Case: 1:17-cv-1055 As of: 05/16/2018 10:05 PM EDT 1 of 6
CLOSED,TYPE−D
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:17−cv−01055−CRC

DILLEY PRO BONO PROJECT et al v. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT et al Assigned to: Judge Christopher R. Cooper Cause: 05:551 Administrative Procedure Act
Plaintiff

Date Filed: 06/01/2017 Date Terminated: 08/16/2017 Jury Demand: None Nature of Suit: 899 Administrative Procedure Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

DILLEY PRO BONO PROJECT

represented by Melissa E. Crow 14608 Drum Hill Court North Potomac, MD 20878 (202) 507−7523 Fax: (202) 742−5619 Email: melissa@immjustice.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebecca H. Scholtz CATHOLIC LEGAL IMMIGRATION NETWORK, INC. (CLINIC) 8757 Georgia Avenue Suite 850 Silver Spring, MD 20910 (651) 962−4833 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Richard H. Klapper SULLIVAN & CROMWELL LLP 125 Broad Street New York, NY 10004 (212) 558−3555 Email: klapperr@sullcrom.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Veronica W. Ip SULLIVAN & CROMWELL LLP 125 Broad Street New York, NY 10004 (212) 558−4000 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Amanda Flug Davidoff SULLIVAN & CROMWELL LLP 1700 New York Avenue NW Suite 700 Washington, DC 20006 (202) 956−7500 Email: davidoffa@sullcrom.com ATTORNEY TO BE NOTICED

Plaintiff

Case: 1:17-cv-1055 As of: 05/16/2018 10:05 PM EDT 2 of 6

CAROLINE PERRIS

represented by Amanda Flug Davidoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melissa E. Crow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebecca H. Scholtz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Richard H. Klapper (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Veronica W. Ip (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff SHALYN FLUHARTY

represented by Melissa E. Crow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebecca H. Scholtz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Richard H. Klapper (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Veronica W. Ip (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Amanda Flug Davidoff (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT

represented by Elianis N. Perez U.S. DEPARTMENT OF JUSTICE Ben Franklin Station P.O. Box 868

Case: 1:17-cv-1055 As of: 05/16/2018 10:05 PM EDT 3 of 6

Washington, DC 20044 (202) 616−9124 Fax: (202) 305−7000 Email: elianis.perez@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah B. Fabian U.S. DEPARTMENT OF JUSTICE Ben Franklin Station P.O. Box 868 Washington, DC 20044 (202) 532−4824 Fax: (202) 616−8962 Email: sarah.b.fabian@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
U.S. DEPARTMENT OF HOMELAND SECURITY

represented by Elianis N. Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
JOHN F. KELLY Secretary of Homeland Security, in his official capacity

represented by Elianis N. Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
THOMAS D. HOMAN Acting Director, U.S. Immigration and Customs Enforcement, in his official capacity

represented by Elianis N. Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
DANIEL A. BIBLE Field Office Director, U.S. Immigration and Customs Enforcement, in his official capacity

represented by Elianis N. Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:17-cv-1055 As of: 05/16/2018 10:05 PM EDT 4 of 6

Date Filed 06/01/2017
06/01/2017
06/01/2017 06/01/2017
06/01/2017
06/02/2017
06/02/2017 06/02/2017 06/02/2017 06/05/2017 06/09/2017 06/09/2017 06/09/2017 06/09/2017

# Docket Text
1 COMPLAINT against ALL DEFENDANTS ( Filing fee $ 400 receipt number 0090−4974628) filed by SHALYN FLUHARTY, Dilley Pro Bono Project. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Civil Cover Sheet, # 9 Summons, # 10 Summons, # 11 Summons, # 12 Summons, # 13 Summons)(Davidoff, Amanda) (Entered: 06/01/2017)
2 MOTION for Preliminary Injunction by Dilley Pro Bono Project, SHALYN FLUHARTY, Caroline Perris (Attachments: # 1 Declaration of Shalyn Fluharty, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Declaration of Caroline Perris, # 8 Text of Proposed Order)(Davidoff, Amanda) (Entered: 06/01/2017)
3 NOTICE of Appearance by Amanda Flug Davidoff on behalf of All Plaintiffs (Davidoff, Amanda) (Entered: 06/01/2017)
4 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Richard H. Klapper, :Firm− Sullivan & Cromwell LLP, :Address− 125 Broad Street, New York, New York 10004. Phone No. − (212) 558−4000. Fax No. − (212) 291−9083 Filing fee $ 100, receipt number 0090−4974640. Fee Status: Fee Paid. by Dilley Pro Bono Project, SHALYN FLUHARTY, Caroline Perris (Attachments: # 1 Declaration of Richard H. Klapper, # 2 Text of Proposed Order)(Davidoff, Amanda) (Entered: 06/01/2017)
5 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Veronica W. Ip, :Firm− Sullivan & Cromwell LLP, :Address− 125 Broad Street, New York, New York 10004. Phone No. − (212) 558−4000. Filing fee $ 100, receipt number 0090−4974642. Fee Status: Fee Paid. by Dilley Pro Bono Project, SHALYN FLUHARTY, Caroline Perris (Attachments: # 1 Declaration of Veronica W. Ip, # 2 Text of Proposed Order)(Davidoff, Amanda) (Entered: 06/02/2017)
6 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Rebecca H. Scholtz, :Firm− Catholic Legal Immigration Network, Inc., :Address− University of St. Thomas Interprofessional Center, 30 S. 10th St., Minneapolis, MN 55403. Phone No. − (651) 962−4833. Filing fee $ 100, receipt number 0090−4974644. Fee Status: Fee Paid. by Dilley Pro Bono Project, SHALYN FLUHARTY, Caroline Perris (Attachments: # 1 Declaration of Rebecca Scholtz, # 2 Text of Proposed Order)(Davidoff, Amanda) (Entered: 06/02/2017)
Case Assigned to Judge Christopher R. Cooper. (md) (Entered: 06/02/2017)
7 SUMMONS (5) Issued Electronically as to DANIEL A. BIBLE, THOMAS D. HOMAN, JOHN F. KELLY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT. (Attachments: # 1 Notice of Consent) (md) (Entered: 06/02/2017)
SUMMONS Not Issued as to non−party U.S. Attorney, U.S. Attorney General. (SUMMONS WERE NOT SUBMITTED AT THE TIME COMPLAINT WAS FILED) (md) (Entered: 06/02/2017)
8 NOTICE of Appearance by Melissa E. Crow on behalf of All Plaintiffs (Crow, Melissa) (Entered: 06/05/2017)
9 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT served on 6/8/2017 (Attachments: # 1 Exhibit 1)(Davidoff, Amanda) (Entered: 06/09/2017)
10 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF HOMELAND SECURITY served on 6/7/2017 (Attachments: # 1 Exhibit 1)(Davidoff, Amanda) (Entered: 06/09/2017)
11 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. JOHN F. KELLY served on 6/8/2017 (Attachments: # 1 Exhibit 1)(Davidoff, Amanda) (Entered: 06/09/2017)
12 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. THOMAS D. HOMAN served on 6/7/2017 (Attachments: # 1 Exhibit 1)(Davidoff,

Case: 1:17-cv-1055 As of: 05/16/2018 10:05 PM EDT 5 of 6

06/09/2017 06/09/2017 06/09/2017
06/09/2017 06/14/2017 06/14/2017 06/15/2017 06/23/2017
06/23/2017
06/23/2017 06/27/2017 06/30/2017 07/12/2017 07/12/2017

Amanda) (Entered: 06/09/2017)
13 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. DANIEL A. BIBLE served on 6/7/2017 (Attachments: # 1 Exhibit 1)(Davidoff, Amanda) (Entered: 06/09/2017)
14 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 06/05/2017. (Davidoff, Amanda) Modified on 6/12/2017 to correct service date (zrdj). (Entered: 06/09/2017)
15 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 6/5/2017. Answer due for ALL FEDERAL DEFENDANTS by 8/4/2017. (Davidoff, Amanda) Modified on 6/12/2017 to correct service and answer due date (zrdj). (Entered: 06/09/2017)
16 CERTIFICATE OF SERVICE by DILLEY PRO BONO PROJECT, SHALYN FLUHARTY, CAROLINE PERRIS re 2 MOTION for Preliminary Injunction . (Davidoff, Amanda) (Entered: 06/09/2017)
17 NOTICE of Appearance by Sarah B. Fabian on behalf of DANIEL A. BIBLE, THOMAS D. HOMAN, JOHN F. KELLY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (Fabian, Sarah) Modified on 6/15/2017 (zrdj). (Entered: 06/14/2017)
18 Joint MOTION for Extension of Time to File Response/Reply as to 2 MOTION for Preliminary Injunction by DANIEL A. BIBLE, THOMAS D. HOMAN, JOHN F. KELLY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (Fabian, Sarah) (Entered: 06/14/2017)
NOTICE OF ERROR re 17 Notice of Appearance; emailed to sarah.b.fabian@usdoj.gov, cc'd 5 associated attorneys −− The PDF file you docketed contained errors: 1. Counsel is reminded to save documents to PDF format before filing using CM/ECF. NO ACTION NEEDED (zrdj, ) (Entered: 06/15/2017)
19 Joint MOTION for Extension of Time to File Response/Reply as to 2 MOTION for Preliminary Injunction until June 30, 2017 by DANIEL A. BIBLE, THOMAS D. HOMAN, JOHN F. KELLY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (Fabian, Sarah) (Entered: 06/23/2017)
MINUTE ORDER granting 19 Motion for Extension of Time to File Response/Reply; finding as moot 18 Motion for Extension of Time to File Response/Reply. Defendants shall respond to Plaintiffs' Motion for a Preliminary Injunction on or before June 30, 2017. Signed by Judge Christopher R. Cooper on 6/23/2017. (lccrc3) (Entered: 06/23/2017)
MINUTE ORDER granting 4 5 6 Motions for Leave to Appear Pro Hac Vice. Signed by Judge Christopher R. Cooper on 6/23/2017. (lccrc3) (Entered: 06/23/2017)
Set/Reset Deadlines: Responses due by 6/30/2017 (lsj) (Entered: 06/27/2017)
20 Joint MOTION for Extension of Time to File Response/Reply as to 2 MOTION for Preliminary Injunction by DANIEL A. BIBLE, THOMAS D. HOMAN, JOHN F. KELLY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (Fabian, Sarah) (Entered: 06/30/2017)
21 Joint MOTION for Extension of Time to File Response/Reply as to 2 MOTION for Preliminary Injunction by DANIEL A. BIBLE, THOMAS D. HOMAN, JOHN F. KELLY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (Fabian, Sarah) (Entered: 07/12/2017)
MINUTE ORDER finding as moot 20 Motion for Extension of Time to File Response/Reply and granting 21 Motion for Extension of Time to File Response/Reply: Defendant shall respond to Plaintiffs' motion for a preliminary injunction on or before July 21, 2017. Signed by Judge Christopher R. Cooper on 7/12/2017. (lccrc3) (Entered: 07/12/2017)

