/2020)

03/25/2020

NOTICE OF CASE REASSIGNMENT to Judge Paul A. Crotty. Judge Mary Kay Vyskocil is no longer assigned to the case. (laq) (Entered: 03/25/2020)

04/07/2021

131 ORDER OF DISMISSAL: The above entitled action has been on the Court's active docket since February 16, 2018, and there having been no activity since June 3, 2019, it is, ORDERED, that the above-entitled action is DISMISSED, without prejudice. Either party shall notify the Court in the event this matter should be reinstated. The Clerk of Court is directed to terminate this case.

04/12/2021

SO ORDERED. (Signed by Judge Paul A. Crotty on 4/7/2021) (ks) (Entered: 04/07/2021)
132 LETTER addressed to Judge Paul A. Crotty from Robert Hodgson dated April 12, 2021 re: Letter in Response to the Court's April 7 Order (ECF 131) Dismissing This Case Without Prejudice and Ordering Either Party to Inform the Court in the Event the Matter Should Be Reinstated. Document filed by L.V.M...(Hodgson, Robert) (Entered: 04/12/2021)

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1:18-cv-01453PAC 1.60

 
 Case 1:18-cv-01453-PAC Document 76 Filed 06/08/18 Page 1 of 2

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------)(
L.V.M., a minor, by and through his next friend EDITH ESMERALDA MEJIA DE GALINDO, on his own behalf and on behalf of others similarly situated,
Plaintiffs I Petitioners,

-against-

SCOTT LLOYD, Director, Office of Refugee Resettlement; JONATHAN WHITE, Deputy Director, Office of Refugee Resettlement; STEVEN WAGNER, Acting Assistant Secretary for the Administration for Children and Families, U.S. Department of Health and Human Services; ALEJ\ AZAR, Secretary, U.S. Department of Health and Human Services; ELCY VALDEZ, Federal Field Specialist, Office of Refugee Resettlement; JEREMY KOHOMBAN, President and Chief Executive Officer, Children's Village,

18 Civ. 1453 (PAC)
ORDER

Defendants I Respondents.
---------------------------------------------------------------)(
HONORABLE PAUL A. CROTTY, United States District Judge:

This putative class action deals with the proper and appropriate treatment of

unaccompanied alien children ("UAC") who are kept by the Office of Refugee Resettlement

("ORR") of the U.S. Department of Health and Human Services. Defendant Kohomban is the

President and Chief Executive Officer of Children's village, a private, not-for-profit corporation

which has a contract with the ORR to provide facilities to house the UAC held by the ORR.

Kohomban moves to dismiss, contending that he is not the proper defendant or

respondent in this action because (1) a private party that operates a residential campus used by

the ORR cannot be a "custodian" of detained children for habeas corpus purposes (ECF 59 at

10), and (2) Plaintiffs have failed to state non-habeas claims against him (id. at 14-20).

1

Case 1:18-cv-01453-PAC Document 76 Filed 06/08/18 Page 2 of 2
Kohomban is correct; he is not a proper respondent of Plaintiffs' habeas claims. See, e.g., Maldonado v. Lloyd, 2018 WL 2089348, at *1 (S.D.N.Y. 2018); Santos v. Smith, 260 F. Supp. 3d 598, 608 (W.D. Va. 2017); Saravia v. Sessions, 280 F. Supp. 3d 1168, 1185 (N.D. Cal. 2017). Plaintiffs do not disagree. ECF 71 at 22-23. Plaintiffs also do not oppose the dismissal of nonhabeas claims against Kohomban. ld. at 23, n.l.
Accordingly, Kohomban's motion to dismiss the complaint is granted. The Clerk of Comt is directed to close the motion at ECF 58.

Dated: New York, New York June 8, 2018

PAUL A. CROTTY i United States District Judge

2

 
 Case 1:18-cv-01453-PAC Document 77 Filed 06/27/18 Page 1 of 25

------·-""•"~:::.._-:.--:..~...:·.:::.::::::::::.::.:=.~=-:-=--.::: l
USDC SDNY

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------){
L.V.M., a minor, by and through his next friend EDITH ESMERALDA MEJIA DE GALINDO, on his own behalf and on behalf of others similarly situated,
Plaintiffs I Petitioners,

DOCUMENT

ELECTRONICALLY FILED

DOC#:
DATE FI-LE-D--,:Gf'-/'"'J:_"""'].,.-;-.f-=10:"

1

-against-

SCOTT LLOYD, Director, Office of Refugee Resettlement; JONATHAN WHITE, Deputy Director, Office of Refugee Resettlement; STEVEN WAGNER, Acting Assistant Secretary for the Administration for Children and Families, U.S. Department of Health and Human Services; ALE){ AZAR, Secretary, U.S. Department of Health and Human Services; ELCY VALDEZ, Federal Field Specialist, Office of Refugee Resettlement; JEREMY KOHOMBAN, President and Chief Executive Officer, Children's Village,

18 Civ. 1453 (PAC) OPINION & ORDER

Defendants I Respondents.
---------------------------------------------------------------){
HONORABLE PAUL A. CROTTY, United States District Judge:

This is a lawsuit about how the U.S. Government treats unaccompanied alien children

("UAC"). 1 Generally, when UAC are apprehended by an agency of the Federal Government,

such as Immigration and Customs Enforcement ("ICE"), the agency must transfer custody of the

UAC to the U.S. Department of Health and Human Services, Office of Refugee Resettlement

("ORR") within 72 hours. 6 U.S.C. § 279(a); 8 U.S.C. § 1232(b)(3). ORR is then responsible

for the care and custody of the UAC, until they are reunited with a family member or placed with

1 6 U.S.C. § 279(g)(2) defines "unaccompanied alien child" as "a child whoA. has no lawful immigrant 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."
1

