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CLOSED,ECF

U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:19-cv-06443-JMF

Asylum Seeker Advocacy Project et al v. Barr et al Assigned to: Judge Jesse M. Furman Cause: 08:1101 Immigration & Nationality Act (Definitions)

Date Filed: 07/11/2019 Date Terminated: 09/06/2019 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

Plaintiff Asylum Seeker Advocacy Project

represented by Ahilan T Arulanantham ACLU of Southern California 1313 West 8th Street Los Angeles, CA 90017 213-977-5211 Email: arulanantham@law.ucla.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Belsher American Civil Liberties Union Foundation 125 Broad Street New York, NY 10004 212-607-3300 Email: abelsher@nyclu.org ATTORNEY TO BE NOTICED

Bradley S. Phillips Munger, Tolles & Olson LLP 350 S. Grand Avenue Ste 50th Floor Los Angeles, CA 90071 213-683-9262 Fax: 213-687-3702 Email: brad.phillips@mto.com ATTORNEY TO BE NOTICED

Christopher Thomas Dunn New York Civil Liberties Union 125 Broad Street, 17th floor New York, NY 10004 (212) 344-3005 Fax: (212) 344-3318 Email: cdunn@nyclu.org ATTORNEY TO BE NOTICED
Gina F. Elliott Munger, Tolles & Olson LLP 350 S. Grand Avenue Ste 50th Floor Los Angeles, CA 90071 213-683-9286 Email: gina.elliott@mto.com ATTORNEY TO BE NOTICED
Gregory Phillips Munger, Tolles & Olson LLP 350 S. Grand Avenue Ste 50th Floor Los Angeles, CA 90071 213-683-9276 Email: gregory.phillips@mto.com ATTORNEY TO BE NOTICED
Robert L. Dell Angelo Munger, Tolles & Olson LLP 350 S. Grand Avenue, 50th Floor Los Angeles, CA 90071 (213)-683-9540 Fax: (213)-687-3702 Email: robert.dellangelo@mto.com ATTORNEY TO BE NOTICED
Robert Andrew Hodgson New York Civil Liberties Union 125 Broad St. 19th Floor New York, NY 10004 (212)-607-3317 Email: rhodgson@nyclu.org ATTORNEY TO BE NOTICED
Skylar Brooks Grove

Plaintiff
Central American Resource Center Los Angeles

Munger, Tolles & Olson LLP (SF) 560 Mission Street, 27th Floor San Francisco, CA 94105 (415)-512-4088 Fax: (415)-644-6998 Email: skylar.brooks@mto.com ATTORNEY TO BE NOTICED
Melinda Eades Lemoine Munger, Tolles & Olson LLP (LA) 355 South Grand Avenue, 35th Floor Los Angeles, CA 90071 (213) 683-9171 Fax: (213) 593-4071 Email: melinda.lemoine@mto.com ATTORNEY TO BE NOTICED
represented by Ahilan T Arulanantham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy Belsher (See above for address) ATTORNEY TO BE NOTICED
Bradley S. Phillips (See above for address) ATTORNEY TO BE NOTICED
Christopher Thomas Dunn (See above for address) ATTORNEY TO BE NOTICED
Gina F. Elliott (See above for address) ATTORNEY TO BE NOTICED
Gregory Phillips (See above for address) ATTORNEY TO BE NOTICED
Robert L. Dell Angelo (See above for address)

Plaintiff Immigrant Defenders Law Center

ATTORNEY TO BE NOTICED
Robert Andrew Hodgson (See above for address) ATTORNEY TO BE NOTICED
Skylar Brooks Grove (See above for address) ATTORNEY TO BE NOTICED
Melinda Eades Lemoine (See above for address) ATTORNEY TO BE NOTICED
represented by Ahilan T Arulanantham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy Belsher (See above for address) ATTORNEY TO BE NOTICED
Bradley S. Phillips (See above for address) ATTORNEY TO BE NOTICED
Christopher Thomas Dunn (See above for address) ATTORNEY TO BE NOTICED
Gina F. Elliott (See above for address) ATTORNEY TO BE NOTICED
Gregory Phillips (See above for address) ATTORNEY TO BE NOTICED
Robert L. Dell Angelo (See above for address) ATTORNEY TO BE NOTICED
Robert Andrew Hodgson (See above for address)

Plaintiff Public Counsel

ATTORNEY TO BE NOTICED
Skylar Brooks Grove (See above for address) ATTORNEY TO BE NOTICED
Melinda Eades Lemoine (See above for address) ATTORNEY TO BE NOTICED
represented by Ahilan T Arulanantham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy Belsher (See above for address) ATTORNEY TO BE NOTICED
Bradley S. Phillips (See above for address) ATTORNEY TO BE NOTICED
Christopher Thomas Dunn (See above for address) ATTORNEY TO BE NOTICED
Gina F. Elliott (See above for address) ATTORNEY TO BE NOTICED
Gregory Phillips (See above for address) ATTORNEY TO BE NOTICED
Robert L. Dell Angelo (See above for address) ATTORNEY TO BE NOTICED
Robert Andrew Hodgson (See above for address) ATTORNEY TO BE NOTICED
Skylar Brooks Grove (See above for address)

V. Defendant Attorney General William Barr
Defendant Director James McHenry Director, Executive Office for Immigration Review
Defendant

ATTORNEY TO BE NOTICED
Melinda Eades Lemoine (See above for address) ATTORNEY TO BE NOTICED
represented by Brandon Matthew Waterman United States Attorney's Office, SDNY 86 Chambers Street New York, NY 10007 (212)-637-2741 Email: brandon.waterman@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael James Byars U.S. Attorney's Office, SDNY (Chambers Street) 86 Chambers Street New York, NY 10007 212-637-2793 Fax: 212-637-2786 Email: michael.byars@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brandon Matthew Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael James Byars (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Secretary Kevin McAleenan Secretary, Homeland Security
Defendant Acting Director Mark Morgan Acting Director, U.S. Immigration and Customs Enforcement
Defendant Director Thomas R. Decker Field Office Director, New York Field Office, U.S. Immigration and Customs Enforcement

represented by Brandon Matthew Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael James Byars (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brandon Matthew Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael James Byars (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brandon Matthew Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael James Byars (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed

#

07/11/2019 1

Docket Text
COMPLAINT against William Barr, Thomas Decker, in his official capacity as New York Field Office Director, U.S. Immigration and Customs Enforcement, Kevin K. McAleenan, Acting Secretary of DHS, James McHenry, Mark Morgan. (Filing Fee $ 400.00, Receipt Number ANYSDC-17227686)Document filed by Immigrant Defenders Law Center, Central American Resource Center Los Angeles, Asylum Seeker Advocacy Project, Public Counsel.(Lemoine, Melinda) (Entered: 07/11/2019)

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2 CIVIL COVER SHEET filed. (Lemoine, Melinda) (Entered: 07/11/2019)
3 REQUEST FOR ISSUANCE OF SUMMONS as to William Barr,
Attorney General, re: 1 Complaint,. Document filed by Asylum Seeker Advocacy Project, Central American Resource Center Los Angeles, Immigrant Defenders Law Center, Public Counsel. (Lemoine, Melinda) (Entered: 07/11/2019)
4 REQUEST FOR ISSUANCE OF SUMMONS as to James McHenry, Director of the Executive Office for Immigration
Review, re: 1 Complaint,. Document filed by Asylum Seeker Advocacy Project, Central American Resource Center Los Angeles, Immigrant Defenders Law Center, Public Counsel. (Lemoine, Melinda) (Entered: 07/11/2019)
5 FILING ERROR - DEFICIENT SUMMONS REQUEST PDF ERROR - REQUEST FOR ISSUANCE OF SUMMONS as to Kevin McAleenan, Secretary of Homeland Security, re: 1
Complaint,. Document filed by Asylum Seeker Advocacy Project, Central American Resource Center Los Angeles, Immigrant Defenders Law Center, Public Counsel. (Lemoine, Melinda) Modified on 7/12/2019 (pne). (Entered: 07/11/2019)
6 REQUEST FOR ISSUANCE OF SUMMONS as to Mark Morgan, Acting Director, U.S. Immigration and Customs Enforcement, re: 1
Complaint,. Document filed by Asylum Seeker Advocacy Project, Central American Resource Center Los Angeles, Immigrant Defenders Law Center, Public Counsel. (Lemoine, Melinda) (Entered: 07/11/2019)
7 REQUEST FOR ISSUANCE OF SUMMONS as to Thomas R. Decker, Field Office Director, New York Field Office, U.S.
Immigration and Customs Enforcement, re: 1 Complaint,. Document filed by Asylum Seeker Advocacy Project, Central American Resource Center Los Angeles, Immigrant Defenders Law Center, Public Counsel. (Lemoine, Melinda) (Entered: 07/11/2019)
CASE OPENING INITIAL ASSIGNMENT NOTICE: The aboveentitled action is assigned to Judge Jesse M. Furman. Please download and review the Individual Practices of the assigned District Judge, located at http://nysd.uscourts.gov/judges/District.