Case: 1:17-cv-1055 As of: 05/16/2018 10:05 PM EDT 6 of 6

07/21/2017
07/24/2017
07/24/2017 08/04/2017 08/04/2017
08/08/2017
08/08/2017 08/11/2017 08/14/2017
08/15/2017
08/16/2017

22 Joint MOTION for Extension of Time to File Response/Reply as to 2 MOTION for Preliminary Injunction by DANIEL A. BIBLE, THOMAS D. HOMAN, JOHN F. KELLY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (Fabian, Sarah) (Entered: 07/21/2017)
MINUTE ORDER granting 22 Motion for Extension of Time to File Response/Reply: Defendants' deadline to respond to Plaintiffs' motion for a preliminary injunction is hereby extended to August 4, 2017. Signed by Judge Christopher R. Cooper on 7/24/2017. (lccrc3) (Entered: 07/24/2017)
Set/Reset Deadlines: Defendant's Response due by 8/4/2017 (hs) (Entered: 07/24/2017)
23 NOTICE of Appearance by Elianis N. Perez on behalf of All Defendants (Perez, Elianis) (Entered: 08/04/2017)
24 Joint MOTION for Extension of Time to Respond to Plaintiffs' Motion for Preliminary Injunction and Complaint by DANIEL A. BIBLE, THOMAS D. HOMAN, JOHN F. KELLY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (Perez, Elianis) (Entered: 08/04/2017)
MINUTE ORDER granting 24 Motion for Extension of Time. Defendants shall respond to Plaintiffs' Motion for Preliminary Injunction and Complaint by August 11, 2017. Signed by Judge Christopher R. Cooper on 08/08/2017. (lccrc3) Modified event title on 8/9/2017 (znmw). (Entered: 08/08/2017)
Set/Reset Deadlines: Replies due by 8/11/2017. (lsj) (Entered: 08/08/2017)
25 NOTICE of Settlement by All Defendants (Perez, Elianis) (Entered: 08/11/2017)
MINUTE ORDER: Upon consideration of the parties' Notice of Settlement, and for good cause shown, it is hereby ORDERED that all deadlines in this case be VACATED. The parties are directed to file the proper dismissal documents in a timely manner. Signed by Judge Christopher R. Cooper on 08/14/2017. (lccrc3) (Entered: 08/14/2017)
26 Joint MOTION for Order for Entry of Stipulation and Proposed Order Dismissing Case with Prejudice and Retaining Jurisdiction for the Purpose of Enforcing Settlement by DILLEY PRO BONO PROJECT, SHALYN FLUHARTY, CAROLINE PERRIS (Attachments: # 1 Exhibit A)(Davidoff, Amanda) (Entered: 08/15/2017)
27 ORDER granting 26 Motion for Order Dismissing Case With Prejudice and Retaining Jurisdiction for the Purpose of Enforcing Settlement. Signed by Judge Christopher R. Cooper on 08/16/2017. (lccrc3) (Entered: 08/16/2017)

 
 Case 2:15-cv-04479-SSV-JCW Document 233-1 Filed 02/21/17 Page 1 of 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

)

ALANA CAIN, ET AL.

)

)

v.

)

)

THE CITY OF NEW ORLEANS, ET AL. )

)

CIVIL ACTION NO. 15-4479 (CLASS ACTION) JUDGE VANCE MAGISTRATE WILKINSON

ORDER Judicial Defendants’ Unopposed Motion for Continuance of Plaintiffs’ Motion for Class Certification is GRANTED. A new submission date and date for consideration of the plaintiffs’ motion will be determined during or after the status conference on March 10, 2017. New Orleans, Louisiana, this ___ day of __________________________, 2017.

Joseph C. Wilkinson, Jr. United States Magistrate Judge

{00612605 - v1}

 
 Case 1:17-cv-01055-CRC Document 25 Filed 08/11/17 Page 1 of 5

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

Dilley Pro Bono Project, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

U.S. Immigration and Customs Enforcement, )

et al.,

)

)

Defendants.

)

)

Case No. 1:17-cv-1055

NOTICE OF SETTLEMENT

Plaintiffs Dilley Pro Bono Project, et al., by and through their undersigned counsel, and

Defendants U.S. Immigration and Customs Enforcement, et al., (collectively “the parties”),

respectfully submit this notice of settlement. To that end, the parties state as follows:

1. The parties have resolved this matter in its entirety. As part of the resolution, the

parties have entered into a written settlement agreement. Once this agreement has

been duly executed and filed with the Court, Plaintiffs will dismiss all claims for

relief against Defendants, with prejudice – subject to the Court’s retention of

jurisdiction, as described in the agreement.

2. The parties respectfully ask that all deadlines in this case be cancelled.

3. The proper settlement and dismissal documents will be filed in a timely manner.

4. A proposed order is attached for the Court’s convenience.

Case 1:17-cv-01055-CRC Document 25 Filed 08/11/17 Page 2 of 5

Dated: August 11, 2017

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
WILLIAM C. PEACHEY Director
WILLIAM C. SILVIS Assistant Director
SARAH B. FABIAN Senior Litigation Counsel
SARAH L. VUONG Senior Litigation Counsel
By: /s/ Elianis N. Perez ELIANIS N. PEREZ Senior Litigation Counsel U.S. Department of Justice Civil Division Office of Immigration Litigation District Court Section Box 868, Ben Franklin Station Washington, DC 20442 Telephone: (202) 616-9124 Fax: (202) 305-7000 E-mail: elianis.perez@usdoj.gov
Counsel for Defendants
/s/ Amanda Davidoff Amanda Flug Davidoff (DC Bar No. 978033) Lucas Lallinger (DC Bar No. 1046778) Sullivan & Cromwell LLP 1700 New York Avenue, N.W. Suite 700 Washington, DC 20006
Richard H. Klapper (pro hac vice motion pending) Veronica W. Ip (pro hac vice motion pending) Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004

- 2 -

Case 1:17-cv-01055-CRC Document 25 Filed 08/11/17 Page 3 of 5
/s/ Melissa Crow Melissa Crow (DC Bar No. 453487) American Immigration Council 1331 G Street, N.W., Suite 200 Washington, DC 20005 /s/ Rebecca Scholtz Rebecca Scholtz (pro hac vice motion pending) Catholic Legal Immigration Network, Inc. c/o University of St. Thomas Interprofessional Center 30 South 10th Street Minneapolis, MN 55403 Counsel for Plaintiffs
- 3 -

Case 1:17-cv-01055-CRC Document 25 Filed 08/11/17 Page 4 of 5

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

Dilley Pro Bono Project, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

U.S. Immigration and Customs Enforcement, )

et al.,

)

)

Defendants.

)

)

Case No. 1:17-cv-1055

[PROPOSED] ORDER UPON CONSIDERATION of the parties’ NOTICE OF SETTLEMENT, and for good cause shown, it is hereby ORDERED that all deadlines in this case be CANCELLED. The parties are directed to file the proper dismissal documents in a timely manner. SO ORDERED.

________________ Date

____________________________ Christopher R. Cooper United States District Judge

- 4 -

Case 1:17-cv-01055-CRC Document 25 Filed 08/11/17 Page 5 of 5 CERTIFICATE OF SERVICE
I hereby certify that on this 11th day of August, 2017, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF, which will automatically serve all counsel of record with a copy of said document.
_/s/ Elianis N. Perez ELIANIS N. PEREZ Senior Litigation Counsel U.S. Department of Justice
- 5 -

 
 Case 1:17-cv-01055-CRC Document 26 Filed 08/15/17 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DILLEY PRO BONO PROJECT, 111 Pipes Drive, Dilley, TX 78017; CAROLINE PERRIS, 111 Pipes Drive, Dilley, TX 78017; and SHALYN FLUHARTY, 111 Pipes Drive, Dilley, TX 78017,

Plaintiffs,

v.

U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, 500 12th Street, S.W., Washington, DC 20536; U.S. DEPARTMENT OF HOMELAND SECURITY, 3801 Nebraska Avenue, N.W., Washington, DC 20016; ELAINE DUKES, Acting Secretary of Homeland Security, in her official capacity, 3801 Nebraska Avenue, N.W., Washington, DC 20016; THOMAS D. HOMAN, Acting Director, U.S. Immigration and Customs Enforcement, in his official capacity, 500 12th Street, S.W., Washington, DC 20536; and DANIEL A. BIBLE, Field Office Director, U.S. Immigration and Customs Enforcement, in his official capacity, 1777 NE Loop 410, Suite 1500, San Antonio, TX 78217,

Civil Action No. 1:17-cv-01055 (CRC)

Defendants.

JOINT MOTION FOR ENTRY OF STIPULATION AND PROPOSED ORDER DISMISSING CASE WITH PREJUDICE AND RETAINING JURISDICTION FOR THE
PURPOSE OF ENFORCING SETTLEMENT Plaintiffs and Defendants (collectively, the “Parties”), by and through their
respective undersigned counsel, respectfully submit this joint motion for entry of the Stipulation
and Proposed Order Dismissing Case With Prejudice and Retaining Jurisdiction for the Purpose
of Enforcing Settlement (the “Stipulation and Proposed Order”), attached hereto as Exhibit A.
On June 1, 2017, Plaintiffs filed a Complaint for Declaratory and Injunctive
Relief and Application for a Preliminary Injunction against Defendants. The Parties filed Joint

Case 1:17-cv-01055-CRC Document 26 Filed 08/15/17 Page 2 of 3 Motions to Enlarge Time for Defendants to Respond to Plaintiffs’ Motion for a Preliminary Injunction and Complaint on June 14, 2017, June 23, 2017, June 30, 2017, July 12, 2017, July 21, 2017, and August 4, 2017. The Parties filed a Notice of Settlement on August 11, 2017.
On August 15, 2017, the Parties entered into a Stipulated Settlement Agreement, attached hereto as Exhibit 1 to the Stipulation and Proposed Order, which is subject to this Court’s agreement to retain jurisdiction to enforce the terms of the settlement until February 15, 2020, which is a period of 2.5 years from August 15, 2017. The Parties now respectfully request entry of the Stipulation and Proposed Order, which incorporates by reference and effectuates the terms of the Stipulated Settlement Agreement.
2

Case 1:17-cv-01055-CRC Document 26 Filed 08/15/17 Page 3 of 3

Dated: Washington, D.C. August 15, 2017

/s/ Amanda Flug Davidoff Amanda Flug Davidoff (DC Bar No. 978033) Lucas Lallinger (DC Bar No. 1046778) Sullivan & Cromwell LLP 1700 New York Avenue, N.W. Suite 700 Washington, DC 20006
Richard H. Klapper (pro hac vice motion pending) Veronica W. Ip (pro hac vice motion pending) Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004
/s/ Melissa Crow Melissa Crow (DC Bar No. 453487) American Immigration Council 1331 G Street, N.W., Suite 200 Washington, DC 20005
/s/ Rebecca Scholtz Rebecca Scholtz (pro hac vice motion pending) Catholic Legal Immigration Network, Inc. c/o University of St. Thomas Interprofessional Center 30 South 10th Street Minneapolis, MN 55403
Attorneys for Plaintiffs
/s/ Elianis N. Perez Elianis N. Perez (DC Bar No. 983176) Senior Litigation Counsel U.S. Department of Justice Civil Division Office of Immigration Litigation, District Court Section PO Box 868, Ben Franklin Station Washington, DC 20442
Attorney for Defendants

3

 
 Case 1:17-cv-01055-CRC Document 26-1 Filed 08/15/17 Page 1 of 16

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DILLEY PRO BONO PROJECT, 111 Pipes Drive, Dilley, TX 78017; CAROLINE PERRIS, 111 Pipes Drive, Dilley, TX 78017; and SHALYN FLUHARTY, 111 Pipes Drive, Dilley, TX 78017,

Plaintiffs,

v.