Case 1:18-cv-01453-PAC Document 77 Filed 06/27/18 Page 2 of 25
other individuals or entities, while removal proceedings go forward in immigration courts.
When UAC come into ORR's custody, ORR places UAC into one of three types of state
licensed, ORR-funded, caretaker facilities: (1) secure facility; (2) staff-secure facility; and (3)
shelter care facility. A secure facility has the most restrictive custodial condition and it is in
many ways akin to juvenile jails; a staff-secure facility is less restrictive than a secure facility,
but movement within it is substantially controlled; and a shelter care facility is the least
restrictive custodial setting. These facilities are supposed to provide UAC with housing,
education, health, and case management services. The ORR website explains its role as follows:
"On March 1, 2003, the Homeland Security Act of 2002, Section 462, transferred responsibilities for the care and placement of unaccompanied alien children from the Commissioner of the Immigration and Naturalization Service to the Director of the Office of Refugee Resettlement (ORR).
Since then, ORR has cared for more than 175,000 children, incorporating child welfare values as well as the principles and provisions established by the Flores Agreement in 1997, the Trafficking Victims Protection Act of 2000 and its reauthorization acts, the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) of 2005 and 2008.
Unaccompanied alien children apprehended by the Department of Homeland Security (DHS) immigration officials are transferred to the care and custody of ORR. ORR promptly places an unaccompanied child in the least restrictive setting that is in the best interests of the child, taking into consideration danger to self, danger to the community, and risk of flight. ORR takes into consideration the unique nature of each child's situation and incorporates child welfare principles when making placement, clinical, case management, and release decisions that are in the best interest of the child." (Emphases added).2
The Trafficking Victims Protection Reauthorization Act of 2008 ("TVPRA") mandates that ORR
"promptly" place UAC "in the least restrictive setting that is in the best interests of the child." 8
U.S.C. § 1232(c)(2)(A). Prompt placement of the child is critical to minimize the deleterious
2 See Unaccompanied Alien Children, Office of Refugee Resettlement, https://www.acf.hhs.gov/orr/programs/ucs (last visited Jun. 26, 2018).
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impact (anxiety, depression, and/or cognitive change) of detention. There is no dispute that the longer the detention, the greater the impact.
This lawsuit challenges the ORR's newly revised process for placing UAC in the most appropriate setting at the earliest possible opportunity. In mid-2017, the then-newly appointed director of ORR, Scott Lloyd, added a director review step to the UAC release process, requiring his personal approval of release decisions involving UAC who are housed in a staff-secure facility or have ever been housed in a staff-secure or secure facility. Plaintiffs claim that the director review step adds unjustifiable delays to the UAC release process and violates the Administrative Procedure Act ("APA"), TVPRA, and Due Process Clause of the Fifth Amendment. Lead Plaintiff L.V.M., who is an UAC, brings this action on behalf of himself and those similarly situated against Scott Lloyd, Jonathan White, Steven Wagner, Alex Azar, and Ely Valdez ("Defendants") who are federal officers and employees of ORR, seeking injunctive relief and declaratory judgment, as well as habeas relief.3
To be clear, this lawsuit does not deal with the Department of Homeland Security's new policy of separating children from their undocumented parents at the border. Nor does it deal with ORR's apparent loss of contact with 1,500 UAC under its supervision. Nor the alleged routine and forcible administration of a range of psychotropic drugs at an ORR-funded facility. Nor the ORR's alleged practice of detaining and transporting UAC to detention facilities without notifying their parents or lawyers. Nor the ORR's alleged employment of a psychiatrist that has treated children without board certification for nearly a decade. Rather, this lawsuit challenges only the ORR's process for promptly placing UAC in the most appropriate setting.
3 Plaintiffs also asserted habeas claims against Jeremy Kohomban, the head of Children's Village, a private, not-forprofit corporation which has a contract with ORR to provide facilities to house UAC held by ORR. All claims against Kohomban have been dismissed. See ECF 76; Tr. 2:10-4:4. "Tr." refers to the transcript of oral argument held on June 7, 2018.
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Plaintiffs move for class certification and a preliminary injunction; Defendants move to dismiss. With this Court's leave, the parties completed expedited discovery. On June 7, 2018, the Court heard oral argument on each of the motions.
For the reasons set forth below, the Defendants' motion to dismiss is DENIED; the Plaintiffs' motion for class certification is GRANTED; and the Plaintiffs' motion for a preliminary injunction is GRANTED-IN-PART and DENIED-IN-PART.
Not only have Plaintiffs pleaded plausible statutory and constitutional violations, but they have also adequately demonstrated irreparable injury and the likelihood of success on numerous claims. For example, the APA guards against agency actions instituted based on personal preference of decisionmakers. According to evidence before the Court, Lloyd's director review policy was instituted within hours of Lloyd's appointment as the director of ORR, with no record demonstrating the need for a change. Apparently, the change was based on unidentified news reports about criminal activities involving immigrant minors. Expedited discovery has not yielded any record showing a consideration of relevant law, agency documents, or the impact on UAC. This is at the zenith of impermissible agency actions. This unlawful agency action keeps Plaintiffs-the very subjects that ORR is statutorily mandated to protect-from reuniting with their sponsors for at the very least 35 more days (and likely more than that) in a process which already takes too long.
The Court cannot turn a blind eye to Plaintiffs' suffering and irreparable injury. The Court hereby directs ORR to vacate the director review policy, until further order of the Court.
Well Pleaded Allegations Concerning Custody and Processing o(Immigrant Children Every year, foreign or alien children come to the United States, some with parents, some with relatives, some with friends, and some, alone. A great number of these children have no
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legal right to enter. Compl. ~16. In the SO's and 90's, the government locked up these undocumented children in jail facilities across the country. Id. There have been numerous legal challenges to these practices. More than two decades ago, the Supreme Court held that UAC do not have a fundamental right to be placed in the custody of a willing and able private custodian. Reno v. Flores, 507 U.S. 292 (1993). Nonetheless, the litigating parties continued negotiations, which ended with a 1997 consent decree (also referred to as the Flores settlement) setting standards for the detention, release, and treatment of UAC. The Flores settlement mandates that UAC be released "without unnecessary delay" and provides that the Government must engage in "prompt and continuous efforts" towards family reunification.4 Compl. ,[17.
Since then, Congress has passed two statutes addressing the care and custody of UAC. In 2002, Congress enacted the Homeland Security Act ("HSA"), which transferred authority over the care and placement ofUAC to ORR. The ORR's mission is to incorporate child welfare values into the care and placement ofUAC. /d. ,[18. In 2008, Congress enacted the TVPRA, which grants legal protections to UAC in ORR's custody and directs ORR to (1) promptly place UAC, (2) in the least restrictive setting that (3) is in the best interest of the child. /d. ~19.
ORR has never promulgated any regulations under the TVPRA, but it has developed an internal guide (which was posted online in 2015) setting forth agency procedures for UAC placement and release. /d. ,[,[20-21. The guide governs more than 7,000 children in ORR's custody, approximately 1,200 of whom are located in New York. !d. ~22. According to the guide, when a child comes into ORR's custody, ORR places the child into one of three types of facilities: (1) secure facility; (2) staff-secure facility; (3) shelter care facility. /d. ~23. ORR
4 President Trump's Executive Order of June 20, 2018 implicitly recognizes the continuing vitality of the Flores settlement by announcing that the settlement needs to be modified.
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places UAC in secure or staff-secure facilities for a variety of reasons including, for example, disruptive behaviors, escape risks, or any behaviors which raise safety concerns. Id. 'l[24.
UAC can move up from a shelter care facility to a staff-secure or secure facility; and down from a secure facility to a staff-secure or shelter care facility. Most UAC, however, are released to family members and others (also known as sponsors) who are qualified to care for them. Id. 'l[25. Further, ORR places in a long-term foster-care program UAC who have demonstrated safe behavior in a non-secure setting, but have no sponsor. ld. 'lf'l[24, 25. The release of UAC is recommended to an ORR Federal Field Specialist ("FFS") by an ORR care provider, after consultation with a nongovernmental third-party reviewer. FFS can approve, reject, or seek more data. Id. 'l[26.
Prior to the January 20, 2017 change in administration, the release decisions were made expeditiously. UAC in staff-secure facilities (e.g., Children's Village) were released to a sponsor in about 30 to 90 days; and for UAC in shelter care facilities, within 34 days. ld. 'l[26. Since the change in administration, however, the release of children in a secure or staff-secure facility no longer takes 90 days; it now takes seven to eight months on average. ld. ,[35.
Plaintiffs claim that this unconscionable delay results, in part, from a new review policy instituted by the then-newly appointed Director of ORR, Scott Lloyd. Upon taking office, Lloyd instituted a director review policy (reflected in the June 12, 2017 revision to the online ORR guide5), under which any UAC who has ever been held in a secure or staff-secure facility cannot be released, unless the release is personally approved by Lloyd or his designee. Id. 'lf34. Lloyd does not disclose what standards he follows; nor does he describe how he makes his decisions.
5 ORR Guide: Children Entering the United States Unaccompanied, Office of Refugee Resettlement (Jan. 30, 2015, as revised on Jun. 12, 2017), https://www.acf.hhs.gov/orr/resource/children-entering-the-united-statesunaccompanied-section-2#2. 7.
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Under a policy of his own making, Lloyd has unfettered discretion to approve, deny, or request additional information, unguided by any rule or fixed set of criteria, giving him unrestricted power to rule over the fate of vulnerable children. !d. 'lf36.6
The director review policy allegedly has substantially increased the time for reunification of UAC with their family, or placement in foster care. !d. 'l[34. The actual review by Lloyd is not the only source of delay; the director level policy also requires FFS to prepare the review package for Lloyd, which adds further delay to the release process. Id. 'lf37. UAC understandably suffer substantial harm from the director review policy; the prolonged period of detention causes depression, deterioration in mental health, as well as behavioral problems. !d. ,[39. But ORR has yet to provide any substantive explanation or justification for the new policy.
Well Pleaded Allegations Pertaining to Lead PlaintiffL. V.M. L.V.M. is a 17-year-old from El Salvador who came to the United States with his mother seeking asylum. Id. 'lf47. They lived together on Long Island where L.V.M. attended high school. In 2017, ICE arrested him on report that he made a "gang" sign during a scuffle at school. He was removed from his home and sent to a secure facility in Virginia. Id. 'lf'l[S0-54. He was held there for six weeks (July 7, 2017 to August 8, 2017), and then transferred to a staffsecure facility, Children's Village. He was held in the ORR's custody for more than seven months, and was not released until after the filing of this action. Id. ,[56.
6 Plaintiffs submit that this director review policy is part of the current administration's anti-immigrant campaign grounded on bias, unsubstantiated arguments, and conjecture. See id. 27-33.
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DISCUSSION Defendants move to dismiss the complaint contending that Plaintiffs have failed to state a claim: (1) Defendants' actions are not reviewable by this Court; and (2) even if they were, they do not violate the APA, TVPRA, and Due Process Clause of the 51h Amendment. ECF 61. Plaintiffs move for certification of a class comprising those who are or will be subject to the director review policy: "all children who are or will be in the custody of ORR in New York State and who are currently housed in a staff-secure facility or have ever been housed in a staffsecure or secure facility." ECF 2. Plaintiffs also move for a preliminary injunction, requesting vacatur of the director review policy and an order requiring ORR to promptly complete the release process for all class members. ECF 41. For the reasons set forth below, the motion to dismiss is denied; the motion for class certification is granted; and the motion for a preliminary injunction is granted-in-part and deniedin-part. I. Motion to Dismiss A. Legal Standard "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. When considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court "must accept as true all of the factual allegations contained in the complaint," and construe the complaint in the light most favorable to the plaintiff. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 572 (2007).
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B. Discussion Plaintiffs claim that the ORR's director review policy, which causes systemic, unjustified delays in the UAC release process, violates the APA, TVPRA, and Due Process Clause of the 51h Amendment. Defendants move to dismiss, claiming that: (1) the newly adopted director review process is not judicially reviewable; and (2) in any event, the director review process does not violate the APA, TVPRA, and Due Process Clause of the 51h Amendment. The motion to dismiss is denied.
i. Challenged Administrative Actions are Reviewable "The APA, by its terms, provides a right to judicial review of all 'final agency action for which there is no other adequate remedy in a court,' ... and applies universally 'except to the extent that-(!) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law'". Bennett v. Spear, 520 U.S. 154, 175 (1997). Notwithstanding the limited exceptions, there is a strong presumption "that Congress intends judicial review of administrative action." Bowen v. Mich. Academy ofFamily Physicians, 476 U.S. 667, 670 (1986).
1. Challenged Administrative Actions Are Final Agency Actions There is no doubt that the challenged administrative actions are final: whatever may be said about how Lloyd conducted (or did not conduct) any review of ORR's release process, what issues were considered, and how those issues were resolved, that decisionmaking process is now complete and the result of that process-the UAC release procedure and the director review policy-is "one that will directly affect" ORR staff and Plaintiffs. Lunney v. United States, 319 F. 3d 550, 554 (2d Cir. 2003). The release procedure and the director review policy indisputably define the rights or obligations of ORR staff and Plaintiffs; and legal consequences flow from them. For example, the director review policy requires that: (1) the ORR's FFS prepare a
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director review package for Lloyd's review; (2) Lloyd or his designee review FFS's release recommendations; and (3) Plaintiffs wait for Lloyd's approval before release. Compl. ,[~34-38. Such agency actions are final and presumptively reviewable.1 Bennett, 520 U.S. at 175.
2. ORR's Discretion is Not Absolute While the APA bars judicial review of administrative actions "committed to agency discretion by law" (5 U.S.C. § 70l(a)(2)), that "exception" is a "narrow" one (Salazar v. King, 822 F.3d 61,76 (2d Cir. 2016)). Government agencies cannot do whatever they wish; it would be a dangerous surprise to learn that agencies have such unchecked discretion. There may be exceptions, but they are applicable only when the statute is "drawn in such broad terms that ... there is no law to apply." Westchester v. U.S. Dep't ofHous. & Urban Dev., 778 F.3d 412,419 (2d Cir. 2015). "To determine whether there is 'law to apply' that provides 'judicially manageable standards' for judging an agency's exercise of discretion, the courts look to the statutory text, the agency's regulations, and informal agency guidance that govern the agency's challenged action." Salazar, 822 F.3d at 76. Even a cursory review of the applicable statute demonstrates that the challenged administrative actions here do not fall within the narrow exception. ORR can exercise discretion in the prompt placement of UAC in the least restrictive setting. But the TVPRA does not authorize ORR to place UAC whenever ORR gets around to it or whenever ORR wants to do so; or to keep UAC in heightened security arrangements for however long ORR chooses. The TVPRA imposes meaningful limits on ORR's discretion by specifying standards for applying the TVPRA. See 8 U.S.C. § 1232. There is simply no "clear and convincing evidence" of legislative intent to foreclose judicial review of ORR's decisions. Bowen, 476 U.S. at 670.
7 Any other holding would permit unreviewed discretion in an area of great sensitivity: the director review causes an extension in the UAC release process, and while their release approval is delayed, UAC are held in custody.
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Accordingly, the challenged actions are final agency actions, which are not committed to agency discretion hy law. The challenged actions are reviewable under the APA.
ii. Plaintiffs have Stated Plausible Claims that Director Review Policy Violates APA and TVPRA
Under the APA, a court may "hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). The Court must consider whether the agency "examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a rational connection between facts found and the choice made." Motor Vehicle Mfrs. Ass 'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,43 (1983).
Plaintiffs have stated three plausible claims that the director review policy violates the APA. First, the director review policy was instituted without sufficient investigation or justification, in violation of the APA. Lloyd had no factual or legal basis for adopting the director review policy; he made no analysis of the policy's impact; and he offered no justification for the policy. Nor is it clear what the goals of the new director review policy are; and since the goals are unknown, the Court cannot assess whether the goals are being achieved; or if achieved, whether they are worthwhile. "Where the agency has failed to provide even [a] minimal level of analysis, its action is arbitrary and capricious." Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016).
Second, the director review policy in and of itself violates the APA. Lloyd has no expertise or experience to evaluate the propriety of the release decision made by a skilled FFS. See Compl. 'l[34. Moreover, there is no indication whatsoever of what facts or factors should be considered in making his decision. Further, there is no rational basis for the director review
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policy. There is no good reason to permit such unchecked exercise of discretion, with no guidance nor limitation. Accordingly, Lloyd's release decision, which is not subject to any known decision criteria, is arbitrary and capricious, in violation of the APA.
Third, and more critically, the director review policy adds substantial and unnecessary delay to the Plaintiffs' release, in violation of both the APA and TVPRA.8 The director review policy adds substantial delay to, and, in some cases, completely stops the Plaintiffs' release process. !d. ~[35. Close to a dozen children remain detained despite having spent an average of over seven months in the ORR's custody. !d. Such a substantial increase in the detention period to accommodate the ORR's director review policy, which has no defined purpose, is a clear violation of the TVPRA's mandate to promptly place the UAC in the least restrictive setting that is in the best interests of the child.
iii. Plaintiffs have Stated Plausible Claim that Systemic Delay in Release Process Violates APA and TVPRA
As discussed above, since Lloyd took office at ORR, there has been a substantial increase in the detention period for members of the putative class. !d. The director review policy slows down the UAC release process, not only because the director review itself takes time, but also because it slows down preliminary stages of the release process. For example, case managers in ORR shelters substantially delay forwarding release recommendations because they believe that they may need to collect information to further substantiate their release recommendation. !d. ~37. Moreover, the stepdown of children from staff-secure care to shelter care-often a necessary precursor to release-has also slowed dramatically. !d. ~[38. These allegations of
8 Although Plaintiffs initially asserted that the TVPRA provided an independent cause of action, Plaintiffs now claim that the violation of the TVPRA can be asserted as a violation of the APA. The Court agrees. See 5 U.S.C. § 706(2)(A) (Under the APA, a court may "hold unlawful and set aside agency action, findings, and conclusions found to be ... otherwise not in accordance with law") (emphasis added).
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systemic delay are sufficient to support a plausible claim that ORR has violated the TVPRA's mandate to promptly release UAC to the least restrictive setting, in violation of the APA.
iv. Due Process Claim under the Fifth Amendment Defendants contend that the due process claim should be dismissed "in light of the factspecific nature of due process claims," arguing that the Supreme Court has recently expressed doubt that Rule 23(b)(2) is a proper vehicle for bringing due process claims. ECF 64 ("Gov. Mem.") 47-48 (citing Jennings v. Rodriguez, 138 S. Ct. 830, 852 (2018)). Defendants' argument is predicated on the Court's denial of class certification, but as discussed infra, a class is certified. For the foregoing reasons, the Court concludes that Plaintiffs have stated cognizable claims to relief. The motion to dismiss is denied. II. Motion for Class Certification A. LegalStandard Under Federal Rule of Civil Procedure 23(a), plaintiffs may sue as a class only if: "(1) the class is so numerous that joinder of all members is impracticable [("Numerosity")]; (2) there are questions of law and fact common to the class [("Commonality")]; (3) the claims or defenses of the representative parties are typical of those of the class [("Typicality")]; and (4) the representative parties will fairly and adequately protect the interests of the class [("Adequate Representation")]." The class must also satisfy at least one of the requirements contained in Federal Rule of Civil Procedure 23(b). See Roach v. T.L. Cannon Corp., 778 F.3d 401,405 (2d Cir. 2015). Here, Plaintiffs seek certification under Rule 23(b)(2), which permits certification "only when a single injunction or declaratory judgment would provide relief to each member of the class." Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011).
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B. Discussion Plaintiffs seek to certify the following class:
all children who are or will be in the custody of ORR in New York State and who are currently housed in a staff-secure facility or have ever been housed in a staff-secure or secure facility. ECF 2. Defendants do not dispute that the numerosity and adequate representation requirements of Rule 23(a) are satisfied here. The putative class comprises at least 40 members, and numerosity is generally presumed "at a level of 40 members." Canso/. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995). Adequate representation is also satisfied because L.V.M. has "an interest in vigorously pursuing the claims ofthe class" and has "no interests antagonistic to the interests of other class members." Denney v. Deutsche Bank AG, 443 F.3d 253, 268 (2d Cir. 2006). See ECF 2-1 ("L.V.M. Dec!.") ~3; ECF 52 ("L.V.M. Supp. Dec!.") ~12. Defendants contend, however, that the putative class fails the commonality and typicality requirements (Rule 23(a)), and that the challenged administrative actions do not "apply generally to the class" (Rule 23(b)(2)). The Court disagrees.
i. Rule 23(a) Factors
1. Commonalitv "Commonality is satisfied where a single issue of law or fact is common to the class." In re IndyMac Mort.-Backed Sec. Litig., 286 F.R.D. 226, 233 (S.D.N.Y. 2012) (citing Wal-Mart, 564 U.S. at 358 ("[E]ven a single common question will do.")). Here, the commonality requirement is easily satisfied as to the APA and TVPRA claims. The following questions are common to all putative class members: (1) whether the director review policy is lawful under the APA, or under the APA and TVPRA; (2) whether the process used to institute the director review policy was lawful under the APA; and (3) whether the addition of systemic delay to an already too long release process is lawful under the APA and
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TVPRA. The answers to these questions are common to all putative class members, and do not involve any analysis of independent facts attributable only to individual plaintiffs. These questions of fact and law would "generate common answers apt to drive the resolution of the litigation." Wal-Mart, 564 U.S. at 350. See also Marisol A. v. Giuliani, 126 F. 3d 372, 376-77 (2d Cir. 1997) (noting that commonality exists when plaintiffs establish "that their injuries derive from a unitary course of conduct by a single system"); Barnett v. Bowen, 794 F.2d 17, 23 (2d Cir. 1986) ("[l]t would still be appropriate to define a class to include all applicants who may experience unreasonable delays ... despite the fact that the point at which delays become unreasonable may vary with the facts and circumstances of individual cases.").
Likewise, to the extent that the due process claim challenges the ORR's director review policy and its systemic delay in the release process (instead of the ORR's individual release decisions), it also poses common questions offact and law. This due process claim, arising solely from the ORR's standardized conduct that applies uniformly to all putative class members, need not entail factual analyses attributable only to individual plaintiffs. Accordingly, the Supreme Court's precaution in Jennings v. Rodriguez against certification of a 23(b)(2) class based on a due process claim is not applicable here. See also Abdi v. Duke, 280 F. Supp. 3d 373 (W.D.N.Y. 2017); Saravia v. Sessions, 280 F. Supp. 3d 1168, 1205 (N.D. Cal. 2017).
2. Typicalitv Typicality "is satisfied when each class member's claim arises from the same course of events and each class member makes similar legal arguments to prove the defendant's liability." Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 155 (2d Cir. 2001). Defendants urge that there is no typicality here because "the length of time [L.V.M.] spent in ORR custody was not due to the Director Review policy that he seeks to enjoin, but
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rather to individualized decisions made in the field." Gov. Mem. 36. The Court disagrees. Each of the Plaintiffs' claims, including the due process claim, arise from the same course of events that involve only the Defendants' conduct. For example, the claims arise from (1) the complete lack of process for instituting the director review policy, (2) the ORR's justification (or lack thereof) for the director review policy, and (3) the systemic delay in the ORR's implementation of the director review policy and the release process. There is simply no factual variation between the class members' claims because the claims arise solely from the Defendants' conduct. Accordingly, the Court concludes that the typicality requirement is satisfied.
ii. Rule 23(b )(2) Rule 23(b)(2) permits a class action if "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." Defendants claim that Rule 23(b)(2) is an inappropriate vehicle to certify the class, for two reasons: (1) the propriety of the challenged administrative actions "turns on the reasonableness of the particular circumstances of each [release] application"; and (2) "enjoining Director Review would provide no relief at all for the 21 members of the putative class who are not eligible for release because they have no sponsor." Gov. Mem. 39. The Court disagrees. First, the propriety of the challenged administrative actions does not turn on the particular circumstances of each plaintiff. Rather, as discussed above with respect to the commonality and typicality requirements, Plaintiffs' claims arise solely from the Defendants' conduct. Accordingly, a single injunction directed to Defendants' conduct "would provide relief to each member of the class." Wal-Mart, 564 U.S. at 360.
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Second, a single injunction enjoining director review would provide relief to the entire class, even for 21 class members who currently do not have a sponsor. The director review policy causes two types of delays: (1) a direct delay arising from the actual review of a director review package; and (2) an indirect delay arising from the preparation of the director review package and the slowdown in the process that reduces the UAC's burden of confinement from a staff-secure facility to a shelter care facility. ECF 45 ("Zayas Dec!.") ,[27; Tr. 76:18-21. Even if the 21 class members do not yet have a sponsor, they are still subject to the indirect delay. As a single injunction enjoining director review would eliminate both direct and indirect delays, the injunction would provide relief even to those that are not currently awaiting director review.9
For the reasons set forth above, the Court determines that Plaintiffs have established, by a preponderance of the evidence, the requirements of Rule 23(a) and Rule 23(b)(2) for the proposed class. Accordingly, the Plaintiffs' motion for class certification is granted.
III. Motion for Preliminary Injunction Plaintiffs seek an injunction to vacate the ORR's director review policy and to direct
ORR to take all reasonable measures to expedite the processing of reunification requests made
9 The Court would certify the class even if the class were limited to 24 UAC with sponsors (and excluded the 21 class members who do not yet have sponsors). Defendants concede that these 24 members are "eligible for" director review. Gov. Mem. 24. Accordingly, Defendants cannot dispute that a class comprising these 24 members would satisfy Rule 23(b)(2). This hypothetical class of24 members would also satisfy the requirements of Rule 23(a)(2), including numerosity. Numerosity may be found where "the number of class members is sufficiently large so that joinder ... would make litigation needlessly complicated and inefficient". Banyaiv. Mazur, 205 F.R.D. 160, 163 (S.D.N.Y. 2002). "[T]he numerosity inquiry is not strictly mathematical but must take into account the context of the particular case, in particular whether a class is superior to joinder based on other relevant factors including: (i) judicial economy, (ii) geographic dispersion, (iii) the financial resources of class members, (iv) their ability to sue separately, and (v) requests for injunctive relief that would involve future class members." Pennsylvania Pub. Sch. Employees' Ret. Sys. v. Morgan Stanley & Co., 772 F. 3d Ill, 120 (2d Cir. 2014). Notwithstanding the limited size of the hypothetical class, the class action would be superior to joinder under Morgan Stanley because all plaintiffs challenge a policy that affects them uniformly; the putative class members do not have sufficient means to bring lawsuits; and the requested injunctive relief would impact all future class members.
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by members of the class. ECF 41. The motion is granted-in-part and denied-in-part. ORR is enjoined from implementing the director review policy until further order of the Court. 10
A. LegalStandard Courts may "grant preliminary injunctions when the party seeking the injunction demonstrates (1) that he or she will suffer irreparable harm absent injunctive relief, and (2) either (a) that he or she is likely to succeed on the merits, or (b) that there are sufficiently serious questions going to the merits to make them a fair ground for litigation, and that the balance of hardships tips decidedly in favor of the moving party." Riddick v. Maurer, 2018 WL 1750582, at *2 (2d Cir. 2018) (internal quotation marks omitted). "Where the moving party seeks to stay government action taken in the public interest pursuant to a statutory or regulatory scheme, the district court should not apply the less rigorous fair-ground-for-litigation standard and should not grant the injunction unless the moving party establishes, along with irreparable injury, a likelihood that he will succeed on the merits of his claim." Andino v. Fischer, 555 F.Supp.2d 418, 419 (S.D.N.Y. 2008). B. Discussionll
i. Irreparable Harm Plaintiffs have made a strong showing that they will suffer irreparable harm, unless they are granted the requested relief. Unsurprisingly, neither party questions that prolonged detention is deleterious to young children, and, obviously, the longer the detention, the greater the harm. Equally unsurprisingly,
10 Plaintiffs and Defendants dispute certain facts, and oral testimony of witnesses may be warranted. Republic of Philippines v. New York Land Co., 852 F.2d 33, 37 (2d Cir. 1988). The parties, however, have stipulated to rest their claims on a paper record and waive their right to an evidentiary hearing. See Tr. 60: 13-14; 21-23. "An evidentiary hearing is not required ... when the disputed facts are amenable to complete resolution on a paper record" or the parties "waive its right to an evidentiary hearing." Charette v. Town of Oyster Bay, 159 F.3d 749,755 (2d Cir. 1998). Accordingly, the Court reviews the instant motion on a paper record without an evidentiary hearing. ll Plaintiffs move for a preliminary injunction based on the APA and TVPRA claims, but not the due process claim.
18

