Case 2:05-cv-03604-DDP-RZ Doccu· ment 50 Filed 08/16/2006 Page 1 of 17

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FILED

"

CLERK. U.S. DtsnllC1' COURT,'

AUG I 62006

CENTRAL OIST CT OF CAUFORNIA

BY / '

DEPUTY

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Priority Send Cisd Enter
d.86fJS·6 JS·2/JS·3 Scan Only

v

ENTERED

CLERK. U S, DISTRICT COURT

"

UNITED STATES DISTRICT COURT . AUG I 1 2006

CENTRAL DISTRICT OF CALI FORNI \~v

CENTRAL OISTRICT OF CALIFORNIA

BY

OEPUTY

11 LUIS JAVIER PEREZ-OLANO;
MANUEL GOMEZ; MICHAEL YUBAN
12 OBANDO; CASA LIBRE YOUTH
SHELTER; LUCIA UREY; MAE JEAN 13 ROBINSON; LUIS MIGUEL
MORALES; YAN JUN LI; FREDDY 14 GARRIDO-MARTINEZ,

15

Plaintiff,

Case No. CV 05-03604 DDP (RZx)
AMENDED ORDER DENYING IN PART AND GRANTING IN PART MOTION TO DISMISS
[Motion filed on 06/02/06]

16

v.

17 ALBERTO GONZALEZ, Attorney General; ROBER':!' S. ~IUELLER,
18 Director Federal Bareaa of
Iuvestigatioll; MICHAEL 19 CHERTOFF, Secretary of
Homeland Security; OFFICE OF 20 REFUGEE RESETTLEMENT ,

rHIS CONSTITUTES NOTICE OF ENTRY AS REQUIRED BY FRCP, RULE 77{d).

21

Defendants.

22

23

24

This matter is before the Court on the Defendants' motion to

25 dismiss pursuant to Federal Rules of Procedure 12(b) (1) and

26 12(b) (6). After reviewing the submissions of the parties and

27 hearing oral argument, the Court grants the mot1on in part and

28 denies the motion in part.

---------------
Case 2:05-cv-03604-DDP-RZ

Document 50

Filed 08/16/2006 Page 2 of 17

1 I. BACKGROUND
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2

This is an action for declaratory, injunctive, and mandam'IJus

3 relief against certain policies, practices, and regulations

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4 promulgated and followed by the Defendants - Attorney General

5 Alberto Gonzalez, Secretary of Homeland Security Michael Chertoff,

6 and the Office of Refugee Resettlement ("ORR"). The Plaintiffs

7 challenge the implementation of the special immigrant juvenile

8 ("SIJ") provisions of the Immigration and Nationality Act. 8 U.S.C.

9 §§ 1101 (a) (27) (J) & 1255 (a) (2000). These provisions create a

10 method for abused, neglected, and abandoned minors to become lawful

11 residents of the United States. Section 1101 (a) (27) (J) outlines the

12 procedure for obtaining SIJ status. If a minor is granted SIJ

13 status, he may apply for the status of lawful permanent resident

14 under section 1255. The Plaintiffs' claims arise out of both the

15 process for attaining SIJ status and the process of attaining

16 lawful permanent resident status that often follows the SIJ

17 determination.

18

The operative complaint is the Third Amended Complaint

19 ("TAC"). The Plaintiffs bring five causes actions on their behalf

20 and on behalf of those similarly situated: (1) unlawful

21 interference with access to courts for in-custody minors; (2)

22 denial of due process for in-custody minors; (3) promulgation of

23 and adherence to regulations without statutory authority; (4)

24 unreasonable delays in adjudicating applications for SIJ

25 classification and adjustment; and (5) denying minors in removal

26 proceedings adjudication of SIJ-based adjustment applications.

27

The Defendants now move to dismiss all five claims for lack of

28 subject matter jurisdiction and for failure to state a claim.

2

Case 2:05-cv-03604-DDP-RZ Document 50 Filed 08/16/2006 Page 3 of 17

1 Additionally, the Defendants seek to dismiss certain Plaintif,f.-,,s and

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2 claims for lack of standing.

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4 II. DISCUSSION

5

A. Article III Standing Requirements

6

Standing is a jurisdictional limitation on all federal courts

7 and an essential part of the Article III -case or controversy"

8 requirement. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560

9 (1992). To establish standing to bring a claim, the Plaintiffs must

10 show three elements: (1) an injury in fact, which is -(a) concrete

11 and particularized, and (b) actual or imminent, not conjectural or

12 hypothetical;" (2) a causal connection between the injury and the

13 challenged conduct; and (3) a likelihood that the injury will be

14 redressed by a favorable decision, i.e., that the prospect of

15 obtaining relief is not -too speculative." Bras v. Cal. Pub. Util.

16 Comm., 59 F.3d 869, 872 (9th Cir. 1995) (citing Lujan, 504 U.S. at

17 559).

18

The Defendants argue that four of the Plaintiffs (Perez-Olano,

19 Obando, Gomez, and Casa Libre) lack standing to bring any of the

20 five asserted claims. The Defendants also argue that some of the

21 claims should be dismissed because none of the Plaintiffs have

22 standing to bring the claims. The Court begins by examining the

23 allegations regarding the four plaintiffs.

24

1. Perez-Olano, Obando, & Gomez

25

The Defendants contend that the named-plaintiffs Perez-Olano,

26 Obando, and Gomez should be dismissed for lack of standing because

27 they have not -demonstrated a semblance of threatened or actual

28 injury." (Mot. 38.) These Plaintiffs have not suffered an actual

3

Case 2:05-cv-03604-DDP-RZ Document 50 Filed 08/16/2006 Page 4 of 17

1 injury because all were granted adjustment of status as SIJs ,,.bJ efore

2

they were beyond the age

eligible

for

SIJ status

(i.e.

these

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3 Plaintiffs were not "aged-out.")

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4

However, because of the nature of this case, there is a

5 possibility that any named-plaintiff's case would become moot

6 before trial. Therefore, this presents a situation potentially

7 avoiding review. Where changes in the circumstances of certain

8 plaintiffs make their claims moot, the Ninth Circuit has held that

9 such cases are not moot as long as the challenged governmental

10 policy is on-going. Or. Advocacy Ctr. v. Mink, 322 F.3d 1101, 1118

11 (9th Cir. 2003). Thus, because the TAC challenges governmental

12 policies and not just the specific injuries of Perez-Olano, Obando,

13 and Gomez, they have standing.

14

2. Casa Libre

15

The Defendants also contend that Casa Libre lacks standing

16 "separate and apart" from the individually-named Plaintiffs and

17 should be dismisses because it "has no personal stake in the

18 instant litigation." (Mot. 41.) The Plaintiffs argue that Casa

19 Libre has associational standing.

20

In Hunt v. Washington State Apple Advertising Commission, the

21 Supreme Court laid out a three-pronged test for determining when an

22 organization has standing to bring claims. 432 U.S. 333, 343

23 (1977). The Court explained that an association has standing to

24 bring suit on behalf of its members when: "(a) its members would

25 otherwise have standing to sue in their own right; (b) the

26 interests it seeks to protect are germane to the organization's

27 purpose; and (c) neither the claim asserted nor the relief

28 III

4

Case 2:05-cv-03604-DDP-RZ Document 50 Filed 08/16/2006 Page 5 of 17

1 requested requires the participation of individual members

2 lawsuit." rd.

3

Here, the Plaintiffs describe the juveniles that Casa

4 serves as members of the organization. (Opp'n 17.) Organizations

5 that serve to protect certain classes of persons may bring standing

6 on behalf of the beneficiaries of their efforts if the other

7 standing requirements are met. Or. Advocacy Ctr., 322 F.3d at 1110.

8 First, Perez-Olano, Obando, and Gomez were residents (i.e. members)

9 of Casa Libre and all three have standing to sue in their own

10 right. Second, Casa Libre represents the interests of abused,

11 abandoned, and neglected children. Third, the Plaintiffs seek

12 general equitable relief, which does not require individual

13 participation. (Opp'n 17 18.) Thus, Casa Libre satisfies all three

14 Hunt prongs for associational standing.

15

3. Standing for Claim One: Unlawful Interference with

16

In-custody Minors Access to Courts

17

Claim one presents contentions of statutory and constitutional

18 violations associated with the Defendants' treatment of in-custody

19 minors who may be eligible for SIJ status. The TAC describes

20 general and specific allegations regarding when the Defendants give

21 their consent for in-custody minors to have a state dependency

22 hearing. The claim presents five prongs. The third prong argues

23 that the Defendants are only giving consent to minors that they

24 plan to release. (Claim l(c).) The fourth prong asserts that the

25 Defendants are discouraging and preventing third parties from

26 seeking state hearings. (Claim 1(d).) The Defendants argue that

27 these two prongs should be dismissed because the Plaintiffs have

28 III

5

Case 2:05-cv-03604-DDP-RZ Document 50 Filed 08/16/2006 Page 6 of 17

1 not presented any specific allegations describing such

2 circumstances.

3

The Defendants are correct. The TAC does not contain

4 allegations of these facts in reference to any of the presented

5 plaintiffs. The Plaintiffs submitted three different declarations

6 asserting that contracts with the ORR prohibit facilities and

7 shelters "from assisting youth become state court dependents even

8 when they know that a given youth has been abused, abandoned, or

9 neglected." (Batra Decl. 1. i see also Kim Decl. 2. i Upton Decl. 2.)

10 Although these declarations support the allegations of claim 1(d),

11 they are not part of the TAC. Therefore, the Court dismisses claim

12 1(c) without prejudice.

13

As the Plaintiffs have not presented any allegations or

14 documentation regarding their assertion that the Defendants are

15 only giving consent to minors that they plan to release, the Court

16 also dismisses claim 1(d) without prejudice.

17

4. Claim Two: Denial of Due Process in Decision to Give

18

In-Custody Minors Consent to State Hearings

19

Claim two sets forth allegations regarding violations of the

20 due process rights for in-custody minors when they seek consent to

21 proceed to a state dependency court. The Plaintiffs describe a

22 situation with several due process concerns. They allege inter alia

23 that there are no evidentiary hearings, no chances to review or

24 rebut witnesses and evidence, and no rights of appeal. This cause

25 of action is divided into six prongs presenting six different

26 examples of alleged due process violations. The Defendants urge

27 dismissal of the second and third claims based on lack of standing.

28 III

6

Case 2:05-cv-03604-DDP-RZ Document 50 Filed 08/16/2006 Page 7 of 17

1

The second prong asserts that the Defendants wrongfully ,geny

2 in-custody minors their "right to see or rebut adverse witne~.'~es

orIJ ... 3 and secret evidence." (Claim 2 (b) .) The Defendants argue that,jthis

4 prong fails for lack of standing, as no named Plaintiffs have

5 suffered an injury of that nature.

6

Plaintiff Li presents sufficient allegations to demonstrate

7 standing for this claim. Li was an in-custody minor who requested

8 permission to have a state dependency hearing. The Defendants

9 withheld consent to such a hearing. The Plaintiffs allege that the

10 Defendants used information from Li's shelter file to make its

11 decision to withhold consent, but did not provide that information

12 to Li or her counsel. (TAC 24-25.)

13

The Defendants argue that such evidence should not be

14 considered "secret" because Li "the source of the germane

15 information" and therefore "undoubtedly aware of what she had

16 informed others." (Mot. 31.) The Defendants argue Li should have

17 known what others wrote about her in her shelter file. According to

18 the allegations, Li was neither informed of the nature of the

19 evidence used in reviewing her case, nor was she allowed to review

20 the evidence. Being the subject of a report or file does not

21 necessarily inform one of what the file contains. By not allowing

22 Li to review the material, she was not able to challenge it, check

23 it for errors, or even verify that the file was indeed about her.

24 Therefore, the court finds that the Plaintiffs have standing to

25 present this claim.

26

The third prong of claim two asserts that the Defendants

27 wrongfully deny in-custody minors "right[s] to appointed counsel,

28 guardians ad litem or interpreters." (TAC 28.) The Defendants argue

7

Case 2:05-cv-03604-DDP-RZ Document 50 Filed 08/16/2006 Page 8 of 17

1 that they Plaintiffs do not have standing because no one has ")
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2 requested interpreters or guardians ad litem. At this stage ~ffi the
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3 pleadings, the Court takes all allegations in the TAC as true..1 The

4 Defendants' assertion that no one has requested such assistance is

5 a factual dispute. Therefore, the Court denies the motion dismiss

6 this claim for lack of standing.

7

5. Claim Four: Delay and Deprivation of Lawful Right of

8

Permanent Residence

9

The fourth claim for relief asserts that the Defendants

10 unreasonably, unnecessarily, and unlawfully delay in adjudicating

11 applications for SIJ classification and adjustment of status. (TAC

12 28-29.) The Defendants argue that the Plaintiffs lack standing to

13 bring this claim. (Mot. 35.) The Defendants discuss the

14 circumstances surrounding each of the currently-named Plaintiffs,

15 arguing that none of them have been subject to unreasonable delay.

16

However, the Plaintiffs have set forth allegations of delay

17 and denial of permanent residence status. Whether such delay

18 actually occurred and whether such delay was unreasonable are

19 questions of fact. Therefore, the court holds that the Plaintiffs

20 have set forth adequate allegations, and the Court denies the

21 motion to dismiss claim four for lack of standing.

22

B. Failure to State a Claim

23

Dismissal under Federal Rule of Civil Procedure 12 (b) (6) is

24 appropriate "only if it is clear that no relief could be granted

25 under any set of facts that could be proved consistent with the

26 allegations." Newman v. Universal Pictures, 813 F.2d 1519, 1521- 22

27 (9th Cir. 1987) (quoting Hishon v. King & Spaulding, 467 U.S. 69,

28 73 (1984)). Accordingly, the court must "accept all factual

8

Case 2:05-cv-03604-DDP-RZ Document 50 Filed 08/16/2006 Page 9 of 17

1 allegations of the complaint as true and draw all reasonable r::;
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2 inferences in favor of the nonmoving party." Arpin v. Santa CJ;-ara

3 Valley Transp. Agency, 261 F.3d 912, 923 (9th Cir. 2001).

4

When a federal court reviews the sufficiency of a complaint,

5 the issue is not whether a plaintiff will ultimately prevail but

6 whether the claimant is entitled to offer evidence to support the

7 claims. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The Court need

8 not accept conclusory legal assertions as true. Benson v. Ariz.

9 State Bd. of Dental Exam'rs, 673 F.2d 272, 275-76 (9th Cir. 1982).

10

1. Claim One: Unlawful Interference with Access to

11

Courts

12

The Plaintiffs' first claim for relief is "unlawful

13 interference with in-custody minors' access to state dependency

14 courts" and is subdivided in five prongs. (TAC 26 27.) The

15 Plaintiffs assert that the Defendants interfere with in-custody

16 minor's access to state courts by requiring the minors to get the

17 Defendants' permission before going to state court. (Claim l(a).)

18 The Plaintiffs assert that this usurps the state role. (Claim

19 1(b).) Additionally, the Plaintiffs complain that the Defendants

20 only give consent for minors they plan to release. (Claim 1(c).)

21 The Plaintiffs also assert that the minors' rights are violated by

22 the Defendants preventing and discouraging third parties from

23 seeking state hearings on the minors' behalf. (Claim l(d).)

24 Finally, the Plaintiffs contend that the minors' rights are

25 violated because the Defendants do no take any affirmative steps to

26 help in-custody minors with this process. (Claim l(e).) The Court

27 addresses these components in turn.

28 III

9

Case 2:05-cv-03604-DDP-RZ Document 50 Filed 08/16/2006 Page 10 of 17

1

a. Prongs (a) and (b)

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2

The Defendants argue that elements (a) and (b) should be~~

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3 dismissed because they fail to state a claim upon which reliefJ,",may

4 be granted. (Mot. 22.) The Plaintiffs argue that the Defendants

5 improperly withhold their consent from minors who wish to have a

6 state juvenile court proceeding. The Plaintiffs argue that the

7 Defendants are violating 8 U.S.C. section 1101(a) (27) (J) by

8 requiring Department of Homeland Security ("DHS") consent as a

9 precondition to a state court exercising jurisdiction over an in-

10 custody minor. The parties offer differing interpretations of

11 section 1101 (a) (27) (J), which states:

12

The term "special immigrant" means--

(J) an immigrant who is present in the United States--

13

(i) who has been declared dependent on a juvenile

court located in the United States or whom such

14

a court has legally committed to, or placed under

the custody of, an agency or department of a

15

State and who has been deemed eligible by that

court for long- term foster care due to abuse,

16

neglect, or abandonment;

(ii) for whom it has been determined in administrative

17

or judicial proceedings that it would not be in

the alien's best interest to be returned to the

18

alien's or parent's previous country of

nationality or country of last habitual

19

residence; and

(iii) in whose case the Attorney General expressly

20

consents to the dependency order serving as a

precondition to the grant of special immigrant

21

juvenile status; except that--

(I) no juvenile court has jurisdiction to

22

determine the custody status or placement of

an alien in the actual or constructive

23

custody of the Attorney General unless the

Attorney General specifically consents to

24

such jurisdiction; and

(II) no natural parent or prior adoptive parent

25

of any alien provided special immigrant

status under this subparagraph shall

26

thereafter, by virtue of such parentage, be

accorded any right, privilege, or status

27

under this chapter;

28 8 U.S.C. § 110l(a) (27) (J).

10

Case 2:05-cv-03604-DDP-RZ Document 50 Filed 08/16/2006 Page 11 of 17

1

The Plaintiffs interpret this statute to bar a state cou·rt

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2 from exercising jurisdiction to determine the custody status ;r('or

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3 placement) of an in-custody minor without the Defendants' consent.

4 (Opp'n 2.) They assert that the Defendants are going beyond this to

5 bar state courts from exercising any jurisdiction whatsoever over

6 an in-custody minor "whether or not that court attempts to

7 determine the minor's custody status or placement." (l£:L. at 3

8 (emphasis omitted).) Specifically, the Plaintiffs argue that

9 nothing in the statute necessarily requires that a state court

10 determination of whether a minor is abused, abandoned, or neglected

11 to result in an alteration of the child's custody status.

12

The Defendants dispute the Plaintiffs' interpretation of the

13 statute. They argue that the where a state court issues an order

14 finding a minor "dependent on a juvenile court located in the

15 United States or whom such a court has legally committed to, or

16 placed under the custody of, an agency or department of a State,"

17 that court is altering the custody status of that minor. The

18 Defendants assert that a declaration that a minor is a dependent of

19 a court is the equivalent of an alteration in custody status. (Mot.

20 23.) Therefore, the Defendants argue, DHS consent is required

21 before any state court can exercise jurisdiction over an alien

22 minor.

23

The Court disagrees with the Defendants' interpretation of the

24 statute. The plain language of the statue does not require DHS

25 consent in all cases. Pursuant to section 1101 (a) (27) (J), if a

26 state juvenile court either (1) declares a minor dependent on the

27 /1/

28 /11

11

Case 2:05-cv-03604-DDP-RZ Document 50 Filed 08/16/2006 Page 12 of 17

1 court or (2) legally commits' the minor to a state agency, the .1",1 y;J
2 minor may be eligible for SIJ status if he meets additional ;",~
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3 criteria. The state juvenile court must also deem the minor u
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4 eligible for foster care due to "abuse, neglect, or abandonment." §

5 1101(a) (27) (J) (I). No minor may obtain S1J status without the

6 express consent of the Attorney General. Further, no state court

7 has the jurisdiction to determine "the custody status or placement

8 of an alien in the actual or constructive custody of the Attorney

9 General." § 1101 (a) (27) (J) (iii) (I) .

10

The Defendants argue that this language prohibits state courts

11 from holding dependency hearings because such hearings would

12 necessarily involve alterations of custody status. (Mot. 23.)

13 However, such hearings need not involve alterations of custody

14 status. If a state hearing determines that a minor is eligible for

15 foster-care and declares the minor to be a dependant of the court,

16 the minor may qualify for SIJ status. The S1J statute explains that

17 the state court could declare the minor dependant on the court OR

18 legally commit the minor to state agency (or place the minor under

19 the custody of a state agency). Thus, although the SIJ statute

20 envisions some state dependency courts making decisions that may

21 affect the custody status of minors, they need not do so to enable

22 the minor to attain SIJ status. Therefore, the Court holds that the

23 Plaintiffs have adequately stated a claim under these two prongs.

24 III 25 III 26 III

27

28

"or placers] under the custody ofll

12

Case 2:05-cv-03604-DDP-RZ Document 50 Filed 08/16/2006 Page 13 of 17

1

b. Prongs (c) & (d)

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2

The Defendants argue that these claims should be dismiss~d for

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3 lack of standing. As discussed above, the Court dismisses cla-im

4 l(c) and l(d) without prejudice.

5

c. Prong (e)

6

In their fifth prong, the Plaintiffs contend that the

7 Defendants have failed in their obligation to take affirmative

8 steps to assist in-custody minors seeking state dependency court

9 protection. However, the Defendants have no such a duty. Therefore,

10 the Court dismisses prong (e) with prejudice for failure to state a

11 claim.

12

2. Claim Two: Denial of Due Process

13

The Plaintiffs' second claim for relief is "[d] enial of due

14 process in consent to jurisdiction determinations" and contains

15 specific assertions of due process concerns. (TAC 27 28.) According

16 to these allegations, in-custody minors are denied essential

17 elements of due process.

18

The Defendants determine whether these minors may have state

19 dependency hearings. When making that assessment, the Defendants

20 review evidence to determine what they believe a state court will

21 find. The Defendants do not have evidentiary hearings during this

22 process, do not give the minors access to the information used in

23 making the assessment, do not allow appeal of the decision, and do

24 not provide guardians ad litem or interpreters. Additionally, the

25 Plaintiffs complain that the Defendants use confidential

26 information such as therapists' reports. The Plaintiffs argue that

27 the current policy does not enable decision-making by a neutral and

28 III

13

Case 2:05-cv-03604-DDP-RZ Document 50 Filed 08/16/2006 Page 14 of 17

1 detached decision-maker, and the decisions are not made unde~~

2
3

clearly defined and The Plaintiffs

consistent legal standards. present their arguments based

on

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of

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4 due process concerns. The Defendants do not deny the allegations

5 but instead discuss each individual assertion, arguing that the in-

6 custody minors are not entitled to that asserted due process right.

7 Determining the level of due process the law requires involves a

8 balancing of factors outlined by the Supreme Court in Mathews v.

9 Eldridge:

10

First, the private interest that will be affected by the

official action; second, the risk of an erroneous

11

deprivation of such interest through the procedures used,

and the probable value, if any, of additional or substitute

12

procedural safeguards; and finally, the Government's

interest, including the function involved and the fiscal

13

and administrative burdens that the additional or

substitute procedural requirement would entail.

14

15

At this stage in the proceedings, it is not clear what

16 procedures and resources are currently available to the minors nor

17 can the Court determine what type of proceedings will be necessary

18 to satisfy the requirements of due process. The Plaintiffs have

19 adequately alleged a host of due process concerns. Instead of

20 engaging in a piecemeal analysis of each alleged deprivation or

21 faulty procedure. the Court finds it proper to allow this case to

22 go forward through discovery. Resolution of the proper level of due

23 process for these minors' belongs more properly in a summary

24 judgment proceeding.

25

3. Claim Three: Promulgation of and adherence to

26

regulations without statutory authority

27

The third claim for relief asserts that the Defendants

28 promulgated and adhered to regulations without statutory authority.

14

Case 2:05-cv-03604-DDP-RZ Document 50 Filed 08/16/2006 Page 15 of 17

1 Specifically, the Plaintiffs assert that 8 C.F.R. parts 204.1b(c)

2 and 205.1(d) are invalid and violate federal statutes.

3

Section 204.11(c) states:

(TAC

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4

Eligibility. An alien is eligible for classification as a

special immigrant under section 101 (a) (27) (J) of the Act if

5

the alien:

(1) Is under twenty-one years of age;

6

(2) Is unmarried;

(3) Has been declared dependent upon a juvenile court

7

located in the United States in accordance with

state law governing such declarations of

8

dependency, while the alien was in the United

States and under the jurisdiction of the court;

9

(4) Has been deemed eligible by the juvenile court

for long-term foster care;

10

(5) Continues to be dependent upon the juvenile court

and eligible for long-term foster care, such

11

declaration, dependency or eligibility not having

been vacated, terminated, or otherwise ended; and

12

(6) Has been the subject of judicial proceedings or

administrative proceedings authorized or

13

recognized by the juvenile court in which it has

been determined that it would not be in the

14

alien's best interest to be returned to the

country of nationality or last habitual residence

15

of the beneficiary or his or her parent or

parents; or

16

(7) On November 29, 1990, met all the eligibility

requirements for special immigrant juvenile

17

status in paragraphs (c) (1) through (c) (6) of

this section, and for whom a petition for

18

classification as a special immigrant juvenile is

filed on Form 1-360 before June 1, 1994.

19

20

The Plaintiffs have not explained which element of this

21 regulation violates the federal law, nor have they presented

22 arguments explaining how they violate the statute. Further, section

23 205.1(d) does not exist; 8 C.F.R. part 205.1 only contains subparts

24 (a) and (b). Because of the lack of clarity in the TAC, the Court

25 dismisses this claim without prejudice. The Plaintiffs must set

26 forth the specific portions of the regulations that they believe

27 violate the statutes. Broad allegations of invalidity provide

28 III

15

Case 2:05-cv-03604-DDP-RZ Document 50 Filed 08/16/2006 Page 16 of 17

1 neither the Defendants nor the Court with adequate informatio~~

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2 regarding claims.

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3

4. Claim Five: Denying minors in removal proceedings

,~

4

adjudication of S1J-based adjustment applications

5

The fifth claim asserts that the Defendants unlawfully "deny

6 minors in removal proceedings adjudication of S1J-based adjustment

7 applications." (TAC 29.) This claim relates to minors who may be

8 eligible for SIJ status (and therefore adjustment of status based

9 on their S1J status) who have removal proceedings pending. The Code

10 of Federal Regulations states that "[i]n the case of any alien who

11 has been placed in deportation proceedings or in removal

12 proceedings ... , the immigration judge hearing the proceeding has

13 exclusive jurisdiction to adjudicate any application for adjustment

14 of status the alien may file." 8 C.F.R. § 1245.2(a) (1) (I) (2006).

15 The Plaintiffs challenge this regulations which grant immigration

16 judges the exclusive authority to decide SIJ adjustment

17 applications filed by individuals in removal proceedings. The

18 Plaintiffs assert that in some situations this exclusive

19 jurisdiction effectively bars statutorily eligible minors from even

20 applying for SIJ adjustment.

21

Once removal proceedings have ended, immigrations judges have

22 exclusive authority to decide SIJ adjustment applications. They may

23 do so through a motion to reconsider the removal decision. The

24 regulations state that a motion to reconsider must be filed within

25 ninety days of the immigrations judges final order. 8 C.F.R. §

26 1003.23 (b) (1) .

27

A problem arises when there are delays in the process to

28 attain SIJ status. The Plaintiffs have alleged that in some

16

Case 2:05-cv-03604-DDP-RZ Document 50 Filed 08/16/2006 Page 17 of 17

1 situations it has taken several years for eligible minors to obtain ,~:~
2 SIJ status. Potentially eligible minors may not file adjustmen~~ ''-it'
3 applications until they obtain SIJ status. Because of the nine~~

4 day limit imposed by the regulations, potentially eligible youths

5 do not have the opportunity for their SIJ adjustment application to

6 be considered.

7

The Defendants describe the Plaintiffs' claim as seeking to

8 create a new legal rule that would allow unlimited reopening of

9 removal proceedings. The arguments set forth by the Plaintiffs are

10 not unlimited; they pertain to a class of minors who are SIJ-

11 eligible but have not yet had the opportunity to apply for SIJ -

12 adjustment. It is not clear that the ninety-day limit is

13 appropriate. It may frustrate congressional intent to allow SIJ-

14 based adjustment of status. Therefore, the Court denies the motion

15 to dismiss this claim.

16

17 III. CONCLUSION

18

For the foregoing reasons, the Court grants in part and denies

19 in part the defendants' motion to dismiss. The Court grants the

20 motion to dismiss claims l(c), l(d), and 3 without prejudice, and

21 dismisses claim 1(e) with prejudice. The Court denies the motion to

22 dismiss as it pertains to all other claims. The Plaintiffs have

23 thirty (30) days from the date of this order to file an fourth

24 amended complaint.

25
26 IT IS SO ORDERED.
27 Dated: 6- /6-0(;

DM~

28

United States District Judge

17

 
 Case 2:05-cv-03604-DDP-RZ Document 121 Filed 01/08/2008 Page 1 of 50

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

11 LUIS JAVIER PEREZ-OLANO;

) Case No. CV 05-03604 DDP (RZx)

MANUEL GOMEZ; MICHAEL YUBAN )

12 OBANDO; CASA LIBRE YOUTH

) ORDER GRANTING IN PART AND

SHELTER; LUCIA UREY; MAEJEAN ) DENYING IN PART PLAINTIFFS’

13 ROBINSON; LUIS MIGUEL

) MOTION FOR CLASS CERTIFICATION

MORALES; YAN JUN LI; FREDDY ) AND GRANTING IN PART AND DENYING

14 GARRIDO-MARTINEZ,

) IN PART PLAINTIFFS’ MOTION FOR

) PARTIAL SUMMARY ADJUDICATION

15

Plaintiffs, )

) [Motion for Class Certification

16

v.

) filed on May 30, 2007]

)

17 ALBERTO GONZALEZ, Attorney ) [Motion for Partial Summary

General; ROBERT S. MUELLER, ) Adjudication filed on October 1,

18 Director Federal Bureau of ) 2007]

Investigation; MICHAEL

)

19 CHERTOFF, Secretary of

)

Homeland Security; OFFICE OF )

20 REFUGEE RESETTLEMENT ,

)

)

21

Defendants. )

___________________________ )

22

23

This matter is before the Court on the Plaintiffs’ motion for

24 class certification, and Plaintiffs’ motion for partial summary

25 adjudication. Plaintiffs are immigrant youth that bring this

26 action to challenge certain of Defendants’ policies, practices, and

27 regulations with respect to the special immigrant juvenile

28 provisions of the Immigration and Nationality Act.

Case 2:05-cv-03604-DDP-RZ Document 121 Filed 01/08/2008 Page 2 of 50

1

On September 10, 2007, the Court heard oral argument on

2 Plaintiffs’ motion for class certification. The Court deferred

3 ruling on the motion for class certification and invited a motion

4 for summary adjudication on questions of law raised by this action.

5 On November 19, the Court heard oral argument on Plaintiffs’ motion

6 for summary adjudication, and Defendants’ cross-motion for summary

7 judgment.

8

The Court is prepared to rule on both motions and does not

9 need additional oral argument. After reviewing the submissions of

10 the parties and hearing oral argument on the motion for class

11 certification, the Court grants the motion in part and denies the

12 motion in part. After reviewing the submissions of the parties and

13 hearing oral argument on Plaintiffs’ motion for summary

14 adjudication and Defendants’ cross-motion for summary judgment, the

15 Court grants the motions in part and denies the motions in part.

16

17 I. BACKGROUND

18

A. The Special Immigrant Juvenile Provisions of the

19

Immigration and Nationality Act

20

In 1990, Congress enacted the special immigrant juvenile

21 (“SIJ”) provisions of the Immigration and Nationality Act (“INA”).

22 8 U.S.C. §§ 1101(a)(27)(J) & 1255(a). The SIJ provisions created a

23 method for abused, neglected, and abandoned immigrant children to 24 become lawful permanent residents of the United States.1

25

1 Section 1101(a)(27)(J) states:

26

The term "special immigrant" means--

27

(J) an immigrant who is present in the United States-(I) who has been declared dependent on a juvenile

28

court located in the United States or whom such (continued...)

2

Case 2:05-cv-03604-DDP-RZ Document 121 Filed 01/08/2008 Page 3 of 50

1

Pursuant to 8 U.S.C. § 1101(a)(27)(J), immigrant children may

2 petition the U.S. Immigration and Citizenship Services (“CIS”), a

3 bureau of the Department of Homeland Security (“DHS”), to be 4 recognized as special immigrant juveniles.2 In order to be

5 eligible for SIJ classification, 8 U.S.C. § 1101(a)(27)(J) requires

6 that a state court make an SIJ-predicate order, finding 1) that the

7 child is dependent on the court or a state agency; 2) that the

8 child is eligible for long-term foster care due to abuse, neglect

9 or abandonment; and 3) that it would not be in the child’s best

10

11

1(...continued) a court has legally committed to, or placed

12

under the custody of, an agency or department of a State and who has been deemed eligible by that

13

court for long-term foster care due to abuse, neglect, or abandonment;

14

(ii) for whom it has been determined in administrative or judicial proceedings that it

15

would not be in the alien's best interest to be returned to the alien's or parent's previous

16

country of nationality or country of last habitual residence; and

17

(iii)in whose case the Attorney General expressly consents to the dependency order serving as a

18

precondition to the grant of special immigrant juvenile status; except that--

19

(I) no juvenile court has jurisdiction to determine the custody status or placement

20

of an alien in the actual or constructive custody of the Attorney General unless the

21

Attorney General specifically consents to such jurisdiction; and

22

(II) no natural parent or prior adoptive parent of any alien provided special immigrant

23

status under this subparagraph shall thereafter, by virtue of such parentage, be

24

accorded any right, privilege, or status under this Act;

25 8 U.S.C. § 1101(a)(27)(J).

26

2 The Homeland Security Act of 2002 (“HSA”), Pub. L. No. 107296, 116 Stat. 2153 (Nov. 25, 2002), transferred authority to

27

implement the SIJ benefit provisions from the Attorney General to the Secretary of Homeland Security. HSA §§ 471(a), 451(b), and

28

462(c); see also F.L. v. Thompson, 293 F. Supp. 2d 86 (D.D.C. 2003).

3

Case 2:05-cv-03604-DDP-RZ Document 121 Filed 01/08/2008 Page 4 of 50

1 interest to be returned to his or her home country. 8 U.S.C. §

2 1101(a)(27)(J)(I-ii). Once a state court makes an SIJ-predicate

3 order, a child may file with CIS for SIJ-status using an I-360 4 petition.3 A child that is granted SIJ status may then apply for

5 adjustment to lawful permanent resident status under 8 U.S.C. §

6 1255.

7

However, the SIJ statute contains a provision that limits

8 state court jurisdiction with respect to immigrant children in

9 federal custody (“in-custody minors”). A state court may not

10 “determine the custody status or placement” of in-custody minors

11 unless Immigration and Customs Enforcement (“ICE”), a bureau of

12 DHS, specifically consents to state court jurisdiction. 8 U.S.C. §

13 1101(a)(27)(J)(iii)(I). Defendants’ policy construes this

14 provision to require that in-custody minors obtain ICE’s specific

15 consent before proceeding to state court for an SIJ-predicate 16 order.4

17

3 The statute provides that the Attorney General must 18 expressly consent to a state court’s SIJ-predicate order serving as

19

a basis for the granting of SIJ status. 8 U.S.C. § 1101(a)(27)(J)(iii). Since DHS has been transferred authority over

20

the SIJ provisions, see supra footnote 2, it is DHS that determines grants of SIJ status.

21

4 See Pls.’ Ex. 21, Thomas E. Cook, Acting Assistant Director,

22

Adjudications Division, Memorandum for Regional Directors, Special Immigrant Juveniles - Memorandum # 2: Clarification of Interim

23

Field Guidance (July 9, 1999) (“In the case of juveniles in INS custody, the Attorney General’s consent to the juvenile court’s

24

jurisdiction must be obtained before proceedings on issuing a dependency order for the juvenile are begun. Therefore, if a

25

juvenile court issues a dependency order for a juvenile in INS custody without first obtaining the Attorney General’s consent to

the jurisdiction, the order is not valid.”); Pls.’ Ex. 22, William 26 R. Yates, Associate Director for Operations, Memorandum #3 - Field

27

Guidance on Special Immigrant Juvenile Status Petitions (May 27, 2004) (“In the case of juveniles in custody due to their

28

immigration status . . . , the specific consent must be obtained (continued...)

4

Case 2:05-cv-03604-DDP-RZ Document 121 Filed 01/08/2008 Page 5 of 50

1

There are also several regulations that govern SIJ

2 classification and SIJ-based adjustment of status. After enactment

3 of the SIJ statute, the Attorney General enacted “age-out”

4 regulations. See 8 C.F.R. §§ 204.11(c)(1), 204.11(c)(5),

5 205.1(a)(3)(iv)(A, C, & D). Under these regulations, a minor will

6 “age-out” of eligibility if the child turns 21 years old before

7 being granted SIJ status or SIJ-based adjustment, or if the child

8 is no longer dependent on the state court or eligible for long-term

9 foster care. 8 C.F.R. §§ 204.11(c)(1), 204.11(c)(5),

10 205.1(a)(3)(iv)(A, C, & D).

11

A SIJ undergoing removal proceedings is subject to additional

12 regulations. Once a SIJ is in removal proceedings, CIS no longer

13 has authority to adjudicate SIJ-based adjustment applications. A

14 SIJ in removal proceedings may only seek adjustment of status from

15 a Board of Immigration Appeals (“BIA”) or immigration judge, who

16 have exclusive jurisdiction over persons in removal proceedings.

17 See 8 C.F.R. 245.2(a)(1) & 1245.2(a)(1)(I). If a final order of

18 removal is issued, a SIJ must make any motion to reopen removal

19 proceedings within 90 days. 8 C.F.R. § 1003.23(b)(I).

20

B. Plaintiffs’ Challenges to Defendants’ Interpretations

21

of the SIJ Provisions

22

Plaintiffs bring this action for declaratory, injunctive, and

23 mandamus relief from certain policies, practices, and regulations,

24 promulgated and followed by Defendants former Attorney General

25 Alberto Gonzalez, Secretary of Homeland Security Michael Chertoff,

26

27

4(...continued) before the juvenile may enter juvenile court dependency

28

proceedings; failure to do so will render invalid any order issued as a result of such proceedings.” See also (Def.’s Opp’n 4.).

5

Case 2:05-cv-03604-DDP-RZ Document 121 Filed 01/08/2008 Page 6 of 50

1 and the Office of Refugee Resettlement, that implement the SIJ

2 provisions of the Immigration and Nationality Act. See 8 U.S.C. §§

3 1101(a)(27)(J) & 1255(a). Plaintiffs are immigrant youth that have

4 been denied specific consent to state court jurisdiction for an

5 SIJ-predicate order, denied SIJ status or SIJ-based adjustment of

6 status pursuant to the “age-out regulations, and/or are unable to

7 apply for SIJ status or SIJ-based adjustment of status pursuant to

8 the removal regulations.

9

Plaintiffs challenge Defendants’ policy requiring in-custody

10 minors to obtain ICE’s specific consent. Plaintiffs contend that 8

11 U.S.C. § 1101(a)(27)(J) does not authorize Defendants to require

12 specific consent for an SIJ-predicate order because such orders do

13 not “determine the custody status or placement” of an in-custody

14 minor. Defendants counter that a state court’s SIJ-predicate order

15 does alter “custody status or placement” and therefore, specific

16 consent is required before an in-custody minor may seek an SIJ-

17 predicate order in state court.

18

Plaintiffs also challenge the “age-out” regulations. See 8

19 C.F.R. §§ 204.11(c)(1), 204.11(c)(5), 205.1(a)(3)(iv)(A, C, & D).

20 Plaintiffs claim that the regulations impose ultra vires

21 eligibility requirements that cause statutorily eligible youth to

22 “age-out” of SIJ status or SIJ-based adjustment of status.

23 Defendants counter that the “age-out” regulations are reasonable

24 interpretations of the SIJ provisions of the Immigration and

25 Nationality Act, entitled to deference under Chevron U.S.A., Inc.

26 V. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984).

27

Finally, Plaintiffs challenge several regulations that apply

28 to SIJs in removal proceedings. Plaintiffs argue that Defendants’

6

Case 2:05-cv-03604-DDP-RZ Document 121 Filed 01/08/2008 Page 7 of 50

1 regulations unlawfully deny SIJs adjudication of their adjustment

2 of status applications. 8 C.F.R. §§ 245.2(a)(1) & 1245.2(a)(i)(1).

3 Defendants maintain that the INA authorizes the removal regulations

4 and that SIJs are not denied adjudication as Plaintiffs allege.

5

C. Plaintiffs’ Motions

6

On May 30, 2007, Plaintiffs moved for an order certifying the

7 following classes under Federal Rule of Civil Procedure 23(b)(2):

8

All persons who are prima facie eligible for classification

9

as SIJs pursuant to 8 U.S.C. § 1101(a)(27)(J) and:

10

(1) whose requests for specific consent to state court

11

jurisdiction Defendants deny or fail to decide prior

12

to their attaining 18 years of age;

13

(2) whose petitions for SIJ classification Defendants deny

14

or revoke pursuant to 8 C.F.R, § 204.11(c)(1) or (5),

15

or § 205.1(a)(3)(iv)(A), (C), or (D); or

16

(3) whose applications for SIJ-based adjustment of status

17

Defendants refuse to adjudicate pursuant to 8 C.F.R.

18

§§ 245.2(a)(1) and 1245.2(a)(i)(1), and 8 C.F.R. §§

19

1003.2(c)(2) or 1003.23(b)(1).

20 At that time, the Court deferred ruling on the motion for class

21 certification.

22

Plaintiffs now move for partial summary adjudication, and

23 Defendants bring a cross-motion, to address the following issues:

24

(1) whether a state court order finding that an immigrant

25

youth in federal custody is abused, neglected, or

26

abandoned, and that it is not in the youth’s best

27

interest to return to their home country (“SIJ-predicate

28

order”), alters the youth’s “custody status or

7

Case 2:05-cv-03604-DDP-RZ Document 121 Filed 01/08/2008 Page 8 of 50

1

placement,” thereby requiring that the youth obtain the

2

specific consent of ICE to invoke state court

3

jurisdiction for the SIJ-predicate order;

4

(2) whether Defendants may lawfully deny SIJ classification

5

and / or adjustment of status pursuant to 8 C.F.R. §§

6

204.11(c)(1) or (5), and/ or 205.1(a)(3)(iv)(A),(C), or

7

(D); and

8

(3) whether 8 C.F.R. §§ 245.2(a)(1) and 1245.2(a)(i)(1)

9

violate 8 U.S.C. § 1101(a)(27)(J) or deny proposed class

10

members due process as applied to SIJs who become

11

eligible for adjustment of status more than 90 days after

12

being ordered removed.

13 (Pls.’ Mot. 5.)

14

The Court consolidates the motions to rule together on class

15 certification and partial summary adjudication. The Court first

16 considers the motion for class certification, and then turns to the

17 Plaintiffs’ motion for partial summary adjudication and Defendants

18 cross-motion for summary judgment.

19

20 II. PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

21

A. Rule 23 Standard For Class Certification

22

Federal Rules of Civil Procedure Rule 23 outlines a two-step

23 process for determining whether class certification is appropriate.

24 First, Rule 23(a) sets forth four prerequisites that must be met

25 for any class: (1) the class is so numerous that joinder of all

26 members is impracticable; (2) there are questions of law or fact

27 common to the class; (3) the claims or defenses of the

28 representative parties are typical of the claims or defenses of the

8

Case 2:05-cv-03604-DDP-RZ Document 121 Filed 01/08/2008 Page 9 of 50

1 class; and (4) the representative parties will fairly and

2 adequately protect the interests of the class. Fed. R. Civ. P.

3 23(a); see Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir.

4 1992). These four requirements are often referred to as

5 numerosity, commonality, typicality, and adequacy. See General

6 Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 156 (1982); In

7 re Adobe Sys., Inc. Sec. Litig., 139 F.R.D. 150, 153 (N.D. Cal.

8 1991).

9

Assuming the requirements of Rule 23(a) are satisfied, the

10 party seeking class certification must also demonstrate that the

11 action falls within one of the three kinds of actions permitted

12 under Rule 23(b). See Fed. R. Civ. P. 23(b); In re Adobe Sys., 139

13 F.R.D. at 153. An action is proper under Rule 23(b)(2) if the

14 defendant “has acted (or refused to act) in a manner applicable to

15 the class generally, thereby making injunctive or declaratory

16 relief appropriate with respect to the class as a whole.”

17 Schwarzer, supra, at 10-63. Rule 23(b)(2) actions are proper when

18 the class primarily seeks injunctive or declaratory relief. See

19 id. ¶¶ 10:399-400 at 10-66. Recovery of damages is generally not

20 available in a Rule 23(b)(2) class action. Id.

21

In evaluating a motion for class certification, “[t]he court

22 is bound to take the substantive allegations of the complaint as

23 true.” In re Unioil Sec. Litig., 107 F.R.D. 615, 618 (C.D. Cal.

24 1985) (internal quotations omitted). Moreover, “[i]n determining

25 the propriety of a class action, the question is not whether the

26 plaintiff or plaintiffs have stated a cause of action or will

27 prevail on the merits, but rather whether the requirements of Rule

28 23 are met.” Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 178

9

Case 2:05-cv-03604-DDP-RZ Document 121 Filed 01/08/2008 Page 10 of 50

1 (1974) (quoting Miller v. Mackey Int’l, 452 F.2d 424, 427 (5th Cir.

2 1971)). Nonetheless, the plaintiffs bear the burden of

3 establishing each of the required elements for class certification.

4 See In re Unioil Sec. Litig., 107 F.R.D. at 617 (citing In re

5 Northern Dist. of Cal., Dalkon Shield IUD Prods. Liab. Litig., 693

6 F.2d 847, 854 (9th Cir. 1982)). At the class certification stage,

7 the evidence only needs to enable the court to make a “reasonable

8 judgment” that Rule 23 requirements have been met. Blackie v.

9 Barrack, 524 F.2d 891, 901 n.17 (9th Cir. 1975) (holding that “so

10 long as [a district judge] has sufficient material before him to

11 determine the nature of the allegations, and rule on compliance

12 with the Rule's requirements, and he bases his ruling on that

13 material, his approach cannot be faulted because plaintiffs' proof

14 may fail at trial”).

15

B. Analysis

16

The proposed class definition consists of three subclasses:

17

(1) minors whose requests for specific consent to state court

18

jurisdiction Defendants deny or fail to decide prior to

19

their attaining 18 years of age (“specific consent

20

subclass”);

21

(2) youth whose petitions for SIJ classification Defendants

22

deny or revoke pursuant to 8 C.F.R. §§ 204.11(c)(1) or

23

(5), or 205.1(a)(3)(iv)(A), (C), or (D) (“age-out

24

subclass”); and

25

(3) youth whose applications for SIJ-based adjustment of

26

status Defendants refuse to adjudicate pursuant to 8

27

C.F.R. §§ 245.2(a)(1) and 1245.2(a)(i)(1), and 8 C.F.R.

28

10

Case 2:05-cv-03604-DDP-RZ Document 121 Filed 01/08/2008 Page 11 of 50

1

§§ 1003.2(c)(2) or 1003.23(b)(1) (“removal proceedings

2

subclass”).

3 The Court will address each of these proposed subclasses in turn.

4 See Betts v. Reliable Collection Agency, Ltd., 659 F.2d 1000, 1005

5 (9th Cir. 1981) (noting that “each subclass must independently meet

6 the requirements of Rule 23 for the maintenance of a class

7 action.”)

8

1. Specific Consent Subclass

9

The proposed class definition for the specific consent

10 subclass is as follows: minors whose requests for specific consent

11 to state court jurisdiction Defendants deny or fail to decide prior

12 to the their attaining 18 years of age (“specific consent

13 subclass”).

14

a. Numerosity

15

Plaintiffs must first demonstrate that “the class is so

16 numerous that joinder of all members is impracticable.” Fed. R.

17 Civ. P. 23(a)(1). To establish numerosity, plaintiffs are not

18 required to demonstrate the precise number of class members.

19 Welling v. Alexy, 155 F.R.D. 654, 656 (N.D. Cal. 1994). Although

20 plaintiffs need not allege the exact number or identity of class

21 members to satisfy the numerosity requirement, mere speculation as

22 to the number of parties involved is insufficient. Nguyen Da Yen

23 v. Kissinger, 70 F.R.D. 656, 661 (N.D. Cal. 1976). However, where

24 the exact size of the class is unknown, but general knowledge and

25 common sense indicate that it is large, the numerosity requirement

26 is satisfied.” Orantes-Hernandez v. Smith, 541 F. Supp. 351, 371

27 (C.D. Cal. 1982). When the class is not so numerous, courts should

28 consider other factors such as “the geographical diversity of class

11

Case 2:05-cv-03604-DDP-RZ Document 121 Filed 01/08/2008 Page 12 of 50

1 members, the ability of individual claimants to institute separate

2 suits, and whether injunctive or declaratory relief is sought.”

3 Jordan v. Los Angeles County, 669 F.2d 1311, 1319 (9th Cir. 1982),

4 vacated on other grounds, 459 U.S. 810 (1982).

5

Here, although they cannot provide the precise number of

6 potential class members, Plaintiffs maintain that hundreds of

7 individuals that sought specific consent, had ICE deny or fail to

8 decide those requests by the time the individual turned 18 years

9 old. (Pl.’s Mot. 11.) Defendants argue that Plaintiffs have only

10 identified seven instances of individuals that turned 18 years old

11 while their specific consent requests were pending. (Def.’s Opp.

12 12-13.)

13

However, Plaintiffs counter with evidence that at least 164

14 in-custody minors requested specific consent between January 1,

15 2004 to October 2006. The Court notes that Plaintiffs’ challenge

16 includes a claim that the statute does not permit Defendants to

17 require specific consent unless the state court will alter custody

18 status or placement. As Defendants require specific consent of all

19 in-custody minors seeking a state court’s SIJ-predicate order, this

20 claim would belong to any person that Defendants required to

21 request specific consent. The 164 requests identified by

22 Plaintiffs certainly satisfies numerosity.

23

Further, out of the 164 identified specific consent requests,

24 Defendants denied at least 40 for unspecified reasons and closed at

25 least another 7 because the applicant turned 18 years old before 26 they decided on the consent request.5 (Pl.’s Mot. 12.) At the

27

5 In its reply brief, Plaintiffs maintain that ICE denied or

28

(continued...)

12

Case 2:05-cv-03604-DDP-RZ Document 121 Filed 01/08/2008 Page 13 of 50

1 very least, there are at least 47 members of this first subclass.

2 The evidence provides the Court with a reasonable estimate of the

3 class size for this subclass. The impracticability of joinder is

4 further supported by the fact that members of the proposed class

5 are geographically dispersed and many are now in foreign countries

6 following deportation. Also, according to Plaintiffs, the class

7 may expand because Defendants continue to insist that their

8 specific consent is required before any in-custody minor may

9 proceed to state court. On this basis, the Court believes that

10 joinder is impracticable and that the specific consent subclass

11 satisfies the numerosity requirement.

12

b. Commonality

13

Plaintiffs must also demonstrate “there are questions of law

14 or fact common to the class.” Fed. R. Civ. P. 23(a)(2).

15 Commonality requires only that each class member be similarly

16 situated in sharing common questions of law or fact. Sec. Harris

17 v. Palm Soring Alpine Estates, Inc., 329 F.2d 909, 914 (9th Cir.

18 1964). Individual variation among plaintiffs' questions of law and

19 fact does not defeat underlying legal commonality: “[t]he existence

20 of shared legal issues with divergent factual predicates is

21 sufficient, as is a common core of salient facts coupled with

22 disparate legal remedies within the class. Hanlon v. Chrysler

23 Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). Courts have found that

24 a single common issue of law or fact is sufficient to satisfy the

25

26

27

5(...continued) failed to decide 58 requests for specific consent prior to the

28 applicant’s turning 18 years old. (See Pl.’s Ex. 29.)

13

Case 2:05-cv-03604-DDP-RZ Document 121 Filed 01/08/2008 Page 14 of 50

1 commonality requirement. Id. at 1019-20; Slaven v. BP America,

2 Inc., 190 F.R.D. 649, 655 (C.D. Cal. 2000).

3

Plaintiffs argue that the claims proposed for class

4 certification clearly present shared legal issues regarding a

5 common course of conduct. They identify four questions that are

6 common to the subclass: (1) whether Defendants may lawfully demand

7 that SIJ applicants obtain specific consent, even where a state

8 court will not determine a minor’s custody status or placement; (2)

9 whether Defendants can determine that a minor requesting specific

10 consent has been abused, abandoned or neglected within the meaning

11 of state law; (3) whether Defendants may lawfully delay deciding a

12 timely presented, and properly supported, request for specific

13 consent, such that the minor turns 18 while his or her request of

14 pending; and (4) whether Defendants’ denial of requests for

15 specific consent, without adherence to procedures comparable to

16 those followed by a state juvenile court, violates due process.

17 (Pl.’s Reply 5.)

18

Defendants counter that Plaintiffs have broadly challenged the

19 specific consent procedures, but have failed to demonstrate the

20 existence of a class of persons who share the same claims or

21 suffered the same injury as the named Plaintiffs, “such that the

22 [Plaintiffs’] claims and the class claims will share common

23 questions of law or fact.” (Def.’s Opp. 14-15, citing Gen. Tel. Co.

24 v. Falcon, 457 U.S. 147, 157 (1982).) Defendants further argue

25 that these legal claims lack commonality because of wide factual

26 variation. (Id. 15.)

27

In this case, Plaintiffs raise several claims that challenge

28 Defendants’ policies and practices with respect to the specific

14

Case 2:05-cv-03604-DDP-RZ Document 121 Filed 01/08/2008 Page 15 of 50

1 consent requirement. A common legal question is raised by

2 Plaintiffs’ claim that the SIJ statute does not permit application

3 of the specific consent requirement if a state court’s judgment

4 will not alter the minor’s “custody status or placement.” This

5 claim asks the Court to decide whether Defendants are acting

6 outside their authority under the SIJ statute by requiring specific

7 consent of in-custody minors under such circumstances, and whether

8 a state court’s dependency judgment alters the minor’s custody or

9 placement. Commonality is established because this claim

10 challenges Defendants’ statutory authority for requiring specific

11 consent even if a state court dependency judgment does not alter

12 custody status or placement. Similarly, claims of due process

13 violations and unreasonable delay also are common legal claims

14 directed at Defendants’ specific consent policy. Where Plaintiffs

15 raise a common questions of law, Defendants’ concerns about

16 multiple legal issues and factual variation do not defeat

17 commonality. See Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019

18 (9th Cir. 1998).