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Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at http://nysd.uscourts.gov/ecf_filing.php. (pne) (Entered: 07/12/2019)
Magistrate Judge Ona T. Wang is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: http://nysd.uscourts.gov/forms.php. (pne) (Entered: 07/12/2019)
Case Designated ECF. (pne) (Entered: 07/12/2019)
***NOTICE TO ATTORNEY REGARDING CIVIL CASE OPENING STATISTICAL ERROR CORRECTION: Notice to attorney Melinda Eades Lemoine. The following case opening statistical information was erroneously selected/entered: County code New York; Fee Status code due (due). The following correction(s) have been made to your case entry: the County code has been modified to XX Out of State; the Fee Status code has been modified to pd (paid). (pne) (Entered: 07/12/2019)
***NOTICE TO ATTORNEY REGARDING PARTY MODIFICATION. Notice to attorney Melinda Eades Lemoine. The party information for the following party/parties has been modified: Thomas R. Decker, Kevin McAleenan, James McHenry, Mark Morgan. The information for the party/parties has been modified for the following reason/reasons: party name contained a typographical error; party text was omitted. (pne) (Entered: 07/12/2019)
8 ELECTRONIC SUMMONS ISSUED as to James McHenry. (pne) (Entered: 07/12/2019)
9 ELECTRONIC SUMMONS ISSUED as to Mark Morgan. (pne) (Entered: 07/12/2019)
10 ELECTRONIC SUMMONS ISSUED as to Thomas R. Decker. (pne) (Entered: 07/12/2019)
11 ELECTRONIC SUMMONS ISSUED as to William Barr. (pne) (Entered: 07/12/2019)

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***NOTICE TO ATTORNEY REGARDING DEFICIENT REQUEST FOR ISSUANCE OF SUMMONS. Notice to Attorney Melinda Eades Lemoine to RE-FILE Document No. 5 Request for Issuance of Summons,. The filing is deficient for the following reason(s): defendant name in the 'To' field must appear as it does on the pleading caption (remove middle initial). Re-file the document using the event type Request for Issuance of Summons found under the event list Service of Process - select the correct filer/filers - and attach the correct summons form PDF. (pne) (Entered: 07/12/2019)
12 NOTICE OF APPEARANCE by Christopher T Dunn on behalf of Asylum Seeker Advocacy Project, Central American Resource Center Los Angeles, Immigrant Defenders Law Center, Public Counsel. (Dunn, Christopher) (Entered: 07/12/2019)
13 NOTICE OF APPEARANCE by Amy Belsher on behalf of Asylum Seeker Advocacy Project, Central American Resource Center Los Angeles, Immigrant Defenders Law Center, Public Counsel. (Belsher, Amy) (Entered: 07/12/2019)
14 NOTICE OF APPEARANCE by Robert Andrew Hodgson on behalf of Asylum Seeker Advocacy Project, Central American Resource Center Los Angeles, Immigrant Defenders Law Center, Public Counsel. (Hodgson, Robert) (Entered: 07/12/2019)
15 FILING ERROR - DEFICIENT PLEADING - SUMMONS REQUESTED - WRONG EVENT TYPE SELECTED FROM MENU - REQUEST FOR ISSUANCE OF AMENDED
SUMMONS as to Kevin McAleenan, re: 1 Complaint,. Document filed by Asylum Seeker Advocacy Project, Central American Resource Center Los Angeles, Immigrant Defenders Law Center, Public Counsel. (Lemoine, Melinda) Modified on 7/15/2019 (dnh). (Entered: 07/12/2019)
16 MOTION for Bradley S. Phillips to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number BNYSDC-17244272. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Asylum Seeker Advocacy Project, Central American Resource Center Los Angeles, Immigrant Defenders Law Center, Public Counsel. (Attachments: # 1 Affidavit ISO Motion for Admission PHV, # 2 Text of Proposed Order for Admission PHV)(Phillips, Bradley) (Entered: 07/15/2019)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 16 MOTION for Bradley S. Phillips

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to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number BNYSDC-17244272. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (jc) (Entered: 07/15/2019)
***NOTICE TO ATTORNEY REGARDING DEFICIENT REQUEST FOR ISSUANCE OF SUMMONS. Notice to Attorney Melinda Eades Lemoine to RE-FILE Document No. 15 Request for Issuance of Amended Summons,. The filing is deficient for the following reason(s): the wrong event type was used to file the request for issuance of summons; This is not an Amended Summons. Re-file the document using the event type Request for Issuance of Summons found under the event list Service of Process - select the correct filer/filers - and attach the correct summons form PDF. (dnh) (Entered: 07/15/2019)
17 REQUEST FOR ISSUANCE OF SUMMONS as to Kevin
McAleenan, re: 1 Complaint,. Document filed by Asylum Seeker Advocacy Project, Central American Resource Center Los Angeles, Immigrant Defenders Law Center, Public Counsel. (Lemoine, Melinda) (Entered: 07/15/2019)
18 MOTION for Gregory Duncan Phillips to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17246983. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Asylum Seeker Advocacy Project, Central American Resource Center Los Angeles, Immigrant Defenders Law Center, Public Counsel. (Attachments: # 1 Affidavit Affidavit of Gregory D. Phillips in Support of Motion for Admission Pro Hac Vice, # 2 Text of Proposed Order)(Phillips, Gregory) (Entered: 07/15/2019)
19 MOTION for Skylar D. Brooks to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17247445. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Asylum Seeker Advocacy Project, Central American Resource Center Los Angeles, Immigrant Defenders Law Center, Public Counsel. (Attachments: # 1 Affidavit Skylar D. Brooks, # 2 Text of Proposed Order)(Brooks, Skylar) (Entered: 07/15/2019)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 19 MOTION for Skylar D. Brooks to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17247445. Motion and supporting papers to be

07/16/2019 07/16/2019 07/16/2019 07/16/2019 07/16/2019

reviewed by Clerk's Office staff., 18 MOTION for Gregory Duncan Phillips to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17246983. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 07/16/2019)
20 ORDER granting 19 Motion for Skylar D. Brooks to Appear Pro Hac Vice; 16 Motion for Bradley S. Phillips to Appear Pro Hac Vice; and 18 Motion for Gregory Duncan Phillips to Appear Pro Hac Vice. (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 07/16/2019)
21 MOTION for Gina Elliott to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17251018. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Asylum Seeker Advocacy Project, Central American Resource Center Los Angeles, Immigrant Defenders Law Center, Public Counsel. (Attachments: # 1 Affidavit Affidavit of Gina Elliott in Support of Motion for Admission Pro Hac Vice, # 2 Text of Proposed Order Order re Motion for Admission Pro Hac Vice)(Elliott, Gina) (Entered: 07/16/2019)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 21 MOTION for Gina Elliott to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17251018. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 07/16/2019)
22 MOTION for Robert L. Dell Angelo to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17251831. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Asylum Seeker Advocacy Project, Central American Resource Center Los Angeles, Immigrant Defenders Law Center, Public Counsel. (Attachments: # 1 Affidavit of Robert L. Dell Angelo in Support of Motion for Pro Hac Vice, # 2 Order for Admission Pro Hac Vice)(Dell Angelo, Robert) (Entered: 07/16/2019)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 22 MOTION for Robert L. Dell Angelo to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17251831. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been

reviewed and there are no deficiencies. (wb) (Entered: 07/16/2019)

07/16/2019

23 ORDER granting 21 Motion for Gina Elliott to Appear Pro Hac Vice (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 07/16/2019)

07/16/2019

24 ORDER granting 22 Motion for Robert L. Dell Angelo to Appear Pro Hac Vice (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 07/16/2019)