U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, 500 12th Street, S.W., Washington, DC 20536; U.S. DEPARTMENT OF HOMELAND SECURITY, 3801 Nebraska Avenue, N.W., Washington, DC 20016; ELAINE DUKES, Acting Secretary of Homeland Security, in her official capacity, 3801 Nebraska Avenue, N.W., Washington, DC 20016; THOMAS D. HOMAN, Acting Director, U.S. Immigration and Customs Enforcement, in his official capacity, 500 12th Street, S.W., Washington, DC 20536; and DANIEL A. BIBLE, Field Office Director, U.S. Immigration and Customs Enforcement, in his official capacity, 1777 NE Loop 410, Suite 1500, San Antonio, TX 78217,

Civil Action No. 1:17-cv-01055 (CRC)

Defendants.

STIPULATION AND PROPOSED ORDER DISMISSING CASE WITH PREJUDICE AND RETAINING JURISDICTION FOR THE PURPOSE OF ENFORCING SETTLEMENT WHEREAS, on August 15, 2017, Plaintiffs and Defendants (collectively, the
“Parties”) entered into a Stipulated Settlement Agreement, attached hereto as Exhibit 1, resolving
the claims asserted against Defendants in the above-captioned action (the “Action”);
WHEREAS, the Stipulated Settlement Agreement is conditioned on this Court’s
retention of jurisdiction over this Action for a period of 2.5 years for the purpose of enforcing the
terms of the Stipulated Settlement Agreement;

Case 1:17-cv-01055-CRC Document 26-1 Filed 08/15/17 Page 2 of 16
WHEREAS, the Parties seek dismissal of the Action with prejudice;
NOW, THEREFORE, IT IS HEREBY STIPULATED AND ORDERED that:
1. This Action is dismissed with prejudice;
2. The terms of the Stipulated Settlement Agreement are incorporated by reference
in this Order;
3. In accordance with paragraph 6 of the Stipulated Settlement Agreement, this
Court shall retain jurisdiction over this Action for the purpose of enforcing the terms of the
Stipulated Settlement Agreement until February 15, 2020, which is a period of 2.5 years from
August 15, 2017; and
4. Any motion brought for the purpose of enforcing the terms of the Stipulated
Settlement Agreement shall be referred to Judge Christopher Cooper, or a magistrate judge
designated by Judge Cooper, for resolution.
Dated: Washington, D.C. August 15, 2017
/s/ Amanda Flug Davidoff Amanda Flug Davidoff (DC Bar No. 978033) Lucas Lallinger (DC Bar No. 1046778) Sullivan & Cromwell LLP 1700 New York Avenue, N.W. Suite 700 Washington, DC 20006
Richard H. Klapper (pro hac vice motion pending) Veronica W. Ip (pro hac vice motion pending) Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004
/s/ Melissa Crow Melissa Crow (DC Bar No. 453487) American Immigration Council 1331 G Street, N.W., Suite 200 Washington, DC 20005
2

Case 1:17-cv-01055-CRC Document 26-1 Filed 08/15/17 Page 3 of 16

/s/ Rebecca Scholtz Rebecca Scholtz (pro hac vice motion pending) Catholic Legal Immigration Network, Inc. c/o University of St. Thomas Interprofessional Center 30 South 10th Street Minneapolis, MN 55403
Attorneys for Plaintiffs
/s/ Elianis N. Perez Elianis N. Perez (DC Bar No. 983176) Senior Litigation Counsel U.S. Department of Justice Civil Division Office of Immigration Litigation, District Court Section PO Box 868, Ben Franklin Station Washington, DC 20442
Attorney for Defendants

SO ORDERED
____________ Date

Christopher R. Cooper United States District Judge

3

Case 1:17-cv-01055-CRC Document 26-1 Filed 08/15/17 Page 4 of 16 Exhibit 1

Case 1:17-cv-01055-CRC Document 26-1 Filed 08/15/17 Page 5 of 16

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DILLEY PRO BONO PROJECT, 111 Pipes Drive, Dilley, TX 78017; CAROLINE PERRIS, 111 Pipes Drive, Dilley, TX 78017; and SHALYN FLUHARTY, 111 Pipes Drive, Dilley, TX 78017,
Plaintiffs,
v.
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, 500 12th Street, S.W., Washington, DC 20536; U.S. DEPARTMENT OF HOMELAND SECURITY, 3801 Nebraska Avenue, N.W., Washington, DC 20016; ELAINE DUKES, Acting Secretary of Homeland Security, in her official capacity, 3801 Nebraska Avenue, N.W., Washington, DC 20016; THOMAS D. HOMAN, Acting Director, U.S. Immigration and Customs Enforcement, in his official capacity, 500 12th Street, S.W., Washington, DC 20536; and DANIEL A. BIBLE, Field Office Director, U.S. Immigration and Customs Enforcement, in his official capacity, 1777 NE Loop 410, Suite 1500, San Antonio, TX 78217,
Defendants.

Civil Action No. 1:17-cv-01055 (CRC)

SETTLEMENT AGREEMENT WHEREAS, Plaintiffs filed this Action against Defendants challenging (i) Defendants’ revocation of legal assistant Caroline Perris’s access to the South Texas Family Residential Center (STFRC) in Dilley, Texas, and (ii) requirements imposed by U.S. Immigration and Customs Enforcement (ICE) that Plaintiffs obtain advance approval before facilitating telephonic mental health evaluations for detainees at STFRC; WHEREAS, Defendants have denied and continue to deny that their actions were improper; and

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WHEREAS, Plaintiffs and Defendants (the “Parties”) believe that settlement of this Action is in their best interests and best serves the interests of justice;
NOW, THEREFORE, Plaintiffs and Defendants enter into this Stipulated Settlement Agreement (the “Agreement”), stipulate that it constitutes a full and complete resolution of the issues raised in this Action, and agree to the following:
It is agreed, by and between the Parties, as follows: 1. Defendants agree that, within five (5) business days of the return of the executed settlement documents to their attorneys, they will adopt and implement a policy (“Policy”) to accommodate legal services providers’ requests for telephonic medical evaluations (including, but not limited to, mental health assessments or evaluations). The Policy, which is attached hereto as Exhibit A and incorporated herein, shall be applicable to STFRC and Karnes County Residential Center (KCRC); and shall control over any conflicting policy regarding telephonic medical evaluations, including policies in the Family Residential Standards. Defendants will distribute the Policy to all ICE personnel and personnel of contractors responsible for implementing or overseeing the Policy at STFRC and KCRC. Plaintiffs agree that all pro bono legal services providers who are employees of, associated with, or working on behalf of, the Dilley Pro Bono Project or the Karnes Pro Bono Project, will follow the Policy in all cases where telephonic medical evaluations are sought by those pro bono legal services providers on behalf of their clients. Defendants agree that all ICE personnel and personnel of contractors working at STFRC and KCRC will likewise follow the Policy in all cases where telephonic medical evaluations are sought by legal services providers on behalf of their clients. A request for a proposed evaluation will not stay removal or otherwise interfere with government actions related to the resident that conflict with the scheduled evaluation; however, ICE will not take actions for
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the purpose of interfering with a resident’s availability to participate in a telephonic medical evaluation. Nothing in an approved request under this Policy guarantees a resident’s availability.
2. The Policy refers to a Telephonic Medical Evaluation Request Form (a “Request”), which is attached as Exhibit B.
3. If ICE denies an Initial Request, such denial must be based on: (1) confirmation that the health provider’s relevant professional license/credential is currently revoked or suspended; (2) identification of relevant criminal history of a health provider that indicates a risk of harm or abuse to the resident; or (3) confirmation that the provider’s access to the family residential center is currently revoked for misconduct that indicates a risk of harm or abuse to the resident. ICE will provide a detailed written explanation for the denial in an email response to the requester at the same time that the denial is issued sufficient to permit the requester to independently verify the basis for the denial based on ICE’s explanation. If Plaintiffs dispute the propriety of a denial, the Dilley Pro Bono Project’s Managing Attorney or the Karnes Pro Bono Project’s Managing Attorney (the “Managing Attorneys”) will contact the appropriate Assistant Field Office Director (AFOD) at STFRC or KCRC and both parties will confer in good faith to address jointly and informally any such dispute. If a dispute cannot be resolved by the AFOD within 6 business hours after the appeal notification, the Managing Attorney will contact the Defendants’ designated representative copying the designated facility mailbox (STFRC-CARARequests@ice.dhs.gov or KCRC-Requests@ice.dhs.gov) as identified in paragraph 5 below, and the parties will confer in good faith to address jointly and informally any such dispute within 8 additional business hours.
4. Within fifteen (15) days of the return of the executed settlement documents to their attorneys, the Parties agree to execute all papers necessary to achieve the dismissal of the
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action filed in the U.S. District Court for the District of Columbia, entitled Dilley Pro Bono Project, et al. v. U.S. Immigration and Customs Enforcement, et al., No. 17-cv-01055 (“the Action”), with prejudice, subject to the Court’s retention of jurisdiction, as described in paragraph 6 of this Agreement.
5. Defendants designate the Deputy Field Office Director overseeing STFRC and KCRC to be their designated representative, and Plaintiffs designate the Dilley Pro Bono Project Managing Attorney and the Karnes Pro Bono Project Managing Attorney to be their designated representatives for their respective facilities. Defendants’ designated representative may be contacted at 1777 NE 410 Loop, Suite 1400, San Antonio, TX 78217. At the time of the execution of the Agreement, the Deputy Field Office Director is Deborah Achim, who can be reached at 210-483-4723 or Deborah.Achim@ice.dhs.gov. At the time of the execution of the Agreement, the Dilley Pro Bono Project’s Managing Attorney is Shalyn Fluharty, who can be reached at 956-982-5570 and shay@caraprobono.org, with a copy to davidoffa@sullcrom.com. At the time of the execution of the Agreement, the Karnes Pro Bono Project’s Managing Attorney is Manoj Govindaiah, who can be reached at 210-787-3745 and manoj.govindaiah@raicestexas.org.
6. It is a condition of this settlement agreement, which will become null and void if the condition is not satisfied, that the United States District Court for the District of Columbia, Judge Christopher Cooper, or a magistrate judge designated by Judge Cooper, will retain jurisdiction over this case for a term of 2.5 years to enforce this Settlement Agreement, including, but not limited to, jurisdiction over disputes concerning interpretation and enforcement of the terms of the Agreement and disputes over the propriety of ICE’s denial of a Request. However, no party may seek to enforce the Agreement without first (i) providing the
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Exhibit A