19

c. Typicality

20

Rule 23(a) also requires that Plaintiffs demonstrate that “the

21 claims or defenses of the representative parties are typical of the

22 claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). As

23 Judge Rymer of the Central District of California explained:

24

A plaintiff’s claim meets [the typicality] requirement

if it arises from the same event or course of conduct

25

that gives rise to claims of other class members and

the claims are based on the same legal theory. The

26

test generally is whether other members have the same

or similar injury, whether the action is based on

27

conduct which is not unique to the named plaintiffs,

and whether other class members have been injured by

28

the same course of conduct.

15

Case 2:05-cv-03604-DDP-RZ Document 121 Filed 01/08/2008 Page 16 of 50
1 Schwartz, 108 F.R.D. at 282. Where an action challenges a policy
2 or practice, named plaintiffs that suffer one specific injury from
3 the practice may represent a class suffering additional injuries,
4 so long as all the injuries are shown to result from the practice.
5 General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 157-59
6 (1982).
7 Defendants argue that Plaintiffs have failed to demonstrate
8 which of the ten named Plaintiffs represent the proposed subclass
9 of persons challenging Defendant’s specific consent procedures.
10 Defendants also argue that Plaintiffs have not shown how the
11 representative Plaintiffs have the same claims or suffered the same
12 injury as the members of the putative subclass. (Def.’s Opp. 16-
13 17.)
14 Plaintiffs disagree with Defendants’ contention that the
15 proposed representatives of the class – Morales, Li and Casa Libre
16 Youth Shelter – do not have claims typical of those of the class.
17 Plaintiffs cite Smith v. Univ. of Wash. Law. Sch., 2 F. Supp.2d
18 1324, 1342 (W.D. Wash 1998), for the proposition that “when it is
19 alleged that the same unlawful conduct was directed at, or affected
20 both, the named Plaintiff and the class to be represented, the
21 typicality requirement is usually satisfied, irrespective of
22 varying fact patterns which underlie individual claims.” (Pl.
23 Reply 10.)
24 Plaintiffs allege that ICE has adopted a common set of
25 specific consent policies and practices that violate the
26 Immigration and Nationality Act. Plaintiffs’ statutory claim is
27 that Defendants may not require specific consent if the state court
28
16

Case 2:05-cv-03604-DDP-RZ Document 121 Filed 01/08/2008 Page 17 of 50

1 does not alter “custody status or placement.” Additionally,

2 Plaintiffs raise due process and unreasonable delay claims.

3 Typicality is established because these legal theories apply to all

4 in-custody minors that sought and did not receive specific consent

5 to obtain SIJ-predicate orders in state court. Also, Plaintiffs

6 and class members share the specific injury of loss of SIJ

7 eligibility. Thus, the typicality requirement is satisfied for the

8 statutory claim.

9

d. Adequacy

10

Finally, Plaintiffs must demonstrate that “the representative

11 parties will fairly and adequately protect the interests of the

12 class.” Fed. R. Civ. P. 23(a)(4). Adequacy of representation is

13 necessary to provide due process of law to unnamed class members

14 that will be bound by the judgment in the representative’s action.

15 Crawford v. Honig, 37 F.3d 485, 487 (9th Cir. 1994). “Parties are

16 generally considered to be adequate class members if there are no

17 conflicts of interest between the representatives and class members

18 and if the Court is persuaded that counsel for the representatives

19 will vigorously pursue the action.” Burkhalter Travel Agency v.

20 MacFarms Int’l, Inc., 141 F.R.D. 144, 153 (N.D. Cal. 1991) (citing

21 Gen. Tel., 457 U.S. 147, 156 (1982)).

22

Defendants argue that named Plaintiffs will inadequately

23 represent the class, as both Plaintiffs Morales and Li delayed

24 seeking specific consent for several months after being placed in

25 federal custody and obtaining counsel. Because named Plaintiffs

26 only sought specific consent one month and three months before

27 turning eighteen years old, this jeopardizes the subclass’s chance

28

17

Case 2:05-cv-03604-DDP-RZ Document 121 Filed 01/08/2008 Page 18 of 50

1 of success on their claims, and prejudices the other class members.

2 (Def.’s Opp. 17-19.)

3

Plaintiffs disagree. Plaintiffs reiterate that there is no

4 evidence to show that there is any conflict between Plaintiffs and

5 the other class members. The named Plaintiffs are seeking the same

6 injunctive and declaratory relief for both the class and

7 themselves, which proves that there is no conflict between named

8 Plaintiffs and the other class members. Also, Plaintiffs argue

9 that there is no evidence to suggest that Plaintiffs or their

10 counsel will fail to vigorously prosecute this action on behalf of

11 the class. (Pl.’s Mot. 18-19.)

12

The Court finds that this prong is satisfied. First,

13 Plaintiffs’ lead counsel are sufficiently qualified to pursue this

14 action for all three subclasses. They are employed by a non-profit

15 organization specializing in federal litigation on behalf of

16 immigrants and refugees and have previously successfully litigated

17 class actions. Second, Plaintiffs’ statutory or due process claims

18 to turn on factual differences the class representatives and class

19 members share identical claims and an interest in class-wide relief

20 from the allegedly unlawful requirement of specific consent.

21 Defendants’ assertion of factual differences in the timing of

22 Plaintiffs’ specific consent requests appears relevant only to

23 Plaintiffs’ unreasonable delay claim. Nevertheless, the Court does

24 not consider these factual differences to indicate any inadequacy

25 of the class representatives.

26

e. 23(b)(2)

27

In addition to satisfying the Rule 23(a) requirements, a

28 certifiable class must also meet the requirements set out in Fed.

18

Case 2:05-cv-03604-DDP-RZ Document 121 Filed 01/08/2008 Page 19 of 50

1 R. Civ. P. Rule 23(b). Plaintiffs maintain that this class action

2 satisfies Rule 23 (b)(2) requirements: “the party opposing the

3 class has acted (or refused to act) in a manner applicable to the

4 class generally, thereby making injunctive or declaratory relief

5 appropriate with respect to the class as a whole.” Identification

6 of all class members is not necessary under Rule 23 (b)(2). The

7 rule is appropriate for cases where plaintiffs bring a class action

8 on behalf of a “shifting population.” Shook v. El Paso County, 386

9 F.3d. 963, 972 (10th Cir. 2004).

10

Plaintiffs argue that Defendants have implemented policies and

11 procedures that, inter alia, unlawfully require specific consent

12 under circumstances when it is not statutorily required,

13 unreasonably delay the adjudication of applications for SIJ status

14 and adjustment of status, pre-judge an in-custody minor’s

15 underlying eligibility for dependency protection and SIJ

16 classification, and do not provide due process. Plaintiffs

17 maintain that its challenges to Defendants’ policies and procedures

18 are thus suitable for class-wide relief. (Pl.’s Mot. 20.)

19

Defendants, however, argue that the subclass is not

20 maintainable under Rule 23(b)(2). Defendants contend that

21 Plaintiffs’ arguments raise a generic due process claim that will

22 require individualized adjudications for each class member. As

23 such, Defendants argue that its policies or practices are not

24 “generally applicable” to the class as required by Rule 23(b)(2).

25 (Def. Opp. )

26

The Court finds that Plaintiffs have met the requirements for

27 a Rule 23(b)(2) class action. Plaintiffs’ claims challenge

28 Defendants’ common set of policies and practices on specific

19

Case 2:05-cv-03604-DDP-RZ Document 121 Filed 01/08/2008 Page 20 of 50

1 consent that are applied generally to SIJ-eligible in-custody

2 minors. While Defendants contend that certification of the

3 subclass is inappropriate because it will implicate individualized

4 adjudications, the Court disagrees: Plaintiffs are claiming that

5 Defendants’ specific consent policy is impermissible under the

6 statute, violates due process, and causes unreasonable delay. This

7 is a complaint about the legality of Defendants’ conduct with

8 respect to the class of persons that they require to obtain

9 specific consent. The claims will not turn on individualized

10 adjudications. Because Plaintiffs’ claim seeks injunctive relief

11 that will change Defendants’ policy applicable to the class as a

12 whole, Plaintiffs have met their burden under Rule 23(b)(2).

13

2. Age-out subclass

14

The proposed subclass definition for the age-out subclass is

15 as follows: youth whose petitions for SIJ classification Defendants

16 deny or revoke pursuant to 8 C.F.R. §§ 204.11(c)(1) or (5), or

17 205.1(a)(3)(iv)(A), (C), or (D) (“age-out subclass”).

18

a. Numerosity

19

Plaintiffs indicate an inability to precisely identify the

20 membership size of the age-out subclass because Defendants do not

21 maintain records of the number of persons that submit SIJ

22 applications and have those applications denied or left undecided

23 when the applicant turns eighteen. (Pl. 16-17; see Pl.’s Ex. 24).

24 Nevertheless, Plaintiffs interpret Defendants’ estimates of 2,258

25 SIJ applications between 2000 and 2006 to suggest approximately 375

26 SIJ applications annually. (Pl. Mot. 16-17; Pl. Ex. 27.]

27 Plaintiffs also point to statistics compiled in 1990 that the

28 majority of detained alien juveniles are 16 or 17 years old, which

20

Case 2:05-cv-03604-DDP-RZ Document 121 Filed 01/08/2008 Page 21 of 50

1 means on the verge of aging-out from SIJ eligibility. Further,

2 Plaintiffs offer the declarations of immigration attorneys to show

3 long delays in adjudication of SIJ applications and instances of

4 SIJ-eligible youth that lost eligibility due to the age-out

5 regulations. On this basis, Plaintiffs argue that “many hundreds

6 of abused, abandoned, and neglected youth” are subject to the age-

7 out regulations. (Pl.’s Mot. 13.)

8

Defendants argue that Plaintiffs speculate as to class

9 numerosity. (Def.’s Opp. 22.) While Defendants are correct that

10 Plaintiffs’ statistics are imprecise, this shortcoming is not

11 dispositive. Courts have found joinder impracticable when it was

12 difficult to identify the proposed class members. See Phillips v.

13 Joint Legislative Comm., 637 F.2d 1014, 1022 (5th Cir. 1981)

14 (numerosity found in race discrimination suit where neither party

15 could identify class members because defendant-employer did not

16 track applicants' race); Israel v. Avis Rent-A-Car Sys., Inc., 185

17 F.R.D. 372, 378 (S.D. Fla. 1999) (numerosity established where the

18 necessary information to identify class members was within

19 defendant's control).

20

Here, the government has represented to Plaintiffs that they

21 have not tracked the number of persons denied SIJ classification or

22 SIJ-based adjustment of status due to the age-out regulations. The

23 inability to identify those individuals that have lost eligibility

24 based on their age indicates the impracticability of joinder. The

25 geographical dispersion of class members and the addition of class

26 members in the future due to the continuing application of the age-

27 out regulations further support impracticability of joinder.

28

21

Case 2:05-cv-03604-DDP-RZ Document 121 Filed 01/08/2008 Page 22 of 50

1

Plaintiffs also offer additional evidence that supports a

2 “reasonable judgment” that joinder is impracticable. Blackie v.

3 Barrack, 524 F.2d 891, 901 n.17 (9th Cir. 1975). In particular,

4 Plaintiffs’ evidence of attorneys that have worked with immigrant

5 children, many of whom sought SIJ classification and adjustment of

6 status subject to the age-out regulations, suggests a sufficient

7 number of class members to satisfy numerosity. Therefore, the

8 Court finds sufficient evidence of numerosity.

9

b. Commonality

10

Plaintiffs maintain that common legal issues unite this

11 subclass. It is alleged that Defendants have promulgated and

12 adhered to the age-out regulations that are inconsistent with the

13 SIJ statute. Further, Plaintiffs allege that Defendants

14 unreasonably delay decisions on SIJ applications and adjustment of

15 status, which causes class members to age-out from eligibility.

16 (Pl.’s Reply 14-15.)

17

Defendants concede that Plaintiffs and class members share the

18 outcome of lost eligibility. Even so, where the age-out outcome is

19 not the result of a common policy or practice, but rather a diverse

20 set of statutory requirements, regulations, and agency policies and

21 practices, Defendants assert that Plaintiffs cannot establish

22 commonality. (Def.’s Opp. 22-23.)

23

The Court, however, reads the Plaintiffs’ claims to attack a

24 set of common statutory requirements, regulations, and agency

25 policies and practices that result in unreasonable delay. CIS’s

26 statutory authority to enact and follow the age-out regulations.

27 (Pl.’s Reply 14.) Commonality is established as Plaintiffs present

28

22

Case 2:05-cv-03604-DDP-RZ Document 121 Filed 01/08/2008 Page 23 of 50

1 common legal issues independent of class members’ factual

2 differences.

3

c. Typicality

4

Similarly, Plaintiffs’ claims that Defendants lack statutory

5 authority to enact and follow the age-out regulations, and of a

6 common policy or practice of delaying adjudication of SIJ

7 applications until youth age-out of eligibility, are typical of the

8 class. Plaintiffs have the same claim, suffer the same injury, and

9 have the same interest in seeking injunctive relief, factual

10 differences notwithstanding.

11

d. Adequacy

12

The Court finds that Plaintiffs will adequately represent the

13 age-out subclass. Where Plaintiffs challenge Defendants’ authority

14 to enact and implement the age-out regulations, and the application

15 of those regulations, all class members that lost SIJ or SIJ-based

16 adjustment of status eligibility are similarly situated with

17 respect to those claims. There is no conflict between Plaintiffs

18 and class members with respect to that claim. Further, Plaintiffs

19 seek injunctive relief for the whole subclass. Thus, adequacy of

20 representation is established.

21

e. 23(b)(2)

22

In this case, the age-out regulations are “generally

23 applicable to the class.” Plaintiffs’ claims against those

24 regulations challenge a generally applicable course of conduct

25 directed at class members. Where Plaintiffs’ claim challenge

26 common policies or practices and seek generally applicable

27 injunctive relief, this satisfies the requirements of Rule

28 23(b)(2).

23

Case 2:05-cv-03604-DDP-RZ Document 121 Filed 01/08/2008 Page 24 of 50

1

3. Removal proceedings subclass

2

The proposed class definition for the removal proceedings

3 subclass is as follows: youth undergoing removal proceedings whose

4 applications for SIJ-based adjustment of status Defendants refuse

5 to adjudicate pursuant to 8 C.F.R. §§ 245.2(a)(1) and

6 1245.2(a)(i)(1), and 8 C.F.R. §§ 1003.2(c)(2) or 1003.23(b)(1)

7 (“removal proceedings subclass”). In challenging class

8 certification for this subclass, Defendants raise an argument that

9 Plaintiffs lack standing. The Court reviews the standing argument

10 before turning to class certification standards.

11

a. Standing

12

In order to maintain a class action, named plaintiffs must

13 demonstrate that they have personally sustained an injury which

14 results from a challenged statute or government conduct. Armstrong

15 v. Davis, 275 F.3d 849, 860 (9th Cir. 2001). To establish

16 standing, the plaintiffs must show three elements: (1) injury (2) a

17 causal connection between the injury and the challenged conduct;

18 and (3) a likelihood that the injury will be redressed by a

19 favorable decision. Bras v. Cal. Pub. Util. Comm., 59 F.3d 869,

20 872 (9th Cir. 1995) (citing Lujan v. Defenders of Wildlife , 504

21 U.S. 555, 559 (1992). A plaintiff may establish standing by

22 showing an injury traceable to a written policy or a pattern of

23 official conduct. Armstrong, 275 F.3d at 860-61.

24

Defendants argue that Plaintiffs have failed to establish

25 standing to sue on behalf of this subclass because they cannot

26 trace an injury to the challenged regulations or conduct. They

27 attribute the lack of standing to Plaintiffs’ “misrepresentation”

28 of the regulations that govern removal proceedings. (Def.’s Opp.

24

Case 2:05-cv-03604-DDP-RZ Document 121 Filed 01/08/2008 Page 25 of 50

1 29). The misrepresentation in question is Plaintiffs’ assertion

2 that youth in removal proceedings cannot have their SIJ-based

3 applications for adjustment of status heard 90 days after an order

4 of removal.

5

Once youth are in removal proceedings, USCIS no longer has

6 authority to adjudicate those applications because a BIA or

7 immigration judge has exclusive jurisdiction. 8 C.F.R. §

8 204.11(b)(2). An immigrant youth must make a motion to reopen

9 removal proceedings within 90 days of the final order of removal.

10 8 C.F.R. § 1003.23(b)(i). According to Plaintiffs’ motion, youth

11 that become eligible for SIJ-based adjustment of status more than

12 90 days after a final removal order are barred from having SIJ-

13 based adjustment of status applications heard because current

14 regulations do not allow BIA or immigration judges to reopen

15 proceedings 90 days after an order of removal. (Pl. Mot. 7-8.)

16

Defendants, however, are correct that current regulations

17 provide a BIA or immigration judge with discretion to reopen a

18 youth’s case “at any time”, which would include after the 90 day

19 deadline set for youth to move for reopening of their removal

20 proceedings. See 8 C.F.R. §§ 1003.2(a) and 1003.23(b)(1). Also, a

21 case may be reopened when the motion is “agreed upon by all parties

22 and jointly filed.” 8 C.F.R. §§ 1003.2(a), 1003.23(b)(1),

23 1003.23(c)(3)(iii), and 1003.23(b)(4)(iv).

24

In their motion, Plaintiffs seem to misstate the regulations

25 when they argue that the BIA or an immigration judge may not reopen 26 a youth’s case 90 days after a removal order. In their reply,6

27

6 Plaintiffs first respond that Defendants’ standing argument

28

(continued...)

25

Case 2:05-cv-03604-DDP-RZ Document 121 Filed 01/08/2008 Page 26 of 50

1 however, Plaintiffs appear to accept Defendants’ interpretation of

2 the regulations. Plaintiffs then explain that they claim youth are

3 entitled to adjudication of adjustment of status applications,

4 whether or not Defendants join a motion to reopen in removal

5 proceedings. Finally, Plaintiffs seem to argue that named

6 plaintiff Garrido-Martinez, the sole named plaintiff for this

7 subclass, has standing because Defendants refused to join a motion

8 to reopen removal proceedings, resulting in the motion’s rejection

9 and plaintiff Garrido-Martinez’s injury. (Pls.’ Reply 19.)

10

The nature of Plaintiffs’ claim is unclear, and this

11 complicates the Court’s ability to rule on the removal subclass.

12 Nevertheless, the Court understands Plaintiffs to argue that

13 Defendants’ removal regulations prevent immigrant youth from

14 obtaining SIJ-based adjustment of status, and therefore, are

15 inconsistent with the SIJ statute. Plaintiffs challenge both the

16 exclusive jurisdiction of BIA or immigration judges for the SIJ-

17 based adjustment of status applications of youth in removal

18 proceedings and the 90-day deadline for youth to move for reopening

19 of their cases. Moreover, Plaintiffs appear to assert that

20 Defendants have a common practice of refusal to join in reopening

21 youth’s cases 90 days after removal, that this refusal prevents

22 youth from having their cases reopened, and that youth therefore do

23 not have their SIJ-based adjustment of status applications heard.

24

25

6(...continued)

26

improperly addresses the merits of their claim. (Pl.’s Reply 19.) Contrary to Plaintiffs’ contention, the Court is bound to ensure

27

that a named Plaintiff has standing to sue. This inquiry requires the Court to determine whether a plaintiff has suffered an injury

28

traceable to a defendants’ conduct, not analysis of the merits of a claim.

26

Case 2:05-cv-03604-DDP-RZ Document 121 Filed 01/08/2008 Page 27 of 50

1

Plaintiff Garrido-Martinez certainly suffered a personal

2 injury because his SIJ-based adjustment of status application was

3 not adjudicated. Here, the dispositive question on standing is

4 whether that injury can be traced to Defendants’ regulations,

5 policies, or practices. Certainly, Garrido-Martinez has standing

6 to challenge Defendants’ statutory authority to apply the removal

7 regulations to SIJ-eligible youth: if Defendants lack such

8 authority, then the application of those regulations to Garrido-

9 Martinez caused him injury in depriving him of adjudication of his

10 SIJ-based adjustment application. Further, Garrido-Martinez has

11 standing to challenge Defendants refusal to join his motion to

12 reopen: if Defendants had joined in a motion to reopen, Garrido-

13 Martinez’s case would have been reopened. This would have allowed

14 the BIA or immigration judge to adjudicate his SIJ-based adjustment

15 of status application.7

16

On this interpretation of Plaintiffs’ claims, the Court

17 accepts that Plaintiff Garrido-Martinez has satisfied the

18 requirement of standing by showing an injury traceable to the

19 challenged government conduct. The Court now turns to the issue of

20 class certification for this subclass.

21

b. Rule 23(a) Requirements

22

i. Numerosity

23

24

7 There is a counterargument not raised by Defendants that

25

Garrido-Martinez’s injury was not solely caused by Defendants’ refusal to join the motion to reopen because the judge’s refusal to

26

reopen the case sua sponte could equally be the cause of the injury. However, based on the Court’s reading of Plaintiffs’

27

argument, once the Defendants refused to join the motion to reopen, it is common practice that the judge too will not move sua sponte

28 to reopen the case despite their discretion to do so.

27

Case 2:05-cv-03604-DDP-RZ Document 121 Filed 01/08/2008 Page 28 of 50

1

Although Plaintiffs need not identify a precise class size,

2 especially when the number of class members may be unknown, they

3 still must support a reasonable estimate of the class size or

4 demonstrate the impracticability of joinder. Unlike in the

5 previous subclasses where Plaintiffs provided a reasonable basis

6 for the inference that numerosity was met, the only basis provided

7 by Plaintiffs for the numerosity of this subclass is a declaration

8 by Plaintiffs’ counsel asserting that “hundreds” of immigrant youth

9 subject to removal proceedings each year who may seek SIJ-based

10 adjustment of status 90 days after a removal order. (Pl.’s Mot.

11 16.) Also, Plaintiffs do not offer arguments to support the

12 impracticability of joinder. Therefore, the Court finds that

13 numerosity is not met.

14

ii. Commonality

15

In both their motion and reply, Plaintiffs are unclear as to

16 the claims that would form the basis for establishment of

17 commonality. In Plaintiffs’ motion, they seem to challenge that

18 the regulations give exclusive jurisdiction to the BIA or

19 immigration judge to adjudicate SIJ-based adjustment applications,

20 or that the regulations set a 90 day limit for youth to bring

21 motions to reopen. In their reply, Plaintiffs focus on a policy or

22 practice where Defendants refuse to join motions to reopen beyond

23 the 90 day deadline.

24

Despite Plaintiffs’ shifting conception of this subclass’s

25 claims, commonality is established. Plaintiffs’ claim that

26 Defendants’ removal regulations, as applied to members of the

27 class, deprive SIJ-eligible youth in removal of adjudication of

28 their SIJ-based adjustment applications, is common to class.

28

Case 2:05-cv-03604-DDP-RZ Document 121 Filed 01/08/2008 Page 29 of 50

1

iii. Typicality

2

Similarly, Plaintiffs are unclear as to the claims that would

3 form the basis for establishment of typicality. The Court has

4 difficulty in determining whether Plaintiffs’ claims are typical

5 when it is not precisely clear which claims Plaintiff raises for

6 this class. It would be possible that a claim by Plaintiff that

7 Defendants have a common policy of refusal to join motions to

8 reopen could be typical of a class if Plaintiffs were to show the

9 Court that other class members in fact have these claims. However,

10 Plaintiffs have not made this showing. At this time, the Court is

11 unable to find that Plaintiff has claims typical of this class.

12

iv. Adequacy

13

Plaintiff could be an adequate representative for a class

14 asserting a claim against a common policy or practice by Defendants

15 of refusing to join motions to reopen. Plaintiff likely would not

16 have a conflict with this delimited group of class members.

17 However, because other requirements have not been met, this is

18 insufficient to meet the threshold Rule 23(a) requirements.

19 Because at this time the Court is inclined to find that the removal

20 subclass does not meet the Rule 23(a) requirements for class

21 certification, the Court need not consider Rule 23(b) requirements.

22

23 III. PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY ADJUDICATION AND

24

DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT

25

Summary adjudication, like summary judgment, is appropriate

26 where “the pleadings, depositions, answers to interrogatories, and

27 admissions on file, together with the affidavits, if any, show that

28 there is no genuine issue as to any material fact and that the

29

Case 2:05-cv-03604-DDP-RZ Document 121 Filed 01/08/2008 Page 30 of 50

1 moving party is entitled to a judgment as a matter of law.” Fed.

2 R. Civ. P. 56(c). A genuine issue of fact exists if "the evidence

3 is such that a reasonable jury could return a verdict for the

4 nonmoving party," and material facts are those "that might affect

5 the outcome of the suit under the governing law." Anderson v.

6 Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). On a motion for

7 summary judgment or summary adjudication, a court must draw all

8 reasonable inferences in favor of the nonmoving party. Id. at 253.

9

A. Specific Consent

10

Section 1101(a)(27)(J)(iii)(I) provides: “No juvenile court

11 has jurisdiction to determine the custody status or placement of an

12 alien in the actual or constructive custody of the Attorney General

13 unless the Attorney General specifically consents to such

14 jurisdiction.” 8 U.S.C. § 1101(a)(27)(J)(iii)(I) (emphasis added).

15 It is Defendants’ undisputed policy to require that in-custody

16 minors obtain ICE’s specific consent to state court jurisdiction,

17 prior to seeking an SIJ-predicate order in state court. (Defs.’

18 Opp’n 4.)

19

1. Statutory Interpretation of the Specific Consent

20

Requirement

21

a. The Plain Language of 8 U.S.C. § 1101(a)(27)(J)

22

Requires Specific Consent Only If a State Court

23

Determines The Custody Status or Placement of a

24

Minor in Federal Custody.

25

When interpreting a statute, the Court must “look first to the

26 plain language of the statute, construing the provisions of the

27 entire law, including its object and policy, to ascertain the

28 intent of Congress." United States v. Mohrbacher, 182 F.3d 1041,

30

Case 2:05-cv-03604-DDP-RZ Document 121 Filed 01/08/2008 Page 31 of 50

1 1048 (9th Cir. 1999) (internal quotation and citation omitted).

2 The Supreme Court has explained that “jurisdictional statutes [must

3 not be given] a more expansive interpretation than their text

4 warrants, but it is just as important not to adopt an artificial

5 construction that is narrower than what the text provides.” Exxon

6 Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 558 (2005).

7

In this case, the Court is asked to interpret the scope of the

8 SIJ specific consent requirement.8 The specific consent

9 requirement is unambiguously limited to instances when a state

10 court will “determine . . . custody status or placement.” 8 U.S.C.

11 § 1101(a)(27)(J)(iii)(I). Yet the statute does not define “custody

12 status or placement.” Where a statutory term is not defined in the

13 statute, a court should give the term its ordinary meaning.

14 Mohrbacher, 182 F.3d at 1048. The term “custody” is defined as the

15 “immediate care and control (as over a ward or a suspect) exercised

16 by a person or an authority.” Merriam-Webster Online Dictionary,

17 available at http://www.m-w.com. The term “status” is defined as 18 “the condition of a person or thing in the eyes of the law.”9 Id.

19

20

8 The Court notes at the outset that the Third Circuit’s

21

decision in Yeboah v. United States Dept’ of Justice, 345 F.3d 216, 221 (3d Cir. 2003), does not address the issue raised here. In

22

Yeboah, the court reviewed ICE’s denial of an in-custody minor’s request for specific consent under an abuse of discretion standard.

23

The court found no abuse of discretion where ICE followed agency policy. Id. at 223-25. However, the court was not presented with

24

the question whether ICE policy’s requirement of specific consent exceeded the requirement as written in the text of the statute.

25

Where that is the question presented in this case, Yeboah is not on point.

26

9 Merriam-Webster Online Dictionary, available at

27

http://www.m-w.com. Congress likely considered “custody status” distinct from “placement” because some minors are in Defendants’

28

custody, but Defendants then place minors with another entity, such as a foster home.

31

Case 2:05-cv-03604-DDP-RZ Document 121 Filed 01/08/2008 Page 32 of 50

1 The term “placement” is defined as the “assignment of a person to

2 a place.” Id.

3

The logical reading of “custody status” is that it refers to

4 whom has care or control of a person; in other words, who is the

5 custodian. The federal government is itself custodian when a minor

6 is in its actual, physical custody or in its constructive custody,

7 which can only mean that the federal government has arranged for a

8 third-party to care for a person, but itself maintains control.

9 When the federal government is itself an immigrant minor’s

10 custodian, the statute is clear that a state court lacks

11 jurisdiction to alter such custody absent the federal government’s

12 specific consent. Similarly, when the federal government is itself

13 an immigrant minor’s custodian, the statute does not provide state

14 courts with jurisdiction to alter such custody by seeking to place

15 an immigrant minor in a foster home or other location, absent the

16 specific consent of the federal government which has custody and

17 therefore makes placement decisions. See Deal v. United States,

18 508 U.S. 129, 132 (1993) (“[T]he meaning of a word cannot be

19 determined in isolation, but must be drawn from the context in

20 which it is used.”).

21

The specific consent requirement, however, does not apply to

22 all SIJ-predicate orders, as is Defendants’ policy. After all, a

23 state court’s SIJ-predicate order - that includes findings of

24 dependency, abuse, neglect, and abandonment, and the child’s best

25 interests - does not alter a minor’s custody status or placement,

26 unless the state court additionally seeks to alter a particular

27 child custody arrangement, assigns the child to a foster home, or

28 takes some similar action. This reading is proper because state

32

Case 2:05-cv-03604-DDP-RZ Document 121 Filed 01/08/2008 Page 33 of 50

1 courts routinely take actions with respect to minors that are

2 unrelated to custody or placement decisions. Congress recognized

3 as much in the statute’s plain language by explicitly identifying

4 dependency, commitment, and custody as distinct state court

5 actions. See 8 U.S.C. § 1101(a)(27)(J)(i) (stating that an SIJ-

6 predicate order may declare a minor dependent on the court, legally

7 commit a minor to a state agency, or place the minor under the

8 custody of a state agency). Basic principles of statutory

9 construction, along with a common sense understanding of state

10 court child welfare determinations, indicate that SIJ-predicate

11 orders are not the same as orders determining custody status or

12 placement. See, e.g., Bedroc Ltd. v. United States, 314 F.3d 1080,

13 1088 (9th Cir. 2002) (“It is a cardinal principle of statutory

14 construction that a statute ought, upon the whole, to be so

15 construed that, if it can be prevented, no clause, sentence, or

16 word shall be superfluous, void, or insignificant.”) (internal

17 quotation marks omitted).

18

The Court’s reading also furthers several important

19 Congressional objectives. Congress created SIJ classification to

20 protect abused, neglected, and abandoned immigrant youth through a

21 process allowing them to become legal permanent residents. When

22 Congress amended the statute in 1997, it added the specific consent 23 requirement. 8 U.S.C. § 1101(a)(27)(J)(iii)(I).10 In doing so,

24

10 In 1997, Congress became concerned that visiting students 25 were abusing the SIJ process and amended the SIJ statute to “limit

the beneficiaries of this provision to those juveniles for whom it 26 was created, namely abandoned, neglected, or abused children. . .

27

.” H.R. Rep. No. 105-405, at 130 (1997). However, this rationale is only mentioned in connection with Congress’s adoption of the 8

28

U.S.C. § 1101(a)(27)(J)(iii) requirement that “the Attorney General (continued...)

33

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1 Congress reasonably prohibited state courts from interfering with a

2 minor in the actual or constructive custody of the federal

3 government. This prohibition is logical because the federal

4 government may have a minor in its custody as a witness to a crime,

5 pursuant to a criminal investigation, or due to immigration status.

6 In short, for minors in the actual or constructive custody of the

7 federal government, the federal government appropriately maintains

8 control over minors’ custody or placement where important federal

9 interests are at stake, and a state court may only alter that 10 custodial status with the federal government’s consent.11

11

At the same time, by limiting the specific consent requirement

12 to custody and placement decisions, Congress appropriately reserved

13 for state courts the power to make child welfare decisions, an area

14 of traditional state concern and expertise. See Ankenbrandt v.

15 Richards, 504 U.S. 689, 702 (1992) (recognizing that “the whole

16 subject of domestic relations of husband and wife, parent and

17 child, belongs to the laws of the States and not to the laws of the

18 United States”) (internal quotation and citation omitted). The SIJ

19 statute affirms the institutional competence of state courts as the

20 appropriate forum for child welfare determinations regarding abuse,

21 neglect, or abandonment, and a child’s best interests.

22

23

10(...continued)

24

[must] expressly consent[] to the dependency order serving as a precondition to the grant of special immigrant juvenile status. . .

25

.” See id. The specific consent requirement appears to have been adopted for other, unstated reasons.

26

11 Although an SIJ-predicate order makes an immigrant minor

27

eligible for SIJ classification, the federal government maintains ultimate authority whether to grant SIJ status under the

28

aforementioned express consent provision. 1101(a)(27)(J)(iii).

8 U.S.C. §

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1

Essentially, the specific consent requirement balances

2 competing federal and state interests. Congress has plenary power

3 over immigration. See, e.g., Fiallo v. Bell, 430 U.S. 787, 792

4 (1977). State courts have general jurisdiction over child welfare

5 matters. See Ankenbrandt, 504 U.S. at 702; see also Reno v.

6 Flores, 507 U.S. 292, 312 n.7 (1993). The specific consent

7 requirement accommodates this “dual sovereignty” of the federal

8 government and states. See, e.g., Printz v. United States, 521

9 U.S. 898, 918-19 (1996); Tafflin v. Levitt, 493 U.S. 455, 458-60 10 (1990).12 As state courts are bound to enforce state law in a

11 fashion that does not conflict with federal law, Silkwood v.

12 Kerr-McGee Corp., 464 U.S. 238, 248 (1984), it places limits on the

13 scope of state court actions that may be taken, absent specific

14 consent, with respect to immigrant minors in federal custody.

15

Ultimately, Defendants’ reading of the statute, always

16 prohibiting an in-custody minor from seeking an SIJ-predicate order

17 unless he or she obtains ICE’s specific consent, is inconsistent

18 with the plain language of the statute. By explicitly adopting

19 language that limited the specific consent requirement, Congress

20 expressed a preference to exclude Defendants’ overbroad

21

22

12 Since the Court finds the statute to limit the specific consent requirement, the Court does not address the constitutional

23

implications of a statutory provision that would always require specific when a minor sought state court jurisdiction for an SIJ-

24

predicate order. Although Congress may be entitled to enact a requirement of Defendants’ specific consent for a minor in federal

25

custody to invoke state juvenile court jurisdiction, the Court need not consider the issue because the statute as written does not

26

wholly condition state juvenile court jurisdiction on Defendants’ specific consent. See Bates v. Dow Agrosciences L.L.C., 544 U.S.

27

431, 449 (2005) (“In areas of traditional state regulation, [the Supreme Court] assume[s] that a federal statute has not supplanted

28

state law unless Congress has made such an intention ‘clear and manifest.’”).

35

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1 interpretation. See TRW Inc. v. Andrews, 534 U.S. 19, 28 (2001)

2 (holding against judicial implication of an exception more

3 expansive than the text of the statute). Had Congress intended to

4 adopt Defendants’ construction, Congress had the option to

5 effectuate such intent by a clear statement that no juvenile court

6 has jurisdiction over an alien in the actual or constructive

7 custody of the Attorney General unless the Attorney General

8 specifically consents to such jurisdiction. Congress did not adopt

9 such broad language. Instead, Congress adopted language that

10 limits Defendants’ authority to require specific consent, granting

11 the power for instances when a state court will alter custody

12 status or placement.

13

The Court notes that its reading avoids the significant due

14 process concerns implicated by Defendants’ blanket policy of

15 requiring specific consent. See Edward J. DeBartolo Corp. v.

16 Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568,

17 575 (1988) (indicating that a court’s reasonable interpretation of

18 a statute that avoids constitutional problems is appropriate, even

19 though an alternative construction is possible). Due process

20 protections apply to determinations of benefits. Goldberg v.

21 Kelly, 397 U.S. 254 (1970). Congress has conferred the opportunity

22 to apply for SIJ status on immigrant youth deemed eligible by state

23 court order. It is Defendants’ policy to review specific consent

24 requests based upon whether a child has been abused, neglected, or

25 abandoned. (Pl.’s Ex. 38, Deposition of Mary Y. Evans, August 30,

26 2007, at 22.). The undisputed evidence raises questions whether

27 Defendants provide adequate procedural due process protections to

28

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1 in-custody minors that seek specific consent.13 The Court’s

2 interpretation alleviates the need to address Plaintiffs’ due

3 process and unreasonable delay claims.

4

b. The Legislative History is Not Controlling And

5

is Ambiguous.

6

Because the Court finds the statutory text to clearly limit

7 the specific consent requirement as articulated above, “legislative

8 history is irrelevant to interpretation of [this] unambiguous

9 statute.” Davis v. Michigan Dept. Of Treasury, 489 U.S. 803, 808

10 n.3 (1989). Nevertheless, the Court notes that the legislative

11 history relied upon by Defendants conflicts with the statutory

12 language. See Exxon Mobil Corp., 545 U.S. at 568-71 (2005)

13 (finding legislative history problematic as a tool of statutory

14 interpretation where it expresses intent contrary to plain language

15 of the statute).

16

To argue for its reading of the specific consent requirement,

17 Defendants focus on a single statement from the House Report on the

18 1997 amendments: “[I]n order to preclude State juvenile courts from

19 issuing dependency orders for juveniles in the actual or

20 constructive custody of the INS, the modified provision removes

21 jurisdiction from juvenile courts to consider the custody status or

22 placement of such aliens unless the Attorney General specifically

23 consents to such jurisdiction.” H.R. Rep. No. 105-405, at 130

24 (1997).

25

26

13 The ICE officer responsible for deciding specific consent requests admitted that she did not know of standards articulating

27

abuse, neglect, or abandonment; that there is no standard of proof for granting requests; and that denials of specific consent may not

28

be appealed. (Pl.’s Ex. 38, Deposition of Mary Y. Evans, August 30, 2007, at 18, 20-22, 65.)

37

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1

In the face of clear statutory language to the contrary, the

2 Court finds the legislative history unreliable. The House Report

3 statement relied upon by Defendants is ambiguous in suggesting that

4 a removal of state juvenile court jurisdiction for dependency

5 orders would be effected by statutory language that clearly does

6 not accomplish such a broad legislative objective. In accordance

7 with the canons of statutory interpretation, the Court will not

8 allow an isolated statement in the House Report to undermine the

9 legislative intent unambiguously expressed by the statute’s plain

10 language. See Exxon, 545 U.S. at 57 (expressing skepticism about

11 giving weight to committee reports when interpreting a statute).

12

2. Permanent Injunction

13

The Court holds that the SIJ statute does not require specific

14 consent when a state court’s SIJ-predicate order will not determine

15 custody status or placement. The Court has certified a nationwide

16 class of persons that had requests for specific consent denied, or

17 did not have such requests adjudicated, by Defendants. In

18 accordance with this holding, the Court finds that the class is

19 entitled to class-wide injunctive and declaratory relief.

20

A permanent injunction is appropriate to remedy (1) the

21 likelihood of substantial and immediate irreparable injury, and (2)

22 the inadequacy of remedies at law. G.C. & K.B. Invs., Inc. v.

23 Wilson, 326 F.3d 1096, 1107 (9th Cir. 2003). “System-wide relief

24 is required if the injury is the result of violations of a statute

25 or the constitution that are attributable to policies or practices

26 pervading the whole system. . . .” Armstrong v. Davis, 275 F.3d

27 849, 870 (9th Cir. 2001).

28

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1

Here, Defendants’ application of the specific consent

2 requirement, under circumstances not provided for by the statute,

3 deprives immigrant minors in federal custody of the SIJ protection

4 prescribed by Congress. This deprivation has and will occur if

5 Defendants unlawfully deny specific consent, as such denial

6 prohibits an immigrant minor from seeking a SIJ-predicate order in

7 state court. Or, if Defendants delay making the specific consent

8 decision, an immigrant minor may run up against the age-out

9 regulations. As a result of Defendants’ unlawful application of

10 the specific consent requirement, Plaintiffs have and will suffer

11 substantial and immediate irreparable injury in losing eligibility

12 for SIJ status and SIJ-based adjustment.

13

In the absence of a class-wide injunction, immigrant minors

14 would be forced to relitigate challenges to Defendants’ specific

15 consent policy. Immigrant minors seeking SIJ protection are

16 vulnerable, are without parental support, and are unfamiliar with

17 the legal system; thus, they are unable to bring challenges to

18 Defendants’ policy. No adequate remedy at law is available, and

19 declaratory and injunctive relief is necessary.

20

The Court, therefore, orders a permanent injunction that

21 requires Defendants to apply the specific consent requirement

22 according to the plain language of the statute, as interpreted

23 here. Defendants are enjoined from requiring specific consent

24 before an immigrant minor may seek a SIJ-predicate order in state

25 court. Defendants may not require specific consent when a state

26 court’s SIJ-predicate order will not determine custody status or

27 placement. The injunction places no limit on Defendants other than

28 the limit intended by Congress; therefore, “[t]he scope of

39

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1 injunctive relief is dictated by the extent of the violation

2 established.” See Lewis v. Casey, 518 U.S. 343, 359 (1996).

3

B. “Age-Out” Regulations

4

Several “age-out” regulations are at issue in the case. 8

5 C.F.R. § 204.11(c)(1) precludes SIJ classification once a youth is

6 no longer “under twenty-one years of age.” 8 C.F.R. § 204.11(c)(5)

7 requires that a youth seeking SIJ status “[c]ontinue to be

8 dependent upon the juvenile court and eligible for long-term foster

9 care, such declaration, dependency or eligibility not having been

10 vacated, terminated , or otherwise ended. . . .” Similarly for

11 SIJ-based adjustment of status, 8 C.F.R. §§ 205.1(a)(3)(iv)(A, C, &

12 D) revoke a youth’s SIJ classification “[u]pon the beneficiary

13 reaching the age of 21; . . . the termination of the beneficiary’s

14 dependency upon the juvenile court; . . . [or] the termination of

15 the [youth’s] eligibility for long-term foster care.”

16

1. Chevron Deference Standard

17

After the SIJ statute’s enactment in 1990, the Attorney

18 General adopted the “age-out” regulations. 58 Fed. Reg. 42,850

19 (August 12, 1993) (codified at 8 C.F.R. § 204.11); 58 Fed. Reg.

20 42,848 (August 12, 1993) (codified at 8 C.F.R. §§ 205.11). The

21 Attorney General was authorized to establish regulations that

22 govern administration of the immigration system. 8 U.S.C. 1103(a)

23 (1993). Given this general grant of regulatory authority, the

24 Court’s analysis of Defendants’ “age-out” regulations proceeds

25 under Chevron, 467 U.S. at 842-43.

26

In Chevron, the Supreme Court adopted a two-step test for

27 judicial review of administrative agency regulations that interpret

28 federal statutes. The first step is to consider whether Congress

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1 speaks directly in the statute to the particular issue: “If the

2 intent of Congress is clear, that is the end of the matter; for the

3 court, as well as the agency, must give effect to the unambiguously

4 expressed intent of Congress.” Chevron, 467 U.S. at 842-43. Where

5 a statute is ambiguous or silent with respect to the issue, a court

6 proceeds to the second step: “the question for the court is whether

7 the agency’s answer is based on a permissible construction of the

8 statute.” Id. at 843. Agency regulations will be permissible,

9 unless “arbitrary, capricious, or manifestly contrary to the

10 statute.” Id. at 844.

11

2. Statutory Analysis of “Age-Out” Regulations

12

Under the Chevron test, “Congressional intent may be

13 determined by ‘traditional tools of statutory construction,’ and if

14 a court using these tools ascertains that Congress had a clear

15 intent on the question at issue, that intent must be given effect

16 as law.” Wilderness Soc'y v. U.S. Fish & Wildlife Serv., 353 F.3d

17 1051, 1059 (9th Cir. 2003).

18

The Court looks first to 8 U.S.C. § 1101(a)(27)(J) itself.

19 The SIJ statute provides eligibility to a child who “has been

20 declared dependent on a juvenile court . . . has been deemed

21 eligible by that court for long-term foster care due to abuse,

22 neglect, or abandonment . . . [and when it] has been determined . .

23 . that it would not be in the alien’ best interest [to be returned

24 to their home country].” 8 U.S.C. § 1101(a)(27)(J).

25

Plaintiffs stress that the statute is written in the past

26 perfect tense. They argue this grammatical construction indicates

27 that SIJ eligibility is not conditional on a child’s age, continued

28 dependency on a juvenile court, or continued eligibility for long-

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1 term foster care. Plaintiffs argue, therefore, that the

2 regulations impose additional eligibility requirements unauthorized

3 by the statute. On Plaintiffs’ reading of the statute, an SIJ-

4 predicate order establishes SIJ eligibility, and Defendants must

5 then decide whether to grant SIJ status.

6

Defendants respond that the SIJ statute does not provide for

7 “infinite eligibility.” (Defs.’ Opp’n 18.). Defendants argue that

8 the statute only speaks to the criteria that establishes SIJ

9 eligibility, not the duration of that eligibility. Defendants

10 further emphasize that the Attorney General was delegated authority

11 to grant SIJ status based upon an SIJ-predicate order. See 8

12 U.S.C. § 1101(a)(27)(J)(iii) (SIJ status granted only if the

13 “Attorney General expressly consents to the dependency order

14 serving as a precondition to the grant of special immigrant

15 juvenile status”). On Defendants’ reading, the statute permits

16 “age-out” regulations.

17

The Court agrees that the text of the statute clearly provides

18 for a child’s SIJ-eligibility once a state court makes the

19 requisite findings in an SIJ-predicate order. While Congress

20 defined SIJ eligibility in terms of state court findings made in

21 the past, however, see Gwaltney of Smithfield v. Chesapeake Bay

22 Foundation, 484 U.S. 49, 57 (1987), the statute does not speak

23 directly to the issue of “age-out” limitations on eligibility.

24 Because the text of the statute does not address Congress’s intent

25 with respect to the age-out issue, the Court must “look to the

26 congressional intent revealed in the history and purposes of the

27 statutory scheme.” See United States v. Buckland, 289 F.3d 558,

28 565 (9th Cir. 2002) (en banc).

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1

As already stated, the SIJ provisions were enacted to protect

2 abused, neglected, and abandoned immigrant youth by providing a

3 method for adjustment to legal permanent resident status. The

4 “age-out” regulations were enacted in 1993, a few years after

5 passage of the SIJ statute. 58 Fed. Reg. 42,850 (August 12, 1993)

6 (codified at 8 C.F.R. § 204.11); 58 Fed. Reg. 42,848 (August 12,

7 1993) (codified at 8 C.F.R. §§ 205.11). When Congress amended the

8 SIJ statute in 1997, it did not disturb the “age-out” regulations.

9 Furthermore, Congress chose to exclude SIJ applicants from the

10 Child Status Protection Act of 2002, Pub. L. No. 107-208, 116 Stat.

11 927, which amended the INA to provide “age-out” protection for

12 certain immigrant children that filed for permanent resident

13 status. See Padash v. Immigration & Naturalization Serv., 358 F.3d

14 1161, 1167 (9th Cir. 2004). This history suggests that Congress

15 condones the age-out regulations with respect to SIJ eligibility.

16

When Congress does not speak directly on an issue and has

17 delegated rulemaking authority to an agency, a court considers

18 whether the agency interpretation is based on a permissible

19 construction of the statute. See Chevron, 467 U.S. at 843. Since

20 the SIJ statute intended to protect immigrant children from abuse,

21 neglect, and abandonment, it is reasonable that eligibility for SIJ

22 status or SIJ-based adjustment of status would be limited to

23 immigrant children, as opposed to adults or individuals no longer

24 dependent on a state court. The regulations, as written, are

25 consistent with Congress’s goal of protecting abused, neglected,

26 and abandoned immigrant children, and therefore, the Court finds

27 the adoption of those regulations was not arbitrary and capricious.

28

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1

The Court does not find the USCIS Administrative Appeals

2 Office opinion, A89 580 183, presented by Plaintiffs at oral

3 argument, to change the analysis. The opinion does not question

4 Defendants’ authority to adopt the “age-out” regulations; rather,

5 it declares that being in the continued legal custody of the state

6 or a state agency, in addition to continued dependency, allows a

7 person to maintain SIJ eligibility. Additionally, the Court does 8 not consider the “age-out” regulations to have no rational basis.14

9 The Court, therefore, finds the “age-out” regulations permissible

10 under Chevron.

11

3. Plaintiffs’ Unreasonable Delay Claim

12

Whether Defendants have a policy or practice of delaying SIJ

13 adjudication so that the “age-out” regulations render immigrant

14

15

14 Plaintiffs argue that the “age-out” regulations lack a rational basis, where aliens are protected by the Due Process

16

Clause of the U.S. Constitution, which incorporates the guarantees of equal protection. Garberding v. INS, 30 F.3d 1187, (9th Cir.

17

1994). Plaintiffs rely on Garberding, 30 F.3d at 1190-91, where the Ninth Circuit found no rational basis for deportation of an

18

alien that obtained expungement of a drug offense under a broad state expungement law. The INS did not deport aliens that obtained

19

expungement of drug offenses under narrower state expungement laws that were the counterpart to the Federal First Offender Act. Id.

20

Plaintiffs argue that Defendants similarly have no rational basis for conditioning SIJ eligibility on continuing dependency on a

21

state court, where states differ with respect to the age when a person is no longer dependent on the court. (Pls.’ Mot. 17-19.)

22

Plaintiffs’ argument is misplaced because Garberding is distinguishable. In Garberding, the petitioner had obtained

23

expungement of a drug offense, like similarly situated persons in other states. The federal government lacked a rational basis for

24

its action in treating petitioner differently because the state expungement law was different from the federal law. Here, the

25

“age-out” regulations uniformly require a person’s continued dependency on a state court to maintain SIJ eligibility.

26

Defendants have a rational basis because continued dependency indicates that a youth still needs the protection afforded by the

27

SIJ statute. Although state laws vary as to age for termination of dependency, Defendants are not engaged in differential treatment

28

according to state law’s lack of conformity to federal law, as was the case in Garberding.

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1 youth ineligible for SIJ benefits is a separate matter. Although

2 the Court holds that the “age-out” regulations are not invalid as a

3 matter of law, the Court notes that Defendants cannot use the “age-

4 out” regulations to deny SIJ benefits by unreasonably delaying

5 adjudication. A significant delay will be less reasonable in light

6 of the “age-out” regulations and threat of losing SIJ eligibility.

7 However, the Court cannot decide the question of unreasonable delay

8 as a matter of law because it raises disputed factual issues. The

9 Court nevertheless recognizes that Plaintiffs still have a claim,

10 in light of the “age-out” regulations, that Defendants abuse their

11 discretion by unreasonably delaying SIJ adjudications.

12 C. Regulations Related to SIJ-Eligible Youth in Removal

13

Proceedings

14

Plaintiffs15 argue that Defendants’ regulations with respect

15 to removal proceedings unlawfully deny adjudication of minors’ SIJ-

16 based adjustment of status applications. Plaintiffs must show that 17 8 U.S.C. 1255 does not authorize these regulations.16

18

The Court first looks to the INA. 8 U.S.C. 1255(a) declares

19 that “the status of an alien who was inspected and admitted or

20 paroled into the United States . . . may be adjusted by the

21 Attorney General, in his discretion and under such regulations as

22

23

15 As the Court denied class certification for a subclass of

24

persons undergoing removal proceedings, the Court treats Plaintiffs’ challenge to Defendants’ removal regulations under

25

joinder principles. The Court notes that Plaintiff Freddy GarridoMartinez is the only individual plaintiff in this action that was

26 subject to the removal regulations.

27

16 Although neither party addresses their arguments to the Chevron standard articulated above, see Chevron USA, Inc., 467 U.S.

28

at 842, Plaintiffs’ challenge raises the issue whether the regulations are permissible under Chevron.

45

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1 he may prescribe, to that of an alien lawfully admitted for

2 permanent residence.” 8 U.S.C. 1255(h) provides that special

3 immigrant juveniles “shall be deemed . . . to have been paroled

4 into the United States.” See also 8 C.F.R. 245.1(a). Under the

5 INA, SIJs are clearly eligible for adjustment of status. 8 U.S.C.

6 §§ 1101(a)(27)(J) and 1255(a & h). The Attorney General clearly

7 has been delegated authority to make regulations with respect to

8 adjustment of status. 8 U.S.C. 1255(a).

9

According to the regulations relevant here, USCIS is

10 responsible for adjudication of an SIJ-based adjustment of status

11 applications unless a SIJ is in removal proceedings. See 8 C.F.R.

12 § 245.2(a)(1) (“USCIS has jurisdiction to adjudicate an application

13 for adjustment of status filed by any alien, unless the immigration

14 judge has jurisdiction to adjudicate any application under 8 C.F.R.

15 § 1245.2(a)(1).”) Once removal proceedings are commenced, the

16 immigration judge is vested with exclusive jurisdiction to

17 adjudicate SIJ-based adjustment applications. See 8 C.F.R. §

18 1245.2(a)(1) (“In the case of any alien who has been placed in

19 deportation proceedings or in removal proceedings (other than as an

20 arriving alien), the immigration judge hearing the proceeding has

21 exclusive jurisdiction to adjudicate any application for adjustment

22 of status the alien may file.”)

23

Plaintiffs argue that the regulations are inconsistent with

24 the INA because the statute specifically provides for SIJ-based

25 adjustment of status, yet the regulations preclude adjudication of

26 adjustment applications. Pointing to the Ninth Circuit’s decision

27 in Bona v. Gonzales, 425 F.3d 663 (9th Cir. 2005), Plaintiffs argue

28 Bona stands for the proposition that Defendants’ regulations “may

46

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1 not deny a statutorily eligible alien adjudication of their

2 application for adjustment of status.” (Pls.’ Mot. 24.). While

3 this is a proper reading of the Bona holding, the regulations at

4 issue here do not categorically deny eligible aliens from

5 adjudication of adjustment applications, which was the basis for

6 invalidity in Bona.

