CLOSED,EFILE,LEAD
U.S. District Court District of Connecticut (New Haven) CIVIL DOCKET FOR CASE #: 3:18−cv−01106−VAB

R. v. Sessions et al Assigned to: Judge Victor A. Bolden Related Case: 3:18−cv−01797−VAB Cause: 28:1331 Fed. Question
Plaintiff
J. S. R. by and through his next friend, Joshua Perry and J.S.G.

Date Filed: 07/02/2018 Date Terminated: 08/29/2018 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant
represented by Michael J. Wishnie Jerome N. Frank Legal Services − Wall St Yale Law School 127 Wall Street New Haven, CT 06511 203−432−4800 Fax: 203−432−1426 Email: michael.wishnie@ylsclinics.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joanne Lewis Connecticut Legal Services, Inc.−NB 16 Main St. New Britain, CT 06051 860−225−8678 Fax: 860−225−6105 Email: jlewis@connlegalservices.org ATTORNEY TO BE NOTICED
Marisol Orihuela Jerome N. Frank Legal Services − Wall St 127 Wall Street New Haven, CT 06511 Email: marisol.orihuela@yale.edu ATTORNEY TO BE NOTICED
Muneer I. Ahmad Jerome N. Frank Legal Services − Wall St Yale Law School 127 Wall Street New Haven, CT 06511 202−432−4800 Fax: 202−432−1426 Email: muneer.ahmad@yale.edu ATTORNEY TO BE NOTICED

V.
Consol Plaintiff
V. F. B. by and through her next friend, Joshua Perry and A.B.A.

represented by Joanne Lewis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marisol Orihuela (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant Jefferson B. Sessions, III Attorney General of the United States
Defendant Department of Homeland Security ("DHS")
Defendant Kirstjen Nielsen Secretary of DHS
Defendant U.S. Customs and Border Protection ("CPB")
Defendant

Michael J. Wishnie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Muneer I. Ahmad (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John B. Hughes U.S. Attorney's Office−NH 157 Church St., 25th Floor New Haven, CT 06510 203−821−3802 Fax: 203−773−5373 Email: john.hughes@usdoj.gov ATTORNEY TO BE NOTICED
Michelle Lynn McConaghy U.S. Attorney's Office−NH 157 Church St., 25th Floor New Haven, CT 06510 203−821−3700 Fax: 203−773−5373 Email: michelle.mcconaghy@usdoj.gov ATTORNEY TO BE NOTICED
represented by John B. Hughes (See above for address) ATTORNEY TO BE NOTICED
Michelle Lynn McConaghy (See above for address) ATTORNEY TO BE NOTICED
represented by John B. Hughes (See above for address) ATTORNEY TO BE NOTICED
Michelle Lynn McConaghy (See above for address) ATTORNEY TO BE NOTICED
represented by John B. Hughes (See above for address) ATTORNEY TO BE NOTICED
Michelle Lynn McConaghy (See above for address) ATTORNEY TO BE NOTICED
represented by

Kevin K. Mcaleenan Commissioner of CBP
Defendant U.S. Immigration & Customs Enforcement ("ICE")
Defendant Ronald D. Vitiello Acting Director of ICE
Defendant U.S. Citizenship and Immigration Services ("USCIS")
Defendant L. Francis Cissna Director of USCIS
Defendant U.S. Department of Health and Human Services ("HHS")
Defendant Alex Azar Secretary of the Department of Health and Human Services

John B. Hughes (See above for address) ATTORNEY TO BE NOTICED
Michelle Lynn McConaghy (See above for address) ATTORNEY TO BE NOTICED
represented by John B. Hughes (See above for address) ATTORNEY TO BE NOTICED
Michelle Lynn McConaghy (See above for address) ATTORNEY TO BE NOTICED
represented by John B. Hughes (See above for address) ATTORNEY TO BE NOTICED
Michelle Lynn McConaghy (See above for address) ATTORNEY TO BE NOTICED
represented by John B. Hughes (See above for address) ATTORNEY TO BE NOTICED
Michelle Lynn McConaghy (See above for address) ATTORNEY TO BE NOTICED
represented by John B. Hughes (See above for address) ATTORNEY TO BE NOTICED
Michelle Lynn McConaghy (See above for address) ATTORNEY TO BE NOTICED
represented by John B. Hughes (See above for address) ATTORNEY TO BE NOTICED
Michelle Lynn McConaghy (See above for address) ATTORNEY TO BE NOTICED
represented by John B. Hughes (See above for address) ATTORNEY TO BE NOTICED
Michelle Lynn McConaghy (See above for address) ATTORNEY TO BE NOTICED

Defendant Office of Refugee Resettlement ("ORR")
Defendant Scott Lloyd Director of ORR

represented by John B. Hughes (See above for address) ATTORNEY TO BE NOTICED
Michelle Lynn McConaghy (See above for address) ATTORNEY TO BE NOTICED
represented by John B. Hughes (See above for address) ATTORNEY TO BE NOTICED
Michelle Lynn McConaghy (See above for address) ATTORNEY TO BE NOTICED

Date Filed 07/02/2018
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# Docket Text
1 COMPLAINT AND HABEAS PETITION against Alex M. Azar, II, L. Francis Cissna, Department of Homeland Security, Scott Lloyd, Kevin K. Mcaleenan, Kirstjen M. Nielsen, Office of Refugee Resettlement, Jefferson Beauregard Sessions, III, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. Customs and Border Patrol, U.S. Department of Health and Human Services, U.S. Immigration and Customs Enforcement, Ronald D. Vitiello ( Filing fee $400 receipt number ACTDC−4886777.), filed by J.S.R..(Wishnie, Michael) (Entered: 07/02/2018)
Request for Clerk to issue summons as to All Defendants. (Wishnie, Michael) (Entered: 07/02/2018)
Judge Warren W. Eginton added. (Anastasio, F.) (Entered: 07/02/2018)
2 Order on Pretrial Deadlines: Motions to Dismiss due on 10/2/2018. Amended Pleadings due by 8/31/2018. Discovery due by 1/1/2019. Dispositive Motions due by 1/31/2019. Signed by Clerk on 7/2/2018.(Fazekas, J.) (Entered: 07/02/2018)
3 ELECTRONIC FILING ORDER FOR COUNSEL − PLEASE ENSURE COMPLIANCE WITH COURTESY COPY REQUIREMENTS IN THIS ORDER Signed by Judge Warren W. Eginton on 7/2/2018.(Fazekas, J.) (Entered: 07/02/2018)
4 STANDING PROTECTIVE ORDER Signed by Judge Warren W. Eginton on 7/2/2018.(Fazekas, J.) (Entered: 07/02/2018)
5 NOTICE TO COUNSEL/SELF−REPRESENTED PARTIES : Counsel or self−represented parties initiating or removing this action are responsible for serving all parties with attached documents and copies of 2 Order on Pretrial Deadlines, 1 Complaint,, filed by J. S. R., 4 Standing Protective Order, 3 Electronic Filing Order Signed by Clerk on 7/2/2018.(Fazekas, J.) (Entered: 07/02/2018)
6 ELECTRONIC SUMMONS ISSUED in accordance with Fed. R. Civ. P. 4 and LR 4 as to *Alex Azar, L. Francis Cissna, Department of Health and Human Services, Department of Homeland Security, Scott Lloyd, Kevin K. Mcaleenan, Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson B. Sessions, III, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Immigration & Customs Enforcement, Ronald D. Vitiello* with answer to complaint due within *60* days. Attorney *Michael J. Wishnie* *Jerome N. Frank Legal Services − 127 Wall St* *New Haven, CT 06511* (Fazekas, J.) (Entered: 07/02/2018)
7 ORDER OF TRANSFER. Case reassigned to Judge Victor A. Bolden in the interest of justice for all further proceedings. Signed by Judge Warren W. Eginton on 7/2/2018.(Gould, K.) (Entered: 07/02/2018)

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8 MOTION for Hearing by J. S. R.. (Wishnie, Michael) (Entered: 07/02/2018)
9 ORDER granting 8 Motion for Hearing. A calendar entry will follow. Signed by Judge Victor A. Bolden on 7/2/2018. (McDonough, S.) (Entered: 07/02/2018)
10 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephonic Status Conference set for 7/3/2018 at 11:30 AM before Judge Victor A. Bolden. Because defense counsel has not yet appeared, Plaintiff is directed to reach out to opposing counsel to ensure that someone will be available for this call. Once all parties are on the line, please call Chambers at (203) 579−5562. (McDonough, S.) (Entered: 07/02/2018)
11 NOTICE of Appearance by Muneer I. Ahmad on behalf of J. S. R. (Ahmad, Muneer) (Entered: 07/02/2018)
12 Minute Entry for proceedings held before Judge Victor A. Bolden: Telephonic Scheduling Conference held on 7/3/2018. Total Time: 0 hours and 15 minutes (Court Reporter S. Montini.) (McDonough, S.) (Entered: 07/03/2018)
13 SCHEDULING ORDER: Please see attached. Signed by Judge Victor A. Bolden on 7/3/2018. (McDonough, S.) (Entered: 07/03/2018)
14 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Set/Reset Deadlines as to (Motion Hearing set for 7/11/2018 at 11:30 AM in Courtroom Two, 915 Lafayette Blvd., Bridgeport, CT before Judge Victor A. Bolden). (McDonough, S.) (Entered: 07/03/2018)
15 TRANSCRIPT of Proceedings: Type of Hearing: Telephone Conference. Held on 7/3/18 before Judge Victor Bolden. Court Reporter: Sharon Montini. IMPORTANT NOTICE − REDACTION OF TRANSCRIPTS: To remove personal identifier information from the transcript, a party must electronically file a Notice of Intent to Request Redaction with the Clerk's Office within seven (7) calendar days of this date. If no such Notice is filed, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available through PACER without redaction 90 days from today's date. The transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. The policy governing the redaction of personal information is located on the court website at www.ctd.uscourts.gov. Redaction Request due 7/26/2018. Redacted Transcript Deadline set for 8/5/2018. Release of Transcript Restriction set for 10/3/2018. (Montini, S.) (Entered: 07/05/2018)
16 NOTICE of Appearance by Michelle Lynn McConaghy on behalf of Alex Azar, L. Francis Cissna, Department of Homeland Security, Scott Lloyd, Kevin K. Mcaleenan, Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson B. Sessions, III, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Health and Human Services, U.S. Immigration & Customs Enforcement, Ronald D. Vitiello (McConaghy, Michelle) (Entered: 07/05/2018)
17 MOTION for Temporary Restraining Order OR PRELIMINARY INJUNCTION by J. S. R.. (Attachments: # 1 Affidavit Martin A, # 2 Affidavit Martin B, # 3 Affidavit Zucco Himmelstein, # 4 Exhibit A to Zucco Himmelstein, # 5 Exhibit B to Zucco Himmselstein, # 6 Affidavit Orihuela, # 7 Exhibit A−F to Orihuela, # 8 Exhibit G−P to Orihuela, # 9 Exhibit Q−Z to Orihuela, # 10 Exhibit AA−FF to Orihuela, # 11 Exhibit GG−QQ to Orihuela)(Ahmad, Muneer) (Entered: 07/05/2018)
18 MOTION for Writ ad testificandum by J. S. R.. (Attachments: # 1 Affidavit of Massiel Zucco−Himmelstein, # 2 Exhibit A, # 3 Exhibit B, # 4 Affidavit of Joshua Perry, # 5 Affidavit of Dr Andres Martin "A", # 6 Affidavit of Dr Andres Martin "B")(Wishnie, Michael) (Entered: 07/05/2018)
19 AFFIDAVIT re 18 MOTION for Writ ad testificandum Signed By Marisol Orihuela filed by J. S. R.. (Attachments: # 1 Exhibit A−F, # 2 Exhibit G−P, # 3 Exhibit Q−Z, #

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4 Exhibit AA−FF, # 5 Exhibit GG−QQ)(Wishnie, Michael) (Entered: 07/05/2018)
20 NOTICE of Appearance by Joanne Lewis on behalf of J. S. R. (Lewis, Joanne) (Entered: 07/05/2018)
43 MOTION for Temporary Restraining Order OR PRELIMINARY INJUNCTION by V. F. B.. (Attachments: # 1 Affidavit Martin A, # 2 Affidavit Martin B, # 3 Affidavit Zucco Himmelstein,, # 4 Exhibit A to Zucco Himmelstein, # 5 Exhibit B to Zucco Himmelstein, # 6 Affidavit Orihuela, # 7 Exhibit A−F to Orihuela, # 8 Exhibit G−P to Orihuela, # 9 Exhibit Q−Z to Orihuela, # 10 Exhibit AA−FF to Orihuela, # 11 Exhibit GG−QQ to Orihuela)(Perez, J.) (Entered: 07/10/2018)
21 OBJECTION re 18 MOTION for Writ ad testificandum filed by Alex Azar, L. Francis Cissna, Department of Homeland Security, Scott Lloyd, Kevin K. Mcaleenan, Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson B. Sessions, III, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Health and Human Services, U.S. Immigration & Customs Enforcement, Ronald D. Vitiello. (McConaghy, Michelle) (Entered: 07/06/2018)
22 EXHIBIT by Alex Azar, L. Francis Cissna, Department of Homeland Security, Scott Lloyd, Kevin K. Mcaleenan, Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson B. Sessions, III, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Health and Human Services, U.S. Immigration & Customs Enforcement, Ronald D. Vitiello re 21 Objection,. (Attachments: # 1 Exhibit B, # 2 Exhibit C, # 3 Exhibit D)(McConaghy, Michelle) (Entered: 07/06/2018)
23 EXHIBIT Signed Declaration by Alex Azar, L. Francis Cissna, Department of Homeland Security, Scott Lloyd, Kevin K. Mcaleenan, Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson B. Sessions, III, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Health and Human Services, U.S. Immigration & Customs Enforcement, Ronald D. Vitiello re 13 Scheduling Order. (McConaghy, Michelle) (Entered: 07/06/2018)
24 NOTICE of Appearance by Marisol Orihuela on behalf of J. S. R. (Orihuela, Marisol) (Entered: 07/06/2018)
25 NOTICE by J. S. R. re 18 MOTION for Writ ad testificandum of Supplemental Authority (Orihuela, Marisol) (Entered: 07/06/2018)
26 NOTICE by Alex Azar, L. Francis Cissna, Department of Homeland Security, Scott Lloyd, Kevin K. Mcaleenan, Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson B. Sessions, III, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Health and Human Services, U.S. Immigration & Customs Enforcement, Ronald D. Vitiello re 25 Notice (Other) (Attachments: # 1 Notice of Compliance and Request for Clarification)(McConaghy, Michelle) (Entered: 07/06/2018)
27 ORDER granting in part and denying in part 18 Motion for Writ. Signed by Judge Victor A. Bolden on 7/6/2018. (McDonough, S.) (Entered: 07/06/2018)
28 MOTION for Leave to File Law Student Appearance by J. S. R.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Wishnie, Michael) (Entered: 07/06/2018)
29 ORDER granting 28 Motion for Leave for Aseem Mehta to appear as a law student intern. Signed by Judge Victor A. Bolden on 7/7/2018. (McDonough, S.) (Entered: 07/07/2018)
30 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION.Telephonic Status Conference set for 7/9/2018 at 10:00 AM before Judge Victor A. Bolden. Once all parties are on the line, please call Chambers at (203) 579−5562. (McDonough, S.) (Entered: 07/09/2018)
31 MOTION for Leave to File Law Student Appearance by J. S. R.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Wishnie, Michael) (Entered: 07/09/2018)