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TO: San Antonio ERO Field Personnel
FROM: Daniel A. Bible, Field Office Director, Enforcement and Removal Operations, Field Office, San Antonio, Texas
RE: Telephonic medical evaluations at South Texas Family Residential Center (STFRC) and Karnes County Residential Center (KCRC)
DATE: August 15, 2017

The following procedures will be used to evaluate requests for telephonic medical evaluations (including, but not limited to, mental health assessments or evaluations) submitted on behalf of residents at STFRC and KCRC. The procedure is two-part. During the initial approval process, ERO will conduct a check as specified in Section I.6 below. During the second part of the procedure, ERO will receive notice of the evaluation. The two processes set forth in this memorandum may take place simultaneously. For example, a requester may request initial approval for a provider and propose a date, time, and place for an evaluation by that provider in one request. The procedures are as follows:

I.

Initial Telephonic Provider Approval Process

1. Requests for approval for a provider to conduct telephonic medical evaluations will be submitted via email by the requester to STFRC-CARA-Requests@ice.dhs.gov or KCRCRequests@ice.dhs.gov.
2. Requests will be received between the hours of 7:00 a.m. and 6:00 p.m., Monday through Friday, excluding federal holidays. Requests submitted outside of those hours will be considered “received” when business hours resume. For example, a request submitted at 5:00 p.m. on Sunday evening will be considered received at 7:00 a.m. on Monday morning.
3. The requester is required to submit a copy of the attached form, the provider’s governmentissued ID, and a copy of the provider’s license/credential.
4. The requester will also be required to submit a signed copy of the Form G-28, if the Form G-28 is not already on file with ICE. If the request is submitted by someone other than the resident’s attorney of record (i.e. a legal assistant), the request must be accompanied by a statement of assurance from the requester that the attorney of record is aware of the request and supports the request.
5. ERO will provide the requester with a response on whether the proposed provider has been approved to conduct telephonic medical evaluations within four (4) business hours of the submission. ERO may approve the request sooner than four (4) business hours, i.e., any time after it is submitted. Business hours are from 7:00 a.m. to 6:00 p.m., Monday through Friday, excluding federal holidays. For example, if a request is submitted at 5:59 p.m. on Friday evening, ERO has until 10:59 a.m. on Monday to adjudicate the request. If ERO does not respond within the four (4) business hours, the request is automatically deemed approved.

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6. The request shall be approved unless the individual evaluating the request either: (1) confirms that the health provider’s relevant professional license/credential is currently revoked or suspended; (2) identifies relevant criminal history of a health provider that indicates a risk of harm or abuse to the resident; or (3) confirms that the provider’s access to the family residential center is currently revoked for misconduct that indicates a risk of harm or abuse to the resident. If the individual evaluating the request believes that grounds for denial exist (which grounds may only be one of those specified in the preceding sentence), the AFOD at STFRC or KCRC must concur prior to the issuance of a denial. If the AFOD is unavailable, the DFOD with supervisory authority over STFRC or KCRC must concur, prior to issuing a denial.
7. If the request is denied, ERO will provide a detailed written explanation for the denial in an email response to the requester at the same time that the denial is issued (i.e., no later than 4 business hours after the submission) sufficient to permit the requester to independently verify the basis for the denial based on ERO’s explanation. A detailed explanation includes, for a denial under 6(1), the license/credential that was revoked or suspended; for a denial under 6(2), identification of the arrest or conviction at issue and the date and location of the offense; and for a denial under 6(3), a statement of when and why the health provider’s access was revoked.
8. If the requester disputes the propriety of a denial, the Dilley Pro Bono Project’s Managing Attorney or the Karnes Pro Bono Project’s Managing Attorney (the “Managing Attorneys”) will contact the appropriate Assistant Field Office Director (AFOD) at STFRC or KCRC by email, copying the designated facility mailbox, and both will confer in good faith to jointly and informally resolve any such dispute. If a dispute cannot be resolved by the AFOD within 6 business hours after the appeal notification, the Managing Attorney will contact ERO’s designated representative, copying the designated facility mailbox (STFRC-CARARequests@ice.dhs.gov and KCRC-Requests@ice.dhs.gov), and the parties will confer in good faith to jointly and informally resolve any such dispute within 8 additional business hours after ERO’s designated representative is contacted. At this time ERO’s designated representative is DFOD Debbie Achim. At this time the Dilley Pro Bono Project’s Managing Attorney is Shalyn Fluharty and the Karnes Pro Bono Project’s Managing Attorney is Manoj Govindaiah.
9. Once a provider has been approved, he or she will be placed on an internal ICE approved provider list that will be kept on the ERO Share Drive. The list will be maintained by the Deportation Officers responsible for conducting checks on visitors to STFRC and KCRC. In preparing in good faith to submit a Notice pursuant to Section II of this Policy, DPBP and Karnes Pro Bono Project members may contact ICE to confirm whether a provider is on ERO’s list of cleared providers.
10. ERO may periodically re-evaluate the list of approved providers; ERO may only revoke approval for a provider on the grounds specified in paragraph 6 above. Revocation of approval at one family residential center constitutes revocation at both family residential centers. If clearance of a cleared provider is revoked, ERO will provide a detailed written explanation for the denial in an email to the Managing Attorneys no later than 4 business hours after the clearance is revoked so that the Managing Attorneys can independently verify the basis for the revocation based on ERO’s explanation. The Managing Attorneys may dispute the propriety of the revocation in accordance with the procedures detailed in paragraph 8.
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11. If the initial requester becomes aware that any approved provider’s relevant professional license/credential has been revoked or suspended, or verifies that any approved provider has relevant criminal history that indicates a risk of harm or abuse to the resident, it is incumbent upon the requester to notify ERO immediately of any such issues.
II. Notice of Date, Time, and Place of the Telephonic Medical Evaluation for Approved Providers
1. Notices of intention to schedule a telephonic medical evaluation with an approved provider will be submitted via email, with the attached form, to STFRC-CARA-Requests@ice.dhs.gov or KCRCRequests@ice.dhs.gov.
2. Each notice will list a date, time, and place for the evaluation. Interviews may be scheduled at any time during legal visitation hours.
3. Notices will be received between the hours of 7:00 a.m. and 6:00 p.m., Monday through Friday, excluding federal holidays. Notices submitted outside of those hours will be considered “received” when business hours resume. For example, a notice submitted at 5:00 p.m. on Sunday evening will be considered received at 7:00 a.m. on Monday morning.
4. The individual providing the notice will also be required to submit a signed copy of the Form G28, if the Form G-28 is not already on file with ICE. If the request is submitted by someone other than the resident’s attorney of record (i.e. a legal assistant), the request must be accompanied by a statement of assurance from the requester that the attorney of record is aware of the request and supports the request.
5. The proposed telephonic medical evaluation may then proceed as scheduled provided ERO is given two hours’ notice. ERO may, in its discretion, approve the notice in a shorter period, i.e., any time after it is submitted.
6. A request for a proposed evaluation will not stay removal or otherwise interfere with government actions related to the resident that conflict with the scheduled evaluation; however, ICE will not take actions for the purpose of interfering with a resident’s availability to participate in a telephonic medical evaluation. However, nothing in an approved request under this Policy guarantees the resident’s availability.
This procedure applies solely to telephonic medical evaluations. In-person medical examinations will be conducted in accordance with the ICE Family Residential Standards and the Standard Operating Procedures (SOP) for Legal Access and Legal Visitation dated October 30, 2015.
This document provides only internal ICE policy guidance and is in conformance with the settlement agreement in Dilley Pro Bono Project v. ICE, No. 17-1055 (D.D.C. filed June 1, 2017).
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Exhibit B

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Letter of Intent for ______________________________________ A_____________ For Independent Medical Service Provider and Expert Telephonic Evaluation

Date:______________

Designate which Family Residential Center:

Karnes County Residential Center (Karnes City, Texas) KCRC-Requests@ice.dhs.gov (830) 399-5308

South Texas Family Residential Center (Dilley, Texas) STFRC-CARA-Requests@ice.dhs.gov (210) 213-8310

(Requests will be processed between the hours of 7:00 am and 6:00 pm, Monday – Friday, excluding holidays.)
*****************************************************************************

Pre-approved Provider Notice

G-28 signed (if not on file)

Name of Provider:___________________________ Proposed date/time of evaluation:____________________________

************************************************************************************************** Initial Request

Request packet for each provider must be submitted via email to the mailboxes designated above for each facility, and include the following:

Name:__________________________________________ Position:__________________________________________

DOB:_________________ Proposed date/time of evaluation, if any: __________________________________________

Government-issued identification

Professional license/credential G-28 signed (if not on file)

Additional information:_________________________________________________________________________

Pre-Screening Requirements for Designation of Independent Medical Service Providers and Experts For safety and security of Family Residential Center (FRC) residents and staff, FRCs will require any prospective Independent Medical Service Provider or Expert to pass the checks as described in the August 15, 2017 memorandum describing procedures for telephonic medical evaluations at South Texas Family Residential Center (STFRC) and Karnes County Residential Center (KCRC).

Approved

Denied

Deciding Official:______________________________________ Date:___________________

Form Revised 6-29-17

 
 Case 1:17-cv-01055-CRC Document 27 Filed 08/16/17 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DILLEY PRO BONO PROJECT, Ill Pipes Drive, Dilley, TX 78017; CAROLINE PERRIS, Ill Pipes Drive, Dilley, TX 78017; and SHALYN FLUHARTY, Ill Pipes Drive, Dilley, TX 78017,
Plaintiff.i·,

V,
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, 500 12th Street, S.W., Washington, DC 20536; U.S. DEPARTMEN'T' . OF HOMELAND SECURITY, 3801 Nebraska Avenue, N.W., Washington, DC 20016; ELAINE DUKES, Acting Secretary of Homeland Security, in her official capacity, 3801 Nebraska Avenue, N.W., Washington, DC 20016; THOMAS D. HOMAN, Acting Director, U.S. Immigration and Customs Ent<Jrccment, in his official capacity, 500 12th Street, S.W., Washington, DC 20536; and DANIEL A BIBLE, Field Office Director, U.S. Immigration and Customs Enforcement, in his of1icial capacity, 1777 NE Loop 410, Suite 1500, San Antonio, TX 78217,
Defendants.