Case 1:18-cv-01453-PAC Document 77 Filed 06/27/18 Page 19 of 25
neither party disputes that the director review policy imposes significant delays (at least 35 days) on the release ofUAC from ORR's custody, which already takes too long. The "overall average length of time for children who are in ORR custody is currently 57 days" (Tr. 40:23-24; 94:1415), but "the average length of time that the plaintiff class spends detained is 242 days" (id. 56:21-22; 104:22-23). The largest single component of delay is the 35 days needed for review of the director review package in the Office of Director (ECF 44 ("Rafael Decl.") ~11(b); Tr. 65:6-8; 84:17-18, 88: 14-15), as well as "significant" delays even before the application is escalated for director review (Zayas Decl. ,137). See also ECF 36-4 ("Carey Decl.") ~17 ("the very act of adding headquarters review to decisions in individual cases will add substantial time just as a matter of process"). What is disputed (surprisingly) is whether the more than 35 days of average delay would impose irreparable harm on Plaintiffs. See Gov. Mem. 14; Tr. 82:10-13, 20-22; 84:17-20.
It is clear to this Court that the 35 days of average delay imposed by the director review policy, as well as additional delays incurred even before the application is escalated for director review, causes irreparable injury to Plaintiffs. Multiple experts have opined that even a short detention can have "deleterious effects" on minors (Zayas Decl. ~32), causing "psychological trauma and induce long-term depression, anxiety and PTSD" (ECF 46 ("Fortuna Decl.") ~16) that are not necessarily resolved once the detainee is freed (id. ~17). See also Carey Decl. ~17 ("even short delays of a few days can have serious implications for child well-being"). The Court finds these opinions reliable and credible. The Court is mindful of the vulnerable and exposed nature of UAC, and concludes, at the very least, that the delay incidental to the challenged director review policy (more than 35 days) is clearly long enough to cause irreparable
19