7

In Bona, the Ninth Circuit considered the validity of a

8 regulation that did not allow paroled aliens to seek adjustment of

9 status in a removal proceeding, despite the INA’s provision that

10 paroled aliens were eligible to apply for adjustment of status.

11 Bona, 425 F.3d at 665. The Ninth Circuit held that the regulation

12 was invalid because it “redefines certain aliens as ineligible to

13 apply for adjustment of status, . . . whom a statute, 8 U.S.C.

14 1255(a), defines as eligible to apply.” Id. at 668, quoting Succar

15 v. Ashcroft 394 F.3d 8 (1st Cir. 2005) (internal quotations

16 omitted). The regulation “entirely exclud[ed] a category of aliens

17 from the ability to apply for adjustment, who by statute are

18 eligible to apply for such relief.” Id. at 670.

19

Bona is inapplicable here because the regulations at issue do

20 not categorically deny SIJs the opportunity to apply for adjustment

21 of status. Unlike the paroled aliens in Bona, SIJs in removal

22 proceedings are eligible for adjudication of their adjustment of

23 status applications by the immigration judge, who has exclusive

24 jurisdiction over adjustment applications for persons in removal

25 proceedings. 8 C.F.R. §§ 245.2(a)(1) & 1245.2(a)(1). Plaintiffs

26 does not otherwise challenge these regulations under Chevron.

27 Accordingly, the Court finds that the regulations are not clearly

28 contrary to the INA, or that the regulations are an arbitrary or

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1 capricious exercise of Defendants’ authority to prescribe

2 regulations with respect to adjustment of status.

3

Plaintiffs alternatively challenge the ninety day time limit

4 on motions to reopen removal proceedings. Where the Board of

5 Immigration Appeals or an immigration judge issues a removal order,

6 a SIJ must make a motion to reopen removal proceedings within 90

7 days of the final order of removal. 8 U.S.C. 1229a(c)(c)(7)(C)(j);

8 see also 8 C.F.R. §§ 1003.2(c)(2); 1003.23(b)(I). Plaintiffs argue

9 that SIJs are deprived of adjudication of their SIJ-based

10 adjustment applications by the time limitation on filing motions to

11 reopen removal proceedings.

12

Plaintiffs cannot show that the ninety day time limit in 8

13 C.F.R. §§ 1003.2(c)(2) and 1003.23(b)(I) is invalid, as the INA

14 specifically provides for the ninety day limit. The regulations

15 track that language. See 8 U.S.C. 1229a(c)(c)(7)(C)(j) (“Except as

16 provided for in this subparagraph, the motion to reopen shall be

17 filed within 90 days of the date of entry of a final administrative 18 order of removal.”).17

19

20

21

22

23

24

25

17 Plaintiffs suggest that Defendants typically refuse to join SIJs motions to reopen. See 8 C.F.R. § 1003.23(b)(4)(iv).

26

Plaintiffs also have argued that the BIA typically refuses to exercise their power reopen removal proceedings sua sponte. See 8

27

C.F.R. §§ 1003.2(a). The parties’ have not fully briefed any issues with respect to these allegations; the Court, therefore,

28

will not consider such issues in connection with this set of motions.

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1 IV. CONCLUSION

2

A. Motion for Class Certification

3

For the foregoing reasons, the Court GRANTS in part and DENIES

4 in part Plaintiffs’ motion for class certification:

5 1. The Court GRANTS certification of the specific consent

6

subclass.

7 2. The Court GRANTS certification of the age-out sub-class.

8 3. The Court DENIES certification of the removal sub-class.

9

B. Plaintiffs’ Motion for Partial Summary Adjudication and

10

Defendants’ Cross-Motion for Summary Judgment

11

For the foregoing reasons, the Court GRANTS in part and DENIES

12 in part Plaintiffs’ motion for partial summary adjudication, and

13 Defendants’ cross-motion for summary judgment:

14 1. The Court GRANTS summary adjudication to Plaintiffs on their

15

claim regarding the specific consent requirement. Defendants’

16

motion is DENIED on this claim. As explained in this Order,

17

Defendants are enjoined from requiring specific consent when a

18

minor only seeks state court jurisdiction for an SIJ-predicate

19

order.

20 2. The Court DENIES summary adjudication to Plaintiffs on their

21

claim that Defendants’ age-out regulations imposed ultra vires

22

eligibility requirements. As explained in this Order,

23

Defendants’ motion for summary adjudication on this claim is

24

GRANTED. Plaintiffs’ age-out subclass may still raise the

25

claim that Defendants unreasonably delay adjudication of the

26

SIJ applications of immigrant minors subject to the age-out

27

regulations.

28

49

Case 2:05-cv-03604-DDP-RZ Document 121 Filed 01/08/2008 Page 50 of 50

1 3. The Court DENIES summary adjudication to Plaintiffs on their

2

claim regarding Defendants’ removal regulations. Defendants

3

are GRANTED summary adjudication on this claim. Plaintiffs

4

may still raise a claim of abuse of discretion in application

5

of the removal regulations.

6

7 IT IS SO ORDERED.

8

9 Dated: January 8, 2008 10

DEAN D. PREGERSON United States District Judge

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

50

 
 Case 2:05-cv-03604-DDP-RZ Document 159 Filed 08/31/10 Page 1 of 33 Page ID #:534

1 Center For Human Rights and Constitutional Law

2

Carlos R. Holguín (Cal Bar #90754) crholguin@centerforhumanrights.org

3

Peter A. Schey (Cal Bar #58232) pschey@centerforhumanrights.org

4

256 S. Occidental Blvd. Los Angeles, CA 90057

5 Tel: (213) 388-8693 ext. 309; Fax: (213) 386-9484

6

Los Angeles Center for Law and Justice Gary Slossberg

7

1241 S. Soto St., Suite 102 Los Angeles, CA 90023

Tel: (323) 980-3500; Fax: (323) 980-3510 8

Attorneys for Plaintiffs 9

TONY WEST

10 United States Department of Justice

11

Assistant Attorney General DAVID J. KLINE

12

Director, District Court Section MELISSA S. LEIBMAN NYSBN 4442877

13

Trial Attorney, District Court Section Office of Immigration Litigation

14

P.O. Box 868, Ben Franklin Station Washington, D.C. 20044

Tel: (202) 305-7016; Fax: (202) 305-7000

15 E-mail: Melissa.Leibman@usdoj.gov

16 Attorneys for Defendants.

17

UNITED STATES DISTRICT COURT

18

CENTRAL DISTRICT OF CALIFORNIA

19 LUIS JAVIER PEREZ-OLANO, 20 et al.,

21

Plaintiffs,

22

23

v.

24 ERIC H. HOLDER, JR., United States, 25 Attorney General, et al.,

26

27

Defendants.

28

) Case No. CV05-03604 (DDP) ) Honorable Dean D. Pregerson ) ) Date: October 4, 2010 ) Time: 10:00 a.m. ) Courtroom: 3, 2nd Floor Spring Street ) ) ) NOTICE OF MOTION AND ) JOINT MOTION FOR APPROVAL ) OF SETTLEMENT AGREEMENT ) AND NOTICE TO CLASS, AND ) MEMORANDUM IN SUPPORT )

Case 2:05-cv-03604-DDP-RZ Document 159 Filed 08/31/10 Page 2 of 33 Page ID #:535

1 PLEASE TAKE NOTICE that on October 4, 2010, at 10:00 a.m., or as soon
2
thereafter as the parties may be heard, Plaintiffs Luis Javier Perez-Olano, Casa
3

4 Libre Youth Shelter, Freddy Garrido-Martinez, Manuel Gomez, Yan Jun Li, Luis

5 Miguel Morales, Michael Yuban Obando, Maejean Robinson, Lucia Urey, on
6
7 behalf of themselves, the Class and all Class Members (collectively, the

8 “Plaintiffs”); and Defendants Eric H. Holder, Jr., United States Attorney General,
9
Janet Napolitano, Secretary of Homeland Security; and Office of Refugee
10
11 Resettlement, (collectively, the “Defendants”) will and do hereby jointly move the

12 Court pursuant to Federal Rule of Civil Procedure 23, to approve the class-wide
13
14 settlement of this action.

15

The parties respectfully request that the Court:

16
(a) Set a schedule for the Fairness Hearing and other appropriate dates;
17
18 (b) Approve the form and method of notifying the class;

19 (c) After the Fairness Hearing, grant approval of the Settlement Agreement
20
(attached hereto as Exhibit 1); and
21

22 (d) After granting final approval of the Settlement Agreement, dismiss this action

23 and vacate and dissolve the permanent injunction entered by the Court on January
24
25 8, 2008. Perez-Olano v. Gonzales, 248 F.D.R. 248 (C.D. Cal. 2008).

26

27

28

2

Case 2:05-cv-03604-DDP-RZ Document 159 Filed 08/31/10 Page 3 of 33 Page ID #:536

1

The hearing will take place before the Honorable Dean D. Pregerson,

2
Courtroom 3, Second Floor, United States District Court for the Central District of
3

4 California, 312 North Spring Street, Los Angeles, California 90012.

5

This motion is based on the Memorandum of Points and Authorities and the

6

7 lodged Settlement Agreement attached hereto; all pleadings, papers and files in this

8 action; and such oral argument as may be presented at the hearing on this motion.
9
This motion is made following the conference of counsel pursuant to L.R.
10
11 7-3 which took place on August 30, 2010.

12
13 Dated: August 31, 2010

14 15
Attorneys for Defendants:
16 17 18 19 20 21 22 23 24 25

Respectfully submitted,
TONY WEST United States Department of Justice Assistant Attorney General
/s/ David J. Kline DAVID J. KLINE Director, District Court Section Office of Immigration Litigation Civil Division
/s/ Melissa S. Leibman MELISSA S. LEIBMAN NYSB 4442877 Trial Attorney Office of Immigration Litigation Civil Division Melissa.Leibman@usdoj.gov

26

27

28

3

Case 2:05-cv-03604-DDP-RZ Document 159 Filed 08/31/10 Page 4 of 33 Page ID #:537

1 Attorneys for Plaintiffs
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

/s/ Carlos R. Holguín CARLOS R. HOLGUIN Center for Human Rights & Constitutional Law 256 South Occidental Boulevard Los Angeles, CA 90057 /s/ Peter Schey PETER SCHEY Center for Human Rights & Constitutional Law 256 South Occidental Boulevard Los Angeles, CA 90057
4

Case 2:05-cv-03604-DDP-RZ Document 159 Filed 08/31/10 Page 5 of 33 Page ID #:538

1

TABLE OF CONTENTS

2
MEMORANDUM OF POINTS AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . 1
3
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
4

5 II. STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

6

A. Summary Of The Proposed Settlement Agreement . . . . . . . . . . . . . . 3

7

1. “Specific consent” sub-class. . . . . . . . . . . . . . . . . . . . . . . . . . . 4

8

2. “Age-out” sub-class. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

9

3. The remaining provisions of the Settlement Agreement. . . . . . 9

10

B. Proposed Notice To The Class . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

11 III. ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

12

A. Standard For Approval Of Class Action Settlements . . . . . . . . . . . . 12

13

B. The Settlement Agreement Meets All Standards For Approval. . . . 15

14

1. The strength of Plaintiffs’ case. . . . . . . . . . . . . . . . . . . . . . . . 15

15

2. The risk, expense, complexity, and likely duration of

16

further litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

17

3. The amount offered in settlement. . . . . . . . . . . . . . . . . . . . . . 16

18

4. The extent of discovery completed and the stage of the

19

proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

20

5. The experience and views of counsel . . . . . . . . . . . . . . . . . . . 17

21

6. Presence of a governmental participant . . . . . . . . . . . . . . . . . 18

22

7. The proposed notice provides absent class members

23

adequate opportunity to react to the Settlement. . . . . . . . . . . 19

24
C. The Court Should Approve Parties’ Proposed Form and
25
Method of Class Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
26

27

28

i

Case 2:05-cv-03604-DDP-RZ Document 159 Filed 08/31/10 Page 6 of 33 Page ID #:539

1

D. The Court Should Vacate the Injunction Contained Within

2

The Order of April 28, 2009. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

3 IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

4 CERTIFICATE OF SERVICE

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ii

Case 2:05-cv-03604-DDP-RZ Document 159 Filed 08/31/10 Page 7 of 33 Page ID #:540

1 TABLE OF AUTHORITIES
2 FEDERAL CASES Amchem Products, Inc. v. Windsor,
3
521 U.S. 591 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4

5 Churchill Village, LLC v. General Electric,

6

361 F.3d 566 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

7 Class Plaintiffs v. City of Seattle,

8

955 F.2d 1268 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

9 Haitian Refugee Center v. Smith,

10

676 F.2d 1023 (5th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

11 Hanlon v. Chrysler Corp.,

12

150 F.3d 1011 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

13 Hemphill v. San Diego Association of Realtors, Inc.,

14

225 F.R.D. 616 (S.D. Cal. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

15
In re Syncor Erisa Litigation,

16

516 F.3d 1095 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

17

League of United Latin American Citizens v. Wilson,

18

131 F.3d 1297 (9th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

19

Mandujano v. Basic Vegetable Products, Inc.,

20

541 F.2d 832 (9th Cir. 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

21

Mendez v. INS,

22

563 F.2d 956 (9th Cir. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

23

24

Mendoza v. Tucson Sch. District No. 1, 623 F.2d 1338 (9th Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

25

26 Molski v. Gleich, 318 F.3d 937 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
27

28

iii

Case 2:05-cv-03604-DDP-RZ Document 159 Filed 08/31/10 Page 8 of 33 Page ID #:541

1 Dukes v. Wal-Mart Stores, Inc.,

2

603 F.3d 571, 617 (9th Cir. Cal. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

3 Officers for Justice v. Civil Serv. Commission of San Francisco,

4

688 F.2d 615 (9th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14, 15

5 Orantes-Hernandez v. Smith,

6

541 F. Supp. 351 (C.D. Cal. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

7
Perez-Olano v. Gonzalez,

8

248 F.R.D. 248 (C.D. Cal. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, passim

9

Plyler v. Doe,

10

457 U.S. 202 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

11

Ramon Sepulveda v. INS,

12

863 F.2d 1458 (9th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

13

14

Reno v. Catholic Social Services, 509 U.S. 43 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

15

16 Reno v. Flores, 507 U.S. 292 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
17

18 Staton v. Boeing Co., 327 F.3d 938 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
19

20

STATUTES

21 8 U.S.C. § 1101(a)(27)(J) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4, 5
22
23 8 U.S.C. § 1255 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

24

25

EQUAL ACCESS TO JUSTICE ACT

26 28 U.S.C. § 2412 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,17
27

28

iv

Case 2:05-cv-03604-DDP-RZ Document 159 Filed 08/31/10 Page 9 of 33 Page ID #:542

1 WILLIAM WILBERFORCE TRAFFICKNG VICTIMS PROTECTION

2

REAUTHORIZATION ACT OF 2008 (“TVPRA”)

3 § 235(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

4

5

MISCELLANEOUS

6 A. Conte and H. Newberg, Newberg on Class Actions

7

§ 11.51(4th ed. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

8 Wright, Miller, & Kane, FEDERAL PRACTICE AND PROCEDURE

9

§ 1797 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

10

11

FEDERAL RULES OF CIVIL PROCEDURE

12 Fed. R. Civ. P. 16(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
13
14 Fed. R. Civ. P. 23(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, passim

15

16

17

18

19

20

21

22

23

24

25

26

27

28

v

Case 2:05-cv-03604-DDP-RZ Document 159 Filed 08/31/10 Page 10 of 33 Page ID #:543

1

MEMORANDUM OF POINTS AND AUTHORITIES

2
I. INTRODUCTION
3

4

Plaintiffs and Defendants jointly submit this Memorandum in Support of the

5 Joint Motion for Approval of Class Action Settlement and Approval of Notice to
6
7 Class. For the reasons articulated in the motion and this supporting memorandum,

8 the parties respectfully request that the Court approve the class notice and
9
procedures, and schedule a date for the Fairness Hearing. The parties further
10
11 request final approval of the Settlement Agreement after the hearing, followed by

12 dissolution of the injunction entered by the Court on January 8, 2008. Perez-Olano
13
14 v. Gonzalez, 248 F.R.D. 248 (C.D. Cal. 2008).

15

At issue in this case are certain policies, practices, and regulations regarding

16
Form I-360 petitions for status as Special Immigrant Juveniles (“SIJ status”) and
17
18 adjustment of status applications based upon a petition for Special Immigrant

19 Juvenile status (“SIJ-based adjustment of status”) pursuant to 8 U.S.C.
20
§§ 1101(a)(27)(J)1 and 1255. Plaintiffs’ claims and the Court’s partial disposition
21

22
1 The SIJ program derives primarily from 8 U.S.C. § 1101(a)(27)(J), which includes the
23 following persons in the definition of a “special immigrant”:

24

(J) an immigrant who is present in the United States –

25
(i) who has been declared dependent on a juvenile court located in the United States or

26

whom such a court has legally committed to, or placed under the custody of, an agency or

department of a State, or an individual or entity appointed by a State or juvenile court

27

located in the United States, and whose reunification with one or both of the immigrant’s

28

1

Case 2:05-cv-03604-DDP-RZ Document 159 Filed 08/31/10 Page 11 of 33 Page ID #:544

1 thereof are explained in detail in the Court’s order granting in part and denying in
2
part Plaintiffs’ motions for class certification and partial summary adjudication.
3

4 Perez-Olano, 248 F.R.D. at 271.

5

Following lengthy negotiations under the auspices of the Ninth Circuit

6

7 Mediation Program, the parties concluded a class-wide Settlement Agreement and

8 now jointly move the Court to approve it pursuant to Rule 23(e) of the Federal

9
Rules of Civil Procedure.
10

11

As explained below, the proposed Settlement Agreement is fundamentally

12 fair, adequate, and reasonable and accordingly merits the Court’s approval.
13

14

15

16

17

parents is not viable due to abuse, neglect, abandonment, or a similar basis found under

18

State law;

19

(ii) for whom it has been determined in administrative or judicial proceedings that it

would not be in the alien’s best interest to be returned to the alien’s or parent’s previous

20

country of nationality or country of last habitual residence; and

21

(iii) in whose case the Secretary of Homeland Security consents to the grant of special

immigrant juvenile status, except that –
22

(I) no juvenile court has jurisdiction to determine the custody status or placement

23

of an alien in the custody of the Secretary of Health and Human Services unless

24

the Secretary of Health and Human Services specifically consents to such jurisdiction; and

25

(II) no natural parent or prior adoptive parent of any alien provided special

26

immigrant status under this subparagraph shall thereafter, by virtue of such

parentage, be accorded any right, privilege, or status under this Act;…

27

28

2

Case 2:05-cv-03604-DDP-RZ Document 159 Filed 08/31/10 Page 12 of 33 Page ID #:545

1

II. STATEMENT OF FACTS

2
On January 8, 2008, the Court issued an order granting in part, and denying
3

4 in part, Plaintiffs’ motion for class certification, and granting in part, and denying

5 in part, Plaintiffs’ motion for partial summary judgment. Perez-Olano, 248 F.R.D.
6
7 at 271. The Court set a trial for February 26, 2008, on the two remaining issues.

8 On January 22, 2008, the parties jointly stipulated to continue the trial until April

9
28, 2008. (See Dkt. 124).
10

11

Defendants filed a notice of appeal on February 5, 2008 (Case No. 08-

12 55195). On February 19, 2008, Plaintiffs filed a notice of cross-appeal. On March
13
14 11, 2008, the Court continued trial until after the United States Court of Appeals

15 for the Ninth Circuit (“Ninth Circuit”) disposed of Defendants’ motion to dismiss

16
Plaintiffs’ cross-appeal for lack of jurisdiction. (See Dkt. 154). On August 11,
17
18 2010, the Ninth Circuit dismissed the appeal and cross-appeal without prejudice to

19 reinstatement pending this Court’s determination of whether to approve the
20
Settlement Agreement.
21

22 A. Summary Of The Proposed Settlement Agreement

23

On May 4, 2010, the parties reached a Settlement Agreement that will

24

25 dispose of this action. See Settlement (Ex. 1). The beneficiaries of the Settlement

26 Agreement are “all aliens, including, but not limited to, SIJ applicants, who, on or
27

28

3

Case 2:05-cv-03604-DDP-RZ Document 159 Filed 08/31/10 Page 13 of 33 Page ID #:546

1 after May 13, 2005, apply or applied for SIJ status or SIJ-based adjustment of
2
status based upon their alleged SIJ eligibility.” See Settlement (Ex. 1, ¶ 3). The
3

4 parties have excluded no unnamed class-member of the certified subclasses from

5 coverage under the Settlement Agreement. As explained below, the Settlement
6
7 Agreement provides relief not only to the certified “specific consent” and “age-

8 out” subclasses, but also youth in removal proceedings who were unable to seek
9
adjudication of their SIJ-based adjustment of status applications before United
10
11 States Citizenship and Immigration Services (“USCIS”) or who had a final

12 removal order that was more than 90 days-old, and, therefore, were unable to seek
13
14 SIJ-based adjustment of status, a sub-class the Court declined to certify. Perez-

15 Olano v. Gonzales, supra, 248 F.R.D. at 263.

16
1. “Specific consent” sub-class.
17

18

In its order of January 8, 2008, the Court issued class-wide relief barring

19 Defendants from requiring that youth in federal custody obtain “specific consent”
20
prior to invoking the jurisdiction of state juvenile courts so long as the state court
21

22 does not determine a youth’s custody status or placement. 248 F.R.D. at 264-65.

23 The Settlement Agreement continues this protection, providing that Defendants
24
25 will not require specific consent except when a juvenile is in the custody of HHS

26

27

28

4

Case 2:05-cv-03604-DDP-RZ Document 159 Filed 08/31/10 Page 14 of 33 Page ID #:547

1 and the juvenile seeks a state court order determining or altering the juvenile’s
2
custody status or placement. See Settlement (Ex. 1, ¶ 17).
3

4

In cases where specific consent is required, the Settlement Agreement sets

5 standards and procedures for the disposition of specific consent requests. See
6
7 Settlement (Ex. 1, ¶¶ 18 (requiring acknowledgment of specific consent request

8 within two business days); 20 (providing for expeditious adjudication of specific
9
consent requests and disclosure of evidentiary basis for decision); and 21-22
10
11 (providing for administrative review of denials of specific consent)). The

12 Settlement Agreement’s protections thus go beyond those of the injunction, which
13
14 does not address procedures for granting specific consent in those cases where it

15 may be required.

16
Unlike the current injunction, however, the benefits the Settlement
17
18 Agreement affords class members are not permanent, but sunset six years after the

19 agreement becomes effective. See Settlement (Ex. 1, ¶ 41). However, several
20
factors ameliorate the potential impact of this concession on class members.
21

22 First, section 235(d) of the William Wilberforce Trafficking Victims Protection

23 Reauthorization Act of 2008, Pub. L. 110-457, 122 Stat. 5044 (December 23,
24
25 2008) (“TVPRA”), transferred the authority to issue specific consent from U.S.

26 Immigration and Customs Enforcement (“ICE”) to the Department of Health and
27

28

5

Case 2:05-cv-03604-DDP-RZ Document 159 Filed 08/31/10 Page 15 of 33 Page ID #:548

1 Human Services (“HHS”).2 Thus, even after the Settlement Agreement sunsets,
2
determinations of whether to issue specific consent will be made by HHS, rather
3

4 than by ICE. Plaintiffs believe this difference is important because ICE’s mission

5 is to enforce the federal immigration laws, whereas HHS is tasked with the care
6
7 and custody of unaccompanied juveniles.

8

Second, Defendants have complied with the Court’s injunction for more than

9
two years, and they will continue the same essential policy and practice for another
10

11 six years under the Settlement Agreement. Though there is no guarantee

12 Defendants will not resume enjoined practices when the Settlement Agreement
13
14 sunsets, Plaintiffs’ counsel believe that a government agency should not easily

15 jettison an approach that will by then have become familiar.

16
Third, even if after six years HHS were to resurrect ICE’s approach – that
17
18 specific consent is required whenever a youth in federal custody invokes a state

19 juvenile court’s jurisdiction – nothing would prevent aggrieved youth from
20
bringing a new lawsuit. As a practical matter, class counsel thinks it unlikely
21

22 Defendants would return to their old practice upon the sunset of the Settlement

23 Agreement.
24

25

2 On December 23, 2008, the TVPRA was signed into law. Section 235(d) of the TVPRA

26 transferred the authority over specific consent determinations from DHS to HHS and extended the
eligibility for SIJ status to all aliens who were under 21 years of age at the time they filed a completed SIJ

27 petition with USCIS.

28

6

Case 2:05-cv-03604-DDP-RZ Document 159 Filed 08/31/10 Page 16 of 33 Page ID #:549

1

In all events, more than counter-balancing this potential detriment to

2
sub-class members are the additional benefits the Settlement Agreement provides
3

4 youth who continue to need specific consent. There is also the possibility the

5 January 8, 2008 injunction could be overturned on appeal, leaving all specific
6
7 consent sub-class members bereft of any protection at all. On balance, then,

8 specific consent sub-class members are better off under the Settlement Agreement

9
than they would be without it.
10

11

2. “Age-out” sub-class.

12

In its January 8, 2008 order, the Court rejected Plaintiffs’ facial challenge to

13

14 Defendants’ age-out regulations, but reserved for trial Plaintiffs’ claim that USCIS

15 abused its discretion in applying the age-out regulations to class members whose

16
SIJ applications USCIS unreasonably delayed adjudicating. Perez-Olano v.
17
18 Gonzales, 248 F.R.D. at 269-70. On this score the Settlement Agreement affords

19 sub-class members relief without requiring them to prove unreasonable delay in the
20
adjudication of their individual SIJ applications. Under the Settlement Agreement
21

22 USCIS will not deny or revoke a class member’s SIJ status petition or SIJ-based

23 adjustment of status application on account of age or dependency status if, at the
24
25 time the class member files the petition or application, he or she is under 21 years

26 of age or is the subject of a valid dependency order even if that dependency order
27

28

7

Case 2:05-cv-03604-DDP-RZ Document 159 Filed 08/31/10 Page 17 of 33 Page ID #:550

1 is thereafter terminated on the basis of age. Additionally, USCIS will not deny or
2
revoke a class member’s SIJ status petition or SIJ-based adjustment of status
3

4 application on account of ineligibility for long-term foster care. See Settlement

5 (Ex. 1, ¶¶ 23-24). The Settlement Agreement also provides that juveniles may file
6
7 Form I-765 applications for employment authorization together with their

8 applications for SIJ-based adjustment of status. See Settlement (Ex. 1, ¶ 26).
9
In addition to this prospective relief, the Settlement Agreement provides that
10
11 USCIS will re-adjudicate SIJ status petitions and/or SIJ-based adjustment of status

12 applications filed on or after May 13, 2005, that USCIS denied for reasons
13
14 inconsistent with the Settlement Agreement. See Settlement (Ex. 1, ¶ 28). USCIS

15 will also re-adjudicate, without fee, SIJ-based adjustment of status applications for

16
three named plaintiffs. See Settlement (Ex. 1, ¶ 27). Therefore, under the
17
18 Settlement Agreement, such youth may seek a re-adjudication of their eligibility

19 for SIJ benefits under the same standards the Settlement Agreement prescribes
20
prospectively: so long as they filed their SIJ applications while under 21 or while
21

22 still dependent on a juvenile court, applicants who aged-out of SIJ eligibility in the

23 past may receive the same relief as will future applicants.
24

25

26

27

28

8

Case 2:05-cv-03604-DDP-RZ Document 159 Filed 08/31/10 Page 18 of 33 Page ID #:551

1

3. The remaining provisions of the Settlement Agreement.

2
In contrast to the specific consent and age-out subclasses, the Court declined
3

4 to certify the proposed “removal” sub-class: youth in removal proceedings who

5 were unable to seek adjudication of their SIJ-based adjustment of status
6
7 applications before USCIS and who are subject to final orders of removal that are

8 more than 90 days old. Perez-Olano v. Gonzales, supra, 248 F.R.D. at 262-63.
9
Substantively, the Court also upheld the facial validity of Defendants’
10
11 regulations conferring exclusive jurisdiction upon immigration judges to adjudicate

12 SIJ-based adjustment applications of youth placed in removal proceedings, as well
13
14 as regulations generally barring youth from moving to re-open their removal

15 hearings more than 90 days after they have been ordered removed. Id. at 270-71.

16
The Court ruled, however, “Plaintiffs may still raise a claim of abuse of discretion
17
18 in application of the removal regulations.” Id. at 271.

19

Here, the Settlement Agreement affords relief to the proposed removal

20
sub-class without requiring aggrieved youth to prove Defendants abused their
21

22 discretion in the application of the jurisdictional regulations to their individual

23 cases. Pursuant to ¶ 29 of the Settlement Agreement, ICE will join motions to
24
25 reopen removal proceedings when the juvenile (i) requests such joinder within 60

26 days of being notified by USCIS that it has granted him or her SIJ status; and (ii) is
27

28

9

Case 2:05-cv-03604-DDP-RZ Document 159 Filed 08/31/10 Page 19 of 33 Page ID #:552

1 not inadmissible under INA § 212, or removable under INA § 237, on grounds that
2
disqualify him or her from adjustment of status, or, if inadmissible, such grounds
3

4 of inadmissibility have been waived or are waivable. See Settlement (Ex. 1, ¶ 29).

5 The Settlement thus confers substantial benefits upon members of the uncertified
6
7 removal sub-class.

8

Additionally, the Settlement Agreement provides that ICE will join in a

9
motion to reopen the removal proceedings against Plaintiff Freddy Garrido
10

11 Martinez, but that such joinder shall be without prejudice to ICE’s right to contest

12 any claim advanced by Garrido Martinez or his eligibility for SIJ-based adjustment
13
14 of status. See Settlement (Ex. 1, ¶ 30). In the event that an immigration judge

15 terminates the proceedings against Garrido Martinez, USCIS will re-adjudicate

16
Garrido Martinez’s adjustment of status application. See Settlement (Ex. 1, ¶ 31).
17

18

The Settlement Agreement becomes effective on the date that the last of the

19 following conditions has been satisfied: (1) approval by the district court of this
20
agreement; (2) entry by the district court of an order dissolving the nationwide
21

22 permanent injunction and dismissing the action with prejudice; and (3) withdrawal

23 of the parties’ appeals, which are pending before the Ninth Circuit. The Settlement
24
25 Agreement terminates six years after the effective date. See Settlement (Ex. 1,

26 ¶ 36). The Settlement Agreement creates a dispute resolution structure and
27

28

10

Case 2:05-cv-03604-DDP-RZ Document 159 Filed 08/31/10 Page 20 of 33 Page ID #:553

1 provides for notice to class members and to the general public. See Settlement (Ex.
2
1, ¶¶ 42-43). The Settlement Agreement does not include any agreement regarding
3

4 attorneys fees. Instead, the proposed Settlement Agreement states that Plaintiffs

5 may attempt to negotiate, request, seek, or solicit attorney fees pursuant to the
6
7 Equal Access to Justice Act, 28 U.S.C. § 2412(d). Plaintiffs’ application for fees

8 must be filed no later than 30 days after the district court approves the Settlement
9
Agreement. Defendants have the right to challenge Plaintiffs’ EAJA fee request in
10
11 whole, or in part. See Settlement (Ex. 1, ¶ 49).

12

Pursuant to Rule 23(e)(3), the parties hereby notify the Court that, other than

13

14 as stated in the Settlement Agreement, there are no agreements requiring disclosure

15 that were “made in connection with the propos[ed settlement].” See Fed. R. Civ. P.

16
23(e)(3).
17
18 B. Proposed Notice To The Class

19

Notice of the proposed Settlement Agreement will be prominently displayed

20
on the Defendants’ public websites and disseminated through other forms of public
21

22 dissemination that the Defendants independently deem appropriate. See Settlement

23 (Ex. 1 ¶¶ 44-46); Proposed Notice (Ex. 2). The Notice contains a summary of the
24
25 terms, a description of who qualifies as a Class Member, instructions on how to

26 obtain further information about the Settlement Agreement, and procedures for
27

28

11

Case 2:05-cv-03604-DDP-RZ Document 159 Filed 08/31/10 Page 21 of 33 Page ID #:554

1 objecting and appearing at the Fairness Hearing. See Proposed Notice (Ex. 4).
2

3

4

Class Members will be notified of the Settlement Agreement both before and

5 after final approval. These notices are appropriate under Rule 23(e)(1) and will
6
7 enable Class Members to obtain the relief they are entitled to under the Settlement

8 Agreement.
9
III. ARGUMENT
10
11 A. Standard For Approval Of Class Action Settlements

12

Settlements and voluntary conciliation are “the preferred means of dispute

13

14 resolution.” In re Syncor Erisa Litigation, 516 F.3d 1095, 1101 (9th Cir. 2008)

15 (additional citation omitted). The public policy favoring settlement agreements is

16
particularly strong in complex class action litigation. Id. The Federal Rules of
17
18 Civil Procedure and the Local Rules of the United States District Court, Central

19 District of California, also encourage settlement of cases. Id., citing Fed. R. Civ. P.
20
16(a)(5) (one of the five purposes of a pretrial conference is to facilitate
21

22 settlement); L.R. 16-2.9 (requiring parties to exhaust all possibilities of settlement);

23 L.R. 16-15 to 15.9 (setting forth policies and procedures for settlement including
24
25 encouraging disposition of civil litigation by settlement by any reasonable means).

26

Rule 23(e) of the Federal Rules of Civil Procedure provides:

27

28

12

Case 2:05-cv-03604-DDP-RZ Document 159 Filed 08/31/10 Page 22 of 33 Page ID #:555

1

A class action shall not be dismissed or compromised without the

2

approval of the court, and notice of the proposed dismissal or

compromise shall be given to all members of the class in such manner

3

as the court directs.

4
5 The purpose of Rule 23(e) is to protect “unnamed class members from unjust or

6 unfair settlements affecting their rights when the representatives... are able to

7
secure satisfaction of the individual claims by a compromise.” Amchem Prods.,
8
9 Inc. v. Windsor, 521 U.S. 591, 623 (1997) (quoting 7B Wright, Miller, & Kane,

10 FEDERAL PRACTICE AND PROCEDURE § 1797, at 340-341).
11
Under Fed. R. Civ. P. 23(e), the Court must evaluate whether the proposed
12

13 settlement is fundamentally fair, adequate, and reasonable. Hanlon v. Chrysler

14 Corp., 150 F.3d 1011, 1026 (9th Cir. 1998) (citations omitted). One requirement is
15
16 that adequate notice of the settlement be provided to the class members. Id. at

17 1025; Fed. R. Civ. P. 23(e)(1).
18
It is the settlement taken as a whole, rather than the individual component
19
20 parts, that courts examine for overall fairness. Officers for Justice v. Civil Serv.

21 Comm’n of San Francisco, 688 F.2d 615, 628 (9th Cir. 1982). A Rule 23(e)
22
23 inquiry

24

focuses primarily upon whether the particular aspects of the decree

25

that directly lend themselves to pursuit of self-interest by class

counsel and certain members of the class-namely, attorneys’ fees and

26

the distribution of any relief, particularly monetary relief, among class

27

28

13

Case 2:05-cv-03604-DDP-RZ Document 159 Filed 08/31/10 Page 23 of 33 Page ID #:556

1

members-strictly comport with substantive and procedural standards

2

designed to protect the interests of class members.

3 Staton v. Boeing Co., 327 F.3d 938, 960 (9th Cir. 2003).
4
Courts also weigh the following factors in determining whether to approve a
5

6 class settlement:

7

[T]he strength of the plaintiffs’ case; the risk, expense, complexity,

8

and likely duration of further litigation; the risk of maintaining class

9

action status throughout the trial; the amount offered in settlement; the

extent of discovery completed and the stage of the proceedings; the

10

experience and views of counsel; the presence of a governmental

11

participant; and the reaction of the class members to the proposed

settlement.

12

13 Molski v. Gleich, 318 F.3d 937, 953 (9th Cir. 2003), overruled in part on other

14 grounds, Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 617 (9th Cir. Cal. 2010).3

15

16

The weight given any particular factor depends upon the “nature of the

17 claims, the types of relief sought, and the unique facts and circumstances presented
18
by the individual case.” Officers for Justice, supra, 688 F.2d at 625. Judged
19

20

21
3 Even if there is some doubt about a settlement’s fairness, there is a “strong judicial policy that

22 favors settlements, particularly where complex class action litigation is concerned.” Class Plaintiffs v.

City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992). The decision to approve or reject a settlement is
23 committed to the sound discretion of the trial court because it is “exposed to the litigants, and their

24

strategies, positions and proof.” Id. at 626 (internal quotation omitted). Appellate “review of the district
court’s decision to approve a class action settlement is extremely limited.” Hanlon, 150 F.3d at 1026.

25 “To survive appellate review, the district court must show it has explored comprehensively all factors,”
id., but a trial court is not required to “reach any ultimate conclusions on the contested issues of fact and

26 law which underlie the merits of the dispute, for it is the very uncertainty of outcome in litigation and
avoidance of wasteful and expensive litigation that induce consensual settlements,” Officers for Justice,

27 supra, 688 F.2d at 625.

28

14

Case 2:05-cv-03604-DDP-RZ Document 159 Filed 08/31/10 Page 24 of 33 Page ID #:557

1 against these standards, the Settlement Agreement herein is wholly fair to class
2
members and merits this Court's approval.
3

4 B. The Settlement Agreement Meets All Standards For Approval.

5

1. The strength of Plaintiffs’ case.

6

7

The Court has previously assessed the strength of Plaintiffs’ various claims

8 on behalf of the three sub-classes seeking relief in this action. See Perez-Olano v.
9
Gonzalez, supra, 248 F.R.D. at 248. As explained above, the Settlement
10
11 Agreement confers critical benefits on youth who have as yet received no formal

12 relief (“age-out” and “removal” sub-classes), and adds forms of relief to those
13
14 youth in federal custody (the “specific consent” subclass).

15

Plaintiffs have accordingly not compromised overwhelmingly strong class

16
claims in exchange for individual relief. To the contrary, all parties have assessed
17
18 the uncertainties inherent in continued litigation and reasonably determined that the

19 terms of the Settlement are preferable.
20

21

22

23

24

25

26

27

28

15

Case 2:05-cv-03604-DDP-RZ Document 159 Filed 08/31/10 Page 25 of 33 Page ID #:558

1

2. The risk, expense, complexity, and likely duration of further

2

litigation.

3

This case is now five years old. Even were the parties to pursue their

4
5 pending appeals to decision, trial on plaintiffs’ more fact-intensive claims would be

6 required, with the parameters of trial uncertain. See Order Granting Continuance

7
of Trial, March 11, 2008 (Dkt. 154) (“The trial issues in this case are dependent on
8
9 the outcome of the Ninth Circuit’s review of this Court's January 8, 2008 Order.”).

10 As the parties recognize in the Settlement, “a trial in this case would be complex,
11
lengthy and costly to all parties concerned, and the decision of the District Court
12

13 may be subject to appeal by the losing Party with the final outcome uncertain . . . .”

14 See Settlement (Ex. 1, ¶ 2).

15

16

The parties’ assessment is reasonable. The Settlement Agreement reduces

17 further delay, removes uncertainty, obviates the need for trial, and affords class

18
members specific and meaningful relief.
19

20

3. The amount offered in settlement.

21

Since its inception, this action has sought only equitable relief; nowhere do

22

23 the named plaintiffs realize any monetary gain from the Settlement. There is

24 accordingly no potential that the named plaintiffs have subordinated the interests of

25
absent class members for personal pecuniary advantage. Likewise, there is no
26

27

28

16

Case 2:05-cv-03604-DDP-RZ Document 159 Filed 08/31/10 Page 26 of 33 Page ID #:559

1 danger that Plaintiffs colluded with the government Defendants to sacrifice the
2
interests of Class Members for their own monetary gain.
3

4

Class members’ rights under the Settlement Agreement have also been

5 negotiated wholly apart from attorneys’ fees. The Settlement provides only that
6
7 Plaintiffs may attempt to negotiate or win attorneys’ fees under the Equal Access

8 to Justice Act, 28 U.S.C. § 2412 once the Court approves the Settlement, but
9
stipulates that such fees shall be “independent of the Agreement . . . .” See
10
11 Settlement (Ex. 1, ¶ 49).

12

In sum, it is clear that neither the class representatives nor class counsel have

13

14 sought to profit from the Settlement at the expense of absent class members.

15

4. The extent of discovery completed and the stage of the

16

proceedings.

17

The parties have conducted extensive discovery and have thus fully fleshed

18
out their respective positions, claims and defenses. This action has been
19

20 vigorously litigated for five years. There is no possibility that the parties have

21 precipitously or unknowingly compromised the claims of absent class members.

22

23

5. The experience and views of counsel.

24

Lead class counsel are affiliated with a respected non-profit organization

25
specializing in federal litigation on behalf of immigrants and refugees. Counsel
26
27 have successfully litigated many class actions and individual cases on behalf of

28

17

Case 2:05-cv-03604-DDP-RZ Document 159 Filed 08/31/10 Page 27 of 33 Page ID #:560

1 immigrants, refugees, and youth. See, e.g., Reno v. Catholic Social Services, 509
2
U.S. 43 (1993); Reno v. Flores, 507 U.S. 292 (1993); Plyler v. Doe, 457 U.S. 202
3

4 (1982); League of United Latin American Citizens v. Wilson, 131 F.3d 1297 (9th

5 Cir. 1997); Ramon Sepulveda v. INS, 863 F.2d 1458 (9th Cir. 1988); Haitian
6
7 Refugee Center v. Smith, 676 F.2d 1023 (5th Cir. 1982); Mendez v. INS, 563 F.2d

8 956 (9th Cir. 1977); Orantes-Hernandez v. Smith, 541 F. Supp. 351 (C.D. Cal.

9
1982).
10

11

Plaintiffs’ counsel believe the Settlement Agreement to be of great benefit to

12 abused, abandoned, and neglected youth, and they accordingly urge the Court to
13
14 approve it.

15

6. Presence of a governmental participant.

16
That multiple federal government agencies participated, under the auspices
17
18 of the Ninth Circuit Mediation Program, adds to the integrity of the Settlement

19 Agreement and the negotiations that led to it.
20
As noted above, this case was vigorously contested by both sides and there
21

22 is no suggestion of fraud or collusion in the negotiations. “As a general principle,

23 ‘the courts respect the integrity of counsel and presume the absence of fraud or
24
25 collusion in negotiating the settlement, unless evidence to the contrary is offered.’”

26 Hemphill v. San Diego Ass’n of Realtors, Inc., 225 F.R.D. 616, 621 (S.D. Cal.
27

28

18

Case 2:05-cv-03604-DDP-RZ Document 159 Filed 08/31/10 Page 28 of 33 Page ID #:561

1 2005) (citing A. Conte and H. Newberg, Newberg on Class Actions § 11.51(4th ed.
2
2002) at 158-59). The parties engaged in extensive briefing and negotiated – at
3

4 arm’s length – a resolution of the action, resulting in the Settlement Agreement.

5 Because the Settlement Agreement was the result of the fair functioning of the
6
7 adversarial process, the parties did not collude to reach the Settlement Agreement.

8

7. The proposed notice provides absent class members adequate

9

opportunity to react to the Settlement.

10

The final factor bearing on the fairness of the Settlement Agreement is

11
absent class members’ reaction to it. Although class members’ views will not be
12

13 known until after the proposed notice period closes, class counsel regularly

14 consulted with leading attorneys and advocates for SIJ-eligible youth during the
15
16 negotiations leading up to the Settlement Agreement. See Declaration of Carlos

17 Holguin (Ex. 3). Although these advocates might have improved the Settlement
18
Agreement in some particular or other, their consensus is that the Settlement
19
20 Agreement confers invaluable rights on abused, abandoned, and neglected youth

21 and is much to be preferred to the uncertainty of further litigation. Id.

22

23

With respect to notice, Rule 23 requires that the members of the class must

24 be notified of a proposed settlement in a “form and manner that does not

25
systematically leave an identifiable group without notice.” Mandujano v. Basic
26
27 Vegetable Products, Inc., 541 F.2d 832, 835 (9th Cir. 1976). The proposed order

28

19

Case 2:05-cv-03604-DDP-RZ Document 159 Filed 08/31/10 Page 29 of 33 Page ID #:562

1 re: notice lodged herewith specifies the steps the parties must take to publicize the
2
Settlement. See Settlement (Ex. 1, ¶¶ 44, 46); Proposed Notice (Ex. 2).
3

4

As explained above, the notice describes those whose rights are at stake,

5 explains the benefits the Settlement Agreement confers, and informs class
6
7 members how they may obtain the full text of the Settlement Agreement. The

8 notice further describes how they may submit objections and how the parties shall
9
address any such objections. The proposed procedure for giving notice will
10
11 adequately inform class members of the Settlement, make any objections part of

12 the record, and allow the Court to determine whether any objections are so
13
14 substantial as to merit an opportunity for the objector to be heard further.

15 C. The Court Should Approve Parties’ Proposed Form and Method of

16

Class Notice

17

Rule 23(e)(1) requires that the court “direct notice in a reasonable manner to

18
all class members who would be bound by the proposal.” Fed. R. Civ. P. 23(e)(1).
19

20 Notice is satisfactory if it ‘generally describes the terms of the settlement in

21 sufficient detail to alert those with adverse viewpoints to investigate and to come
22
23 forward and be heard.’” Churchill Vill., LLC v. Gen. Elec., 361 F.3d 566, 575 (9th

24 Cir. 2004) (quoting Mendoza v. Tucson Sch. Dist. No. 1, 623 F.2d 1338, 1352 (9th

25
Cir. 1980)). Here, the proposed notice procedures involve the posting of the
26
27 Notice and the Settlement Agreement on the Defendants’ websites and Defendants

28

20

Case 2:05-cv-03604-DDP-RZ Document 159 Filed 08/31/10 Page 30 of 33 Page ID #:563

1 will also disseminate the Notice through other forms of public dissemination that
2
the Defendants independently deem appropriate.
3

4

These notification procedures are specifically tailored to ensure that Class

5 Members will be informed of the Settlement Agreement and their rights to object.
6
7 In particular, the parties believe that notice by means of the various websites is

8 reasonably calculated to inform Class Members of the Settlement Agreement.4
9
The contents of the Notice are adequate to inform Class Members of their
10
11 rights. The Notice contains a description of the certified sub-classes; a summary of

12 the litigation, subsequent legislation, and the proposed Settlement Agreement; and
13
14 instructions about how to file an objection. The proposed Notice here provides

15 ample information to enable potential Class Members to determine whether they

16
qualify for relief, what relief the Settlement Agreement will provide, and how to
17
18 file an objection. The Notice is therefore reasonable and satisfies Rule 23(e)’s

19 requirements.
20

21

22

23

24

25

4 Defendants represent that individual Class Members cannot be readily identified to warrant

26 individual notice by mail, as USCIS does not maintain records in a manner that would enable the
affirmative identification of applicants who would qualify as Class Members. Such notice also is not

27 required by Rule 23(e) or the U.S. Constitution.

28

21

Case 2:05-cv-03604-DDP-RZ Document 159 Filed 08/31/10 Page 31 of 33 Page ID #:564

1 D. The Court Should Vacate the Injunction Contained Within The Order

2

of April 28, 2009.

3

As part of the Settlement Agreement, the parties agree to (1) jointly move to

4
5 dismiss this action, with prejudice; (2) to dissolve the nationwide permanent

6 injunction entered by the Court; and (3) to withdraw their respective appeals from

7
the Court’s January 8, 2008 order, which are pending before the Ninth Circuit.
8

9

Accordingly, as part of the final order approving the Settlement Agreement,

10 both parties request that this Court dissolve the injunction contained within the
11
Order of January 8, 2008.
12

13

IV. CONCLUSION

14

For the foregoing reasons, the Court should approve the form and method of

15

16 the notice to the class, schedule appropriate dates for the Fairness Hearing and

17 other proceedings necessary to give final approval to the Settlement Agreement.
18
Following the Fairness Hearing, the Court should enter final judgment and dissolve
19
20 the injunction.

21

22

23

24

25

26

27

28

22

Case 2:05-cv-03604-DDP-RZ Document 159 Filed 08/31/10 Page 32 of 33 Page ID #:565

1 Dated: August 31, 2010
2
Attorneys for Defendants:
3 4 5 6 7 8 9 10 11 12 13 14 15 16
Attorneys for Plaintiffs:
17 18 19 20 21 22 23 24 25 26 27 28

Respectfully submitted,
TONY WEST United States Department of Justice Assistant Attorney General Civil Division /s/ David J. Kline DAVID J. KLINE Director, District Court Section
/s/ Joshua E.T. Braunstein JOSHUA E.T. BRAUNSTEIN Assistant Director District Court Section
/s/ Melissa S. Leibman Melissa S. Leibman Trial Attorney, District Court Section Office of Immigration Litigation P.O. Box 868, Ben Franklin Station Washington, D.C. 20044
/s/ Carlos R. Holguín Carlos R. Holguín Center for Human Rights & Constitutional Law 256 South Occidental Boulevard Los Angeles, CA 90057
/s/ Peter Schey Peter Schey Center for Human Rights & Constitutional Law 256 South Occidental Boulevard Los Angeles, CA 90057

Case 2:05-cv-03604-DDP-RZ Document 159 Filed 08/31/10 Page 33 of 33 Page ID #:566

1

CERTIFICATE OF SERVICE

2
Case No. CV05-03604 (DDP)
3

4

I certify that on this 31st day of August 2010, true and correct copies of the

5 foregoing NOTICE OF MOTION AND JOINT MOTION FOR APPROVAL
6
7 OF CLASS ACTION SETTLEMENT AND APPROVAL OF NOTICE TO

8 CLASS AND MEMORANDUM OF POINTS AND AUTHORITIES IN
9
SUPPORT OF MOTION was served pursuant to the district court’s ECF system
10

11 as to the following ECF filers:

12

13 Carlos R. Holguín 14 Center for Human Rights & Constitutional Law
256 South Occidental Boulevard 15 Los Angeles, CA 90057
16
Peter A. Schey 17 Center for Human Rights & Constitutional Law 18 256 South Occidental Boulevard
Los Angeles, CA 90057
19

20

21

/s/ Melissa S. Leibman

22

Melissa S. Leibman

23

Trial Attorney, District Court Section

Office of Immigration Litigation

24

25

26

27

28

24

Case 2:05-cv-03604-DDP-RZ Document 159-6 Filed 08/31/10 Page 1 of 4 Page ID #:593

1

Center For Human Rights and Constitutional Law

2 Carlos R. Holguín (Cal Bar #90754)

crholguin@centerforhumanrights.org

3 Peter A. Schey (Cal Bar #58232)

pschey@centerforhumanrights.org

4

256 S. Occidental Blvd.

Los Angeles, CA 90057

5

Telephone: (213) 388-8693 ext. 309

Facsimile: (213) 386-9484

6

Los Angeles Center for Law and Justice

7 Gary Slossberg

1241 S. Soto St., Suite 102

8

Los Angeles, CA 90023

Telephone: (323) 980-3500

9

Facsimile: (323) 980-3510

10 Attorneys for Plaintiffs

11

12

TONY WEST

13 Assistant Attorney General

United States Department of Justice

14 DAVID J. KLINE

Director, District Court Section

15 Office of Immigration Litigation

MELISSA S. LEIBMAN, NYSBN 4442877

16 Trial Attorney

Office of Immigration Litigation

17 District Court Section

P.O. Box 878, Ben Franklin Station

18

Washington, D.C. 20044

Telephone: (202) 305-7016

19

Fax Number: (202) 305-7000

Email: Melissa.Leibman@usdoj.gov

20

Attorneys for Defendants

21

22

23

24

25

26

27

28

Case 2:05-cv-03604-DDP-RZ Document 159-6 Filed 08/31/10 Page 2 of 4 Page ID #:594

1

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

2

WESTERN DIVISION

3 LUIS JAVIER PEREZ OLANO, et al., )

)

4

Plaintiffs,

) No. CV 05-3604 DDP (RZx)

)

5

v.

) [Proposed] Order Directing Notice To

) Class Of Proposed Settlement

6

)

)

7 ERIC H. HOLDER, JR., Attorney General ) Hearing: October 4, 2010

of the United States, et al.,

) Time: 10:00 a.m.

8

) Hon. Dean D. Pregerson

)

9

Defendants. )

)

10

11
This matter is before the Court on the parties’ joint motion pursuant to Fed. R.
12
Civ. P. 23(e), to approve settlement of this class action. The Court has examined the
13
proposed settlement, considered the briefs,evidence, and argument offered in support
14
of the parties’ motion.
15
IT IS THEREFORE ORDERED THAT:
16
1. The terms of the Settlement Agreement are preliminarily approved. The
17
Court finds that the Settlement Agreement has no obvious deficiencies, and is within
18
the bounds of a reasonable settlement.
19
2. The Court approves, as to form and content, the Notice to the Class
20
(“Notice”).
21
3. The parties shall issue the Notice of Proposed Settlement of Class
22
Action, attached hereto as Exhibit 1, totheir respective media lists and post the Notice
23
on their respective websites, where they shallremain for 30 days. Plaintiffs shall also
24
forward the Notice to legal services providers whose names and addresses appear in
25
Plaintiffs’ counsel’s database. Within ten days of this Order, the parties shall submit
26
status reports certifying that Notice has been provided in accordance with this
27
paragraph.
28

[Proposed] Order

2

Case 2:05-cv-03604-DDP-RZ Document 159-6 Filed 08/31/10 Page 3 of 4 Page ID #:595

1

4. The parties shall make the full text of the proposed Settlement Agreement

2 available to class members as described inthe Notice of Proposed Settlement of Class

3 Action.

4

5. Compliance with the procedures sp ecified in Paragraphs 45-48 of the

5 Settlement Agreement and the Notice of Porposed Settlement of Class Action satisfies

6 the notice requirements of Federal Rule of Civil Procedure 23(e).