Civil Action No. I: 17-cv-0 I 055 (CRC)

P~>ER STIPULATION AND

DISMISSING CASI<: WITH PRE.HJDICE

AND RETAINING .JURISDICTION FOR TilE PURPOSE OF ENFORCING

SETTLEMENT

WHEREAS, on August 15, 2017, Plaintiffs and Defendants (collectively, the

"Parties") entered into a Stipulated Settlement Agreement, attached hereto as Exhibit I, resolving

the claims asserted against Defendants in the above-captioned action (the ''Action");

WHEREAS, the Stipulated Settlement Agreement is conditioned on this Court's

retention ofjurisdiction over this Action f(Jr a period of 2.5 years f(Jr the purpose of enf(Jrcing the

terms of the Stipulated Settlement Agreement;

Case 1:17-cv-01055-CRC Document 27 Filed 08/16/17 Page 2 of 3

WHEREAS, the Parties seck dismissal of the Action with prejudice;

NOW, THEREFORE, IT IS HEREBY STIPlJLATIW AND ORDERED that:

1. This Action is dismissed with prejudice;

2.

The terms of the Stipulated Settlement Agreement arc incorporated by reference

in this Order;

3.

In accordance with paragraph 6 of the Stipulated Settlement Agreement, this

Court shall retain jurisdiction over this Action f(lr the purpose of enforcing the terms of the

Stipulated Settlement Agreement until February 15,2020, which is a period of2.5 years from

August 15, 20 17; and

4.

Any motion brought for the purpose of enforcing the terms of the Stipulated

Settlement Agreement shall be referred to Judge Christopher Cooper, or a magistrate judge

designated by Judge Cooper, for resolution.

Dated: Washington, D.C. August 15, 2017

/s/ Amanda Flug Davidoff Amanda Flug Davidoff (DC Bar No. 978033) Lucas Lallingcr (DC Bar No. 1046778) Sullivan & Cromwell LLP 1700 New York Avenue, N. W. Suite 700 Washington, DC 20006
Richard 1-1. Klapper (pro hac vice motion pending) Veronica W. Ip (pro hac vice motion pending) Sullivan & Cromwell LLP I25 Broad Street New York, NY I0004
lsi Melissa Crow Melissa Crow (DC Bar No. 453487) American Immigration Council 1331 G Street, N.W., Suitc200 Washington, DC 20005
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/s/ Rebecca Scholtz Rebecca Scholtz (pro hac vice motion pending) Catholic Legal Immigration Network, Inc. c/o University of St. Thomas lnterprofessional Center 30 South IOth Street Minneapolis, MN 55403
AttorneysjiJr Plaintiff~
Is/ El ian is N. Perez
Elianis N. Perez (DC Bar No. 983176) Senior Litigation Counsel U.S. Department of .I ustice Civil Division Office of Immigration Litigation, District Court Section PO Box 868, Ben Franklin Station Washington, DC 20442
Attorney.fbr D4endan/.\'

au,SO ORDERED tvtfJ~., )..J) 1f-
Datc

Christopher R. Cooper United States District .Judge

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 Case 1:17-cv-01055-CRC Document 1 Filed 06/01/17 Page 1 of 24

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DILLEY PRO BONO PROJECT, 111 Pipes Drive, Dilley, TX 78017; CAROLINE PERRIS, 111 Pipes Drive, Dilley, TX 78017; and SHALYN FLUHARTY, 111 Pipes Drive, Dilley, TX 78017,
Plaintiffs,
v.
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, 500 12th Street, S.W., Washington, DC 20536; U.S. DEPARTMENT OF HOMELAND SECURITY, 3801 Nebraska Avenue, N.W., Washington, DC 20016; JOHN F. KELLY, Secretary of Homeland Security, in his official capacity, 3801 Nebraska Avenue, N.W., Washington, DC 20016; THOMAS D. HOMAN, Acting Director, U.S. Immigration and Customs Enforcement, in his official capacity, 500 12th Street, S.W., Washington, DC 20536; and DANIEL A. BIBLE, Field Office Director, U.S. Immigration and Customs Enforcement, in his official capacity, 1777 NE Loop 410, Suite 1500, San Antonio, TX 78217,
Defendants.