Case 1:18-cv-01453-PAC Document 77 Filed 06/27/18 Page 20 of 25
harm to Plaintiffs. See Zayas Decl. ~32 ("Stays as short as 14 days can have deleterious effects on youth").
ii. Likelihood of Success To warrant a preliminary injunction, Plaintiffs "need not show that there is a likelihood of success on the merits of all of [their] claims for relief. Rather, [Plaintiffs need to] show a likelihood of success on the merits of at least one of [their] claims." Westchester Legal Servs., Inc. v. Westchester Cty., 607 F. Supp. 1379, 1382 (S.D.N.Y. 1985). See also Kaufman v. Cooper Companies, Inc., 719 F. Supp. 174, 185 (S.D.N.Y. 1989). Here, Plaintiffs have demonstrated that they will likely succeed on their claims challenging the director review policy: the director review policy was arbitrary and capricious, both in its inception and in its operation. First, the record is clear that Lloyd adopted the director review policy without any reasoned analysis. He adopted the director review policy: (1) within hours of becoming the ORR director (Lloyd TrY at 149:1-12; 150:4-7); (2) relying on unidentified news reports on criminal gang activities involving immigrant minors13 (id. at 151:2-9); and (3) without reviewing any agency documents or assessing the impact on UAC (id. at 156:22-157:3, 158:11-15). This is at the zenith of arbitrary and capricious administrative actions, and is a clear violation of the APA. The APA does not tolerate an agency action that is instituted based on "the personal preferences of the decisionmakers". F. C. C. v. Fox Television Stations, Inc., 556 U.S. 502,548 (2009). Although agencies are permitted to exercise discretion, their discretion is "limited and bound with the rule of reason and law and agencies cannot act according to their wills and private
12 Lloyd Tr. refers to the deposition transcript of Scott Lloyd. 13 In late 2017, a Federal court in San Francisco ordered immigration judges to review the basis for ICE and ORR's determination that certain UAC had gang involvement. See Saravia, 280 F. Supp. 3d at 1206. The immigration judges determined that in 27 of29 cases, there was no basis for the government's assertion of gang involvement. Compl.1[33.
20

Case 1:18-cv-01453-PAC Document 77 Filed 06/27/18 Page 21 of 25
affections". !d. (quoting Rooke's Case, 77 Eng. Rep. 209, 210, 5 Coke Rep. 99b, lOOa (C.P. 1598) (Coke, J.)). Vulnerable UAC cannot, and should not, be held hostage to an administration's flight of whimsy. See Guzman v. U.S. Dep't ofAgric. Food & Nutrition Serv., 931 F. Supp. 2d 488, 494 (S.D.N.Y. 2013) ("An agency's action is arbitrary and capricious if it was ... without justification in fact." (internal quotation marks omitted)).
Lloyd belatedly claims, in his declaration, that he adopted the director review policy "based on [his] observation and experience while in [his] special advisor role [at ORR]". ECF 62 ("Lloyd Decl.") ~8. He now explains that he wanted to ensure that he understood how ORR was addressing the most difficult release decisions, and that he held up the standard of accountability. !d. ,r9.
This is a dubious argument at best and the Court is skeptical of the explanation. It is not at all clear what purpose the director review serves. It does not improve the placement process, but it does substantially increase the processing time, to the detriment of the UAC. In any event, the Court need not determine whether these purported reasons sufficiently justify the director review policy because they are not supported by any contemporaneous evidence. The Second Circuit has made it clear that "after-the-fact rationalization for agency action is disfavored" and that the agency is permitted to submit such after-the-fact rationalization "only if the proffered evidence illuminates the original record and does not advance new rationalizations for the agency's action." Yale-New Haven Hasp. v. Leavitt, 470 F.3d 71, 81-82 (2d Cir. 2006) (citing SEC v. Chenery Corp., 318 U.S. 80, 87 (1943)). Here, there is simply no "original record" to illuminate. !d. at 82. Defendants have not produced any contemporaneous evidence explaining the process used to adopt the director review policy, or the rationale for implementing it. See ECF 43 ("Katovich Decl.") ~,rl4-16. Nor can they point to anything the director review
21

Case 1:18-cv-01453-PAC Document 77 Filed 06/27/18 Page 22 of 25
achieves, other than adding more time to a process which already takes too long. Accordingly, the Court declines to entertain Lloyd's after-the-fact explanations.
"Where the agency has failed to provide even [a] minimal level of analysis, its action is arbitrary and capricious," in violation of the APA. Encino, 136 S. Ct. at 2125. Accordingly, Plaintiffs have made a clear showing of likelihood of success on their claim that the process used in adopting the director review policy was arbitrary and capricious in violation of the APA.
Second, Plaintiffs have also clearly demonstrated the likelihood of success on their claim that the director review policy in and of itself violates the APA. The Court finds no rational relationship between the director review policy and the ORR's apparent goal "to release every UAC to a suitable sponsor" (ECF 65 ("Fields Decl.") '1[5), nor do Defendants provide any (see Tr. 88:24---89: 15). Indeed, the director review policy is antithetical to the statutory goal of prompt release of UAC to suitable sponsors. Moreover, Lloyd has no expertise or experience to evaluate the propriety of the release decision made by a skilled FFS.14 This is especially so because his release decision is not subject to any written guidelines or specific criteria. See Zayas Decl. 'lf'lf20-21; Carey Decl. ,[18. There would be no record of how he made his decision, or why he did so. Lloyd's release decisions are thus likely arbitrary and capricious, in violation oftheAPA.
Third, the record is also clear that the director review policy adds unconscionable delay to Plaintiffs' release, in violation of the APA and TVPRA. As discussed above, there is no dispute that the director review policy incurs more than 35 days of average delay. See supra. These delays are substantial, especially in view of the vulnerable nature of immigrant children,
14 Prior to his appointment as the Director of ORR, he served as a senior policy coordinator for Knights of Columbus Public Policy Office (Katovich Dec!., Ex. T). The Knights of Columbus is a Catholic fraternal organization engaged in charitable work. It also sells life insurance to its members.
22

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and is clearly antithetical to the TVPRA's mandate to promptly release UAC to the least restrictive setting. Accordingly, Plaintiffs are likely to prevail on their claim that the director review violates the APA and TVPRA.
For these reasons, the Court concludes that Plaintiffs have established the likelihood of success on their claims.
iii. Balance ofEquities and Public Interest The balance of equities and public interest strongly favors Plaintiffs. Obviously, ORR cannot suffer any harm from an injunction that terminates an unlawful practice. Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013). "Granting preliminary injunctive relief will simply require Respondents to comply with their legal obligations." Abdi, 280 F. Supp. 3d at 410. In contrast, Plaintiffs would suffer irreparable harm should the Court deny the preliminary injunction. See supra. Also, this Court is hard-pressed to see how setting aside an unlawful practice could be against the public interest. Plaintiffs do not seek a blanket release of all UAC; they merely seek protections afforded to them by the APA and TVPRA. Accordingly, the balance of equities and public interest decidedly favors Plaintiffs. For the foregoing reasons, Plaintiffs are entitled to a preliminary injunction.
iv. Injunctive Relief Plaintiffs seek two types of injunctive relief: (1) vacatur of the director review policy; and (2) an order directing ORR to take all reasonable measures to expedite the processing of reunification requests. The Court grants the first relief, and denies the second. Under Federal Rule of Civil Procedure 65(d), an injunction must: (1) state the reasons why it issued; (2) state its terms specifically; and (3) describe in reasonable detail- and not by referring to the complaint or other document- the act or acts restrained or required. This rule
23

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requires that an injunction be "more specific than a simple command that the defendant obey the law." City ofNew York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 144 (2d Cir. 20!!). Moreover, any injunctive relief"should be narrowly tailored to fit specific legal violations." Patsy's Ital. Res., Inc. v. Banas, 658 F.3d 254,272 (2d Cir. 2011).
Here, enjoining the director review policy is appropriate. Defendants urge that, even if the Court were to find that the director review policy would likely violate the APA and TVPRA, the Court should issue remand without vacatur. Gov. Mem. 32-33. The Court declines the invitation. "To determine if vacatur is appropriate, a court weighs the 'seriousness of the agency action's deficiency (and thus the extent of doubt whether the agency chose correctly) and the disruptive consequences of an interim change that may itself be changed."' Nat. Res. Def Council v. U.S. E.P.A., 676 F. Supp. 2d 307, 312 (S.D.N.Y. 2009) (quoting Comcast Corp. v. F. C. C., 579 F.3d 1, 8 (D.C. Cir. 2009)). Both factors favor vacatur. The director review policy was adopted in violation of the APA, adding unnecessary delay to the release process (which already takes too long), and in the end achieves no discernable benefit. Moreover, the director review policy is not rationally related to the TVPRA's mandate to promptly place the UAC in the least restrictive setting. Further, vacatur would not disrupt the UAC release process; indeed, vacatur would streamline it. Accordingly, the Court concludes that vacatur of the director review policy is appropriate.
In contrast, an order directing ORR to expedite the processing of reunification requests is not appropriate at this time. Plaintiffs concede that some time is necessarily consumed in complying with the TVPRA. 8 U.S.C. § 1232; Tr. 65:22-66:18. Further, there is no record of which required step takes what length of time. In these circumstances, an order to expedite the processing is not much more than a direction to "hurry up" and that is not a proper injunction.
24

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Petrella v. White, 533 F.3d 110, 115 (2d Cir. 2008) ("[A]n order for specific performance that lacks specificity is not a proper injunction."). Moreover, the requested command is not "narrowly tailored to fit specific legal violations." Banas, 658 F.3d at 272. The legal claims which Plaintiffs are likely to succeed on are grounded in the director review policy. See supra. Any injunctive remedy must thus be narrowly tailored to address the director review policy. Accordingly, the Court concludes that the order directing ORR to expedite the processing of reunification requests is not appropriate. 15
For the foregoing reasons, the motion for a preliminary injunction is granted, and Defendants are directed to vacate the director review policy until further order of the Court.
CONCLUSION The motion to dismiss the Complaint is denied; the motion for class certification is granted; and the motion for a preliminary injunction is granted-in-part and denied-in-part. Defendants are ordered to vacate the director review policy, as reflected in ORR Guide: Children Entering the United States Unaccompanied as revised on June 12, 2017, until further order of the Court. The Clerk of the Court is directed to close the pending motions at ECF 2, 41, and 61.

Dated: New York, New York June 27, 2018

SO~El<ED
PAUt::!c~
United States District Judge

15 During the June 7, 2018 oral argument, Plaintiffs' counsel attempted to add specificity to the requested relief: Plaintiffs' counsel proposed directing Defendants to create a remedial plan and imposing a deadline for adjudicating a release packet. See Tr. 77:21-80:10. Plaintiff may well be entitled to this relief, but not on the current record. Further factual development is necessary before this relief can be granted.
25

 
 Case 1:18-cv-01453-PAC Document 130 Filed 06/03/19 Page 1 of 8

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

---------------------------------------------------------------------)(
L.V.M. a minor, by and through his next friend Edith Esmeralda Mejia De Galindo, on his own behalf and on behalf of others similarly situated,
Plaintiffs,
-against-

18 Civ. 1453 (PAC) OPINION & ORDER

JONATHAN HAYES, Acting Director, Office of Refugee Resettlement; JALLYN SUALOG, Deputy Director, Office of Refugee Resettlement; LYNN JOHNSON, Assistant Secretary for the Administration for Children and Families, U.S. Department of Health and Human Services; and ALE)( AZAR, Secretary, U.S. Department of Health and Human Services,

Defendants.
----------------------------------------------------------------------)(
HONORABLE PAUL A. CROTTY, United States District Judge:

The Government moves for a protective order pursuant to Fed. R. Civ. P. 26(c)(1) barring

further discovery in this action. The Court denies the Government's motion.

BACKGROUND

This class action lawsuit challenges the treatment of unaccompanied alien children

("UAC") by the U.S. Government through the Department of Health and Human Services, Office of Refugee Resettlement ("ORR"). 1 Generally, when UAC are apprehended by an agency of the

Federal Government, such as Immigration and Customs Enforcement ("ICE"), that agency must

transfer custody of the UAC to ORR within 72 hours. 6 U.S.C. § 279(a); 8 U.S.C. § 1232(b)(3).

1 For a more detailed description of the policies challenged in this action, see L. V.M. v. Lloyd, 318 F. Supp. 3d 601, 608 (S.D.N.Y. 2018).