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32 Minute Entry for proceedings held before Judge Victor A. Bolden: Telephonic Status Conference and Motion hearing held on 7/9/2018. Granting 33 Oral motion to Consolidate cases. Total Time: 0 hours and 15 minutes (Court Reporter S. Montini.) (McDonough, S.) Modified on 7/10/2018 to include ruling on oral motion (Perez, J.). (Entered: 07/09/2018)
33 ORAL MOTION to Consolidate Cases. Motion for case to be consolidated with 18−cv−1110 filed by J. S. R. (McDonough, S.) (Entered: 07/09/2018)
34 ORDER granting 31 Motion for Leave to File Law Student Appearance. Signed by Judge Victor A. Bolden on 7/9/2018. (McDonough, S.) (Entered: 07/09/2018)
35 ORDER granting 33 Motion to Consolidate Cases. Plaintiff in V.F.B. v. Sessions, No. 3:18−cv−1110 has moved orally to consolidate that case with J.S.R. v. Sessions, No. 3:18−cv−1106. There is no objection. The Court finds that these two cases involve "common question[s] of law or fact," see Fed. R. Civ. P. 42(a), relating to the same government policy of separating minor children from their asylum−seeking or migrant parents, as reflected in Plaintiffs' Motion for Temporary Restraining Order or Preliminary Injunction and the supporting memorandum of law. ECF No. 17. The Court therefore grants the motion to consolidate the cases. See R.W. Grand Lodge of Free & Accepted Masons of Pennsylvania v. Meridian Capital Partners, Inc., 634 Fed. App'x 4, 6 (2d Cir. 2015) ("A party moving for consolidation 'must bear the burden of showing the commonality of factual and legal issues in different actions, and a district court must examine the special underlying facts with close attention before ordering a consolidation.'")(quoting In re Repetitive Stress Injury Litig., 11 F.3d 368, 373 (2d Cir. 1993)). The new caption will be J.S.R. and V.F.B. v. Sessions, No. 3:18−cv−1106.
The Court will also consolidate the two hearings currently scheduled for Wednesday, July 11, 2018. The Court will hear argument in the consolidated case, No. 3:18−cv−1106, at 11:30 a.m. on July 11, 2018. To the extent that the parties believe that consolidation requires modification of the Court's Order granting in part and denying in part the motion for writ of habeas corpus ad testificandum, the parties should submit a request to modify that Order as needed. Signed by Judge Victor A. Bolden on 7/9/2018. (McDonough, S.) (Entered: 07/09/2018)
36 ORDER: Plaintiffs' Complaint, ECF No. 1, states that Plaintiffs are represented by and through their next friend, Joshua Perry. Compl. at 1−2. At the July 11th preliminary injunction hearing, Mr. Perry's status as "next friend" to Plaintiffs should be more fully addressed. See Fed. R. Civ. P. 17(c)(2) ("A minor or an incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. The court must appoint a guardian ad litem−−or issue another appropriate order−−to protect a minor or incompetent person who is unrepresented in an action."). Signed by Judge Victor A. Bolden on 7/9/2018. (McDonough, S.) (Entered: 07/09/2018)
37 SUPPLEMENTAL ORDER on motion for writ of habeas corpus ad testificandum. Signed by Judge Victor A. Bolden on 7/10/2018. (McDonough, S.) (Entered: 07/10/2018)
38 Joint MOTION to Amend Hearing Schedule re 27 Order on Motion for Writ by Alex Azar, L. Francis Cissna, Department of Homeland Security, Scott Lloyd, Kevin K. Mcaleenan, Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson B. Sessions, III, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Health and Human Services, U.S. Immigration & Customs Enforcement, Ronald D. Vitiello.Responses due by 7/31/2018 (McConaghy, Michelle) (Entered: 07/10/2018)
39 NOTICE of Appearance by John B. Hughes on behalf of Alex Azar, L. Francis Cissna, Department of Homeland Security, Scott Lloyd, Kevin K. Mcaleenan, Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson B. Sessions, III, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Health and Human Services, U.S. Immigration & Customs Enforcement, Ronald D. Vitiello (Hughes, John) (Entered: 07/10/2018)
40 ORDER granting 38 Motion to Amend Scheduling Order. Signed by Judge Victor A. Bolden on 7/10/2018. (McDonough, S.) (Entered: 07/10/2018)

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41 WRIT of Habeas Corpus Ad Testificandum for J.S.R. Signed by Judge Victor A. Bolden on 7/10/2018. (McDonough, S.) (Entered: 07/10/2018)
42 WRIT of Habeas Corpus Ad Testificandum for V.F.B. Signed by Judge Victor A. Bolden on 7/10/2018. (McDonough, S.) (Entered: 07/10/2018)
44 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. RESET FROM 7/10/2018 11:30 & 3:00, Motion Hearing as to 43 MOTION for Temporary Restraining Order, 17 MOTION for Temporary Restraining Order OR PRELIMINARY INJUNCTION set for 7/11/2018 12:00 PM in Courtroom Two, 915 Lafayette Blvd., Bridgeport, CT before Judge Victor A. Bolden. (Perez, J.) (Entered: 07/10/2018)
45 NOTICE of Consolidation Signed by Clerk on 7/10/2018.(Perez, J.) (Entered: 07/10/2018)
46 OBJECTION re 17 MOTION for Temporary Restraining Order OR PRELIMINARY INJUNCTION filed by Alex Azar, L. Francis Cissna, Department of Homeland Security, Scott Lloyd, Kevin K. Mcaleenan, Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson B. Sessions, III, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Health and Human Services, U.S. Immigration & Customs Enforcement, Ronald D. Vitiello. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(McConaghy, Michelle) (Entered: 07/10/2018)
47 EXHIBIT D − Substituted Signed Declaration by Alex Azar, L. Francis Cissna, Department of Homeland Security, Scott Lloyd, Kevin K. Mcaleenan, Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson B. Sessions, III, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Health and Human Services, U.S. Immigration & Customs Enforcement, Ronald D. Vitiello re 17 MOTION for Temporary Restraining Order OR PRELIMINARY INJUNCTION. (McConaghy, Michelle) (Entered: 07/10/2018)
48 MOTION for Joinder by J. S. R.. (Lewis, Joanne) (Entered: 07/10/2018)
49 MOTION for Joinder by V. F. B.. (Lewis, Joanne) (Entered: 07/10/2018)
50 MOTION for Leave to File for Law Student Intern to Appear by J. S. R.. (Attachments: # 1 Appendix Certification of Law Student & Consent of Supervising Attorney, # 2 Appendix Petitioner's Authorization)(Wishnie, Michael) (Entered: 07/10/2018)
51 ORDER granting 50 Motion for Leave to File Law Student Appearance. Signed by Judge Victor A. Bolden on 7/11/2018. (McDonough, S.) (Entered: 07/11/2018)
52 Minute Entry for proceedings held before Judge Victor A. Bolden: Motion Hearing held on 7/11/2018 re 17 MOTION for Temporary Restraining Order OR PRELIMINARY INJUNCTION filed by J. S. R., 43 MOTION for Temporary Restraining Order filed by V. F. B. Total Time: 3 hours and 12 minutes (Court Reporter S. Montini.) (McDonough, S.) (Entered: 07/12/2018)
65 Witness List by V. F. B., J. S. R.. (Perez, J.) (Entered: 07/17/2018)
53 ORDER granting 48 Motion to add J.S.G. as next friend, in addition to Joshua Perry, for J.S.R. Signed by Judge Victor A. Bolden on 7/12/2018. (McDonough, S.) (Entered: 07/12/2018)
54 ORDER granting 49 Motion to add A.B.A., in addition to Joshua Perry, as next friend for V.F.B. Signed by Judge Victor A. Bolden on 7/12/2018. (McDonough, S.) (Entered: 07/12/2018)
55 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. In−person Status Conference set for 7/18/2018 at 11:00 AM in Courtroom Two, 915 Lafayette Blvd., Bridgeport, CT before Judge Victor A. Bolden. (McDonough, S.) (Entered:

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07/12/2018)
56 MOTION for Writ by J. S. R.. (Attachments: # 1 Affidavit Declaration of Dr)(Lewis, Joanne) (Entered: 07/12/2018)
57 ORDER granting in part and denying in part 43 Motion for TRO; granting in part and denying in part 17 Motion for TRO. Signed by Judge Victor A. Bolden on 7/13/2018. (McDonough, S.) (Entered: 07/13/2018)
58 ORDER: In light of the Court's Order, ECF No. 57, this 56 Motion for Writ is moot. Signed by Judge Victor A. Bolden on 7/13/2018. (McDonough, S.) (Entered: 07/13/2018)
59 ORDER for Writ of Habeas Corpus Ad Testificandum for J.S.R. Signed by Judge Victor A. Bolden on 7/13/2018. (McDonough, S.) (Entered: 07/13/2018)
60 ORDER for Writ of Habeas Corpus Ad Testificandum for J.S.G. Signed by Judge Victor A. Bolden on 7/13/2018. (McDonough, S.) (Entered: 07/13/2018)
61 ORDER for Writ of Habeas Corpus Ad Testificandum for A.B.A. Signed by Judge Victor A. Bolden on 7/13/2018. (McDonough, S.) (Entered: 07/13/2018)
62 ORDER for Writ of Habeas Corpus Ad Testificandum for V.F.B. Signed by Judge Victor A. Bolden on 7/13/2018. (McDonough, S.) (Entered: 07/13/2018)
63 NOTICE by Alex Azar, L. Francis Cissna, Department of Homeland Security, Scott Lloyd, Kevin K. Mcaleenan, Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson B. Sessions, III, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Health and Human Services, U.S. Immigration & Customs Enforcement, Ronald D. Vitiello (McConaghy, Michelle) (Entered: 07/16/2018)
64 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. Telephonic Status Conference set for 7/17/2018 at 1:30 PM before Judge Victor A. Bolden. Once all parties are on the line, please call Chambers at (203) 579−5562. (McDonough, S.) (Entered: 07/16/2018)
66 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. RESET FROM 9/18/2018 The call scheduled for 7/18/2018 at 1:30 p.m. is cancelled. (McDonough, S.) (Entered: 07/17/2018)
67 CORRECTED ORDER re 66 Calendar Entry. The date in the Court's Order, ECF No. 66, was incorrect. The call scheduled for this afternoon, 7/17/2018, at 1:30 p.m., is cancelled. Signed by Judge Victor A. Bolden on 7/17/2018. (McDonough, S.) (Entered: 07/17/2018)
68 NOTICE by V. F. B., J. S. R. re. July 18, 2018 Status Conference (Ahmad, Muneer) (Entered: 07/17/2018)
69 ORDER: the Court grants Plaintiffs' request to be relieved of the requirement to appear at the courthouse at 9:00 a.m. on July 18, before the status conference scheduled for 11:00 a.m., as previously ordered by the Court. See ECF Nos. 59−62. Signed by Judge Victor A. Bolden on 7/17/2018. (McDonough, S.) (Entered: 07/17/2018)
70 Minute Entry for proceedings held before Judge Victor A. Bolden: Status Conference held on 7/18/2018. Total Time: 0 hours and 19 minutes (Court Reporter S. Montini.) (McDonough, S.) (Entered: 07/18/2018)
71 Minute Entry for proceedings held before Judge Victor A. Bolden: Status Conference held on 7/18/2018. 19 minutes(Court Reporter S. Montini.) (Torres, K.) (Entered: 07/18/2018)

07/20/2018 07/26/2018 07/26/2018 07/26/2018
07/26/2018 08/09/2018 08/14/2018

72 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Status Conference set for 7/27/2018 at 10:00 AM in Courtroom Two, 915 Lafayette Blvd., Bridgeport, CT before Judge Victor A. Bolden.
Plaintiffs are directed to inform the Court by 12:00 p.m. on July 26, 2018, whether further proceedings on relief are necessary. (McDonough, S.) (Entered: 07/20/2018)
73 NOTICE by V. F. B., J. S. R. AND REQUEST FOR CONTINUANCE (Orihuela, Marisol) (Entered: 07/26/2018)
74 OBJECTION re 73 Notice (Other) filed by Alex Azar, L. Francis Cissna, Department of Homeland Security, Scott Lloyd, Kevin K. Mcaleenan, Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson B. Sessions, III, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Health and Human Services, U.S. Immigration & Customs Enforcement, Ronald D. Vitiello. (McConaghy, Michelle) (Entered: 07/26/2018)
75 ORDER: In light of the parties' respective filings, the hearing scheduled for July 27, 2018 at 10:00 a.m. is cancelled. Consistent with the Court's inherent authority to manage its docket with "a view toward the efficient and expedient resolution of cases," Dietz v. Bouldin, 136 S. Ct. 1885, 1892 (2016), the Court will hold a hearing on September 5, 2018 at 2:00 p.m. to address the issue of mootness raised by the Government. See, e.g., Objection to Plaintiffs' Motion for Continuance at 2, ECF No. 74 (arguing "that this case was now moot"). To the extent that the Government wishes to file a motion and memorandum of law on mootness, the Government shall do so by August 10, 2018. Plaintiffs shall respond to any filing by the Government by August 24, 2018. To the extent that the Government wishes to reply to any response submitted by the Plaintiffs, the Government shall file any reply by August 31, 2018. A calendar entry will follow. Signed by Judge Victor A. Bolden on 7/26/2018. (McDonough, S.) (Entered: 07/26/2018)
76 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. RESET FROM 7/27/2018 at 10:00 a.m., The hearing that had been scheduled for July 27, 2018 at 10:00 a.m. is cancelled.
The Court will hold a motion hearing on September 5, 2018 at 2:00 p.m. in Courtroom Two, 915 Lafayette Blvd., Bridgeport, CT before Judge Victor A. Bolden. (McDonough, S.) (Entered: 07/26/2018)
77 SCHEDULING ORDER. The Court sua sponte extends the Scheduling Order as follows: To the extent that the Government wishes to file a motion and memorandum of law on mootness, the Government shall do so by August 17, 2018. Plaintiffs shall respond to any filing by the Government by August 31, 2018. To the extent that the Government wishes to reply to any response submitted by the Plaintiffs, the Government shall file any reply by September 4, 2018. Consistent with the last Scheduling Order, the Court will hold a hearing on September 5, 2018 at 2:00 p.m., in Courtroom Two, 915 Lafayette Boulevard, Bridgeport, CT. Signed by Judge Victor A. Bolden on 8/9/2018. (McDonough, S.) (Entered: 08/09/2018)
78 SCHEDULING ORDER. The Court sua sponte extends the following deadlines: To the extent that the Government wishes to file a motion and memorandum of law on mootness, the Government shall do so by September 21, 2018. Plaintiffs shall respond to any filing by the Government by September 28, 2018. To the extent that the Government wishes to reply to any response submitted by the Plaintiffs, the Government shall file any reply by October 5, 2018. The Court will hold a hearing on October 11, 2018 at 3:00 p.m., in Courtroom Two, 915 Lafayette Boulevard, Bridgeport, CT. Signed by Judge Victor A. Bolden on 8/14/2018. (McDonough, S.) (Entered: 08/14/2018)

08/15/2018 08/29/2018 08/29/2018
11/07/2018

79 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. RESET FROM 9/5/2018 Status Conference set for 10/11/2018 03:00 PM in Courtroom Two, 915 Lafayette Blvd., Bridgeport, CT before Judge Victor A. Bolden (Perez, J.) (Entered: 08/15/2018)
80 STIPULATION of Dismissal of Case by Alex Azar, L. Francis Cissna, Department of Homeland Security, Scott Lloyd, Kevin K. Mcaleenan, Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson B. Sessions, III, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Health and Human Services, U.S. Immigration & Customs Enforcement, Ronald D. Vitiello. (McConaghy, Michelle) (Entered: 08/29/2018)
JUDICIAL PROCEEDINGS SURVEY − FOR COUNSEL ONLY: The following link to the confidential survey requires you to log into CM/ECF for SECURITY purposes. Once in CM/ECF you will be prompted for the case number. Although you are receiving this survey through CM/ECF, it is hosted on an independent website called SurveyMonkey. Once in SurveyMonkey, the survey is located in a secure account. The survey is not docketed and it is not sent directly to the judge. To ensure anonymity, completed surveys are held up to 90 days before they are sent to the judge for review. We hope you will take this opportunity to participate, please click on this link:
https://ecf.ctd.uscourts.gov/cgi−bin/Dispatch.pl?survey (Fazekas, J.) (Entered: 08/30/2018)
81 TRANSCRIPT of Proceedings: Type of Hearing: Status Conference. Held on 7/18/18 before Judge Victor Bolden. Court Reporter: Sharon Montini. IMPORTANT NOTICE − REDACTION OF TRANSCRIPTS: To remove personal identifier information from the transcript, a party must electronically file a Notice of Intent to Request Redaction with the Clerk's Office within seven (7) calendar days of this date. If no such Notice is filed, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available through PACER without redaction 90 days from today's date. The transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. The policy governing the redaction of personal information is located on the court website at www.ctd.uscourts.gov. Redaction Request due 11/28/2018. Redacted Transcript Deadline set for 12/8/2018. Release of Transcript Restriction set for 2/5/2019. (Montini, S.) (Entered: 11/07/2018)

 
 Case 3:18-cv-01106-VAB Document 1 Filed 07/02/18 Page 1 of 21

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

J.S.R., by and through his next friend, Joshua Perry,
Plaintiff-Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney General of the United States; DEPARTMENT OF HOMELAND SECURITY (“DHS”); KIRSTJEN NIELSEN, Secretary of DHS; U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); KEVIN K. MCALEENAN, Commissioner of CBP; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (“ICE”); RONALD D. VITIELLO, Acting Director of ICE; U.S. CITIZENSHIP AND IMMIGRATION SERVICES (“USCIS”); L. FRANCIS CISSNA, Director of USCIS; U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES (“HHS”); ALEX AZAR, Secretary of the Department of Health and Human Services; OFFICE OF REFUGEE RESETTLEMENT (“ORR”); and SCOTT LLOYD, Director of ORR,
Defendants-Respondents.