07/16/2019

25 ELECTRONIC SUMMONS ISSUED as to Kevin McAleenan. (dnh) (Entered: 07/16/2019)

07/16/2019 26

LETTER MOTION for Conference on July 18, 2019 addressed to Judge Jesse M. Furman from Bradley S. Phillips dated July 16, 2019. Document filed by Asylum Seeker Advocacy Project, Central American Resource Center Los Angeles, Immigrant Defenders Law Center, Public Counsel.(Phillips, Bradley) (Entered: 07/16/2019)

07/16/2019

27 NOTICE OF APPEARANCE by Brandon Matthew Waterman on behalf of William Barr, Thomas R. Decker, Kevin McAleenan, James McHenry, Mark Morgan. (Waterman, Brandon) (Entered: 07/16/2019)

07/16/2019

28 ORDER granting 26 Letter Motion for Conference. Defendants shall file a response to Plaintiffs' letter motion by July 17, 2019, at 5 p.m., and counsel for all parties shall appear for a conference with the Court on July 18, 2019 at 11:00 a.m. in Courtroom 1105 of the Thurgood Marshall United States Courthouse, 40 Centre Street, New York, New York. Absent leave of Court obtained by letter-motion filed before the conference, the conference must be attended by the attorney who will serve as principal trial counsel. (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 07/16/2019)

07/17/2019

29 NOTICE OF APPEARANCE by Michael James Byars on behalf of William Barr, Thomas R. Decker, Kevin McAleenan, James McHenry, Mark Morgan. (Byars, Michael) (Entered: 07/17/2019)

07/17/2019 30

MEMORANDUM OPINION AND ORDER: For these reasons, the Clerk of Court is directed to change the nature of suit code to No. 890, "Other Statutory Actions," thereby lifting the limitations on remote electronic access to the docket imposed by Rule 5.2(c). (Signed by Judge Jesse M. Furman on 7/17/2019) (ne) (Entered: 07/17/2019)

07/17/2019 31

LETTER addressed to Judge Jesse M. Furman from Brandon M. Waterman dated July 17, 2019 re: The defendants' response to the plaintiffs' July 16 letter (ECF No. 26) and opposition to plaintiffs' request for expedited discovery. Document filed by William Barr, Thomas R. Decker, Kevin McAleenan, James McHenry, Mark Morgan.(Waterman, Brandon) (Entered: 07/17/2019)

07/17/2019

32 FILING ERROR - DEFICIENT DOCKET ENTRY - MOTION for Ahilan T. Arulanantham to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17263895. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Asylum Seeker Advocacy Project, Central American Resource Center Los Angeles, Immigrant Defenders Law Center, Public Counsel. (Attachments: # 1 Affidavit, # 2 Correspondence, # 3 Proposed Order)(Arulanantham, Ahilan) Modified on 7/18/2019 (wb). (Entered: 07/17/2019)

07/17/2019 33

LETTER MOTION for Conference -- Appearances by Bradley S. Phillips (in person) and Ahilan Arulanantham (telephonically) addressed to Judge Jesse M. Furman from Bradley S. Phillips dated July 17, 2019. Document filed by Asylum Seeker Advocacy Project, Central American Resource Center Los Angeles, Immigrant Defenders Law Center, Public Counsel.(Phillips, Bradley) (Entered: 07/17/2019)

07/17/2019

34 ORDER granting 33 Letter Motion Seeking Leave for Counsel to Participate by Telephone. Mr. Arulanantham is granted leave to participate in tomorrow's conference by telephone. Prior the conference, co-counsel shall provide the Court's staff with a telephone number at which Mr. Arulanantham can be reached at the time of the conference. The Court anticipates that counsel in the courtroom will do most, if not all, of the speaking. (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 07/17/2019)

07/18/2019

>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice to RE-FILE Document No. 32 MOTION for Ahilan T. Arulanantham to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC17263895. Motion and supporting papers to be reviewed by Clerk's Office staff... The filing is deficient for the following reason(s): missing Certificate of Good Standing from Supreme Court of California;. Re-file the motion as a Motion to Appear Pro Hac Vice - attach the correct signed PDF - select the correct named filer/filers - attach valid Certificates of Good Standing

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issued within the past 30 days - attach Proposed Order.. (wb) (Entered: 07/18/2019)
Minute Entry for proceedings held before Judge Jesse M. Furman: Discovery Conference held on 7/18/2019. Gregory Phillips, Christopher Dunn, Ahilan Arulanantham (via phone), Robert Hodgson present for Plaintiffs. Brandon Waterman and Michael Byars present for Defendants. Court reporter present. -- See transcript. (ab) (Entered: 07/18/2019)
35 SCHEDULING ORDER: As discussed on the record during the conference held earlier today, Defendants shall file a motion to dismiss the Complaint on jurisdictional grounds no later than July 24, 2019. Any opposition to the motion shall be filed no later than July 30, 2019. Any reply shall be filed no later than August 2, 2019. SO ORDERED. (Motions due by 7/24/2019. Responses due by 7/30/2019. Replies due by 8/2/2019). (Signed by Judge Jesse M. Furman on 7/18/2019) (rjm) (Entered: 07/18/2019)
36 FILING ERROR - DEFICIENT DOCKET ENTRY - MOTION for Ahilan Thevanesan Arulanantham to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17280999. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Asylum Seeker Advocacy Project, Central American Resource Center Los Angeles, Immigrant Defenders Law Center. (Attachments: # 1 Affidavit Affidavit of Ahilan Arulanantham in Support of Motion for Admission Pro Hac Vice, # 2 Text of Proposed Order)(Arulanantham, Ahilan) Modified on 7/22/2019 (wb). (Entered: 07/19/2019)
>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice to RE-FILE Document No. 36 MOTION for Ahilan Thevanesan Arulanantham to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17280999. Motion and supporting papers to be reviewed by Clerk's Office staff... The filing is deficient for the following reason(s): missing Certificate of Good Standing from Supreme Court of California;. Re-file the motion as a Motion to Appear Pro Hac Vice - attach the correct signed PDF - select the correct named filer/filers - attach valid Certificates of Good Standing issued within the past 30 days - attach Proposed Order.. (wb) (Entered: 07/22/2019)
37 MOTION for Ahilan Thevanesan Arulanantham to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Asylum Seeker Advocacy Project,

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07/31/2019

Central American Resource Center Los Angeles, Immigrant Defenders Law Center. (Attachments: # 1 Affidavit Affidavit of Ahilan Arulanantham in Support of Motion for Admission Pro Hac Vice, # 2 Text of Proposed Order Order for Admission Pro Hac Vice)(Arulanantham, Ahilan) (Entered: 07/22/2019)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 37 MOTION for Ahilan Thevanesan Arulanantham to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 07/22/2019)
38 ORDER granting 37 Motion for Ahilan Thevanesan Arulanantham to Appear Pro Hac Vice (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 07/22/2019)
39 MOTION to Dismiss for Lack of Jurisdiction . Document filed by William Barr, Thomas R. Decker, Kevin McAleenan, James McHenry, Mark Morgan.(Waterman, Brandon) (Entered: 07/24/2019)
40 MEMORANDUM OF LAW in Support re: 39 MOTION to Dismiss for Lack of Jurisdiction . . Document filed by William Barr, Thomas R. Decker, Kevin McAleenan, James McHenry, Mark Morgan. (Waterman, Brandon) (Entered: 07/24/2019)
41 SUMMONS RETURNED EXECUTED Summons and Complaint, served. All Defendants. Service was made by Certified Mail. Document filed by Immigrant Defenders Law Center, Central American Resource Center Los Angeles, Asylum Seeker Advocacy Project, Public Counsel. (Brooks, Skylar) (Entered: 07/25/2019)
42 RESPONSE in Opposition to Motion re: 39 MOTION to Dismiss for Lack of Jurisdiction . . Document filed by Asylum Seeker Advocacy Project, Central American Resource Center Los Angeles, Immigrant Defenders Law Center, Public Counsel. (Attachments: # 1 Declaration of Bo Cooper, # 2 Declaration of Shalyn Fluharty, # 3 Declaration of Mariela Jasso, # 4 Declaration of Judy London, # 5 Declaration of Trina A. Realmuto, # 6 Declaration of Swapna Reddy)(Arulanantham, Ahilan) (Entered: 07/30/2019)
43 TRANSCRIPT of Proceedings re: CONFERENCE held on 7/18/2019 before Judge Jesse M. Furman. Court Reporter/Transcriber: Vincent Bologna, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of

Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/21/2019. Redacted Transcript Deadline set for 9/3/2019. Release of Transcript Restriction set for 10/29/2019.(McGuirk, Kelly) (Entered: 07/31/2019)

07/31/2019

44 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 7/18/19 has been filed by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 07/31/2019)

08/02/2019

45 LETTER MOTION for Leave to File Excess Pages addressed to Judge Jesse M. Furman from Brandon M. Waterman dated August 2, 2019. Document filed by William Barr, Thomas R. Decker, Kevin McAleenan, James McHenry, Mark Morgan.(Waterman, Brandon) (Entered: 08/02/2019)

08/02/2019

46 ORDER granting 45 Letter Motion for Leave to File Excess Pages. (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 08/02/2019)

08/02/2019

47 REPLY MEMORANDUM OF LAW in Support re: 39 MOTION to Dismiss for Lack of Jurisdiction . . Document filed by William Barr, Thomas R. Decker, Kevin McAleenan, James McHenry, Mark Morgan. (Waterman, Brandon) (Entered: 08/02/2019)

09/05/2019 48

MEMORANDUM OPINION AND ORDER: re: 39 MOTION to Dismiss for Lack of Jurisdiction filed by William Barr, Thomas R. Decker, James McHenry, Mark Morgan, Kevin McAleenan. If true (and the Court has assumed that they are true for purposes of this motion), Plaintiffs' allegations are certainly troubling. According to the Complaint, unrepresented immigrant families and children find themselves in "a classic Catch-22 situation": having been deprived of notice and the opportunity to challenge entry of removal orders in the first instance, the only way they can challenge those orders now is by filing written motions to reopen. Opp'n at 1; see Compl. Paragraphs 3-6. But without counsel, English fluency, or an ability to navigate the complex immigration system, they realistically cannot file written motions to reopen to bring those failures [in notice] to light." Opp'n at 1. In light of Sections 1252(a)(5) and (b)(9),however, any remedy for these circumstances lies not in this Court, but elsewhere: in immigration court (by way of a motion to

09/06/2019
09/06/2019 11/04/2019

reopen), in the Court of Appeals (by way of a petition for review), or in Congress (by way of changing the law). Accordingly, and for the foregoing reasons, Defendants' motion to dismiss for lack of subject-matter jurisdiction is GRANTED and the Complaint is dismissed. The Clerk of Court is directed to terminate ECF No. 39 and to close the case. SO ORDERED. (Signed by Judge Jesse M. Furman on 9/05/2019) (ama) Transmission to Orders and Judgments Clerk for processing. (Entered: 09/05/2019)
49 CLERK'S JUDGMENT re: 48 Memorandum & Opinion in favor of James McHenry, Kevin McAleenan, Mark Morgan, Thomas R. Decker, William Barr against Asylum Seeker Advocacy Project, Central American Resource Center Los Angeles, Immigrant Defenders Law Center, Public Counsel. It is hereby ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the Court's Memorandum Opinion and Order dated September 5, 2019, if true (and the Court has assumed that they are true for purposes of this motion), Plaintiffs' allegations are certainly troubling. According to the Complaint, unrepresented immigrant families and children find themselves in "a classic Catch-22 situation": having been deprived of notice and the opportunity to challenge entry of removal orders in the first instance, the only way they can challenge those orders now is by filing written motions to reopen. Opp'n at I; see Comp!. Paragraphs 3-6. But without counsel, English fluency, or an ability to navigate the complex immigration system, they realistically cannot file written motions to reopen to bring those failures [in notice] to light." Opp'n at I. In light of Sections 1252(a)(5) and (b )(9), however, any remedy for these circumstances lies not in this Court, but elsewhere: in immigration court (by way of a motion to reopen), in the Court of Appeals (by way of a petition for review), or in Congress (by way of changing the law). Accordingly, and for the foregoing reasons, Defendants' motion to dismiss for lack of subject-matter jurisdiction is GRANTED and the Complaint is dismissed; accordingly, the case is closed. (Signed by Clerk of Court Ruby Krajick on 9/6/2019) (Attachments: # 1 Right to Appeal)(km) (Entered: 09/06/2019)
Terminate Transcript Deadlines (km) (Entered: 09/06/2019)
50 NOTICE OF APPEAL from 48 Memorandum & Opinion,,,,,,. Document filed by Asylum Seeker Advocacy Project, Central American Resource Center Los Angeles, Immigrant Defenders Law Center, Public Counsel. Form C and Form D are due within 14 days

11/04/2019 11/04/2019 11/04/2019
11/21/2019

to the Court of Appeals, Second Circuit. (Arulanantham, Ahilan) (Entered: 11/04/2019)
Appeal Fee Due: for 50 Notice of Appeal,.$505.00 Appeal fee due by 11/18/2019. (nd) (Entered: 11/04/2019)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 50 Notice of Appeal,. (nd) (Entered: 11/04/2019)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 50 Notice of Appeal, filed by Central American Resource Center Los Angeles, Immigrant Defenders Law Center, Public Counsel, Asylum Seeker Advocacy Project were transmitted to the U.S. Court of Appeals. (nd) (Entered: 11/04/2019)
51 MANDATE of USCA (Certified Copy) as to 50 Notice of Appeal, filed by Central American Resource Center Los Angeles, Immigrant Defenders Law Center, Public Counsel, Asylum Seeker Advocacy Project. USCA Case Number 19-3659. The parties in the above-referenced case have filed a stipulation withdrawing this appeal pursuant to FRAP 42. The stipulation is hereby "So Ordered".. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 11/21/2019. (nd) (Entered: 11/21/2019)

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 Case 1:19-cv-06443-JMF Document 1 Filed 07/11/19 Page 1 of 44

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

Asylum Seeker Advocacy Project; Central American Resource Center – Los Angeles; Immigrant Defenders Law Center; and Public Counsel,
Plaintiffs,

Case No.

vs.

William Barr, Attorney General; James McHenry, Director, Executive Office for Immigration Review; Kevin McAleenan, Secretary, Homeland Security; Mark Morgan, Acting Director, U.S. Immigration and Customs Enforcement; and Thomas R. Decker, Field Office Director, New York Field Office, U.S. Immigration and Customs Enforcement,

Defendants.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Dated: July 11, 2019
New York, NY
INTRODUCTION 1. Plaintiffs are several organizations that serve immigrant families and children who fled persecution or torture in their home countries. They seek to prevent imminent deportations in violation of the most basic due process principles: the rights to notice and an opportunity to be heard. The families and children whom Plaintiffs serve fled their countries within the last five years. But none of them ever had their claims for asylum and related relief