Case 1:18-cv-01453-PAC Document 130 Filed 06/03/19 Page 2 of 8
ORR is then responsible for the care and custody of the UAC, until they are reunited with a family member or placed with other individuals or entities, while removal proceedings go forward in immigration courts. When UAC come into ORR's custody, ORR places UAC into one of three types of state licensed, ORR-funded, caretaker facilities: (1) secure facility; (2) staff-secure facility; and (3) shelter care facility. "A secure facility has the most restrictive custodial condition and it is in many ways akin to juvenile jails; a staff-secure facility is less restrictive than a secure facility, but movement within it is substantially controlled; and a shelter care facility is the least restrictive custodial setting." L. V.M v. Lloyd, 318 F. Supp. 3d 601,608 (S.D.N.Y. 2018).
A year ago, Plaintiffs filed a Class Complaint and moved for certification of a class consisting of"[c]hildren who are or will be in the custody of ORR in New York State and who are currently housed in a staff secure facility or have ever been housed in a staff-secure or secure facility." Pis.' Mem. for Class Cert., Dkt. 3, at 8; Compl., Dkt. 1, ~ 71. Although federal law requires ORR to "promptly" place UAC "in the least restrictive setting that is in the best interests of the child," 8 U.S.C. § 1232(c)(2)(A), Plaintiffs alleged this legal mandate was no longer being followed for members of the proposed class. Whereas prior to the January 20, 2017, a placement decision typically took a maximum of 90 days, the process now averaged between seven to eight months. Compl. ~~ 26, 35.
Plaintiffs contended this delay was caused, in part, by a new review policy instituted by then-newly appointed Director of ORR, Scott Lloyd,2 under which any UAC ever held in a secure or staff-secure facility could not be released until the release was personally approved by Lloyd or
2 Johnathan Hayes has since replaced Scott Lloyd as Director of ORR. See Gov.'s Prot. Order Mem., Dkt. 122, at 3, n.l. Johnathan White, former Deputy Director of ORR has been replaced by Jallyn Sualog, and Steven Wagner, former Assistant Secretary for the Administration for Children and Families, has been replaced by Lynn Johnson. Pursuant to Fed. R. Civ. P. 25(d), Hayes, Sualog, and Johnson are automatically substituted as defendants in place of their predecessors.
2

Case 1:18-cv-01453-PAC Document 130 Filed 06/03/19 Page 3 of 8
his designee (the "Director Review Policy"). Id. ~ 3. Plaintiffs sought several forms of relief on behalf of this putative class, including orders compelling the Defendants, inter alia, "to promptly reunify the plaintiff class members with their families," "provide prompt decisions about applications for reunification," and "provide a constitutionally adequate process to review denials of reunification." Compl. ~~ 86-87.
Following a period of limited discovery, Plaintiffs moved for class certification and a preliminary injunction vacating ORR's Director Review Policy and "ordering the [G]overnment to promptly complete the reunification process." Pis.' Mem. Supp. Mot. Prelim. Inj., Dkt. 42, at 1. The Government opposed both class certification and a preliminary injunction and moved to dismiss the Complaint. Federal Defs.' Mem. Opp. Pis.' Mot. Prelim. Inj. and Class Certification and Supp. Mot. Dismiss, Dkt. 64 ("Gov. Omnibus Mem.").
This Court issued its decision on all three motions on June 27, 2018. See L. VM v. Lloyd, 318 F. Supp. 3d 601,607 (S.D.N.Y. 2018) (Dkt. 77) (the "June 27th Order"). That Order denied the Government's motion to dismiss with respect to all of the Plaintiffs' claims and cettified the class as Plaintiffs defined it. See id at 614-17. In addressing Plaintiffs' motion for a preliminary injunction, the Comt explained, "Plaintiffs seek two types of injunctive relief: (1) vacatur of the Director Review Policy; and (2) an order directing ORR to take all reasonable measures to expedite the processing of reunification requests." !d. at 620. The Couti granted the first form of relief and denied the latter, noting that with respect to the Plaintiffs' requests for a "remedial plan" and a "deadline for adjudicating a release packet," the "Plaintiff may well be entitled to this relief, but not on the current record. Further factual development is necessary before this relief can be granted." !d. at 621 n.15.
Shmtly thereafter, the parties began discovery in this case. Months later, on November 5,
3

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2018, the Government informed the Court that it would no longer defend the Director Review Policy before this Court. See Gov't Mot. for Conf., Dkt. 108. The Government has since clarified that it will concede the illegality of the Director Review Policy but preserve the "right to appeal pure legal issues (such as lack of final agency action or that the Director Review Policy is committed to agency discretion by law)." Gov.'s Prot. Order Mem., Dkt. 122, at 2. Having so conceded, the Goverrnnent now asserts this lawsuit is over and seeks a protective order barring fmiher discovery. See Mot. for Prot. Order, Dkt. 120.
I. Legal Standard A "court may, for good cause, issue an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense." Fed. R. Civ. P. 26(c)(1)); see also, e.g., In re September II Litigation, 262 F.R.D. 274, 277 (S.D.N.Y. 2009). To establish good cause, a patiy must set fmih "particular and specific facts." Rofail v. United States, 227 F.R.D. 53, 54 (E.D.N.Y. 2005). The Court's authority to issue protective orders is broad, Favors v. Cuomo, 285 F.R.D. 187, 207 (E.D.N.Y. 2012), and the grant of such an order rests "singularly within the discretion of the district court," Gordon v. Target Cmp., 318 F.R.D. 242,245 (E.D.N.Y. 2016).
II. Analysis The Goverrnnent's motion, however, is not a motion for relief from discovery pursuant to
Fed. R. Civ. P. 26(c)(l). The Goverrnnent does not argue that the discovery being sought is unduly burdensome or harassing. The real argument is that this case is moot. See, e.g., Gov. Prot. Order Mem. at 6 ("there is nothing left to litigate and no basis for fmiher discovery"). But a concession regarding a policy's illegality, coupled with a preservation of a right to appeal, does not moot the claims in this litigation. As precedent cited by the Goverrnnent makes clear, the only remedy for a mooted claim is dismissal for want of personal jurisdiction. See Chapman Law Firm Co. v.
4

Case 1:18-cv-01453-PAC Document 130 Filed 06/03/19 Page 5 of 8
Greenleaf Constr. Co., 490 F.3d 934, 939 (Fed. Cir. 2007) (reversible error for district court to enter judgment in favor of plaintiffs instead of dismissing the case where defendants voluntarily granted plaintiffs the relief sought); see also Boucher v. Syracuse Univ., 164 F.3d 113, 118 (2d Cir. 1999); St. Paul Fire & Marine Ins. Co. v. PepsiCo, Inc., 884 F.2d 688,694 n.2 (2d Cir. 1989). By preserving its right to appeal and failing to seek dismissal, the Govemment concedes that there is still a live controversy to be litigated in this action.
This case is not moot, and the Comi rejects the Government's arguments premised on mootness doctrine, see Gov. Prot. Order Mem. at 6-7, as inapplicable3 The Government's additional justification for a protective order fares no better. The Government argues that even though the class cetiified does not explicitly limit membership to UAC subject to the Director Review Policy, it must be so limited; a definition any broader would not have satisfied the specificity requirements of Fed. R. Civ. P. 23(c)(l)(B). See Marcus v. BMW ofN Am., LLC, 687 F.3d 583, 591 (3d Cir. 2012). Butthis reading ofthe Court's June 27th Order is plainly inconsistent with its express language and the litigation history which led to its issuance.
As already noted, Plaintiffs sought to cetiify a class of "all children who are or will be in the custody of ORR in New York State and who are currently housed in a staff-secure facility or have ever been housed in a staff-secure or secure facility." Pis.' Mem. Supp. Class Cert. 8; Compl. ~ 71. That is the class the Couti cetiified, without reference to the Director Review Policy4 And
3 See also Radha Geismann, MD., P.C. v. ZocDoc, Inc., 850 F.3d 507, 513 (2d Cir. 2017) ("A case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.") (internal quotations omitted). 4 Defendants point to prefatmy language in the Court's June 27th Order which described the class as consisting of "children who will be subject to director-level review," L. V.M, 318 F. Supp. 3d at 611, as evidence that the class is so limited. The Court does not deny that at the time it considered Plaintiffs' motion for class cetiification, it understood the challenged Director Review Policy to be one of the issues uniting the class. But this language cannot contradict the Court's subsequent analysis, and the plain language of the class definition the Court ultimately cetiified, both of which clearly contemplate a systemic delay claim not tethered to the Director Review Policy challenge.
5

Case 1:18-cv-01453-PAC Document 130 Filed 06/03/19 Page 6 of 8
Plaintiffs' brief supporting class certification made clear that while the Director Review Policy was one legal issue common to the class, it was not the only one. See Pis.' Mem. for Class Cert. at 11-12 (identifying four questions common to the class, only one of which related to Director Review Policy). The existence of a broader systemic delay challenge, separate from the Director Review Policy, was recognized by both the Govermnent in its opposition papers, see, e.g., Gov.'s Reply. Mem. Supp. Mot. Dismiss, Dkt. 75, at 2 ("LVM is not a proper class representative (particularly with respect to Director Review ... )") (emphasis added); id. at 8 ("The Court also should reject Plaintiffs vague attempt to challenge the timing of ORR's release process as a general matter."), and by the Court. See L. VM, 318 F. Supp. 3d. at 610 ("Plaintiffs claim that this unconscionable delay results, in part, from a new review policy instituted by the then-newly appointed Director of ORR, Scott Lloyd.") (emphasis added); id. at 621 n. 15 (vacating the Director Review Policy but denying Plaintiffs' request for an order directing ORR to expedite the processing of reunification requests at the preliminary injunction stage because "further factual development is necessary.")
The Govermnent's reliance on Third Circuit precedent does not change this Court's analysis. As an initial matter, the Second Circuit has never accepted the stringent standard for class cetiification atiiculated in Marcus. 5 Second, and perhaps more importantly, the Court issued its order certifying the Plaintiffs' class in June 2018 and the Govermnent did not appeal. The Govermnent now argues that the cetiified class only complies with Fed. R. Civ. P. 23(c)(1)(B) if read as limited to UAC subject to the Director Review Policy. But this argument is premised on the exact same argument the Govermnent made, which the Court rejected, in deciding Plaintiffs' motion for class certification. Compare Gov. Prot. Order Mem at 8, n.6 with Gov. Omnibus Mem.
5 In fact, the Second Circuit has explicitly rejected a related aspect of the Third Circuit's Rule 23 jurisprudence articulated in Marcus. See In re Petrobras Sec., 862 F.3d 250, 265 (2d Cir. 2017).
6

Case 1:18-cv-01453-PAC Document 130 Filed 06/03/19 Page 7 of 8
at 38; see also L. VM., 318 F. Supp. 3d at 615 (rejecting Defendants' argument that the claims lack commonality among the class because they challenge systemic delays, not individual release decisions). The Court has already considered and rejected this argument once; the Government's effort to reasse1i it here, under the guise of a motion for a protective order, is no more convincing.
Finally, such a result is consistent with the role of discovery in our judicial process. The Federal Rules of Civil Procedure do not require plaintiffs to plead their allegations with certainty. Instead, our system requires only that a plaintiff allege plausible claims, see Ashcroft v. Iqbal, 556 U.S. 662, 696 (2009), claims which are then clarified and developed through discovery. That is why pleadings may be amended. See Fed. R. Civ. P. 15 (a)(2); Thea v. K/einhandler, 807 F.3d 492, 496 (2d Cir. 20 15). That facts and understandings change over time, particularly in a lawsuit challenging the conduct of a federal agency with frequent turnover, see supra 2, n.2, is the inevitable result of the litigation process.
Plaintiffs filed this lawsuit to challenge the prolonged detention of a class ofUAC children held in New York ORR facilities, a delay they believed was caused in part, by the ORR's Director Review Policy. Through discovery, Plaintiffs have learned that "[a]mong children released at any time in Fiscal Year (FY) 2018 ... children in New York who have ever spent time in secure or staff-secure placements were detained over 3.6 times longer than children who had not," Austin Dec!., Dkt. 124, ~ 2. Plaintiffs have also learned "that there are several key processes and decisionpoints in the release process that appear to be the widespread cause of significant delay for class members" id. ~ 3, a continued reality the Government nowhere claims to have remedied. Plaintiffs are entitled to utilize the litigation process to confirm or rebut their allegations in a manner susceptible to court-ordered remedy.
7

Case 1:18-cv-01453-PAC Document 130 Filed 06/03/19 Page 8 of 8

CONCLUSION The Government's motion for a protective order is DENIED. Given that discovery in this action will continue, Plaintiffs are fmiher instructed to update the Comi as to the status of any outstanding discovery requests set forth in the motion to compel at Dkt. 95. The Clerk of the Comi is instructed to close the motion at Dkt. 120.