Civil Action No. _______
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF & PETITION FOR WRIT OF HABEAS CORPUS

Amit Jain, Law Graduate Aseem Mehta, Law Student Intern* Carolyn O’Connor, Law Student Intern * Hannah Schoen, Law Student Intern* Muneer I. Ahmad (ct28109) Marisol Orihuela† Michael J. Wishnie (ct27221) Jerome N. Frank Legal Svcs. Org. Yale Law School 127 Wall Street New Haven, CT 06511 203-432-4800 muneer.ahmad@ylsclinics.org marisol.orihuela@ylsclinics.org michael.wishnie @ylsclinics.org

Joanne Lewis (ct06541) Joshua Perry† Connecticut Legal Services, Inc. 16 Main Street New Britain, CT 06051 860-357-9302 jlewis@connlegalservices.org jperry@connlegalservices.org
* motion for law student appearance forthcoming † motion for D.Conn. admission forthcoming
Counsel for Plaintiff-Petitioner

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INTRODUCTION 1. J.S.R. is a nine-year-old boy who fled with his father from Honduras after J.S.R.’s grandparents were murdered and a body was left in the family’s backyard. Fearing for their lives, J.S.R. and his father sought refuge in this country. Defendants-Respondents (“Defendants”) detained J.S.R and his father near the southern border of the United States in June 2018. The federal government’s response to the plight of J.S.R. and his father was to hold them in freezing conditions near the border, separate the young child from his father while the child was sleeping, and refuse to provide J.S.R. accurate information about his father. The federal government has put two thousand miles between a frightened nine-year-old boy and the most important person in his life, causing J.S.R acute psychological harm and exposing him to the significant risk of longterm mental, emotional, and physical damage as a result of his trauma. 2. J.S.R. and his father, J.S.G., arrived in the United States soon after Defendants announced implementation of their “zero tolerance policy,” which subjects asylum seekers to prosecution for unlawful entry and forcibly separates parents from children, for the express purpose of deterring asylum seekers from coming to the United States. J.S.G. is a caring and dedicated father: J.S.R. sees him as his hero and protector against the dangers that drove him from the country of his birth. There is no basis to believe that J.S.R. has ever been subject to abuse and neglect by his father, J.S.G. 3. Upon information and belief, the government has taken no steps to reunite J.S.R. and his father. As a result, the initial trauma of government agents wresting a frightened nineyear-old child from his father has been compounded by their indefinite separation and prolonged detention. This has unnecessarily inflicted additional emotional harm on J.S.R. while frustrating
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his ability to pursue his legal claims, including asylum and the present action, without the opportunity for meaningful communication with his father.
4. The government’s continued detention of J.S.R., and its continued, forcible separation of J.S.R. from his father is unlawful, and it subjects J.S.R. to ongoing harm that cannot be remediated without releasing him from detention and reuniting him with his father.
JURISDICTION AND VENUE 5. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1346, 2201-2202, 2241, and Article I, clause 9 § 2 and Article III of the U.S. Constitution. 6. Venue is proper under 28 U.S.C § 1391 because Plaintiff J.S.R. is currently in custody of Defendants in Mystic, Connecticut and a substantial part of the events or omissions giving rise to the claims made herein occurred or are occurring in Connecticut.
PARTIES 7. Plaintiff J.S.R. is a nine-year old national of Honduras. He has been in the custody of the federal government for at least three weeks. J.S.R. brings this lawsuit through a next friend as a result of his incapacity due to his minor status, his trauma-related disability, his limited access to the courts while detained, his unfamiliarity with U.S. law, and his inability to seek advice and counsel from the most important person in his life – his father, J.S.R. – as a result of the government’s actions. 8. Joshua Perry is Deputy Director of Connecticut Legal Services (CLS), a nonprofit law firm that is dedicated to improving the lives of low-income people, including children and immigrants, by providing access to justice. CLS has established an attorney-client relationship with J.S.R. to assist him in obtaining relief from removal from the United States. Mr.
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Perry brings this suit as next friend and on behalf of J.S.R. in order to protect J.S.R.’s rights and out of dedication to J.S.R.’s expressed interest in reuniting with his father.
9. Defendant Jefferson B. Sessions III is the Attorney General of the United States and is sued in his official capacity. He has responsibility for the administration of the immigration laws pursuant to 8 U.S.C. § 1103, oversees the Executive Office of Immigration Review, and is empowered to grant relief from removal.
10. Defendant U.S. Department of Homeland Security (“DHS”) has responsibility for enforcing the immigration laws of the United States.
11. Defendant Kirstjen Nielsen is the Secretary of DHS and is sued in her official capacity. She directs each of the component agencies within DHS, including ICE. Defendant Nielsen is responsible for implementing U.S. immigration laws and policies, including policies related to family separation and family detention at the U.S. southern border.
12. Defendant U.S. Customs and Border Protection (“CBP”) is the sub-agency of DHS that is responsible for enforcement operations along the borders of the United States, including the southern border.
13. Defendant Kevin K. McAleenan is the Commissioner of CBP and is sued in his official capacity. He oversees the apprehension and detention of individuals, including asylum seekers, who enter the United States at or near the U.S. border.
14. Defendant U.S. Immigration and Customs Enforcement (“ICE”) is the sub-agency of DHS that is responsible for the detention and removal operations of DHS.
15. Defendant Ronald D. Vitiello is the Acting Director of ICE and is sued in his official capacity. He directs the nation’s immigration detention system and oversees the removal of families ordered deported at ICE detention facilities. Defendant Vitiello plays a critical role in
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setting detention policies that affect asylum seekers who are held in detention while they await the first steps of the asylum process.
16. Defendant U.S. Citizenship and Immigration Services (“USCIS”) is the subagency of DHS that, through its asylum officers, conducts interviews of certain individuals apprehended at or near the border to determine whether they have a credible fear of persecution and must be permitted to apply for asylum.
17. Defendant L. Francis Cissna is the Director of USCIS and is sued in his official capacity.
18. Defendant U.S. Department of Health and Human Services (“HHS”) is a department of the executive branch that is responsible for “unaccompanied” non-citizen minor children.
19. Alex Azar is the Secretary of HHS and is sued in his official capacity. 20. Defendant Office of Refugee Resettlement (“ORR”) is the component of HHS which provides placement and care for “unaccompanied” non-citizen minor children and holds legal custody of J.S.R. 21. Scott Lloyd is the director of ORR and is sued in his official capacity.
LEGAL AND FACTUAL FRAMEWORK OF FAMILY SEPARATION Arriving Families’ Right to Seek Asylum
22. United States law entitles non-citizens on American soil to seek asylum, without regard to how they arrive. 8 U.S.C. § 1158(a)(1). Since 1996, immigration law has also provided authority for “expedited removal,” or the removal of certain individuals from the United States without a removal hearing. Id. § 1225(b)(1)(A)(i).
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23. Even an individual subject to expedited removal, however, must receive a removal hearing if the person “indicates either an intention to apply for asylum . . . or a fear of persecution.” Id. Under such circumstances, an asylum officer evaluates whether the individual has a “credible fear” of persecution in their home country. Id. U.S.C. § 1225(b)(1)(A)(ii). If an asylum officer determines that there is a “significant possibility” that such an individual could prove eligibility for fear-based relief, id. § 1225(b)(1)(B)(v), then the asylum seeker is placed into regular removal proceedings. Id. § 1225(b)(1)(B)(ii).
The Government’s Policies Before “Zero Tolerance” 24. Prior to implementing a systematic policy of family separation in 2018, the government did not detain some families apprehended at the border at all, instead placing them in regular removal proceedings. For others, the government followed expedited removal procedures, and detained members of these families together. If Defendants found these family members to have a credible fear of persecution, they would release the family from detention. 25. When the government decides to detain children, it is subject to the Flores Settlement, which implements a “general policy favoring release” of minors. See Settlement Agreement, Flores v. Reno, No. CV-85-4544-RJK (C.D. Cal. Jan. 17, 1997), available at https://tinyurl.com/y9fxrbsp (hereinafter “Flores Settlement”). The Flores Settlement “unambiguously applies both to accompanied and unaccompanied minors” in DHS custody. Flores v. Lynch, 828 F.3d 898, 901 (9th Cir. 2016), and requires the government to “place each detained minor in the least restrictive setting appropriate to the minor’s age and special needs . . .” Flores Settlement ¶ 11. 26. Under the settlement, children must be released from detention within five days, or within twenty days in certain emergency circumstances, to a parent, legal guardian, adult
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relative, adult designated by a legal guardian, or (if none of these individuals are available) a licensed program willing to accept legal custody. Id. ¶¶ 12, 14.
27. Starting in January 2016, the government piloted the Family Case Management Program (“FCMP”) as an “alternative to detention . . . initiative that use[d] qualified case managers to promote participant compliance with their immigration obligations” through a wraparound service model. The ICE Office of Inspector General determined that the FCMP was 99 percent effective at ensuring participant attendance for ICE check-ins and appointments, and 100 percent effective at ensuring attendance for court hearings. U.S. Immigration and Customs Enforcement’s Award of the Family Case Management Program Contract (Redacted), DHS Office of Inspector General, at 5 (OIG-18-22) (Nov. 30, 2017), available at https://tinyurl.com/y96l9t8y. Nevertheless, the government closed the program in June 2017.
The Government’s “Zero Tolerance” Family Separation Policy 28. In early 2017, DHS contemplated changing its policy on asylum-seeking families by implementing family separation to deter migration from Central America into the United States. In March 2017, then-DHS Secretary John Kelly stated that he was considering separating arriving children from their parents “in order to deter more movement” into the United States. 29. On May 7, 2018, Defendant Sessions announced a “zero tolerance policy” of coercive family separation in order to deter asylum seekers and other migrants from crossing into the United States. Defendant Sessions explained, “If you cross this border unlawfully, then we will prosecute you. It’s that simple. . . . If you are smuggling a child, then we will prosecute you and that child will be separated from you . . . .” Remarks Discussing the Immigration Enforcement Actions of the Trump Administration (May 7, 2018), available at https://tinyurl.com/ybqbfubb.
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30. The government applied its “zero-tolerance policy” against parents who crossed the border with their own children seeking asylum, including J.S.R. Defendants have forcibly separated over 2,300 children from their parents while crossing the border, some only months old.
31. Children forcibly separated from their parents were transferred to the custody of the Office of Refugee Resettlement (“ORR”), a component of HHS, and sent to shelters and temporary housing. ORR deems these children as “unaccompanied minors.”
32. Under ORR policies, a child will be released from ORR custody only after ORR undertakes an onerous and lengthy procedure to determine that a potential custodian, or “sponsor,” is suitable for providing for the child’s physical and mental well-being.
33. In the face of widespread public condemnation of coerced family separation as a grave violation of American values, President Trump purportedly retracted the policy on June 20, 2018. Exec. Order, Affording Congress an Opportunity to Address Family Separation, 2018 WL 3046068 (June 20, 2018) (hereinafter “EO”). The EO continued the policy of initiating criminal proceedings for all individuals who crossed the border without authorization; however, in place of systematic separation of families, the EO called for indefinite detention of families in camps and makeshift facilities. Id.
The Government’s Ongoing Failure to Reunify Families 34. The EO did not include any provisions to reunite families that had been separated at the border, nor did it purport to remediate the trauma or other harms caused by family separation. 35. DHS has not disclosed any process for reunification of families prior to removal, including during the pendency of asylum claims, which may last for months. In litigation in the
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U.S. District Court for the Southern District of California, Defendants did not dispute that they had “no plans or procedures to reunify the parent with the child other than arranging for them to be deported together after the parent’s immigration case is concluded.” Ms. L. v. ICE, __ F. Supp. 3d __, 2018 WL 3129486, at *5 (S.D. Cal. June 26, 2018) (internal quotations omitted). The court found that “under the present system migrant children are not accounted for with the same efficiency and accuracy as property.” Id. at *7 (emphasis in original).
The Racial Animus Underlying Coerced Family Separation 36. The Trump Administration adopted its policy of coerced family separation as a central part of an anti-immigrant agenda, motivated primarily by racial animus against individuals of Hispanic origin and individuals from Central America. 37. On the first day of his presidential campaign, Candidate Trump stated: “When Mexico sends its people, they’re not sending their best. . . . They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.” Donald Trump Announces a Presidential Bid, WASH. POST (June 16, 2015), available at https://tinyurl.com/gl6ofm5. 38. Since taking office, President Trump has consistently pursued immigration policies motivated by racial animus against non-European immigrants. In summer 2017, he stated that the 15,000 Haitians admitted to the United States “all have AIDS,” and expressed concern that Nigerian nationals in the United States would never “go back to their huts” in Africa. Aaron Blake, Trump’s ‘shithole’ comment about Haiti lends credence to report he said Haitians ‘all have AIDS’, WASH. POST (Jan. 11, 2018), available at https://tinyurl.com/ybspu5qa.
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39. In January 2018, President Trump complained about protections for individuals from specific Central American and African countries, asking why the United States was admitting “all these people from shithole countries,” as opposed to countries like Norway. Id. In May 2018, President Trump characterized certain unauthorized migrants as “animals.” Jamelle Bouie, The “Animal” Debate is Over, SLATE, June 19, 2018, https://tinyurl.com/yckbshah. The next month, defending his coerced family separation policy, the President alleged that families crossing the border with their children “could be murderers and thieves and so much else,” and warned that “[t]he United States will not be a migrant camp. . . .” Id.
40. The Administration’s shifting race-neutral explanations for coerced family separation are pretextual. President Trump falsely asserted that family separation was required under an unnamed law, but he unilaterally ended the policy through an executive order two days later. DHS Secretary Nielsen claimed that the policy was necessary due to arriving adults and children fraudulently claiming to be family units, but less than one percent of families apprehended at the border made such fraudulent claims. Linda Qiu, Fact-Checking the Trump Administration’s Case for Child Separation at the Border, N.Y. TIMES (June 19, 2018), available at https://tinyurl.com/yddv5oef. And although President Trump falsely asserted that 80 percent of individuals who were released pending immigration hearings failed to appear, most such individuals do in fact appear for their immigration hearings. Noah Bierman, Sarah D. Wire, & Eli Stokols, Trump Orders End to His Family Separation Policy at the Border, but Relief Could Be Temporary, L.A. TIMES (June 20, 2018), available at https://tinyurl.com/yaq2a2hg. // // //
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FACTUAL ALLEGATIONS 41. J.S.R. and his father, J.S.G. came to the United States in or around June 2018, fearing for their lives if they stayed in Honduras. They traveled for approximately two months, often by foot, in order to seek asylum in the United States. 42. Shortly after J.S.R. and J.S.G. entered the U.S., federal immigration officials apprehended them near the southern border and detained them. They have both been detained by the federal government since then. 43. Upon information and belief, J.S.G. expressed a fear to return to Honduras to a federal immigration official. 44. Defendants initially detained J.S.G. and J.S.R. together, first at a detention facility that J.S.R. knows as the “hielera,” or “freezer” in Spanish. During this time, J.S.R. saw his father crying and shaking. The freezing temperatures and his father’s emotional state caused J.S.R. significant distress. 45. After holding them at the “hielera,” Defendants transferred J.S.G. and J.S.R. to an immigration detention center in Texas. 46. One day in early-to-mid June, while J.S.R. was sleeping, federal agents took his father away from him. Defendants brought J.S.R. into an area with other parents and children, where he thought he would be reunited with his father. He observed other children being reunited, but his father was not there. Since J.S.R. awoke that day, J.S.R. has not seen his father. 47. Defendants are currently detaining J.S.G. over 2,000 miles from J.S.R., at the Port Isabel Service Detention Center in Los Fresnos, Texas. 48. Left alone, J.S.R. asked over and over about his father. In response, federal agents have variously refused to disclose information about his father, told him inaccurately that his
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father was just doing paperwork and would return soon, and claimed that they did not know why he was not with his father.
49. After Defendants took J.S.R. away from his father, they kept J.S.R. in cages with other young children for approximately four days. The location in which J.S.R. was detained had no windows. During this time, J.S.R. suffered significant harm, constantly crying for his father, witnessing other young children cry, and experiencing enormous confusion over his father’s absence and his own detention. J.S.R. did not understand why he was separated from his father, when he would see him again, or whether he was at risk of being returned to Honduras, which he associates with the risk of violence and death.
50. Defendants eventually transferred J.S.R. from ICE custody to the custody of the ORR in mid-June 2018. When J.S.R. was informed he would be transferred, federal officials provided him conflicting information. One immigration official stated that he was going far away from his father and would not be able to see his father, while another stated that he would soon be close to his father and be able to see him often.
51. On or around June 16, 2018, ORR placed J.S.R. with Noank Community Support Services, Inc., a non-profit agency based in Groton, Connecticut that contracts to house children in custody of the federal government. Noank Community Support Services receives federal funding as a result of its contract with ORR, but does not offer legal representation. J.S.R. has been held in ORR custody at Noank Community Support Services since on or around June 16.
52. Defendants’ actions in separating J.S.R. from his father, together with Defendants’ other actions and failures to act, have caused significant and immediate mental and emotional harm to J.S.R., and threaten even greater long-term harm.
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53. On information and belief, J.S.R. has been exposed to multiple significant traumatic events throughout his young life – from grinding poverty to destruction of his home in a hurricane to seeing the executed bodies of his grandparents. In the face of this trauma, his father has been his primary caregiver and source of protection and strength. To an even greater extent than other children his age, J.S.R. relies on the love and support of his father to help him survive a terrifying world.
54. J.S.R. is suffering deeply as a result of result of Defendants’ actions. Since Defendants separated him from his father, J.S.R has begun exhibiting severe and debilitating symptoms of acute trauma. He manifests numerous symptoms of Post-Traumatic Stress Disorder (PTSD), and on information and belief, suffers from PTSD. He cries often, and worries constantly about his father. He does not sleep at night. He is deeply depressed. He has trouble concentrating or communicating, and cannot bring himself to trust others.
55. Defendants’ actions are not only causing short-term trauma but also threaten significant long-term damage to J.S.R. Childhood trauma and enforced separation from loved ones carries a dramatically increased risk of long-term psychiatric illness, including major depressive disorder, and anxiety disorders. Children who have suffered from trauma are also at significantly increased risk of physical illness.
56. J.S.R. has expressed to CLS his desire to be reunited with his father and his fear if returned to Honduras.
57. On information and belief, J.S.R. has no relatives in Connecticut and, since his detention at Noank Community Support Services, he has been able to speak with his father only once. J.S.R. does not know whether Defendants will reunite him with his father or when he can
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see his father next. During the one phone call he has been permitted with his father, J.S.R. was unable to discuss with him his legal rights, including the issues presented in the present action.
58. The government does not have any legitimate interest in separating J.S.R. from his father. There is no allegation that J.S.G. is an unfit parent to J.S.R.
59. J.S.R. requests an order that Defendants immediately release him into the custody of his father, or to such other suitable adult as J.S.G. may direct.
CAUSES OF ACTION COUNT I
(Violation of Substantive Due Process) 60. All of the foregoing allegations are repeated and realleged as though fully set forth herein. 61. The Due Process Clause of the Fifth Amendment applies to all “persons” on United States soil and thus applies to J.S.R. 62. J.S.R. has a liberty interest under the Due Process Clause in remaining together with his father, J.S.G., as a family. 63. The separation of J.S.R. from his father violates substantive due process because it furthers no legitimate purpose, much less a compelling governmental interest.
COUNT II (Violation of Procedural Due Process) 64. All of the foregoing allegations are repeated and realleged as though fully set forth herein. 65. The Due Process Clause of the Fifth Amendment applies to all “persons” on United States soil and thus applies to J.S.R.
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66. J.S.R. has a liberty interest under the Due Process Clause in remaining together with his father, J.S.G., as a family.
67. The separation of J.S.R. from his father violates procedural due process because it deprived J.S.R. of his protected liberty interest without notice or any opportunity to be heard.
COUNT III (Violation of Section 504 of the Rehabilitation Act) 68. All of the foregoing allegations are repeated and realleged as though fully set forth herein. 69. Section 504 of the Rehabilitation Act of 1973 (“Section 504”) provides that “no otherwise qualified individual with a disability . . . shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.” 29 U.S.C. § 794(a). 70. Disability is defined to include “(A) a physical or mental impairment that substantially limits one or more major life activities . . .” 29 U.S.C. § 705(20)(B); 42 U.S.C. § 12102. 71. J.S.R. suffers from the effects of chronic trauma and acute PTSD. The effects of chronic trauma cause an impairment that limits J.S.R.’s ability to concentrate, think, and communicate. J.S.R. thus has a physical or mental impairment that substantially limits one or more major life activities. 72. Defendants’ separation of J.S.R. from his father and decision to detain J.S.R thousands of miles away exacerbate J.S.R.’s existing limitations in communication, including when relating his past trauma. As a result, J.S.R. faces barriers in presenting his claims and is being denied equal and equally effective access to the asylum process on the basis of disability.
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73. J.S.R. is “otherwise qualified” to participate in any removal proceedings currently pending against him and in affirmative asylum proceedings, as well as in the programs and activities of his temporary placement by ORR in a children’s shelter.
74. The children’s shelter at which J.S.R. is currently detained by ORR has received substantial federal financial assistance. Immigration proceedings, including asylum adjudications before USCIS and removal proceedings prosecuted by ICE before an Immigration Judge, are federal programs.
75. The regulations implementing Section 504 prohibit entities receiving federal financial assistance from utilizing “criteria or methods of administration (i) that have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap, (ii) that have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the recipient’s program or activity with respect to handicapped persons.” 34 C.F.R. § 104.4(b)(4).
76. In separating J.S.R. from his father and detaining son and parent thousands of miles apart, the Defendants have exacerbated J.S.R.’s disabilities, interfered with his ability to meaningfully participate in immigration proceedings, excluded him from the protections afforded by the asylum statutes, and discriminated against J.S.R. on the basis of his disability.
77. Defendants have a legal duty to provide reasonable accommodations to J.S.R. to ensure his meaningful access to the federal program of asylum and removal proceedings.
78. J.S.R. has provided Defendants with notice of his disabilities and requested reasonable accommodations no later than service of this pleading. Defendants have not granted these requests.
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79. There are effective reasonable accommodations that Defendants could implement. In particular, Defendants could immediately cease the forced separation of J.S.R. from his father. Defendants have failed to implement any reasonable accommodations.
80. The reasonable accommodation requested by J.S.R. would not be unduly burdensome nor would it require a fundamental alteration in the program. The burden of showing that any such relief or accommodation would require a fundamental alteration or pose an undue burden rests with Defendants. 6 C.F.R. § 15.50(a)(2).
81. By forcibly separating J.S.R. from his father, Defendants have denied J.S.R. equal and effective access to a federal program.
82. As a result of this discrimination and failure to reasonably accommodate J.S.R.’s disabilities, and solely based on his disability, J.S.R. cannot receive the benefits of the asylum process or the placement by Defendants in a children’s shelter in Connecticut.
COUNT IV (Violation of Administrative Procedure Act) 83. All of the foregoing allegations are repeated and realleged as though fully set forth herein. 84. The Administrative Procedure Act (“APA”) prohibits agency action that is arbitrary and capricious. 85. The forcible separation of J.S.R. from his father and the decision to detain them thousands of miles from one another constitutes final agency action under the APA. 86. Defendants’ separation of J.S.R. from his father without a legitimate justification is arbitrary and capricious and accordingly violates the APA. 5 U.S.C. § 706.
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87. ORR’s decision to apply its policies and procedures for “sponsoring” an “unaccompanied alien child” to the parents who were forcibly separated from their children by the U.S. government is also a final agency action for purposes of the APA.
88. In light of ORR’s mission to “promptly place” minors into “the least restrictive setting that is in the best interest of the child,” ORR’s insistence that J.S.R. remain detained and separated from his father is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.
COUNT V (Violation of Equal Protection Guarantee) 89. All of the foregoing allegations are repeated and realleged as though fully set forth herein. 90. The Fifth Amendment contains an implicit guarantee of equal protection that invalidates any official action that in part reflects a racially discriminatory intent or purpose. Classifications based on race or national origin receive exacting scrutiny, and even facially neutral policies and practices will be held unconstitutional when they reflect a pattern unexplainable on grounds other than race or national origin. 91. Defendants’ decisions to separate families from Central and South America arriving at the southern border seeking asylum, and to isolate children in detention facilities separate from their parents, are unconstitutional because they were motivated, at least in part, by intentional discrimination based on race, ethnicity, and/or national origin. This intentional discrimination includes bias against immigrants perceived to come from Central or South American countries. 92. As a result of these decisions, including the decisions that have caused the separation of J.S.R. from his father, J.S.R. has been and is being denied equal protection.
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COUNT VI (Declaratory Judgment Act) 93. All of the foregoing allegations are repeated and realleged as though fully set forth herein. 94. The Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, provides that “[i]n a case of actual controversy within its jurisdiction . . . any court of the United States . . . may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a). 95. There is an actual controversy between the parties because Defendants have refused to immediately release J.S.R. The Court should exercise its authority under the Declaratory Judgment Act to declare that Defendants have no basis to refuse to release J.S.R. and to order Defendants to immediately release J.S.R., into the custody of his father or another suitable relative as directed by J.S.G.
PRAYER FOR RELIEF WHEEFORE, Plaintiff respectfully requests that the Court enter a judgment against Defendants and award the following relief: A. Declare that Defendants have no basis to hold or maintain custody over J.S.R.; B. Declare that Defendants’ failure to reasonably accommodate J.S.R.’s disabilities, or their failure to provide J.S.R. equal and effective access to a federal program, violates Section 504 of the Rehabilitation Act of 1973; C. Declare that Defendants must immediately release J.S.R. into the custody of his father, or to such other suitable adult as J.S.G. may direct; D. Order Defendants to produce J.S.G. in the District of Connecticut, on a writ of habeas corpus ad testificandum or otherwise, so that he may visit in person with his son J.S.R so
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as to advise this Court whether J.S.G. requests his son’s immediate release to another suitable relative or continued detention, together with J.S.G., for as long as Defendants detain them both;
E. Preliminarily and permanently enjoin Defendants from continuing to separate J.S.R. from his father, J.S.G. and from refusing to release J.S.R. into the custody of his father, or to such other suitable adult as J.S.G. may direct;
F. Grant a writ of Habeas Corpus requiring Defendants to release J.S.R. immediately to the custody of his father or such other suitable relative as J.S.G. may direct, or issue an order directing the Defendants to show cause within three days why the writ should not be granted, pursuant to 28 U.S.C. § 2243;
G. Require Defendants to pay Plaintiff’s reasonable attorneys’ fees and costs; and H. Grant all other relief that is just and proper.