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heard by an immigration judge. Instead, the government ordered them removed in absentia because they failed to appear in court.
2. Upon information and belief, the Trump Administration will soon arrest en masse thousands of these families and children – most of them from El Salvador, Guatemala, and Honduras. Specifically, Mark Morgan, Acting Director of ICE, announced on June 19, 2019 that the upcoming mass arrests would include among its targets 2,000 families who recently arrived and were ordered deported in absentia.
3. The in absentia removal orders the Trump Administration now seeks to enforce were not properly entered because the government’s system for providing notice is in chaos. In thousands of cases, the government mailed notices to incorrect addresses; sent them with no date or time; and set hearings for dates – including weekends – when no hearings were being held at all.
4. Even when the government sent notices to the right address for a real hearing, it repeatedly sent them too late, for locations unreasonably far from immigrants’ homes. Notices thus arrived either after the date set for a hearing or just a few days before, requiring indigent families to immediately travel across the country to hearings in distant states.
5. The government also entered thousands of in absentia orders against children, even though those children obviously had no control over whether they appeared in court.
6. Defendants will contend that any individual improperly ordered removed in absentia can and must file a written “motion to reopen” to establish their removal order was entered in error. But that procedure is effectively unavailable for unrepresented families and children. Such individuals are unable to write in English a document satisfying the complex procedural requirements applicable to motions to reopen.
7. The unrepresented families and children ordered removed in absentia through these deficient procedures did not receive proper notice, are unable to file a motion to reopen, and could suffer serious harm if deported. The Due Process Clause and the refugee protection laws therefore require that these individuals have an opportunity, before they are deported, to
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appear before an immigration judge, where the judge can speak to them to determine whether rescission of their order is warranted.
8. Unless this Court enforces that requirement, thousands of individuals could be deported without ever receiving a fair opportunity to appear before a judge, as required by the Due Process Clause and the immigration laws.
JURISDICTION AND VENUE 9. This Court has subject matter jurisdiction pursuant to 28 U.S.C. 1331, which confers jurisdiction to consider federal questions.1 10. This Court may grant relief under 28 U.S.C. 1331 (federal question), 28 U.S.C. 1651 (All Writs Act), 5 U.S.C. 702 and 706 (Administrative Procedure Act), 28 U.S.C. 2201 and 2202 (Declaratory Judgment Act), and Fed. R. Civ. P. 65 (injunctive relief). Defendants do not have sovereign immunity for claims seeking injunctive relief for constitutional violations, see Ex Parte Young, 209 U.S. 123 (1908). In any event, the government has waived any such immunity. 5 U.S.C. 702. 11. Venue is proper in the Southern District of New York under 28 U.S.C. 1391 because Defendants are officers or employees of the United States and a Plaintiff resides in this District, see 28 U.S.C. 1391(e)(1)(C); because a substantial part of the events giving rise to the claims in this action took place in this District, see 28 U.S.C. 1391(e)(1)(B); and because a Defendant resides in this District, see 28 U.S.C. 1391(e)(1)(A).2
1 The Due Process Clause and Article III of the U.S. Constitution also require some federal forum for judicial review of federal statutory and constitutional claims like those at issue here. 2 The Transactional Records Access Clearinghouse (TRAC) at Syracuse University obtains data on various aspects of the immigration court process from the Executive Office of Immigration Review. Based on its analysis, more than 5,000 unrepresented children have been ordered deported in absentia in New York since 2014. See Transactional Records Access Clearinghouse Immigration, Juveniles – Immigration Court Deportation Proceedings (last visited July 9, 2019), https://trac.syr.edu/phptools/immigration/juvenile/. While data about family units from the last two years is limited, more than 800 unrepresented people in family units were ordered removed in absentia in New York from fiscal years 2014 to 2017. See Transactional Records Access Clearinghouse Immigration, Priority Immigration Court Cases: Women With Children (last visited July 9, 2019), https://trac.syr.edu/phptools/immigration/mwc/.
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PARTIES 12. The Asylum Seeker Advocacy Project (“ASAP”) was founded in 2015 and has been fiscally sponsored by the Urban Justice Center, a 501(c)(3) nonprofit organization. It is incorporated in New York and its office is located in New York City (within the Southern District). 13. ASAP aims to prevent the wrongful deportation of families seeking asylum and otherwise vindicate their rights. To achieve this goal, ASAP provides legal representation and related forms of assistance to individuals who have sought asylum at the Mexico-U.S. border, regardless of where they are currently located. 14. ASAP’s work has focused on serving families who have little or no access to traditional legal service providers, including in rural places and less resourced states. Most of ASAP’s clients thus far have been individuals whom the government initially detained in border detention centers. 15. ASAP attorneys and support staff typically work remotely to represent asylumseeking families who are facing deportation. 16. CARECEN-Los Angeles (hereinafter “CARECEN”) was founded in 1986 to address the needs of Salvadorans and other Central Americans who fled the region amid the civil wars, political repression, and counter-insurgencies of the 1980s. CARECEN focuses on providing immigration legal services and advocacy and also seeks to advance health and wellness and family support for immigrants. Its mission is to provide direct services and engage in community development and advocacy to help create a thriving Latino immigrant community. 17. CARECEN’s attorneys have provided, inter alia, free legal assistance to immigrants, including to immigrants subject to in absentia removal orders, and have filed motions to reopen on behalf of such immigrants. CARECEN offers immigrant communities free know-your-rights training, addressing, inter alia, removal proceedings, in absentia orders, and motions to reopen. CARECEN also engages in community development and advocacy regarding immigration issues.
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18. Immigrant Defenders Law Center (“ImmDef”), founded in 2015, is one of the largest nonprofit providers of deportation defense in California. ImmDef’s mission is to provide access to counsel to all indigent immigrants in deportation proceedings and defend immigrant communities from systemic injustices within the legal system. ImmDef focuses on representing the most vulnerable populations in removal proceedings, including unaccompanied children and youth who arrive alone in the United States and face deportation, adults with mental-health challenges, and lawful permanent residents facing deportation due to unlawful conviction.
19. ImmDef attorneys have provided, inter alia, free legal assistance to immigrant children, including to immigrants subject to in absentia removal orders, and have filed motions to reopen on their behalf. Through its Detained Youth Empowerment Project, which provides know-your-rights classes and legal screenings for all children detained in shelters in the greater Los Angeles area, ImmDef also works to educate children about the immigration system. ImmDef engages in advocacy with lawmakers at the local, state, and federal level, with the goal of furthering universal representation and establishing a public-defender system for immigrants.
20. Public Counsel was founded in 1970 and is the largest pro bono law firm in the nation. Its activities are far-ranging and affect a wide spectrum of people who live at or below the poverty line. Public Counsel’s mission is, in part, to protect the legal rights of disadvantaged children; to represent immigrants who have been the victims of torture, persecution, domestic violence, trafficking, and other crimes; and to foster economic justice by providing individuals and institutions in underserved communities with access to quality legal representation.
21. Public Counsel’s attorneys have provided, inter alia, free legal assistance to immigrants in removal proceedings, including immigrants subject to in absentia removal orders, and have filed motions to reopen on behalf of such immigrants.
22. Public Counsel also participates in coalitions that seek to influence immigration policy. For instance, in 2015, Public Counsel was a signatory on a letter to President Barack Obama opposing reported DHS plans to conduct immigration raids to round up and deport Central American children and their parents.
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23. Defendant William Barr is the Attorney General of the United States, the most senior official in the U.S. Department of Justice (“DOJ”). He has the authority to interpret the immigration laws and adjudicate removal cases. The Attorney General delegates this responsibility to the Executive Office for Immigration Review (“EOIR”), which administers the immigration courts and the Board of Immigration Appeals (“BIA”). He is named in his official capacity.
24. Defendant James McHenry is the Director of EOIR, the agency within DOJ responsible for the immigration courts and the BIA. He is named in his official capacity.
25. Defendant Kevin McAleenan is the Acting Secretary of the U.S. Department of Homeland Security (“DHS”), an agency of the United States. He is named in his official capacity.
26. Defendant Mark Morgan is the Acting Director of U.S. Immigration and Customs Enforcement (“ICE”). ICE is responsible for the apprehension, detention, and removal of noncitizens from the United States. He is named in his official capacity.
27. Defendant Thomas R. Decker is the Director of the New York Field Office for ICE, a component of DHS. Mr. Decker has custody of immigrants subject to in absentia orders after their apprehension within the jurisdiction of the New York Field Office. He is named in his official capacity.
FACTUAL BACKGROUND Families and Children Fleeing Violence 28. The number of people fleeing persecution who sought refuge in the United States began to increase significantly in 2014. In particular, a large number of people began to flee violence in El Salvador, Honduras and Guatemala. Between 2015 and 2017, the number of people from those countries requesting asylum in the immigration courts increased 258%. The