Dated: New York, New York June 3, 2019

SO ORDERED
~~/~C;_,tz~
PAUL A. CROTTY United States District Judge

8

 
 Case 1:18-cv-01453 Document 1 Filed 02/16/18 Page 1 of 25

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

L.V.M., a minor, by and through his next friend EDITH ESMERALDA MEJIA DE GALINDO, on his own behalf and on behalf of others similarly situated,
Plaintiffs/Petitioners, v.
SCOTT LLOYD, Director, Office of Refugee Resettlement; JONATHAN WHITE, Deputy Director, Office of Refugee Resettlement; STEVEN WAGNER, Acting Assistant Secretary for the Administration for Children and Families, U.S. Department of Health and Human Services; ALEX AZAR, Secretary, U.S. Department of Health and Human Services; ELCY VALDEZ, Federal Field Specialist, Office of Refugee Resettlement; JEREMY KOHOMBAN, President and Chief Executive Officer, Children’s Village.

Case No.
CLASS ACTION COMPLAINT AND PETITION FOR A WRIT OF HABEAS CORPUS

Defendants/Respondents.

INTRODUCTION 1. This class action lawsuit challenges the government’s prolonged detention of immigrant
children across New York State. Thousands of children who make the long and perilous journey to the United States each year are trauma survivors fleeing violence and persecution in their home countries. In recognition of this population’s vulnerability, federal laws and policies offer special protections to these children and require that they promptly be reunited with loved ones in the United States while their immigration cases are adjudicated. 2. In a sharp break from the laws and policies intended to protect these vulnerable children, the Trump administration has vilified and targeted them. President Trump has said that large numbers of immigrant children are gang members and “animals;” Attorney General Sessions has described them as “wolves in sheep’s clothing;” and both men have denounced the laws