Dated: July 2, 2018 New Haven, Connecticut
Respectfully submitted,
/s/ Michael Wishnie
Amit Jain, Law Graduate Aseem Mehta, Law Student Intern* Carolyn O’Connor, Law Student Intern * Hannah Schoen, Law Student Intern* Muneer I. Ahmad (ct28109) Marisol Orihuela† Michael J. Wishnie (ct27221) Jerome N. Frank Legal Svcs. Org. Yale Law School** 127 Wall Street New Haven, CT 06511 203-432-4800 muneer.ahmad@ylsclinics.org marisol.orihuela@ylsclinics.org michael.wishnie@ylsclinics.org

Joanne Lewis (ct06541) Joshua Perry† Connecticut Legal Services, Inc. 16 Main Street New Britain, CT 06051 860-357-9302 jlewis@connlegalservices.org jperry@connlegalservices.org
Counsel for Plaintiff-Petitioner

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Case 3:18-cv-01106-VAB Document 1 Filed 07/02/18 Page 21 of 21 * Motion for law student appearance forthcoming. † Application for admission forthcoming. ** This complaint and petition has been prepared by a program affiliated with Yale Law School, but does not purport to present the school’s institutional views, if any.
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 Case 3:18-cv-01106-VAB Document 57 Filed 07/13/18 Page 1 of 23

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

J.S.R., by and through his next friends J.S.G. and Joshua Perry, and V.F.B., by and through her next friends A.B.A. and Joshua Perry,
Plaintiffs,
v.
JEFFERSON B. SESSIONS, III, et al.,
Defendants.

No. 3:18-cv-01106-VAB

RULING AND ORDER ON MOTION FOR A PRELIMINARY INJUNCTION On July 5, 2018, J.S.R. and V.F.B. (“Plaintiffs”), two children, who were separated from their parents after crossing this country’s southern border, filed a motion for preliminary injunction against numerous federal government officials and entities1 (collectively “Defendants” or the “Government”), seeking an Order that would “(1) enjoin[] Defendants from continuing to detain Plaintiffs J.S.R. or V.F.B., maintaining their separation from their parents, or delaying release to suitable sponsors; and (2) after parent and child confer, order[] Defendants to release J.S.R. and V.F.B. by July 13, 2018 to a suitable sponsor or to reunite with their respective parents, as directed by the Plaintiffs.” Mot. for TRO at 1, ECF No. 17; Mot. for TRO

1 The Defendants are: Jefferson B. Sessions III, Attorney General of the United States; Department of Homeland Security (“DHS”); Kirstjen Nielsen, Secretary of DHS; U.S. Customs and Border Protection (“CBP”); Kevin K. McAleenan, Commissioner of CBP; U.S. Immigration and Customs Enforcement (“ICE”); Ronald D. Vitiello, Acting Director of ICE; U.S. Citizenship and Immigration Services (“USCIS”); L. Francis Cissna, Director of USCIS; U.S. Department of Health and Human Services (“HHS”); Alex Azar, Secretary of the Department of Health and Human Services; Office of Refugee Resettlement (“ORR”); and Scott Lloyd, Director of ORR. Compl., ECF No. 1.