Civil Action No. 1:17-cv-_____________

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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INTRODUCTION 1. Each year, Defendant U.S. Immigration and Customs Enforcement (ICE) detains thousands of mothers and children who seek asylum or other protection in the United States. Legal service providers such as the Dilley Pro Bono Project (DPBP) invest money and other resources to provide access to legal assistance, and have constitutional and statutory rights to assist such individuals. ICE’s largest family detention facility, the South Texas Family Residential Center (STFRC), is located near Dilley, Texas. At STFRC, DPBP generally represents between 100 and 500 new clients each week. This lawsuit arises from a new written ICE policy that arbitrarily interferes with the ability of DPBP staff to effectively represent their clients. 2. Since the establishment of STFRC in late 2014, ICE has cleared legal service providers to enter the facility to meet confidentially with detainees, provide legal advice, and assist them in preparing their cases. ICE provides offices and telephones that providers and detainees may use during their confidential meetings to call anyone they wish for case-related purposes, including mental health professionals. 3. Because the mothers and children held in STFRC have fled some of the most violent countries in the world, a mental health evaluation is often a crucial piece of evidence for them. Such an evaluation can bolster an asylum seeker’s credibility by establishing that the trauma she has suffered impedes her ability to recount the circumstances that prompted her flight to the United States. Mental health evaluations also assist attorneys in determining if clients are competent to consent to representation, consult with their attorneys, and participate meaningfully in their cases.
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4. In May 2017, ICE stated for the first time in writing a policy that a telephonic medical evaluation required pre-approval—and relied on this policy to justify its previous revocation of access to STFRC by Caroline Perris, one of DPBP’s legal assistants, who had facilitated one such consultation without pre-approval two months before this announcement.
5. ICE’s revocation of Ms. Perris’s access to STFRC has significantly impeded the ability of DPBP and Shalyn Fluharty, DPBP’s Managing Attorney, to provide effective legal representation of clients and potential clients detained at STFRC. In addition to being shortstaffed, Ms. Fluharty and her team are unable to arrange expedited telephonic mental health evaluations for clients. In essence, ICE’s new written policy places DPBP staff in the untenable position of having to choose between potentially compromising the needs of their clients by following ICE’s new written policy, or putting themselves at risk of losing their access to STFRC by providing the legal advice and representation they consider to be in their clients’ best interests.
6. DPBP relies exclusively on mental health professionals who are willing to provide services free of charge and must work to accommodate the schedules and logistical needs of those mental health professionals. Given limited staff capacity, Ms. Fluharty is frequently deterred from sacrificing the time required to coordinate telephonic mental health evaluations because ICE routinely fails to approve her requests in time for the evaluations to proceed as scheduled.
7. Having exhausted administrative remedies, Plaintiffs file this lawsuit in a continuing effort to ensure that they can effectively represent the mothers and children detained at STFRC. To this end, Plaintiffs seek a declaratory judgment confirming that ICE’s stated policy of requiring pre-approval of telephonic mental health evaluations is contrary to law. They
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further seek an injunction prohibiting the continued implementation of this policy and mandating the reinstatement of Ms. Perris’s access to STFRC. While this dispute remains unresolved, families with bona fide asylum claims are being deported—placing their lives in jeopardy.
PARTIES 8. Plaintiff Dilley Pro Bono Project is an unincorporated association that provides pro bono legal services and undertakes advocacy on behalf of detained mothers and their children at STFRC near the city of Dilley, Frio County, Texas. DPBP is a consortium of four non-profit corporations, the American Immigration Council (Council), the American Immigration Lawyers’ Association (AILA), the Catholic Legal Immigration Network, Inc. (CLINIC), and Texas RioGrande Legal Aid (TRLA). TRLA employs several people, including Plaintiff Shalyn Fluharty and Plaintiff Caroline Perris, to provide direct services to mothers and children detained at STFRC. 9. Plaintiff Shalyn Fluharty, the Managing Attorney of DPBP, resides in Dilley, Texas. 10. Plaintiff Caroline Perris, a legal assistant with DPBP, resides in Dilley, Texas. She works under the supervision of and on behalf of Plaintiff Shalyn Fluharty. 11. Defendant U.S. Department of Homeland Security (DHS) is a federal executive agency responsible for, among other things, enforcing federal immigration laws, overseeing lawful immigration to the United States, and conducting screenings of asylum applicants. 12. Defendant U.S. Immigration and Customs Enforcement (ICE) is a component of DHS. ICE is the principal investigative arm of DHS and is charged with criminal and civil enforcement of the immigration laws. ICE’s primary duties include the investigation of persons
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suspected to have violated the immigration laws and the apprehension, detention, and removal of noncitizens who are unlawfully present in the United States.
13. Defendant John F. Kelly is sued in his official capacity as the Secretary of DHS. In this capacity, he is charged with enforcing and administering the immigration laws. He oversees each of the component agencies within DHS, including ICE, and has ultimate authority over all policies, procedures, and practices relating to ICE facilities. He is responsible for ensuring that all individuals held in ICE custody are detained in accordance with the Constitution and all relevant laws.
14. Defendant Thomas D. Homan is sued in his official capacity as the Acting Director of ICE. In that capacity, he has direct authority over all ICE policies, procedures, and practices relating to ICE facilities, including detention facilities for mothers and their children. He is responsible for ensuring that all individuals held in ICE custody are detained in accordance with the Constitution and all relevant laws.
15. Defendant Daniel A. Bible is sued in his official capacity as the Field Office Director of ICE, San Antonio, Texas. In that capacity, he has direct responsibility for policies, procedures, and practices relating to ICE detention facilities in the Central South Texas Area of Responsibility, including STFRC. He is responsible for ensuring that all individuals held in ICE custody in the Central South Texas Area of Responsibility are detained in accordance with the Constitution and all relevant laws.
JURISDICTION AND VENUE 16. This Court has subject matter jurisdiction over Plaintiffs’ claims pursuant to 28 U.S.C. §§ 1331 and 1346. This action arises under the U.S. Constitution, the Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq., and the Administrative Procedure Act (APA), 5
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U.S.C. § 701, et seq. Defendants have waived sovereign immunity for purposes of this suit pursuant to 5 U.S.C. § 702. The Court has authority to grant declaratory relief under 28 U.S.C. §§ 2201 and 2202.
17. Venue is proper in this District pursuant to 28 U.S.C. § 1391(e) because Defendants DHS and ICE are headquartered in this District.
STATUTORY AND REGULATORY BACKGROUND 18. People fleeing violence in their home countries have a statutory right to seek asylum in the United States. 8 U.S.C. § 1158(a)(1). 19. For many, but not all, families detained at STFRC, ICE has chosen to initiate expedited removal proceedings rather than regular removal proceedings. The first step in pursuing an asylum claim while in expedited removal proceedings is a Credible Fear Interview (CFI). 20. Each week at STFRC, Asylum Officers generally conduct between 100 and 500 CFIs. Asylum-seekers subject to expedited removal are required to pass CFIs with federal asylum officers before they may file formal asylum applications. 8 U.S.C. § 1225(b)(1)(B). 21. Families subject to expedited removal are regularly detained without bond while awaiting their CFIs. 8 C.F.R. § 1235.3(b)(4)(ii). During this time, DPBP frequently has only one day to prepare each family for their CFI. 22. Families who receive positive credible fear determinations are usually released to join relatives or friends within the United States while they pursue their asylum applications. 23. Families who receive negative credible fear determinations may seek review by an Immigration Judge. Review must occur within 24 hours when practicable but no later than 7 days later. 8 C.F.R. § 1003.42(e). The Immigration Judge may affirm or vacate the Asylum
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Officer’s negative credible fear determination. Id. § 1003.42(f). If the Immigration Judge affirms the negative credible fear determination, ICE works quickly to remove the family from the United States.
24. At any time prior to the family’s departure from the United States, the Asylum Officer retains discretion to reconsider a negative credible fear determination. 8 C.F.R. § 1208.30(g)(2)(iv)(A) (“The Service . . . may reconsider a negative credible fear finding that has been concurred upon by an immigration judge after providing notice of its reconsideration to the immigration judge.”).
25. Congress conferred a statutory right upon each person who is detained and subject to the CFI process to “consult with a person or persons of the alien’s choosing prior to the interview or any review thereof, according to regulations prescribed by the Attorney General. Such consultation shall be at no expense to the Government and shall not unreasonably delay the process.” INA, 8 U.S.C. § 1225(b)(1)(B)(iv); see also 8 C.F.R. § 1235.3(b)(4)(i)(B) (“right to consult”). The U.S. District Court for the District of Columbia has construed this statutory right of consultation to attach before a credible fear interview takes place. Am. Immigration Lawyers Ass’n v. Reno, 18 F. Supp. 2d 38, 54 (D.D.C. 1998), aff’d, 199 F.3d 1352 (D.C. Cir. 2000).
26. To implement the INA, DHS regulations provide that “[p]rior to the [CFI], the alien shall be given time to contact and consult with any person or persons of his or her choosing. Such consultation shall be made available in accordance with the policies and procedures of the detention facility where the alien is detained . . . .” 8 C.F.R. § 1235.3(b)(4)(ii).
27. Consultation policies and procedures appear in ICE’s “Standard Operating Procedures [for] Legal Access and Legal Visitation” at Family Residential Centers (FRCs), which are the facilities where mothers and children seeking asylum are detained. (Exhibit A.)
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This document states, in relevant part, that FRCs will: “permit legal visitation seven days a week;” “allow each resident to meet privately with current or prospective legal representatives and their legal assistants;” ensure that conversations during legal visits are “confidential;” and “maintain a land-line telephone in each legal visitation room for use by attorneys and residents for legal visitation purposes relevant only to the specific visit.” Any visitor who violates any visitation rule may face corrective action including visitation restrictions and/or suspension of future visitation privileges. However, the document also requires that these rules be distributed in writing and posted in specified locations.
28. Consultation policies and procedures also appear in ICE’s “Residential Standard [for] Visitation.” (Exhibit B.) This document states, in relevant part:
[E]ach facility shall develop procedures that liberally allow an opportunity for consultation visitation, in order to ensure compliance with statutory and regulatory requirements and to prevent delay . . . . Given the time constraints, consultation by mail will generally not prove viable. The facility shall facilitate consultation visitation by telephone and face-to-face, and staff shall be sensitive to individual circumstances when resolving consultation-related issues. Consultation visitation shall be allowed during legal visitation hours and during general visitation hours; however, confidentiality shall be ensured only during legal visitation hours. Id. ¶ 5.8(V)(11)(b) (available at https://www.ice.gov/detention-standards/family-residential) (last visited May 31, 2017). 29. Consultation policies and procedures also appear in ICE’s “Residential Standard [for] Telephone Access.” (Exhibit C.) This standard, which is separate from the visitation standard, requires facilities to provide “direct or free” telephone calls to “[l]egal representatives, to obtain legal representation, or for consultation, when a resident is subject to Expedited Removal.” Id. ¶ 5.7(V)(5) (available at https://www.ice.gov/detention-standards/family-
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residential) (last visited May 31, 2017). The standard further requires that restrictions on direct or free calls “must not unduly limit a resident’s attempt to obtain legal representation.” Id. The only delays in access to free telephone calls contemplated by the telephone access standard are when the calls are “limited by technology,” and such technology-related delays cannot exceed 24 hours. Id. ¶ 5.7(V)(5)(a)-(b).
30. Policies and practices for in-person medical and/or mental health evaluations appear in ICE’s “Residential Standard [for] Medical Care.” (Exhibit D.) This document states, in relevant part:
Examinations by Independent Medical Service Providers and Experts On occasion, medical and/or mental health examinations by a practitioner or expert not associated with [ICE] or the facility may provide a resident with information useful in administrative proceedings before the Executive Office for Immigration Review and [ICE]. If a resident seeks an independent medical or mental health examination, the resident or his or her legal representative shall submit to [ICE] a written request that details the reasons for such an examination. [ICE] shall approve the examination, as long as it would not present an unreasonable security risk. If a request is denied, [ICE] shall advise the requester in writing of the rationale. The facility shall provide a location for the examination but no medical equipment or supplies, and the examination must be arranged and conducted in a manner consistent with security and good order. Id. ¶ 4.3(V)(26) (available at https://www.ice.gov/detention-standards/family-residential) (last visited May 31, 2017). By stating that “[t]he facility shall provide a location for the examination but no medical equipment or supplies,” ICE’s “Residential Standard [for] Medical Care” makes clear that its pre-approval requirement for examinations applies only to in-person examinations. 31. To implement ¶ 4.3(V)(26) of its medical care standard, ICE promulgated a form, effective on January 27, 2016, entitled “Independent Medical Service Provider and Expert Request.” (Exhibit E.) This document states, in relevant part:
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Pre-Screening Requirements for Designation of Independent Medical Service Providers and Experts For safety and security of Family Residential Center (FRC) residents and staff, FRCs will require all prospective Legal Visitors (Independent Medical Service Provider or Expert) to pass pre-clearance/record checks seventy-two (72) hours prior to the scheduled visit. The pre-clearance/record checks will include, but not [sic] limited to: identity verification, current employment or educational status, certification of medical license, and arrest and criminal history, underlying the applicant’s request for medical visitor designation. Id. (emphasis added).
32. By referring to “visitors” and the “scheduled visit,” the Independent Medical Service Provider and Expert Request makes clear that it applies only to in-person medical visitors. As used throughout ICE’s “Standard Operating Procedures [for] Legal Access and Legal Visitation,” and ICE’s “Residential Standard [for] Visitation,” the terms “visit” and “visitor” clearly refer to in-person visits and visitors. For example, the “Standard Operating Procedures [for] Legal Access and Legal Visitation” regulate “visiting areas” and “Visitor’s Food and Drink” and distinguish between telephone communications and visits. (Exhibit A III.D-F (“Legal representatives and assistants may telephone the facility in advance of a visit . . . .”).) The requirements set forth in the Independent Medical Service Provider and Expert Request form are limited to in-person “visits” by individuals licensed or otherwise authorized by a state to provide medical or mental health care services.
33. The Family Residential Standards described in the foregoing paragraphs, many of which are located on ICE’s website at https://www.ice.gov/detention-standards/familyresidential (last visited May 31, 2017), are publicly available. The Standards described above generally begin with a “Purpose and Scope” that describes the rights and benefits that the Standard creates for detainees. For example, ICE’s “Residential Standard [for] Visitation” (Exhibit B) begins with the statement that “Residents will be able to maintain ties through
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visitation with their families, the community, legal representatives, and consular officials, within the constraints of safety and good order.”
34. No written ICE policy promulgated before May 12, 2017 requires prior approval for mental health evaluations that are conducted telephonically.
STATEMENT OF FACTS A. The South Texas Family Residential Center 35. In December 2014, ICE and Corrections Corporation of America, a for-profit corporation that operates private prisons and that rebranded as “CoreCivic” in October 2016, opened the South Texas Family Residential Center located in Frio County near the town of Dilley, Texas. Unlike most ICE detention facilities, STFRC was not originally constructed to serve as an adult prison or jail. Instead, STFRC was specifically designed and constructed by the Corrections Corporation of America, following ICE specifications, for the sole purpose of detaining mothers and their minor children. STFRC detains this population in a secure facility, behind tall fences monitored by flood lights and surveillance cameras. After visiting STFRC, Member of Congress Judy Chu stated that it “looked so much like the Japanese-American internment camps of World War II.” In December 2016, a state District Court in Travis County, Texas, ordered the Texas Department of Family and Protective Services to withdraw a rule permitting STFRC to be licensed as a child care facility because such a rule violates Texas statutes and “runs counter to the general objectives of the Texas Human Resources Code.” 36. As of October 2016, CoreCivic did not dispute that no mother or child has ever attempted to escape from STFRC. 37. By statute and regulation, detention at STFRC is not supposed to be punitive. ICE’s authority to detain families at STFRC does not arise from any criminal statute and is not
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derived from the enforcement of any sentence for a crime. Instead, the mothers and children held at STFRC are civil detainees who are facing potential removal from the United States through civil immigration enforcement proceedings. ICE holds these mothers and children in detention centers through an exercise of its discretion.