7

6. The Court will hold a Final Settlement Hearing (“Fairness Hearing”) on

8 November 15, 2010, at 10:00 a.m., to determine whether the terms of the Settlement

9 Agreement are fair, reasonable, and adequate and should be approved by the Court,

10 and to rule upon such other matters as the Court may deem appropriate.

11

7. Any Class Member may appear atthe Fairness Hearing and show cause

12 why the Settlem ent Agreement should not be approved as fair, reasonable, and

13 adequate; provided, however, that no Class Mem ber shall be entitled to contest the

14 approval of the terms and conditions of theSettlement Agreement, or, if approved, the

15 judgment thereon, unless he/she first submits written objections in accordance with

16 the instructions contained in the Notice.

17

8. Class members shall have a period of 30 days within which to subm it

18 written objections to the proposed settlem ent. However, any Class Mem ber who

19 intends to make an appearan ce at the Fairness Hearing, either in person or through

20 counsel at that Class Mem ber’s expense, must deliver to Class Counsel and

21 Defendants’ Counsel and file with the Court, no late r than five (5) business days

22 before the Fairness Hearing, a notice of intnetion to appear and a statement identifying

23 any documents the Class Mem ber will seek to introduce or witnesses the Class

24 Member will seek to call at the Fairness Hearing.

25

9. Any Class Member who fails to comply with paragraphs 7 and 8 of this

26 Order shall waive and forfeit any and all rights that Class Member may have to appear

27 separately or object, or to takeany appeal of the orders ofjudgment in this action, and

28 shall be bound by all the terms of this Settlement Agreement, and any other orders of

[Proposed] Order

3

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1 the Court, upon final approval of the settlement.

2

10. Within ten days after the close of the objection period, the parties shall

3 file reports addressing any objections to the proposed settle ment, together with a

4 proposed order approving the settlement. TheCourt will thereafter direct such further

5 proceedings as may appear appropriate. In the absence of further proceedings, the

6 matter shall stand submitted.

7

8

9 IT IS SO ORDERED.

10

11

Date:

12

_____________________________ HON. DEAN D. PREGERSON UNITED STATES DISTRICT JUDGE

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

[Proposed] Order

4

 
 Case 2:05-cv-03604-DDP-RZ Document 176 Filed 07/21/14 Page 1 of 3 Page ID #:1030

1 CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW

2 Carlos R. Holguín (Cal. Bar No. 90754) Peter A. Schey (Cal. Bar No. 58232)

3 Marchela Iahdjian (Cal. Bar No. 295595)

4 256 S. Occidental Blvd. Los Angeles, CA 90057

5 Telephone: (213) 388-8693

6 Facsimile: (213) 386-9484

Email: crholguin@centerforhumanrights.org

7

pschey@centerforhumanrighs.org

8

marchela@centerforhumanrights.org

9 PUBLIC COUNSEL

10

Judy London (Cal Bar No. 149431) Kristen Jackson (Cal Bar No. 226255)

11 610 S. Ardmore Ave.

12

Los Angeles, CA 90005 Telephone: (213) 385-2977

13 Facsimile: (213) 385-9089

14

email: jlondon@publiccounsel.org kjackson@publiccounsel.org

15 Attorneys for Plaintiffs
16

17

IN THE UNITED STATES DISTRICT COURT

18

FOR THE CENTRAL DISTRICT OF CALIFORNIA

19 LUIS JAVIER PEREZ-OLANO, ET AL.,

) Case No. CV 05-3604 DDP (RZx)

20 Plaintiffs,

) ) NOTICE OF MOTION AND MOTION

21 - vs -

) FOR CLASS-WIDE ENFORCEMENT OF

22

) SETTLEMENT.

JEH JOHNSON, SECRETARY, U.S.

)

23 DEPARTMENT OF HOMELAND SECURITY, )

24 ET AL.,

25 26 27 !

Defendants.

) ) Hearing: August 25, 2014. ) Time: 10:00 a.m. _ ) Hon. Dean D. Pregerson !!

28

Case 2:05-cv-03604-DDP-RZ Document 176 Filed 07/21/14 Page 2 of 3 Page ID #:1031

1

To defendants and their attorneys of record:

2 PLEASE TAKE NOTICE that on August 25, 2014, at 10:00 a. m., or as soon
3
4 thereafter as counsel may be heard, plaintiffs will and do hereby move the Court for

5 an order enforcing the settlement approved in this action on December 15, 2010

6 (Dkt. 166) —
7
8 1) enjoining defendants from denying or revoking Special Immigrant Juvenile

9

(SIJ) classification and/or SIJ-based adjustment of status on the ground that

10 state court jurisdiction over class members, or their dependency on a juvenile
11

12

court, terminates on account of age prior to their filing Form I-360; and

13 2) 14 15 16

enjoining defendants to identify, re-open and re-adjudicate the applications of class members denied SIJ classification and/or SIJ-based adjustment of status, or whose SIJ classification and/or SIJ-based adjustment of status has been

17

revoked, on the ground, in whole or in part, that that state court jurisdiction

18 over them, or their dependency on a juvenile court, terminated on account of
19

20

age prior to their filing Form I-360.

21 / / / 22

23

24

25

26

27

28

Notice of Motion & Motion to Enforce Settlement

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1

This motion is based upon the annexed memorandum of points and authorities

2 and exhibits filed concurrently herewith, and upon all other matters of record.
3

4 Dated: July 21, 2014. 5

CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW Carlos R. Holguín

6

Peter A. Schey

Marchela Iahdjian

7

8

PUBLIC COUNSEL Judy London

9

Kristen Jackson

10 11 12

qL/

13

14

______________________________

15

Carlos Holguín

16 17 / / /

Attorneys for Plaintiffs

18

19

20

21

22

23

24

25

26

27

28

Notice of Motion & Motion to Enforce Settlement

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Case 2:05-cv-03604-DDP-RZ Document 176-1 Filed 07/21/14 Page 1 of 30 Page ID #:1033

1 CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW

2 Carlos R. Holguín (Cal. Bar No. 90754) Peter A. Schey (Cal. Bar No. 58232)

3 Marchela Iahdjian (Cal. Bar No. 295595)

4 256 S. Occidental Blvd. Los Angeles, CA 90057

5 Telephone: (213) 388-8693, ext. 309

6 Facsimile: (213) 386-9484

Email: crholguin@centerforhumanrights.org

7

pschey@centerforhumanrighs.org

8

marchela@centerforhumanrights.org

9 PUBLIC COUNSEL

10

Judy London (Cal Bar No. 149431) Kristen Jackson (Cal Bar No. 226255)

11 610 S. Ardmore Ave.

12

Los Angeles, CA 90005 Telephone: (213) 385-2977

13 Facsimile: (213) 385-9089

14

email: jlondon@publiccounsel.org kjackson@publiccounsel.org

15 Attorneys for Plaintiffs
16

17

IN THE UNITED STATES DISTRICT COURT

18

FOR THE CENTRAL DISTRICT OF CALIFORNIA

19 LUIS JAVIER PEREZ-OLANO, ET AL.,

) Case No. CV 05-3604 DDP (RZx)

20 Plaintiffs,
21 22 - vs 23 JEH JOHNSON, SECRETARY, U.S.

) ) MEMORANDUM OF POINTS & ) AUTHORITIES IN SUPPORT OF MOTION FOR ) CLASS-WIDE ENFORCEMENT OF ) SETTLEMENT.
)

24 DEPARTMENT OF HOMELAND SECURITY, )

ET AL., 25

) Hearing: August 25, 2014. ) Time: 10:00 a.m.

26

Defendants.

) Hon. Dean D. Pregerson

27 !

_ )! !

28

Case 2:05-cv-03604-DDP-RZ Document 176-1 Filed 07/21/14 Page 2 of 30 Page ID #:1034
1 OUTLINE OF CONTENTS
2 3 Introduction ................................................................................................................. 1

4 Statement of facts ........................................................................................................3

5 Argument.....................................................................................................................8

6 I This Court should enjoin class-wide violations of the Settlement. ........................8

7 A This Court has jurisdiction to remedy violations of the Settlement............8
8

9

B The Settlement should be enforced in accordance with its plain meaning..9

10 II Defendants’ belated demand that class members remain dependents at the time of filing violates the plain language of the Settlement......................................11

11

12

A Background to the “age-out” provisions of the Settlement. ....................... 11

13

B Defendants’ requiring that class members be both under 21 and the

subjects of valid dependency orders at the time of application violates

14

the plain language of the Settlement.......................................................14

15 III Defendants’ unilateral re-interpretation of the Settlement is nowise required

16

by the SIJ statute. .............................................................................................. 16

17

A Nothing in the pre-TVPRA SIJ statute required SIJ applicants remain

18

the subjects of valid dependency orders at the time of application. .......16

19

B Defendants’ requiring SIJ applicants be dependents at the time of

20

application violates the amended SIJ statute and § 235(d)(6) of the TVPRA. ..................................................................................................18

21

1 Defendants’ construction of the Settlement unlawfully exalts

22

idiosyncratic state age limits on dependency over the uniform

23

age limit for SIJ eligibility Congress prescribed in the TVPRA. .18

24

2 CIS’s construction of the Settlement nullifies Congress’s

25

preserving SIJ eligibility for applicants placed with individual custodians. .................................................................................... 19

26

27

28

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1 IV Defendants’ unannouced shift to requiring continuing dependency is

2

arbitrary, capricious, and anything but a reasonable re-interpretation of the

Settlement.......................................................................................................... 21

3

VII Conclusion ..........................................................................................................24 4

5 ///

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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Case 2:05-cv-03604-DDP-RZ Document 176-1 Filed 07/21/14 Page 4 of 30 Page ID #:1036

1 TABLE OF AUTHORITIES
2

3

Cases

4 Airline Stewards v. Trans World Airlines, Inc., 713 F.2d 319 (7th Cir. 1983) .........9

5 Brinderson-Newberg Joint Venture v. Pac. Erectors, Inc., 971 F.2d 272 (9th

6 Cir. 1992), cert denied, 507 U.S. 914, 113 S. Ct. 1267, 122 L. Ed. 2d 663 (1993).................................................................................................................... 15
7

8

Buckhannon Board & Care Home v. West Virginia Dep’t of Health and Human Resources, 532 U.S. 598; 121 S. Ct. 1835; 149 L. Ed. 2d 855

9 (2001)......................................................................................................................9

10 Christensen v. Harris County, 529 U.S. 576; 120 S. Ct. 1655; 146 L. Ed. 2d 11 621 (2000).............................................................................................................22

12 County of San Diego v. Ace Property & Cas. Ins. Co., 37 Cal. 4th 406; 33 13 Cal. Rptr. 3d 583 (2005) ....................................................................................... 10
14 Defenders of Wildlife v. Norton, 258 F.3d 1136 (9th Cir. 2001) ............................21

15 Flanegan v. Arizona, 143 F.3d 540 (9th Cir. 1998) .................................................. 8

16 Freeman v. Gonzales, Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006).........21
17 Hagestad v. Tragesser, 49 F.3d 1430 (9th Cir. 1995)...............................................8
18 International Asso. of Firefighters, etc. v. Cleveland, 478 U.S. 501; 106 S.
19 Ct. 3063; 92 L. Ed. 2d 405 (1986)........................................................................17
20 Jeff D. v. Andrus, 899 F.2d 753 (9th Cir. 1989)........................................................9
21 Kennewick Irrigation Dist. v. United States, 880 F.2d 1018 (9th Cir. 1989)..........10
22
23 Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375; 114 S. Ct. 1673; 128 L. Ed. 2d 391 (1994) ...................................................................................................8
24 Molski v. Gleich, 318 F.3d 937 (9th Cir. 2003) ......................................................10
25
26 Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29; 77 L. Ed. 2d 443; 103 S. Ct. 2856 (1983)..................................................................23
27 Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967;
28 125 S. Ct. 2688; 162 L. Ed. 2d 820 (2005)...........................................................23

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1 Nodine v. Shiley Inc., 240 F.3d 1149 (9th Cir. 2001)..............................................10

2 Paralyzed Veterans of Am. v. D.C. Arena L.P., 117 F.3d 579 (D.C. Cir.
3 1997), cert. denied, 523 U.S. 1003, 118 S. Ct. 1184, 140 L. Ed. 2d 315 (1998).................................................................................................................... 23
4
5 Pennsylvania Dept. of Public Welfare v. Davenport, 495 U.S. 552; 110 S. Ct. 2126; 109 L. Ed. 2d 588 (1990)......................................................................20
6 7 Perez-Olano v. Gonzalez, 248 F.R.D. 248 (C.D. Cal. 2008) ...........................passim

8 Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367; 112 S. Ct. 748; 116 L. Ed. 2d 867 (1992) ...................................................................................................9
9
10 Sacora v. Thomas, 628 F.3d 1059 (9th Cir. 2010) ..................................................23

11 TWA v. Franklin Mint Corp., 466 U.S. 243; 104 S. Ct. 1776; 80 L. Ed. 2d 273 (1984).............................................................................................................22
12

13

United States v. Armour & Co., 402 U.S. 673; 91 S. Ct. 1752; 29 L. Ed. 2d 256 (1971).............................................................................................................10

14 United States v. Atlantic Refining Co., 360 U.S. 19; 79 S. Ct. 944; 3 L. Ed.
15 2d 1054 (1959)......................................................................................................17

16 United States v. ITT Continental Baking Co., 420 U.S. 223; 95 S. Ct. 926; 43 17 L. Ed. 2d 148 (1975).............................................................................................17

18

Statutes, Rules and Regulations!

19 8 C.F.R. § 205.1 ......................................................................................................12
20 8 C.F.R. §§ 204.11 ............................................................................................12, 19
21

22 8 U.S.C. § 1101(a)(27)(J) .................................................................................... 1, 20

23 8 U.S.C. § 1101(a)(27)(J)(iii)(I)..............................................................................11

24 8 U.S.C. § 1101(b)(1) .............................................................................................. 18
25 8 U.S.C. § 1255 .........................................................................................................1 26
Administrative Procedure Act, 5 U.S.C. §§ 551 et seq. ..........................................22 27 28 Cal. Civ. Code § 1638 ............................................................................................. 10

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1 Rule 23, Fed.R.Civ.Proc............................................................................................8 2 Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, 3 Pub. L. 110-457, 122 Stat. 5044 (2008) ......................................................... 12, 18 4 /// 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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Case 2:05-cv-03604-DDP-RZ Document 176-1 Filed 07/21/14 Page 7 of 30 Page ID #:1039
1 INTRODUCTION

2 This action is a class-wide challenge to certain administrative policies and
3
4 practices that blocked abused, abandoned, and neglected youth from receiving lawful

5 immigration status as “special immigrant juveniles” (SIJs).
6 Pursuant to 8 U.S.C. § 1101(a)(27)(J),1 youth whom a state juvenile court
7
8 declares dependent on account of abuse, abandonment, or neglect may petition the U.S.

9 Immigration & Citizenship Services (CIS)—a bureau of the Department of Homeland 10
Security (DHS)—to classify them as SIJs. If so classified, they are eligible to become 11 12 lawful permanent residents (LPRs) of the United States. 8 U.S.C. § 1255. These

13

14 1 As amended subsequent to the Court’s summary judgment of January 8, 2008 (Dkt.

15 121), reported at Perez-Olano v. Gonzalez, 248 F.R.D. 248 (C.D. Cal. 2008), § 1101(a)(27)(J) currently provides in pertinent part:
16 The term “special immigrant” means—
17

18

(J) an immigrant who is present in the United States—

19

(i) who has been declared dependent on a juvenile court located in

the United States or whom such a court has legally committed to, or

20

placed under the custody of, an agency or department of a State, or

21

an individual or entity appointed by a State or juvenile court located

in the United States, and whose reunification with 1 or both of the

22

immigrant’s parents is not viable due to abuse, neglect,

23

abandonment, or a similar basis found under State law;… and

24

(iii) in whose case the Secretary of Homeland Security consents to

25

the grant of special immigrant juvenile status, except that—

26

(I) no juvenile court has jurisdiction to determine the custody

27

status or placement of an alien in the custody of the Secretary of Health and Human Services unless the Secretary of Health

28

and Human Services specifically consents to such jurisdiction;

…

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1 provisions give effect to Congress’s determination that abused, abandoned or neglected

2 youth who have no parents fit and available to care for them should be given a chance
3
4 to live safe and productive lives in the United States.2

5

On December 15, 2010, this Court approved a comprehensive class-wide

6 settlement of this action. Dkt. 199. The settlement confers specified protections upon a
7

8 nationwide class comprising “all aliens … who, on or after May 13, 2005, apply or

9 applied for SIJ status or SIJ-based adjustment of status based upon their alleged SIJ

10 eligibility.” Settlement Agreement, Dkt. 159-1, at 4 (“Settlement”).
11

12

Among the Settlement’s benefits is protection against applicants’ “aging-out” of

13 eligibility for the SIJ benefit. In ¶ 23 of the Settlement the parties agreed as follows:

14 Defendant USCIS shall not deny a class member’s application for SIJ
15

16

classification or SIJ-based adjustment of status on account of age or dependency

17

status, if, at the time the class member files or filed a complete application for SIJ

18 classification, he or she was under 21 years of age or was the subject of a valid
19

20

dependency order that was subsequently terminated based on age. …

21 Settlement at 7-8 (emphasis added); see also id. at ¶ 24 (same re: revocation of
22 approved SIJ classification).
23

24

For the first two and one-half years following approval of the Settlement, CIS

25 practice conformed with the above provisions: i.e., the agency regularly granted class 26

27 2 The Court discusses plaintiffs’ claims in detail in its order granting in part and

28 denying in part plaintiffs’ motions for class certification and partial summary

adjudication. Perez-Olano v. Gonzalez, supra, 248 F.R.D. 248.

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1 members SIJ benefits even if they were no longer subjects of valid dependency orders

2 at the time they filed Form I-360 SIJ applications provided they were under 21.
3

4

Recently, however, CIS changed course; the agency now demands that class

5 members be both under 21 years of age and the subject of valid dependency orders at

6 the time they apply for SIJ benefits.
7

8

In imposing these conjunctive SIJ eligibility requirements, CIS has unilaterally

9 jettisoned the disjunctive the Settlement posits, and in so doing clearly breaches the
10 agreement. By this motion, plaintiffs seek class-wide relief enjoining CIS to resume
11
12 complying with ¶¶ 23 and 24 of Settlement and to make whole class members

13 aggrieved by past violations of those provisions.

14 STATEMENT OF FACTS
15

16

Defendants do not dispute the sole dispositive fact: CIS’s policy and practice are

17 now to deny or revoke SIJ benefits where class members’ dependency orders lapse 18
solely due to age prior to their filing Form I-360 even if they remain under 21 at the 19 20 time of application. On April 4, 2011, CIS issued a policy memorandum that in

21 pertinent part instructed its adjudicators as follows:
22 In accordance with the Settlement Agreement, USCIS will not, based on age or
23

24

dependency status, deny or revoke any SIJ petition if, at the time the class

25

member files or filed the petition, the class member was under 21 years of age

26 and was the subject of a valid dependency order that was later terminated based
27

28

on age. Similarly, USCIS may not, based on age or dependency status, deny an

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1

SIJ-based application for adjustment of status if, the class member files or filed

2 the application when he or she was under 21 and was the subject of a valid
3

4

dependency order.

5 Plaintiffs’ Exhibit 1 at 2 (emphasis added).3

6 Yet despite the April 4, 2011, memorandum, over the ensuing two and one-half
7
8 years, CIS regularly—and properly—granted SIJ benefits to class members

9 notwithstanding that their dependency orders had lapsed due to age prior to their filing
10 Forms I-360. In mid-2013, however, the agency has begun enforcing the 2011
11
12 memorandum:

13

CIS’s denying … SIJS on this basis was a sudden and stark about-face from the

14 agency’s prior practice. Prior to late summer 2013, USCIS’s Field Offices
15

16

regularly approved petitions for SIJS even when filed after the applicant had

17

ceased to be the subject of a valid dependency order on account of age. I am

18

19 3 Shortly after CIS had issued its 2011 memorandum the parties exchanged
20 correspondence and conferred in an attempt to resolve their disagreement over the

21 conjunctive requirement announced in the memorandum. See Declaration of Carlos

Holguín, July 15, 2014, Plaintiffs’ Exhibits in Support of Motion to Enforce Settlement 22 (“Plaintiffs’ Exhibits”), Plaintiffs’ Exhibit 7.

23 Although the parties failed to resolve their differences, for the next two and one-half
24 years, CIS ignored the 2011 memorandum. As far as class counsel have been able to

25 determine, CIS’s nominal conjunctive requirement injured no known class member until mid-2013.
26

27

Upon CIS’s beginning to follow the 2011 memorandum, plaintiffs again urged defendants to recede from that policy, both via written correspondence and during

28 formal mediation under the auspices of the Ninth Circuit’s Mediation Office, to no

avail. Id. at ¶ 3.
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1

advised that other CIS field offices likewise routinely granted SIJS to petitioners

2 whose dependency orders had lapsed due to age prior to their filing for SIJS.
3

4

Since then, however, USCIS’s policy and practice have been to deny SIJS to

5

applicants who are not the subject of a valid dependency order at the time of

6 filing Form I-360, even if they age-out of juvenile court jurisdiction due to no
7

8

fault of their own. The Charlotte Field Office is going so far as to revoke SIJS

9

approvals, whether issued by itself or the Nebraska Service Center, issued prior

10 to the recent change in practice.
11

12

To the best of my knowledge and belief, CIS gave lawyers, advocates for SIJS

13

applicants, or the general public no prior notice of this change in practice.

14 Instead, the agency simply began denying and revoking SIJS to the complete
15

16

surprise of applicants and their representatives.

17 Declaration of Julie Spahn, June 23, 2014, Plaintiffs’ Exhibit 8 at ¶¶ 19-21 (emphasis

18 added).
19

20

Numerous lawyers for scores of abused, abandoned and neglected youth report

21 being similarly ambushed by CIS’s about-face. See Declaration of Sharika Richardson,
22 June 27, 2014, Plaintiffs’ Exhibit 9 at ¶ 4; Declaration of Robert Ley, July 7, 2014,
23

24 Plaintiffs’ Exhibit 10 at ¶¶ 14-15; Declaration of Jennifer Schamel, June 25, 2014,

25 Plaintiffs’ Exhibit 13 at ¶ 6; Declaration of Jennifer Rikoski, June 26, 2014, Plaintiffs’
26 Exhibit 14 at ¶ 5; Declaration of Anne Mackin, July 9, 2014, Plaintiffs’ Exhibit 11 at ¶¶
27

28

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1 18-19; Declaration of Timothy Paicopolos, July 10, 2014, Plaintiffs’ Exhibit 15 at ¶¶ 4-

2 5; Declaration of Jerome McManus, July 18, 2014, Plaintiffs’ Exhibit 19 at ¶¶ 12-14.
3

4

CIS has now denied numerous class members’ SIJ classification—and revoked

5 SIJ classification it had previously granted to many more—on the ground that their

6 dependency orders lapsed solely on account of age prior to their having applied for SIJ
7
8 benefits. See, e.g., Declaration of Anne Mackin, supra, Plaintiffs’ Exhibit 11 at ¶ 14 and

9 exhibit C (listing 15 clients aggrieved by change to conjunctive requirements);
10 Declaration of Sharika Richardson, supra, Plaintiffs’ Exhibit 9 at ¶ 7 (listing eight
11
12 clients denied SIJ benefits because dependency orders lapsed solely on account of

13 age).4 14
Plaintiffs’ evidence in support of the instant motion is replete with examples of 15 16 class members blind-sided by CIS’s precipitous jettisoning of the Settlement’s age-out

17 protections. Class member Schiammerelly Pinckert Nieme is a young Bolivian woman 18
whose parents neglected and then abandoned her. Declaration of Julie Spahn, supra, 19 20 Plaintiffs’ Exhibit 8 at ¶ 2. When Schiammarelly was 11, her mother sent her to the

21 United States, where she was raised by a cousin and his wife. Id. at ¶ 3. In February
22 2012, Schiammarelly returned to Bolivia, but after a few months her mother ordered her
23

24 back to the United States. Id. at ¶ 4.

25

26 4 The class members identified in plaintiffs’ evidence are clearly a fraction of much

27

larger class denied SIJ benefits for the same reason, as CIS now appears to be applying its conjunctive requirement nationwide. See Decision of CIS Administrative Appeals

28 Office, April 29, 2013, Plaintiffs’ Exhibit 16 (decision of national administrative

appellate board approving CIS’s dependency + under 21 requirement).

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1

On April 1, 2013, four days before Schiammarelly’s 18th birthday, the

2 Mecklenburg County District Court placed her under the custody of an aunt. Id. at ¶ 5.
3
4 On May 21, 2013, Schiammarelly formally applied SIJ benefits. Id. On January 28,

5 2014, CIS denied Schiammarelly SIJ benefits on the ground she was not both the

6 subject of a valid dependency order and under 21 at the time she had filed Form I-360.
7
8 Id. at ¶ 8. Schiammarelly’s lawyer attests, “CIS gave … no prior notice of this change

9 in practice. Instead, the agency simply began denying and revoking SIJS to the

10 complete surprise of applicants and their representatives.” Id. at ¶ 21.
11

12

Schiammarelly’s case is no aberration. Legal services lawyer Anne Mackin has

13 represented some 120 SIJ applicants. Declaration of Anne Mackin, supra, Plaintiffs’ 14
Exhibit 11 at ¶ 1. She declares, “Approximately one third of my clients over the last few 15 16 years obtained the SIJ predicate order … prior to the eighteenth birthdays but filed their

17 I-360 Special Immigrant Petition after their eighteenth birthdays.” Id. at ¶ 13. 18
Though this was no barrier to attorney Mackin’s clients’ obtaining SIJ benefits in 19 20 the past, she currently represents 15 class members whose I-360s were filed “on or after

21 the youth’s 18th birthday and [who were] no longer the subject of a valid dependency 22
order, having aged out of the court’s jurisdiction.” Id. at ¶ 14.5 23

24

25 5 Short of resuming discovery, class counsel have no way of determining precisely how

26 many class members have been injured by CIS’s conjunctive continuing dependency

27

requirement, but they are undoubtedly already numerous, more join the ranks of the aggrieved daily, and affected class members are geographically dispersed. See e.g.,

28 Plaintiffs’ Exhibit 9 (identifying class members denied SIJ benefits by Charlotte, NC,

Field Office); Exhibit 15 (same; San Francisco Field Office), Exhibit 16 (same; Boston

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1 ARGUMENT

2 I
3
4

THIS COURT SHOULD ENJOIN CLASS-WIDE VIOLATIONS OF THE SETTLEMENT. A This Court has jurisdiction to remedy violations of the Settlement.

5

In Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375; 114 S. Ct. 1673; 128 L. Ed.

6 2d 391 (1994), the Supreme Court held that a proceeding to enforce a settlement
7
8 requires its own basis of jurisdiction. Id. at 378; see also Hagestad v. Tragesser, 49

9 F.3d 1430, 1433 (9th Cir. 1995). “Such a basis for jurisdiction may be furnished by
10 separate provision (such as a provision retaining jurisdiction over the settlement
11
12 agreement) or by incorporating the terms of the settlement agreement in the order.”

13 Flanegan v. Arizona, 143 F.3d 540, 544 (9th Cir. 1998). 14
Here, both the Settlement and this Court’s order approving it,6 reserve 15 16 jurisdiction in this Court to enforce the agreement. Settlement ¶ 43 (“…complaining

17 class member(s) may move to enforce the Agreement on a class-wide basis in the 18
Central District of California ...”); Order (Dkt. 166) at 3 (“The Court shall retain 19 20 jurisdiction over this matter as provided in Sections IX and XI of the Settlement

21 Agreement.”). 22

23

24

25 Field Office). Class-wide relief enforcing the settlement is accordingly appropriate. Cf.

26 Perez-Olano, supra, 248 F.R.D. at 256-57 (expanding, geographically dispersed class

27

suitable for Rule 23 certification). 6 The Settlement resolves a certified class action, and under Rule 23, Fed. R. Civ. Proc.,

28 the Court accordingly examined and formally approved the accord as being consistent

with law and the public interest. Rule 23(e)(1)(A), Fed. R. Civ. Proc.

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1

B The Settlement should be enforced in accordance with its plain

2 meaning.
3

4

The principles guiding this Court’s enforcing the Settlement are well-established.

5 A settlement is essentially a contract, Rufo v. Inmates of Suffolk County Jail, 502 U.S.

6 367, 378; 112 S. Ct. 748; 116 L. Ed. 2d 867 (1992), and is therefore generally construed
7
8 according to rules apposite to contracts. Jeff D. v. Andrus, 899 F.2d 753, 759 (9th Cir.

9 1989).
10 The Settlement is also an order of the Court, and it is therefore enforced in
11
12 accordance with principles apposite to consent decrees. See Buckhannon Board & Care

13 Home v. West Virginia Dep’t of Health and Human Resources, 532 U.S. 598, 604 n.7; 14
121 S. Ct. 1835; 149 L. Ed. 2d 855 (2001); Rufo, supra, 502 U.S. at 378 (settlement “an 15 16 agreement that the parties desire and expect will be reflected in, and be enforceable as, a

17 judicial decree that is subject to the rules generally applicable to other judgments and

18 decrees.”).
19

20

Whether considered as a contract or consent decree, a court’s task is the same.

21 City of Las Vegas v. Clark County, 755 F.2d 697, 702 (9th Cir. 1985) (“A consent
22 decree, which has attributes of a contract and a judicial act, is construed with reference
23
24 to ordinary contract principles.”).7 Foremost, the Court should construe the agreement

25

26

27

7 Generally, “the construction and enforcement of settlement agreements are governed by principles of local law…” Airline Stewards v. Trans World Airlines, Inc., 713 F.2d

28 319, 321 (7th Cir. 1983) (citation omitted). With limited exceptions, however, “federal

law controls the interpretation of a contract entered pursuant to federal law when the

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1 “according to the plain meaning of its terms.” Nodine v. Shiley Inc., 240 F.3d 1149,

2 1154 (9th Cir. 2001); Vaillette v. Fireman's Fund Ins. Co., 18 Cal.App.4th 680, 686; 22
3
4 Cal. Rptr. 2d 807 (1993) (“words of the document are to be given their plain meaning

5 and understood in their common sense; the parties’ expressed objective intent, not their

6 unexpressed subjective intent, governs.” (citations omitted)); see also United States v.
7
8 Armour & Co., 402 U.S. 673, 682; 91 S. Ct. 1752; 29 L. Ed. 2d 256 (1971)

9 (settlement’s meaning “must be discerned within its four corners, … not by reference to
10 what might satisfy the purposes of one of the parties to it.”); County of San Diego v. Ace
11
12 Property & Cas. Ins. Co., 37 Cal. 4th 406, 415; 33 Cal. Rptr. 3d 583 (2005) (“If

13 contractual language is clear and explicit, it governs.” (internal quotation marks

14 omitted)); Cal. Civ. Code § 1638 (same).8
15

16

Applying the foregoing to the case at bar, defendants, it will be seen, are

17 manifestly in breach of the Settlement. 18

19

20

21

22 United States is a party.” Kennewick Irrigation Dist. v. United States, 880 F.2d 1018, 23 1032 (9th Cir. 1989).

24 Here, the federal government is a party to a settlement which resolves disputes over

25

federal law. Were state and federal law to differ, federal law would provide the rule of decision; here, however, there is no conflict of law.

26 8 Construing a settlement according to its plain meaning is particularly important in

27

class actions such as the instant case, “because a member of the class who was not present at any negotiations would be at a disadvantage in presenting extrinsic evidence

28 of the meaning of the consent decree.” Molski v. Gleich, 318 F.3d 937, 946 (9th Cir.

2003).

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1 II

DEFENDANTS’ BELATED DEMAND THAT CLASS MEMBERS REMAIN DEPENDENTS AT

2 THE TIME OF FILING VIOLATES THE PLAIN LANGUAGE OF THE SETTLEMENT.
3

4

A Background to the “age-out” provisions of the Settlement.

5

In this action plaintiffs challenged, inter alia, two substantive requirements,

6 which they contended unlawfully denied statutorily eligible youth SIJ benefits:
7

8

(1) “Specific” consent. 8 U.S.C. § 1101(a)(27)(J)(iii)(I) bars state courts from

9 determining the “custody status or placement” of a minor in immigration custody unless
10 federal authorities consent to their doing so. The statute does not, however, prohibit
11
12 state courts from declaring such minors dependents or from issuing other orders not

13 determinative of custody or placement. 14
Defendants nevertheless uniformly required that minors in immigration custody 15 16 get specific consent before invoking the jurisdiction of a state court regardless of

17 whether that court determined custody or placement. The uncontroverted evidence 18
showed that defendants denied specific consent nearly 90 percent of the time. 19 20 Deposition of Mary Y. Evans, August 30, 2007, Plaintiffs’ Seventh Set of Exhibits

21 (Dkt. 97), Exhibit 38 at 9.
22 Granting judgment for plaintiffs the Court held, “the SIJ statute does not require
23

24 specific consent when a state court's SIJ-predicate order will not determine custody

25 status or placement. …” and issued “class-wide injunctive and declaratory relief”
26 barring defendants from denying applications for SIJ benefits because the applicant
27

28

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1 failed to obtain specific consent prior to invoking a state juvenile court’s jurisdiction.

2 Perez-Olano v. Gonzalez, supra, 248 F.R.D. at 267.
3

4

(2) Age-out. Plaintiffs also challenged defendants’ requiring that applicants

5 remain dependents until their SIJ petitions and applications for permanent residence

6 were formally approved. Pursuant to regulation,9 SIJ applicants “aged-out” of eligibility
7
8 if they ceased to dependents before CIS granted them lawful permanent residence.

9

Most state statutes terminate jurisdiction over dependent minors upon their

10 turning 18; no state authorizes its juvenile courts to exercise jurisdiction over a youth 21
11

12

13

14 9 Despite being largely superseded by the Settlement and the Wilberforce Trafficking
15 Victims Protection Reauthorization Act of 2008, Pub. L. 110-457, 122 Stat. 5044

16 (2008) (“TVPRA”), discussed post, 8 C.F.R. § 204.11(c) (2014) still provides in pertinent part as follows:

17

An alien is eligible for classification as a special immigrant under section

18

101(a)(27)(J) of the Act if the alien:

19 (1) Is under twenty-one years of age; [and] …

20

21

(5) Continues to be dependent upon the juvenile court and eligible for long-term foster care, such declaration, dependency or eligibility not

22

having been vacated, terminated, or otherwise ended; …

23 Similarly, 8 C.F.R. § 205.1(a)(3)(iv) (2014), provides for the automatic revocation of 24 approved SIJ classification —

25

(A) Upon the beneficiary reaching the age of 21; …

26

(C) Upon the termination of the beneficiary's dependency upon the

27

juvenile court; [or]

28

(D) Upon the termination of the beneficiary's eligibility for long-term

foster care; or

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1 or older.10 Thus in most states, unless CIS granted a youth’s petition for SIJ

2 classification and application for adjustment of status, he or she became permanently
3
4 ineligible for the SIJ benefit upon turning 18.

5

Plaintiffs challenged defendants’ age-out regulations on the grounds they denied

6 statutorily eligible youth the benefits Congress sought to confer upon them. On this
7
8 claim, the Court upheld defendants’ regulations as a permissible—though not a

9 required—construction of the SIJ statute:

10 While Congress defined SIJ eligibility in terms of state court findings made in the
11

12

past, … the statute does not speak directly to the issue of ‘age-out’ limitations on

13

eligibility… When Congress does not speak directly on an issue … a court

14 considers whether the agency interpretation is based on a permissible
15

16

construction of the statute. … Since the SIJ statute intended to protect immigrant

17

children from abuse, neglect, and abandonment, it is reasonable that eligibility for

18 SIJ status or SIJ-based adjustment of status would be limited to … individuals no
19

20

longer dependent on a state court.

21 Perez-Olano, supra, 248 F.R.D. at 268-69 (emphasis added). 22

23

24

25 10 See Defendants USCIS’ and ICE’s Responses to Plaintiffs’ First Set of Requests for

26 Admissions to Defendant Secretary of Homeland Security, Exhibit 25, Plaintiffs’

27

Fourth Set of Exhibits, May 30, 2007, Dkt. 83, at ¶ 20 (“ICE is unaware of a jurisdiction in which state law permits a person 18 years of age or older to commence

28 dependency proceedings for purposes of being placed in long-term foster care due to

abuse, neglect, or abandonment…”).

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1

The parties thereafter entered into settlement talks. Their divergent reasons for

2 doing so: plaintiffs wished some relief for class members aggrieved by the age-out
3
4 regulations; defendants wanted relief from the permanent injunction against their

5 specific consent requirement for in-custody class members.

6 In the resulting Settlement, CIS pledged, inter alia, that it would no longer deny
7
8 or revoke SIJ applications on account of age or dependency status so long as an

9 applicant is either under 21 or the subject of a valid dependency order at the time of
10 application. Settlement ¶¶ 23 and 24. In exchange, plaintiffs agreed, inter alia, to
11
12 “dismiss this action, with prejudice, and dissolve the nationwide permanent injunction

13 entered by the District Court …” Id. at ¶ 34.11

14 B Defendants’ requiring that class members be both under 21 and the
15

16

subjects of valid dependency orders at the time of application violates

17

the plain language of the Settlement.

18 The uncontroverted evidence shows that during the first two and one-half years
19

20 after entering into the Settlement, defendants’ practice conformed to the plain language

21 of the agreement. The Court need look no further than the clear text of the agreement
22 itself to disapprove defendants’ subsequent about-face. United States v. Armour & Co.,
23

24 supra, 402 U.S. at 681-82.

25

Laboring to excuse their change in practice, defendants offer that the “disjunctive

26 from ¶ 23 of the settlement is unchanged in the April 4, 2011 policy memorandum.”
27

28

11 Plaintiffs further agreed that the Settlement would “sunset” after six years. Id. ¶ 41.

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1 Letter dated May 5, 2011, Plaintiffs’ Exhibit 4 at 3. That is simply not true, as side-by-

2 side comparison of the Settlement’s text with that of defendants’ 2011 memorandum
3
4 makes abundantly clear:

5

6

Settlement ¶ 23

2011 Policy Memorandum

7 Defendant USCIS shall not deny a class In accordance with the Settlement

member’s application for SIJ

Agreement, USCIS will not, based on

8 classification or SIJ-based adjustment of age or dependency status, deny or

9 status on account of age or dependency revoke any SIJ petition if, at the time the status, if, at the time the class member class member files or filed the petition,
10 files or filed a complete application for the class member was under 21 years

11 SIJ classification, he or she was under of age and was the subject of a valid

21 years of age or was the subject of a dependency order that was later

12 valid dependency order that was

terminated based on age.

13 subsequently terminated based on

age. 14

15

The substitution of the conjunctive for the disjunctive in the last clause of CIS’s

16 policy memorandum could not be plainer. In unilaterally changing the disjunctive “or”

17 of the Settlement to the conjunctive “and,” CIS creates a requirement for SIJ
18
19 classification—that an applicant be both under 21 and the subject of a valid dependency

20 order at the time he or she files Form I-360—wholly at odds with the plain language of

21 the Settlement. Nor is such a substitution lawful. Brinderson-Newberg Joint Venture v.
22
23 Pac. Erectors, Inc., 971 F.2d 272, 278 (9th Cir. 1992), cert denied, 507 U.S. 914, 113

24 S. Ct. 1267, 122 L. Ed. 2d 663 (1993) (contract “phrased in the disjunctive … requires
25 Pacific to perform work inferred by the specifications ‘or’ work inferred by customary
26 27 practices …. To limit the scope of work to jobs Pacific customarily performed, article

28 33 would have to be phrased in the conjunctive...’”).

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1 III DEFENDANTS’ UNILATERAL RE-INTERPRETATION OF THE SETTLEMENT IS NOWISE

2 REQUIRED BY THE SIJ STATUTE.
3

4

Given the weakness of their textual position, defendants have also suggested that

5 interpreting the Settlement according to its plain meaning would bring the agreement

6 into conflict with the SIJ statute. It would not.
7

8

A Nothing in the pre-TVPRA SIJ statute required SIJ applicants remain

9

the subjects of valid dependency orders at the time of application.

10 At the time of this Court’s summary judgment, the SIJ statute read in pertinent
11

12 part as follows:

13

The term “special immigrant” means—

14 (J) an immigrant who is present in the United States—
15

16

(I) who has been declared dependent on a juvenile court located in

17

the United States or whom such a court has legally committed to, or

18 placed under the custody of, an agency or department of a State and
19

20

who has been deemed eligible by that court for long-term foster care

21

due to abuse, neglect, or abandonment; …

22 Perez-Olano, supra, 248 F.R.D. at 252.
23

24

As has been seen, the Court held that the above statutory text “does not speak

25 directly to the issue of ‘age-out’ limitations on eligibility.” Id. at 268. The Court instead
26 held CIS’s age-out regulations “a permissible construction of the statute.” Id. at 269
27

28 (emphasis added).

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1

Defendants’ insisting that § 1101(a)(27)(J) requires their current age-out policy

2 cannot be squared with this Court’s contrary construction of the SIJ statute. As far as
3
4 the pre-TVPRA statutory text is concerned, class members’ remaining dependents at the

5 time of application was neither more nor less “required” than was their remaining

6 dependent through final adjudication of their SIJ petitions.
7

8

In settling, defendants were accordingly free to waive all “continuing

9 dependency” requirements. See International Asso. of Firefighters, etc. v. Cleveland,
10 478 U.S. 501, 522-23; 106 S. Ct. 3063; 92 L. Ed. 2d 405 (1986) (“[W]hatever the
11
12 limitations … on the power of federal courts to impose obligations … to remedy

13 violations of Title VII, these simply do not apply when the obligations are created by a 14
consent decree.”). That defendants did so is plain from the text of the Settlement 15 16 itself.12

17

18

19

20

21

22
23 12 Even assuming, arguendo, the Settlement’s disjunctive were inconsistent with the SIJ statute, defendants’ remedy would be to as the Court to reform the agreement, not re-
24 write it unilaterally. United States v. ITT Continental Baking Co., 420 U.S. 223, 236-37; 25 95 S. Ct. 926; 43 L. Ed. 2d 148 (1975).

26 In United States v. Atlantic Refining Co., 360 U.S. 19; 79 S. Ct. 944; 3 L. Ed. 2d 1054

27

(1959), for example, the Court agreed that the interpretation offered by the Government might better accord with the apposite statutes, but held this would “not warrant our

28 substantially changing the terms of a decree to which the parties consented without any

adjudication of the issues.” 360 U.S. at 23.

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1

B Defendants’ requiring SIJ applicants be dependents at the time of

2 application violates the amended SIJ statute and § 235(d)(6) of the
3

4

TVPRA.

5

If anything, defendants’ preferred construction of the Settlement—not

6 plaintiffs’—would itself violate the SIJ statute as it now provides.
7

8

1 Defendants’ construction of the Settlement unlawfully exalts

9

idiosyncratic state age limits on dependency over the uniform age

10 limit for SIJ eligibility Congress prescribed in the TVPRA.
11

12

First, in enacting the TVPRA Congress expressly disapproved defendants’

13 disqualifying SIJ applicants merely because they turn 18:

14 Notwithstanding any other provision of law, an alien described in section
15

16

101(a)(27)(J) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(27)(J)),

17

as amended by paragraph (1), may not be denied special immigrant status under

18 such section after the date of the enactment of this Act based on age if the alien
19

20

was a child on the date on which the alien applied for such status.

21 TVPRA § 235(d)(6).
22 The Immigration and Nationality Act defines the term “child” as an individual
23

24 under 21, 8 U.S.C. § 1101(b)(1), and current federal law therefore posits a uniform

25 under-21 age requirement for all SIJ applicants.
26 Defendants’ denying class members SIJ benefits because dependency ends solely
27

28 on account of age transparently exalts 50 varying state age limits on dependency over

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1 the TVPRA’s uniform age limit for SIJ eligibility. The only age requirement Congress

2 has authorized—“notwithstanding any other provision of law,” be it state or federal—is
3
4 that SIJ applicants be under 21.

5

Nothing in the SIJ statute or elsewhere disqualifies an applicant merely because

6 he or she is over 18, yet this is precisely what defendants are now doing via back door
7
8 artifice. Defendants’ construction of the Settlement—and not plaintiffs’—is clearly at

9 odds with the apposite statutes.

10 2 CIS’s construction of the Settlement nullifies Congress’s
11

12

preserving SIJ eligibility for applicants placed with individual

13

custodians.

14 The amended statute also directs CIS to confer SIJ benefits not only upon an
15

16 applicant “who has been declared dependent,” but upon one whom a state court “has …

17 placed under the custody of … an individual ...” The statute thus specifically posits a
18 state court’s placing a SIJ applicant “under the custody of” relatives or other custodians
19
20 as an alternative to their remaining dependent.13

21

As defendants’ construe the Settlement, however, class members must always be

22 dependents at the time of application regardless of whether a state court places them
23

24

25 13 Congress also deleted the requirement that SIJ applicants be deemed eligible for

26 long-term foster care. CIS regulations, which defendants rely on to declare class

27

members ineligible for SIJ on dependency grounds, e.g., Plaintiffs’ Exhibit 16 at 3, anachronistically continue to require that SIJ applicants be “eligible for long-term foster

28 care…” 8 C.F.R. § 204.11(c) (2014).

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1 under the custody of relatives. See, e.g., Declaration of Anne Mackin, supra, Plaintiffs’

2 Exhibits 11 at ¶¶ 6-12 and 11-A (class member Salvador Arias placed under custody of
3
4 mother); Declaration of Julie Spahn, Plaintiffs’ Exhibit 8 at ¶ 16 and 8-B and 8-C (class

5 member Schiammarelly Pinckert placed under custody of aunt); id. at 8-D (class

6 member Jose Salamanca placed under custody of brother); id. at 8-E and 8-F (class
7
8 member Kevin Rosales placed under custody of mother). In effect, defendants simply

9 ignore Congress’s declaring placement an alternative to dependency as a basis for SIJ

10 eligibility.
11

12

It is axiomatic that statutes should not be interpreted so as to reduce their terms to

13 surplusage. Pennsylvania Dept. of Public Welfare v. Davenport, 495 U.S. 552, 562; 110 14
S. Ct. 2126; 109 L. Ed. 2d 588 (1990) (“Our cases express a deep reluctance to interpret 15 16 a statutory provision so as to render superfluous other provisions in the same

17 enactment”). Defendants’ current policy and practice do just that to Congress’s 18
amending § 1101(a)(27)(J) to afford SIJ applicants an alternative to dependency: i.e., 19 20 being placed under the custody of relative and other individual custodians.

21

In sum, defendants’ notion that 8 U.S.C. § 1101(a)(27)(J) requires their current

22 policy and practice cannot be squared with (1) the plain text of the Settlement; (2) this
23

24 Court’s construction of the pre-TVPRA SIJ statutory text; (3) Congress’s fixing a

25 uniform age limit for SIJ eligibility;14 (4) Congress’s subsequently making placement 26

27

28 14 Nor does defendants’ current practice restrict the SIJ benefit to juveniles. CIS grants

individuals who are a day short of 21 SIJ benefits notwithstanding that they have been

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1 with an individual an alternative to dependency; or (5) as will be seen next, CIS’s

2 having regularly granted SIJ benefits to non-dependent applicants for the better part of
3
4 three years after the Settlement was finalized.

5 IV 6 7 8

DEFENDANTS’ UNANNOUCED SHIFT TO REQUIRING CONTINUING DEPENDENCY IS ARBITRARY, CAPRICIOUS, AND ANYTHING BUT A REASONABLE RE-INTERPRETATION OF THE SETTLEMENT.

9

Even assuming, arguendo, that ¶¶ 23 and 24 of the Settlement were not clear, any

10 ambiguity in those provisions should be resolved against defendants’ mid-2013 shift in
11

12 substantive SIJ eligibility requirements.

13

As has been seen, numerous lawyers who regularly represent SIJ applicants attest

14 that for the nearly three years after entering into the Settlement, CIS routinely granted
15

16 SIJ benefits to applicants who had aged-out of dependency at the time of application.

17

It is axiomatic that an “agency's own actions are relevant to … interpretation of”

18 a Settlement. Freeman v. Gonzales, Freeman v. Gonzales, 444 F.3d 1031, 1036 (9th
19

20 Cir. 2006); see also Defenders of Wildlife v. Norton, 258 F.3d 1136, 1146 n.11 (9th Cir.

21 2001) (“Nor do we owe deference to the interpretation of the statute now advocated by
22 the Secretary's counsel—newly minted, it seems, for this lawsuit, and inconsistent with
23

24 prior agency actions—as we ordinarily will not defer to agency litigating positions that

25

26

27

adults for nearly three years (provided they remain dependents). In contrast, defendants deny SIJ to class members from states that decline to extend dependency beyond 18 if

28 they apply one day after turning 18. Defendants’ policy and practice du jour, therefore,

deny SIJ benefits on the happenstance of the state in which a class member resides.

Memorandum Supporting Motion to Enforce Settlement
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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

Case 2:05-cv-03604-DDP-RZ Document 176-1 Filed 07/21/14 Page 28 of 30 Page ID #:1060
1 are wholly unsupported by regulations, rulings, or administrative practice.”) (internal

2 quotation marks and citation omitted)); cf., TWA v. Franklin Mint Corp., 466 U.S. 243,
3
4 259-60; 104 S. Ct. 1776; 80 L. Ed. 2d 273 (1984) (“We may not ignore the actual,

5 reasonably harmonious practice adopted by the United States and other signatories in

6 the first 40 years of the Convention's existence. In determining whether the Executive
7
8 Branch's domestic implementation of the Convention is consistent with the

9 Convention's terms, our task is to construe a ‘contract’ among nations. The conduct of
10 the contracting parties in implementing that contract in the first 50 years of its operation
11
12 cannot be ignored.” (citations omitted)).

13

The agency’s pulling the rug out from under class members who relied on CIS’s

14 earlier practice is also palpably unjust. The agency’s about-face clearly effects a change
15

16 in substantive adjudicative standards without pretense of complying with the notice-

17 and-comment requirements of the Administrative Procedure Act, 5 U.S.C. §§ 551 et

18 seq. (APA).
19

20

The APA—and fundamental fairness—require federal agencies to publish notice

21 of proposed rules and a final version of the rule at least 30 days before it becomes 22
effective. Id.15 The APA defines “rulemaking” to include not only the original 23

24

25

26 15 Although 5 U.S.C. § 553 exempts “interpretive rules, general statements of policy, or

27

rules of agency organization, procedure or practice” from the notice requirement, an agency may not, “under the guise of interpreting a regulation… create de facto a new

28 regulation.” Christensen v. Harris County, 529 U.S. 576, 588; 120 S. Ct. 1655; 146 L.

Ed. 2d 621 (2000).

Memorandum Supporting Motion to Enforce Settlement
- 22 -

Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

Case 2:05-cv-03604-DDP-RZ Document 176-1 Filed 07/21/14 Page 29 of 30 Page ID #:1061
1 formulation, but also modification, of a rule. 5 U.S.C. § 551(5); Paralyzed Veterans of

2 Am. v. D.C. Arena L.P., 117 F.3d 579, 586 (D.C. Cir. 1997), cert. denied, 523 U.S.
3
4 1003, 118 S. Ct. 1184, 140 L. Ed. 2d 315 (1998) (agency’s "fundamental change in its

5 interpretation of a substantive regulation without notice and comment" violates APA).

6 Defendants have not, and cannot, justify stripping unsuspecting class members of
7
8 SIJ eligibility via a shifting and contrived “interpretation” of the Settlement. See Nat’l

9 Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981; 125 S. Ct.
10 2688; 162 L. Ed. 2d 820 (2005) (“Unexplained inconsistency is ... a reason for holding
11
12 an interpretation to be an arbitrary and capricious change from agency practice under

13 the Administrative Procedure Act.”), citing Motor Vehicle Mfrs. Ass'n v. State Farm 14
Mut. Auto. Ins. Co., 463 U.S. 29, 46-57, 77 L. Ed. 2d 443, 103 S. Ct. 2856 (1983). 15

16

17

18

19

20

21

22

23

24

25

26 An “interpretive” rule “merely provides guidance to agency officials in exercising their

27

discretionary power, …” Sacora v. Thomas, 628 F.3d 1059, 1069 (9th Cir. 2010), whereas a substantive rule “establishes a binding norm.” Id. The numerous decisions

28 filed herewith denying class members SIJ benefits admit of no doubt that CIS’s

“continuing dependency” requirement is substantive and not discretionary.

Memorandum Supporting Motion to Enforce Settlement
- 23 -

Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

Case 2:05-cv-03604-DDP-RZ Document 176-1 Filed 07/21/14 Page 30 of 30 Page ID #:1062
1 VII CONCLUSION

2 For the foregoing reasons, the Court should grant this motion to enforce and issue
3
4 relief in the form proposed in the order lodged in connection herewith.