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at 1, ECF No. 43. Defendants opposed the motion. ECF No. 46. The Court held a hearing on July 11, 2018. ECF No. 52.
For the following reasons, the motion for a preliminary injunction is GRANTED IN PART AND DENIED IN PART.
Recognizing, as all parties have, that the constitutional rights of J.S.R. and V.F.B. have been violated, and that irreparable harm has occurred as a result, the motion for a preliminary injunction is GRANTED and relief directed towards the effects of the constitutional violation suffered by these minor children, namely trauma or more precisely, Post-Traumatic Stress Disorder (“PTSD”), shall be provided.
At the upcoming hearing on Wednesday, July 18, 2018 at 11:00 a.m., each party shall present a plan for addressing the children’s PTSD not only up to and including family reunification, but also after it. Their respective parents, J.S.G. and A.B.A., are ordered to be at this hearing and the Court therefore will issue writs of habeas corpus ad testificandum to ensure their availability for testimony, to the extent warranted.
To the extent that J.S.R. and V.F.B. seek immediate reunification with their respective parents, the motion for a preliminary injunction is DENIED. As further discussed below, such relief is being addressed by another court. Indeed, these parents are class members and therefore parties in that other case and any such relief should be obtained in and through that proceeding. I. FACTUAL AND PROCEDURAL BACKGROUND
A. Facts2 Dr. Andrés Martin, M.D., M.P.H., a child psychiatrist with “more than twenty years of experience interviewing, assessing, and treating vulnerable children, including survivors of
2 The facts are based on the parties’ written submissions, as well as testimony and oral argument at the July 11th preliminary injunction hearing.
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trauma,” testified before the Court on July 11th. See Decl. of Andrés Martin (“Martin Decl.”), Mot. for TRO, ECF No. 17-5 (listing numerous credentials and publications). Dr. Martin, a professor of child psychiatry at the Child Study Center at Yale University School of Medicine, is also the Medical Director of the children’s Psychiatric Inpatient Service at Yale-New Haven Children’s Hospital, a sixteen-bed in-patient unit for children under age fourteen with serious psychopathology. The Court found him to be qualified as an expert in child psychiatry.
Dr. Martin and a team of child psychologists interviewed J.S.R. and V.F.B. in Spanish on July 1, 2018. Using two standardized instruments, they diagnosed both children with posttraumatic stress disorder (“PTSD”). The following facts are based on Dr. Martin’s testimony and other information submitted by the parties. No other witnesses were called at the hearing, although the Court considered the various affidavits and other documents submitted by the parties.
1. J.S.R. Dr. Martin testified that J.S.R., a nine-year-old boy, fled with his father from Honduras after his grandparents were murdered and the body of a family friend was left in his backyard. While in Honduras, J.S.R. had witnessed gang violence, including witnessing his grandmother dead, with her body tossed in a river and her neck split open. He also saw the dead body of someone he knew from his neighborhood dropped in his backyard. That second murder was blamed on his father by gang members who had made repeated threats to his father. Dr. Martin reported that, as far as J.S.R. knew, his father was being framed for the murder. J.S.R. has a strong and loving bond and relationship with his father, whom J.S.R. identifies as the key protector and role model in his life. While the two were traveling, his father would find work so that he could bring home food for J.S.R., and J.S.R. reported to Dr. Martin
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that there would be times when his father did not eat so that J.S.R. could eat. Dr. Martin explained that the trip from Honduras to Texas was not itself a particularly traumatic event for J.S.R.; it was long, arduous, hot, and there was hunger, but it was not itself traumatic.
J.S.R. and his father arrived in Hidalgo, Texas, and were confined in freezing conditions—J.S.R. described being held in an “ice box” or “freezer”—and were eventually transferred to an immigration detention center. J.S.R. described to Dr. Martin being puzzled and surprised by the last time that he saw his father. He explained being told that his father was going to sign some paperwork and that he would be right back, but he never returned.
According to Dr. Martin’s testimony, J.S.R. experienced being kept in a windowless cage with other young children for approximately four days while he was being transferred to the custody of the Office of Refugee Resettlement (“ORR”). He is now with Noank Community Support Services, Inc. (“Noank”), in Groton, Connecticut. His father is now located at a detention center in Texas. Before the filing of this lawsuit, J.S.R. had spoken with his father two times over the three weeks at Noank.
Dr. Martin reported that J.S.R. does not sleep well, does not trust adults, and is depressed and tearful. He is terrified of the prospect of returning to Honduras, because of his fear of gang violence there and the harm that could befall his father or his family.
Dr. Martin successfully employed two standardized instruments commonly used for a diagnosis of PTSD with J.S.R. The first, the trauma health questionnaire (“THQ”), is a list of a wide array of potentially traumatic events. J.S.R. scored 14 out of a total of 23 points on that scale. The second, the childhood post-traumatic stress symptom scale, quantifies the symptoms of PTSD and has a maximum score of 51, with a score of 15 or higher qualifying a child for a diagnosis of PTSD. According to Dr. Martin, J.S.R. scored 38, which Dr. Martin described as an
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extraordinarily high score. Dr. Martin testified that J.S.R. has a full-blown acute PTSD symptomatology, on top of a chronic, traumatic background, resulting in a more pronounced trauma.
2. V.F.B. According to Dr. Martin, V.F.B., a fourteen-year-old girl, fled with her mother from El Salvador after her step-father was killed by a gang. They entered the United States mid-May 2018, and reportedly were held in freezing conditions near the border while they awaited removal proceedings. Dr. Martin observed that V.F.B. has a close-knit relationship with her mother. She has learned crafting skills from her mother, and they have survived together through the murder of V.F.B.’s step-father and an arduous trek from El Salvador to Texas. Dr. Martin explained that, like J.S.R.’s journey, V.F.B.’s trip itself was not especially traumatic; the separation from her mother, however, did result in considerable trauma. One day at the detention center, V.F.B. went to take a shower. When she returned, her mother was gone. On May 16, 2018, the Government transferred V.F.B. to ORR custody and detained her in Noank. Her mother is in a detention center in Texas. During the six weeks preceding this litigation, V.F.B. had spoken with her mother once. She has since had more contact. On July 1, 2018, Dr. Martin’s team interviewed V.F.B. and found her affect to be blunt and flat. Uncomfortable talking about the material, she would hide her face behind her arm or shy away from the interviewer. During the interview, she cried often. The team attempted to apply the same two standardized instruments with V.F.B. On the childhood post-traumatic stress symptom scale, V.F.B. scored 21 out of 51. A score of 15 or
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above is considered consistent with PTSD. The team had more difficulty using the trauma health questionnaire because V.F.B. had difficulty answering many questions and often avoided them. Dr. Martin considered her so distressed that she did not understand certain simple concepts and therefore could not answer the questions coherently.
Dr. Martin expressed grave concern for the children if they are not reunited with their families, and he testified that there likely will be both short-term and long-term physical and mental health consequences for the children. He explained that symptoms of trauma, including sleeplessness, depression, anxiety, tearfulness, and hopelessness, will not remit on their own, and that the children are at risk for mental health consequences, including higher rates of depression, anxiety, symptoms of PTSD, substance abuse disorders, and more. They are also at a higher risk of physical conditions, such as cardio-vascular disease, diabetes, and even cancer.
Dr. Martin recommended that the most important remedy for both children would be to take away the traumatic stressor, J.S.R.’s separation from his father and V.F.B.’s separation from her mother. Dr. Martin also recommended that they be reunified in a non-stressful environment, where they could have freedom of movement, space, safety, and access to schools. He also recommended that the children have ongoing trauma-informed psychotherapy and care. He expressed that the timing of the reunification mattered: that the children had already been separated from their parents too long, and that every day adds to the gravity of their situation.
B. Procedural History On July 2, 2018, J.S.R. and V.F.B. each filed Complaints and petitions for habeas corpus. Compl., ECF No. 1. Each plaintiff also filed a motion for a hearing. ECF No. 8. On July 3, 2018, the Court granted the motion, ECF No. 9, and held a telephonic status conference. ECF No. 12.
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After the conference, the Court issued a scheduling order that set a briefing schedule and a date for a hearing on an anticipated motion for a preliminary injunction. ECF No. 13.
On July 5, 2018, J.S.R. and V.F.B. each filed a motion for a temporary restraining order or a preliminary injunction. ECF No. 17; ECF No. 43. That same day, J.S.R. and V.F.B. each filed a motion for a writ of habeas corpus ad testificandum, seeking to compel the Government to produce J.S.R., V.F.B., and their parents at the July 11th hearing. ECF No. 18.
The Court granted in part and denied in part the motion for a writ of habeas corpus ad testificandum. Order on Motion for Writ, ECF No. 27; Supplemental Order on Motion for Writ, ECF No. 37. The Court denied the motion to command the in-person appearance of J.S.R.’s father and V.F.B.’s mother on July 11th. Order on Motion for Writ at 2. The Court required, however, that the Government make appropriate accommodations to ensure that the parents could speak with the children on July 9th and July 10th, and so that the parents could appear at the July 11th hearing through a videoconference. Id. at 2, 8. The Court also commanded the presence of J.S.R. and V.F.B. in person at the hearing. Supp. Order on Motion for Writ at 2.
The Court also noted that the Government is purportedly in the process of complying with an Order from the Southern District of California, which, as relevant here, requires United States Immigration and Customs Enforcement (“I.C.E.”) to, “[u]nless there is a determination that the parent is unfit or presents a danger to the child, or the parent affirmatively, knowingly, and voluntarily declines to be reunited with the child . . . reunify all Class Members [i.e., parents] with their minor children age five (5) and over within thirty (30) days of the entry of this Order.” Order on Motion for Writ at 3–4 (citing Ms. L. v. U.S. Immigration and Customs Enforcement (“I.C.E.”), No. 18CV0428 DMS (MDD), 2018 WL 3129486, at *1 (S.D. Cal. June 26, 2018) (the “California Order”)). The Order applies to the following class: “All adult parents who enter
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the United States at or between designated ports of entry who (1) have been, are, or will be detained in immigration custody by [the United States Department of Homeland Security (‘DHS’)] and (2) have a minor child who is or will be separated from them by DHS and detained in the [Office of Refugee Resettlement (‘ORR’)], ORR foster care, or DHS custody absent a determination that the parent is unfit or presents a danger to the child.” Ms. L., 2018 WL 3129466, at *3 n.5.
The Court ordered the Government to facilitate communication between J.S.R., V.F.B., their counsel, and their parents, on Monday, July 9th, Tuesday, July 10th, and Wednesday, July 11th. Order on Motion for Writ at 7. The Court also stated that, if it denied J.S.R.’s and V.F.B.’s motions for preliminary injunctions, but the Government did not comply with the California Order by July 26, 2018, the Court would hold another hearing on July 27, 2018, at 10:00 a.m., and a writ of habeas corpus ad testificandum would issue and the Government would be required to make arrangements to transport J.S.R.’s father and V.F.B.’s mother to that hearing. Id. at 8.
The Court held another telephonic status conference on July 9, 2018. ECF No. 32. Plaintiffs orally moved to consolidate the two cases, J.S.R. v. Sessions, No. 3:18-cv-1106, and V.F.B. v. Sessions, No. 3:18-cv-1110. ECF No. 33. The Court granted the motion and consolidated the cases into J.S.R and V.F.B. v. Sessions, No. 3:18-cv-1106. ECF No. 35.
Plaintiffs also filed motions for J.S.R.’s father, J.S.G., and V.F.B.’s mother, A.B.A., respectively, to appear as each child’s next friend. ECF Nos. 48, 49.
On July 11, 2018, the Court held a hearing on the motion for a preliminary injunction. The parents appeared through video teleconference, and the Court granted Plaintiffs’ motions to add each parent, in addition to Joshua Perry, as each child’s next friend. ECF Nos. 53, 54.3
3 Before their parents were added as their next friends, the children were represented by and through their next friend, Joshua Perry, who is the Deputy Director of Connecticut Legal Services. See ECF No. 18-4. On July 9, 2018,
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II. STANDARD OF REVIEW
The Second Circuit applies similar standards for temporary restraining orders and
preliminary injunctions, “and district courts have assumed them to be the same.” See Foley v.
State Elections Enforcement Comm’n, No. 3:10CV1091 (SRU) (D. Conn. July 16, 2010), 2010
WL 2836722, at *3 (quoting Allied Office Supplies, Inc. v. Lewandowski, 261 F. Supp. 107, 108
n.2 (D. Conn. 2005)). Preliminary injunctive relief is an extraordinary remedy and is never
awarded as a matter of right. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008).
“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on
the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the
balance of equities tips in his favor, and that an injunction is in the public interest.” New York
Progress and Prot. PAC v. Walsh, 733 F.3d 483, 486 (2d Cir. 2013) (quoting Winter, 555 U.S. at
20); see also Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir. 1996) (“In most cases, a party seeking
to obtain a preliminary injunction must establish that it will suffer irreparable harm in the
absence of an injunction and demonstrate either (1) ‘a likelihood of success on the merits’ or (2)
‘sufficiently serious questions going to the merits to make them a fair ground for litigation and a
the Court issued an Order requesting that Plaintiffs more fully address Mr. Perry’s status as the children’s next friend. ECF No. 36; see also Fed. R. Civ. P. 17(c)(2) (providing that a minor “who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem”); Whitmore v. Arkansas, 495 U.S. 149, 163–64 (1990) (explaining that burden is on “next friend” to establish “First . . . why the real party in interest cannot appear on his own behalf to prosecute the action . . . . Second, the ‘next friend’ must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate,” and that some courts also require the “next friend” to “have some significant relationship with the real party in interest.”).
Plaintiffs moved to add J.S.R.’s father, J.S.G., and V.F.B.’s mother, A.B.A., as their next friends, and at the hearing, Plaintiffs explained that they intended to add the parents in addition to Joshua Perry. The Court granted the motions, and with the additional presence of the children’s parents as next friends, the question of representation has been properly addressed. Cf. T.W. by Enk v. Brophy, 124 F.3d 893, 897 (7th Cir. 1997) (“[T]he next friend must be an appropriate alter ego for a plaintiff who is not able to litigate in his own right . . . ordinarily the eligible will be confined to the plaintiff’s parents, older siblings (if there are no parents), or a conservator or other guardian, akin to a trustee; that persons having only an ideological stake in the child’s case are never eligible; but that if a close relative is unavailable and the child has no conflict-free general representative the court may appoint a personal friend of the plaintiff or his family, a professional who has worked with the child, or, in desperate circumstances, a stranger whom the court finds to be especially suitable to represent the child’s interests in the litigation.”).
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balance of the hardships tipping decidedly’ in the movant’s favor.”) (quoting Waldman Publ’g Corp. v. Landoll, Inc., 43 F.3d 775, 779–80 (2d Cir. 1994)).
A court will presume that a movant has established irreparable harm in the absence of injunctive relief if the movant’s claim involves the alleged deprivation of a constitutional right. See Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984) (“When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.”) (quoting 11 C. Wright & A. Miller, Federal Practice and Procedure, § 2948, at 440 (1973)). “In deciding a motion for preliminary injunction, a court may consider the entire record including affidavits and other hearsay evidence.” Johnson v. Newport Lorillard, No. 01 Civ. 9587 (SAS), 2003 WL 169797, at *1 (S.D.N.Y. Jan. 23, 2003). III. THE PARTIES’ ARGUMENTS
A. J.S.R. and V.F.B. Plaintiffs seek a preliminary injunction on the grounds that forcibly separating the children from their parents: (1) violates the children’s substantive and procedural Fifth Amendment due process rights; (2) denies the children’s equal access to the asylum program and constitutes disability discrimination under the Rehabilitation Act; (3) violates the Administrative Procedure Act; (4) and deprives the children of equal protection under the laws. Mot. for TRO at 10. Plaintiffs argue that, “[b]ecause the children are likely to succeed on the merits on these four claims, and because the remaining applicable factors weigh in favor of Plaintiffs, this Court should grant J.S.R. and V.F.B. a temporary restraining order or, in the alternative, preliminary injunctive relief.” Id. First, Plaintiffs argue that J.S.R. and V.F.B., as persons in the United States, have been deprived of their substantive due process rights under the Fifth Amendment of the United States
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Constitution. Mot. for TRO at 10–11. Plaintiffs argue that they have “a protected liberty interest in being reunited with their parents.” Id. at 11. Plaintiffs also argue that “the government lacks any legitimate, let alone compelling, interest in the separation of these children from their families.” Id. at 11–12.
Plaintiffs argue that “[d]ue process forbids the government from separating parents and their children unless there is a case-specific determination that separation is in the best interests of the child—as, for instance, when the child is in danger or the parent is shown to be unfit.” Id. at 12. Plaintiffs argue that there has not been and could not be a case-specific determination that J.S.R. and V.F.B. should have been separated from their parents, and that instead, the separation has caused “significant and on-going trauma.” Id.
Plaintiffs also argue that they are likely to succeed on their claim that Defendants have violated J.S.R. and V.F.B.’s procedural due process rights under the Fifth Amendment because they were forcibly separated from their parents “without any—let alone the constitutionallyrequired—process that is due before families can be indefinitely split up.” Mot. for TRO at 13. Plaintiffs argue that procedural due process would have required a pre-deprivation hearing before the Government could separate children from their parents, given “the enormous stakes of removing a child from the care of their parents and placing them into the custody of the state.” Id. at 14. Here, Plaintiffs argue, “Defendants failed to provide any process at all, before or after, tearing J.S.R. and V.F.B. from their parents.” Id. Plaintiffs argue that, “[a]t the very least, procedural due process requires affected parties be given notice and a set of procedural opportunities to protect their liberty interests.” Id.
Plaintiffs also argue that, by separating these children, who are currently suffering from PTSD, from their parents, the Government has “further limited the children’s ability to access . .
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. the most crucial support the children need at this moment—their parents—and thereby is unlawfully denying them equal access to a federal program.” Mot. for TRO at 15; see 29 U.S.C. § 794(a). Plaintiffs argue that the children are suffering from trauma-related mental disabilities, both as a result of their forced separations from their parents and also as a result of trauma they endured before entering the United States.
Plaintiffs argue that Defendants “are violating the Rehabilitation Act through their failure to provide J.S.R. and V.F.B. reasonable accommodations in the asylum, removal, and sponsor placement processes.” Id. at 18. Plaintiffs argue that “Defendants have failed to implement available and reasonable accommodations, such as reuniting the children with their parents and releasing them from detention.” Id. Plaintiffs also argue that “Defendants intentionally are preventing the children from turning to their parents for counsel and assistance in coping with, processing, and speaking about the experiences of violence, persecution, and loss that contributes to their disability and form the basis for their asylum claims.” Id. at 19.