38. At STFRC, ICE has the capacity to detain up to 2,400 mothers and children, although the actual population usually varies between 200 and 1,500 detainees. The cost to ICE to maintain STFRC does not fluctuate with the population. ICE pays Corrections Corporation of America/CoreCivic the same amount regardless of how many mothers and children are detained at STFRC.
39. Most families detained at STFRC consist of a mother and one child. 40. During 2016, ICE detained approximately 11,302 children at STFRC with a median age just under 6. 41. Almost all STFRC detainees are from El Salvador, Guatemala, and Honduras, countries with some of the highest violent crime rates in the world. 42. The overwhelming majority of STFRC detainees served by DPBP have experienced severe forms of trauma, including child abuse, rape, incest, domestic violence, and the persecution of their loved ones. 43. Most STFRC detainees communicate only in Spanish or in an indigenous language. B. The Dilley Pro Bono Project 44. Since STFRC began detaining families in December 2014, various non-profit corporations have organized and operated a pro bono legal assistance project that eventually became known as the Dilley Pro Bono Project.
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45. The federal government has never created a public defender system for people in removal proceedings. Families and individuals facing removal usually have extremely limited, if any, resources; generally do not speak English; and, if detained at STFRC or many other similar centers, are in remote locations with few lawyers nearby. Accordingly, DPBP, which offers free, local legal services in Spanish, plays an indispensable role in ensuring that the families detained at STFRC understand and are adequately prepared for the various stages of their immigration proceedings that occur while they are in detention.
46. In February 2017, DPBP’s staff consisted of two full-time attorneys and four fulltime legal assistants. DPBP staff also supervised roughly eight to twenty rotating volunteers who were present on-site at STFRC each day. DPBP staff are bilingual and specially trained on the nuances of expedited removal proceedings and asylum law, administration of DPBP’s electronic client case management system, and DPBP’s operating procedures. Accordingly, DPBP staff are not easily replaced. The absence of any of the six full-time staff imposes a severe strain on the remaining providers.
47. DPBP provides numerous legal services to STFRC detainees prior to their CFIs, including:
a. group legal meetings orienting families to credible fear proceedings; b. asserting fear on behalf of clients who wish to proceed with the CFI
process; c. securing mental health evaluations and other forms of evidence gathering; d. interview preparation; e. requesting appropriate language access during CFIs; f. requesting release for clients who have an urgent need for medical
attention; and
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g. asserting claims for U.S. citizenship, legal permanent residence, or other forms of status that constitute a statutory bar to an individual’s placement in expedited removal proceedings.
48. DPBP provides numerous legal services to STFRC detainees subsequent to the issuance of a positive credible fear determination, including:
a. motions for custody redetermination; b. requests for release without the condition of an ankle monitor; c. representation during master calendar hearings; and d. orientation regarding obligations upon release from detention. 49. DPBP provides numerous legal services to STFRC detainees subsequent to issuance of a negative credible fear determination, including: a. advising on legal options; b. evidence gathering; c. document drafting and filing; d. requests for reconsideration or re-interview; e. accompaniment and assistance before the Immigration Judge during a
negative credible fear review; and f. arranging for safe return to the extent possible and necessary. 50. To the extent that DPBP staff are able to arrange mental health evaluations for particular clients, they must generally do so shortly after the need for such an evaluation is identified. This is because of (i) the short time frames applicable to DPBP clients’ cases, and (ii) the limited availability of pro bono mental health professionals, who frequently can offer telephone appointments, but only on short notice. 51. The May 12, 2017 policy requiring ICE approval for telephonic mental health evaluations fails to specify any deadline by which ICE must respond to such a request. In Plaintiffs’ experience, ICE can take days or weeks to approve an “Independent Medical Service Provider and Expert Request.” (Exhibit E.) That is in part because a single ICE officer is
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responsible for responding to such requests; if that officer is unavailable, approval can be severely delayed.
52. The legal services provided by DPBP staff, including attorney-client and legal assistant-client meetings with DPBP clients, are critical to ensuring effective representation of individuals detained pending CFIs or other immigration proceedings. DPBP has provided legal consultation services to detainees according to ICE’s rules without significant incident since December 2014. To the extent that misunderstandings have arisen between ICE and DPBP, they have typically been resolved by informal discussion during periodic liaison meetings among stakeholders.
C. Revocation of Caroline Perris’s License 53. On January 15, 2017, DPBP participating organization TRLA hired Plaintiff Caroline Perris as a full-time employee and assigned her to work exclusively for DPBP. Ms. Perris is fluent in English and Spanish. 54. TRLA pays Ms. Perris an annual salary specifically to work as a full-time legal assistant at STFRC under the supervision of DPBP Managing Attorney Shalyn Fluharty. TRLA has paid Ms. Perris the same salary since her hire date. 55. On January 15, 2017, ICE granted Ms. Perris a “license,” as defined in 5 U.S.C. § 551(8), to provide legal services within STFRC. 56. Between January 15 and March 3, 2017, Ms. Perris consistently worked long hours providing legal services at STFRC without incident. 57. At 10:45 a.m. on March 3, 2017, DHS’s Asylum Office informed Ms. Fluharty that it would not re-consider a negative credible fear determination issued for a DPBP client. Ms. Fluharty immediately advised Ms. Perris of the case outcome given Ms. Perris’s prior work with
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this particular client. Ms. Perris, working under Ms. Fluharty’s supervision, decided that a telephonic mental health evaluation would benefit the client.
58. Ms. Perris took immediate steps to arrange the mental health evaluation because ICE’s written policies unequivocally provide that she and her client are not only allowed to telephone anyone for matters relevant to the representation, but they are allowed to do so confidentially. (Exhibit A ¶¶ III.C.2., III.F.1, III.L.1; Exhibit C.)
59. As of March 3, 2017, ICE had no written policy requiring approval of a telephonic mental health evaluation prior to conducting it.
60. Even so, to avoid needless controversy, Ms. Perris submitted an evaluation request form (as in Exhibit E) to ICE several hours prior to the scheduled evaluation.
61. Ms. Perris then facilitated a telephonic mental health evaluation of the DPBP client in order to gather evidence to support a request for reconsideration of the DPBP client’s initial negative CFI determination by the Asylum Office.
62. The physician who conducted the evaluation facilitated by Ms. Perris is Dr. Craig Katz, a professor of medicine at New York’s Icahn School of Medicine at Mount Sinai Hospital in New York.
63. The Asylum Office relied on Dr. Katz’s evaluation to reverse its decision and release Ms. Perris’s client and her child from detention, rather than deporting them.
64. ICE did not respond to Ms. Perris’s evaluation request for Dr. Katz until several weeks later, when it approved the request.
65. On March 17, 2017, ICE permanently revoked Caroline Perris’s right to visit STFRC based on her conduct on March 3, as described above. (Exhibit F.)
66. DPBP and Ms. Perris submitted a detailed appeal of ICE’s revocation.
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67. DPBP held several discussions with ICE’s Chief Counsel in attempts to resolve this dispute informally.
68. On May 12, 2017, in response to DPBP’s request that ICE reinstate Ms. Perris’s access, ICE stated for the first time in writing that “a request for a telephonic medical evaluation [must be] made in advance of the evaluation, and the request [must be] approved prior to the evaluation taking place.” (Exhibit G.) ICE cited this newly-announced rule as the justification for its March 3, 2017 decision prohibiting Ms. Perris from visiting STFRC.
69. ICE’s new written policy requiring pre-clearance for telephonic mental health evaluations is arbitrary and capricious. On information and belief, ICE asserts a security justification for requiring pre-clearance for in-person visits because they involve the physician physically entering STFRC and may require the physician to bring medical equipment or supplies into STFRC. However, a telephone call involves no physical entry by the physician. Accordingly, no similar security justification can exist for pre-screening telephone conversations with physicians.
70. As set forth above, DHS’s regulations and ICE’s policies elsewhere allow detainees confidential access to telephones to call any person for purposes relevant to their cases. Indeed, ICE has installed land-line telephones in each attorney visitation room. These land-line telephones may connect to any international or U.S.-based local, long-distance, or toll-free telephone number. ICE does not require pre-approval for attorneys to make telephone calls from these phones to individuals who are not physicians, and the telephone system has no technological limitations that would make such pre-approval necessary.
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D. Injuries Caused by ICE’s Unlawful Policy, its Retroactive Enforcement of that Policy, and its Suspension of Ms. Perris
71. ICE’s implementation and enforcement of an unlawful policy, and its resulting exclusion of Ms. Perris from STFRC, interferes with First Amendment and statutory rights of association and consultation that exist between detained immigrants and pro bono legal services providers, including Plaintiffs.
72. First, ICE’s unjustified suspension of Ms. Perris has caused a shortage of staffing at DPBP, rendering Ms. Fluharty and her team unable to complete crucial tasks for DPBP’s clients and causing the level of service provided to DPBP’s clients to decline. In Ms. Perris’s absence, DPBP clients who (in DPBP’s judgment) required the attendance of a legal representative at their interviews with the Asylum Office have been forced to attend alone. At least one client was removed because DPBP was unable to submit a motion to reconsider her negative credible fear determination as a result of the shortage in staffing. The remaining members of DPBP’s team are required to work more hours to make up for the staffing shortage, yet remain unable to complete critical tasks for each client.
73. Second, as a result of ICE’s illegal policy requiring prior approval for telephonic mental health evaluations (Exhibit G), DPBP attorneys must choose between putting themselves at risk of having their visitation rights permanently revoked by providing the legal assistance and advice they believe is in the best interests of their clients, including expedited confidential telephonic mental health evaluations—or potentially compromising their representation of their clients by seeking and waiting for prior approval.
74. Third, as a result of ICE’s illegal policy requiring prior approval for all telephonic mental health evaluations (Exhibit G), DPBP attorneys are deterred and chilled from exercising their First Amendment right to provide the legal assistance they believe is required. That is
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because DPBP attorneys recognize that ICE will not approve requests for mental health evaluations on short notice, and by the time ICE approves any given request, a detainee’s CFI or related proceeding will likely have taken place. DPBP attorneys are reluctant to expend scarce resources seeking approval for expedited telephonic mental health evaluations that are unlikely to occur.
75. Fourth, because Ms. Perris’s visitation rights were revoked on March 17, Ms. Perris has been prevented from associating with clients who sought her assistance before then; and Ms. Fluharty’s association with those clients has been hindered by the absence of Ms. Perris.
76. ICE’s revocation of Ms. Perris’s visitation rights has caused DPBP partner TRLA to waste valuable resources every day that Ms. Perris, who is paid as a full-time employee, is unable to perform her contracted duties through no fault of her own, but rather due to ICE’s unjustified exclusion of Ms. Perris from STFRC.
77. Plaintiffs incorporate all attached exhibits in full and for all purposes pursuant to FED. R. CIV. P. 10(c).
INJUNCTIVE RELIEF 78. Plaintiffs are entitled to a preliminary and permanent injunction. Defendants have acted and threaten to act to deprive Plaintiffs and those they seek to represent of their constitutional and statutory rights. Plaintiffs have suffered irreparable injuries and the loss of fundamental associational rights and have been and will continue to be subjected to serious risks of these same irreparable harms as the result of ICE’s actions. Plaintiffs have no plain, adequate, or speedy remedy at law.
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CAUSES OF ACTION COUNT ONE
(Violation of Plaintiffs’ First Amendment Rights of Association) 79. The First Amendment of the U.S. Constitution guarantees Plaintiffs the right to communicate and associate with their clients and prospective clients who are seeking representation, to inform them about their legal rights, to discuss the possibility of legal representation, and to assist them with their legal claims in a confidential setting. 80. ICE’s decision to revoke Ms. Perris’s visitation rights violates Plaintiffs’ First Amendment rights to communicate and associate with their clients. 81. ICE’s actions have caused Plaintiffs to suffer injuries in fact. DPBP is the only free legal services provider for mothers and children detained at STFRC. ICE’s actions undermine DPBP’s mission to provide legal services for families detained at STFRC, and harm Plaintiffs by interfering with their First Amendment rights to associate and communicate with their clients and potential clients seeking representation. 82. Defendants’ actions also violate the First Amendment because they burden the constitutionally protected speech and association rights of third parties, including clients and potential clients of Plaintiffs, who are deprived of the opportunity to associate and communicate with DPBP. 83. ICE’s actions are the direct cause of Plaintiffs’ injuries. 84. As a result of Defendants’ unconstitutional actions, Plaintiffs are entitled to the requested relief.
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COUNT TWO (Violation of Administrative Procedure Act, 5 U.S.C. § 706) 85. The Administrative Procedure Act empowers this Court to issue all injunctive
relief necessary to secure ICE’s compliance with treaties, the Constitution, statutes, regulations,
and ICE’s own policies. 5 U.S.C. § 706(2); Montilla v. INS, 926 F.2d 162, 163-64 (2d Cir.
1991).
86. ICE has taken the following final agency actions:
a. ICE adopted an unlawful new written policy that requires ICE approval prior to any telephonic mental health evaluation sought by legal counsel for use in legal proceedings;
b. ICE determined that Caroline Perris violated ICE policies by not seeking approval before coordinating a telephonic mental health evaluation of a detainee in connection with a request for reconsideration of that detainee’s negative CFI determination by the Asylum Office; and
c. ICE excluded Ms. Perris from STFRC by suspending, and refusing to reinstate, her visitation rights.
87. ICE’s final agency actions violate the Constitution, statutes, regulations, and
policies referenced above because:
a. The First Amendment to the U.S. Constitution guarantees to Plaintiffs the right to communicate and associate with detainees;
b. Statutes, ICE regulations, and written ICE policies guarantee the right of in-person association between detainees and lawyers or legal assistants, subject to revocation only for violation of published ICE rules;
c. The text of ICE’s own prior policies limits the prior approval requirement to in-person mental health examinations conducted by a professional on site at a detention facility;
d. It is arbitrary to require, and would be arbitrary to deny, a request for telephonic mental health evaluation, because ICE’s own rules permit detainees and their lawyers to call anyone they choose for case-related purposes; and
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e. To the extent that ICE’s policies require pre-approval of, permit denial of, or practically prevent telephonic mental health evaluations, any such policy violates 8 U.S.C. § 1225(b)(1)(B)(iv) and 8 C.F.R. § 1235.3(b)(4)(ii), which guarantee detainees the right to consult any person they choose as they prepare for credible fear proceedings.
88. ICE’s final agency actions have caused Plaintiffs to suffer injuries in fact. In particular, those actions have undermined DPBP’s mission to provide legal services for families detained at STFRC, and have harmed Plaintiffs by interfering with their First Amendment rights to associate with the mothers and children that they aim to serve.
89. Additionally, Plaintiffs are permitted to vindicate the rights of clients and prospective clients of DPBP who are not able to consult with the sole provider of free legal services at STFRC.
90. The interests that Plaintiffs seek to protect are within the zone of interests regulated by the applicable provisions of the Constitution and the Immigration and Nationality Act.
91. ICE’s final agency actions are the direct cause of Plaintiffs’ injuries. 92. Plaintiffs’ requested relief would redress Plaintiffs’ injuries. 93. Plaintiffs have no adequate remedy at law to redress the wrongs suffered as set forth in this Complaint.
PRAYER FOR RELIEF 94. Plaintiffs have suffered and will continue to suffer irreparable injury as a result of the unlawful acts, policies, and practices of Defendants, as alleged herein, unless Plaintiffs are granted the relief they request. The need for relief is critical because the rights at issue are paramount under the U.S. Constitution and the laws of the United States. WHEREFORE, Plaintiffs pray that the Court grant them the following relief:
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(a) pursuant to D.D.C. Local Rule 7(n)(1), order that ICE immediately produce the complete administrative record showing all documents that ICE relies upon to defend its actions challenged in this lawsuit, including without limitation all documents related to:
(1) suspension of Caroline Perris from STFRC; (2) changes in ICE’s STFRC consultation requirements since January 2017; and (3) reasons for changes in such consultation requirements. (b) an order that ICE immediately reinstate Caroline Perris’s STFRC visitation license; (c) a preliminary and permanent injunction prohibiting ICE from enforcing its May 12, 2017 written policy concerning pre-approval for telephonic mental health evaluations; (d) a preliminary and permanent injunction prohibiting ICE from issuing unnecessary restrictions that significantly interfere with in-person association between detainees and their lawyers or legal assistants; (e) an order that ICE pay Plaintiffs’ reasonable litigation costs and attorney’s fees; and (f) all other relief that the Court deems just and proper to ensure that ICE has in place policies, practices, and procedures preserving Plaintiffs’ access to clients and prospective clients seeking representation at STFRC.
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June 1, 2017