5 Dated: July 21, 2014. 6 7 8

CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW Carlos R. Holguín Peter A. Schey Marchela Iahdjian

9

PUBLIC COUNSEL

10

Judy London Kristen Jackson

11 12 13

qL/

14 15 16
/ / / 17

Carlos Holguin

__________

Attorneys for Plaintiffs

18

19

20

21

22

23

24

25

26

27

28

Memorandum Supporting Motion to Enforce Settlement
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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

 
 Case 2:05-cv-03604-DDP-RZ Document 191 Filed 06/09/17 Page 1 of 21 Page ID #:1474

1 Pamela S. Palmer (State Bar No. 107590) Pepper Hamilton LLP
2 350 South Grand Avenue Two California Plaza Suite 3400
3 Los Angeles, California 90071-3427 Telephone 213.928.9814
4 Facsimile 800.823.2923 E-Mail: palmerp@pepperlaw.com
5
Anthony Vale (pro hac vice pending) 6 Jessica A. Rickabaugh (pro hac vice pending)
PEPPER HAMILTON LLP 7 3000 Two Logan Square
Eighteenth & Arch Streets 8 Philadelphia, PA 19103-2799
Telephone: (215) 981-4000 9 Facsimile: (215) 981-4750
valea@pepperlaw.com 10 rickabaj@pepperlaw.com

11 Attorneys for PLAINTIFFS, minor children D.S.R.-O, V.G.R.-A., A.D.M.-L., J.E.L.-M.
12

13

UNITED STATES DISTRICT COURT

14

CENTRAL DISTRICT OF CALIFORNIA

15

WESTERN DIVISION

16 LUIS JAVIER PEREZ-OLANO, ET AL.,
17
Plaintiff,
18
v.
19
20 JEFFERSON BEAUREGARD SESSIONS, III, ET AL.,
21
Defendant.
22
23
24

Case No. CV 05-3604 DDP Honorable Dean D. Pregerson MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ENFORCEMENT OF SETTLEMENT AGREEMENT [filed concurrently with Notice of Motion and Motion; Appendix of Exhibits; Proposed Order] Crtrm.: 9C Hearing: July 10, 2017 Time: 10 a.m.

25

26

27

28

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR CLASSWIDE ENFORCEMENT OF SETTLEMENT AGREEMENT

Case 2:05-cv-03604-DDP-RZ Document 191 Filed 06/09/17 Page 2 of 21 Page ID #:1475

1

TABLE OF CONTENTS

Page
2

MEMORANDUM OF POINTS AND AUTHORITIES............................................1
3

I. INTRODUCTION ................................................................................. 1
4

II. BACKGROUND ................................................................................... 2
5

A. Special Immigrant Juvenile Status Under the Immigration

6

and Nationalities Act ................................................................... 2

7

B. The Perez-Olano Settlement Agreement Established

Nationwide Policy Regarding Special Immigrant Juvenile

8

Status............................................................................................ 3

9

C. Expedited Removal......................................................................4

10

III. STATEMENT OF FACTS .................................................................... 4

11

A. The Four Children are Members of the Perez-Olano

Class. ............................................................................................ 4
12

1. Plaintiff V.G.R.-A. is a member of the class. ................... 5
13

2. Plaintiff D.S.R.-O. is a member of the class. .................... 6
14

3. Plaintiff A.D.M.-L. is a member of the class. ................... 7
15

4. Plaintiff J.E.L.-M. is a member of the class......................8
16

B. The Four Children Have Asked the Government to

17

Recognize Their Status as Class Members and Join a

Motion to Reopen Their Removal Proceedings .......................... 9
18

C. The Children’s Action in the Eastern District of

19

Pennsylvania and Third Circuit Court of Appeals. ................... 11

20

IV. ARGUMENT ....................................................................................... 12

21

A. This Court Should Enforce The Settlement Agreement By

Directing ICE to Reopen the Children’s Removal

22

Proceedings ................................................................................ 12

23

1. This Court has jurisdiction to remedy violations of

the Settlement Agreement ............................................... 12
24

2. The plain terms of the Perez-Olano Settlement

25

Agreement apply to Plaintiffs. ........................................ 13

26

3. The Government has refused to uphold the

Settlement Agreement. .................................................... 13
27

V. CONCLUSION .................................................................................... 15
28

i
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR CLASSWIDE ENFORCEMENT OF SETTLEMENT AGREEMENT

Case 2:05-cv-03604-DDP-RZ Document 191 Filed 06/09/17 Page 3 of 21 Page ID #:1476

1 2
3 CASES

TABLE OF AUTHORITIES

Page(s)

4 Castro v. United States Dep’t Homeland Security,

5

835 F. 3d 422 (3d. Cir. 2016), cert denied, 2017 U.S. LEXIS 2438,

85 U.S.L.W. 3490 (U.S. Apr. 17, 2017)................................................................ 2

6

Chaly-Garcia v. United States,

7

508 F.3d 1201 (9th Cir. 2007) ............................................................................. 13

8

Flanegan v. Arizona,

9

143 F.3d 540 (9th Cir. 1998) ............................................................................... 12

10 Jeff D. v. Andrus,

11

899 F.2d 753 (9th Cir. 1989) ............................................................................... 13

12 Klamath Water Users Protective Ass’n v. Patterson,

13

204 F.3d 1206 (9th Cir. 1999), amended, 203 F.3d 1175 (9th Cir.

2000) .................................................................................................................... 13

14

15

Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 378; 114 S. Ct. 1673; 128 L. Ed. 2d 391 (1994) .......................... 12

16

Miller v. Fairchild Indus.,

17

797 F.2d 727 (9th Cir. 1986) ............................................................................... 13

18
TI Bev. Group Ltd. v. S.C. Cramele Recas SA,

19

2014 U.S. Dist. LEXIS 64740, 2014 WL 1795042 (C.D. Cal. Apr.

20

1, 2014) ................................................................................................................ 12

21 Perez-Olano v. Holder, Cv. No 05-03604, Dkt. 121 at 2 (C.D. Cal.) ......................................................... 3
22

23 Perez-Olano v. Holder, Cv. No 05-03604, Dkt. 159 (C.D. Cal.) ........... 1, 2, 3, 4, 9, 10, 11, 12, 13, 14, 15

24

Perez-Olano v. Holder,

25

Cv. No 05-03604, Dkt. 166 (C.D. Cal.) ................................................................ 3

26
Village of Kaktovik v. Watt,

27

223 U.S. App. D.C. 39, 689 F.2d 222 (D.C.Cir. 1982)....................................... 13

28
ii
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR CLASSWIDE ENFORCEMENT OF SETTLEMENT AGREEMENT

Case 2:05-cv-03604-DDP-RZ Document 191 Filed 06/09/17 Page 4 of 21 Page ID #:1477

Page(s)

1 Wendy Osorio Martinez, et al v. Attorney General United States, et al,

2

Case No. 5:17-cv-01747-LS, Doc. 2 ..................................................................... 2

3 Wendy Osorio Martinez, et al v. Attorney General United States, et al, Case No. 17-02159, Dkt. 13 (3rd Cir. June 2, 2017) ............................................ 3
4
5 STATUTES

6 8 U.S.C. § 1101(a)(27)(J) ....................................................................... 2, 3, 5, 6, 7, 8

7 8 U.S.C. § 1225..................................................................................................... 9, 10
8 8 U.S.C. § 1225(b) .................................................................................... 5, 6, 7, 8, 10
9
8 U.S.C. § 1225(b)(1)(B)(iii)(III) ................................................................... 5, 6, 7, 8
10
11 8 U.S.C. § 1255(a) and (h).......................................................................................... 8
12 8 USCS § 1182(a)(6)(A)(i) ......................................................................................... 4

13 8 USCS § 1182, INA §212 ..................................................................................... 4, 9

14 8 USCS § 1255(h)....................................................................................................... 2
15 INA § 237, 8 U.S.C. § 1227 ....................................................................................... 9
16
INA § 240, 8 USCS § 1229a .................................................................................... 15
17
18 OTHER AUTHORITIES
19 8 C.F.R. § 235.1 .............................................................................................. 9, 10, 14

20 8 C.F.R. §§ 1003.2(c)(2) and 1003.23(b)(1) ............................................................ 10

21 Insight Crime, Cachiros, http://www.insightcrime.org/honduras-

22

organized-crime-news/cachiros-profile................................................................. 1

23 Insight Crime, MS13, http://www.insightcrime.org/el-salvador-

24

organized-crime-news/mara-salvatrucha-ms-13-profile ....................................... 1

25

26

27

28
iii
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1

MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION

3

Four children (absent class members) respectfully submit this Memorandum

4 of Points and Authorities in Support of Their Motion to Enforce the Settlement

5 Agreement in Perez-Olano v. Holder, Cv. No 05-03604, Dkt. 159 (C.D. Cal.)

6 (“Settlement Agreement”). The Settlement Agreement, signed in May 2010,

7 provides for the Government to make changes to administration of the Special

8 Immigrant Juvenile program (“SIJ”).

9

In accordance with their rights under the Settlement Agreement, the four

10 children seek an order from the Court that Immigration and Customs Enforcement

11 (“ICE”) join in their request to reopen their removal proceedings so that an

12 Immigration Judge may stay their removal pending adjudication of their

13 applications for adjustment of status to Lawful Permanent Resident (“LPR”). The

14 Immigration Judge will also be able to order the release of the children from ICE

15 detention – to which they have been subjected for over eighteen months. The

16 United States Citizenship and Immigration Services (“USCIS”) granted each child

17 SIJ status in 2016. With SIJ classification, the children are deemed paroled into the

18 United States for purpose of adjusting their status to LPR.

19

There are two issues for the Court to decide. First, the Court should hold that

20 the Settlement Agreement applies to the four children even though the Agreement

21 expired at the end of 2016. The four children notified ICE of their change to SIJ

22 status before the “sunset” of the Agreement in 2016 and within 60 days of their

23 obtaining SIJ status, as required by the Agreement. But ICE incorrectly contends

24 that the Agreement has expired and the four children are not entitled to its benefits.

25

Second, the Court should hold that the Agreement applies to the four

26 children. ICE claims that the Settlement does not apply to the four children because

27 ICE had issued orders for the expedited removal of the children prior to their receipt

28 of SIJ status. The Agreement makes no such distinction, and is unambiguous that
1
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1 ICE is required to join motions to reopen removal proceedings once a child obtains

2 SIJ status. There is no policy reason why children in standard removal would have

3 the protections of the Agreement but not children subject to expedited removal.

4 Moreover, there is no statutory or policy basis for ICE to execute on orders to

5 remove children when another arm of the Government (the USCIS) has granted the

6 children SIJ classification on the ground that they have been abandoned by one or

7 both parents and it would not be in their best interests to be returned to their

8 countries of origin. Removal of the children to Central America would de facto

9 revoke their SIJ classification, and they would have no ability to adjust their status

10 from outside the United States.

11

In short, the four children request that the Court hold that Paragraph 29 of the

12 Agreement requires ICE to join in a request to reopen their removal proceedings,

13 and to allow an Immigration Judge to consider their SIJ status. Because the four

14 children are deemed paroled into the United States by virtue of their SIJ status, the

15 Immigration Judge will be able to stay the removal of the children pending

16 adjudication of their pending applications for adjustment of status to LPR and will

17 be able to order the release of the children from ICE detention.

18 II. BACKGROUND

19

A. SPECIAL IMMIGRANT JUVENILE STATUS UNDER THE IMMIGRATION

20

AND NATIONALITIES ACT

21

Pursuant to 8 U.S.C. § 1101(a)(27)(J), non-citizen children in the United

22 States may petition the Government for SIJ status.1 “The SIJ provisions created a

23
1 Section 1101(a)(27)(J) states:
24
The term “special immigrant” means--
25
(J) an immigrant who is present in the United States--
26
(i) who has been declared dependent on a juvenile court located in the 27 United States or whom such a court has legally committed to, or placed under the
custody of, an agency or department of a State, or an individual or entity appointed 28 by a State or juvenile court located in the United States, and whose reunification
2
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1 method for abused, neglected, and abandoned immigrant children to become lawful

2 permanent residents of the United States.” Perez-Olano v. Holder, Cv. No 05-

3 03604, Dkt. 121 at 2 (C.D. Cal.). Immigrant children may petition for SIJ

4 classification where a state court makes a predicate finding that the child is

5 dependent on a juvenile court; reunification with one or both parents is not viable

6 due to abuse, neglect, or abandonment; and it would not be in the child’s best

7 interest to return to his or her country of origin. 8 U.S.C. § 1101(a)(27)(J).

8

B. THE PEREZ-OLANO SETTLEMENT AGREEMENT ESTABLISHED

9

NATIONWIDE POLICY REGARDING SPECIAL IMMIGRANT JUVENILE

10

STATUS.

11

On December 15, 2010, the Central District of California approved a

12 comprehensive class-wide settlement, between the Government and class members,

13 establishing guidelines for the SIJ application process. Perez-Olano v. Holder, Cv.

14 No 05-03604, Dkt. 166 (C.D. Cal.) (“Order”).

15

The Settlement Agreement set out “nationwide policy governing the SIJ

16 application process,” and “supersede[s] all practices, policies, procedures, and

17

18 with 1 or both of the immigrant's parents is not viable due to abuse, neglect,

abandonment, or a similar basis found under State law;
19

(ii) for whom it has been determined in administrative or judicial

20

proceedings that it would not be in the alien's best interest to be returned to

the alien's or parent's previous country of nationality or country of last

21

habitual residence; and

22

(iii) in whose case the Secretary of Homeland Security consents to the grant

of special immigrant juvenile status, except that--
23

(I) no juvenile court has jurisdiction to determine the custody status or

24

placement of an alien in the custody of the Secretary of Health and

Human Services unless the Secretary of Health and Human Services

25

specifically consents to such jurisdiction; and

26

(II) no natural parent or prior adoptive parent of any alien provided

special immigrant status under this subparagraph shall thereafter, by

27

virtue of such parentage, be accorded any right, privilege, or status

under this Act;

28

3
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Case 2:05-cv-03604-DDP-RZ Document 191 Filed 06/09/17 Page 8 of 21 Page ID #:1481

1 Federal regulations to the extent they are inconsistent.” Settlement Agreement at ¶

2 13. The Settlement Agreement confers specified protections upon a nationwide

3 class comprised of “all aliens … who, on or after May 13, 2005, apply or applied

4 for SIJ status or SIJ-based adjustment of status based upon their alleged SIJ

5 eligibility.” Settlement Agreement at ¶ 3.

6

Under the Settlement, ICE must join motions to reopen removal proceedings

7 for juveniles with SIJ status where: (i) the juveniles request joinder to reopen

8 removal proceedings within 60 days of being notified by USCIS that SIJ status has

9 been granted; and (ii) for whom certain grounds of inadmissibility were waived or

10 waivable, including 8 U.S.C. § 1182, INA §212. Settlement Agreement at ¶ 29.

11 Juveniles with SIJ status are exempt from certain grounds of inadmissibility

12 including being “present in the United States without being admitted or paroled.” 8

13 U.S.C. § 1182(a)(6)(A)(i).

14

C. EXPEDITED REMOVAL

15

Expedited removal is a process by which low-level immigration officers can

16 quickly remove noncitizens who are undocumented from the United States. Only

17 aliens “who ha[ve] not been admitted or paroled into the United States” can be

18 subject to expedited removal under 8 U.S.C. § 1225(b)(1)(A).

19 III. STATEMENT OF FACTS

20

A. THE FOUR CHILDREN ARE MEMBERS OF THE PEREZ-OLANO CLASS.

21

Defendants acknowledge the four children are Perez-Olano class members.

22 See Plaintiffs’ Exhibit 1 at 1 (“… the referenced minors fall within the class of

23 juveniles identified in the [Perez-Olano] Settlement Agreement.”). The four

24 children have persevered through difficult circumstances that are sadly typical of

25 children with SIJ status. The children are now detained by ICE with their mothers

26 in a facility outside Reading, Pennsylvania.

27

Pursuant to 8 U.S.C. § 1101(a)(27)(J), the United States Citizenship and

28 Immigration Services (“USCIS”) granted each child SIJ status in 2016. See
4
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Case 2:05-cv-03604-DDP-RZ Document 191 Filed 06/09/17 Page 9 of 21 Page ID #:1482

1 Plaintiffs’ Exhibits 2-5.2 At the time, the children were separately challenging 2 expedited removed orders that had been previously entered.3 With SIJ status,

3 pursuant to 8 U.S.C. §1255(h), the children are deemed paroled into the United

4 States for purpose of applying to adjust their status to LPR, and each child has 5 submitted such an application to USCIS. See Plaintiffs’ Exhibits 6-9.4

6

1. Plaintiff V.G.R.-A. is a member of the class.

7

V.G.R.-A. is a 16-year-old boy, born on January 24, 2001 in El Salvador, and

8 is a citizen of El Salvador. Plaintiffs’ Exhibit 10 at 1; 11 at 5, 10. He and his

9 mother fled to the United States, seeking protection after gang members threatened

10 his mother for reporting a robbery to police and demanded that she turn over

11 V.G.R.-A. or they would both be killed. Plaintiffs’ Exhibit 11 at 15-18. They

12 entered the United States on October 15, 2015, in Texas via the Rio Grande, and

13 were apprehended the same day by Customs and Border Patrol (“CBP”). Plaintiffs’

14 Exhibit 11 at 2, 5. They were detained first at the Karnes County Residential

15 Center in Karnes City, Texas, and then transferred to the Berks County Residential

16 Center in Pennsylvania on November 7, 2015, where they have remained in

17 detention ever since. Plaintiffs’ Exhibit 11 at 9; 12 at 4.

18

At the time of their apprehension, V.G.R.-A. and his mother were put into

19 “expedited removal” proceedings under 8 U.S.C. § 1225(b). Plaintiffs’ Exhibit 11

20

21

2 See Pltfs. Exh. 2 at 1; Pltfs. Exh. 3 at 1; Pltfs. Exh. 4 at 1; and Pltfs. Exh. 5

at 1.

22

3 The four children and their mothers challenged the rejection of their claims

23 for asylum in Castro v. United States Dep’t Homeland Security, 835 F. 3d 422 (3d.

Cir. 2016), cert denied, 2017 U.S. LEXIS 2438, 85 U.S.L.W. 3490 (U.S. Apr. 17,

24 2017). The court in Castro held that it had no subject matter jurisdiction to

consider the challenge to the orders for expedited removal. The court in Castro did

25 not consider Plaintiffs’ SIJ status, because they had not obtained that status at the

time the record in Castro closed. We do not ask for a review of the issues raised by

26 plaintiffs in Castro in this filing.

27

4 See Pltfs. Exh. 6 at 1; Pltfs. Exh. 7 at 2; Pltfs. Exh. 8 at 1; and Pltfs. Exh. 9

at 1.

28

5
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1 at 1-2. Both requested asylum, but an asylum officer denied their request, a

2 determination later affirmed by an immigration judge. Plaintiffs’ Exhibit 11 at 7-8.

3 The Defendants intend to remove Plaintiff and his mother based on the expedited

4 removal orders entered prior to V.G.R.-A. receiving SIJ status. See 8 U.S.C. §

5 1225(b)(1)(B)(iii)(III).

6

On August 23, 2016, V.G.R.-A. applied for classification as a Special

7 Immigrant Juvenile, pursuant to 8 U.S.C.§ 1101(a)(27)(J), based on a predicate

8 order from the Berks County Court of Common Pleas. Plaintiffs’ Exhibit 2 at 2.

9 On October 13, 2016, USCIS approved his petition for SIJ status. Plaintiffs’

10 Exhibit 2 at 2. On October 27, 2016, V.G.R.-A. submitted form I-485 to USCIS for

11 an adjustment of status to LPR. Plaintiffs’ Exhibit 13 at 1. The form expressly

12 stated that V.G.R.-A. was detained. Plaintiffs’ Exhibit 13 at 7, 9. USCIS accepted

13 the I-485 application on October 31, 2016, and USCIS has never rejected it.

14 Plaintiffs’ Exhibit 6 at 1.

15

2. Plaintiff D.S.R.-O. is a member of the class.

16

D.S.R.-O. is a three-year-old boy, born on December 16, 2013, in Honduras,

17 and is a citizen of Honduras. Plaintiffs’ Exhibit 14 at 1; 15 at 11. D.S.R.-O. and

18 his mother fled Honduras to escape death threats from his father’s wife, who was

19 connected to the Los Cachiros drug traffickers. Plaintiffs’ Exhibit 16 at 3-4.

20 D.S.R.-O. crossed the Rio Grande and entered the United States with his mother on

21 October 21, 2015, when he was 22-months old. Plaintiffs’ Exhibit 15 at 7. They

22 were apprehended and detained by the United States CBP the day after their entry,

23 first at Kansas County Residential Center in Karnes City, Texas, and then at the

24 Berks Family Residential Center in Leesport, Pennsylvania, where they remain

25 detained. Plaintiffs’ Exhibit 15 at 3; 17 at 3.

26

At the time of their apprehension, D.S.R.-O. and his mother were put into

27 “expedited removal” proceedings under 8 U.S.C. § 1225(b). Plaintiffs’ Exhibit 15

28 at 5, 30. Both requested asylum, but an asylum officer denied their request, a
6
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1 determination later affirmed by an immigration judge. Plaintiffs’ Exhibit 15 at 3-4,

2 28-29. The Defendants intend to remove Plaintiff and his mother based on the

3 expedited removal orders entered prior to D.S.R.-O. receiving SIJ status. See 8

4 U.S.C. § 1225(b)(1)(B)(iii)(III).

5

On August 24, 2016, D.S.R.-O. applied for classification as a Special

6 Immigrant Juvenile, pursuant to 8 U.S.C.§ 1101(a)(27)(J), based on a predicate

7 order from the Berks County Court of Common Pleas. Plaintiffs’ Exhibit 3 at 1.

8 USCIS approved the petition of D.S.R.-O. for SIJ status on October 3, 2016.

9 Plaintiffs’ Exhibit 3 at 1. On October 20, 2016, D.S.R.-O. submitted form I-485 to

10 USCIS for an adjustment of status to LPR. Plaintiffs’ Exhibit 18 at 1. The forms

11 expressly stated that D.S.R.-O. was currently subject to an unexecuted expedited

12 removal order. Plaintiffs’ Exhibit 18 at 21. USCIS accepted the application on

13 October 21, 2016 and USCIS has never rejected it. Plaintiffs’ Exhibit 7 at 2.

14

3. Plaintiff A.D.M.-L. is a member of the class.

15

A.D.M.-L. is a four-year-old boy, born September 4, 2012, in Honduras, and

16 is a citizen of Honduras. Plaintiffs’ Exhibit 19 at 5. He and his mother fled

17 Honduras after she was threatened by a gang member whom she had reported to

18 police. Plaintiffs’ Exhibit 19 at 13-14. Seeking protection, they entered the United

19 States on October 23, 2015, near Hidalgo, Texas, when A.D.L.-M. was only three-

20 years-old. Plaintiffs’ Exhibit 19 at 4. They were apprehended the next day by

21 CBP. Plaintiffs’ Exhibit 19 at 23. They have been detained ever since, first at the

22 Karnes County Residential Center in Karnes City, Texas, and then at the Berks

23 County Residential Center in Pennsylvania. Plaintiffs’ Exhibit 19 at 2, 4, 25; 20 at

24 2, 3.

25

At the time of their apprehension, A.D.M.-L. and his mother were put into

26 “expedited removal” proceedings under 8 U.S.C. § 1225(b). Plaintiffs’ Exhibit 19

27 at 23, 27. Both requested asylum, but an asylum officer denied their request, a

28 determination later affirmed by an immigration judge. Plaintiffs’ Exhibit 19 at 2-3,
7
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR CLASSWIDE ENFORCEMENT OF SETTLEMENT AGREEMENT

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1 25-26. The Defendants intend to remove Plaintiff and his mother based on the

2 expedited removal orders entered prior to A.D.M.-L. receiving SIJ status. See 8

3 U.S.C. § 1225(b)(1)(B)(iii)(III).

4

On October 25, 2016, A.D.M.-L. applied for classification as a Special

5 Immigrant Juvenile, pursuant to 8 U.S.C.§ 1101(a)(27)(J), based on a predicate

6 order from the Berks County Court of Common Pleas. Plaintiffs’ Exhibit 4 at 1.

7 USCIS approved A.D.M.-L’s petition for SIJ status on November 28, 2016. Id. On

8 December 29, 2016, A.D.M.-L. submitted form I-485 to USCIS for an adjustment

9 of status to LPR. Plaintiffs’ Exhibit 21 at 1. The forms expressly stated that

10 A.D.M.-L. was currently subject to an unexecuted expedited removal order.

11 Plaintiffs’ Exhibit 21 at 22. USCIS accepted the application on December 30,

12 2016, and USCIS has never rejected it. Plaintiffs’ Exhibit 8 at 1.

13

4. Plaintiff J.E.L.-M. is a member of the class.

14

J.E.L.-M. is an eight-year-old boy, born May 12, 2009 in El Salvador, and is

15 a citizen of El Salvador. Plaintiffs’ Exhibit 22 at 1; 23 at 1; 24 at 4. After his

16 mother spurned the advances of an MS-13 gang member, the gang member

17 threatened that “he would kidnap and kill [J.E.L.-M.]” if his mother would not

18 acquiesce to a romantic relationship. Plaintiffs’ Exhibit 23 at 3. J.E.L.-M. and his

19 mother fled these threats of physical and sexual abuse, and entered the United

20 States on September 5, 2015 in Hidalgo, Texas. Plaintiffs’ Exhibit 24 at 2. They

21 were apprehended and detained by CBP the same day, first in the South Texas

22 Family Residential Center in Dilley, Texas, and then at the Berks County

23 Residential Center in Pennsylvania, where they have remained in detention ever

24 since. Plaintiffs’ Exhibit 24 at 2; 25 at 2; 26 at 17, 18.

25

At the time of their apprehension, J.E.L.-M. and his mother were put into

26 “expedited removal” proceedings under 8 U.S.C. § 1225(b). Plaintiffs’ Exhibit 24

27 at 4; 25 at 21. Both requested asylum, but an asylum officer denied their request, a

28 determination later affirmed by an immigration judge. Plaintiffs’ Exhibit 24 at 2-3;
8
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1 25 at 2-3. The Defendants intend to remove Plaintiff and his mother based on the

2 expedited removal orders entered prior to J.E.L.-M. receiving SIJ status. See 8

3 U.S.C. § 1225(b)(1)(B)(iii)(III).

4

On May 27, 2016, J.E.L.-M. applied for classification as a Special Immigrant

5 Juvenile, pursuant to 8 U.S.C.§ 1101(a)(27)(J), based on a predicate order from the

6 Berks County Court of Common Pleas. Plaintiffs’ Exhibit 5 at 1. USCIS approved

7 the petition of J.E.L.-M. for SIJ status on November 9, 2016. Id. On October 19,

8 2016, J.E.L.-M. submitted form I-485 to USCIS for an adjustment of status to LPR.

9 Plaintiffs’ Exhibit 26 at 1. The forms expressly stated that J.E.L.-M. was currently

10 subject to an unexecuted expedited removal order. Plaintiffs’ Exhibit 26 at 21.

11 USCIS accepted the application on October 21, 2016, and USCIS has never

12 rejected it. Plaintiffs’ Exhibit 9 at 1.

13

B. THE FOUR CHILDREN HAVE ASKED THE GOVERNMENT TO

14

RECOGNIZE THEIR STATUS AS CLASS MEMBERS AND JOIN A MOTION

15

TO REOPEN THEIR REMOVAL PROCEEDINGS

16

The four children’s SIJ classification allows them to apply to adjust their

17 status to LPR so long as they remain in the United States. 8 U.S.C. § 1255(a) and

18 (h). Nevertheless, the Government threatens to remove the children and their

19 mothers, in clear violation of the Settlement Agreement.

20

Paragraph 29 of the Settlement Agreement states:

21

“Defendant ICE shall join motions to reopen removal

22

proceedings filed by juveniles granted SIJ status when the

following criteria are met: the juvenile (i) requests such

23

joinder within 60 days of being notified by USCIS that it

has granted him or her SIJ status; and (ii) is not

24

inadmissible under INA § 212, 8 U.S.C. § 1182, or

removable under INA § 237, 8 U.S.C. § 1227, on grounds

25

that disqualify him or her from adjustment of status, or, if

inadmissible, such grounds of inadmissibility have been

26

waived or are waivable.”

27

28
9
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1

Pursuant to this provision, within sixty days of each being granted SIJ status,

2 the children requested that ICE join in their respective motions to rescind and

3 reopen their removal proceedings in a letter dated November 22, 2016. Plaintiffs’

4 Exhibit 27. Counsel for the children explained to ICE that “Paragraph 29 does not

5 provide an exception to compliance for children who have received removal orders 6 under Section 235,5 nor limit the mandate that ICE ‘shall join motions to reopen

7 removal proceedings.’” Plaintiffs’ Exhibit 27 at 3. The children notified

8 Defendants that they were violating the Perez-Olano Settlement Agreement and

9 requested assurances that Defendants would not remove the children. Plaintiffs’

10 Exhibit 27 at 1-2.

11

Over the course of the next five months, Defendants argued that the

12 Settlement Agreement was inapplicable to Plaintiffs, and refused to meet and

13 confer. First, the Government argued it was no longer bound by the Agreement

14 because it had expired. Plaintiffs’ Exhibit 28 at 3; 29 at 1. The Government also

15 argued that even if the Agreement were still valid, the four children would need to

16 dismiss other pending litigation in order to invoke the Settlement’s mediation

17 process. Plaintiffs’ Exhibit 29 at 1-2. Second, the Government argued that the

18 Settlement Agreement excludes children subject to expedited removal proceedings.

19 Plaintiffs’ Exhibit 1 at 1-2; 28 at 2-4; 30 at 3-4. But the Government pointed to

20 nothing in the Settlement Agreement that states children in expedited removal 21 proceedings are excluded.6

22
5 8 C.F.R. § 235 governs expedited removal.
23
6 The Government contended that children with orders for expedited removal 24 were excluded from the Settlement Agreement because:

25

• Paragraph 29 of the Settlement Agreement did not explicitly reference

26

expedited removal orders (Plaintiffs’ Exhibit 28 at 2; 30 at 3);

27

• The Agreement’s Preamble referenced juveniles in “removal

proceedings” rather than expedited removal proceedings (Plaintiffs’

28

Exhibit 1 at 1);

10

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1

From November 22, 2016 to May 1, 2017, the children requested to meet and

2 confer with the Government five times. Plaintiffs’ Exhibits 27 at 2; 28 at 1; 31 at 1,

3 2; 32 at 2; and 33 at 1. The children reiterated that the Settlement Agreement

4 neither expressly nor implicitly carved out an exception for children with expedited

5 removal orders, an exclusion that would have been easy to insert had that intention

6 existed. Plaintiffs’ Exhibit 31 at 2. The children advised the Government that they

7 would invoke the alternative dispute provisions in ¶43 of the Settlement

8 Agreement, at which time removal actions must be stayed pending resolution of

9 their case. Plaintiffs’ Exhibit 31 at 2. But the Government refused.

10

C. THE CHILDREN’S ACTION IN THE EASTERN DISTRICT OF

11

PENNSYLVANIA AND THIRD CIRCUIT COURT OF APPEALS.

12

The four children and their mothers filed an action in the Eastern District of

13 Pennsylvania seeking relief from expedited removal based on their SIJ status.

14 Wendy Osorio Martinez, et al v. Attorney General United States, et al., Case No.

15 5:17-cv-01747-LS, Doc. 2. The children asserted other grounds for relief in that

16 case, but noted their rights under the Perez-Olano Settlement Agreement. The

17 Eastern District of Pennsylvania refused to stay the removal of the children on

18

19

• The Settlement Agreement cited to government regulations 8 C.F.R.

§§ 1003.2(c)(2) and 1003.23(b)(1), which provide authority to reopen

20

cases initiated under INA § 240 proceedings by the Board of

21

Immigration Appeals and the Immigration Court (Plaintiffs’ Exhibit 1

at 1; 30 at 3);

22

• Expedited removal proceedings are governed by INA § 235 and its

23

implementing regulations at 8 C.F.R. § 235.1 et seq., which do not

24

permit such proceedings to be reopened (Plaintiffs’ Exhibit 1 at 1-2; 30 at 1, 3-4); and

25

• Expedited removal orders are subject to 8 U.S.C. § 1225(b)(1), which

26

provides for detention pending a credible fear determination; if found

not to have fear, the sole and exclusive remedy is discretionary parole

27

by the Secretary of Homeland Security (Plaintiffs’ Exhibit 30 at 1).

28
11
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1 jurisdictional grounds and they have appealed to the Third Circuit. Case No. 5:17-

2 cv-01747-LS, Docs. 31 and 32. The children and their mothers were granted a stay

3 pending the Third Circuit’s decision on their emergency motion to stay their

4 removal, and remain for now in detention in Berks County.

5 IV. ARGUMENT

6

A. THIS COURT SHOULD ENFORCE THE SETTLEMENT AGREEMENT BY

7

DIRECTING ICE TO REOPEN THE CHILDREN’S REMOVAL

8

PROCEEDINGS

9

1. This Court has jurisdiction to remedy violations of the

10

Settlement Agreement.

11

A proceeding to enforce a settlement requires its own basis of jurisdiction.

12 Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 378; 114 S. Ct. 1673; 128 L. Ed.

13 2d 391 (1994). In the Ninth Circuit, “[s]uch a basis for jurisdiction may be

14 furnished by separate provision [in the settlement] (such as a provision retaining

15 jurisdiction over the settlement agreement) or by incorporating the terms of the

16 settlement agreement in the order.” Flanegan v. Arizona, 143 F.3d 540, 544 (9th

17 Cir. 1998).

18

The Settlement Agreement reserves jurisdiction for this Court by providing

19 that “complaining class member(s) may move to enforce the Agreement on a class-

20 wide basis in the Central District of California, or on an individual basis before the

21 Central District of California.” Settlement Agreement at ¶43. The Order approving

22 the Settlement Agreement also provides that this Court “shall retain jurisdiction

23 over this matter.” Order (Dkt. 166) at 3. “Where, as here, the Court validly

24 retained jurisdiction to enforce the settlement agreement, the parties need not file a

25 new complaint to enforce the terms of the settlement.” TI Bev. Group Ltd. v. S.C.

26 Cramele Recas SA,2014 U.S. Dist. LEXIS 64740 at *29, 2014 WL 1795042 (C.D.

27 Cal. Apr. 1, 2014). This Court therefore has jurisdiction to enforce the Settlement

28 Agreement.

12
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1

2. The plain terms of the Perez-Olano Settlement Agreement

2

apply to Plaintiffs.

3

“An agreement to settle a legal dispute is a contract and its enforceability is

4 governed by familiar principles of contract law.” Jeff D. v. Andrus, 899 F.2d 753,

5 759 (9th Cir. 1989) (citing Miller v. Fairchild Indus., 797 F.2d 727, 733 (9th Cir.

6 1986); Village of Kaktovik v. Watt, 223 U.S. App. D.C. 39, 689 F.2d 222, 230 and

7 n. 62 (D.C. Cir. 1982). Accordingly, the Settlement Agreement, as a contract, must

8 be read in whole, “with preference given to reasonable interpretations. Contract

9 terms are to be given their ordinary meaning, and when the terms of a contract are

10 clear, the intent of the parties must be ascertained from the contract itself.” Chaly-

11 Garcia v. United States, 508 F.3d 1201, 1203 (9th Cir. 2007) (quoting Klamath

12 Water Users Protective Ass’n v. Patterson, 204 F.3d 1206, 1210 (9th Cir. 1999),

13 amended, 203 F.3d 1175 (9th Cir. 2000)).

14

Here, the plain terms of the Perez-Olano Settlement apply to the four

15 children. The Perez-Olano Settlement provides that it “applies to all aliens,

16 including, but not limited to, SIJ applicants, who, on or after May 13, 2005, apply

17 or applied for SIJ status or SIJ-based adjustment of status based upon their alleged

18 SIJ eligibility. Settlement Agreement at ¶ 3 (emphasis added). This definition

19 plainly includes the four children here who received SIJ status in 2016. Moreover,

20 Paragraph 29, which instructs ICE to join motions to reopen removal proceedings,

21 is not limited to a particular type of removal proceeding. Of particular relevance

22 here, Paragraph 29 does not exclude juveniles in expedited removal proceedings.

23 Defendants cannot read into the Agreement a limitation that simply is not there.

24

3. The Government has refused to uphold the Settlement

25

Agreement.

26

Despite “acknowledg[ing] that [the children] fall within the class of juveniles

27 identified in the Settlement Agreement, since they applied for and were ultimately

28 granted SIJ status on or after May 13, 2005,” the Government has refused every
13
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1 request to meet and confer, and join a motion to reopen proceedings in accordance

2 with the Settlement Agreement. Plaintiffs’ Exhibits 1, 28, 29, and 30. The

3 Government’s refusal to uphold the Settlement Agreement is wrong. See Plaintiffs’

4 Exhibit 1. First, the Government incorrectly argues that the Settlement has expired.

5 The Settlement Agreement extended six years following its December 16, 2010 6 effective date,7 Settlement Agreement at ¶ 41, and therefore did not expire until

7 December 15, 2016. Plaintiffs’ Exhibit 28. Class counsel notified the Government

8 of these four children’s intention to invoke the Settlement Agreement before the

9 Agreement expired, via a November 22, 2016 letter. Plaintiffs’ Exhibit 27.

10

Second, the Settlement Agreement itself refutes the Government’s position

11 that the Agreement does not apply to those placed in expedited removal. The

12 Government contends that there is no language authorizing reopening of an 13 expedited removal order in the implementing regulations.8 But the Settlement

14 Agreement explicitly “supersede[s] all practices, policies, procedures, and Federal

15 regulations to the extent they are inconsistent.” Settlement Agreement at ¶ 13.

16

Third, Plaintiffs’ removal from the United States would irreversibly negate

17 their ability to seek relief provided under the Settlement Agreement. The

18 Agreement’s terms prevent this outcome. By staying removal proceedings pending

19 the outcome of the matter, the Settlement Agreement acknowledges the

20 exceptionally vulnerable position of these four children and others in this class. See

21 Settlement Agreement at ¶ 43 (“Once a juvenile initiates this alternative dispute

22
7 Paragraph 36 of the Settlement Agreement provides that the effective date 23 of the Agreement “shall be the date when the last of the following three conditions
has been satisfied: (a) approval by the Court of this Agreement; (b) entry by the 24 Court of an order dissolving the nationwide permanent injunction entered by the
District Court on January 8, 2008, and dismissing this action with prejudice; and (c) 25 withdrawal of both Parties’ appeals that are pending before the Ninth Circuit.”

26

8 As explained in footnote 7 above, the government contends that neither

INA § 235 or its implementing regulations at 8 C.F.R. § 235.1 et. al., which govern

27 the expedited removal process, provide for the reopening of an expedited removal

order. Plaintiffs’ Exhibit 4 at 1-2.

28

14
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1 resolution (ADR) process, the removal action shall be stayed and he or she shall not

2 be removed from the United States unless and until the matter has been resolved in

3 favor of Defendants.”). Plaintiff children are defenseless absent this Court’s

4 intervention to compel Defendants to keep its promise under the Settlement

5 Agreement—a promise merely to fully consider the children’s request for LPR and

6 not to deport the children while it does so. Based on Defendants’ continual refusal

7 to meet and confer or submit to mediation, the children have “exhaust[ed] the

8 administrative procedures provided [in the Settlement Agreement]” per ¶ 43.

9

Accordingly, Plaintiffs ask the Court to enforce the Settlement Agreement’s

10 plain terms and require Defendants to join a motion to reopen removal proceedings.

11 V. CONCLUSION

12

For all of the reasons stated above, the four children respectfully ask this

13 Court to order Defendants to comply with the terms of the Settlement Agreement

14 by instructing ICE to reopen removal proceedings filed against the four children

15 under Section 240 of the INA, 8 U.S.C. § 1229a; staying the removal action against

16 the four children while such proceedings are pending; and prohibiting Defendants

17 from removing the four children from the United States unless and until the matter

18 has been resolved in Defendants’ favor.

19 Dated: June 9, 2017

Respectfully submitted,

20

By:____/s/ Pamela S. Palmer_____

21

Pamela S. Palmer_____________

Anthony C. Vale

22

Jessica A. Rickabaugh

PEPPER HAMILTON LLP
23

Attorney for Plaintiffs
24

25

26

27

28
15
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Case 2:05-cv-03604-DDP-RZ Document 191 Filed 06/09/17 Page 20 of 21 Page ID #:1493

1

CERTIFICATE OF SERVICE

2

I, hereby certify that on June 9, 2017, I electronically filed the foregoing

3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

4 MOTION FOR ENFORCEMENT OF SETTLEMENT AGREEMENT with

5 the United States District Court, Central District of California, by using the Court’s

6 CM/ECF system. I certify that the foregoing parties or their counsel of record are

7 registered as ECF Filers and that they will be served by the CM/ECF system:

8 Erez Reuveni, Esquire Vinita B. Andrapalliyal, Esquire
9 Joseph Darrow, Esquire Senior Litigation Counsel
10 Office of Immigration Litigation District Court Section
11 P.O. Box 868 Ben Franklin Station
12 Washington, DC 20530 via ECF
13

14

I further certify that on June 9, 2017, I served copy(ies) of the foregoing

15 document(s) on the following parties or their counsel of record via U.S. Certified

16 Mail as follows:

17 The United States Attorney General Office of the Attorney General
18 950 Pennsylvania Ave., NW, Washington, D.C. 20520
19 via Certified Mail
20
21 JOHN F. KELLY, Secretary of Homeland Security,
22 Washington, D.C. 20528; via Certified Mail
23

THOMAS DECKER, Field Office Director, Philadelphia ICE Field Office, 1600 Callowhill Street, Philadelphia, PA 19130; via Certified Mail DIANE EDWARDS, Executive Director, Berks County Residential Center, 1040 Berks Road, Leesport, PA 19533 via Certified Mail

24
THOMAS HOMEN, 25 Director,
U.S. Immigration & Customs 26 Enforcement,
500 12th Street, S.W. 27 Washington, D.C. 20536-5009;
via Certified Mail
28

Office of the US Attorneys 615 Chestnut Street, Suite 1250 Philadelphia, PA 19106 via Certified Mail

1

Case 2:05-cv-03604-DDP-RZ Document 191 Filed 06/09/17 Page 21 of 21 Page ID #:1494

1

I declare that I am employed by the office of a member of the bar of this

2 Court, at whose direction the service was made.

3
/s/ _Janine Philips_________________
4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

 
 Case 2:05-cv-03604-DDP-RZ Document 219 Filed 07/13/17 Page 1 of 3 Page ID #:1980

1 Pamela S. Palmer (State Bar No. 107590) PEPPER HAMILTON LLP
2 350 South Grand Avenue Two California Plaza Suite 3400
3 Los Angeles, California 90071-3427 Telephone 213.928.9814
4 Facsimile 800.823.2923 E-Mail: palmerp@pepperlaw.com
5
Anthony Vale (pro hac vice) 6 Jessica A. Rickabaugh (pro hac vice)
PEPPER HAMILTON LLP 7 3000 Two Logan Square
Eighteenth & Arch Streets 8 Philadelphia, PA 19103-2799
Telephone: (215) 981-4000 9 Facsimile: (215) 981-4750
valea@pepperlaw.com 10 rickabaj@pepperlaw.com

11 Attorneys for Plaintiffs, minor children D.S.R.O, V.G.R.-A., A.D.M.-L., J.E.L.-M.
12

13

UNITED STATES DISTRICT COURT

14

CENTRAL DISTRICT OF CALIFORNIA

15

WESTERN DIVISION

16 LUIS JAVIER PEREZ-OLANO, ET Case No. 2:05-cv-03604-DDP(RZ)

AL.,

17 Plaintiffs,

Honorable Dean D. Pregerson

v.

18

NOTICE OF SUPPLEMENTAL

AUTHORITY IN SUPPORT OF MOTION

19 JEFFERSON BEAUREGARD

FOR ENFORCEMENT OF SETTLEMENT

SESSIONS, III, et al.

AGREEMENT

20

Defendants.

Crtrm.: 9C

21

Hearing: July 10, 2017

Time: 08:30 a.m.

22

Loc.: First Street Fed. Courthouse

350 W. First Street

23

Los Angeles, CA 90012-4565

24

25

26

27

28

PLAINTIFFS’ NOTICE OF SUPPLEMENTAL AUTHORITY IN SUPPORT OF MOTION FOR ENFORCEMENT OF SETTLEMENT AGREEMENT

Case 2:05-cv-03604-DDP-RZ Document 219 Filed 07/13/17 Page 2 of 3 Page ID #:1981

1

Plaintiffs submit this Notice of Supplemental Authority in Support of

2 Plaintiffs’ Motion for Enforcement of Settlement Agreement [Dkt. No. 190].

3 Attached as Exhibit A is a copy of the opinion from the United States District Court

4 for the Central District of California in Jenny L. Flores, et al. v. Jefferson B.

5 Sessions, III, et al., Case No. CV 85-4544 DMG, Dkt. No. 363, 20-27 (C.D. Cal.

6 June 27, 2017). This new and relevant authority, finding that the Flores Settlement

7 Agreement regarding detention of immigrant minors extends to minors in expedited

8 removal proceedings, supports Plaintiffs’ Motion to compel the Government to

9 uphold its obligations under the Perez-Olano Settlement Agreement.

10

In Flores, at issue before the court was a motion by plaintiff class

11 members—accompanied and unaccompanied immigrant minors—to enforce a 12 settlement agreement with the Government1 regarding detention practices (the

13 “Flores Agreement”). Exhibit A at 1. The plaintiffs identified several issues,

14 including the Government’s failure to make and record continuous efforts to release

15 certain class members as required by the Flores Agreement, namely, accompanied

16 minors in expedited removal proceedings. Exhibit A at 20.

17

As here, the Government argued that minors subject to expedited removal

18 were excluded from the detention limitations in the Flores Agreement. Exhibit A at

19 20. The specific issue Judge Dolly Gee analyzed was “whether the statutes and

20 accompanying regulations for detainees in expedited removal create an exception to

21 the Flores Agreement’s requirement that Defendants make and record prompt and

22 continuous efforts toward the release of class members. The Court finds that they

23 do not.” Exhibit A at 23.

24

25

26

1 The Government Defendants were Jefferson B. Sessions III and the U,S,

Department of Homeland Security and its subordinate entities, U.S. Immigration

27 and Customs Enforcement (“ICE”) and U.S. Customs and Border Protection

(“CBP”). Exhibit A at 1.

28

1
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Case 2:05-cv-03604-DDP-RZ Document 219 Filed 07/13/17 Page 3 of 3 Page ID #:1982

1

The Court rejected the Government’s arguments that children in expedited

2 removal proceedings were not protected by the Flores Agreement’s limits on

3 detention for minors. Exhibit A at 24. Instead, the Court found that “Defendants

4 are not absolved of their contractual obligation [under the Settlement Agreement]

5 by virtue of the expedited removal statute.” Exhibit A at 27.

6

Such is the case here. Nothing in the Settlement Agreement at issue in the

7 present case suggests that members of the class who are subject to expedited

8 removal are to be treated any differently than members of the class who are subject

9 to regular removal proceedings. And nothing in the federal law or regulations

10 permits the Government to exclude children in expedited removal proceedings from

11 the protections of the Perez-Olano Settlement Agreement.

12
13 Dated: July 13, 2017

Respectfully submitted,

14

By: /s/ Pamela S. Palmer

15

Pamela S. Palmer

Anthony C. Vale

16

Jessica A. Rickabaugh

PEPPER HAMILTON LLP

17

Attorneys for Plaintiffs

18

minor children D.S.R.-O,

V.G.R.-A., A.D.M.-L., J.E.L.-M.

19

20

21

22

23

24

25

26

27

28
2
PLAINTIFFS’ NOTICE OF SUPPLEMENTAL AUTHORITY IN SUPPORT OF MOTION FOR ENFORCEMENT OF SETTLEMENT AGREEMENT

 
 Case 2:05-cv-03604-DDP-RZ Document 221 Filed 07/20/17 Page 1 of 6 Page ID #:2025

1 CHAD A. READLER

2 Acting Assistant Attorney General WILLIAM C. PEACHEY
3 Director, District Court Section

4 KATHLEEN A. CONNOLLY

5 Senior Litigation Counsel, District Court Section BRIAN C. WARD (IL Bar No. 6304236)
6 Trial Attorney, District Court Section

7 Office of Immigration Litigation U.S. Department of Justice - Civil Division
8 P.O. Box 868, Ben Franklin Station

9 Washington, DC 20044-0868

10

Telephone: (202) 616-9121; Fax: (202) 305-7000 Email: brian.c.ward@usdoj.gov

11

12 Attorneys for Defendants

13

14

IN THE UNITED STATES DISTRICT COURT

15 FOR THE CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

16

17 18

LUIS JAVIER PEREZ-OLANO, et ) Case No. 2:05-cv-03604-DDP-RZ

al.,

) )

Plaintiffs,

) RESPONSE TO NOTICE OF

19

) SUPPLEMENTAL AUTHORITY

20 vs.

) )

21 JEFFERSON B. SESSIONS III,

) )

22 Attorney General, et al.,1

) )

23

Defendants.

) )

24

)

25

26

27

28
1 Under Federal Rule of Civil Procedure 25(d), Attorney General Jefferson B. Sessions III is automatically substituted for his predecessor as a party.

Case 2:05-cv-03604-DDP-RZ Document 221 Filed 07/20/17 Page 2 of 6 Page ID #:2026

1

Defendants respectfully submit this response to Plaintiffs’ July 13, 2017,

2
Notice of Supplemental Authority, which cites an order from Flores v. Sessions,
3

4 No. CV 85-4544 DMG (C.D. Cal. June 27, 2017). The Flores order is not relevant

5
here because it interprets the terms of a completely different settlement agreement
6
7 and is based on that agreement’s provisions governing detention.

8

A ruling related to a different settlement, with different terms, addressing

9

10 different issues, plainly has no bearing on the terms of the Perez-Olano settlement.

11 Moreover, in Flores the Court addressed an issue, detention, which can apply to

12
individuals in removal proceedings or expedited removal, and considered whether
13

14 settlement terms governing detention apply to both groups. Although the Court

15 acknowledged that expedited removal has a distinct purpose and statutory basis,
16
17 because the relevant terms in the Flores agreement simply dealt with detention, the

18 Court found no reason in this specific context to distinguish individuals detained
19
for removal proceedings from those detained for expedited removal. See Flores
20

21 Order at 21-23.

22
In contrast, motions to reopen, the settlement term at issue here, are
23
24 available by regulation only to individuals in removal proceedings before an

25 immigration judge. There is no such mechanism for Plaintiffs’ expedited removal
26
27 orders because expedited removal is a separate, abbreviated process created by

28 Congress that specifically does not include the immigration court process. The

1

Case 2:05-cv-03604-DDP-RZ Document 221 Filed 07/20/17 Page 3 of 6 Page ID #:2027

1 Perez-Olano agreement expressly cites the regulations that provide for motions to
2
reopen removal proceedings in immigration court and explain when and why a
3

4 joint motion might be necessary in this context. See 8 C.F.R. § 1003.23(b)(4)(iv)

5
(“Jointly filed motions”). There is no similar regulation for expedited removal that
6
7 provides jurisdiction to either an immigration judge or the Board of Immigration

8 Appeals to consider a motion to reopen. See 8 C.F.R. §§ 235.3, 1003.42, 1208.30.
9
10 Thus Plaintiffs’ argument that Flores supports extending Paragraph 29’s terms to

11 expedited removal (which is nowhere mentioned in the Perez-Olano agreement)

12
would require an absurd result; even if Defendants joined a motion to reopen, there
13

14 is no place to file such a motion as neither an immigration judge nor the Board of

15 Immigration Appeals can reopen expedited removal orders.2

16

17

Expedited removal is distinct from regular removal proceedings, and applies

18 only to individuals such as Plaintiffs who arrive at the border without a visa or
19
other basis to enter the country, and who lack a credible basis to apply for asylum
20

21 or other relief from removal. 8 U.S.C. § 1225. To the extent Plaintiffs rely on

22
Flores to argue there is no reason to treat expedited removal differently than
23
24 regular removal proceedings, courts have already considered and rejected this

25
26 2 As explained in Defendants’ Opposition, a motion to reopen is also unnecessary for these Plaintiffs and inconsistent with Paragraph 29’s purpose because expedited
27 removal orders are not issued in removal proceedings before an immigration judge
28 so they do not prevent USCIS from adjudicating Plaintiffs’ applications to adjust status. See Defs.’ Opp’n, ECF No. 212, at 15-18; 8 C.F.R. § 245.2(a)(1).
2

Case 2:05-cv-03604-DDP-RZ Document 221 Filed 07/20/17 Page 4 of 6 Page ID #:2028

1 claim in other earlier litigation brought by these same Plaintiffs. See Ex. A., Castro
2
v. Dep’t of Homeland Sec., 835 F.3d 422 (3d Cir. 2016) (explaining why
3

4 individuals in expedited removal are treated differently by statute and for

5
constitutional purposes); Osorio-Martinez v. Sessions, No. 5:17-cv-01747-PD
6
7 (E.D. Pa. May 23, 2017) (rejecting challenges to expedited removal regime, and

8 finding special immigrant juvenile classification has no effect on Plaintiffs’
9
10 expedited removal orders and that they are not presently eligible to adjust status

11 anyway because there are currently no visas available).

12
Accordingly, the Flores order does not support Plaintiffs’ argument.
13

14

//

15

//

16

17

//

18

19

20

21

22

23

24

25

26

27

28

3

Case 2:05-cv-03604-DDP-RZ Document 221 Filed 07/20/17 Page 5 of 6 Page ID #:2029

1 Dated: July 20, 2017
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Respectfully Submitted, CHAD A. READLER Acting Assistant Attorney General Civil Division WILLIAM C. PEACHEY Director, District Court Section Office of Immigration Litigation KATHLEEN A. CONNOLLY Senior Litigation Counsel District Court Section Office of Immigration Litigation /s/ Brian C. Ward BRIAN C. WARD Trial Attorney U.S. Department of Justice Office of Immigration Litigation P.O. Box 868, Ben Franklin Station Washington, DC 20044 Telephone: (202) 616-9121 Fax: (202) 305-7000 E-mail: Brian.C.Ward@usdoj.gov Attorneys for Defendants
4

Case 2:05-cv-03604-DDP-RZ Document 221 Filed 07/20/17 Page 6 of 6 Page ID #:2030

1

CERTIFICATE OF SERVICE

2

I HEREBY CERTIFY that on this 20th day of July 2017, a true and correct

3
copy of the foregoing document was served through the district court’s ECF

4

system upon all Counsel of Record.