Plaintiffs also argue that Defendants’ actions violate the Administrative Procedure Act (“APA”) because Defendants have failed to give adequate reasons for their actions, and Defendants have instead arbitrarily and capriciously separated the children from their parents, sacrificing their “important and fundamental rights” without a legitimate reason for doing so. Id. at 19–21.
Finally, Plaintiffs argue that Defendants’ decision to separate the children from their parents was driven by animus against individuals of Latino ethnicity. Id. at 23. Plaintiffs argue that “Defendants’ coerced family separation policy, while facially neutral, violates equal protection for two reasons: (1) it was applied in a discriminatory fashion, and (2) it was motivated by discriminatory animus and resulted in a discriminatory effect.” Id. at 24. Plaintiffs
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argue that the policy discriminated against people in the “Northern Triangle” of Central America, including Honduras and El Salvador, the countries from where J.S.R. and V.F.B. came, respectively. Id. They also assert that “the consistently racialized statements of the president and his top advisers demonstrate that their family separation policy was motivated by animus, and the evidence shows that it resulted in a discriminatory effect.” Id. at 25.
B. The Government Defendants object to Plaintiffs’ motion for a preliminary injunction. Defendants argue that Plaintiffs’ lawsuits, which seek reunification by July 13, 2018, interfere with the Government’s ongoing effort to implement the relief ordered in Ms. L., 2018 WL 3129486. Opp. to Mot. for TRO at 25–26. Defendants argue that there is substantial overlap with Ms. L., and that “[d]uplicative litigation is disfavored in the federal courts because of the risk of inconsistent judgments, as well as the waste of the parties’ and judicial resources.” Id. at 27. Defendants argue that they have “already undertaken extensive efforts towards compliance with the preliminary injunction order.” Id. at 29. Defendants “do not dispute plaintiffs’ allegation that their separation from their parents was, and remains, traumatic,” and instead argue that “Plaintiffs are receiving excellent care, both medical and otherwise, in the most least restrictive environment available.” Id. at 30. Defendants represent that they are “willing to comply with any reasonable accommodation requests made on behalf of the children,” but that they “have received no accommodation requests relating to providing care to the Plaintiffs.” Id. Defendants explain that Noank is licensed by the State of Connecticut to provide residential care to children, and that it is “set up much like a group home and is located near the Mystic River.” Id. at 31. Defendants state that it is staffed “with a teacher, medical coordinator,
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clinician, case manager, supervisor, director as well as 8 youth care workers,” that the children attend school, and that they “engage in a variety of recreational activities daily at local parks in the community or at the local YMCA.” Id. Defendants assert that J.S.R. plays soccer and “is also a great artist and is constantly surprising his therapists with pictures he has drawn.” Id. Defendants assert that V.F.B. is social with other teenage girls, does art projects, and plays basketball. Id. Defendants assert that both children are in “excellent health,” neither takes medication, and “the medical coordinator has not reported any concerns that the children have any mental health conditions which warrant psychiatric treatment or psychotropic medications.” Id. Defendants represent that the children receive weekly individual counseling, semi-weekly group therapy, and that they frequently drop in to say hello to their therapist without an appointment. Id. at 32.
Defendants argue that, according to the “mental health clinician working directly with Plaintiffs, neither child has demonstrated severe emotional distress or physical reactions as a result of being separated from their parents,” and that “[t]here are likewise no recent reports of nightmares, flashbacks, or depressed mood.” Id. at 33–34. Defendants argue that, “[w]hile the Plaintiffs at times are appropriately sad and tearful when they speak to their respective parents, and would, of course, like to be reunified with their parents or another relative as soon as possible, they are now adjusting well to life at Noank and have expressed some joy and happiness in taking part in ordinary recreational activities provided for the children at the shelter.” Id. at 34.
Finally, Defendants represent that the Government is in the process of reuniting J.S.R. and V.F.B., and will continue to make efforts to comply with the California Order. Specifically, one of V.L.B.’s aunts “submitted a sponsorship application yesterday, July 9, 2018,” but the
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“application is incomplete because Plaintiff V.F.B.’s mother has not yet decided whether to sign a consent form in support of the application.” Id. at 35–36. And, the Government represents, “agents were working on Plaintiff J.S.R.’s reunification with his father prior to the filing of this litigation and the agents have continued working on this process[.]” Id. at 36. IV. DISCUSSION
Both parties in this case have recognized that the constitutional rights of J.S.R. and V.F.B. have been violated, and that irreparable harm has and will continue to result. See, e.g., Mot. for TRO at 12 (arguing that family separation is unconstitutional and that it has caused “significant and on-going trauma” to J.S.R. and V.F.B.); see also Opp. to Mot. for TRO at 25–26 (noting that the Government is implementing, not challenging, the relief ordered by the Southern District of California in Ms. L.); id. at 30 (conceding that the children’s “separation from their parents was, and remains, traumatic”).
The Government argues, however, that the Court should deny preliminary injunctive relief so that the Government has a meaningful opportunity to comply with the California Order and reunite the children affected by that Order, including J.S.R. and V.F.B., by July 26. Id. at 36.
For the following reasons, the Court agrees in part and disagrees in part. The Court grants preliminary injunctive relief to address the constitutional injury that the parties agreed occurred, namely the children’s trauma as a result of their unconstitutional separation from their parents. The Court denies preliminary injunctive relief requiring the immediate reunification of the children with their parents, a matter before another court.
A. Likelihood of Success on the Merits First, the Court finds that Plaintiffs are likely to succeed on the merits of their claim that J.S.R. and V.F.B. suffered a constitutional violation. The Government has not challenged the
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California Order, and the parties agree that a constitutional violation occurred when the Government separated children from their parents—both on the basis of substantive due process, as the separation deprived the children of their right to family integrity, and procedural due process, as J.S.R. and V.F.B. were given no notice and no fair opportunity for a hearing before being separated from their parents. See Ms. L., 2018 WL 3129486, at *8 (“This practice of separating class members [i.e., migrant parents] from their minor children, and failing to reunify class members with those children, without any showing the parent is unfit or presents a danger to the child is sufficient to find Plaintiffs have a likelihood of success on their due process claim.”); cf. Santosky v. Kramer, 455 U.S. 745, 753 (1982) (noting “absence of dispute reflect[ing] historical recognition that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment”); Southerland v. City of New York, 680 F.3d 127, 142 (2d Cir. 2012) (“The Fourteenth Amendment imposes a requirement that except in emergency circumstances, judicial process must be accorded both parent and child before removal of the child form his or her parent’s custody may be effected.”); Mathews v. Eldridge, 424 U.S. 319, 332 (1976) (“Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.”).
The Court agrees that the Government violated J.S.R.’s and V.F.B.’s constitutional rights by forcibly removing them from their parents without due process of law. The Government failed to provide the children with notice or a hearing, instead taking their parents, while distracting the children. See Brock v. Roadway Express, Inc., 481 U.S. 252, 261 (1987) (“Though the required procedures may vary according to the interests at stake in a particular context ‘the fundamental requirement of due process is the opportunity to be heard at a meaningful time and
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in a meaningful manner.”) (quoting Mathews, 424 U.S. at 333). Even now, the Government has not established a compelling reason for depriving the children of their family integrity— depriving them of their primary and only consistent source of support—or that its policy was narrowly tailored to achieve that compelling reason. See Stanley v. Illinois, 405 U.S. 645, 658 (1972) (“The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment [and] the Equal Protection Clause of the Fourteenth Amendment.”) (internal citations omitted); see also Bohn v. Cty. of Dakota, 772 F.2d 1433, 1435 (8th Cir. 1985) (“The privacy and autonomy of familial relationships involved in a case like this are unarguably among the protectable interests which due process protects. We can conceive of no more important relationship, no more basic bond in American society, than the tie between parent and child.”).
The Court’s conclusion is also supported by the California Order. Although that case considered a class of parents, not children, it held that the parents’ constitutional rights were violated when they were separated from their children, and that this constitutional violation required reunification. Ms. L., 2018 WL 3129486, at *11 (“What Plaintiffs do seek by way of the requested injunction is to uphold their rights to family integrity and association while their immigration proceedings are underway. This right, specifically, the relationship between parent and child, is constitutionally protected and well established.”) (internal quotation marks and citations omitted).
Obviously, the children will be beneficiaries of that remedy, and this Court acknowledges that the harm that the Government caused to the children is connected with the harm that the Government caused to the parents, as the Southern District of California identified. Id. at *9 (explaining that family separation policy has caused irreparable harm to parents partly because of
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pain inflicted on their children, and noting that “parents, however, are not the only ones suffering from the separations,” and that “there is ample evidence that separating children from their mothers or fathers leads to serious, negative consequences to children’s health and development,” including higher rates of anxiety, depression, PTSD, and more). The California Order therefore, while it did not directly address the children’s constitutional harm, has a collateral impact on the children and on this Court’s approach to this case.
The Court therefore finds that Plaintiffs are likely to succeed on the merits of their constitutional claim.
B. Irreparable Injury Having established that a constitutional claim has occurred, Plaintiffs are entitled to a presumption that an irreparable injury has occurred. See Mitchell, 748 F.2d at 806 (“When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.”) (quoting 11 C. Wright & A. Miller, Federal Practice and Procedure, § 2948, at 440 (1973)). Here, Plaintiffs have also offered more than enough evidence to establish that the Government’s actions traumatized J.S.R. and V.F.B., therefore establishing an irreparable injury. See Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir. 1989) (“To establish irreparable harm, plaintiffs must demonstrate an injury that is neither remote nor speculative, but actual and imminent.”) (internal quotation marks and citation omitted); see also Levia-Perez v. Holder, 640 F.3d 962, 969–70 (9th Cir. 2011) (“In addition, as we have previously held, ‘[o]ther important [irreparable harm] factors include separation from family members, medical needs, and potential economic hardship.’”) (quoting Andreiu v. Ashcroft, 253 F.3d 477, 484 (9th Cir. 2001) (en banc)).
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Dr. Martin offered evidence that J.S.R. struggles to sleep, distrusts adults, and is depressed and tearful. Dr. Martin found that J.S.R. is suffering from PTSD, and that he had an extraordinarily high score on the childhood post-traumatic stress symptom scale, as a result of the acute trauma of being separated from his father, an adult with whom he has a loving, supportive relationship. Dr. Martin offered evidence that V.F.B. is tearful, avoidant, and has a blunted and flat affect. She had a score consistent with PTSD on the childhood post-traumatic stress symptom scale, and Dr. Martin explained that she was so distressed that she had trouble answering many of his questions. Even if this Court did not presume irreparable harm, as it should, this evidence firmly establishes it.
As a result, the Court finds that Plaintiffs likely would succeed on the merits of their motion for a preliminary injunction, and that Plaintiffs established that the Government violated J.S.R.’s and V.F.B’s constitutional rights to due process and caused them irreparable harm. See Walsh, 733 F.3d at 486 (noting that, first, the plaintiff “must establish that he is likely to succeed on the merits, [and] that he is likely to suffer irreparable harm in the absence of preliminary relief”).
C. Balance of the Equities and the Public Interest Finally, the Court must determine whether “the balance of equities tips in [Plaintiffs’] favor” and whether “an injunction is in the public interest.” Walsh, 733 F.3d at 486; see also Winter, 555 U.S. at 20 (“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”). “As with irreparable injury, when a plaintiff establishes ‘a likelihood that Defendants’ policy violates the U.S. Constitution, Plaintiffs have also established that both the
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public interest and the balance of the equities favor a preliminary injunction.’” Ms. L., 2018 WL 3129486, at *10 (quoting Arizona Dream Act Coalition v. Brewer, 757 F.3d 1053, 1069 (9th Cir. 2014)).
Defendants argue that, although Plaintiffs have suffered a constitutional violation, and although the trauma of the unconstitutional separation has harmed them, the balance of the equities and the public interest disfavor this Court issuing a preliminary injunction because that order could interfere with the Government’s ability to comply with the relief ordered in Ms. L., 2018 WL 3129486. Opp. to Mot. for TRO at 25–26. Defendants also argue that the Court should avoid entering an order duplicative of the California Order. Id. at 27 (“Duplicative litigation is disfavored in the federal courts because of the risk of inconsistent judgments, as well as the waste of the parties’ and judicial resources.”) (citing Barapind v. Reno, 225 F.3d 1100, 1109 (9th Cir. 2000); Gillespie v. Crawford, 858 F.2d 1101, 1103 (5th Cir. 1988)).
The Court agrees with Defendants, but only to the extent that the California Order will provide relief for J.S.R.’s and V.F.B.’s constitutional harm through reunification. This Court thus will avoid duplicating the California Order and the relief provided by that court.
But the California Order addresses a constitutional harm suffered by a class of parents— not the children who are Plaintiffs here. The cases that Defendants cite, admonishing courts to avoid duplicative litigation, therefore are distinguishable because they involve cases “where a complaint involving the same parties and issues has already been filed in another district.” Barapind, 225 F.3d at 1109; see also Gillespie, 858 F.2d at 1102–03 (“[T]he individual class member should be barred from pursuing his own individual lawsuit that seeks equitable relief within the subject matter of the class action.”) (quoting Green v. McKaskle, 770 F.2d 445, 446– 47 (5th Cir. 1985)). And even though J.S.R. and V.F.B. will benefit from the remedy required by
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the California Order, that court necessarily considered only the harms suffered by the class of Plaintiffs before it—parents—and not the two Plaintiffs before this Court—J.S.R. and V.F.B.
The Court therefore finds that the balance of the equities and the public interest both favor a preliminary injunction, to the extent that it can address the particular harms that J.S.R. and V.F.B. have suffered, and to the extent that those harms are not already being remedied by the California Order. See, e.g., Milliken v. Bradley, 418 U.S. 717, 738 (1974) (“Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs.”); id. at 744 (“The controlling principle consistently expounded in our holdings is that the scope of the remedy is determined by the nature and extent of the constitutional violation.”).
At the July 11th hearing, Plaintiffs indicated that, although they wanted immediate relief in the form of reunification and release for J.S.R. and V.F.B. and their parents, if the Court were not inclined to grant that relief, they would request that the Court order continued daily videoconferences with the parents, order the Government to provide a clear timeline so that the parents and the children could know what to expect, and order psychotherapy for the children.
J.S.R. and V.F.B. are entitled to relief to address the consequences of the Government’s unconstitutional separation of them from their parents, a harm, based on Dr. Martin’s unrebutted testimony, likely to continue even after family reunification.4
At the upcoming status conference on July 18, 2018 at 11:00 a.m., the parties shall address the form of this relief for J.S.R. and V.F.B., both before and after family reunification.
4 To the extent that Plaintiffs also sought relief under the Rehabilitation Act, 29 U.S.C. § 794(a), the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), and the Equal Protection Clause of the Fourteenth Amendment, the Court need not reach those claims because the only remedies that the Court will address are related to the trauma that Plaintiffs endured, which is being adequately remedied by the Court’s decision based on the Due Process Clause of the Fifth Amendment. To the extent that Plaintiffs seek reunification and release under any of these alternative theories, as discussed above, the Court will not duplicate relief for those who are a part of a class action governed by the California Order.
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The Court will issue writs of writs of habeas corpus ad testificandum to have the parents of J.S.R. and V.F.B. present for this proceeding. The Court will also issue writs of habeas corpus ad testificandum to have J.S.R. and V.F.B. present for the proceeding. As noted in the Court’s previous order, “[i]f the Court determines at the July 11th hearing that immediate constitutional relief is warranted before July 26th or that additional proceedings are necessary before July 26th and these proceedings require the physical presence of J.S.R.’s father [or V.F.B.’s mother], then the Court will consider such relief at that time.” Order at 7, ECF No. 27; see also V.F.B. v. Sessions, No. 3:18-cv-1110, Order at 7, ECF No. 18 (regarding V.F.B. making the same pronouncement). Because this proceeding will now address specific constitutional relief related to the well-being of the children, the Court believes it necessary to have them and their parents there, in the event any testimony is necessary from either of the children or their respective parents.
Additionally, while modern technology provides opportunities for the virtual presence of parties and witnesses at court proceedings beyond what historically had been possible, the logistical challenges presented by the July 11th preliminary injunction hearing make clear the necessity of their physical presence, at least for the July 18th proceeding. V. CONCLUSION
The Court therefore orders the following:  The Court will hold a status conference on July 18, 2018, at 11:00 a.m., in Courtroom
Two, 915 Lafayette Boulevard, Bridgeport, Connecticut.  At the July 18th hearing, each party shall present a plan for addressing the children’s
trauma as a result of the Government’s unconstitutional separation of the children from their parents.  The Court GRANTS Plaintiffs’ motion for writs of habeas corpus ad testificandum for J.S.G. and A.B.A. ECF No. 56. Those writs will follow in a subsequent order. The parents shall be brought to Courtroom Two, 915 Lafayette Boulevard, Bridgeport,
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Connecticut, at 9:00 a.m. on July 18, 2018, and shall remain there until the conclusion of the hearing.  The Court will also issue writs of habeas corpus ad testificandum for J.S.R. and V.F.B., who shall also be brought to Courtroom Two, 915 Lafayette Boulevard, Bridgeport, Connecticut, at 9:00 a.m. on July 18, 2018, and shall remain there until the conclusion of the hearing.  The Government is directed to continue to facilitate video teleconferences between J.S.R. and his father, and between V.F.B. and her mother, on a daily basis between July 13, 2018, and July 18, 2018. The Court will determine whether to continue this contact at the July 18th hearing. SO ORDERED at Bridgeport, Connecticut, this 13th day of July, 2018.
/s/ Victor A. Bolden Victor A. Bolden United States District Judge
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 Case 3:18-cv-01106-VAB Document 63 Filed 07/16/18 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