Respectfully submitted,

/s/ Melissa Crow Melissa Crow (DC Bar No. 453487) American Immigration Council 1331 G Street, N.W., Suite 200 Washington, DC 20005 (202) 507-7523

/s/ Amanda Flug Davidoff Amanda Flug Davidoff (DC Bar No. 978033) Lucas Lallinger (DC Bar No. 1046778) Sullivan & Cromwell LLP 1700 New York Avenue, N.W. Suite 700 Washington, DC 20006 (202) 956-7500

/s/ Rebecca Scholtz Rebecca Scholtz (pro hac vice motion pending) Catholic Legal Immigration Network, Inc. c/o University of St. Thomas Interprofessional Center 30 South 10th Street Minneapolis, MN 55403 (651) 962-4833

Richard H. Klapper (pro hac vice motion pending) Veronica W. Ip (pro hac vice motion pending) Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 (212) 558-4000

Attorneys for Plaintiffs

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Independent Medical Service Provider and Expert Request

Family Residential Center: Karnes County Residential Center (Karnes City, Texas)

South Texas Family Residential Center (Dilley, Texas)

Definition:
As per “Legal Access and Legal Visitation Standard Operating Procedures” for ICE Directive 11302 Section 3: Independent Medical Provider/Expert – An individual who is licensed or otherwise authorized by a state to provide medical or mental health care services, including but not limited to physicians, registered professional nurses, and licensed social workers. Such individuals are not permitted to provide medical or mental health care services to residents, but may be permitted to evaluate individual residents for purposes of preparing expert reports.

Legal representative (attorney of record) must submit request packet via email: Norma.E.Lacy@ice.dhs.gov. *San Antonio Field Office Special Assistant Norma E. Lacy (Contact: 210-283-4711)

Request packet must be submitted for each resident individually to include the following upon submission, at a minimum:

Name:__________________________________________ Title:___________________________________________

DOB:_________________ SS#:____________________ Proposed date/time of evaluation:____________________

Request (complete)

Government issued identification

Letter of intent (Written request that details the reasons for such an examination)

Credentials

G-28 signed (Attorney of record Attorney name, email

Date request submitted:__________________

Additional information:_________________________________________________________________________
Pre-Screening Requirements for Designation of Independent Medical Service Providers and Experts For safety and security of Family Residential Center (FRC) residents and staff, FRCs will require all prospective Legal Visitors (Independent Medical Service Provider or Expert) to pass pre-clearance/record checks seventy-two (72) hours prior to the scheduled visit. The pre-clearance/record checks will include, but not limited to: identity verification, current employment or educational status, certification of medical license, and arrest and criminal history, underlying the applicant’s request for medical visitor designation.

Approved

Denied

Deciding Official:______________________________________ Date:___________________

Effective 01/27/16; approval authority for the clearance process of the Independent Medical Service Providers and Experts for the Family Residential Centers (FRCs) now resides with the respective Field Office Director or designee.

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Case 1:17-cv-01055-CRC Document 1-7 Filed 06/01/17 Page 1 of 1
From: Achim, Deborah <Deborah.Achim@ice.dhs.gov> Date: Fri, May 12, 2017 at 10:01 AM Subject: RE: Suspension Appeal_Caroline Perris To: Shalyn Fluharty <shay@caraprobono.org>
Ms. Fluharty:
I am in receipt of your written request for the reinstatement of Ms. Caroline Perris’ visitation privileges. As you are aware, the ERO Field Office Director denied the request to reinstate the visitation privileges of Mr. Ariel Prado and Ms. Elena Alderman in an e-mail message a few weeks ago. I cannot consider those requests.
I reviewed the request for Ms. Perris, and the basis of the request appears to be that your organization does not feel it is necessary to comply with policy set forth in the Family Residential Standards (FRS) regarding telephonic medical evaluations. We have allowed telephonic medical evaluations in the past in an effort to assist CARA. However, the fact that it has been done in the past does not excuse CARA from policy compliance at this time or in the future. In those cases, a request for a telephonic medical evaluation was made in advance of the evaluation, and the request was approved prior to the evaluation taking place. That is what is required by the FRS § 4.3(V)(26). Because your request to reinstate the visitation privileges of Ms. Perris also argues that you did request approval for the medical evaluation, I can only assume that you knew you would need approval prior to the evaluation taking place.
Originally I was told in an e-mail that Ms. Perris did not know the policy contained in the FRS. The attached letter seems to indicate that she knowingly ignored the FRS policy rather than speaking with ICE about the pending request. Ms. Perris clearly violated the FRS. In the past, similar actions have resulted in loss of visitation privileges.
As a reminder, legal correspondence should never be sent directly to Deportation Officers. It should be sent to the centralized e-mail box (STFRC-CARA-Requests@ice.dhs.gov) that was set up specifically for that purpose. The correspondence may also be hand-delivered to an ERO supervisor.
Your letter fails to acknowledge that the FRS policy was violated and actually states that you have no obligation to seek approval in the future, prior to facilitating an outside medical evaluation. Without assurance that your staff will comply with FRS policy regarding outside medical evaluations, work with ICE to receive the necessary approvals, and submit requests either through use of the designated legal e-mail box or by in-person submission of written requests, I will not reinstate Ms. Perris’ visitation privileges.
I am always open to further discussion on this and any other matter.
Thank you, Deborah Achim DFOD ERO SNA