5

/s/ Brian C. Ward

6

BRIAN C. Ward

7

Trial Attorney

8

United States Department of Justice

9

10

11

12

13

14

15

16

17

18

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25

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5

 
 Case 2:05-cv-03604-DDP-RZ Document 135 Filed 02/05/08 Page 1 of 9 Page ID #:336

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

11 LUIS JAVIER PEREZ-OLANO;

) Case No. CV 05-03604 DDP (RZx)

MANUEL GOMEZ; MICHAEL YUBAN )

12 OBANDO; CASA LIBRE YOUTH

) ORDER DENYING DEFENDANTS’ EX

SHELTER; LUCIA UREY; MAEJEAN ) PARTE APPLICATION FOR A STAY OF

13 ROBINSON; LUIS MIGUEL

) THE INJUNCTION

MORALES; YAN JUN LI; FREDDY )

14 GARRIDO-MARTINEZ,

) [Defendants’ Ex Parte Filed on

) January 25, 2008]

15

Plaintiffs, )

)

16

v.

)

)

17 ALBERTO GONZALEZ, Attorney )

General; ROBERT S. MUELLER, )

18 Director Federal Bureau of )

Investigation; MICHAEL

)

19 CHERTOFF, Secretary of

)

Homeland Security; OFFICE OF )

20 REFUGEE RESETTLEMENT,

)

)

21

Defendants. )

)

22 ___________________________ )

23

24

This matter is before the Court on Defendants’ ex parte

25 application for an emergency stay of this Court’s Order enjoining

26 Defendants’ specific consent requirement for in-custody immigrant

27 minors needing a state court dependency order as a predicate to

28 apply for special immigrant juvenile (“SIJ”) status under the

Case 2:05-cv-03604-DDP-RZ Document 135 Filed 02/05/08 Page 2 of 9 Page ID #:337

1 Immigration and Nationality Act (“INA”), 8 U.S.C. §§

2 1101(a)(27)(J). (See Order, January 8, 2008.) After reviewing the

3 papers submitted by the parties and considering the arguments

4 therein, the Court denies a stay of the injunction.

5

6 I. BACKGROUND

7

Pursuant to 8 U.S.C. § 1101(a)(27)(J), immigrant children may

8 petition the U.S. Immigration and Citizenship Services (“CIS”), a

9 bureau of the Department of Homeland Security (“DHS”), to be 10 recognized as special immigrant juveniles.1 In order to be

11 eligible for SIJ classification, 8 U.S.C. § 1101(a)(27)(J) requires

12 that a state court make an SIJ-predicate order, finding 1) that the

13 child is dependent on the court or a state agency; 2) that the

14 child is eligible for long-term foster care due to abuse, neglect

15 or abandonment; and 3) that it would not be in the child’s best

16 interest to be returned to his or her home country. 8 U.S.C. §

17 1101(a)(27)(J)(I-ii).

18

Under the statute, a state court may not “determine the

19 custody status or placement” of in-custody minors unless

20 Immigration and Customs Enforcement (“ICE”), a bureau of DHS,

21 specifically consents to state court jurisdiction. 8 U.S.C. §

22 1101(a)(27)(J)(iii)(I). Defendants had a policy that required in-

23 custody minors to obtain ICE’s specific consent before proceeding

24 to state court for an SIJ-predicate order.

25

26

1 The Homeland Security Act of 2002 (“HSA”), Pub. L. No. 107296, 116 Stat. 2153 (Nov. 25, 2002), transferred authority to

27

implement the SIJ benefit provisions from the Attorney General to the Secretary of Homeland Security. HSA §§ 471(a), 451(b), and

28

462(c); see also F.L. v. Thompson, 293 F. Supp. 2d 86 (D.D.C. 2003).

2

Case 2:05-cv-03604-DDP-RZ Document 135 Filed 02/05/08 Page 3 of 9 Page ID #:338

1

In its January 8, 2008 Order, the Court granted summary

2 adjudication to Plaintiffs on their claim that Defendants’ policy

3 was inconsistent with the plain language of 1101(a)(27)(J) by

4 improperly requiring specific consent for all SIJ-predicate orders.

5 The Court determined that such orders do not alter a minor’s

6 custody status or placement, unless the state court orders a change

7 in a particular child custody arrangement, assigns the child to a

8 foster home, or takes some similar action. (Order 31-33.)

9 Therefore, the Court held that Defendants may not require specific

10 consent unless a state court order will alter custody status or

11 placement, as is provided in the statute. (Id. at 35-36.)

12

The Court issued an injunction prohibiting Defendants from

13 applying the unlawful policy on specific consent and requiring

14 Defendants to follow the law as articulated in the Order. (Order

15 38-39.) The Court found injunctive relief appropriate to remedy

16 the high likelihood of substantial and immediate irreparable injury

17 to immigrant minors and the inadequate remedies at law. The Court

18 had already certified a subclass of those in-custody minors subject

19 to Defendants’ specific consent. Therefore, the Court ordered that

20 the injunction apply on a class-wide basis. (Order 39.)

21

Defendants have moved for a stay of the injunction pending a

22 decision whether to appeal the Court’s Order.

23

24

25 ///

26 ///

27 ///

28 ///

3

Case 2:05-cv-03604-DDP-RZ Document 135 Filed 02/05/08 Page 4 of 9 Page ID #:339

1 II. DISCUSSION

2

A. Standard for Stay of an Injunction

3

Federal courts have inherent power to stay an injunction

4 pending appeal. See Natural Res. Def. Council, Inc. V. Sw. Marine,

5 Inc., 242 F.3d 1163, 116 9th Cir. 2001). Federal Rule of Civil

6 Procedure 62(c) codifies this principle: “When an appeal is taken

7 from an interlocutory or final judgment granting, dissolving, or

8 denying an injunction, the court in its discretion may suspend,

9 modify, restore, or grant an injunction during the pendency of the

10 appeal. . . .”

11

Here, Defendants’ application for a stay is premature under

12 Rule 62(c), as it is conceded that no appeal is currently pending.

13 (Defs.’ Ex Parte 3) (“Defendants . . . move the Court to stay the

14 injunction pending the Solicitor General’s determination of whether

15 to authorize appeal of the injunction.”) As the Court has granted

16 a permanent injunction, Defendants may seek an interlocutory appeal

17 under 28 U.S.C. § 1292(a)(1), which grants us jurisdiction over

18 “[i]nterlocutory orders of the district courts . . . granting . . .

19 injunctions.” The Court will nevertheless address Defendants’

20 request for a stay on the merits, having the inherent power to

21 grant a stay if appropriate.

22

B. Defendants’ Request for a Stay of the Injunction

23

In considering whether to stay an injunction, a court

24 considers the following factors:

25

(1) whether the stay applicant has made a strong showing that

26

he is likely to succeed on the merits; (2) whether the

27

applicant will be irreparably injured absent a stay; (3)

28

whether issuance of the stay will substantially injure the

4

Case 2:05-cv-03604-DDP-RZ Document 135 Filed 02/05/08 Page 5 of 9 Page ID #:340

1

other parties interested in the proceeding; and (4) where the

2

public interest lies.

3 Hilton v. Brauskill, 481 U.S. 770, 776 (1987). The Ninth Circuit

4 has explained that “even ‘failing’ a strong likelihood of success

5 on the merits, the party seeking a stay may be entitled to prevail

6 if it can demonstrate a ‘substantial case on the merits’ and the

7 second and fourth factors militate in its favor.” NRDC v. Winter,

8 502 F.3d 859, 863 (9th Cir. 2007).

9

1. Likelihood of Success on the Merits

10

The first factor inquires whether the party seeking a stay has

11 made a strong showing of likely success on the merits. Hilton, 481

12 U.S. at 776. The success on the merits factor cannot be rigidly

13 applied, because, if it were, an injunction would seldom be

14 granted. Stop H-3 Ass’n v. Volpe, 353 F. Supp. 2d 14, 16 (D. Haw.

15 1972).

16

In the Order granting the injunction, the Court outlined the

17 reasons for holding that Defendants’ policy on specific consent was

18 inconsistent with the plain language of the statute. Here,

19 Defendants’ recapitulate the arguments addressed by the Court in

20 that Order. The Court finds that these arguments do not set forth

21 a strong showing of likely success for several reasons. Defendants

22 essentially base their argument on a single statement of

23 legislative history, rather than the plain language of the statute.

24 This approach is contrary to a basic principle of statutory

25 interpretation. Additionally, Defendants base their arguments on

26 case law that they have conceded does not address the issue of the

27 scope of the specific consent requirement under the statute.

28

5

Case 2:05-cv-03604-DDP-RZ Document 135 Filed 02/05/08 Page 6 of 9 Page ID #:341

1 Finally, Defendants’ policy is not written in any administrative 2 regulations, and is not entitled to Chevron deference.2

3

Additionally, Defendants argue that the Court’s nationwide

4 class certification interferes with the jurisdiction of other

5 courts, and their ability to adopt conflicting interpretations of

6 the statute. However, the nationwide injunction is limited to

7 requiring that Defendants comply with the plain language of the

8 statute as set forth in the Court’s Order on summary adjudication.

9 It is, therefore, “no broader than necessary to provide complete

10 relief to the named plaintiffs and [class] members. . . .”

11 Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1496 (9th

12 Cir. 1996); see also Califano v. Yamasaki, 442 U.S. 682, 702-03

13 (1979). While the Supreme Court and Ninth Circuit have instructed

14 district courts to “take care” when issuing nationwide injunctive

15 relief, both have recognized that there is no bar to nationwide

16 injunctive relief when it is appropriate. Califano v. Yamasaki,

17 442 U.S. at 702-03; Bresgal v. Brock, 843 F.2d 1163, 1170 (9th Cir.

18 1987). The Court does not find that Defendants have made a strong

19 showing that nationwide injunctive relief was inappropriate in this

20 case, where the statutory language is clear on the specific consent

21 requirement, yet Defendants applied an overbroad policy

22 inconsistent with that language.

23

Thus, Defendants have not made a sufficiently strong showing

24 of likely success on the merits. The Court finds that this factor

25 does not favor granting a stay.

26

27

2 Furthermore, contrary to Defendants’ assertion, the Court in its Order explicitly discussed the express consent provision, and

28

its relationship to the specific consent requirement. (See Order 4 n.3; 33 n.10; 34 n.11; 42.).

6

Case 2:05-cv-03604-DDP-RZ Document 135 Filed 02/05/08 Page 7 of 9 Page ID #:342

1

2. Irreparable Injury

2

The second factor considers whether the party requesting the

3 stay will suffer irreparable injury. Hilton, 481 U.S. at 776.

4 Defendants offer several reasons that the Court’s injunction will

5 cause irreparable injury.

6

First, Defendants assert that the injunction impinges on the

7 jurisdiction of other courts. This alleged injury to third

8 parties, namely the courts, cannot support a showing of irreparable

9 injury to Defendants.

10

Second, Defendants contend that the injunction purportedly

11 takes away from Defendants any control over special immigrant

12 juvenile decisions. To begin with, Congress reasonably designed

13 the specific consent provision to avoid having immigration

14 officials becoming involved in child welfare decisions, which it

15 reserved for state courts. Further, the injunction, unlike

16 Defendants’ suggestion, does not entirely preclude Defendants from

17 any participation in special immigrant juvenile determinations.

18 Defendants are free to submit information to state courts.

19 Finally, Defendants retain control of the ultimate decision whether

20 to expressly consent to SIJ status, and whether to grant SIJ-based

21 adjustment.

22

Defendants further argue that the injunction will strain their

23 resources. For example, Defendants will need to transport

24 juveniles to state court hearings and provide for security. That

25 resources may be expended to comply with a federal statute,

26 however, does not itself demonstrate irreparable injury. Sampson

27 v. Murray, 415 U.S. 61, 90 (1974) (“Mere injuries, however

28 substantial, in terms of money, time, and energy necessarily

7

Case 2:05-cv-03604-DDP-RZ Document 135 Filed 02/05/08 Page 8 of 9 Page ID #:343

1 expended in the absence of a stay, are not enough.” Furthermore,

2 there is little showing that the injunction will interfere with

3 Defendants’ custody or placement determinations.

4

Accordingly, the Court does not consider Defendants to have

5 sufficiently shown irreparable injury. The Court, therefore, does

6 not find this factor to favor a stay.

7

3. Substantial Injury to Plaintiffs / Subclass Members

8

The third factor concerns whether granting a stay will cause

9 substantial harm to the Plaintiffs, or subclass members, in this

10 action. Hilton, 481 U.S. at 776. The Court issued an injunction

11 based on findings of substantial and immediate irreparable injury

12 to immigrant minors and inadequate remedies at law. This clearly

13 outweighs the lacking irreparable harm to Defendants. This factor

14 strongly favors denial of a stay of the injunction.

15

4. Public Interest

16

This factor weighs the public interest and whether it supports

17 granting a stay. Hilton, 481 U.S. at 776. Defendants argue that

18 the public interest favors a stay because the injunction creates an

19 administrative burden and infringes the jurisdiction of other

20 courts. Defendants further argue that the injunction interferes

21 with a coordinate branch’s lawful administration of SIJ benefits.

22 (Def.’s Ex Parte, citing INS v. Legalization Assistance Project of

23 the L.A. County Federation of Labor, 510 U.S. 1301, 1305-06

24 (1993).)

25

Defendants’ lawful administration of SIJ benefits, and federal

26 immigration policy generally, clearly represent significant public

27 interests. However, the Court construes those interests to support

28 denial of a stay. As this Court explained in its Order, Congress

8

Case 2:05-cv-03604-DDP-RZ Document 135 Filed 02/05/08 Page 9 of 9 Page ID #:344

1 created SIJ classification to protect the highly vulnerable group

2 of abused, neglected, and abandoned immigrant youth through a

3 process allowing them to become legal permanent residents. The

4 statute provides that state courts lack jurisdiction to alter an

5 immigrant minor’s custody status or placement without specific

6 consent, but says nothing about limiting a state court’s power to

7 declare an immigrant minor abused, neglected, and abandoned as part

8 of an SIJ-predicate order.

9

Accordingly, on balance, the Court finds that the public

10 interest favors lawful administration of the immigration system in

11 accordance with the Congress’s intent, which will be advanced by

12 Defendants’ compliance with the plain language of the specific

13 consent requirement as articulated in the Court’s Order on summary

14 adjudication. The Court, therefore, finds unavailing the

15 suggestion that an injunction instructing Defendants to follow the

16 law, as articulated by the plain language of the statute,

17 interferes with the lawful administration of SIJ benefits. This

18 factor militates against a stay.

19 III. CONCLUSION

20

For the foregoing reasons, the Court finds that the balance of

21 equities do not favor a stay. The Court, therefore, DENIES

22 Defendants’ application for a stay of the injunction.

23

24 IT IS SO ORDERED.

25

26 Dated: February 5, 2008 27

DEAN D. PREGERSON United States District Judge

28

9

 
 IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

2

WESTERN DIVISION

3 LUIS JAV IER PEREZ-OLA 0. CASA

)

LIB RE YOUTH SHELTER, FREDDY

)

Case o. CV 05 -3604

4 GARRIDO-M ARTINEZ. MA UEL

)

GOMEZ, YA JU Lt. LU IS MIGUEL

)

SETTLEME T AGREEMENT

5 MO RALES, MICHAEL YUBAN OBANDO,

)

MAEJEA ROBINSO , LUC IA UREY,

)

6

)

Plaint i ffs.

)

7

)

)

8 - VS -

)

)

9 ERIC H. HOLDER, JR., United States

)

Attorney General, JA ET APO LITA 0.

)

I0 Secretary of United States Department of

)

Home land Security. and OFF ICE OF

)

II REFUGEE RESETTLEMEt T.

)

)

12

Defendants.

)

13 PREAMBLE
14 Thi s Settlement Agreement (''Agreement") is entered into by all Plaintiffs and
15 Defendants in th is class action lawsuit (collective ly, "the Patties''). Plaintiffs Luis Javier
16 Perez-Olano, Freddy Garrido-Martinez. Manuel Gomez, Yan Jun Li, Luis Miguel Morales,
17 Michael Yuban Obando, Maejean Robinson. and Lucia Urey, are or were juvenile aliens
18 ("juveniles") seeking status and adjustment of status as special immigrant juveniles (''S IJ") under
19 §§ l 0 I(a)(27)(J) and 245 of the Immigration and ationality Act (''INA"), 8 U.S.C.
20 §§ II OI(a)(27)(J) and 1255. Defendants are the Attorney General ofthe United States, the
21 Secretary of Homeland Security, both of whom are being sued in their respective offic ial
22 capac ities. and the Office of Refugee Resettlement ('·ORR"), an agency in the United States
23 Department of Health and Human Services ("H HS").
24 WHEREAS Plaintiffs filed this lawsuit challenging, inter alia. several of Defendants·
25 poli cies. practices, and regu lations regarding S!J status and SIJ-based adjustment of status
26 pursuant to 8 U.S.C. §§ II 0 I(a)(27)(J) and 1255; and
27

28

WHEREAS the District Court certified this case as a class action on behalf of (i)

2 j uven iles whose requests for specific consent to state court j urisdiction Defendant Department of

3 Homeland Security ("·DHS..) denied or fa iled to dec ide prior to the j uven iles' attaining 18 years

4 of age (""S pecific Consent Subc lass..); and (ii) juvenil es whose peti tions fo r SIJ status Defendant

5 DH S deni ed or revoked pursuant to 8 C.F.R. §§ 204.11 (c)( l) or (5), or 205 .1 (a)(3)(iv)(A). (C).

6 or (D) (..Age-Out Subclass''); but dec lined to certify a class on behal f of (i ii) juveniles

7 undergoing removal proceed ings whose appli cations for SIJ-based adj ustment of status

8 Defendant DHS refused to adj udicate pursuant to 8 C.F.R. §§ 245 .2(a)(l) and 1245.2(a)( l)(i).

9 and 8 C.F. R. § 1003.2(c)(2) or 1003.23(b)( l) (..Remova l Proceed ings Subclass..); and

I 0

WHEREAS the District Court enjoined Defendants from requ iri ng that j uven iles in actual

II or constructi ve custody to obtain Defendants' spec ific consent prior to invoki ng the j urisdiction

12 of state juvenile courts except where such co urts determ ine or alter custody status or placement;

13 and

I 4

WH EREAS the District Court uphe ld the fac ia l validity of 8 C.F. R. §§ 204. 1I (c)( I), (5),

15 and 205. 1(a)(3)(iv)(A), (C). or (D), but reserved fo r trial whether De fendants unreasonably

16 delayed the adjudicati on of SIJ applications subject to those regulations; and

17

WHEREAS the District Court sustained the facial validity of8 C.F.R. §§ 2-+5.2(a)( l).

18 12-+5.2(a)( I )(i), I 003 .2(c)(2), and I 003.23(b)( I). but reserved for trial whether Defendants

19 abused their discretion in applying those regulations to juveni les seeking SIJ status inc luding

20 plaintiff Freddy Garrido Martinez; and

21

WH EREAS the Pat1ies have fil ed an appeal and cross-appea l with the Un ited States

22 Court of Appeals for the Ninth Circuit (..Ninth Circuit..), and such appeals remai n pending and

23 their outcome uncet1ain; and

24

WHEREAS a trial in th is case would be compl ex. lengthy and costly to all parties

25 concerned. and the decision of the District Court may be subject to appeal by the los ing Party

26 with the final o utcome uncertain; and

27

28

2

WHEREAS Congress has enacted the Wi lberforce Trafficking Victims Protecti on

2 Reauthorization Act of 2008 ("'TVPRA 2008..), Pub. L. II 0-457, 122 Stat. 5044 (2008). on

3 December 23, 2008, and§ 235(d) of the TVPRA 2008 amended the eligib ility requirements for

4 SIJ status at 8 U.S.C. § II 01(a)(27)(J) and amended the eligibility requirements for adj ustment

5 of status at 8 U.S.C. § 1255(h); and

6

WHEREAS § 235(d) of the TVPRA 2008 (I) transferred the authority over spec ific

7 consent from DHS to HH S; and (2) extended the eligibility for SIJ status to all aliens who were

8 under 2 1 years of age at the time they filed a completed application with USC IS; and

9

WHEREAS HH S, as of March 23, 2009, has assumed full authority over the spec ific

I 0 consent determinations for the purposes of SIJ status under 8 U.S. C. § II 0 I (a)(27)(J). has issued

I I public guidance clarify ing that ·'specific consent'' is only required if an SIJ petitioner seeks a

12 juvenile court order determining or altering his or her custody status or placement, and has

13 established a process for requesting specific consent and reconsideration of den ial s of specific

14 consent; and

15

WHEREAS the Parties have conducted di scussions and arm ' s length negotiations with

16 respect to a compromi se and settlement of thi s case, with a view to settling the issues in dispute

I7 and achieving the most effective relief possible consistent with the interests of the Parties; and

18

WHEREAS the Parties have ( I ) concluded that the terms and cond itions of this

19 Settlement are fair, reasonable, and in the best interests of the Named Plainti ffs and all Class

20 Members; and (2) agreed to the dismissal of the Action with prej udice, and to seek dissoluti on of

2 1 the CoUI1's permanent injunction Order of January 8, 2008, Perez-0/ano v. Gonzalez, 248 F.R. D.

22 248 (C. D. Cal. 2008), after considering the substanti al benefits that the Parties will rece ive from

23 settlement of the Ac tion; and

24

NOW, THEREFORE, in fu ll settlement of this action and in consideration of the

25 promises and undertakings set forth herein and other consideration, the suffi ciency of which is

26 hereby acknowledged, it is hereby AGREED, by and among the parties to thi s Settlement,

27

28

3

through their respective attorneys. subject to the app roval of the Court pursuant to Rule 23(e) of

2 the Federal Rules of Civi l Procedure. in consideration of the benefits fl owing to the Parties

3 hereto from the Settlement. that the claims as against the patties shall be compromised. settled.

4 fo rever released. barred and dismissed with prejudice. upon and subject to the foll ov ing terms

5 and conditions:

6

I. DEF I ITIONS

7

As used throughout th is Settlement the fo llowing defin itions shal l apply:

8

I. ·'Adjustment of status.. refers to adjustment of status of SIJs pursuant to I A § 245(h).

9 8 U.S.C. § 1255(h), as amended by the TVPRA 2008.

10

2. ··Alien.. has the same meaning as that term is defined at INA§ IOI(a)(J). 8 U.S.C.

II § II OI(a)(3).

12

3...Class member.. or ·'c lass members.. app lies to all aliens, inc luding, but not li mited to,

13 SIJ applicants, who, on or after May 13, 2005 , apply or applied for SIJ status or SIJ-based

14 adjustment o f status based upon their alleged SIJ eligibility.

15

4. .. Defendants'· are Eric H. Holder, Jr. , United States Attorney General; Janet

16 apoli tano , Secretary of Homeland Security: and ORR. and their agents, employees. contractors

17 and successors in office.

18

5. ··Dependency order.. means an order issued by a State juvenile coutt located within

19 the United States, declaring a juve nile to be dependent on that juven ile court or legally 20 committing to. or placing the juveni le under the custody of, an agency or department of a State,

2 1 or an individual or entity appointed by a State or juve nile coutt located in the United States.

22

6...Effective date.. is the date upon which the Agreement enters into effect, in

23 accordance with paragraph 36.

24

7...Spec ific consent"" refers to HH S·s consent to permit a juvenile in HH S custody to

25 invoke a State court" s jurisdicti on to determine or alter the custody status or placement of the

26 juvenile. If a juvenile in HH S custody wishes to have a state coutt. not HHS. decide to move

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28

4

him or her out of HH S custody and into a state-funded foster care home or other placement. the

2 juvenile must first receive ··specifi c consent.. fro m HHS to go before the state court. However. if

3 the juvenile wishes to go to state court only to be dec lared dependent in order to make an

4 app li cation for SIJ status(~, rece ive an ··S IJ-pred icate order''). the child does not need HHS'

5 consent.

6

8. ··Ju venile·· (including ·'j uven iles..) means any alien who is eligible to apply fo r a

7 dependency order or SU predicate order in a State co urt as determined by the law of the State in

8 which the alien is domiciled.

9

9. ··Pat1y·· or ·' Parties·· applies to Defendants and Plaintiffs.

I 0

l 0. ··Plaintiff" or ·'Plaintiffs·· applies to the named Plaintiffs and all class members as

II defined herein.

12

II. ·'SlJ app licant'' means any juvenile who appl ies for SIJ status under INA

13 § IOI(a)(27)(J ), 8 U.S.C. § ll0 l (a)(27)(J), or SIJ-based adjustment of status.

14

12. ·'S IJ predicate orders·· means orders issued by a State court, or in the case of

15 admi nistrative proceedings, an admini strative agency, (i) dec laring a juven ile depe ndent on a

16 juveni le court located in the United States or lega lly committing a juvenile to, or placing a

17 juve nile under the custody of, an agency or department of a State, or an individual or entity

18 appointed by a State or juvenile court located in the United States; and (ii) finding that the

19 juvenile's reunification with one or both of the juve nile's parents is not viab le due to abuse,

20 neglect, abandonment, or a similar bas is found under State law; and (iii) determining in

2 1 adm inistrative or judicial proceed ings that it would not be in the juven ile 's best interest to be

22 returned to the juvenile's or the juvenile's parent' s previous country of nat ionality or country of

23 last habitual residence.

24

II. TERMS OF SETTLEME T

25

13. Thi s Agreement sets out natiom ide po licy governing the SIJ application process,

26 including access to State juvenile courts. and shall supersede al l practices. po licies. procedures.

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28

5

and Federal regulations to the extent they are inconsistent with this Agreement. Except as

2 provided herein. th is Agreement shall supersede the nationwide permanent injunction issued by

3 the Un ited States District Court for the Central District of Cali fornia in this case on January 8,

4 2008. once the Court approves thi s Agreeme nt and this Agreement becomes effect ive in

5 accordance with all of the terms of paragraph 36.

6

14. USC IS shall not revoke or rescind an approved SIJ classification or SIJ-based

7 adjustment of status issued pursuant to the injunction of January 8, 2008. Th is paragraph does

8 not limit Defendants' ability to revoke or resc ind SIJ classification or SIJ-based adjustment of

9 status for reasons unrelated to the terms of the injunction of January 8, 2008.

I 0

15. For juveniles in HI-I S custody. obtaining SIJ status and SIJ-based adjustment of

II status may involve three components:

12

(a) The juvenile must obtain HI-I S's specific consent, but only ifthe juven il e seeks a

13

juvenile court order determining or altering the juvenile 's custody status or placement;

14

(b) Thejuveni1e must obtain an SIJ predicate order.

15

(c) Lastly. the juvenile must apply for SIJ status and SIJ-based adjustment of status by

16

filing a Form l-360 and Form 1-485, with appropriate filing fees or a request for a fee

17

waiver in accordance with the Immigration and ationality Act, 8 U.S.C. §§ I I 0 l. et

18

seq.. applicable regulations, and the instructions on the forms.

19

16. For juveniles not in HI-IS custody. obtaining SIJ status and SU-based adjustment of

20 status shall in volve a two-step process.

21

(a) First. the juveni le must obtain an SIJ predicate order.

22

(b) Second, the juve nile must app ly for SIJ status and SIJ-based adjustment of status.

23

17. Defendants shall not require SIJ app licants to obtain specific consent from HHS or

24 any other federal agency or officer before an S IJ applicant may invoke the jurisdiction of a State

25 juvenile court. However. if the SlJ applicant seeks a change in custody status or placement. the

26 SIJ applicant must obtain spec ific consent from HI-IS, through the Director of ORR ("the

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6

Director..) be fore a State juvenile court may determine or aIter the j uveni I~· s custody status or

2 placement. 1 othing herein shall prec lude a state court from issuing SIJ predicate orders prior to

3 HH S's granting specific consent to the State court' s exercising jurisdiction to change custody

4 status or placement.

5

18. Within two business days following receipt of a request fo r specific consent, HH S

6 will acknowledge receipt of the request via e-mail. fac simile, or telephone to the j uvenile and/or

7 his or her representati ve.

8

19. In determining whether to grant specifi c consent. the Director shal l comply with the

9 TVPRA 2008 section 235(c)(2). Pub. L. II 0-457.

10

20. The Director shall make efforts to adjudicate requests fo r specific consent within 30

II days of rece ipt. The Director will also make particular efforts to adjudicate requests marked

12 .. URGENT.. when an applicant indicates there are spec ial circumstances requiring expedited

13 processing. If the Director denies the request, he or she wiII transmit to the j uveni le and, if the

14 juvenile is represented, to hi s or her lega l representative the decision in writing, together with the

15 evidence it rel ied on in reaching its decision.

16

21. A juvenile denied specific consent may appeal by filing a petition for adm in istrative

17 review with the Assistant Secretary fo r Children and Fam ilies, postmarked no later than 30 days

18 after rece ipt of the Director's denia l. An app licant may supplement the administrative record

19 with add itional evidence.

20

22. The Ass istant Secretary for Children and Fami lies will consider the admin istrative

2 1 record, inc luding al l evidence provided by the juvenile or the juvenile's lega l representative .

22 Within fifteen business days from the date of rece iving the request, the Ass istan t Secretary wil l

send his or her dec ision on the petition to the juvenile and. if the juvenile is represented, to the

24 juvenile's lega l representati ve. This decision would be a final administrative dec ision.

25

23. Defendant USC!S shall not deny a class member's application for SlJ class ification

26 or SIJ-based adjustment of status on account of age or dependency status. if. at the time the class

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member fi les or filed a complete application for SIJ classitication. he or she was under 2 1 years

2 of age or was the subject of a valid dependency order that was subsequent ly terminated based on

3 age. Defendant USCIS shall not deny a class member's application for SIJ classification or

4 SIJ-based adj ustment of status on account of ine ligibili ty for long-term foste r care as this is no

5 longe r a statutory requi rement.

6

24. Defendant USCIS shall not revoke a class member· s SIJ classification on account of

7 age or dependency status. if, at the time the class member fi les or filed a complete appl ication for

8 such status. he or she was under 2 1 years of age or was the subj ect of a valid dependency order

9 that was subsequently termi nated based on age . Defendant USCIS sha ll not revoke a class

I 0 member· s applicati on for SIJ class ification or SIJ-based adjustment of status on account of

II ineligibility fo r long-term foster care as this is no longer a statutory requirement.

12

25 . Nothing in this Agreement shall be construed to wa ive any obligation or authority

13 USC IS and HH S may have under the APA to promu lgate va lid and effective regulations at a date

14 foll owing the effective date ofthi s Agreement (see paragraph 36).

15

26. Juve niles who fi le applications for SIJ class ification and SIJ-based adjustme nt of

16 status may file along with their applications for adjustment of status Form I-765 (Application for

17 Employment Authorization), with a fee or fee waiver request.

18

27. Defendant USCIS shall, upon req uest and without fee, readjudicate the SIJ

19 applications and , where applicable, SIJ-based adj ustment of status applications of Lucia Urey, A

20 95469 152, Maej ean Robinson, A 95945493. and Freddy Garrido-Martinez, A 77609544, in

2 1 accordance with the standards set out in thi s Agreement and the TVPRA 2008 and shall not deny

22 their app lications for SIJ status or SIJ-based adju stment of status on account of their current

23 ages.

24

28. Upon request, defendant USC IS sha ll re-adjudicate app lications for SIJ status and/or

25 SIJ-based adjustment of status of indi viduals whose applications for such benefits we re denied or

26 revoked on or after May I3. 2005 , for reasons inconsistent with this Agreement or § 235(d)(6) of

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28

8

the TVPRA 2008. Class members who believe they are eligible for readj udicatio n under this

2 paragraph should file a Motion to Reopen with USC lS on Form 1-2908. otice of Appea l or

3 Motion. with the appropriate fee or fee wa iver request in accordance with the filing instructions

4 in the attachment to this Agreement. Readjudication will be with respect to age eligibility, as

5 addressed in paragraphs 23 and 24, and with respect to specific consent. as addressed in

6 paragraphs 15 through 23 . Defendant USC IS shall , -.,vithin 90 days ofthe effective date of this

7 Agreement. post a copy of the notice regard ing thi s paragraph on Defendant USC IS's website

8 and email a copy of the same notice to the USC IS list of non-governmental and

9 community-based organizations.

I 0

29. Defendant ICE shall join motions to reopen removal proceed ings filed by j uven iles

II granted SIJ status when the follow ing cri teria are met: the juveni le (i) requests such joinder

12 within 60 days of being notified by USC IS that it has granted him or her SIJ status; and (ii) is not

13 inadmissibl e under rNA§ 2 12, 8 U.S.C. § 1182, or removabl e under rNA§ 237,8 U.S.C.

14 § 1227. on grounds that disqualify him or her from adjustment of status, or, if inadmi ss ible. such

15 grounds of inadmiss ibility have been waived or are waivable. Such joinder shall be without

16 prejudice to ICE's right to contest any claim advanced by the alien regarding elig ibility for

17 adj ustment of status. USCIS noti ficatio n via U.S. mai l shall estab lish a rebuttable presumption

18 that the juvenile has been in formed of a grant of SIJ status, which may be rebutted by the

19 juvenile or hi s or her representative with ev idence showing that (i) he or she failed to receive

20 such notice or (ii) the fai lure to request such joinder was through no fau lt of the juven ile.

21

30. ICE shall join a motion to reopen remova l proceedings aga in st Plaintiff Freddy

22 Garrido-Mmtinez. ICE's joinder shall be without prejudice to ICE's right to contest any claim

23 advanced by Plaintiff Freddy Garrido-Martinez or his eligibility for SIJ-based adjustment of

24 status.

25

3 1. In the event that immigration judges term inate the remova l proceedings for Plainti ff

26 Freddy Garrido-Mart inez, USCIS shall. upon request and without fee. adjudicate his 1-485

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9

adjustment of status application.

2

VII. STATISTICS AI 0 PUBLIC LIA ISOt S

3

32. Defendant. USC IS wil l compi le. and make available to the pub lic via the Internet.

4 annual reports disclos ing the number of Form I-360s, Petitions for Amerasia n. Widow(er) or

5 Spec ial Immigrant, seeking SIJ status received. approved. and denied during the year, and the

6 number pending at the end of the year. USCIS shall al so provide notice to Plaintiffs' counse l that

7 the reports have been disseminated to the public as prov ided above.

8

33. Within 30 days of the effective date of this Agreement, Defendants shall designate

9 po ints of contact ("·POC'") within USCIS . ICE. and HHS to respond to inquiries from j uveniles

I0 and the ir counsel regarding compliance with this Agreement. Defendants shall instruct such

II POCs to pro vide compla inants with contact information for existing offices. e.g.. Offic e of Civi l

12 Rights and Civi l Libetties, with authority over noncompliance with thi s Agreement or vio lati ons

13 of SIJ practices, poli cies, or procedures. Defendants sha ll also prov ide notice to Pla in tiffs'

14 counse l that the POCs have been appointed as prov ided above.

15

VIII. DISPOSITIO OF CLASS ACTIO t . DISSOL UTIO

OF INJUNCTIO . A D SUNSET CLAUSE

16

34. Upon the District Courf s approva l of thi s Agreement, the Parties wi ll. within ten

17

calendar days jointly move to dismiss thi s action, with prejudice, and dissolve the nationwide

18

permanent injunction entered by the Di strict Court; and (ii) withdraw their respective appeals

19

from the District Co urt's January 8, 2008 order that are before the inth Circuit.

20

35. Plaintiffs ' Counsel and Defendants· Counse l agree to cooperate fully with one

21

another in seeking Court approval of the Agreement and to promptly agree upon and execute all

22

such other documentation as may be reasonably required to obtain final approval by the Co urt of

23

the Settlement.

24

36. The Effective Date of this Agreement shall be the date when the last of the following

25

three conditions has been sati sfi ed:

26

(a) approval by the Cowt of thi s Agreement;

27

28

10

(b) entry by the Cou11 of an order dissolving the nationwide permanent injunction entered

2

by the District Court on January 8. 2008. and dismissing this action wi th prejudice: and

3

(c) withdrawa l of both Parties· appea ls that are pending before the inth Circuit.

4

37. On the Effective Date. the Named Plainti ffs. the Class, and the Class Members. on

5 behalf of themse lves, their heirs, executors. admini strators, representatives, attorneys.

6 successors. assigns. agents, affil iates, and partners, and any persons they represe nt ("'Re leasing

7 Parties..). shall be deemed to have, and by operation of the Final Judgment shall to the extent

8 prov ided herei n. full y, finally. and forever release. relinqu ish, and discharge the Released Parties

9 of and from any and all the Settled Claims. and the Re leasing Parties shall forever be barred and

I0 enjoined from bringing or prosecuting any of the Settled Claims aga inst any of the Releasing

II Parties.

12

38. Thi s Agreement, whether or not executed, and any proceedings taken pursuant to it:

13

a. Shall not be offe red or rece ived against any party as evidence of. or construed as

14

or deemed to be evidence of. any presumption, concession, or admission by any

15

ofthe palties of the truth in any fact or the validity of any cla im that had been or

16

could have been asserted in the action or in any litigation, or the defic iency of any

17

defense that has been or could have been asselted in the acti on. or any liabil ity.

18

negligence, fa ult, or wrongdo ing of the Defendants: or any admission by the

19

De fendants of any violations of or failure to comply with, the Constitution. laws

20

or regulations; and

21

b. Shall not be offe red or rece ived against the Defendants as ev idence of a

22

presumption, concession, or adm ission of any li ab il ity. negligence, fault,

23

wrongdoing, or in any way referred to fo r any other reason as aga inst the parties

24

to this Agreement, in any other civil. criminal, or adm inistrative action or

25

proceeding, other than in proceed ings to enfo rce this Agreement: provided,

26

however, that if th is Agreement is approved by the Court, De fe ndants may refer

27

28

ll

to it and rely upon it to effectuate the liab ility protection granted them hereunder.

2

39. The Agreement shall be deemed null and void if the Court does not appro ve the

3 Agreement.

4

40. This Agreement shall be superseded by subsequent statutory amendments regardi ng

5 specific consent. or age requi rements for SIJ status or SlJ-based adjustment of status.

6

41 . This Settlement Agreement and all of its terms shall end six years fol lovving the

7 effecti ve date of this Agreement ("Te rmination Date'').

8

IX. NOTICE A D DISPUTE RESOLUTI01'

9

42. Al l written commun ications required by this Agreement shal l be transm itted by U.S.

l0 mail and electronic mail (''e-mail'') to the undersigned counsel for Defendants and Plaintiffs at

II the addresses listed below. All counsel shal l be in formed promptly in the event that any

12 substitution is to be made in counsel or representatives designated to receive notification under

13 this Agreement, and the name and co ntact info rmation for substitute counse l or des ignated

14 representative shall be promptly provided.

15

43. In the event of al leged noncompliance with this Agreement, on an ind ividual or

16 class-wide basis, Defendants and the complaining class member(s) shall exchange written

17 correspondence addressing the alleged noncompliance ("Notice ofNoncompliance"). The

18 responding party shall send a written response within a reasonab le period of time (not to exceed

19 seven days) . Within thirty days of rece ipt of otice of 1 oncompliance, counsel for the Parties 20 shall meet and confer in a good faith effort to reso lve their dispute in formal ly. In the event that

2 1 the dispute cannot be resolved, the Parties shall request the appointment of a Circuit Mediator for

22 the inth Circuit to mediate the dispute. If the inth Circuit Mediator is not avai lab le to med iate

23 the dispute. the Parties shall request that Magistrate Judge Zarefsky; or a Magistrate Judge from

24 the United States Court for the Central District of Cali fo rnia, who is des ignated by Judge Dean

25 D. Pregerson; or, if Judge Dean D. Pregerson declines to des ignate a Magistrate Judge, the

26 Pa11ies sha ll request that a Magistrate Judge from the United States District Cow1 fo r the Centra l

27

28

12

District of California. who is mutually agreeable to the Parties. be appointed to med iate the

2 dispute. If the di spute cannot be reso lved through mediation. the complain ing class member(s)

3 may move to enforce the Agreement on a class-wide basis in the Central District of Cal ifornia, or

4 on an indi vidual basis before the Ce ntral Di strict of Ca li fornia . Once a juvenile in itiates th is

5 alternate dispute reso lution ('·ADR..) process, the remova l action sha ll be stayed and he or she

6 shall not be removed from the United States unl ess and until the matter has been resolved in

7 favor of Defendants. The parties fu rther agree to exped ite the ADR process. i.e.. complete ADR

8 within 21 days absent unforeseeable ci rcumstances or emergency situations. evertheless, the

9 parties shal l promptly exhaust the administrative procedures provided herein before any

10 defendant or class member(s) may seekjud icial review by the Central District of California.

II

The otice ofNoncomp liance sha ll be served on Plaintiffs addressed to:

12

Center for Human Rights & Constituti onal Law

Peter A. Schey

13

Carlos Holguin

256 South Occidental Bouleva rd

14

Los Angeles, CA 90057

pschey@centerfo rh umanrights.o rg

15

c rho lguin @ centerforhumanrigiHs.o rg

16

And Defendants addressed to :

17

Me lissa Leibman

David Kline

18

Joshua E. Braunste in

Office of Immigration Litigation

19

Civil Division

U.S. Department of Justi ce

20

P.O. Box 868, Ben Franklin Station

Washington, DC 20044

21

Me lissa.Leibman @usdoj .gov

Joshua. Braunste in@usdoj .gov

22

Dav id.Kiine@usdoJ.gov

23

X. OTICE TO CLASS MEMBERS

24

4-l. The Parties acknowledge that Rule 23(e) of the Federal Rules of Civil Procedure

25 requires that the Court direct notice to the Specific Consent Subclass and Age-Out Subclass and

26 that it approve thi s Agreement before the claims of the certified subc lasses may be dismissed

27

28

13

II

with prej udice pursuant to this Agreement.

2

45. Within 30 days after the patties sign thi s Agreement. the Parties will j ointly move the

3 Court to approve and direct notice to the subclasses. schedule a fairne ss hearing. and approve the

4 Agreement.

5

46. Within 45 days of the Coutt approva l and direction of t otice. Defendants shall

6 inform the public about the existence of this Agreement via the Defendants · webs ites. The

7 patties shall pursue such other public dissemination of in formation regardi ng this Agree ment as

8 they may independently deem appropriate.

9

47. Within 30 days of the Effective date of thi s Agreement, Defendants shall distribute to

I0 ORR facilities receiving federal funds to provide shelter and services to juveniles detained by

II reason of their immigration status. all US CIS field offices and subo ffices. and all ICE field office

12 directors and special agents in charge, copies of this Settlement Agreement. If De fe ndants

13 forward to their offices, employees, or agents any memorandum or instructions to implement this

14 agreement, they will within two business days forward copies to Plaintiffs' counsel.

15

48. Within 30 days of the Effective date of this Agreement. Defendants shall provide at

16 any faci li ty funded by DHS or HHS for the purpose of prov iding care for juveniles (i) a list of 17 free legal services avai lab le and (ii) notice that abused. abandoned, or neglected juveniles may

18 apply for SIJ status, including the information set forth in Exhibit A attached.

19

XI. ATTO R1 EYS " FEES A D COSTS

20

49. Plaintiffs may attempt to negotiate, request, seek, or so licit attorney"s fee s and/or

21 litigation costs in this action pursuant to the Equa l Access to Justice Act, 28 U. S.C. § 24 12, or 22 any other prov ision independent of this Agreement upon execution of the same. Any application 23 for fees and/or costs shall be filed no later than 30 days after the District Court approves this 24 settlement agreement. 1 otw ithstandi ng Plaintiffs· efforts to procure EAJA fees and/or costs,

25 Defendants do not relinquish or waive any right or opportunity to challenge, oppose, or defend ,

26 in whole or in part. against Plaintiffs· effott s to obtain such fees and/or costs.

27

28

14

II

XII. ADMISSIO OF LI ABILI TY

2

50. This Agreement does not constitute and shall not be construed or viewed as an

3 adm ission of any wrongdoing or liabi lity by any Party.

4

XIII. MOD IFICATION OF AG REEM ENT

5

51. This Agreement constitutes the entire agreement among the Patties as to a ll claims

6 raised by Plaintiffs in this action. and supersedes all prior agreements, representations.

7 warranties. statements, promises. covenants, and understandings, whether oral or written. exp ress

8 or implied. with respect to the subject matter thereof.

9

52. Thi s Agreement is an integrated agreement at the time of authorization and

I0 modification and may not be altered. amended. or mod ified except in writing executed by

I I Plaintiffs and Defendants.

12

53 . If, prior to the Termination Date. Defendants USCIS and HHS issue regulations

13 implementing the TVPRA 2008, the Parties agree to meet and confer about the possibi lity of

14 terminating this Agreement prior to the Termination Date. However, the termination claust:

15 remains in fu ll force and effect unless the parties reach a written agreement that provides for

16 early term ination this Agreement.

17

XIV. MUTUA L EXC LUS IVITY OF PROVISIONS

18

54. If any provision of this Agreement is declared inva lid. illegal, or unenforceable in

19 any respect. the remaining provisions shall remain in full force and effect, unaffected and

20 unimpaired.

21

XV. MULTIPLE COUNTE RPARTS

22

55 . This Agreement may be executed in a number of identica l counterparts. al l of which

23 shall constitute one agreement, and such exec ution may be evidenced by signatures delivered by

24 facs imile transm iss ion.

25

26

27

28

15

XV I. TITLES At D HI:.ADlNGS

2

56. Titles and headings to Articles and Sections here in are insct1ed for convenience and

3 reference only and are not intended to be part of. or to affect the meaning or inte rpretation of.

4 this Agreement.

5

XY II.REPRESENTATIONS A D WARRANTY

6

57. Counse l for the Parties. on behalf of themselves and their clients. represent that they

7 know of nothing in this Agreement that exceeds the lega l authority of the Parties or is in

8 violation of any law. Defendants' cou nsel represent and warrant that they are fu lly authorized 9 and empowered to enter into this Settlement on behalf of the Secretary of Home land Security.

I0 the Secretary of the Department of Health and Human Services, the Attorney General. and the

11 Un ited States Depat1ment of Justice. and acknowledge that Plaintiffs enter into this Agreement

12 in reliance on such representation. Plaintiffs' counse l represent and warra nt that they are full y

13 authorized and empowered to enter into this Agreement on behalf of Plaintiffs, and acknowledge 14 that Defendants enter into thi s Agreement in rel iance on such representation. The undersigned.

15 by their signatures on behalf of Plaintiffs and Defendants. warrant that upon execution of thi s

16 Agreement in their representative capac ities, their principals, agents, assignees, employees.

17 successors, and those working for or on behalf of Defendants and Pla intiffs sha ll be fully and

18 unequivocally bound hereunder to the full extent authorized by law.

19

20

21 II

22

23

24

25 II

26

27

28

16

Date:

2 By: j"' 4 5 6 7

~l>- -

Peter A. Schey

·--\;
\

Center for Human Rights & Constit ~ttional Law

256 South Occidental Boulevard

Los Angeles. CA 90057

(2 13) 388-8693

Counsel for Plaintiffs

8
Date:
9

10

i 1

12

13
14 Counsel for Defendants
15

16

17

18

19

20

21

22
_?'_',

24 '_"r)

26

27

28

17

 
 U.S. Citizenship and Immigration Services Office of the Director (MS 2000) Washington, DC 20529-2000

June 25, 2015
Policy Memorandum

PM-602-0117

SUBJECT: Updated Implementation of the Special Immigrant Juvenile Perez-Olano Settlement Agreement

Purpose The purpose of this policy memorandum (PM) is to update the guidance previously provided to U.S. Citizenship and Immigration Services (USCIS) personnel in PM-602-0034: Implementation of the Special Immigrant Juvenile Perez-Olano Settlement Agreement, in light of the recent agreement entered into between USCIS and the plaintiffs in Perez-Olano v. Holder, No. CV 05-3604 (C.D. Cal.), which took effect on March 27, 2015.
Scope Unless specifically exempted herein, this PM applies to and is binding on all USCIS employees.
Authorities  Immigration and Nationality Act (INA) section 101(a)(27)(J), 8 U.S.C.§1101(a)(27)(J)  INA § 245(h), 8 U.S.C. § 1255(h), as amended by Trafficking Victims Protection Reauthorization Act of 2008 (Trafficking Victims Protection Reauthorization Act of 2008 [TVPRA 2008]), Public Law No. 110-457, 122 State. 5044 (2008), section 235(d); 8 CFR 204.11, 205.1(a)(3)(iv) and 245.1(e)(3)  Memorandum, “Trafficking Victims Protection Reauthorization Act of 2008: Special Immigrant Juvenile Status Provisions,” HQOPS 70/8.5, March 24, 2009  Perez-Olano, et al. v. Holder, et al. Case No. CV 05-3604 (C.D. Cal. 2005)

Background Certain juveniles who have been abused, abandoned, or neglected may request a special immigrant classification known as Special Immigrant Juvenile (SIJ) status in order to remain legally in the United States. Aliens granted SIJ classification are immediately eligible to apply for lawful permanent resident status if a visa is available in the EB-4 category.
Perez-Olano v. Holder is a class-action lawsuit filed on behalf of juvenile aliens who may have been eligible for SIJ classification or SIJ-based adjustment of status because they were abused,

Updated Implementation of the Special Immigrant Juvenile Perez-Olano Settlement Agreement Page 2
abandoned, or neglected. The underlying Perez-Olano Settlement Agreement (“Settlement Agreement”) took effect December 14, 2010, and expires December 13, 2016. The underlying Settlement Agreement includes age-related protections and clarifies the circumstances under which petitioners in the custody of the U.S. Department of Health and Human Services (HHS) must obtain HHS specific consent. Pursuant to the underlying Settlement Agreement, USCIS will not deny or revoke an SIJ petition solely because of any one of the following reasons:
 The applicant, who was under 21 years of age at the time of filing, turned 21 years of age after filing the SIJ petition, but before adjudication;
 The applicant’s juvenile court order, which was valid and in effect at the time of filing the SIJ petition, was terminated based on age after filing the SIJ petition but before adjudication; or
 The applicant did not receive a grant of HHS specific consent before going before the juvenile court and the court order did not alter the applicant’s HHS custody status or placement.
On July 21, 2014, class members filed a motion for class-wide enforcement of the Settlement Agreement. USCIS and plaintiffs entered into a Stipulation settling the plaintiffs’ motion for class-wide enforcement of the Settlement Agreement. The Stipulation relates to cases in which petitions for SIJ classification or SIJ-based applications for adjustment of status were denied because the applicant’s court dependency order had expired at the time of filing. Under the Stipulation, USCIS will not deny or revoke an SIJ petition if the applicant’s valid juvenile court order was terminated based solely on age prior to filing the Form I-360. Previously, USCIS only applied this protection if the juvenile court order was terminated based on age after filing the Form I-360, but prior to adjudication. The Stipulation took effect on March 27, 2015, and expires on June 15, 2018.
The underlying Settlement Agreement defines class members as all juveniles, “including, but not limited to, SIJ applicants, who, on or after May 13, 2005, apply or applied for SIJ status or SIJ-based adjustment of status based upon their alleged SIJ eligibility.” Settlement Agreement at ¶ 3. Additionally, the Settlement Agreement explains that juveniles whose applications for SIJ classification or SIJ-based adjustment of status were denied or revoked since May 13, 2005, may be eligible to file a motion to reopen. Juveniles are those who are “eligible to apply for a dependency order or SIJ predicate order in a State court as determined by the law of the State in which the alien is domiciled.” Settlement Agreement at ¶ 8. The class-specific standard for eligibility to file motions to reopen, particularly with regard to timeliness, is distinct from the general standards for eligibility to file motions to reopen under 8 CFR 103.5.
The Stipulation allows class members whose applications for SIJ classification or SIJ-based adjustment of status were denied, revoked, or terminated on or after December 15, 2010, to request that USCIS reopen their petitions and/or applications without an additional fee if the denial was based, in whole or in part, on the ground that class members’ valid dependency orders had been terminated based, in whole or in part, on age prior to filing the Form I-360 with USCIS. Stipulation at ¶¶ 2, 5. The standard for eligibility to file motions to reopen pursuant to the

Updated Implementation of the Special Immigrant Juvenile Perez-Olano Settlement Agreement Page 3
Stipulation, particularly with regard to timeliness, is likewise distinct from the general standards for eligibility to file motions to reopen under 8 CFR 103.5.
Policy
In accordance with the Settlement Agreement and Stipulation, USCIS will not deny, revoke, or terminate a class member’s application for SIJ classification or SIJ-based adjustment of status if, at the time of filing an application for SIJ classification (Form I-360):
1. The class member is or was under 21 years of age, unmarried, and otherwise eligible; and
2. The class member either is the subject of a valid dependency order or was the subject of a valid dependency order that was terminated based on age prior to filing.
In addition, to comply with the Settlement Agreement and Stipulation, this guidance applies to all SIJ petitions and SIJ-based applications for adjustment of status that are filed while the Settlement Agreement and Stipulation are in effect.
In other words, an applicant who is otherwise eligible will remain eligible even if he or she:
 Turns 21 years of age after filing the SIJ petition (Form I-360) but prior to the USCIS decision on the SIJ petition, and/or
 Ages out of the juvenile court’s jurisdiction prior to filing the SIJ petition (Form I-360).
Filing Instructions for Class Members Filing Motions to Reopen under the Settlement Agreement
Filing Requirements
Class members filing a motion to reopen under the Settlement Agreement will file Form I-290B, Notice of Appeal or Motion, with the appropriate fee or with the Form I-912, Request for Fee Waiver, if desired, at: U.S. Postal Service (USPS) or Courier/Express (non-USPS) Deliveries.

USPS USCIS P.O. Box 5510 Chicago, IL 60680-5510

non-USPS
USCIS Attn: Perez-Olano Settlement Agreement or “POSA” 131 S. Dearborn – 3rd Floor Chicago, IL 60603-5517

When filing a From I-290B, class members are instructed to:

 Check “box F” in “Part 2,” Information about the Appeal or Motion; and

 Write “Perez-Olano Settlement Agreement” or “POSA” in Part 3, Basis for the Appeal or Motion.