J.S.R., by and through his next

:

Friend Joshua Perry

:

Plaintiff

:

:

v.

:

:

JEFFERSON B. SESSIONS, III, Attorney

:

General of the United States, et al

:

____________________________________

V.F.B., by and through her next

:

Friend Joshua Perry

:

Plaintiff

:

:

v.

:

:

JEFFERSON B. SESSIONS, III, Attorney

:

General of the United States, et al

:

C.A. No. 3:18cv1106 (VAB) C.A. No. 3:18cv1110 (VAB)

NOTICE OF COMPLIANCE On July 11, 2018, the Court conducted a hearing on Plaintiffs’ Motion for a Temporary Restraining Order or Preliminary Injunction seeking reunification with their parents by July 13, 2018. During the hearing, the Defendants advised the Court that the Plaintiffs’ parents are class members in a court case in California, Ms. L., et al v. ICE, et al, Case No. 18-cv-0428 (S.D. Cal.), and are beneficiaries of the preliminary injunction order issued in that case which requires reunification of those Plaintiffs with their children by July 26, 2018. On July 13, 2018, the Court issued a ruling declining to interfere with the Order issued by the Ms. L Court and allowing the Defendants up to July 26, 2018, to reunite the Plaintiffs with their parents. During the hearing on July 11, 2018, the United States Attorney’s Office advised the Court that it had submitted a formal request that Plaintiffs’ reunification with their parents be expedited.

Case 3:18-cv-01106-VAB Document 63 Filed 07/16/18 Page 2 of 3
The Defendants also advised the Court that they would give the Court and Plaintiffs’ counsel notice if they learned that the reunification was to occur prior to July 26, 2018. The Defendants hereby notify the Court that the request of the United States Attorney’s Office has been acted upon, and Plaintiffs will be reunited with their parents today, July 16, 2018.
Additionally, although Plaintiffs’ parents are subject to mandatory detention and are subject to administratively final orders of removal, the United States Department of Homeland Security, Immigrations and Customs Enforcement, (“ICE”), has considered Plaintiffs request to parole their parents from custody. At this stage, Plaintiffs’ parents can only be released from detention through a solely discretionary grant of parole under narrowly prescribed circumstances, such as a present “urgent humanitarian reason or significant public benefit.” 8 U.S.C. § 1182(b)(5); 8 C.F.R. § 212.5(b). Having considered all the factors presented in this case, ICE will be granting Plaintiffs’ parents’ request for parole from custody under the terms and conditions set forth by ICE at the time of parole. Plaintiffs’ parents parole from custody will also take place on July 16, 2018.
Respectfully submitted, John H. Durham United States Attorney
/s/ Michelle L. McConaghy, ct27157 Assistant United States Attorney 157 Church Street New Haven, CT 06510 Telephone: (203) 821-3700 Fax: (203) 773-5373 Email: Michelle.McConaghy@usdoj.gov
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Case 3:18-cv-01106-VAB Document 63 Filed 07/16/18 Page 3 of 3 CERTIFICATION OF SERVICE
I hereby certify that on July 16, 2018, a copy of the foregoing Notice was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by operation of the Court's electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the Court's CM/ECF System.
/s/ Michelle L. McConaghy Assistant U.S. Attorney
3

 
 Case 3:18-cv-01110-VAB Document 1 Filed 07/02/18 Page 1 of 21

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

V.F.B, by and through her next friend, Joshua Perry,
Plaintiff-Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney General of the United States; DEPARTMENT OF HOMELAND SECURITY (“DHS”); KIRSTJEN NIELSEN, Secretary of DHS; U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); KEVIN K. MCALEENAN, Commissioner of CBP; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (“ICE”); RONALD D. VITIELLO, Acting Director of ICE; U.S. CITIZENSHIP AND IMMIGRATION SERVICES (“USCIS”); L. FRANCIS CISSNA, Director of USCIS; U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES (“HHS”); ALEX AZAR, Secretary of the Department of Health and Human Services; OFFICE OF REFUGEE RESETTLEMENT (“ORR”); and SCOTT LLOYD, Director of ORR,
Defendants-Respondents.

Civil Action No. _______
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF & PETITION FOR WRIT OF HABEAS CORPUS

Amit Jain, Law Graduate Aseem Mehta, Law Student Intern* Carolyn O’Connor, Law Student Intern* Hannah Schoen, Law Student Intern* Muneer I. Ahmad (ct28109) Marisol Orihuela† Michael J. Wishnie (ct27221) Jerome N. Frank Legal Svs. Org. Yale Law School 127 Wall Street New Haven, CT 06511 203-432-4800 muneer.ahmad@ylsclinics.org marisol.orihuela@ylsclinics.org michael.wishnie@ylsclinics.org

Joanne Lewis (ct06541) Joshua Perry† Connecticut Legal Services, Inc. 16 Main Street New Britain, CT 06051 860-357-9302 jlewis@connlegalservices.org jperry@connlegalservices.org
Counsel for Plaintiff-Petitioner
* motion for law student appearance forthcoming † motion for D.Conn. admission forthcoming