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that protect these children. On the day before the filing of this lawsuit, the administration issued a statement attacking the federal statute that protects immigrant children, characterizing its protections as “loopholes.” 3. Under Scott Lloyd, whom President Trump appointed to head the agency responsible for the care of immigrant children – the Office of Refugee Resettlement – the process of reunifying the children in the plaintiff class has ground to a virtual halt, trapping these children in highly restrictive government-controlled facilities. Among other measures, Lloyd altered agency policy and practice in mid-2017 such that he now personally reviews and must approve nearly all reunification decisions involving children in the plaintiff class. In the six months of implementing this new procedure (June to December 2017), Lloyd approved the release of only a handful of class members in New York. This marks a significant departure from years past where children like the class members in this case waited only one to three months for release. 4. Plaintiff L.V.M. is one of dozens of children in New York victimized by the Trump administration’s new regime for handling immigrant children. L.V.M. had never spent a night apart from his mother until July 2017, when federal officials removed him from his home on Long Island on false gang allegations. The only judge to review that claim soundly rejected it, ORR itself has moved L.V.M. to a placement reserved for children who do not present a danger, L.V.M. has not had a single disciplinary incident while in detention, and his mother has done everything requested of her to secure her son’s return home. Nonetheless, L.V.M. remains in government custody seven months later with no end in sight and no explanation for why he has yet to be returned to his mother’s care. And not only does his plight exemplify the unlawful and damaging delays in the reunification process, it also reveals the depth of Lloyd’s role in
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this process, as he personally interviewed L.V.M. shortly after he was detained, a remarkable step given that Lloyd heads an agency with thousands of children in its custody. 5. Given the specter of indefinite detention, L.V.M. now seeks the Court’s intervention on behalf of himself and a class of minors similarly situated to him so that he can be reunited with his mother and so that immigrant children in custody in New York will no longer be subjected to endless and unexplained delays and to the grievous harms that children suffer when separated from their families and left to languish in government custody. The defendants’ actions violate the federal statute that governs the detention and release of immigrant children, the Administrative Procedure Act’s prohibition on unreasonable delays and arbitrary and capricious agency conduct, and the Constitution’s Due Process Clause. Defendants’ actions are causing serious and irreparable harm to L.V.M. and the other juveniles in the plaintiff class. The plaintiffs therefore seek declaratory and injunctive relief from this Court to end these violations and harms.
JURISDICTION AND VENUE 6. This Court has subject matter jurisdiction under 28 U.S.C. § 1331 (federal question); 28 U.S.C.
§ 2201 (Declaratory Judgment Act); 28 U.S.C. § 2241 (habeas corpus); and 28 U.S.C. § 1361 (mandamus). 7. Venue is proper in the Southern District of New York under 28 U.S.C. § 1391(b) because a substantial part of the events giving rise to these claims occurred in this district. Venue is also proper under 28 U.S.C. § 2241(d) because L.V.M. is detained within this district.
PARTIES 8. Plaintiff L.V.M. is a 17-year-old boy from El Salvador who has been detained by the
defendants since July 6, 2017.
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9. Plaintiff Edith Esmeralda Mejia de Galindo is L.V.M.’s mother. She lives in Bellport, New York, and prior to L.V.M.’s detention by defendants in July 2017 had resided with and cared for her son throughout his life.
10. Defendant Alex Azar is the Secretary of the Department of Health and Human Services, the department of which ORR is part. Azar is a legal custodian of L.V.M. and is sued in his official capacity.
11. Defendant Steven Wagner is the Acting Assistant Secretary for the Administration for Children and Families under the U.S. Department of Health and Human Services. The Administration for Children and Families is the office within HHS that has responsibility for ORR. Wagner is a legal custodian of L.V.M. and is sued in his official capacity.
12. Defendant Scott Lloyd is the Director of the Office of Refugee Resettlement (“ORR”). ORR is the government entity directly responsible for the detention of L.V.M. Lloyd is a legal custodian of L.V.M. and is sued in his official capacity.
13. Defendant Jonathan White is the Deputy Director of ORR. White is a legal custodian of L.V.M. and is sued in his official capacity.
14. Defendant Elcy Valdez is the Federal Field Specialist for ORR who oversees Children’s Village. Federal Field Specialists are ORR officials who act as regional approval authorities for the transfer and release of most children in facilities under their supervision. Valdez is a legal custodian of L.V.M. and is sued in her official capacity.
15. Defendant Jeremy Kohomban is the President and Chief Executive Officer of the Children’s Village, a government-contracted nonprofit facility in Dobbs Ferry, N.Y. where L.V.M. is currently in custody. Kohomban is a legal custodian of L.V.M. and is sued in his official capacity.
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FACTS AND LEGAL FRAMEWORK COMMON TO ALL PLAINTIFFS Legal Framework and Policies Governing Custody and Release of Immigrant Children 16. Each year, thousands of children come to the United States from foreign countries, some with
relatives and some alone. In recent years, the U.S. has seen an influx of children from Mexico and Central America fleeing endemic levels of crime and violence that have made those countries extremely dangerous, especially for children and young adults. The United Nations estimates that nearly two-thirds of immigrant children now coming to the U.S. from Mexico and Central America have suffered harms and persecution warranting international refugee protection. 17. In the 1980s and 1990s, immigrant children who arrived to the U.S. were routinely locked up for months in unsafe and unsanitary jail cells, in remote facilities across the country. These conditions prompted a federal lawsuit, Flores v. Reno, which resulted in a 1997 consent decree still effective today that sets national standards for the detention, release, and treatment of immigrant children in government custody. In addition to setting certain minimal detention standards, Flores guarantees that children shall be released “without unnecessary delay” and requires the Government to undertake “prompt and continuous efforts” towards family reunification. The Flores consent decree also gives these children the right to a bond hearing before an immigration judge. 18. In 2002, Congress took further action to protect this vulnerable population when it passed the Homeland Security Act (“HSA”) and transferred the care and custody of unaccompanied immigrant children from the Immigration and Nationality Service to the Office of Refugee Resettlement, housed within the Department of Health and Human Services. ORR is not a security agency; its mission is to “incorporate[e] child welfare values” into the care and placement of unaccompanied immigrant children.
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19. Building on Flores and the provisions of the HSA regarding immigrant children, Congress passed the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA”), which grants legal protections to children in ORR custody and tasks the agency with ensuring they are “promptly placed in the least restrictive setting that is in the best interest of the child.” Senator Diane Feinstein, a sponsor of the bill that would become the TVPRA, explained that the legislation was intended to redress situations like one she had personally witnessed, where an unaccompanied child remained in custody for nine months after her initial detention. The text and legislative history of the TVPRA make clear that Congress enacted it to facilitate the speedy release and minimally restrictive placement of immigrant children.
20. ORR has never promulgated regulations under the TVPRA. The only public guidance on ORR’s detention and release procedures is a guide that has existed for at least a decade but was not published online until 2015.1 ORR edits and amends this guide as often as once a week and does so without any explanation or announcement of the changes. ORR also regularly advises its staff and service providers of nonpublic changes in policy by email or phone.
21. Reviewing ORR’s placement practices in 2016, a subcommittee of the Senate Committee on Homeland Security and Governmental Affairs found that ORR had “failed to adopt and maintain a regularized, transparent body of policies and procedures concerning the placement of UACs” and castigated the agency for what it called “[s]etting governmental policy on the fly” in a manner “inconsistent with the accountability and transparency that should be expected of every administrative agency.” Despite this lack of public accountability and transparency
1 See Office of Refugee Resettlement, ORR Guide: Children Entering the United States Unaccompanied (Jan. 30, 2015), https://www.acf.hhs.gov/orr/resource/children-entering-theunited-states-unaccompanied
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over ORR’s activities, the online guide does provide a set of procedures for the agency to follow when determining the placement and release of children in its care. 22. These procedures are applicable to over 7,000 children in ORR custody nationwide. Approximately 1200 of these children reside in placements in New York.2 These children are placed with one of nine nongovernmental organizations that house children pursuant to contracts with the Department of Health and Human Services. Children’s Village, in Dobbs Ferry, New York, is one of the largest ORR-contracted shelters in the state and houses approximately 183 children. It also has the only staff-secure placement in New York, housing a total of 28 children. Outside Children’s Village, approximately 430 children reside in shelterlevel placements across the state, including at shelters such as Lincoln Hall in Lincolndale and MercyFirst in Syosset. 23. Beginning when a child comes into ORR custody, the agency’s online guide provides that ORR may place him or her in one of three levels of care based on an assessment of the level of security risk and harm to self or others that the child poses: “shelter care” is the least restrictive custodial setting, “staff secure” is the intermediate level, and “secure” care is the most restrictive level.3 Secure facilities are like juvenile jails; there are only two such facilities in use nationwide, one in California and one in Virginia. Staff-secure facilities, while not using locked pods or cells, are still very restrictive in that children’s movement inside the unit is controlled; children are not permitted to leave the facility except to attend court; outdoor recreation is limited to one hour a day in a fenced in area; and there is a higher staff-to-child
2 Of the 1200, approximately half are in shelter placements and half are in transitional foster care placements. In addition to these 1200, there are several dozen children in long-term foster care in New York. 3 Children can also be placed in Residential Treatment Centers, given psychiatric or psychological issues, and in long-term or transitional foster care.
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ratio than in shelter units. Shelter-level placements, while less restrictive than staff-secure or secure custody, are nonetheless much more restrictive than a home environment. Children are not permitted to move between rooms or up and down the stairs without staff permission; external doors are locked; and time outdoors is limited. At Children’s Village, children in shelter-level care are permitted only two outgoing calls a week. 24. ORR places children in secure or staff-secure settings (either initially upon entry into the ORR system or as the result of a “step up” once the child is already in ORR custody) for a variety of reasons, including disruptive behaviors, even those tied to mental health;4 an expression of a desire to leave ORR custody, which can be construed as making the child an “escape risk”; and other disclosures of behaviors or thoughts deemed to raise safety concerns, including ones made to mental health professionals or social workers contracted by ORR to care for children. 25. ORR’s online guide also contains procedures governing the release of children in its care. The guide provides for ORR to “begin[] the process of finding family members and others who may be qualified to care for an unaccompanied alien child as soon as the child enters ORR’s care.” For children without a viable sponsor in the U.S., ORR has a long-term foster-care program through which children who have demonstrated “safe behavior in a non-secure setting” can be placed with families in the community, rather than a shelter. ORR also has policies and procedures that “require the timely release of children and youth to qualified parents, guardians, relatives or other adults, referred to as ‘sponsors.’” Once a custodian or sponsor has been identified, he or she must complete two forms—an authorization for release of information and a family reunification application—and provide documentation of the identity of the child, the
4 ORR’s ability to address mental-health linked behavioral issues in more therapeutic Residential Treatment Centers, see ORR Guide 1.4.6, is limited because there are only two nationwide.
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sponsor’s identity and address, his or her relationship to the child, and “evidence verifying the identity of all adults residing with the sponsor and all adult care givers identified in a sponsor care plan.” 26. Once an ORR care provider and a nongovernmental third-party reviewer, called a “case coordinator, “conclude[] that the release is safe and the sponsor can care for the physical and mental well-being of the child,” the care provider “makes a recommendation for release” to the ORR Federal Field Specialist (FFS), an individual who acts as the local ORR liaison with the facility. Historically, the FFS then either approved or denied release or requested more information. Prior to 2017, children placed in staff-secure custody were typically released to a sponsor within 30 to 90 days. For children in shelter care, the average length of time in custody was 34 days, after which time the vast majority were reunited with a sponsor. But as described below, new changes to the long-standing policy of the FFS approving or denying release were instituted by Director Lloyd last spring and made public in June 2017, resulting in the reunification process coming to a virtual halt. Changes to ORR’s Policies and Practices Under the Trump Administration 27. The Trump administration has repeatedly engaged in rhetoric and policies that demonize immigrant children and aim to subvert the laws intended to protect them. Recent policy changes enacted by ORR reflect the Trump administration’s rhetoric vilifying immigrant children as dangerous criminals or gang members. The administration has deployed this rhetoric despite the fact that ORR’s own internal review has found that, even by its own flawed identification process, fewer than two percent of children in its custody have gang ties. 28. The Administration has taken particular aim at laws that protect immigrant children. In his most recent State of the Union Address, President Trump described immigrant children as
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violent gang members who “took advantage of glaring loopholes in our laws to enter the country as unaccompanied alien minors.” Just this week, the Department of Homeland Security issued a statement denouncing the TVPRA and the Flores Settlement as two such “loopholes.” 29. In a rally held in Long Island in July 2017, President Trump declared that the “laws are stacked against us” and called out “aliens minors” as responsible for gang-related killings in the United States, referring to immigrant children accused of being gang members as “animals.” “They’re going to jails,” he yelled, “and then they’re going back to their country.” 30. Attorney General Sessions has also furthered this narrative, alleging that certain immigrant children who come to this country are “wolves in sheep’s clothing.” In an interview with Fox News broadcast on August 3, 2017, Sessions said: “[W]e need to be able to deport people rapidly who enter the country illegally, and we have to end this policy of taking unaccompanied minors…and turning them over to the Department of Health and Human Services [the agency within which ORR is located], and then they take them to their ‘destination city’…So this is a very bad and dangerous policy and it can be ended and it must be ended.” On February 15, 2017, the Department of Homeland Security released a statement describing the Flores settlement and the TVPRA as “loopholes” that invite illegal immigration and fuel gangs. 31. In addition to publicly denouncing protections for immigrant children, the Trump administration has called on Congress to amend the TVPRA and to strip children of many of the protections they are afforded under this legislation. 32. Though the TVPRA remains fully in place, the Trump Administration has actively worked to subvert its requirements in furtherance of its rhetoric portraying immigrant children as dangerous criminals and gang members. One such new policy ORR instituted under Lloyd’s leadership was to place all children with gang allegations in secure care. Many of these children
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entered ORR custody after being detained during two Long-Island centered crackdowns against alleged gang members: Operation Matador, in May and June 2017, and Operation Raging Bull, in October and November 2017. But the gang allegations upon which the agency relied in making these placements have been debunked by virtually everyone who has reviewed them, both inside and outside ORR. 33. In late 2017, a federal court in San Francisco ordered that immigrant children previously released from ORR custody as unaccompanied minors, subsequently detained for alleged gang involvement and placed back in ORR custody receive hearings before immigration judges to determine if they truly pose a danger. In nearly every hearing (27 of 29), immigration judges found the government’s claim of dangerousness unfounded and ordered the child’s release. But children in the plaintiff class here, like L.V.M., who are not class members in the San Francisco case, still do not have any mechanism available to challenge their detention, even after they are stepped down from secure custody. 34. In spring 2017, Lloyd instituted a new policy that indefinitely stalls the reunification of children like L.V.M. with their families. That policy, reflected in a revision to the online ORR guide on June 12, 2017, imposes a new requirement for the release of children who are currently or have ever been held in secure or staff-secure facilities within ORR: personal approval by Scott Lloyd, or his designee, Deputy Director, Jonathan White. Lloyd is not a social worker, psychologist, or educator. Before being appointed as ORR director in March 2017, a position that does not require Senate approval, Lloyd was an attorney for the Knights of Columbus and served on the board of a crisis pregnancy center in Virginia. Yet, upon information and belief, nearly all of the requests for release elevated to headquarters for approval are personally decided by Lloyd. The result is that after a child’s release is
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recommended by the shelter staff; a third-party case coordinator; a home-study worker, if applicable; and the FFS, with voluminous accompanying documentation, that request is now forwarded to Washington D.C., where it languishes with defendants White and Lloyd, often for months. 35. Since the requirement of director approval for release was imposed, the release of children who are or have previously been in secure or staff-secure confinement has virtually ground to a halt. Prior to 2017, children in staff-secure custody typically remained detained for 30 to 90 days. Yet in the last eight months, it has become rare for children who require Lloyd’s approval to be released at all (other than children ordered released as a result of litigation like the San Francisco case). In the six months after the requirement of Director-level approval was added to ORR’s online guide, only four out of dozens of children at Children’s Village impacted by the new requirement were released absent either judicial intervention or the threat of litigation. Most other children either turned 18 and were transferred to ICE custody or remain in ORR custody today. As of the week of the filing of this complaint, at least eleven children who, like L.V.M., have been stepped down to shelter care at Children’s Village remain detained despite having spent an average of over seven months in ORR custody. 36. In nearly every case, once defendant Lloyd finally acts on a release recommendation, it is only to request additional information, services or evaluations from care providers. The requests from the ORR director are unguided by any policy or fixed set of criteria and amount to constantly moving targets. In many cases, the care providers, who have already completed the full panoply of release procedures, believe these further requests or requirements are unnecessary and in some cases even harmful. Once care providers collect and relay the requested information, children again have to wait lengthy periods for yet another response.