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number decreased somewhat in 2018, but early evidence suggests the number of people fleeing those countries has increased again in 2019.3
29. Since 2014, a significant percentage of people fleeing persecution have come either as families or as unaccompanied children.4 The percentage of all those apprehended at the Southwest border who arrived as families or unaccompanied children increased from 10% of the total number of individuals in 2012, to 66% in the period from October 2018 to May 2019.5 A total of 65,691 adults and children had their cases processed as “family unit” cases between September 2018 and May 2019 in ten immigration court locations (while other families did not have their cases processed as “family units”).6
30. Many of the families and unaccompanied children who have sought refuge here fled persecution, torture, or death at the hands of their governments, transnational gangs, or their own family members. Many migrant children have also been raped, kidnapped, abandoned, or physically abused in their home countries or by smugglers during their journey to the United States.
3 Miriam Jordan, More Migrants Are Crossing the Border This Year. What’s Changed? New York Times (March 5, 2019) (268,044 migrants detained in the first five months of this fiscal year, including 136,150 people arriving in families with children). 4 For purposes of this complaint, “families” refers to individuals who were part of a family unit at the time of their apprehension or when their cases were processed by the immigration courts. “Unaccompanied children” or “children” similarly refers to people under 18 who were unaccompanied by their parents at the time of their apprehension or when their cases were processed. 5 U.S. Customs and Border Protection, Southwest Border Migration, https://www.cbp.gov/newsroom/stats/sw-border-migration (last visited June 19, 2019). Adam Isacson, et al., There is a Crisis at the U.S.-Mexico Border. But It’s Manageable, Washington Office on Latin America, April 4, 2019, https://www.wola.org/analysis/fix-us-mexico-borderhumanitarian-crisis/ (last visited June 19, 2019). 6 Transactional Records Access Clearinghouse Immigration, Most Released Families Attend Immigration Court Hearings (June 18, 2019) https://trac.syr.edu/immigration/reports/562/. Memorandum from James R. McHenry, Track and Expedition of “Family Unit” Cases 1 (Nov. 16, 2018), https://www.justice.gov/eoir/page/file/1112036/download (Family unit cases started to be tracked in ten immigration court locations: Atlanta, Baltimore, Chicago, Houston, Los Angeles, Miami, New Orleans, New York City, San Francisco).
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The “Rocket Docket” Causes Widespread Notice Failures and Other Due Process Problems.
31. In response to the increase in families and children fleeing their countries of origin, since 2014 the government has consistently processed the deportation cases of these families and children on an extremely expedited basis, in a chaotic and disorganized manner. Massive errors in the implementation of these so-called “rocket dockets” have resulted in widespread failures to provide adequate notice in thousands of cases. Many of these errors were likely accidental, but others were at least reckless and in some cases intentional.
32. In the summer of 2014, the Obama Administration “prioritized” the deportation cases of families and children seeking asylum for expedited processing in the immigration court system. Immigration courts shifted their resources and altered their case management practices to resolve these deportation cases swiftly by creating rocket dockets to adjudicate them quickly.7 High-level administration officials endorsed this plan and also signaled their intention to deport the families and children subject to the rocket dockets. As then-Vice President Joe Biden stated, “the Department of Justice, Homeland Security . . . are enhancing the enforcement and removal proceedings because those who are pondering risking their lives to reach the United States should be aware of what awaits them. It will not be open arms. . . . [W]e’re going to send the vast majority of you back.” Press Release, Vice President Joe Biden, Office of the Vice President, Remarks to the Press with Q&A in Guatemala (Jun. 20, 2014).
33. From the outset, the rocket dockets produced widespread notice failures. For example, Plaintiffs and other legal service providers saw instances of immigrant families and children receiving hearing notices fewer than 10 days before their hearing date, contrary to the requirements of the Immigration and Nationality Act (“INA”), 8 U.S.C. 1229(b)(1), and in many instances after the scheduled hearing. In other instances people never received notices because
7 See Press Release, U.S. Department of Justice, Department of Justice Announces New Priorities to Address Surge of Migrants Crossing into the U.S. (Jul. 9, 2014); see also Memorandum from Brian M. O’Leary, Chief Immigration Judge, Executive Office for Immigration Review, to All Immigration Judges (Sept. 10, 2014).
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court staff incorrectly entered addresses or because, for other reasons, the addresses on file with EOIR did not match the addresses provided to the government by immigrants or their sponsors.8 In either case, the result was that notices were sent to the wrong addresses through no fault of the immigrants.
34. When thousands of unrepresented families failed to appear for their immigration court hearings, immigration judges consistently ordered them removed in absentia. The courts entered the in absentia removal orders in such cases against all the family members in such proceedings, including the children.
35. Similarly, when thousands of unrepresented unaccompanied children failed to appear for their hearings, the judges consistently ordered them removed. They did so despite the fact that—whether or not the adults involved had received proper notice—the children themselves had no control over whether or not they appeared in court.
36. The severity of these early problems caused by the rocket docket led dozens of legal-service providers to write the Obama Administration in February 2015, asking that it fix those problems: “Legal service providers, social service providers, and immigration advocates that work with children in removal proceedings have received numerous reports . . . of significant numbers of children who have either received defective notice of their removal
8 See Kate Linthicum, 7,000 Immigrant Children Ordered Deported Without Going to Court, L.A. Times (Mar. 6, 2015) (finding that notices sometimes arrived late, at the wrong address, or not at all; or that they arrived very shortly before the hearing date but required children to travel hundreds of miles to attend their court hearings), http://www.latimes.com/local/california/la-mechildren-deported-20150306-story.html; see also Tom Jawetz, Addressing the Flow of Central American Mothers and Children Seeking Protection, Center for American Progress (Jan. 12, 2016) (finding that the Obama Administration’s raids targeting families and children from Central America posed a serious “due process crisis” because the government often failed to provide “accurate and sufficient notice regarding scheduled court hearings”), https://www.americanprogress.org/issues/immigration/news/2016/01/12/128645/addressing-theflow-of-central-american-mothers-and-children-seeking-protection/; see also Philip E. Wolgin, Ensuring Due Process Protections for Central American Refugees, Center for American Progress (Feb. 1, 2016) (evidence suggests unaccompanied children were inadequately informed of future hearing dates), https://www.americanprogress.org/issues/immigration/news/2016/02/01/130294/ensuring-dueprocess-protections-for-central-american-refugees/.
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proceedings and upcoming hearing dates, or who have not received notice at all. Yet immigration courts have issued and continue to issue numerous in absentia removal orders against such children, including those without legal representation.” See Letter of February 9, 2015 from American Friends Service Committee, et al., to Juan Osuna, et al. (attached as Exhibit A).9
37. Despite this letter and other efforts to bring these issues to the attention of the government, the problems with defective notices continued. Although the government modified the expedited processing system in March 2015, the modifications had no effect on either the excessive speed with which cases were scheduled or the immigration judges’ practice of ordering that those who did not appear be removed.
38. The Trump Administration’s policies and practices have severely exacerbated these problems. The Trump Administration adopted its own version of the rocket dockets, resulting in predictable chaos. In January 2017, the Executive Office for Immigration Review set new case priorities revising docketing practices. Among those designated as the highest processing priority were unaccompanied children in government custody.
39. The following year, the Trump Administration instructed that cases of family units would be docketed expeditiously as well, so that they could be processed within one year. Although the Administration acknowledged that the previous family unit processing priority had failed, it asserted its new policy targeting family units would succeed.
40. Thus, chaotic docketing practices have continued unabated in the last two years, resulting in the same or worse notice problems. For example, in 2018, ICE knowingly issued thousands of Notices to Appear for dates on which immigration courts had not actually scheduled hearings. In some cases these purported notices listed weekend dates, or dates that do not exist, such as September 31. In hundreds of cases, applicants arrived for hearings to find long lines, only to learn that they were not in fact scheduled for a hearing on that day.
9 This letter traced the beginning of these problems to a charging practice that apparently began around May 24, 2014. A similar letter written by the New York Civil Liberties Union to the Chief Immigration Judge in New York suggested it could have begun as early as May 1, 2014. (attached as Exhibit B).
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41. In other cases, immigration enforcement officials served the Notice to Appear in person or at the correct address, but did not file it in court until long afterward. Individuals whose addresses changed after receiving such Notices to Appear had no mechanism to change their address with the immigration courts while awaiting their hearing date, because their cases were not yet in the court system.
42. Other notices were sent with no date and time, or in other cases with no location. The government had itself argued in briefing to the Supreme Court that the immigration statute does not permit courts to order that an individual to be ordered removed in absentia on the basis of a Notice to Appear issued without a date and time, Pereira v. Sessions, 138 S. Ct. 2105, 2118 (2018) (citing 8 U.S.C. 1229a(b)(5)(A) and (b)(5)(C)(ii)), but immigration judges issued thousands of such in absentia orders anyway.