Updated Implementation of the Special Immigrant Juvenile Perez-Olano Settlement Agreement Page 4
These specific Settlement Agreement filing instructions are posted on the landing page of the Form I-290B at www.uscis.gov.
The Lockbox will forward the Forms I-290B to the National Benefits Center (NBC) for standard pre-processing. The NBC will then route the Form I-290B and the underlying Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, and, if applicable, the Form I-485, Application to Register Permanent Residence or Adjust Status, to the appropriate field office for adjudication, along with an appropriate cover sheet identifying it as a Settlement Agreement case. It is the responsibility of the NBC to forward the A-file to the proper field office if the juvenile has moved jurisdictions.
Adjudication
The field office that denied the underlying Form I-360 and, if applicable, the Form I-485, has jurisdiction over each motion to reopen filed under the Settlement Agreement, as stated in 8 CFR 103.5(a)(1)(ii). If the applicant has moved to the geographical jurisdiction of a different field office, that field office assumes jurisdiction.
USCIS will grant the motion to reopen if the case meets all three prongs of the following test:
1. The applicant filed a complete Form I-360 for SIJ classification before his or her 21st birthday.
2. At the time of filing the Form I-360, the applicant was the subject of a valid order(s) issued by a state juvenile court within the United States that:
 Made a finding of abuse, abandonment, or neglect, or a similar basis found under state law (see Juvenile Court Orders below for more information).
 Determined that it would not be in the applicant’s best interest to be returned to the applicant’s or parent’s previous country of nationality or country of last habitual residence.
 Did one of the following:
o Declared the applicant dependent on the court;
o Legally committed the applicant to or placed the applicant under the custody of a state agency or department; or
o Placed the applicant under the custody of an individual or entity.
3. The Form I-360 was denied or revoked on or after May 13, 2005, solely because of one of the three following reasons:

Updated Implementation of the Special Immigrant Juvenile Perez-Olano Settlement Agreement Page 5
 The applicant, who was under 21 years of age at the time of filing, turned 21 years of age after filing the Form I-360 but before adjudication of the Form I-360 or Form I-485 (age-out);
 The applicant’s dependency order as defined by ¶ 5 of the Settlement Agreement, which was valid and in effect at the time of filing the Form I-360, was terminated based on age after filing the Form I-360 but before adjudication of the Form I-360 or Form I-485 (dependency age-out); or
 The applicant did not receive a grant of specific consent before invoking the jurisdiction of the state juvenile court and the juvenile court order did not determine or alter the applicant’s custody status or placement. As a reminder, specific consent from HHS (and, before December 23, 2008, U.S. Immigration and Customs Enforcement) is needed only if the applicant was in Federal custody at the time the juvenile court issued the order and the juvenile court order altered or determined custody status or placement. (Such an order is more than a restatement of current placement; USCIS only requires evidence of HHS consent if the order changes the applicant’s placement.)
If the motion to reopen is granted, USCIS will adjudicate the Form I-360 in accordance with INA § 101(a)(27)(J), as amended by the TVPRA 2008, and in accordance with the Settlement Agreement.
Denials of a motion to reopen and of a reopened Form I-360 can be appealed to the Administrative Appeals Office. 8 CFR 103.5(a)(6).
Filing Instructions for Certain Class Members Requesting Reopening Under the Stipulation
Filing Requirements
Class members, or counsel acting on their behalf, have until June 15, 2018, to advise USCIS by written correspondence that they request their cases be reopened in accordance with the Stipulation. Class members or their counsel must send the request via email or mail to USCIS at:
 SIJ.ClassAction@uscis.dhs.gov, or
 USCIS Field Operations Directorate Attn: Perez-Olano Settlement 111 Massachusetts Avenue,NW Suite 2000, MS: 2030 Washington, DC 20529
Class members’ motions to reopen filed pursuant to the Stipulation must be emailed or mailed (and post-marked) on or before June 15, 2018. No fee is required.

Updated Implementation of the Special Immigrant Juvenile Perez-Olano Settlement Agreement Page 6
The request must contain the following information:
 The applicant’s name.
 The applicant’s address.
 A Change of Address, Form AR-11, if applicable.
 USCIS alien “A” number or file number (if known):
o Date of birth, place of birth, and any other personal identity information (if USCIS “A” number or file number is not known).
 Statement saying, “Please reopen my SIJ case based on the Perez-Olano Settlement Agreement.”
 A Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28), if applicable.
Adjudication
USCIS will reopen if the case meets the following criteria:
 The SIJ petition (Form I-360) or SIJ-based application for adjustment of status (Form I-485) was denied, revoked, or terminated on or after December 15, 2010, on the ground, in whole or in part, that the class member’s valid dependency order had been terminated, in whole or in part, based on age prior to filing Form I-360 with USCIS; and
 The class member was under 21 years of age and unmarried at the time the petition for SIJ status (Form I-360) was filed.
Upon reopening, USCIS will approve those petitions for SIJ classification or applications for SIJ-based adjustment of status that are approvable on the basis of the existing administrative record. If a decision on a reopened petition for SIJ status or SIJ-based adjustment of status application cannot be made on the existing record, USCIS will issue a request for evidence or a notice of intent to deny. The applicant shall thereafter be permitted 180 days to provide USCIS such additional evidence or response to the notice of intent to deny.
In cases that qualify for reopening, USCIS will re-adjudicate applications for SIJ classification and SIJ-based adjustment of status for class members under the Stipulation, without additional fee, in accordance with the Stipulation as discussed herein, and all applicable laws and regulations. Except for criminal activity that would disqualify an applicant for adjustment of status, USCIS will apply the facts, law, and regulations in existence at the time USCIS initially denied, revoked, or terminated the class member’s petition for SIJ classification. USCIS will make good faith efforts to promptly re-adjudicate such reopened petitions for SIJ classification over later-filed petitions for SIJ classification or SIJ-based adjustment of status applications.

Updated Implementation of the Special Immigrant Juvenile Perez-Olano Settlement Agreement Page 7
Juvenile Court Orders Before enactment of the TVPRA 2008, INA § 101(a)(27)(J) required SIJ applicants to have been deemed eligible by a juvenile court for long-term foster care due to abuse, neglect, or abandonment. USCIS will not deny or revoke an SIJ petition or SIJ-based adjustment application on account of ineligibility for long-term foster care, as this is no longer a statutory requirement. But where a class member files a motion to reopen and the juvenile court order submitted in support of the original Form I-360 contains the outdated statutory language of eligibility for long-term foster care, adjudicators do not need to request an updated juvenile court order. Some motions to reopen will be from applicants who, due to their age, will no longer be able to invoke the jurisdiction of the juvenile court to obtain an updated order. In those cases, adjudicators can rely on the original juvenile court order to establish the current statutory requirement of non-viability of reunification with one or both parents due to abuse, neglect, or abandonment, or a similar basis found under State law.
Statistics Under the Settlement Agreement, USCIS must compile, and make available to the public via Internet posting, annual reports disclosing the number of SIJ-based Forms I-360 received, approved, and denied. The number should include the filing and adjudication of Forms I-360 under the Settlement Agreement, as well as regularly filed SIJ-based Forms I-360. Therefore, USCIS must ensure that all decisions are properly entered into the Interim Case Management System.
Implementation This PM is effective as of June 25, 2015. Any USCIS personnel handling these Settlement Agreement and Stipulation cases will apply the guidance in this PM.
Use This PM is intended solely for the guidance of USCIS personnel in performing their duties under the Settlement Agreement and Stipulation as they relate to adjudication of Forms I-290B, I-360, and I-485. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner.
Contact Information Questions or suggestions regarding this PM should be addressed through appropriate channels to the Headquarters Field Operations Directorate, Special Adjudications Branch, at SIJ.ClassAction@uscis.dhs.gov.

 
 9/18/2017

CM/ECF - California Central District

(RZx),CLOSED,DISCOVERY

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA (Western Division - Los Angeles)
CIVIL DOCKET FOR CASE #: 2:05-cv-03604-DDP-RZ

Luis Javier Perez-Olano v. Alberto Gonzalez et al Assigned to: Judge Dean D. Pregerson Referred to: Magistrate Judge Ralph Zarefsky Case in other court: 9TH CCA, 08-55580 Cause: 08:1252(a)(2) Injunction for Deportation
Plaintiff
Luis Javier Perez-Olano

Date Filed: 05/13/2005 Date Terminated: 12/15/2010 Jury Demand: None Nature of Suit: 460 Deportation Jurisdiction: U.S. Government Defendant
represented by Carlos Holguin Center for Human Rights and Constitutional Law 256 South Occidental Boulevard Los Angeles, CA 90057 213-388-8693 Fax: 213-386-9484 Email: crholguin@centerforhumanrights.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Diego Jose Cartagena Los Angeles Center for Law and Justice 1241 South Soto Street, Suite 102 Los Angeles, CA 90023 323-980-3500 Email: diego@laclj.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary Scott Slossberg Los Angeles Center For Law and Justice 1241 S Soto Street Suite 102 Los Angeles, CA 90023 323-980-3500 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judy London Public Counsel 610 South Ardmore Avenue Los Angeles, CA 90005 213-385-2977 Fax: 213-385-9089 Email: jlondon@publiccounsel.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kristen M Jackson

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Public Counsel 610 South Ardmore Avenue Los Angeles, CA 90005 213-385-2977 x 157 Fax: 213-385-9089 Email: kjackson@publiccounsel.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marchela Iahdjian Center for Human Rights and Constitutional Law 256 South Occidental Boulevard Los Angeles, CA 90057 213-388-8693 Fax: 213-386-9484 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle Lynn Carey Center for Human Rights and Constitutional Law 256 South Occidental Boulevard Los Angeles, CA 91203 213-388-8693 Email: michellelynncarey@hotmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter A Schey Center for Human Rights and Constitutional Law 256 South Occidental Boulevard Los Angeles, CA 90057 213-388-8693 Fax: 213-386-9484 Email: pschey@centerforhumanrights.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Angela Viramontes Federal Public Defenders Ofﬁce 3801 University Avenue Suite 700 Riverside, CA 92501 951-276-6346 Fax: 951-276-6368 Email: Angela_Viramontes@fd.org TERMINATED: 08/18/2017

Plaintiff

Manuel Gomez

represented by Carlos Holguin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Gary Scott Slossberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judy London (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kristen M Jackson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marchela Iahdjian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter A Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Angela Viramontes (See above for address) TERMINATED: 08/18/2017

Plaintiff Michael Yuban Obando

Diego Jose Cartagena (See above for address) ATTORNEY TO BE NOTICED
represented by Carlos Holguin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary Scott Slossberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judy London (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?938308434085887-L_1_0-1

Kristen M Jackson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
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Plaintiff Casa Libre Youth Shelter

Marchela Iahdjian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter A Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Angela Viramontes (See above for address) TERMINATED: 08/18/2017
Diego Jose Cartagena (See above for address) ATTORNEY TO BE NOTICED
represented by Gary Scott Slossberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Judy London (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristen M Jackson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marchela Iahdjian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Angela Viramontes (See above for address) TERMINATED: 08/18/2017
Carlos Holguin (See above for address) ATTORNEY TO BE NOTICED
Diego Jose Cartagena (See above for address) ATTORNEY TO BE NOTICED
Peter A Schey

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Plaintiff Freddy Garrido-Martinez

CM/ECF - California Central District
(See above for address) ATTORNEY TO BE NOTICED
represented by Gary Scott Slossberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judy London (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kristen M Jackson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marchela Iahdjian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Angela Viramontes (See above for address) TERMINATED: 08/18/2017

Carlos Holguin (See above for address) ATTORNEY TO BE NOTICED

Diego Jose Cartagena (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Yan Jun Li

Peter A Schey (See above for address) ATTORNEY TO BE NOTICED
represented by Gary Scott Slossberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judy London (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?938308434085887-L_1_0-1

Kristen M Jackson (See above for address) LEAD ATTORNEY
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CM/ECF - California Central DLisEtricAt D ATTORNEY ATTORNEY TO BE NOTICED

Marchela Iahdjian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Angela Viramontes (See above for address) TERMINATED: 08/18/2017

Carlos Holguin (See above for address) ATTORNEY TO BE NOTICED

Diego Jose Cartagena (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Luis Miguel Morales

Peter A Schey (See above for address) ATTORNEY TO BE NOTICED
represented by Gary Scott Slossberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judy London (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kristen M Jackson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marchela Iahdjian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Angela Viramontes (See above for address) TERMINATED: 08/18/2017

Carlos Holguin (See above for address) ATTORNEY TO BE NOTICED

https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?938308434085887-L_1_0-1

Diego Jose Cartagena (See above for address)
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ATTORNEY TO BE NOTICED

Plaintiff Maejean Robinson

Peter A Schey (See above for address) ATTORNEY TO BE NOTICED
represented by Gary Scott Slossberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judy London (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kristen M Jackson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marchela Iahdjian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Angela Viramontes (See above for address) TERMINATED: 08/18/2017

Carlos Holguin (See above for address) ATTORNEY TO BE NOTICED

Diego Jose Cartagena (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Lucia Urey

Peter A Schey (See above for address) ATTORNEY TO BE NOTICED
represented by Gary Scott Slossberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judy London (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Kristen M Jackson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marchela Iahdjian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Angela Viramontes (See above for address) TERMINATED: 08/18/2017

Carlos Holguin (See above for address) ATTORNEY TO BE NOTICED

Diego Jose Cartagena (See above for address) ATTORNEY TO BE NOTICED

Plaintiff D. S. R.-O

Peter A Schey (See above for address) ATTORNEY TO BE NOTICED
represented by Anthony Vale Pepper Hamilton LLP 3000 Two Logan Square 18th and Arch Streets Philadelphia, PA 19103-2799 215-981-4000 Fax: 215-981-4750 Email: valea@pepperlaw.com PRO HAC VICE ATTORNEY TO BE NOTICED

Jessica A Rickabaugh Pepper Hamilton LLP 3000 Two Logan Square 18 and Arch Streets Philadelphia, PA 19103 215-981-4308 Fax: 215-981-4750 Email: rickabaj@pepperlaw.com PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?938308434085887-L_1_0-1

Pamela S Palmer Pepper Hamilton LLP Two California Plaza 350 South Grand Avenue Suite 3400 Los Angeles, CA 90071-3427
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Plaintiff V. G. R.-A
Plaintiff A. D. M.-L
Plaintiff J.E. L-M

CM/ECF - California Central District
213-928-9814 Fax: 213-928-9850 Email: palmerp@pepperlaw.com ATTORNEY TO BE NOTICED
represented by Anthony Vale (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica A Rickabaugh (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Pamela S Palmer (See above for address) ATTORNEY TO BE NOTICED
represented by Anthony Vale (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica A Rickabaugh (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Pamela S Palmer (See above for address) ATTORNEY TO BE NOTICED
represented by Pamela S Palmer (See above for address) ATTORNEY TO BE NOTICED

V. Petitioner J. E. L.-M

represented by Anthony Vale (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica A Rickabaugh (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

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Pamela S Palmer (See above for address) ATTORNEY TO BE NOTICED

V. Intervenor Plaintiff Roberto De Lima TERMINATED: 11/12/2009
Intervenor Plaintiff Jose De Lima TERMINATED: 11/12/2009

represented by Evelyn H Cruz Arizona State University Immigration Law and Policy Clinic PO Box 877906 Phoenix, AZ 85287-7906 480-727-9272 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carlos Holguin (See above for address) ATTORNEY TO BE NOTICED
Diego Jose Cartagena (See above for address) ATTORNEY TO BE NOTICED
Peter A Schey (See above for address) ATTORNEY TO BE NOTICED
represented by Evelyn H Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Michael B Mukasey Attorney General Substituted for Alberto Gonzales
https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?938308434085887-L_1_0-1

represented by Brian Christopher Ward US Department of Justice PO Box 868 Ben Franklin Station Washington, DC 20044 202-616-9121 Fax: 202-305-7000 Email: brian.c.ward@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
David E Pinchas SAUSA - Ofﬁce of US Attorney Civil Division 300 North Los Angeles Street Suite 7516 Los Angeles, CA 90012 213-894-2920
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CM/ECF - California Central D2is1tri3ct-894-2920
Fax: 213-894-7819 Email: usacac.civil@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melissa S Leibman US Department of Justice Ofﬁce of Immigration Litigation Ben Franklin Station PO Box 868 Washington, DC 20044 202-305-7016 Fax: 202-305-7000 Email: Melissa.Leibman@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

P Michael Truman United States Department of Justic Ben Franklin Station PO Box 878 Washington, DC 20044 202-616-9345 TERMINATED: 11/16/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Saul Greenstein PO Box 878 Ben Franklin Station Washington, DC 20044 TERMINATED: 01/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Zoe Heller United States Department of Justice Ben Franklin Station PO Box 878 Washington, DC 20044 202-305-7057 Email: zoe.heller@usdoj.gov TERMINATED: 01/03/2008 LEAD ATTORNEY

https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?938308434085887-L_1_0-1

Jennifer A Bowen US Department of Justice Ofﬁce of Immigration Litigation Ben Franklin Station PO Box 868 Washington, DC 20044 202-616-3558 Fax: 202-305-7000 Email: jennifer.bowen@usdoj.gov
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TERMINATED: 01/07/2015

Defendant
Robert S Mueller Director Federal Bureau of Investigation TERMINATED: 04/05/2006

Victor M Lawrence Ofﬁce of U.S. Immigration Litigation Civil Division U.S. Department of Justice P.O. Box 878, Ben Franklin Station Washington, DC 20044 202-305-8788 Fax: 202-305-7000 Email: victor.lawrence@usdoj.gov TERMINATED: 06/13/2017
represented by David E Pinchas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Saul Greenstein (See above for address) TERMINATED: 01/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer A Bowen (See above for address) TERMINATED: 01/07/2015

Defendant
Michael Chertoff Secretary of Homeland Security

Victor M Lawrence (See above for address) TERMINATED: 06/13/2017
represented by Brian Christopher Ward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David E Pinchas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melissa S Leibman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

P Michael Truman (See above for address) TERMINATED: 11/16/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Defendant Ofﬁce of Refugee Resettlement

CM/ECF - California Central District
Saul Greenstein (See above for address) TERMINATED: 01/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zoe Heller (See above for address) TERMINATED: 01/03/2008 LEAD ATTORNEY
Jennifer A Bowen (See above for address) TERMINATED: 01/07/2015
Victor M Lawrence (See above for address) TERMINATED: 06/13/2017
represented by Brian Christopher Ward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melissa S Leibman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
P Michael Truman (See above for address) TERMINATED: 11/16/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zoe Heller (See above for address) TERMINATED: 01/03/2008 LEAD ATTORNEY
David E Pinchas (See above for address) ATTORNEY TO BE NOTICED
Jennifer A Bowen (See above for address) TERMINATED: 01/07/2015
Saul Greenstein (See above for address) TERMINATED: 01/22/2008 ATTORNEY TO BE NOTICED

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CM/ECF - California Central District
Victor M Lawrence (See above for address) TERMINATED: 06/13/2017

V. Intervenor Defendant Michael Chertoff Secretary of the United States Department of Homeland Security
Amicus First Star
Amicus Children's Advocacy Institute

represented by David E Pinchas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melissa S Leibman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Saul Greenstein (See above for address) TERMINATED: 01/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zoe Heller (See above for address) TERMINATED: 01/03/2008 LEAD ATTORNEY
Victor M Lawrence (See above for address) TERMINATED: 06/13/2017
represented by Kristen M Jackson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ragini Shah Suffolk Law School Immigration Clinic 120 Tremont Street, Suite 190 Boston, MA 02108 617-305-1651 Email: rnshah@suffolk.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kristen M Jackson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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CM/ECF - California Central District
Ragini Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/13/2005 05/13/2005 05/13/2005 05/13/2005 05/13/2005 05/16/2005 05/16/2005 07/07/2005
08/05/2005 10/07/2005 10/07/2005
10/24/2005 10/25/2005 10/25/2005 10/26/2005

# Docket Text
1 COMPLAINT against Defendants Alberto Gonzalez, Robert S Mueller, Michael Chertoff. (Filing fee $ 250 paid), ﬁled by plaintiff Luis Javier Perez-Olano.(jp, ) (Entered: 05/19/2005)
60 DAY Summons Issued re Complaint - (Discovery) 1 as to Defendants Alberto Gonzalez, Robert S Mueller, Michael Chertoff. (jp, ) (Entered: 05/19/2005)
2 CERTIFICATION AND NOTICE of Interested Parties ﬁled by Plaintiff Luis Javier Perez-Olano. (jp, ) (Entered: 05/19/2005)
3 APPLICATION for Temporary Restraining Order ﬁled by plaintiff Luis Javier PerezOlano. Lodged Temporary Restraining Order. (jp, ) (Entered: 05/19/2005)
4 NOTICE OF FILING OF EXHIBIT in support of APPLICATION for Temporary Restraining Order 3 ﬁled by Plaintiff Luis Javier Perez-Olano. (jp, ) (Entered: 05/19/2005)
5 Notice of Withdrawal of APPLICATION for Temporary Restraining Order 3 ﬁled by plaintiff, Luis Javier Perez-Olano. (sv) (Entered: 05/24/2005)
PLACED IN FILE - NOT USED re proposed temporary restraining order submitted by plaintiff Luis Javier Perez-Olano. (bp, ) (Entered: 05/24/2005)
6 STIPULATION Re Extension not Time To Respond to Complaint. Alberto Gonzalez answer due 8/11/2005; Robert S Mueller answer due 8/11/2005; Michael Chertoff answer due 8/11/2005. ﬁled by Plaintiff Luis Javier Perez-Olano and Defendnats Alberto Gonzalez; Robert S Mueller; Michael Chertoff. (dw, ) (Entered: 07/11/2005)
7 STIPULATION Re Extension of Time to Respond to Complaint ﬁled by Plaintiff Luis Javier Perez-Olano; and Defendants Alberto Gonzalez; Robert S Mueller; Michael Chertoff. Defendants Extension to 10/9/05. (dw, ) (Entered: 08/09/2005)
8 NOTICE of Interested Parties ﬁled by Defendants Alberto Gonzalez, Robert S Mueller, Michael Chertoff. (dw, ) (Entered: 10/12/2005)
9 NOTICE OF MOTION AND MOTION to Dismiss Case; Memorandum of points and authorities; Declarations of Michele Obrien and David Pinchas; ﬁled by defendants. Motion set for hearing on 10/31/2005 at 10:00 AM before Honorable Dean D. Pregerson. (mg, ) (Entered: 10/14/2005)
11 REPLY to Non-Opposition to Motion to Dismiss 9 ﬁled by Defendants Alberto Gonzalez, Robert S Mueller, Michael Chertoff. (ir, ) (Entered: 10/26/2005)
12 FIRST AMENDED COMPLAINT against Defendants Alberto Gonzalez, Robert S Mueller, Michael Chertoff amending Complaint - (Discovery) 1 ,ﬁled by Plaintiff Luis Javier Perez-Olano (dw, ) (Entered: 10/26/2005)
16 SUBMISSION Regarding MOTION to Dismiss 9 ﬁled by plaintiffs Luis Javier PerezOlano, Manuel Gomez, Michael Yuban Obando. (ca, ) (Entered: 10/28/2005)
10 MINUTES OF IN CHAMBERS ORDER by Judge Dean D. Pregerson :COUNSEL ARE

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10/26/2005
10/26/2005 10/26/2005 10/27/2005 10/27/2005 11/04/2005 11/07/2005 11/09/2005 12/27/2005 01/03/2006 01/13/2006
01/20/2006

CM/ECF - California Central District
NOTIFIED that on the Court's own motion the MOTION TO DISMISS (FILED ON 1007-05) set for October 31, 2005 at 10:00 a.m., is hereby VACATED and deemed MOOT.Court Reporter: none. (jc, ) (Entered: 10/26/2005)
13 NOTICE OF DOCUMENT DISCREPANCIES AND ORDER by Judge Dean D. Pregerson ORDERING First amended complaint, notice of ﬁling corrected amended complaint submitted by Plaintiff Luis Javier Perez-Olano received on 10/26/05 to be ﬁled and processed; ﬁled date to be the date the document was stamped Received but not Filed with the Clerk.(shb, ) (Entered: 10/27/2005)
14 Plaintiff's NOTICE of Filing of Corrected Amended Complaint ﬁled by Plaintiffs Luis Javier Perez-Olano. (shb, ) (Entered: 10/27/2005)
15 CORRECTED FIRST AMENDED COMPLAINT against Defendants Alberto Gonzalez, Robert S Mueller, Michael Chertoff correcting Amended Complaint 12 ,ﬁled by Plaintiffs Manuel Gomez, Michael Yuban Obando, Luis Javier Perez-Olano (shb, ) (Entered: 10/28/2005)
PLACED IN FILE - NOT USED re (Proposed) Order re Filing of COrrected First Amended Complaint submitted by Plaintiffs Luis Javier Perez-Olano, Manuel Gomez, Michael Yuban Obando. (shb, ) (Entered: 10/28/2005)
PLACED IN FILE - NOT USED re Application for order permitting ﬁling of corrected ﬁrst amended complaint submitted by Plaintiffs Luis Javier Perez-Olano, Manuel Gomez, Michael Yuban Obando. (shb, ) (Entered: 10/28/2005)
17 NOTICE OF MOTION AND MOTION For Class Certiﬁcation; Supporting Memorandum of Ponits and Authorities ﬁled by Plaintiffs Luis Javier Perez-Olano, Manuel Gomez, Michael Yuban Obando. Motion set for hearing on 12/19/2005 at 10:00 AM (dw, ) (Entered: 11/08/2005)
18 MINUTES OF (IN CHAMBERS) by Judge Dean D. Pregerson: COUNSEL ARE NOTIFIED that on the Court's own motion the MOTION FOR CLASS CERTIFICATION (FILED ON 11/4/05) is hereby continued to 1/9/06 at 10:00am. RE: MOTION to Certify Class 17 Court Reporter: None Present. (dw, ) (Entered: 11/08/2005)
19 NOTICE OF MOTION AND RENEWED MOTION to Dismiss ﬁled by Defendant Alberto Gonzalez, Robert S Mueller and Michael Chertoff. Motion set for hearing on 1/9/2006 at 10:00 AM before Honorable Dean D. Pregerson. (yl, ) (Entered: 11/17/2005)
20 NOTICE of Appearance ﬁled by attorney Saul Greenstein on behalf of Defendants Alberto Gonzalez, Robert S Mueller, Michael Chertoff. (Saul Greenstein will be sharing representation of the defendants with Assistant US Attorney David Pinchas) (dw, ) (Entered: 12/27/2005)
21 STIPULATION To Continue Motions to Dismiss and For Class Certiﬁcation; ORDER Thereon by Judge Dean D. Pregerson: IT IS SO ORDERED: Motions continued to 2/6/06 at 10:00am. re MOTION to Dismiss 19 , MOTION to Certify Class 17 MOTION to Dismiss 19 , (dw, ) (Entered: 01/04/2006)
22 NOTICE OF MOTION AND MOTION to Amend Complaint and Add Parties; Supporting Memorandum of Points and Authorities 1 Complaint - (Discovery) ﬁled by Plaintiffs Luis Javier Perez-Olano, Michael Yuban Obando. Motion set for hearing on 2/6/2006 at 10:00 AM before Judge Dean D. Pregerson. Lodged Second Amended Complaint. (dw, ) (Entered: 01/20/2006)
23 EX PARTE APPLICATION For Order Continuing Hearing on Plaintiffs' Motion to Amend Complaint and Add Parties; 2) Points and Authorities; and 3) Declarations of Saul

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Greenstein and Leon Weidman ﬁled by Defendants Alberto Gonzalez, Robert S Mueller, Michael Chertoff. Lodged Proposed Order. (dw, ) (Entered: 01/23/2006)

01/23/2006

25 OPPOSITION to Motion to Dismiss 19 ﬁled by Plaintiffs Luis Javier Perez-Olano, Manuel Gomez, Michael Yuban Obando. (ir, ) (Entered: 02/01/2006)

01/23/2006

27 OPPOSITION to Plaintiff's MOTION for Class Certiﬁcation 17 ﬁled by Defendants Alberto Gonzalez, Robert S Mueller. (dw, ) (Entered: 02/02/2006)

01/24/2006

28 OPPOSITION to EX PARTE APPLICATION to Continue Motion to Amend Complaint and Add Parties 23 ﬁled by Plaintiffs Luis Javier Perez-Olano, Manuel Gomez, Michael Yuban Obando. (dw, ) (Entered: 02/02/2006)

01/25/2006

26 REPLY to Opposition to EX PARTE APPLICATION For Order Continuing Hearing on Plaintiffs' Motion to Amend Complaint and Add Parties 23 ﬁled by Defendants Alberto Gonzalez, Robert S Mueller, Michael Chertoff. (dw, ) (Entered: 02/01/2006)

01/26/2006

24 MINUTES OF IN CHAMBERS ORDER by Judge Dean D. Pregerson :, RE: MOTION to Dismiss 19 , MOTION to Certify Class 17 and MOTION to Dismiss 19 ,COUNSEL ARE NOTIFIED that on the Court's own motion the MOTION FOR CLASS CERTIFICATION (FILED ON 11-04-05) and the RENEWED MOTION TO DISMISS (FILED ON 11-09-05) are hereby continued from February 6, 2006 to March 13, 2006 at 10:00 a.m. Court Reporter: none. (jc, ) (Entered: 01/26/2006)

01/27/2006

29 ORDER Granting Defendants' Ex Parte Application for Order Continuing Hearing on Plaintiffs' Motion to Amend Complaint and Add Parties by Judge Dean D. Pregerson: IT IS ORDERED that the hearing of Plaintiffs' Motion to Amend Complaint and Add Parties is continued to 3/6/06 at 10:00am. re EX PARTE APPLICATION to Continue to 30 Day Extension 23 (dw, ) (Entered: 02/06/2006)

02/21/2006

30 DEFENDANTS' OPPOSITION TO PLAINTIFFS' (THIRD) MOTION to Amend Complaint and Add Parties re MOTION to Amend/Correct 1 Complaint - (Discovery) 22 ﬁled by Defendants Alberto Gonzalez, Robert S Mueller, Michael Chertoff. (dw, ) (Entered: 02/27/2006)

02/27/2006

31 EX PARTE APPLICATION for Leave to ﬁle brief in excess of 25 pages ﬁled by plaintiffs Luis Javier Perez-Olano, Manuel Gomez, Michael Yuban Obando. Lodged proposed order. (bp, ) (Entered: 03/03/2006)

02/28/2006

32 TABLE OF AUTHORITIES to Reply to Opposition to Motion to Amend Complaint and Add Parties re MOTION to Amend/Correct 1 Complaint - (Discovery) 22 ﬁled by Plaintiffs Luis Javier Perez-Olano, Manuel Gomez, Michael Yuban Obando. (dw, ) (Entered: 03/03/2006)

03/01/2006

35 ORDER by Judge Dean D. Pregerson Granting Leave to ﬁle brief in excess of 25 pages 31 (jp, ) (Entered: 03/09/2006)

03/01/2006

36 REPLY to Opposition to MOTION to Amend Complaint and Add Parties 22 ﬁled by plaintiffs Luis Javier Perez-Olano, Manuel Gomez, Michael Yuban Obando. (jp, ) (Entered: 03/09/2006)

03/06/2006

33 MINUTES OF IN CHAMBERS ORDER by Judge Dean D. Pregerson :, RE: MOTION to Dismiss 19 , MOTION to Certify Class 17 COUNSEL ARE NOTIFIED that on the Court's own motion the MOTION FOR CLASS CERTIFICATION (FILED ON 11-0405) and RENEWED MOTION TO DISMISS (FILED ON 11-09-05) set for March 13, 2006 at 10:00 a.m., is hereby VACATED.Court Reporter: none. (jc, ) (Entered: 03/06/2006)

03/06/2006 34 MINUTES OF Motion Hearing held before Judge Dean D. Pregerson :, RE: MOTION to

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Amend/Correct 1 Complaint 22 MINUTES OF Motion Hearing held before Judge Dean D. Pregerson: Court hears oral argument and takes the matter under submission. Court Reporter: Maria Bustillos. (jc,) (Entered: 03/06/2006)

03/08/2006

38 SUBMISSION RE: Filing of Class Certiﬁcation Reply and First Set of Exhibits re 17 ﬁled by plaintiffs Luis Javier Perez-Olano, Manuel Gomez, Michael Yuban Obando. (jp, ) (Entered: 03/17/2006)

03/08/2006

39 REPLY to Opposition to MOTION for Class Certiﬁcation 17 ﬁled by plaintiffs Luis Javier Perez-Olano, Manuel Gomez, Michael Yuban Obando. (jp, ) (Entered: 03/17/2006)

03/08/2006

40 NOTICE OF FILING of Plaintiffs First Set of Exhibits ﬁled by plaintiffs Luis Javier Perez-Olano, Manuel Gomez, Michael Yuban Obando. (jp, ) (Entered: 03/17/2006)

03/16/2006

37 ORDER Granting Motion to Amend by Judge Dean D. Pregerson: For the foregoing reasons the Court grants the motion to amend in part and denies the motion in part. Plaintiffs have leave to ﬁle a Third Amended Complaint within 20 days of the date of this order. Defendants have 60 days from the ﬁling of the amended complaint to ﬁle a responsive pleading. re MOTION to Amend/Correct 1 Complaint - (Discovery) 22 (dw, ) (Entered: 03/17/2006)

03/16/2006

PLACED IN FILE - NOT USED re SECOND AMENDED COMPLAINT for Injunctive Manadamus and Declaratory Relief submitted by Plaintiffs Luis Javier Perez-Olano, Manuel Gomez, Michael Yuban Obando. (dw, ) (Entered: 03/22/2006)

04/05/2006

41 THIRD AMENDED COMPLAINT for Injunctive Mandamus and Declaratory Relief against Defendants Ofﬁce of Refugee Resettlement, Alberto Gonzalez, Michael Chertoff; Party Robert S Mueller terminated amending First Corrected Complaint 15 ,ﬁled by Plaintiffs Casa Libre Youth Shelter, Freddy Garrido-Martinez, Yan Jun Li, Luis Miguel Morales, Maejean Robinson, Lucia Urey, Luis Javier Perez-Olano, Manuel Gomez, Michael Yuban Obando (dw, ) (Entered: 04/07/2006)

05/25/2006

42 STIPULATION to File Oversize Brief; ORDER by Judge Dean D. Pregerson: Pursuant to stipulation IT IS SO ORDERED. Defendants are granted leave to ﬁle its oversized brief, Defendants' Motion to Dismiss(dw, ) (Entered: 05/31/2006)

06/02/2006

43 DEFENDANTS' MOTION to Dismiss Plaintiffs' Third Amended Complaint ﬁled by Defendants Ofﬁce of Refugee Resettlement, Alberto Gonzalez, Michael Chertoff. Motion set for hearing on 6/26/2006 at 10:00 AM before Judge Dean D. Pregerson. (dw, ) (Entered: 06/09/2006)

06/02/2006

44 NOTICE of Motion to Dismiss Plaintiffs' Third Amended Complaint re MOTION to Dismiss Plaintiffs' Third Amended Complaint 43 ﬁled by Defendants Ofﬁce of Refugee Resettlement, Alberto Gonzalez, Michael Chertoff. (dw, ) (Entered: 06/09/2006)

06/12/2006

45 OPPOSITION to MOTION to Dismiss Plaintiffs' Third Amended Complaint 43 ﬁled by Plaintiffs Casa Libre Youth Shelter, Freddy Garrido-Martinez, Yan Jun Li, Luis Miguel Morales, Maejean Robinson, Lucia Urey, Luis Javier Perez-Olano, Manuel Gomez, Michael Yuban Obando. (klg, ) (Entered: 06/16/2006)

06/19/2006

47 DEFENDANTS' REPLY to Plaintiffs' Opposition to Defendants' Motion to Dismiss Third Amended Complaint Re: MOTION to Dismiss Plaintiffs' Third Amended Complaint 43 ﬁled by Defendants Ofﬁce of Refugee Resettlement, Alberto Gonzalez, Michael Chertoff. (dw, ) (Entered: 06/27/2006)

06/26/2006

46 MINUTES OF Motion Hearing held before Judge Dean D. Pregerson :, RE: MOTION to Dismiss Plaintiffs' Third Amended Complaint 43 MINUTES OF Motion Hearing held before Judge Dean D. Pregerson: Court hears oral argument and takes the matter under submission. Court Reporter: Maria Bustillos. (jc, ) (Entered: 06/26/2006)

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06/30/2006 07/31/2006
08/15/2006 08/16/2006
09/13/2006
09/25/2006 11/13/2006 11/15/2006 01/03/2007 01/08/2007 01/09/2007
01/26/2007 02/08/2007

CM/ECF - California Central District
48 DECLARATION of of Counsel re MOTION to Dismiss Plaintiffs' Third Amended Complaint 43 ﬁled by Plaintiffs Casa Libre Youth Shelter, Freddy Garrido-Martinez, Yan Jun Li, Luis Miguel Morales, Maejean Robinson, Lucia Urey, Luis Javier Perez-Olano, Manuel Gomez, Michael Yuban Obando, Michael Chertoff. (dw, ) (Entered: 07/03/2006)
49 ORDER Denying in Part and Granting in Part Motion to Dismiss by Judge Dean D. Pregerson: Court grants the motion to dismiss cliams 1(c) 1(d) 1(e) and 3 without prejudice. Court denies the motion to dismiss as it pertains to all other claims. Plaintiffs have 30 days from the date of this order to ﬁle an fourth amended complaint. re MOTION to Dismiss Plaintiffs' Third Amended Complaint 43 (dw, ) (Entered: 08/01/2006)
51 REQUEST der for Clariﬁcation of Order denying in part and granting in part defendants motion to dismiss plaintiff third amended complaint ﬁled by defendants Ofﬁce of Refugee Resettlement, Alberto Gonzalez, Michael Chertoff. (jp) (Entered: 08/25/2006)
50 AMENDED ORDER by Judge Dean D. Pregerson grants in part and denies in part the defendants motion to Dismiss 43 . Court grants the motion to dismiss claims 1(c), 1(d) and 3 without prejudice and dismisses claim 1(e) with prejudice. Court denies the motion to dismiss as it pertains to all other claims. Plaintiffs have thirty (30) days from the date of this order to ﬁle an fourth amended complaint.(ir, ) (Entered: 08/17/2006)
52 FOURTH AMENDED COMPLAINT against Defendants Alberto Gonzalez, Michael Chertoff, Ofﬁce of Refugee Resettlement, amending Third Amended Complaint 41 ﬁled by Plaintiffs Casa Libre Youth Shelter, Freddy Garrido-Martinez, Yan Jun Li, Luis Miguel Morales, Maejean Robinson, Lucia Urey, Luis Javier Perez-Olano, Manuel Gomez, Michael Yuban Obando (ir, ) (Entered: 09/14/2006)
53 STIPULATION AND ORDER by Judge Dean D. Pregerson: Defendants are granted leave to ﬁle their responses to Plaintiffs Fourth Amended Complaint on or before 11/13/2006.(ir, ) (Entered: 09/26/2006)
54 ANSWER to Fourth Amended Complaint 52 ﬁled by Defendants.(ir, ) (Entered: 11/17/2006)
55 JOINT REPORT Rule 26(f) Discovery Plan ﬁled; estimated length of trial 10 days. (et) (Entered: 11/22/2006)
PLACED IN FILE - NOT USED re STIPULATION to continue hearing on plaintif-ininterventions motion to intervene submitted by defendants Ofﬁce of Refugee Resettlement, Alberto Gonzalez, Michael Chertoff. (et, ) (Entered: 01/18/2007)
57 NOTICE of Appearance ﬁled by attorney P Michael Truman on behalf of Defendants Ofﬁce of Refugee Resettlement, Alberto Gonzalez, Michael Chertoff (ir, ) (Entered: 01/16/2007)
56 PROOF OF SERVICE Executed by Plaintiffs addressed to Saul Greenstein Ofﬁce of Immigrationi Litigation in Washington; Carlos Holguin Center of Human Rights and Constitutional Law, David Pinchas served on 12/15/2006, answer due 2/13/2007. The Motion to proceed in forma pauperis, Complaint in intervention were served by US Mail, ﬁrst class postage, by Federal statute. Original Summons not returned. (ir, ) (Entered: 01/12/2007)
PLACED IN FILE - NOT USED re Stipulation to continue hearing on plaintiff-inintervention's motion to intervene submitted by Defendants Ofﬁce of Refugee Resettlement, Alberto Gonzalez, Michael Chertoff. (shb, ) (Entered: 01/29/2007)
PLACED IN FILE - NOT USED submitted by Plaintiff in Intervention Roberto De Lima. (shb, ) (Entered: 02/13/2007)

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58 STIPULATION TO HOLD DEFENDANTS' ANSWER IN ABEYANCE PENDING THE COURT'S DECISION ON MOTION TO INTERVENE AND ORDER by Judge Dean D. Pregerson: Pursuant to the stipulation, IT IS SO ORDERED, Defendants' answer to Plaintiff-in Intervention's Complaint is held in abeyance pending the Court's decision on Plaintiff in Intervention's Motion to Inervene. Defendant's andswer to plaintiff-in intervention's complaint will not be due util 30 days after the court's decision on the motion to intervene.(shb, ) (Entered: 02/09/2007)

03/07/2007

59 NOTICE of Interested Parties ﬁled by Intervenor Plaintiff Roberto De Lima. (ir, ) (Entered: 03/08/2007)

03/07/2007

FAX number for Attorney Evelyn H Cruz is 480-727-9046. (ir, ) (Entered: 03/08/2007)

03/07/2007

61 NOTICE OF MOTION AND MOTION for Intervene as of right and Permissive intervention; Supporting Memorandum of Points and Authorities ﬁled by intervenor plaintiff Roberto De Lima. Motion set for hearing on 4/9/2007 at 10:00 AM before Judge Dean D. Pregerson. (jp) (Entered: 03/23/2007)

03/14/2007

60 EX PARTE APPLICATION to Shorten Time for Hearing to 3/19/07 ﬁled by Plaintiffs Casa Libre Youth Shelter, Freddy Garrido-Martinez, Yan Jun Li, Luis Miguel Morales, Maejean Robinson, Lucia Urey, Roberto De Lima, Luis Javier Perez-Olano, Manuel Gomez, Michael Yuban Obando. Lodged proposed order; proposed motion; proposed application for TRO and order. (shb, ) (Entered: 03/15/2007)

03/14/2007

69 NOTICE OF MOTION AND MOTION to Add Party; Supporting Memorandum of Points and Authorities; ﬁled by Plaintiffs. Motion set for hearing on 3/19/2007 at 10:00 AM before Judge Dean D. Pregerson. (mg, ) (Entered: 04/06/2007)

03/14/2007

70 APPLICATION for Temporary Restraining Order Order to Show Cause ﬁled by Plaintiffs. Application set for hearing on 3/19/2007 at 10:00 AM before Judge Dean D. Pregerson. (mg, ) (Entered: 04/06/2007)

03/14/2007 71 PLAINTIFFS' SECOND SET OF EXHIBITS (mg, ) (Entered: 04/06/2007)

03/15/2007

64 ORDER by Judge Dean D. Pregerson that Plaintiffs Ex Parte Application to Shorten Time for Hearing on the Motion to add Rosa Diaz Godinez as a party plaintiff 60 is GRANTED. Court will hear plaintiffs motion to add party on 3/19/07 at 10::00. (ir, ) (Entered: 03/30/2007)

03/16/2007

67 OPPOSITION to Plaintiffs' APPLICATION for Temporary Restraining Order 3 ﬁled by Defendants (mg, ) (Entered: 04/03/2007)

03/19/2007

66 PLAINTIFFS THIRD SET OF EXHIBITS [Exhibits 19-20] ﬁled by Plaintiffs Casa Libre Youth Shelter, Freddy Garrido-Martinez, Yan Jun Li, Luis Miguel Morales, Maejean Robinson, Lucia Urey, Luis Javier Perez-Olano, Manuel Gomez, Michael Yuban Obando. (jp) (Entered: 04/03/2007)

03/19/2007

68 NOTICE OF FILING DECLARATION of Saul Greenstein in Opposition to APPLICATION for Temporary Restraining Order 3 ﬁled by Defendants Alberto Gonzalez, Michael Chertoff, Robert Mueller. (mg, ) (Entered: 04/03/2007)

03/19/2007

72 MINUTES of Motion Hearing held before Judge Dean D. Pregerson: Proceedings: Temporary Restraining Order to Show Cause Re: Preliminary Injunction 70 ﬁled 3/14/07; MOTION to Add Party 69 ﬁled 3/14/07. Court hears oral argument and takes the matters under submission. Court Reporter: Maria Bustillos. (mg, ) (Entered: 04/06/2007)

03/26/2007

62 PLAINTIFFS' STATUS REPORT RE APPLICATION FOR TEMPORARY RESTRAINING ORDRE ANDMOTION TO ADD PARTY ﬁled by Plaintiffs Casa Libre Youth Shelter, Freddy Garrido-Martinez, Yan Jun Li, Luis Miguel Morales, Maejean

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Robinson, Lucia Urey, Luis Javier Perez-Olano, Manuel Gomez, Michael Yuban Obando, Intervenor Plaintiff Roberto De Lima. (shb, ) (Entered: 03/28/2007)

03/26/2007

63 STATEMENT of NON OPPOSITION TO MOTION to Intervene n 61 ﬁled by Plaintiffs Casa Libre Youth Shelter, Freddy Garrido-Martinez, Yan Jun Li, Luis Miguel Morales, Maejean Robinson, Lucia Urey, Roberto De Lima, Luis Javier Perez-Olano, Manuel Gomez, Michael Yuban Obando. (shb, ) (Entered: 03/28/2007)

03/26/2007

73 OPPOSITION to Roberto Jose De Lima's MOTION to Intervene 61 ﬁled by Defendants (mg, ) (Entered: 04/06/2007)

03/30/2007

74 RESPONSE to Plaintiff Status Report regarding APPLICATION for Temporary Restraining Order 70 , and MOTION to Add Party 69 ﬁled by Defendants Ofﬁce of Refugee Resettlement, Alberto Gonzalez, Michael Chertoff. (jp) (Entered: 04/21/2007)

04/02/2007

65 MINUTES (IN CHAMBERS ORDER) held before Judge Dean D. Pregerson: On the Court's own motion, the MOTION to Intervention, by Roberto De Lima, as of Right and Permissive Intervention 61 , is hereby continued from 4/9/07 to 4/30/2007 at 10:00 AM before Judge Dean D. Pregerson.Court Reporter: None Present. (mg, ) (Entered: 04/02/2007)

04/30/2007

75 ORDER by Judge Dean D. Pregerson Setting Scheduling Conference for 6/4/2007 at 04:00 PM (mg, ) (Entered: 05/02/2007)

04/30/2007

76 ORDER by Judge Dean D. Pregerson Denying APPLICATION for Temporary Restraining Order 70 , and MOTION to Add Ms. Diaz as a Party 69 . (mg, ) (Entered: 05/03/2007)

04/30/2007

77 ORDER by Judge Dean D. Pregerson GRANTING MOTION to Intervene by Roberto Jose de Lima 61 . (mg, ) (Entered: 05/03/2007)

04/30/2007

78 MINUTES OF Motion Hearing held before Judge Dean D. Pregerson :, RE: MOTION to Intervene MOTION for Order for intervention MOTION for Order for intervention 61 . Court hears oral argument and takes the matter under submission. Court Reporter: Maria Bustillos. (jd, ) (Entered: 05/17/2007)

05/21/2007

85 JOINT REPORT Pursuant to Rule 26(f) Discovery Plan; estimated length of trial 10 days, ﬁled by Plaintiffs Casa Libre Youth Shelter, Freddy Garrido-Martinez, Yan Jun Li, Luis Miguel Morales, Maejean Robinson, Lucia Urey, Luis Javier Perez-Olano, Manuel Gomez, Michael Yuban Obando, Intervenor Plaintiff Roberto De Lima. (ca) (Entered: 06/07/2007)

05/29/2007

80 ANSWER to Intervenor Complaint of Roberto De Lima 79 ﬁled by Defendant-inintervention Michael Chertoff.(mg) (Entered: 06/06/2007)

05/30/2007

82 NOTICE OF RENEWED MOTION AND RENEWED MOTION for Class Certiﬁcation; Supporting Memorandum of Points and Authorities; ﬁled by Plaintiffs.Motion set for hearing on 7/9/2007 at 10:00 AM before Judge Dean D. Pregerson. (mg) (Entered: 06/07/2007)

05/30/2007 83 PLAINTFFS' FOURTH SET OF EXHIBITS (mg) (Entered: 06/07/2007)

06/04/2007

79 INTERVENOR COMPLAINT against Defendant-in-Intervention Michael Chertoff ﬁled by plaintiff-in-intervention Roberto De Lima.(mg) (Entered: 06/06/2007)

06/04/2007

81 MINUTES of Telephonic Scheduling Conference held before Judge Dean D. Pregerson: Court sets trial dates. (Refer to the Scheduling Order to be issued hereafter). Court Reporter: None Present.(mg) (Entered: 06/07/2007)

06/06/2007 84 MINUTES (IN CHAMBERS) by Judge Dean D. Pregerson: Counsel are notiﬁed that on

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the Court's own motion, the RENEWED MOTION for Class Certiﬁcation 82 is hereby continued to 8/6/2007 at 10:00 AM before Judge Dean D. Pregerson.(mg) (Entered: 06/07/2007)
86 SCHEDULING ORDER by Judge Dean D. Pregerson: Discovery cut-off: 9/1/2007. Motions due by 11/2/2007. Final Pretrial Conference set for 2/11/2008 at 04:00 PM. Twoday Court Trial set for 2/26/2008 at 09:00 AM before Judge Dean D. Pregerson. (mg) (Entered: 06/27/2007)
88 STIPULATION AND ORDER by Judge Dean D. Pregerson granting Defendants leave to ﬁle its oversized brief, Defendants' Motion to Dismiss. (mg) (Entered: 08/07/2007)
89 OPPOSITION TO PLAINTIFFS' MOTION For Class Certiﬁcation 82 ﬁled by Defendants (mg) (Entered: 08/07/2007)
90 FIFTH SET OF EXHIBITS [Exhibits 30-31] ﬁled by Plaintiffs Casa Libre Youth Shelter, Freddy Garrido-Martinez, Yan Jun Li, Luis Miguel Morales, Maejean Robinson, Lucia Urey, Luis Javier Perez-Olano, Manuel Gomez, Michael Yuban Obando, Intervenor Plaintiff Roberto De Lima. (esa) (Entered: 08/15/2007)
91 REPLY in opposition to MOTION for Class Certiﬁcation 82 ﬁled by Plaintiffs Casa Libre Youth Shelter, Freddy Garrido-Martinez, Yan Jun Li, Luis Miguel Morales, Maejean Robinson, Lucia Urey, Luis Javier Perez-Olano, Manuel Gomez, Michael Yuban Obando, Intervenor Plaintiff Roberto De Lima. (esa) (Entered: 08/15/2007)
87 MINUTES OF IN CHAMBERS ORDER held before Judge Dean D. Pregerson : COUNSEL ARE NOTIFIED that on the court's own motion the RENEWED MOTION FOR CLASS CERTIFICATION (FILED ON 5/30/07) is hereby continued from 8/6/07 to 8/20/07 at 10:00 a.m. before Judge Dean D. Pregerson.(bp) (Entered: 08/01/2007)
92 STIPULATION AND ORDER to continue motion for class certiﬁcation by Judge Dean D. Pregerson : Motion is continued to 8/27/07 at 10:00 a.m.(esa) (Entered: 08/16/2007)
93 MINUTES (IN CHAMBERS ORDER) held before Judge Dean D. Pregerson: Counsel are notiﬁed that on the Court's own motion, the RENEWED MOTION to Certify Class 82 is hereby continued to 9/10/2007 at 10:00 AM before Judge Dean D. Pregerson.(mg) (Entered: 08/23/2007)
95 PLAINTIFFS' SIXTH SET OF EXHIBITS, PART A [EXHIBITS 32-36], ﬁled by Plaintiffs Casa Libre Youth Shelter, Freddy Garrido-Martinez, Yan Jun Li, Luis Miguel Morales, Maejean Robinson, Lucia Urey, Luis Javier Perez-Olano, Manuel Gomez, Michael Yuban Obando.. (bho) (Entered: 09/11/2007)
96 Plaintiffs' Sixth Set of EXHIBITS, Part B [Exhibits 32-36], ﬁled by Plaintiffs Casa Libre Youth Shelter, Freddy Garrido-Martinez, Yan Jun Li, Luis Miguel Morales, Maejean Robinson, Lucia Urey, Luis Javier Perez-Olano, Manuel Gomez, Michael Yuban Obando. (bho) (Entered: 09/11/2007)
94 MINUTES OF Motion Hearing held before Judge Dean D. Pregerson : Court hears oral argument on plaintiffs Renewed MOTION to Certify Class 82 and matter is taken under submission. Court sets the following breiﬁng schedule for plaintff's motion for summary judgment: Motion shall be ﬁled no later than 10/1/07 with a hearing date of 11/5/07 10:00 AM; defendant's opposition be ﬁled no later than 10/2/07 and reply be ﬁled no later than 10/29/07; Court Reporter: Maria Bustillos.(lc) (Entered: 09/11/2007)
98 NOTICE OF MOTION AND MOTION for Partial Summary Judgment ﬁled by Plaintiffs Casa Libre Youth Shelter, Freddy Garrido-Martinez, Yan Jun Li, Luis Miguel Morales, Maejean Robinson, Lucia Urey, Roberto De Lima, Luis Javier Perez-Olano, Manuel