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INTRODUCTION 1. Forty-six days ago, the United States government forcibly separated Plaintiff V.F.B., a 14-year-old girl, from her mother, as part of an abhorrent and illegal scheme to deter asylum-seekers from seeking protection from persecution in the United States. On the pretext of taking her to bathe, government officials lured V.F.B. away from her mother at a detention facility in Texas and transferred her to a shelter in Connecticut, thousands of miles from her mother. 2. V.F.B. was held incommunicado from her mother for over a month and remains physically separated from her to this day. The forced separation of V.F.B. from her mother was traumatic, and the ongoing separation continues to cause V.F.B. anguish and fear, and threatens even greater long-term mental, emotional, and physical harm. 3. V.F.B. and her mother arrived in the United States in May 2018 after fleeing persecution in El Salvador. They arrived in the United States soon after Defendants announced implementation of their “zero tolerance policy,” which subjects asylum seekers to prosecution for unlawful entry and forcibly separates parents from children, for the express purpose of deterring asylum seekers from coming to the United States. 4. V.F.B.’s mother is her primary caregiver, her source of comfort and protection, and the most important person in her life. There is no basis to believe that V.F.B. has ever been subjected to abuse or neglect by her mother, and there is no lawful or proper basis for Defendants to separate them. 5. Upon information and belief, Defendants have taken no steps to reunite V.F.B. and her mother, despite the President’s purported disavowal of family separation. As a result, the initial trauma of government agents secreting a 14-year-old child away from her mother has
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been compounded by their indefinite separation and prolonged detention. This has unnecessarily inflicted, and continues to unnecessarily inflict, additional emotional harm on V.F.B. while frustrating her ability to pursue her legal claims, including asylum and the present action, without the opportunity for meaningful communication with her mother.
6. The government’s continued detention of V.F.B., and its continued, forcible separation of V.S.B. from her mother, is unlawful, and it subjects V.F.B. to ongoing harm that cannot be remediated without releasing her from detention and reuniting mother and child.
JURISDICTION AND VENUE 7. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1346, 2201-2202, 2241, and Article I, clause 9 § 2 and Article III of the U.S. Constitution. 8. Venue is proper under 28 U.S.C § 1391 because Plaintiff V.F.B. is currently in custody of Defendants in Mystic, Connecticut and a substantial part of the events or omissions giving rise to the claims made herein occurred or are occurring in Connecticut.
PARTIES 9. Plaintiff V.F.B. is a 14-year old national of El Salvador. She has been in the custody of the federal government for approximately 46 days. V.F.B. brings this lawsuit through a next friend as a result of her incapacity due to her minor status, her trauma-related disability, her limited access to the courts while detained, her unfamiliarity with U.S. law, and her inability to seek advice and counsel from the most important person in her life – her mother – as a result of the government’s actions. 10. Joshua Perry is Deputy Director of Connecticut Legal Services (CLS), a nonprofit law firm that is dedicated to improving the lives of low-income people, including children and immigrants, by providing access to justice. CLS has established an attorney-client
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relationship with V.F.B. to assist her in obtaining relief from removal from the United States. Mr. Perry brings this suit as next friend and on behalf of V.F.B. in order to protect V.F.B.’s rights and out of dedication to V.F.B.’s expressed interest in reuniting with her mother.
11. Defendant Jefferson B. Sessions III is the Attorney General of the United States and is sued in his official capacity. He has responsibility for the administration of the immigration laws pursuant to 8 U.S.C. § 1103, oversees the Executive Office of Immigration Review, and is empowered to grant relief from removal.
12. Defendant U.S. Department of Homeland Security (“DHS”) has responsibility for enforcing the immigration laws of the United States.
13. Defendant Kirstjen Nielsen is the Secretary of DHS and is sued in her official capacity. She directs each of the component agencies within DHS, including CBP, ICE, and USCIS. Defendant Nielsen is responsible for implementing U.S. immigration laws and policies, including policies related to family separation and family detention at the U.S. southern border.
14. Defendant U.S. Customs and Border Protection (“CBP”) is the sub-agency of DHS that is responsible for enforcement operations along the borders of the United States, including the southern border.
15. Defendant Kevin K. McAleenan is the Commissioner of CBP and is sued in his official capacity. He oversees the apprehension and detention of individuals, including asylum seekers, who enter the United States at or near the U.S. border.
16. Defendant U.S. Immigration and Customs Enforcement (“ICE”) is the sub-agency of DHS that is responsible for the detention and removal operations of DHS.
17. Defendant Ronald D. Vitiello is the Acting Director of ICE and is sued in his official capacity. He directs the nation’s immigration detention system and oversees the removal
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of families ordered deported at ICE detention facilities. Defendant Vitiello plays a critical role in setting detention policies that affect asylum seekers who are held in detention while they await the first steps of the asylum process.
18. Defendant U.S. Citizenship and Immigration Services (“USCIS”) is the subagency of DHS that, through its asylum officers, conducts interviews of certain individuals apprehended at or near the border to determine whether they have a credible fear of persecution and must be permitted to apply for asylum.
19. Defendant L. Francis Cissna is the Director of USCIS and is sued in his official capacity.
20. Defendant U.S. Department of Health and Human Services (“HHS”) is a department of the executive branch that is responsible for “unaccompanied” non-citizen minor children.
21. Defendant Alex Azar is the Secretary of HHS and is sued in his official capacity. 22. Defendant Office of Refugee Resettlement (“ORR”) is the component of HHS that provides placement and care for “unaccompanied” non-citizen minor children and holds legal custody of V.F.B. 23. Defendant Scott Lloyd is the director of ORR and is sued in his official capacity.
LEGAL AND FACTUAL FRAMEWORK OF FAMILY SEPARATION Arriving Families’ Right to Seek Asylum
24. United States law entitles non-citizens on American soil to seek asylum, without regard to how they arrive. 8 U.S.C. § 1158(a)(1). Since 1996, immigration law has also provided authority for “expedited removal,” or the removal of certain individuals from the United States without a removal hearing. Id. § 1225(b)(1)(A)(i).
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25. Even an individual subject to expedited removal, however, must receive a removal hearing if the person “indicates either an intention to apply for asylum . . . or a fear of persecution.” Id. Under such circumstances, an asylum officer evaluates whether the individual has a “credible fear” of persecution in their home country. Id. U.S.C. § 1225(b)(1)(A)(ii). If an asylum officer determines that there is a “significant possibility” that such an individual could prove eligibility for fear-based relief, id. § 1225(b)(1)(B)(v), then the asylum seeker is placed into regular removal proceedings. Id. § 1225(b)(1)(B)(ii).
The Government’s Policies Before “Zero Tolerance” 26. Prior to implementing a systematic policy of family separation in 2018, the government did not detain some families apprehended at the border at all, instead placing them in regular removal proceedings. For others, the government followed expedited removal procedures, and detained members of these families together. If Defendants found these family members to have a credible fear of persecution, they would release the family from detention. 27. When the government decides to detain children, it is subject to the Flores Settlement, which implements a “general policy favoring release” of minors. See Settlement Agreement, Flores v. Reno, No. CV-85-4544-RJK (C.D. Cal. Jan. 17, 1997), available at https://tinyurl.com/y9fxrbsp (hereinafter “Flores Settlement”). The Flores Settlement “unambiguously applies both to accompanied and unaccompanied minors” in DHS custody, Flores v. Lynch, 828 F.3d 898, 901 (9th Cir. 2016), and requires the government to “place each detained minor in the least restrictive setting appropriate to the minor’s age and special needs….” Flores Settlement ¶ 11. 28. Under the settlement, children must be released from detention within five days, or within twenty days in certain emergency circumstances, to a parent, legal guardian, adult
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relative, adult designated by a legal guardian, or (if none of these individuals are available) a licensed program willing to accept legal custody. Id. ¶¶ 12, 14.
29. Starting in January 2016, the government piloted the Family Case Management Program (“FCMP”) as an “alternative to detention . . . initiative that use[d] qualified case managers to promote participant compliance with their immigration obligations” through a wraparound service model. The ICE Office of Inspector General determined that the FCMP was 99 percent effective at ensuring participant attendance for ICE check-ins and appointments, and 100 percent effective at ensuring attendance for court hearings. U.S. Immigration and Customs Enforcement’s Award of the Family Case Management Program Contract (Redacted), DHS Office of Inspector General, at 5 (OIG-18-22) (Nov. 30, 2017), available at https://tinyurl.com/y96l9t8y. Nevertheless, the government closed the program in June 2017.
The Government’s “Zero Tolerance” Family Separation Policy 30. In early 2017, DHS contemplated changing its policy on asylum-seeking families by implementing family separation to deter migration from Central America into the United States. In March 2017, then-DHS Secretary John Kelly stated that he was considering separating arriving children from their parents “in order to deter more movement” into the United States. Daniella Diaz, Kelly: DHS Is Considering Separating Children From Their Parents At the Border, CNN (Mar. 6, 2017), available at https://tinyurl.com/yctz5qct. 31. On May 7, 2018, Defendant Sessions announced a “zero tolerance policy” of coercive family separation in order to deter asylum seekers and other migrants from crossing into the United States. Defendant Sessions explained, “If you cross this border unlawfully, then we will prosecute you. It’s that simple. . . . If you are smuggling a child, then we will prosecute you and that child will be separated from you . . . .” Remarks Discussing the Immigration
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Enforcement Actions of the Trump Administration (May 7, 2018), available at https://tinyurl.com/ybqbfubb.
32. The government applied its “zero-tolerance policy” against parents who crossed the border with their own children seeking asylum, including V.F.B. Defendants have forcibly separated over 2,300 children from their parents while crossing the border, some only months old. Faith Karimi & Tal Kopan, There Are 2,300 Migrant Kids Spread Across the U.S. What Happens to Them Next?, CNN (June 21, 2018), available at https://tinyurl.com/ybjtxyz5.
33. Children forcibly separated from their parents were transferred to the custody of the Office of Refugee Resettlement (“ORR”), a component of HHS, and sent to shelters and temporary housing. ORR deems these children as “unaccompanied minors.”
34. Under ORR policies, a child will be released from ORR custody only after ORR undertakes an onerous and lengthy procedure to determine that a potential custodian, or “sponsor,” is suitable for providing for the child’s physical and mental well-being. Office of Refugee Resettlement, Children Entering the United States Unaccompanied, available at https://tinyurl.com/y9ccsgeo.
35. In the face of widespread public condemnation of coerced family separation as a grave violation of American values, President Trump purportedly retracted the policy on June 20, 2018. Exec. Order, Affording Congress an Opportunity to Address Family Separation, 2018 WL 3046068 (June 20, 2018) (hereinafter “EO”). The EO continued the policy of initiating criminal proceedings for all individuals who crossed the border without authorization; however, in place of systematic separation of families, the EO called for indefinite detention of families in camps and makeshift facilities. Id.
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The Government’s Ongoing Failure to Reunify Families 36. The EO did not include any provisions to reunite families that had been separated at the border, nor did it purport to remediate the trauma or other harms caused by family separation. 37. DHS has not disclosed any process for reunification of families prior to removal, including during the pendency of asylum claims, which may last for months. In litigation in the U.S. District Court for the Southern District of California, Defendants did not dispute that they had “no plans or procedures to reunify the parent with the child other than arranging for them to be deported together after the parent’s immigration case is concluded.” Ms. L. v. ICE, __ F. Supp. 3d __, 2018 WL 3129486, at *5 (S.D. Cal. June 26, 2018) (internal quotations omitted). The court found that “under the present system migrant children are not accounted for with the same efficiency and accuracy as property.” Id. at *7 (emphasis in original).
The Racial Animus Underlying Coerced Family Separation 38. The Trump Administration adopted its policy of coerced family separation as a central part of an anti-immigrant agenda, motivated primarily by racial animus against individuals of Hispanic origin and individuals from Central America. 39. On the first day of his presidential campaign, Candidate Trump stated: “When Mexico sends its people, they’re not sending their best. . . . They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.” Donald Trump Announces a Presidential Bid, WASH. POST (June 16, 2015), available at https://tinyurl.com/gl6ofm5. 40. Since taking office, President Trump has consistently pursued immigration policies motivated by racial animus against non-European immigrants. In summer 2017, he
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stated that the 15,000 Haitians admitted to the United States “all have AIDS,” and expressed concern that Nigerian nationals in the United States would never “go back to their huts” in Africa. Aaron Blake, Trump’s ‘shithole’ comment about Haiti lends credence to report he said Haitians ‘all have AIDS’, WASH. POST (Jan. 11, 2018), available at https://tinyurl.com/ybspu5qa.
41. In January 2018, President Trump complained about protections for individuals from specific Central American and African countries, asking why the United States was admitting “all these people from shithole countries,” as opposed to countries like Norway. Id. In May 2018, President Trump characterized certain unauthorized migrants as “animals.” Jamelle Bouie, The “Animal” Debate is Over, SLATE, June 19, 2018, https://tinyurl.com/yckbshah. The next month, defending his coerced family separation policy, the President alleged that families crossing the border with their children “could be murderers and thieves and so much else,” and warned that “[t]he United States will not be a migrant camp. . . .” Id.
42. The Administration’s shifting race-neutral explanations for coerced family separation are pretextual. President Trump falsely asserted that family separation was required under an unnamed law, but he unilaterally ended the policy through an executive order two days later. DHS Secretary Nielsen claimed that the policy was necessary due to arriving adults and children fraudulently claiming to be family units, but less than one percent of families apprehended at the border made such fraudulent claims. Linda Qiu, Fact-Checking the Trump Administration’s Case for Child Separation at the Border, N.Y. TIMES (June 19, 2018), available at https://tinyurl.com/yddv5oef. And although President Trump falsely asserted that 80 percent of individuals who were released pending immigration hearings failed to appear, most such individuals do in fact appear for their immigration hearings. Noah Bierman, Sarah D. Wire,
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& Eli Stokols, Trump Orders End to His Family Separation Policy at the Border, but Relief Could Be Temporary, L.A. TIMES (June 20, 2018), available at https://tinyurl.com/yaq2a2hg.
FACTUAL ALLEGATIONS 43. V.F.B. and her mother arrived in the United States in May 2018, after fleeing persecution in El Salvador. 44. V.F.B.’s mother is her primary caretaker and has been during V.F.B.’s entire life. V.F.B. is emotionally close to her mother and relies upon her more than anyone else in her life. V.F.B. does not have a relationship with her father or his family. 45. V.F.B.’s step-father was killed in 2017 outside a church in El Salvador while she and her mother waited for him inside. Because of the murder, V.F.B. and her family moved in order to avoid a similar fate. Eventually V.F.B. and her mother fled El Salvador in order to save their lives and avoid official persecution. 46. Upon information and belief, V.F.B and her mother were detained in Texas by CBP officials soon after they arrived in the United States. 47. Upon information and belief, V.F.B. and her mother both expressed to CBP officials a fear of returning to El Salvador. 48. Defendants initially detained V.F.B. and her mother together, first at a detention facility that V.F.B. knows as the “hielera,” or “freezer” in Spanish, at a CBP facility in Texas. Upon information and belief, V.F.B. and her mother were in CPB custody at the time that they were forcibly separated. 49. During the time that V.F.B. and her mother were in government custody in Texas, government agents took V.F.B. away from her mother to bathe. Although she expected to see her mother after showering, she never did. That was the last time that V.F.B. saw her mother.
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50. Over the course of two days, V.F.B. asked government agents multiple times about the whereabouts of her mother. Each time, officers told V.F.B. that they would go and look for her mother in a room used to hold adults, and each time they subsequently told V.F.B. that her mother was not there. Eventually, government agents told V.F.B. that her mother was detained.
51. On or about May 17, 2018, ORR placed V.F.B. with Noank Community Support Services, Inc., a non-profit agency based in Groton, Connecticut that contracts to house children in custody of the federal government. Noank Community Support Services receives federal funding as a result of its contract with ORR, but does not offer legal representation. V.F.B. has been held in ORR custody at Noank Community Support Services since on or about May 17. She arrived in Connecticut after taking two planes and a car.
52. V.F.B. was allowed to speak to her mother by telephone for the first time on or about June 25, 2018, approximately 39 days after they were forcibly separated. The call lasted approximately ten minutes, and shelter staff were in the room during that time. V.F.B. and her mother were so distraught that they cried for nearly the entire call and as a result were unable to more meaningfully communicate with one another. V.F.B. does not know when she will next be allowed to speak with her mother.
53. Defendants’ actions in separating V.F.B. from her mother, together with Defendants’ other actions and failures to act, caused significant and immediate mental and emotion harm to V.F.B. and threaten even greater long-term harm.
54. On information and belief, V.F.B. has been exposed to significant traumatic events in her young life, including the murder of her step-father. In the face of this trauma, her mother has been her primary caregiver and source of protection and strength. To an even greater
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extent than other children her age, V.F.B. relies on the love and support of her mother to help her survive a terrifying world.
55. V.F.B. manifests numerous symptoms of Post-Traumatic Stress Disorder (PTSD), and on information and belief, suffers from chronic PTSD. Defendants’ actions, including taking her away from her mother under pretense of bathing, and then separating her halfway across the country, are exacerbating V.F.B.’s PTSD. Having already lost one caregiver—her step-father— V.F.B. is at risk of severe retraumatization by virtue of the government’s forcible separation of her from her mother. V.F.B. has trouble concentrating and thinking, as a result of her disability, which is amplified by Defendants’ actions.
56. V.F.B. has been distraught as a result of the government’s forcible separation of her from her mother. She has cried on a regular basis following the separation and is concerned for her safety and that of her mother. Upon information and belief, V.F.B. has suffered, and continues to suffer, significant psychological harm as a result of the government’s forcible separation of her from her mother.
57. Defendants’ actions are not only causing short-term trauma but also threaten significant long-term damage to V.F.B. Childhood trauma and enforced separation from loved ones carries a dramatically increased risk of long-term psychiatric illness, including major depressive disorder, and anxiety disorders. Children who have suffered from trauma are also at significantly increased risk of physical illness.
58. V.F.B.’s mother is currently detained by ICE at the Lasalle County Regional Detention Center in Encinal, Texas.
59. Upon information and belief, V.F.B.’s mother is not represented by counsel.
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60. V.F.B.’s counsel, CLS, has made repeated attempts to contact V.F.B.’s mother, but to date has been unable to do so. Neither V.F.B. nor CLS have been able to discuss V.F.B.’s legal claims, including those made in the present action, with V.F.B.’s mother.
61. The government does not have any legitimate interest in separating V.F.B. from her mother. There is no allegation that V.F.B.’s mother is an unfit parent.
62. V.F.B. has expressed to CLS her desire to be reunited with her mother and her fear if returned to El Salvador.
63. On information and belief, V.F.B. has no relatives in Connecticut. V.F.B. does not know whether Defendants will reunite her with her mother or when she can see her mother next. During the one phone call she has been permitted with her mother, V.F.B. was unable to discuss her legal rights, including the issues presented in the present action.
64. V.F.B. requests an order that Defendants immediately release her into the custody of her mother, or to such other suitable adult as her mother may direct.
CAUSES OF ACTION COUNT I
(Violation of Substantive Due Process) 65. All of the foregoing allegations are repeated and realleged as though fully set forth herein. 66. The Due Process Clause of the Fifth Amendment applies to all “persons” on United States soil and thus applies to V.F.B. 67. V.F.B. has a liberty interest under the Due Process Clause in remaining together with her mother as a family. 68. The separation of V.F.B. from her mother violates substantive due process because it furthers no legitimate purpose, much less a compelling governmental interest.
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COUNT II (Violation of Procedural Due Process) 69. All of the foregoing allegations are repeated and realleged as though fully set forth herein. 70. The Due Process Clause of the Fifth Amendment applies to all “persons” on United States soil and thus applies to V.F.B. 71. V.F.B. has a liberty interest under the Due Process Clause in remaining together with her mother as a family. 72. The separation of V.F.B. from her mother violates procedural due process because it deprived V.F.B. of her protected liberty interest without notice or any opportunity to be heard.
COUNT III (Violation of Section 504 of the Rehabilitation Act) 73. All of the foregoing allegations are repeated and realleged as though fully set forth herein. 74. Section 504 of the Rehabilitation Act of 1973 (“Section 504”) provides that “no otherwise qualified individual with a disability . . . shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.” 29 U.S.C. § 794(a). 75. Disability is defined to include “a physical or mental impairment that substantially limits one or more major life activities . . .” 29 U.S.C. § 705(20)(B); 42 U.S.C. § 12102. 76. V.F.B. suffers from the effects of chronic trauma and acute PTSD. The effects of chronic trauma cause an impairment that limits V.F.B.’s ability to concentrate, think, and communicate. V.F.B. thus has a physical or mental impairment that substantially limits one or more major life activities.
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77. Defendants’ separation of V.F.B. from her mother and decision to detain her mother thousands of miles away exacerbate V.F.B.’s existing limitations in communication, including when relating her past trauma. As a result, V.F.B. faces barriers in presenting her claims and is being denied equal and equally effective access to the asylum process on the basis of disability.
78. V.F.B. is “otherwise qualified” to participate in any removal proceedings currently pending against her and in affirmative asylum proceedings, as well as in the programs and activities of her temporary placement by ORR in a children’s shelter.
79. The children’s shelter at which V.F.B. is currently detained by ORR has received substantial federal financial assistance. Immigration proceedings, including asylum adjudications before USCIS and removal proceedings prosecuted by ICE before an Immigration Judge, are federal programs.
80. The regulations implementing Section 504 prohibit entities receiving federal financial assistance from utilizing “criteria or methods of administration (i) that have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap, (ii) that have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the recipient’s program or activity with respect to handicapped persons.” 34 C.F.R. § 104.4(b)(4).
81. In separating V.F.B. from her mother and detaining daughter and parent thousands of miles apart, the Defendants have exacerbated V.F.B.’s disabilities, interfered with her ability to meaningfully participate in immigration proceedings, excluded her from the protections afforded by the asylum statutes, and discriminated against V.F.B. on the basis of her disability.
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82. Defendants have a legal duty to provide reasonable accommodations to V.F.B. to ensure her meaningful access to the federal program of asylum and removal proceedings.
83. V.F.B. has provided Defendants with notice of her disabilities and requested reasonable accommodations no later than service of this pleading. Defendants have not granted these requests.
84. There are effective reasonable accommodations that Defendants could implement. In particular, Defendants could immediately cease the forced separation of V.F.B. from her mother. Defendants have failed to implement any reasonable accommodations.
85. The reasonable accommodation requested by V.F.B. would not be unduly burdensome nor would it require a fundamental alteration in the program. The burden of showing that any such relief or accommodation would require a fundamental alteration or pose an undue burden rests with Defendants. 6 C.F.R. § 15.50(a)(2).
86. By forcibly separating V.F.B. from her mother, Defendants have denied V.F.B. equal and effective access to a federal program.
87. As a result of this discrimination and failure to reasonably accommodate V.F.B.’s disabilities, and solely based on her disability, V.F.B. cannot receive the benefits of the asylum process or the placement by Defendants in a children’s shelter in Connecticut.
COUNT IV (Violation of Administrative Procedure Act) 88. All of the foregoing allegations are repeated and realleged as though fully set forth herein. 89. The Administrative Procedure Act (“APA”) prohibits agency action that is arbitrary and capricious.
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90. The forcible separation of V.F.B. from her mother and the decision to detain them thousands of miles from one another constitutes final agency action under the APA.
91. Defendants’ separation of V.F.B. from her mother without a legitimate justification is arbitrary and capricious and accordingly violates the APA. 5 U.S.C. § 706.
92. ORR’s decision to apply its policies and procedures for “sponsoring” an “unaccompanied alien child” to the parents who were forcibly separated from their children by the U.S. government is also a final agency action for purposes of the APA.
93. In light of ORR’s mission to “promptly place” minors into “the least restrictive setting that is in the best interest of the child,” ORR’s insistence that V.F.B. remain detained and separated from her mother is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.
COUNT V (Violation of Equal Protection Guarantee) 94. All of the foregoing allegations are repeated and realleged as though fully set forth herein. 95. The Fifth Amendment contains an implicit guarantee of equal protection that invalidates any official action that in part reflects a racially discriminatory intent or purpose. Classifications based on race or national origin receive exacting scrutiny, and even facially neutral policies and practices will be held unconstitutional when they reflect a pattern unexplainable on grounds other than race or national origin. 96. Defendants’ decisions to separate families from Central and South America arriving at the southern border seeking asylum, and to isolate children in detention facilities separate from their parents, are unconstitutional because they were motivated, at least in part, by intentional discrimination based on race, ethnicity, and/or national origin. This intentional
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discrimination includes bias against immigrants perceived to come from Central or South American countries.
97. As a result of these decisions, including the decisions that have caused the separation of V.F.B. from her mother, V.F.B. has been and is being denied equal protection.
COUNT VI (Declaratory Judgment Act) 98. All of the foregoing allegations are repeated and realleged as though fully set forth herein. 99. The Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, provides that “[i]n a case of actual controversy within its jurisdiction . . . any court of the United States . . . may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a). 100. There is an actual controversy between the parties because Defendants have refused to immediately release V.F.B. The Court should exercise its authority under the Declaratory Judgment Act to declare that Defendants have no basis to refuse to release V.F.B. and to order Defendants to immediately release V.F.B., into the custody of her mother or another suitable relative as directed by her mother.
PRAYER FOR RELIEF WHEEFORE, Plaintiff respectfully requests that the Court enter a judgment against Defendants and award the following relief: A. Declare that Defendants have no basis to hold or maintain custody over V.F.B.; B. Declare that Defendants’ failure to reasonably accommodate V.F.B.’s disabilities, or their failure to provide V.F.B. equal and effective access to a federal program, violates Section 504 of the Rehabilitation Act of 1973;
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C. Declare that Defendants must immediately release V.F.B. into the custody of her mother, or to such other suitable adult as her mother may direct;
D. Order Defendants to produce the mother of V.F.B. in the District of Connecticut, on a writ of habeas corpus ad testificandum or otherwise, so that she may visit in person with her daughter V.F.B. so as to advise this Court whether V.F.B.’s mother requests her daughter’s immediate release to another suitable relative or continued detention, together with her mother, for as long as Defendants detain them both;
E. Preliminarily and permanently enjoin Defendants from continuing to separate V.F.B. from her mother and from refusing to release V.F.B. into the custody of her mother, or to such other suitable adult as V.F.B.’s mother may direct;
F. Grant a writ of Habeas Corpus requiring Defendants to release V.F.B. immediately to the custody of her mother or such other suitable relative as her mother may direct, or issue an order directing the Defendants to show cause within three days why the writ should not be granted, pursuant to 28 U.S.C. § 2243;
G. Require Defendants to pay Plaintiff’s reasonable attorneys’ fees and costs; and H. Grant all other relief that is just and proper.

Dated: July 2, 2018 New Haven, Connecticut
Respectfully submitted,
/s/ Muneer I. Ahmad
Amit Jain, Law Graduate Aseem Mehta, Law Student Intern* Carolyn O’Connor, Law Student Intern* Hannah Schoen, Law Student Intern* Muneer I. Ahmad (ct28109) Marisol Orihuela†

Joanne Lewis (ct06541) Joshua Perry† Connecticut Legal Services, Inc. 16 Main Street New Britain, CT 06051 860-357-9302

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Case 3:18-cv-01110-VAB Document 1 Filed 07/02/18 Page 21 of 21

Michael J. Wishnie (ct27221) Jerome N. Frank Legal Svcs. Org. Yale Law School** 127 Wall Street New Haven, CT 06511 203-432-4800 muneer.ahmad@ylsclinics.org marisol.orihuela@ylsclinics.org michael.wishnie@ylsclinics.org

jlewis@connlegalservices.org jperry@connlegalservices.org
Counsel for Plaintiff-Petitioner

* Motion for law student appearance forthcoming. † Application for admission forthcoming. ** This complaint and petition has been prepared by a program affiliated with Yale Law School,
but does not purport to present the school’s institutional views, if any.

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