43. As of the end of May 2019, a detailed analysis of court records found nearly 10,000 “phantom” family cases, meaning that the record contained a case number but did not include the date of the Notice to Appear, its filing date, the charges alleged, or any further details about the family. In other cases, court records left address fields blank, or the addresses contained transcription errors, such as ZIP codes that did not exist or that corresponded to a city different from the one listed. Overall, in 83% of the cases decided in absentia, not even the initial scheduling hearing ever took place.10
44. A different analysis conducted by the Department of Justice itself focused on one immigration court. Based on this analysis, the department admitted that court staff failed to process or send out many change-of-address forms: “Poor management of this core process . . . can result in respondents being ordered removed in absentia through no fault of their own.”11
45. At the same time that the Trump Administration failed to provide proper notice in thousands of cases, the Attorney General directed immigration judges to grant fewer
10 Transactional Records Access Clearinghouse Immigration, Most Released Families Attend Immigration Court Hearings (June 18, 2019) https://trac.syr.edu/immigration/reports/562/. 11 Ani Ucar, Leaked Report Shows the Utter Dysfunction of Baltimore’s Immigration Court, VICE NEWS, Oct. 3, 2018, https://news.vice.com/en us/article/xw94ea/leaked-report-shows-theutter-dysfunction-of-baltimores-immigration-court (last visited June 21, 2019).
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continuances. Matter of L-A-B-R-, 27 I. & N. Dec. 245 (2018). EOIR also implemented
performance metrics for immigration judges, requiring them to complete 700 cases per year.
These measures exacerbated the pressure on already overburdened immigration judges to resolve
cases very quickly, thereby increasing the number of unjustified in absentia orders.
46. As a result, for the last five years, immigration judges have issued in absentia
removal orders for tens of thousands of unrepresented families and children who never had a fair opportunity to appear in court.12
47. From fiscal years 2014 to 2017, 35,461 unrepresented “adults with children” (i.e.,
families) and 39,027 unrepresented “unaccompanied children” were ordered removed in absentia
under the Obama-era rocket dockets. Nearly 90% of all removal orders entered against
unrepresented families during that period were in absentia orders. Similarly, about 90% of the removal orders against unrepresented children during that period were entered in absentia.13
12 Manuel Madrid, Miami’s Immigration Court Has Become a Well-Oiled Deportation Machine, New Data Shows, MIAMI NEW TIMES, June 27, 2019, https://www.miaminewtimes.com/news/miamis-immigration-court-issues-deportation-ordersfor-thousands-of-families-11204731?fbclid=IwAR0aPr8Z8xn_I953xORMEp28CG9zuKH6j1nEeO9nJw0cQXfdjvDxaKZ8Cs (last visited July 2, 2019); see also Timothy Bella, An 11-yearold girl could be deported because of a court error triggered by the government shutdown, attorney says, THE WASHINGTON POST, April 12, 2019, https://www.washingtonpost.com/nation/2019/04/12/i-dont-want-be-taken-away-my-mom-anyear-old-girl-could-be-deported-without-her-family/?utm_term=.df0d0075a719 (last visited June 19, 2019). 13 Publicly available data from the “adults with children” docket covers the period from approximately the summer of 2014 through April 2017. Publicly available data for the “unaccompanied children” docket covers, inter alia, all of 2014, so the numbers cited above include some number of unrepresented children ordered removed in absentia before the government officially implemented the rocket docket in July 2014, as well as some number ordered removed in absentia after the docket officially stopped operating. See Transactional Records Access Clearinghouse Immigration, Priority Immigration Court Cases: Women with Children (last visited July 9, 2019) (approximately 88% of all removal orders against unrepresented “adults with children” on the “adults with children” docket were ordered removed in absentia), http://trac.syr.edu/phptools/immigration/mwc/; Transactional Records Access Clearinghouse Immigration, Juveniles—Immigration Court Deportation Proceedings (last visited July 9, 2019) (approximately 90% of all removal orders against unrepresented “juveniles” were in absentia), http://trac.syr.edu/phptools/immigration/juvenile/.
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48. Under the Trump Administration, Department of Justice statistics show that, as of June 2019, 12,784 “family units” have been ordered removed in its rocket dockets. 85% of those removal orders were entered in absentia.14 Data on unaccompanied children is harder to obtain due to the effects of the Trump Administration’s family-separation policy, but available data suggests nearly 30,000 unrepresented children have been ordered removed in absentia since 2018.15
49. Thus, there are now tens of thousands of families and children living in the United States with in absentia removal orders who never had a fair opportunity to appear in court.
In Absentia Orders and The Inadequacy of the Motion to Reopen Mechanism 50. The immigration statutes permit immigration judges to order individuals removed in absentia if they fail to appear, but only if the judge finds both that they received proper notice of the date and time of the hearing and are removable. 8 U.S.C. 1229(a)(1). See also 8 U.S.C. 1229(a)(2) (requiring additional notice where time or place of proceedings changes). 51. At the removal hearing, DHS must establish “by clear, unequivocal, and convincing evidence” both that it complied with its notice obligations and that the non-citizen is removable. 8 U.S.C. 1229a(b)(5)(A); 8 C.F.R. 1003.26. Unlike in at least some other legal systems, however, written notice is considered sufficient not only if it is “provided to the alien or the alien’s counsel of record,” but also if it is provided at the non-citizen’s most recent address on file. 8 U.S.C. 1229a(b)(5)(A). In other words, if a DHS prosecutor can show that the agency provided notice to that address, an Immigration Judge can proceed in absentia, whether or not the non-citizen ever received the notice or was actually even living there. Moreover, the agency treats removability as established by evidence that the non-citizen had no pre-existing authorization to enter or remain in the United States. DHS need not show ineligibility for asylum in order to establish removability.
14 Executive Office for Immigration Review Adjudication Statistics: “Family Unit” Data for Select Courts (available at https://www.justice.gov/eoir/file/1174141/download). 15 See supra n. 13 [[Transactional Records Access Clearinghouse Immigration, Juveniles— Immigration Court Deportation Proceedings (last visited July 9, 2017) https://trac.syr.edu/phptools/immigration/juvenile/.]]
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52. Nonetheless, the government treats an in absentia order as final and enforceable with no further process. When ICE enforcement officers encounter an individual with an in absentia order, they can arrest and deport that individual in a matter of days or even hours. Individuals ordered removed in absentia are provided no opportunity to appear before a judge, to appeal, or to any other process. Under current agency practice, the only way for an individual facing imminent deportation pursuant to an in absentia order to obtain relief from that order is to file a written motion to reopen. 8 C.F.R. 1003.23(b)(4)(ii).
53. The statute permits rescission of in absentia orders if notice was defective, upon a showing of exceptional circumstances, or for certain other reasons. See generally 8 U.S.C. 1229a(b)(5)(c).16 As noted above, however, the only mechanism the agency recognizes to permit someone to raise those arguments is for them to file a written motion.
54. For represented individuals, this written motion can serve as an important mechanism for addressing the due process failures described above. Immigration judges routinely have granted motions to reopen filed by Plaintiffs and other legal-service providers for families and children they represent—based on notice failures, service defects, the immigrant’s understandable inability to attend a hearing (including because he or she was a child at the time the removal order issued), and other common deficiencies. Many of these reopened proceedings have resulted in relief from deportation.
55. For example, Plaintiff Asylum Seeker Advocacy Project (ASAP), along with Catholic Legal Immigration Network, Inc., won all 46 of the cases in which they filed motions to reopen, the substantial majority without the need for any appeal. The top three reasons they found for their clients’ failure to appear were (1) lack of any timely notice; (2) government errors
16 Regulations and case law also recognize additional requirements for service in children’s cases. Service of a notice to appear “shall be made upon the person with whom . . . the minor resides” and “whenever possible, service shall also be made on the near relative, guardian, committee, or friend.” 8 C.F.R. 103.8(c)(2)(ii).
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and omissions in the communication of notice information; and (3) physical, geographical, and language barriers that prevented the client from attending the hearing.17
56. As these results show, a very high percentage of families and children ordered removed in absentia would have their motions to reopen granted, if they had the ability to present them.
57. Immigrant families and children who do not receive legal assistance from Plaintiffs or other attorneys are, however, unable to file motions to reopen. Most of these immigrants subject to in absentia orders speak limited if any English, and they lack the capacity to read, understand, and comply with the requirements for writing and filing a motion to reopen.
58. These requirements are extremely complex. The immigration statute recognizes three bases on which an immigration court can grant a motion to reopen an in absentia order. Non-citizens must demonstrate that they did not receive proper notice, that they were in federal or state custody and therefore failed to appear through no fault of their own, or that the nonappearance was due to “exceptional circumstances.” 8 U.S.C. 1229a(b)(5)(C). “Exceptional circumstances” in this context is a term of art, which refers to circumstances “beyond the control” of the immigrant, such as “battery or extreme cruelty” to the immigrant, “serious illness” of the immigrant, or “serious illness or death of the spouse, child, or parent,” but not “less compelling circumstances.” 8 U.S.C. 1229a(e)(1); see also 8 C.F.R. 1003.23(b)(iii)(A)(1). The deadline for filing a motion to reopen differs based on the claim being raised. There is no deadline for filing a motion to reopen based on alleged notice defects. 8 U.S.C. 1229a(b)(5)(C)(ii). A motion based on exceptional circumstances must be filed within 180 days of the removal order, though that deadline is subject to tolling. 8 U.S.C. 1229a(b)(5)(C)(i). The statute and BIA caselaw also recognize other bases for filing motions to reopen. See, e.g., 8 U.S.C. 1229a(c)(7)(C)(ii) (changed country conditions).