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Gomez, Michael Yuban Obando. Motion set for hearing on 11/5/2007 at 10:00 AM before Judge Dean D. Pregerson. (cm) (Entered: 10/04/2007)
99 NOTICE OF MOTION AND MOTION for Partial Summary Adjudication ﬁled by Intervenor Plaintiff Jose De Lima.Motion set for hearing on 11/5/2007 at 10:00 AM before Judge Dean D. Pregerson. (ad) (Entered: 10/10/2007)
97 EX PARTE APPLICATION to Exceed Page Limitation ﬁled by plaintiff Casa Libre Youth Shelter, Freddy Garrido-Martinez, Yan Jun Li, Luis Miguel Morales, Maejean Robinson, Lucia Urey, Roberto De Lima, Luis Javier Perez-Olano, Manuel Gomez, Michael Yuban Obando. Lodged order, exhibits 1, 2.(lc) (Entered: 10/03/2007)
100 NOTICE OF MOTION AND MOTION for Leave to ﬁle Proposed Brief Amici Curiae ﬁled by Proposed Amici Curiae First Star, Children's Advocacy Institute.Motion set for hearing on 11/5/2007 at 10:00 AM before Judge Dean D. Pregerson. Lodged Proposed Order, Proposed Brief. (ad) (Entered: 10/11/2007)
101 ORDER GRANTING Leave to File Brief in Excess of 25 Pages, by Judge Dean D. Pregerson: IT IS ORDERED that Plaintiffs' EX PARTE APPLICATION for Leave to File Brief Exceeding 25 Pages 97 is granted.(ad) (Entered: 10/11/2007)
FAX number for Attorney Ragini Shah is 617-742-2139. (ad) (Entered: 10/11/2007)
FAX number for Attorney Kristen Marie Jackson is 213-385-9089. (ad) (Entered: 10/11/2007)
102 DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES in Support of Cross-Motion for Summary Judgment, and, in Oppositon to Plaintiffs'Motion for Partial Summary Adjudication 99 (see document for further details) ﬁled by Defendants Ofﬁce of Refugee Resettlement, Alberto Gonzalez, Michael Chertoff, Intervenor Defendant Michael Chertoff. (vh) (Entered: 10/25/2007)
103 REPLY TO OPPOSITION TO MOTION for Partial Summary Adjudication 99 and Oppositon to Cross Motion for Summary Judgment ﬁled by Plaintiffs Casa Libre Youth Shelter, Freddy Garrido-Martinez, Yan Jun Li, Luis Miguel Morales, Maejean Robinson, Lucia Urey, Luis Javier Perez-Olano, Manuel Gomez, Michael Yuban Obando, Intervenor Plaintiffs Roberto De Lima, Jose De Lima. (tad) (Entered: 10/31/2007)
104 MINUTES OF IN CHAMBERS ORDER held before Judge Dean D. Pregerson :COUNSEL ARE NOTIFIED that on the Court's own motion the MOTION BY PLAINTIFF-IN-INTERVENTION FOR PARTIAL SUMMARY ADJUDICATION 98 ,the MOTION BY PLAINTIFF FOR PARTIAL SUMMARY ADJUDICATION 99 and the MOTION FOR LEAVE TO FILE PROPOSED BRIEF AMICI CURIAE 100 ,are hereby continued from November 5, 2007 to November 19, 2007 at 10:00 a.m. (lc) (Entered: 11/02/2007)
105 APPLICATION for Temporary Restraining Order and order to show cause regarding Preliminary Injunction ﬁled by plaintiffs Casa Libre Youth Shelter, Freddy GarridoMartinez, Yan Jun Li, Luis Miguel Morales, Maejean Robinson, Lucia Urey, Luis Javier Perez-Olano, Manuel Gomez, Michael Yuban Obando.Application set for hearing on 11/8/2007 at 10:00 AM before Judge Dean D. Pregerson. Lodged order. (lc) (Entered: 11/07/2007)
106 EXHIBIT Eight set of exhibits - Exhibits 43-52 to APPLICATION for Temporary Restraining Order and order to show cause re Preliminary Injunction 105 ﬁled by Plaintiffs Casa Libre Youth Shelter, Freddy Garrido-Martinez, Yan Jun Li, Luis Miguel Morales, Maejean Robinson, Lucia Urey, Luis Javier Perez-Olano, Manuel Gomez, Michael Yuban Obando. (lc) (Entered: 11/07/2007)

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107 EX PARTE APPLICATION to Shorten Time for Hearing for hearing motoin to add party ﬁled by plaintiffs Casa Libre Youth Shelter, Freddy Garrido-Martinez, Yan Jun Li, Luis Miguel Morales, Maejean Robinson, Lucia Urey, Luis Javier Perez-Olano, Manuel Gomez, Michael Yuban Obando. Lodged order, motion to add party.(lc) (Entered: 11/07/2007)

11/07/2007

FAX number for Attorney Gary Slossberg is 323-980-3510. (lc) (Entered: 11/07/2007)

11/08/2007

108 MINUTES OF IN CHAMBERS ORDER held before Judge Dean D. Pregerson : At the request of counsel Plaintiffs EX PARTE APPLICATION to Shorten Time for Hearing for hearing motionto add party ﬁled by plaintiffs 107 is VACATED. (lc) (Entered: 11/08/2007)

11/08/2007

109 NOTICE TO THE COURT ﬁled by Defendants Ofﬁce of Refugee Resettlement, Michael Chertoff, Alberto Gonzalez, Robert S Mueller, Michael Chertoff. (vh) (Entered: 11/13/2007)

11/16/2007

111 REPLY to plaintiff-in-interventions's statement of uncontorverted facts and statement of law re MOTION for Summary Adjudication 99 ﬁled by Defendants Ofﬁce of Refugee Resettlement, Michael B Mukasey, Michael Chertoff. (lc) (Entered: 11/19/2007)

11/16/2007

112 NOTICE of Appearance of counsel with principal charge of defense and sharing with representtion with David Pinchas, AUSA on behalf of defendants ﬁled by attorney Zoe Heller, Melissa S Leibman on behalf of Defendants Ofﬁce of Refugee Resettlement, Michael B Mukasey, Michael Chertoff, (lc) Modiﬁed on 11/19/2007 (lc, ). (Entered: 11/19/2007)

11/16/2007

FAX number for Attorney Zoe Heller, Melissa S Leibman is 202-307-8781. (lc) (Entered: 11/19/2007)

11/19/2007

110 MINUTES OF Motion Hearing held before Judge Dean D. Pregerson :, RE: plaintiff's MOTION for Partial Summary Judgment 98 , MOTION for Leave to ﬁle Proposed Brief Amici Curiae 100 , plaintiff in interventions MOTION for Summary Adjudication 99 ; Court hears oral argument and matters taken under submission. Court Reporter: Maria Bustillos. (lc) (Entered: 11/19/2007)

11/29/2007

113 NOTICE OF ﬁling revised proposed order re motion for partial summary adjudication; LODGED ﬁndings of uncontroverted facts and partial summary adjudicaiton and permanent injunction ﬁled by plaintiffs (lc) (Entered: 12/03/2007)

12/03/2007

114 DEFENDANTS' SUPPLEMENTAL Memorandum of Points and Authorities Re: Summary Judgment to MOTION for Partial Summary Judgment 98 ﬁled by Defendants Ofﬁce of Refugee Resettlement, Michael B Mukasey, Michael Chertoff, Intervenor Defendant Michael Chertoff. (vh) (Entered: 12/06/2007)

12/03/2007

115 SUPPLEMENTAL MEMORANDUM of Points and Authorities in Support of Class Certiﬁcation, re 17 ﬁled by Plaintiffs Casa Libre Youth Shelter, Freddy Garrido-Martinez, Yan Jun Li, Luis Miguel Morales, Maejean Robinson, Lucia Urey, Luis Javier PerezOlano, Manuel Gomez, Michael Yuban Obando, Intervenor Plaintiffs Roberto De Lima, Jose De Lima. (vh) (Entered: 12/06/2007)

12/10/2007

116 NOTICE OF FILING PROPOSED ORDER to grant summary judgment for defendants and denying plaintiff and plaintiff in intervention's Motions for MOTION for Summary judgment and partial summary judgment 99 , 98 ﬁled by Defendants Ofﬁce of Refugee Resettlement, Michael B Mukasey, Michael Chertoff. (lc) (Entered: 12/17/2007)

12/14/2007

117 DEFENDANTS' REQUEST to Strike, re 115 ﬁled by Defendants Ofﬁce of Refugee Resettlement, Michael Chertoff, Michael B Mukasey, Michael Chertoff. (vh) (Entered: 12/21/2007)

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118 NOTICE ECF Attorney Update Form ﬁled by defendant Ofﬁce of Refugee Resettlement, Michael Chertoff, Michael B Mukasey, Michael Chertoff. (Leibman, Melissa) (Entered: 01/02/2008)
119 NOTICE of Change of Attorney Information for attorney Melissa S Leibman counsel for Defendants Ofﬁce of Refugee Resettlement, Michael B Mukasey, Michael Chertoff, Intervenor Defendant Michael Chertoff. Changing fax number to 202-305-7000. Filed by defendants Michael B. Mukasey, ORR, and Michael Chertoff (Leibman, Melissa) (Entered: 01/02/2008)
FAX number for Attorney Melissa S Leibman is 202-305-7000. (ak) (Entered: 01/11/2008)
120 NOTICE of Change of Attorney Information: Attorney Zoe J Heller will no longer receive service of documents from the Clerks Ofﬁce for the reason indicated in the G-06 Notice.Zoe J Heller is no longer attorney of record in this case for the reason indicated in the G-06 Notice.Zoe Heller is no longer attorney of record in this case for the reason indicated in the G-06 Notice. Filed by defendants Ofﬁce of Refugee Resettlement, Michael Chertoff, Michael B Mukasey, Michael Chertoff (lc) (Entered: 01/04/2008)
121 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS MOTION FOR CLASS CERTIFICATION 82 AND GRANTING IN PART AND DENYING IN PART PLAINTIFFS MOTION FOR PARTIAL SUMMARY ADJUDICATION 98 , 99 by Judge Dean D. Pregerson (lc) (Entered: 01/10/2008)
122 NOTICE OF DISCREPANCY AND ORDER: by Judge Dean D. Pregerson, ORDERING notice of change of attorney informaiton submitted by Amicus attorney Ragini Shuah received on 1/14/08 is not to be ﬁled but instead rejected. Denial based on: G.O. 07-08, case designated for e-ﬁling. (lc) (Entered: 01/18/2008)
123 NOTICE of Change of Attorney Information for attorney Melissa S Leibman counsel for Defendants Ofﬁce of Refugee Resettlement, Michael B Mukasey, Michael Chertoff, Intervenor Defendant Michael Chertoff.Saul Greenstein is no longer attorney of record for the aforementioned party in this case for the reason indicated in the G-06 Notice. Filed by defendants Michael B. Mukasey, ORR, Michael Chertoff, Intervenor-defendant, Michael Chertoff (Leibman, Melissa) (Entered: 01/22/2008)
124 Joint STIPULATION to Reschedule the ﬁnal pretrial conference ﬁled by defendant and defendant-in-intervention Ofﬁce of Refugee Resettlement, Michael Chertoff, Michael B Mukasey, Michael Chertoff. (Attachments: # 1 Proposed Order)(Leibman, Melissa) (Entered: 01/22/2008)
125 ORDER upon re Stipulation to Reschedule 124 : Final Pretrial Conference set for 4/21/2008 04:00 PM and Court Trial set for 4/29/2008 09:00 AM by Judge Dean D. Pregerson (lc) (Entered: 01/23/2008)
126 NOTICE OF MOTION AND Emergency MOTION to Stay pending Appeal ﬁled by Defendants Ofﬁce of Refugee Resettlement, Michael Chertoff, Michael B Mukasey, Michael Chertoff. (Attachments: # 1 Declaration of Lyle D. Jentzer)(Leibman, Melissa) Modiﬁed on 1/24/2008 (lc, ).(STRICKEN PER 1/24/08 MINUTES) (Entered: 01/23/2008)
127 MINUTES OF IN CHAMBERS ORDER held before Judge Dean D. Pregerson : COUNSEL ARE NOTIFIED that the document entitled NOTICE OF MOTION AND EMERGENCY MOTION TO STAY PENDING APPEAL FILED BY DEFENDANTS OFFICE OF REFUGEE RESETTLEMENT, ﬁled on 1/23/08 126 was electronically ﬁled incorrectly and therefore isordered STRICKEN from the docket. Counsel shall review the

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electronic ﬁlingprocedures and re-ﬁle the document forthwith as an EX PARTE APPLICATION. (lc) (Entered: 01/24/2008)
128 EX PARTE APPLICATION to Stay pending Appeal re: Order 121 granting permanent injunction ﬁled by Defendants and Intervenor Defendant Ofﬁce of Refugee Resettlement, Michael Chertoff, Michael B Mukasey, Michael Chertoff. (Attachments: # 1 Proposed Order)(Leibman, Melissa) (Entered: 01/25/2008)
129 MEMORANDUM in Support of EX PARTE APPLICATION to Stay pending Appeal re: Order 121 granting permanent injunction EX PARTE APPLICATION to Stay pending Appeal re: Order 121 granting permanent injunction 128 ﬁled by Defendants Ofﬁce of Refugee Resettlement, Michael B Mukasey, Michael Chertoff, Intervenor Defendant Michael Chertoff. (Attachments: # 1 Exhibit RQV Order# 2 Declaration of Lyle D. Jentzer)(Leibman, Melissa) (Entered: 01/25/2008)
130 MEMORANDUM in Opposition to EX PARTE APPLICATION to Stay pending Appeal re: Order 121 granting permanent injunction EX PARTE APPLICATION to Stay pending Appeal re: Order 121 granting permanent injunction 128 ﬁled by Plaintiffs Casa Libre Youth Shelter, Freddy Garrido-Martinez, Yan Jun Li, Luis Miguel Morales, Maejean Robinson, Lucia Urey, Luis Javier Perez-Olano, Manuel Gomez, Michael Yuban Obando. (Holguin, Carlos) (Entered: 01/28/2008)
147 Mail Returned addressed to Kristen Jackson (sce) (Entered: 02/26/2008)
131 NOTICE OF APPEAL to the 9th CCA ﬁled by DefendantsOfﬁce of Refugee Resettlement, Michael Chertoff, Michael B Mukasey, Michael Chertoff. Appeal of Order 121 FEE WAIVED. (Attachments: # 1 Exhibit Order of January 8, 2008)(Leibman, Melissa) (Entered: 02/05/2008)
132 Civil Appeals Docketing Statement received from Defendants Ofﬁce of Refugee Resettlement, Michael Chertoff, Michael B Mukasey, Michael Chertoff forwarded to 9th CCA. RE: Appeal to 9th Circuit Court of Appeals 131 (Leibman, Melissa) (Entered: 02/05/2008)
133 REPRESENTATION STATEMENT re Appeal to 9th Circuit Court of Appeals 131 . (Leibman, Melissa) (Entered: 02/05/2008)
134 NOTICE of Supplemental Authority in Support of Ex Parte Application for Emergency Stay ﬁled by Defendants Ofﬁce of Refugee Resettlement, Michael Chertoff, Michael B Mukasey, Michael Chertoff. (Leibman, Melissa) (Entered: 02/05/2008)
135 ORDER DENYING DEFENDANTS EX PARTE APPLICATION FOR A STAY OF THE INJUNCTION 128 by Judge Dean D. Pregerson (lc) (Entered: 02/05/2008)
136 NOTICE OF APPEAL NOTIFICATION form issued regarding Appeal to 9th Circuit Court of Appeals 131 as to Defendants Ofﬁce of Refugee Resettlement, Michael B Mukasey, Michael Chertoff. (car) (Entered: 02/06/2008)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re: Appeal to 9th Circuit Court of Appeals 131 (car) (Entered: 02/06/2008)
137 TRANSCRIPT DESIGNATION AND ORDERING FORM Re: 131 (Leibman, Melissa) (Entered: 02/15/2008)
138 NOTICE OF APPEAL to the 9th CCA ﬁled by plaintiffsCasa Libre Youth Shelter, Freddy Garrido-Martinez, Yan Jun Li, Luis Miguel Morales, Maejean Robinson, Lucia Urey, Luis Javier Perez-Olano, Manuel Gomez, Michael Yuban Obando. Appeal of Order 121 FEE NOT PAID. (Attachments: # 1 Exhibit Order)(Holguin, Carlos) (Entered: 02/19/2008)

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139 REPRESENTATION STATEMENT re Notice of Appeal to 9th Circuit Court of Appeals, 138 . (Holguin, Carlos) (Entered: 02/19/2008)
140 Civil Appeals Docketing Statement received from plaintiffs Casa Libre Youth Shelter, Freddy Garrido-Martinez, Yan Jun Li, Luis Miguel Morales, Maejean Robinson, Lucia Urey, Luis Javier Perez-Olano, Manuel Gomez, Michael Yuban Obando forwarded to 9th CCA. RE: Notice of Appeal to 9th Circuit Court of Appeals, 138 (Holguin, Carlos) (Entered: 02/19/2008)
141 FILING FEE LETTER issued as to plaintiff Casa Libre Youth Shelter, Freddy GarridoMartinez, Yan Jun Li, Luis Miguel Morales, Maejean Robinson, Lucia Urey, Roberto De Lima, Luis Javier Perez-Olano, Jose De Lima, Manuel Gomez, Michael Yuban Obando, re Notice of Appeal to 9th Circuit Court of Appeals, 138 . (cbr) (Entered: 02/19/2008)
142 NOTICE OF APPEAL NOTIFICATION form issued regarding Notice of Appeal to 9th Circuit Court of Appeals, 138 as to plaintiffs Casa Libre Youth Shelter, Freddy GarridoMartinez, Yan Jun Li, Luis Miguel Morales, Maejean Robinson, Lucia Urey, Roberto De Lima, Luis Javier Perez-Olano, Jose De Lima, Manuel Gomez, Michael Yuban Obando. (cbr) (Entered: 02/19/2008)
143 APPEAL FEE PAID: re Notice of Appeal to 9th Circuit Court of Appeals, 138 as to Plaintiffs Casa Libre Youth Shelter, Freddy Garrido-Martinez, Yan Jun Li, Luis Miguel Morales, Maejean Robinson, Lucia Urey, Luis Javier Perez-Olano, Manuel Gomez, Michael Yuban Obando, Intervenor Plaintiffs Roberto De Lima, Jose De Lima; Receipt Number: 104468 in the amount of $455. (cbr) (Entered: 02/20/2008)
144 CERTIFICATE OF RECORD Transmitted to USCA re Notice of Appeal to 9th Circuit Court of Appeals 131 ﬁled by Michael Chertoff, Michael B Mukasey, Ofﬁce of Refugee Resettlement ; Court of Appeals Case Number: 08-55195; (car) (Entered: 02/21/2008)
145 CERTIFICATE OF RECORD Transmitted to USCA re Notice of Appeal to 9th Circuit Court of Appeals 131 ﬁled by Michael Chertoff, Michael B Mukasey, Ofﬁce of Refugee Resettlement ; (car) (Entered: 02/21/2008)
146 NOTICE OF CLERICAL ERROR: Due to clerical error Re: Certiﬁcate of Record 145 entered twice. (car) (Entered: 02/21/2008)
148 TRANSCRIPT DESIGNATION AND ORDERING FORM For Dates: None; Court Reporter: Maria Bustillos; Court of Appeals Case Number: 08-55195; Re: 138 (Attachments: # 1 Supplement FRAppP R10(b) certiﬁcation)(Holguin, Carlos) (Entered: 02/26/2008)
149 FIRST AMENDED NOTICE OF APPEAL to 9th CIRCUIT ﬁled by Defendants and Intervenor Defendant Ofﬁce of Refugee Resettlement, Michael Chertoff, Michael B Mukasey, Michael Chertoff. Amending Notice of Appeal to 9th Circuit Court of Appeals 131 Filed On: February 5, 2008; (Attachments: # 1 Exhibit January 8, 2008 Order) (Leibman, Melissa) (Entered: 02/27/2008)
150 STATUS REPORT re: 9th Cir. proceedings ﬁled by Plaintiffs Casa Libre Youth Shelter, Freddy Garrido-Martinez, Yan Jun Li, Luis Miguel Morales, Maejean Robinson, Lucia Urey, Luis Javier Perez-Olano, Manuel Gomez, Michael Yuban Obando. (Attachments: # 1 Exhibit Appeal brieﬁng order)(Holguin, Carlos) (Entered: 02/29/2008)
151 First EX PARTE APPLICATION to Continue Pretrial and trial from April 21 and 29, 2008 to July 21 and 29, 2008 ﬁled by plaintiffs Casa Libre Youth Shelter, Freddy GarridoMartinez, Yan Jun Li, Luis Miguel Morales, Maejean Robinson, Lucia Urey, Luis Javier Perez-Olano, Manuel Gomez, Michael Yuban Obando. (Attachments: # 1 Proposed Order continuing trial)(Holguin, Carlos) (Entered: 03/05/2008)

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152 OPPOSITION to Plaintiffs' Ex Parte Application to Continue Trial and Response to Plaintiffs' Status Report ﬁled by Defendants Ofﬁce of Refugee Resettlement, Michael B Mukasey, Michael Chertoff, Intervenor Defendant Michael Chertoff. (Leibman, Melissa) (Entered: 03/06/2008)
153 REPLY in support First EX PARTE APPLICATION to Continue Pretrial and trial from April 21 and 29, 2008 to July 21 and 29, 2008 151 ﬁled by Plaintiffs Casa Libre Youth Shelter, Freddy Garrido-Martinez, Yan Jun Li, Luis Miguel Morales, Maejean Robinson, Lucia Urey, Luis Javier Perez-Olano, Manuel Gomez, Michael Yuban Obando. (Holguin, Carlos) (Entered: 03/06/2008)
154 ORDER granting plaintiffs EX PARTE APPLICATION to trial 151 ;it is prudent to vacate the current trial dates until the Ninth Circuit determines whether to hear Plaintiffs cross-appeal. After the Ninth Circuit makes this determination, counsel shall notify the Court within 15 days to set a Status Conference to reevaluate whether the further continue of the trial datesby Judge Dean D. Pregerson (lc) (Entered: 03/12/2008)
155 NOTIFICATION by Circuit Court of Appellate Docket Number 08-55580, 9TH CCA regarding Notice of Appeal to 9th Circuit Court of Appeals, 138 as to Plaintiff Casa Libre Youth Shelter. (car) (Entered: 04/17/2008)
156 Joint STIPULATION to Dismiss Plaintiff-In-Intervention Roberto De Lima, Jose De Lima ﬁled by defendants Ofﬁce of Refugee Resettlement, Michael Chertoff, Michael B Mukasey, Michael Chertoff.(Leibman, Melissa) (Entered: 11/12/2009)
157 ORDER from 9th CCA ﬁled re: Notice of Appeal to 9th Circuit Court of Appeals, 138 ﬁled by Freddy Garrido-Martinez, Yan Jun Li, Manuel Gomez, Casa Libre Youth Shelter, Michael Yuban Obando, Lucia Urey, Luis Miguel Morales, Luis Javier Perez-Olano, Maejean Robinson, Notice of Appeal to 9th Circuit Court of Appeals 131 ﬁled by Michael B Mukasey, Ofﬁce of Refugee Resettlement, Michael Chertoff, CCA # 0855195, 08-55580. The court is in receipt of appellant's correspondence dated July 29, 2010, requesting dismissal without prejudice of appeal no. 08-55195. The court is also in receipt of cross-appellants' correspondence dated August 3, 2010, requesting dismissal without prejudice of cross-appeal no. 08-55580. The court construes said correspondence together as a motion to dismiss the present appeals. So construed, said motion to dismiss without prejudice appeal nos. 08-55195 and 08-55580 is granted. The appeals are dismissed without prejudice to reinstatement in the event that the U.S. District Court fails to approve the settlement of this matter as reached by the parties hereto. Reinstatement shall be notice ﬁled by any party in this court and served on the other parties and the Circuit Mediator within 28 days of the ﬁling of the order denying the parties' motion to approve said settlement, but in any event by June 30, 2011. If no notice of reinstatement is ﬁled and served by June 30, 2011, the appeals will be deemed dismissed with prejudice. This order served on the district court shall act as and for the mandate of this court. Mandate received in this district on 8/11/2010. (lr) (Entered: 08/12/2010)
159 NOTICE OF MOTION AND Joint MOTION for Settlement Approval and Fairness Hearing Pursuant to Rule 23 ﬁled by Defendants Michael Chertoff, Michael B Mukasey, Ofﬁce of Refugee Resettlement. Motion set for hearing on 10/4/2010 at 10:00 AM before Judge Dean D. Pregerson. (Attachments: # 1 Exhibit 1a: Settlement Agreement, # 2 Exhibit 1b: Exhibit to Settlement Agreement, # 3 Exhibit 2a: Short-Form Notice, # 4 Exhibit 2b: Long-Form Notice, # 5 Exhibit 3: Declaration of Carlos Holguin, # 6 Proposed Order)(Leibman, Melissa) (Entered: 08/31/2010)
160 MINUTES OF Motion for settlement approval and fairness Hearing held before Judge Dean D. Pregerson: Court and counsel confer re settlement.Court Reporter: Maria Bustillos. (lc) (Entered: 10/04/2010)

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10/26/2010
10/26/2010 11/10/2010 11/10/2010 12/10/2010 12/13/2010 12/15/2010 01/14/2011
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161 ORDER Directing Notice To Class Of Proposed Settlement 159 . The Court will hold a Final Settlement Hearing on December 13, 2010, at 10:00 a.m., to determine whether the terms of the Settlement Agreement are fair, reasonable, and adequate and should be approved by the Court, and to rule upon such other matters as the Court may deem appropriate by Judge Dean D. Pregerson. (see document for specifcs and other instructions) (lc) (Entered: 10/26/2010)
***Set hearings Final Settlement Fairness Hearing for 12/13/2010 10:00 AM before Judge Dean D. Pregerson. (lc) (Entered: 10/26/2010)
162 STATUS REPORT Certifying That Defendants Have Posted Notice ﬁled by Defendants Michael Chertoff, Michael B Mukasey, Ofﬁce of Refugee Resettlement. (Leibman, Melissa) (Entered: 11/10/2010)
163 STATUS REPORT re: notice to class ﬁled by Plaintiffs Casa Libre Youth Shelter, Freddy Garrido-Martinez, Manuel Gomez, Yan Jun Li, Luis Miguel Morales, Michael Yuban Obando, Luis Javier Perez-Olano, Maejean Robinson, Lucia Urey. (Holguin, Carlos) (Entered: 11/10/2010)
164 Joint STIPULATION to Vacate the Fairness Hearing on December 13, 2010 and to Approve the Settlement Agreement ﬁled by Defendants Michael Chertoff, Michael B Mukasey, Ofﬁce of Refugee Resettlement. (Attachments: # 1 Proposed Order, # 2 Exhibit Settlement Agreement)(Leibman, Melissa) (Entered: 12/10/2010)
165 MINUTES OF Final Settlement hearing (Court ordred 10/26/10)held before Judge Dean D. Pregerson:Court hears oral argument and takes the matter under submission.Court Reporter: Theresa Lanza. (lc) (Entered: 12/14/2010)
166 ORDER APPROVING SETTLEMENT OF CLASS ACTION 164 ; Courts injunction entered 1/8/08 is dissolved; this action and all claims dismissed with prejudice by Judge Dean D. Pregerson, (Made JS-6. Case Terminated.) (lc) (Entered: 12/15/2010)
167 NOTICE OF MOTION AND MOTION for Attorney Fees ﬁled by plaintiff Casa Libre Youth Shelter, Freddy Garrido-Martinez, Manuel Gomez, Yan Jun Li, Luis Miguel Morales, Michael Yuban Obando, Luis Javier Perez-Olano, Maejean Robinson, Lucia Urey. Motion set for hearing on 2/28/2011 at 10:00 AM before Judge Dean D. Pregerson. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Proposed Order) (Holguin, Carlos) (Entered: 01/14/2011)
168 Joint STIPULATION for Extension of Time to File Response as to MOTION for Attorney Fees 167 , Joint STIPULATION for Extension of Time to File Response ﬁled by defendants Michael Chertoff, Michael B Mukasey, Ofﬁce of Refugee Resettlement. (Attachments: # 1 Proposed Order)(Leibman, Melissa) (Entered: 02/02/2011)
169 ORDER by Judge Dean D. Pregerson, re Stipulation 168 The hearing date for Plaintiffs EAJA motion 167 is March 28, 2011. Defendants response is now due March 7, 2011, and Plaintiffs reply is due March 14, 2011. (lc) Modiﬁed on 2/4/2011 (lc). (Entered: 02/04/2011)
170 Joint STIPULATION to Stay Case pending Mediation ﬁled by Defendants Michael Chertoff, Michael B Mukasey, Ofﬁce of Refugee Resettlement. (Attachments: # 1 Proposed Order)(Leibman, Melissa) (Entered: 03/03/2011)
171 ORDER The hearing on Plaintiffs motion for attorneys fees and costs, currentlyscheduled for March 28, 2011, is hereby VACATED 167 . The parties shall submit a joint report no later than June 1, 2011, informing this Court of the status of their mediation by Judge Dean D. Pregerson (lc) (Entered: 03/08/2011)

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172 STATUS REPORT (Joint) ﬁled by Defendants Michael Chertoff, Michael B Mukasey, Ofﬁce of Refugee Resettlement. (Leibman, Melissa) (Entered: 06/01/2011)

06/19/2012

173 Joint STIPULATION for Settlement of Attorney's Fees and Costs ﬁled by Defendants Michael Chertoff, Michael B Mukasey, Ofﬁce of Refugee Resettlement. (Attachments: # 1 Proposed Order)(Leibman, Melissa) (Entered: 06/19/2012)

07/03/2012

174 ORDER AWARDING EAJA FEES Re: Stipulation for Settlement 173 by Judge Dean D. Pregerson: Defendants shall pay Plaintiffs counsel the sum of $1,091,441.19 ($1,086,717.00 in attorneys fees and $4,724.19 in litigation costs) in full settlement of Plaintiffs Motion for Attorneys Fees under the EAJA and any and all claims for attorneys fees, litigation costs, and expenses incurred to date in the litigation of Plaintiffs complaint, ﬁled in this case on May13, 2005, and in the litigation of Plaintiffs Motion for Attorneys Fees under the EAJA. Defendants shall make payment in full of the $1,091,441.19 to the Center for Human Rights and Constitutional Law within 60 days of the date the Court enters and executes this Order. (lc) (Entered: 07/05/2012)

06/09/2014

175 NOTICE of Appearance ﬁled by attorney Jennifer A Bowen on behalf of Defendants Michael Chertoff, Michael B Mukasey, Ofﬁce of Refugee Resettlement (Attorney Jennifer A Bowen added to party Michael Chertoff(pty:dft), Attorney Jennifer A Bowen added to party Michael B Mukasey(pty:dft), Attorney Jennifer A Bowen added to party Ofﬁce of Refugee Resettlement(pty:dft))(Bowen, Jennifer) (Entered: 06/09/2014)

07/21/2014

176 NOTICE OF MOTION AND MOTION to Enforce Judgment ﬁled by plaintiffs Casa Libre Youth Shelter, Freddy Garrido-Martinez, Manuel Gomez, Yan Jun Li, Luis Miguel Morales, Michael Yuban Obando, Luis Javier Perez-Olano, Maejean Robinson, Lucia Urey. Motion set for hearing on 8/25/2014 at 10:00 AM before Judge Dean D. Pregerson. (Attachments: # 1 Memorandum in support of motion to enforce settlement, # 2 Proposed Order enforcing settlement, # 3 Exhibit part 1 (no.s 1-9), # 4 Exhibit part 2 (no.s 10-19)) (Holguin, Carlos) (Entered: 07/21/2014)

07/22/2014

177 Joint STIPULATION for Hearing re MOTION to Enforce Judgment 176 ﬁled by defendants Michael Chertoff, Robert S Mueller, Michael B Mukasey, Ofﬁce of Refugee Resettlement. (Attachments: # 1 Proposed Order)(Attorney Jennifer A Bowen added to party Robert S Mueller(pty:dft))(Bowen, Jennifer) (Entered: 07/22/2014)

07/23/2014

178 ORDER by Judge Dean D. Pregerson, re Stipulation 177 Plaintiffs Motion for ClassWide Enforcement of Settlement (ECF No. 176) is continued from August 25, 2014 to September 22, 2014, at 10:00 a.m. Defendants Opposition will be ﬁled by August 25, 2014, and Plaintiffs Reply will be ﬁled by September 8, 2014. (lc) (Entered: 07/23/2014)

08/18/2014

179 STIPULATION to Continue Motion for Class-Wide Enforcement of Settlement from September 22, 2014 to December 22, 2014 Re: MOTION to Enforce Judgment 176 ﬁled by Federal Defendants Michael Chertoff, Robert S Mueller, Michael B Mukasey, Ofﬁce of Refugee Resettlement. (Attachments: # 1 Proposed Order)(Bowen, Jennifer) (Entered: 08/18/2014)

08/22/2014

180 ORDER by Judge Dean D. Pregerson, re Stipulation 179 plaintiffs motion toenforce settlement 176 is continued from September 22, 2014 to December 22, 2014, at 10:00 a.m. (lc) (Entered: 08/22/2014)

11/18/2014

181 MINUTE ORDER IN CHAMBERS by Judge Dean D. Pregerson: COUNSEL ARE NOTIFIED, on the Court's own motion, the MOTION TO ENFORCE JUDGMENT 176 is hereby continued fromDecember 22, 2014 to February 2, 2015 at 10:00 a.m. (lc) (Entered: 11/18/2014)

01/06/2015 182 NOTICE of Appearance ﬁled by attorney Brian Christopher Ward on behalf of Defendants Michael Chertoff, Michael B Mukasey, Ofﬁce of Refugee Resettlement

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(Attorney Brian Christopher Ward added to party Michael Chertoff(pty:dft), Attorney Brian Christopher Ward added to party Michael B Mukasey(pty:dft), Attorney Brian Christopher Ward added to party Ofﬁce of Refugee Resettlement(pty:dft))(Ward, Brian) (Entered: 01/06/2015)
183 Joint STIPULATION for Hearing re MOTION to Enforce Judgment 176 ﬁled by Defendants Michael Chertoff, Michael B Mukasey, Ofﬁce of Refugee Resettlement. (Attachments: # 1 Proposed Order)(Ward, Brian) (Entered: 01/06/2015)
184 Notice of Appearance or Withdrawal of Counsel: for attorney Jennifer A Bowen counsel for Defendants Michael Chertoff, Robert S Mueller, Michael B Mukasey, Ofﬁce of Refugee Resettlement. Jennifer A. Bowen is no longer attorney of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Federal Defendants Eric. H. Holder, Jr., Attorney General, et al.. (Bowen, Jennifer) (Entered: 01/08/2015)
185 ORDER by Judge Dean D. Pregerson, GRANTING Stipulation to Continue Motion Hearing 183 . IT IS HEREBY ORDERED that, upon good cause shown, plaintiffs motion to enforce settlement (Dkt. No. 176) is continued from February 2, 2015, to April 6, 2015, at 10:00 a.m. Should the parties fail to settle this matter, defendants opposition shall be ﬁled by March 4, 2015, and plaintiffs reply shall be ﬁled by March 20, 2015. (shb) (Entered: 01/16/2015)
186 STIPULATION SETTLING re MOTION to Enforce Judgment 176 ﬁled by Plaintiffs Casa Libre Youth Shelter, Freddy Garrido-Martinez, Manuel Gomez, Yan Jun Li, Luis Miguel Morales, Michael Yuban Obando, Luis Javier Perez-Olano, Maejean Robinson, Lucia Urey. (Attachments: # 1 Proposed Order approving stipulation settling motion to enforce)(Holguin, Carlos) (Entered: 03/04/2015)
187 ORDER APPROVING STIPULATION RE: MOTION TO ENFORCE OF SETTLEMENT by Judge Dean D. Pregerson: Plaintiffs motion for class-wide enforcement of settlement is resolved as provided in the parties stipulation. Hearing on plaintiffs motion, currently set for April 6, 2015 76 , is hereby vacated. (lc) (Entered: 03/27/2015)
188 STIPULATION FOR AWARD of EAJA Fees in the amount of $105000. Re: MOTION to Enforce Judgment 176 ﬁled by plaintiffs Casa Libre Youth Shelter, Freddy GarridoMartinez, Manuel Gomez, Yan Jun Li, Luis Miguel Morales, Michael Yuban Obando, Luis Javier Perez-Olano, Maejean Robinson, Lucia Urey. (Attachments: # 1 Proposed Order approving stipulation re: fees, costs)(Holguin, Carlos) (Entered: 04/07/2015)
189 ORDER RE: SETTLEMENT OF ATTORNEY'S FEES AND COSTS 188 by Judge Dean D. Pregerson. IT IS HEREBY ORDERED that the Stipulation is approved. Defendants shall pay Plaintiffs' counsel the sum of $105,000 in full settlement of any and all claims for attorney's fees, costs, and expenses incurred in connection with plaintiffs' motion for class-wide enforcement of settlement 176 . Defendants shall make payment as provided in paragraph 2 of the Stipulation. (lom) (Entered: 04/08/2015)
190 NOTICE OF MOTION AND MOTION to Enforce Settlement Agreement ﬁled by Plaintiff(s) D. S. R.-O, V. G. R.-A, A. D. M.-L, J. E. L.-M. Motion set for hearing on 7/10/2017 at 10:00 AM before Judge Dean D. Pregerson. (Attachments: # 1 Proposed Order, # 2 Afﬁdavit / Certiﬁcate of Service) (Attorney Pamela S Palmer added to party D. S. R.-O(pty:pla), Attorney Pamela S Palmer added to party V. G. R.-A(pty:pla), Attorney Pamela S Palmer added to party A. D. M.-L(pty:pla), Attorney Pamela S Palmer added to party J. E. L.-M(pty:pet)) (Palmer, Pamela) (Entered: 06/09/2017)
191 MEMORANDUM in Support of NOTICE OF MOTION AND MOTION to Enforce

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Settlement Agreement 190 ﬁled by Petitioner J. E. L.-M, Plaintiffs A. D. M.-L, V. G. R.A, D. S. R.-O. (Palmer, Pamela) (Entered: 06/09/2017)

06/09/2017

192 DISCLOSURE of And Certiﬁcate of Interested Parties or Persons re NOTICE OF MOTION AND MOTION to Enforce Settlement Agreement 190 ﬁled by Petitioner J. E. L.-M, Plaintiffs A. D. M.-L, V. G. R.-A, D. S. R.-O (Palmer, Pamela) (Entered: 06/09/2017)

06/09/2017

193 APPENDIX ﬁled by Petitioner J. E. L.-M, Plaintiffs A. D. M.-L, V. G. R.-A, D. S. R.-O. Re: Memorandum in Support of Motion 191 , NOTICE OF MOTION AND MOTION to Enforce Settlement Agreement 190 (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5SEALED DOCUMENT- Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(Palmer, Pamela) Modiﬁed on 6/23/2017 (lc). (Entered: 06/09/2017)

06/09/2017

194 APPENDIX ﬁled by Petitioner J. E. L.-M, Plaintiffs A. D. M.-L, V. G. R.-A, D. S. R.-O. Re: Memorandum in Support of Motion 191 , NOTICE OF MOTION AND MOTION to Enforce Settlement Agreement 190 Part 2 - Exhibits 9-17 (Attachments: # 1 Exhibit 9, # 2 Exhibit 10, # 3 Exhibit 11, # 4 Exhibit 12, # 5 Exhibit 13, # 6 Exhibit 14, # 7 Exhibit 15, Part 1, # 8 Exhibit 15, Part 2, # 9 Exhibit 16, # 10 Exhibit 17)(Palmer, Pamela) (Entered: 06/09/2017)

06/09/2017

195 APPENDIX ﬁled by Petitioner J. E. L.-M, Plaintiffs A. D. M.-L, V. G. R.-A, D. S. R.-O. Re: Memorandum in Support of Motion 191 , NOTICE OF MOTION AND MOTION to Enforce Settlement Agreement 190 Part 3 - Exhibits 18-25 (Attachments: # 1 Exhibit 18, # 2 Exhibit 19, # 3 Exhibit 20, # 4 Exhibit 21, # 5 Exhibit 22, # 6 Exhibit 23, # 7 Exhibit 24, # 8 Exhibit 25)(Palmer, Pamela) (Entered: 06/09/2017)

06/09/2017

196 APPENDIX ﬁled by Petitioner J. E. L.-M, Plaintiffs A. D. M.-L, V. G. R.-A, D. S. R.-O. Re: Memorandum in Support of Motion 191 , NOTICE OF MOTION AND MOTION to Enforce Settlement Agreement 190 Part 4 - Exhibits 26-33 (Attachments: # 1 Exhibit 26, # 2 Exhibit 27, # 3 Exhibit 28, # 4 Exhibit 29, # 5 Exhibit 30, # 6 Exhibit 31, # 7 Exhibit 32, # 8 Exhibit 33)(Palmer, Pamela) (Entered: 06/09/2017)

06/09/2017

197 APPLICATION of Non-Resident Attorney Jessica A. Rickabaugh to Appear Pro Hac Vice on behalf of Petitioner J. E. L.-M, Plaintiffs A. D. M.-L, V. G. R.-A, D. S. R.-O (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-19999301) ﬁled by Plaintiff(s ) J. E. L.-M, A. D. M.-L, V. G. R.-A, D. S. R.-O. (Attachments: # 1 Proposed Order, # 2 Afﬁdavit / Certiﬁcate of Service) (Palmer, Pamela) (Entered: 06/09/2017)

06/09/2017

198 APPLICATION of Non-Resident Attorney Anthony Vale to Appear Pro Hac Vice on behalf of Petitioner J. E. L.-M, Plaintiffs A. D. M.-L, V. G. R.-A, D. S. R.-O (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-19999308) ﬁled by Plaintiff(s) J. E. L .-M, A. D. M.-L, V. G. R.-A, D. S. R.-O. (Attachments: # 1 Proposed Order, # 2 Afﬁdavit / Certiﬁcate of Service) (Palmer, Pamela) (Entered: 06/09/2017)

06/09/2017

199 Amendment to NOTICE OF MOTION AND MOTION to Enforce Settlement Agreement 190 and other Motion Related Documents - AMENDED CERTIFICATE OF SERVICE ﬁled by Petitioner J. E. L.-M, Plaintiffs A. D. M.-L, V. G. R.-A, D. S. R.-O. (Palmer, Pamela) (Entered: 06/09/2017)

06/12/2017

200 NOTICE of Deﬁciency in Electronically Filed Pro Hac Vice Application RE: APPLICATION of Non-Resident Attorney Jessica A. Rickabaugh to Appear Pro Hac Vice on behalf of Petitioner J. E. L.-M, Plaintiffs A. D. M.-L, V. G. R.-A, D. S. R.-O (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-19999301) 197 . The following error(s) was/were found: Local Rule 5-4.3.4 Application not hand-signed. Local counsel failed to sign application. (lt) (Entered: 06/12/2017)

06/12/2017 201 NOTICE of Deﬁciency in Electronically Filed Pro Hac Vice Application RE:

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APPLICATION of Non-Resident Attorney Anthony Vale to Appear Pro Hac Vice on behalf of Petitioner J. E. L.-M, Plaintiffs A. D. M.-L, V. G. R.-A, D. S. R.-O (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-19999308) 198 . The following error(s) was/were found: Local Rule 83-2.1.3.3(a) Application not complete: state and/or federal courts to which the applicant has been admitted are not listed. (lt) (Entered: 06/12/2017)

06/13/2017

202 STRICKEN -- Notice of Appearance or Withdrawal of Counsel: for attorney Victor M Lawrence counsel for Defendants Michael Chertoff, Robert S Mueller, Michael B Mukasey, Ofﬁce of Refugee Resettlement. Victor M. Lawrence is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by defendant Victor M. Lawrence. (Attorney Victor M Lawrence added to party Michael Chertoff(pty:dft), Attorney Victor M Lawrence added to party Robert S Mueller(pty:dft), Attorney Victor M Lawrence added to party Michael B Mukasey(pty:dft), Attorney Victor M Lawrence added to party Ofﬁce of Refugee Resettlement(pty:dft))(Lawrence, Victor) Modiﬁed on 6/14/2017 (smo). (Entered: 06/13/2017)

06/13/2017

203 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Plaintiffs NOTICE OF MOTION AND MOTION to Enforce Settlement Agreement 190 . The following error(s) was found: Hearing information is missing Judges Courtroom information as to the New First Street Courthouse street location. In response to this notice the court may order (1) an amended or correct document to be ﬁled (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (lc) (Entered: 06/13/2017)

06/13/2017

204 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Notice of Appearance or Withdrawal of Counsel (G-123),, 202 . The following error(s) was found: Other error(s) with document(s) are speciﬁed below: See document: Counsel of record for the following party or parties: Jefferson B. Sessions III. No such party in this case. Also, text entry of party(s) differs from the document. In response to this notice the court may order (1) an amended or correct document to be ﬁled (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (lom) (Entered: 06/13/2017)

06/13/2017

205 Amendment to APPLICATION of Non-Resident Attorney Jessica A. Rickabaugh to Appear Pro Hac Vice on behalf of Petitioner J. E. L.-M, Plaintiffs A. D. M.-L, V. G. R.-A, D. S. R.-O (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-19999301) 197 (Amended Application) ﬁled by Plaintiffs A. D. M.-L, V. G. R.-A, D. S. R.-O, J.E. L-M. (Attachments: # 1 Proposed Order, # 2 Afﬁdavit /Certiﬁcate of Service)(Attorney Pamela S Palmer added to party J.E. L-M(pty:pla))(Palmer, Pamela) (Entered: 06/13/2017)

06/13/2017

206 Amendment to APPLICATION of Non-Resident Attorney Anthony Vale to Appear Pro Hac Vice on behalf of Petitioner J. E. L.-M, Plaintiffs A. D. M.-L, V. G. R.-A, D. S. R.-O (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-19999308) 198 (Amended Application) ﬁled by Plaintiffs J.E. L-M, A. D. M.-L, V. G. R.-A, D. S. R.-O. (Attachments: # 1 Proposed Order, # 2 Afﬁdavit / Certiﬁcate of Service)(Palmer, Pamela) (Entered: 06/13/2017)

06/13/2017

207 Notice of Appearance or Withdrawal of Counsel: for attorney Angela Viramontes counsel for Plaintiff Luis Javier Perez-Olano. Angela C. C. Viramontes is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Petitioner Luis Javier Perez-Olano. (Viramontes, Angela) (Entered: 06/13/2017)

06/14/2017 208 RESPONSE BY THE COURT TO NOTICE TO FILER OF DEFICIENCIES IN

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CM/ECF - California Central District
ELECTRONICALLY FILED DOCUMENTS RE: Notice of Appearance or Withdrawal of Counsel (G-123) 202 by Judge Dean D. Pregerson. The document is stricken. (smo) (Entered: 06/14/2017)
209 ORDER GRANTING APPLICATION of Non-Resident Attorney Jessica A. Rickabaugh to Appear Pro Hac Vice on behalf Plaintiff(s) J. E. L.-M, A. D. M.-L, V. G. R.-A, D. S. R.-O and designating Pamela S Palmer as local counsel 197 , 205 by Judge Dean D. Pregerson (lc) Modiﬁed on 6/14/2017 (lc). (Entered: 06/14/2017)
210 ORDER GRANTING APPLICATION of Non-Resident Attorney Anthony Vale to Appear Pro Hac Vice on behalf of Plaintiffs J. E. L.-M, A. D. M.-L, V. G. R.-A, D. S. R.O. and designating Pamela S Palmer as local counsel 198 , 206 by Judge Dean D. Pregerson (lc) Modiﬁed on 6/14/2017 (lc). (Entered: 06/14/2017)
211 NOTICE OF ERRATA ﬁled by Plaintiffs J.E. L-M, Yan Jun Li, V. G. R.-A, D. S. R.-O. correcting NOTICE OF MOTION AND MOTION to Enforce Settlement Agreement 190 (Re Court's Notice of Discrepancy 203 - adding address location of the Court) (Palmer, Pamela) (Entered: 06/14/2017)
212 MEMORANDUM in Opposition to NOTICE OF MOTION AND MOTION to Enforce Settlement Agreement 190 ﬁled by Defendants Michael Chertoff, Michael B Mukasey, Ofﬁce of Refugee Resettlement. (Ward, Brian) (Entered: 06/19/2017)
213 MINUTE ORDER IN CHAMBERS by Judge Dean D. Pregerson:The Court seals Exhibit 5 of the Appendix of Exhibits In Support of Motion for Enforcement of Agreement (Dkt. No. 193) ﬁled June 9, 2017, containing information related to a minor. (lc) (Entered: 06/23/2017)
214 REPLY in support of NOTICE OF MOTION AND MOTION to Enforce Settlement Agreement 190 ﬁled by Plaintiffs J.E. L-M, A. D. M.-L, V. G. R.-A, D. S. R.-O. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Palmer, Pamela) (Entered: 06/26/2017)
215 NOTICE Re: Filing of Correspondence ﬁled by plaintiffs Casa Libre Youth Shelter, Freddy Garrido-Martinez, Manuel Gomez, Michael Yuban Obando, Luis Javier PerezOlano. (Holguin, Carlos) (Entered: 07/07/2017)
216 NOTICE Re: Filing of Correspondence ﬁled by Defendants Michael Chertoff, Michael B Mukasey, Ofﬁce of Refugee Resettlement. (Ward, Brian) (Entered: 07/07/2017)
217 TEXT ONLY ENTRY by Judge Dean D. Pregerson. On the Court's own motion, the Court advances the time of the hearing on the NOTICE OF MOTION AND MOTION to Enforce the Settlement Agreement 190 , previously scheduled for 7/10/2017 at 10:00 a.m. The Motion will now be heard on Monday, 7/10/2017 at 8:30 AM before Judge Dean D. Pregerson. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (smo) (Entered: 07/07/2017)
218 MINUTES OF MOTION TO ENFORCE SETTLEMENT AGREEMENT FILED BY PLAINTIFFS (DKT. NO. 190). MOTION to Enforce; Motion Hearing held before Judge Dean D. Pregerson: Court hears oral argument and takes the matter under submission. Court Reporter: Maria Bustillos. (shb) (Entered: 07/10/2017)
219 SUPPLEMENT to NOTICE OF MOTION AND MOTION to Enforce Settlement Agreement 190 (Supplemental Authority in Support of Motion) ﬁled by Plaintiffs J.E. LM, A. D. M.-L, V. G. R.-A, D. S. R.-O. (Attachments: # 1 Exhibit A, # 2 Afﬁdavit / Certiﬁcate of Service)(Palmer, Pamela) (Entered: 07/13/2017)
220 Mail Returned addressed to Gary Scott Slossberg re Minutes of In Chambers Order/Directive - no proceeding held 213 (pg) (Entered: 07/14/2017)

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CM/ECF - California Central District
221 RESPONSE ﬁled by Defendants Michael Chertoff, Michael B Mukasey, Ofﬁce of Refugee Resettlementto Supplement(Motion related), 219 (Attachments: # 1 Exhibit A) (Ward, Brian) (Entered: 07/20/2017)
222 REPLY IN SUPPORT OF NOTICE OF MOTION AND MOTION to Enforce Settlement Agreement 190 AND IN REPLY TO DEFENDANTS' RESPONSE TO NOTICE OF SUPPLEMENTAL AUTHORITY 221 ﬁled by Plaintiffs J.E. L-M, A. D. M.-L, V. G. R.-A, D. S. R.-O. (Palmer, Pamela) (Entered: 07/27/2017)
223 Notice of Appearance or Withdrawal of Counsel: for attorney Angela Viramontes counsel for Plaintiff Casa Libre Youth Shelter. Angela C. C. Viramontes is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Plaintiff Casa Libre Youth Shelter. (Viramontes, Angela) (Entered: 08/18/2017)
224 Notice of Appearance or Withdrawal of Counsel: for attorney Angela Viramontes counsel for Plaintiff Freddy Garrido-Martinez. Angela C. C. Viramontes is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Plaintiff Freddy Garrido-Martinez. (Viramontes, Angela) (Entered: 08/18/2017)
225 Notice of Appearance or Withdrawal of Counsel: for attorney Angela Viramontes counsel for Plaintiff Lucia Urey. Angela C. C. Viramontes is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Plaintiff Lucia Urey. (Viramontes, Angela) (Entered: 08/18/2017)
226 Notice of Appearance or Withdrawal of Counsel: for attorney Angela Viramontes counsel for Plaintiff Luis Miguel Morales. Angela C. C. Viramontes is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Plaintiff Luis Miguel Morales. (Viramontes, Angela) (Entered: 08/18/2017)
227 Notice of Appearance or Withdrawal of Counsel: for attorney Angela Viramontes counsel for Plaintiff Maejean Robinson. Angela C. C. Viramontes is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Plaintiff Maejean Robinson. (Viramontes, Angela) (Entered: 08/18/2017)
228 Notice of Appearance or Withdrawal of Counsel: for attorney Angela Viramontes counsel for Plaintiff Manuel Gomez. Angela C. C. Viramontes is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Plaintiff Manuel Gomez. (Viramontes, Angela) (Entered: 08/18/2017)
229 Notice of Appearance or Withdrawal of Counsel: for attorney Angela Viramontes counsel for Plaintiff Michael Yuban Obando. Angela C. C. Viramontes is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Plaintiff Michael Yuban Obando. (Viramontes, Angela) (Entered: 08/18/2017)
230 Notice of Appearance or Withdrawal of Counsel: for attorney Angela Viramontes counsel for Plaintiff Yan Jun Li. Angela C. C. Viramontes is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Plaintiff Yan Jun Li. (Viramontes, Angela) (Entered: 08/18/2017)
231 SUPPLEMENT to NOTICE OF MOTION AND MOTION to Enforce Settlement Agreement 190 (NOTICE OF SUPPLEMENTAL AUTHORITY) ﬁled by Plaintiffs J.E. LM, A. D. M.-L, V. G. R.-A, D. S. R.-O. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Afﬁdavit / Certiﬁcate of Service)(Palmer, Pamela) (Entered: 09/15/2017)

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CM/ECF - California Central District

PACER Service Center

Transaction Receipt

09/18/2017 20:37:25

PACER Login:

hs0328:2563377:0

Client Code:

Description: Docket Report

Search 2:05-cv-03604-DDP-RZ Criteria: End date: 9/18/2017

Billable Pages:

30

Cost: 3.00

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