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37. The requirement of Director-level review has also slowed other stages in the reunification process. For instance, case managers for class members in ORR shelters substantially delay forwarding release recommendations because they believe, given their experience with this new level of review, that they may need to collect information that is otherwise extraneous to the ultimate decision or even harmful to the child or may need to await developments (like Flores hearings) that should not otherwise delay the reunification process.
38. The stepdown of children from staff-secure care to shelter care, often an essential precursor to release, has also slowed dramatically. Particularly for children alleged to have gang involvement, transfer to a less restrictive form of care often takes months longer than care providers believe necessary. This is true even if shelter staff or an immigration judge have already rejected the gang allegations against a particular child. On information and belief, this delay in stepdown is also the result of policies or practices put in place by ORR’s leadership.
39. For children, the devastating effect of these delays can include depression, deterioration in mental health, and behavioral problems associated with prolonged detention. Children like L.V.M. feel a sense of hopelessness stemming from their indefinite detention, particularly once they know that every ORR staff member or field professional with whom they have had contact has recommended release or stepdown and yet they remain detained in a highly restrictive environment. In some cases, children respond by misbehaving in ways that cause them to face progressively more restrictions on their movement in custody, exacerbating their already significant depression and hopelessness. In other cases, children who fear persecution in their home countries nonetheless opt to accept removal and return there, rather than endure further detention.
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40. The indefinite wait times for release approval from Lloyd also render release plans and postrelease services put in place by shelter staff obsolete, as the availability of those resources is often time-limited.
Lack of Reasoned Explanation for Change in Policy and Resulting Delay 41. ORR’s online guide gives no explanation for the new requirement that Scott Lloyd or his
designee personally approve the release of all children currently or formerly in placements with heightened security, nor any information about the criteria used by the director or his designee or a timeline for completion of their review. 42. To the extent that ORR has offered any public explanation for this policy, those explanations have—like statements by the President and Attorney General—focused entirely on the specter of allegedly gang-affiliated youth. In Congressional testimony provided in June 2017, Director Lloyd stated that because of gang concerns and the Administration’s prioritization of safety, he had instituted “major policy changes” with a goal of ensuring that children “needing heightened supervision or that present a danger to other UAC[s] are appropriately placed,” particularly those alleged to have admitted gang involvement. As part of this process, he explained, “[s]enior ORR leadership now reviews all releases from secure and staff-secure facilities, and I make the final release decision.” He explained, in justifying this change, that he views “homeland security and juvenile justice” as areas within ORR’s “mission.” This is a far cry from the “child welfare values” intended to govern ORR’s treatment of children in its care. 43. Contrary to Lloyd’s testimony suggesting that only those children currently in secure or staffsecurity facilities were subject to his review, the requirement for director approval now applies not only to those children but also to children who have ever been placed in those facilities,
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even if subsequently stepped down to shelter care because ORR itself has recognized they pose no threat. 44. In August 2017, ORR sent an “Information Memo” to the President’s Domestic Policy Council regarding its “Community Safety Initiative for the Unaccompanied Alien Children Program.” The memo asserts that a review in June found a quarter of children in secure or staff-secure custody were “involved with gangs” and that, as a result, ORR has instituted a new requirement that defendants White and Lloyd now “review and approve releases from secure or staff secure facilities.” 45. In addition to its inaccurate statement of current policy, the August 2017 memo fails to offer any explanation of how ORR’s “review” was conducted; what criteria were used to establish gang involvement; and what steps if any were taken to verify the underlying allegations, which—when the injunction in the San Francisco case was issued months later—immigration judges rejected as to dozens of children whom ORR had labeled gang-involved. The memo also offers no explanation for how review of a release recommendation by defendants Lloyd or White will supplement or differ from the review by the numerous local officials whose release recommendations already include an assessment of dangerousness and have previously been deemed adequate. Finally, the memo fails to acknowledge or address the impact of the Director-level review requirement on the large number of children currently or previous in secure or staff-secure custody who, by ORR’s own estimation, have no alleged gang involvement. For instance, in December 2017 the New York Civil Liberties Union challenged the four-year-long detention of a 15-year old boy, JMRM, whose release from ORR was stalled because he had spent time in a staff-secure facility a year and a half earlier; his placement there
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was the result of behavioral issues that stemmed from poorly managed mental health and past trauma. Shortly after the NYCLU filed its lawsuit, ORR released him. 46. In May 2017, ORR’s online policy guide was amended to provide for the possibility of an “appeal” to the Assistant Secretary of ORR if a reunification request is denied. But this process—at which sponsors have no right to call witnesses, includes no requirement of a reasoned decision, and uses a politically-appointed official as an adjudicator—is available only once a final decision is rendered on a reunification request.
FACTS PERTAINING TO L.V.M. L.V.M’s Arrival in the United States and Subsequent Arrest 47. L.V.M. is a 17-year-old citizen of El Salvador who came to the U.S. in May 2016 with his
mother and younger brother. The family fled El Salvador after L.V.M. was targeted and threatened by gang members. Since their arrival in the United States, the family has retained immigration counsel, applied for asylum and attended all immigration proceedings at the New York Immigration Court in Manhattan. 48. L.V.M. and his mother, Edith Esmeralda Mejia de Galindo, have an extremely close relationship. Prior to L.V.M.’s July 2017 detention, he had never spent a night apart from his mother. L.V.M. has no relationship with his biological father, and Ms. Mejia describes herself as having been both his mother and his father throughout his life. 49. L.V.M. has never been arrested or charged with a crime. Prior to coming to the United States at the age of 15, he had never had any disciplinary issues at school. 50. In April 2017, while in the ninth grade and his first year at Bellport High School on Long Island, L.V.M. was suspended after he was alleged to have flashed “gang signs” in the hallway.
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L.V.M. has never had any gang affiliation and did not use a gang sign but acknowledges raising both middle fingers towards another student, after the other student did the same. 51. L.V.M. was suspended for 39 days after a hearing at which he and his mother were not represented by counsel and not permitted to be accompanied by a relative whom Ms. Mejia had brought to translate. The only allegation of gang-related activity in the paperwork the family received from the school was that L.V.M. had made the hand gesture towards another student in the hallway. 52. On July 6, 2017, L.V.M. was arrested at home by law enforcement agents who did not identify themselves. Ms. Mejia, phoned by a relative, rushed home in time to find her son being detained in the front yard. The agents would not give her any information except that her son was being arrested because he is “illegal.” Ms. Mejia told them that she and her sons had been attending immigration court, but the agents detained L.V.M. regardless. 53. Ms. Mejia did not know what government agency had taken her son. She desperately sought help in locating him—including from two immigration attorneys, an education attorney, and the New York Civil Liberties Union—and went herself to the federal courthouse in Central Islip. One of the attorneys was able to confirm late the next day that L.V.M. had been arrested by Immigration and Customs Enforcement (“ICE”) as part of a large-scale raid called “Operation Matador,” conducted in Suffolk County targeting immigrant children, and that he was already being transported to an ORR-contracted facility, the Shenandoah Valley Juvenile Center, in Virginia. L.V.M’s Detention by ORR 54. L.V.M. has remained in ORR custody ever since. From July 7 to August 18, he was detained in a secure facility in Virginia. During his time at the facility in Virginia, ORR Director Scott
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Lloyd personally interviewed L.V.M., questioning him as to the reason for his detention and whether he planned to stay in the U.S. 55. L.V.M.’s behavior in Virginia was described as “excellent” and a dangerousness assessment on August 8 resulted in a recommendation he be stepped down to shelter care. On August 18, he was transferred to the staff-secure facility at Children’s Village in Dobbs Ferry, New York, reflecting that shelter staff did not believe he posed a danger. After approximately a month and a half in staff-secure custody, his case manager informed L.V.M. that although his behavior has been “exemplary” and staff wanted to step him down to shelter-level care—meaning that he posed no danger and was not in need of close supervision—they could not because L.V.M. had been detained as part of ICE’s Operation Matador. The source and scope of this prohibition or policy by ORR are not identified in L.V.M.’s records. On November 22, 2017, L.V.M. was finally stepped down to a shelter facility, the lowest level of security at Children’s Village. 56. During his more than seven months in government custody, L.V.M. has never had a single disciplinary incident. In fact, L.V.M.’s ORR records describe him as “polite and soft spoken,” and a psychologist who evaluated him in August 2017 noted that he is an “unusually nice kid.” His behavior in ORR custody is variously described as “exemplary” and “excellent.” 57. L.V.M.’s separation from his mother—with whom he had lived his entire life—has caused him significant anxiety and sadness. While L.V.M. was detained in Virginia, a caseworker there noted that most of his phone calls with Ms. Mejia devolved into tears and that L.V.M. often began crying when discussing his separation from his mother. 58. Since L.V.M. returned to New York, his mother has visited him every other week for visits of approximately two hours. To do so, she pays a private taxi company $150 to drive her the two hours from Bellport to Dobbs Ferry and back. L.V.M. is allowed only two outgoing phone
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calls of twenty minutes each a week. His mother calls him daily, during which they are allowed to speak for ten minutes. But since one line is shared by all 16 children in the unit, the two are at times unable to speak. Family visits are also not always possible due to lack of available staff to supervise them. 59. L.V.M. has experienced bullying and social isolation while in ORR custody. 60. L.V.M. and his mother believe he is receiving a lower standard of education than he would receive in regular school. The classes at Children’s Village are not part of a district-accredited program, and all children in a unit are taught together, regardless of age or grade level. Ms. Mejia and L.V.M’s Attempts to Reunite 61. Under the Flores Settlement, ORR is supposed to facilitate L.V.M.’s access to a custody hearing, upon his request, to determine whether he poses a danger or a flight risk. Yet it took L.V.M. and his attorney four months of effort to succeed in scheduling such a hearing. After L.V.M. was detained, his attorney filed multiple motions for a bond hearing to the immigration court, beginning as early as August 2, and called the court on numerous occasions to follow up. In early October, L.V.M. also requested a Flores custody hearing directly via his case manger at Children’s Village, who then sought to schedule such a hearing through ORR. In mid-December, the hearing was finally scheduled for December 18, 2017. 62. At that hearing, ORR filed two pages from his ORR file as evidence to justify L.V.M’s detention; L.V.M. via his attorney filed over 100 pages from the same file. ORR’s submission consisted only of DHS’s referral notes from when L.V.M. was initially detained, which stated that L.V.M. has been “identified as an MS-13 gang member” by DHS Homeland Security Investigations based on his identification as such by Suffolk County Police Department; his suspension from high school for “gang related activities;” his appearance in a video “flashing
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gang signs” (also the cause of his suspension); and his use of apparel and clothing associated with MS-13. The apparel and clothing are not described. On the second page, the form indicates L.V.M.’s gang affiliation was determined by “self-admission,” “gang tattoos” and the summary appearing on the previous page. L.V.M. and his mother first learned of these allegations at the December 18 hearing. 63. L.V.M. has no tattoos and has never admitted to gang membership. He has never been arrested or had any contact with the Suffolk County Police Department. Neither he nor his mother has any idea what the offending clothing or apparel were that L.V.M. wore. In fact, other than the alleged gang sign he flashed in the hallway, it appears as though the form simply copies and pastes allegations made against other immigrant children alleged to be gang members. 64. At the custody hearing on December 18, after review of both parties’ submission and testimony from L.V.M. and his mother, an immigration judge ruled that L.V.M. did not pose a danger or a flight risk. 65. Despite the fact that an immigration judge ruled L.V.M. not to be a flight risk or danger to the community, ORR continues to refuse to release him to his mother. ORR has no legal justification for refusing to release him unless it is continuing to evaluate the suitability of his mother as his custodian, a process that should have begun over seven months ago when L.V.M. was detained and should have been long since completed. 66. Since her son’s detention, Ms. Mejia has complied with every requirement ORR has made to evaluate her suitability as her son’s custodian—an issue that has never before been questioned, as she has had custody of her son since his birth. Ms. Mejia and her husband were fingerprinted on July 19, 2017. The other adults in the home were fingerprinted on August 7, 2017. All four adults provided valid government-issued identifications and release and background forms. Ms.
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Mejia also provided L.V.M’s birth certificate; her birth certificate and marriage certificate— which she had to ask a relative in El Salvador to get for her—and a completed and signed version of every form sent to her by case workers at ORR, including an Application for Family Reunification. 67. Ms. Mejia submitted the final set of documents—including the birth certificate and marriage license which she had to obtain through a relative in El Salvador—on August 30, 2017. 68. Since August 30, Ms. Mejia was asked numerous times by ORR personnel to provide additional copies of documents provided earlier, such as her birth certificate, and to provide further documents, such as a letter from the Southport Country Central School District documenting L.V.M.’s enrollment. On February 15, Ms. Mejia was asked to provide school records for L.V.M., although she already gave permission for ORR to request those records itself over six months ago. 69. On January 2, 2018, a home study was conducted to assess Ms. Mejia’s suitability to resume custody of her son. The home study resulted in a positive recommendation on January 17, 2018. 70. On information and belief, L.V.M.’s release to his mother has now been recommended by his case manager at Children’s Village, a third-party case coordinator, a home study worker, and the local Federal Field Specialist, defendant Elcy Valdez, and has now been pending with Lloyd for several weeks. Also, on information and belief, staff at Children’s Village believed L.V.M. to be ready for reunification several months ago but were hampered in their ability to step him down to shelter-level care and to formally recommend his reunification due to barriers to stepdown and release that are applicable only to this class of children and due to shelter staff’s knowledge of the prolonged and arbitrary nature of case file review at ORR headquarters.
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CLASS ACTION ALLEGATIONS 71. The case is brought as a class action pursuant to Federal Rules of Civil Procedure 23(a) and
23(b)(2), or in the alternative, as a representative habeas action on behalf of all children who are or will be in the custody of ORR in New York State and who are currently housed in a staff-secure facility or have ever been housed in a staff-secure or secure facility.
72. The proposed class is sufficiently numerous so as to render joinder impracticable. Upon information and belief, the class consists of at least 40 children. Moreover, additional children will enter the class in the future.
73. Joinder is also impracticable because the proposed class consists of children who are separated from their families and other adult caretakers, many of whom are indigent, have limited English proficiency, and/or have a limited understanding of the U.S. judicial system.
74. Common questions of law and fact affect class members, including (a) whether the Government is in compliance with its obligation under the TVPRA to promptly place children in the least restrictive setting possible; (b) whether the Government’s practice of subjecting children to prolonged separation from their families or guardians and in overly restrictive placements in violation of its own policies and without adequate procedures violates the plaintiffs’ right to due process; (c) whether substantial delays in deciding whether to reunify children with their families or sponsors are unreasonable under the APA; and (d) whether the change in ORR policy to require the ORR Director or his designee to approve release decisions for children in or previously in secure or staff-secure custody, a process that contains no known criteria or timeline and has resulted in delays throughout the ORR system, is arbitrary, capricious and not in accordance with law under the APA.
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75. L.V.M.’s claims are typical of those of the class with respect to the legality of the Government’s policies and practices at issue. L.V.M. will fairly and adequately protect the interests of the class. He is unaware of any conflicts that would preclude fair and adequate representation.
76. The prosecution of individual actions against the defendants will enable their practices to evade judicial review.
77. Proposed class counsel have experience litigating similar matters. 78. The defendants’ policy or practice of subjecting class members to prolonged detention without
adequate process in violation of the TVPRA, the due process clause, and the Administrative Procedure Act apply to the entire class, making class-wide injunctive and declaratory relief appropriate.
CAUSES OF ACTION FIRST CLAIM
VIOLATION OF TVPRA (ALL PLAINTIFFS AGAINST ALL DEFENDANTS) 79. The defendants’ actions violate the William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008. SECOND CLAIM
VIOLATION OF THE DUE PROCESS CLAUSE (ALL PLAINTIFFS AGAINST ALL DEFENDANTS)
80. The defendants’ actions violate the plaintiffs’ rights under the Due Process Clause of the Fifth Amendment to the United States Constitution. THIRD CLAIM VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT (ALL PLAINTIFFS AGAINST ALL DEFENDANTS)
81. The defendants’ actions violate the Administrative Procedure Act.
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PRAYER FOR RELIEF WHEREFORE L.V.M. through his next friend Edith Esmeralda Mejia de Galindo respectfully requests that the Court: 82. Assume jurisdiction over this matter; 83. Order the defendants to release L.V.M. to his mother’s custody immediately; 84. Certify the proposed class; 85. Declare that the defendants’ actions, including the prolonged detention of plaintiff class members, violate the TVPRA, the Administrative Procedure Act, and the Due Process Clause; 86. Order the defendants to promptly reunify the plaintiff class members with their families and/or sponsors or, where appropriate, promptly place them in the otherwise least restrictive setting; 87. Order the defendants to provide prompt decisions about applications for reunification of plaintiff class members and to provide a constitutionally adequate process to review denials of reunification, including a reasoned explanation for any denial and a hearing before a neutral adjudicator with the opportunity to call witnesses. 88. Set aside the ORR policy of requiring approval of class members’ reunification applications by the ORR Director or his designee; 89. Award the named plaintiff and other members of the proposed class reasonable attorneys’ fees and costs for this action; and 90. Grant any further relief that the Court deems just and proper.
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On the complaint: Scout Katovich
Dated: February 16, 2018 New York, NY

Respectfully Submitted,
_____/s/ Paige Austin____ PAIGE AUSTIN AADHITHI PADMANABHAN CHRISTOPHER DUNN New York Civil Liberties Union
Foundation 125 Broad Street, 19th Floor, New York, NY 10004 Tel: (212) 607-3300 paustin@nyclu.org apadmanabhan@nyclu.org cdunn@nyclu.org
Counsel for Plaintiffs/Petitioners

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