17 Asylum Seeker Advocacy Project and the Catholic Legal Immigration Network, Inc., Denied a Day in Court: The Government’s Use of In Absentia Removal Orders Against Families Seeking Asylum (2018). At the time of publication, two of the 46 cases had not been granted, but since publication the motions in those two cases were also granted.
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59. In addition, an individual seeking to file a motion to reopen an in absentia removal order must generally review their immigration file (known as the “A-file” or, for court records, the “Record of Proceedings”) to determine what the record discloses regarding the government’s attempt to provide notice. The government does not, however, provide individuals with a copy of their A-file and Record of Proceedings at the time they are arrested pending deportation.
60. Under current agency practice, the government does not permit individuals to make their motions to reopen orally before an immigration judge. Moreover, the government does not provide individuals with access to their A-files (the file containing all government documents related to their case) to prepare such motions. Indeed, it takes no steps to assist individuals who lack the capacity to file on their own, even once they are detained pending deportation. For these reasons, the motion-to-reopen process does not provide unrepresented individuals facing imminent removal any meaningful opportunity to challenge defects in their in absentia removal orders prior to deportation.
Plaintiffs’ Attempts to Protect Immigrant Families and Children 61. Plaintiffs provide legal representation to many families and unaccompanied children. In addition, because the Plaintiff organizations lack the capacity to represent all (or even most) of the unrepresented families and children they encounter, they provide a range of lesser forms of legal assistance to many of the unrepresented families and children they serve. 62. Plaintiffs have been, and will continue to be, harmed by the inadequacies of the current motion-to-reopen process for unrepresented individuals. Those deficiencies force them to divert resources away from their core services, thereby undermining their missions and impairing their activities. Each time raids against immigrants with existing in absentia orders occur, this harm is multiplied, as some or all Plaintiffs expend resources trying to identify the affected individuals and, if possible, assist them in filing motions to reopen or otherwise countering the defects in the motion-to-reopen process. Plaintiffs have also expended resources on community
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educational programs explaining in absentia removal orders and the risks they create and on advocacy to ameliorate the harsh effects of the rocket dockets.
63. In addition, the immediate deportation without a hearing of individuals with in absentia orders, including those Plaintiffs seek to serve, prevents those individuals from gaining access to the organizations’ core services. Although Plaintiffs assist individuals facing deportation with prior in absentia orders to the extent possible, they are not able to help all of their constituents in such circumstances.
64. As described above, Plaintiff Asylum Seeker Advocacy Project (ASAP) has focused its work on protecting families seeking asylum who face wrongful deportation.
65. Although ASAP’s key mission is to assist families in obtaining asylum, a large portion of its limited representation resources have instead been spent litigating motions to reopen due to the constitutional deficiencies associated with in absentia orders. At the cost of not being able to provide its full complement of core services, ASAP has been forced to focus on challenging in absentia orders because of the high rate of in absentia orders among families who fled persecution and the particular risk of immediate unlawful deportation that individuals with such orders face. Perhaps most important, pro bono resources—volunteer legal work by private law firms and attorneys—are very often unavailable to people with in absentia orders, because the requirements for preparing and filing written motions to reopen are technically complex and the work involved is far more than for other cases, thereby making those cases less attractive to private pro bono attorneys who are not immigration specialists. As a result of these factors, a large portion of ASAP’s direct representation has involved people who have been ordered removed in absentia.
66. If ASAP had not been compelled to expend these resources on in absentia orders, it would have directed them toward providing assistance to pro se individuals to file their asylum applications in immigration court or litigate appeals, placing cases with private attorneys to litigate asylum hearings, and otherwise working to help people obtain asylum and other services
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in aid of families’ seeking refuge. Instead, however, it has had to spend an inordinate amount of time and resources reopening cases just for people to get the chance to apply.
67. ASAP could conduct its work far more efficiently if the government were required to present individuals ordered removed in absentia to immigration judges, with an opportunity to move orally to reopen their cases, prior to executing the removal orders. Among other benefits, such a system often would obviate the need to prepare and file written motions. While in some cases such motions might still be required to supplement oral presentations, the number of them would be greatly reduced and they could be more narrowly focused on the specific issues that may have been identified in initial court proceedings. Such a system would also permit ASAP to concentrate on its mission by assisting individuals in their asylum cases in immigration court.
68. Plaintiff CARECEN-LA runs multiple core programs dedicated to ensure the legal rights of Central American immigrants. Resources from each of those programs are diverted to addressing the problems arising from the enforcement of in absentia orders against Central American families.
69. CARECEN-LA has a large community-education program to inform its constituents of the dangers arising from the immigration-enforcement system. That program utilizes “charlas”—community presentations convened at schools, consulates, CARECEN’s offices, and elsewhere—that provide basic but critical information concerning the immigration system. Because of the acute risk created by the possibility of immediate deportation arising from in absentia orders, the staff conducting charlas routinely include extensive information on how someone can determine that they have an in absentia order, the risks associated with such orders, and basic information about the motion-to-reopen process.
70. Through its charla programs, its office intake, and elsewhere, CARECEN-LA staff routinely encounter unrepresented individuals ordered removed in absentia on the rocket docket, including both families with children and children who came to this country alone. CARECEN-LA attorneys must work under intense time pressure to file motions to reopen in
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such cases, forcing them to change their work priorities to focus first on in absentia cases at the expense of other, core services, because an individual who is arrested with a pre-existing in absentia order faces immediate deportation without the opportunity to appear before a judge. CARECEN staff are forced to work much more quickly than they otherwise would to contact the individual’s family members on an expedited basis, attempt to obtain the relevant documents from the A-file through extraordinary channels, and file a motion to reopen on an expedited basis.
71. Whenever there are increased enforcement actions against any particular population, such as Central American families and children who came in the last few years, CARECEN-LA’s office receives a corresponding increase in intakes and requests for information. These increases inundate the organization’s staff, thereby diverting them from performing other work.
72. Thus, at the expense of fully pursuing its core goals, CARECEN has been compelled to devote significant portions of its limited resources to counteract the constitutionally insufficient process afforded immigrants subject to in absentia removal orders, for instance by undertaking additional legal representations, outreach efforts, and advocacy. If CARECEN had not been compelled to expend these resources, it would have directed them toward other efforts to advance immigrants’ rights and other abuses in the immigration-enforcement system.
73. In addition, funding for CARECEN’s asylum cases is based in part on the number of cases it handles per year and the number it anticipates serving. Because individuals with in absentia orders face immediate deportation and require complex written motions to reopen just to get a hearing before a judge, CARECEN expends resources that could otherwise be devoted to multiple other cases when it takes on a single in absentia case. That inefficiency has harmed CARECEN’s funding, because it reduces the total number of cases CARECEN can take on.
74. Plaintiff Immigrant Defenders Law Center (ImmDef) also runs several programs dedicated to ensuring the legal rights of non-citizens facing deportation, including Central Americans fleeing persecution. ImmDef provides education to community members, including
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members of the Central American refugee community, about the immigration-enforcement system. In that context, it must expend resources explaining in absentia removal orders and the particular dangers arising from them, thereby preventing it from addressing other important immigration-enforcement topics.
75. ImmDef attorneys also provide educational programs for dependency attorneys, hospitals, and other social service providers who come into contact with non-citizens, including Central Americans who came here fleeing persecution. ImmDef’s attorneys often must focus on the unique dangers associated with in absentia removal orders as part of those educational programs, thereby displacing content about other important immigration-enforcement topics.
76. In addition, ImmDef attorneys provide legal assistance and representation to every detained child in the Los Angeles area, including the children detained in long-term foster care facilities and any children held in the custody of the Office of Refugee Resettlement. Because some of those clients are released and subsequently ordered removed for failing to appear, ImmDef has former clients with in absentia removal orders. When its staff encounters those individuals, they must work expeditiously to protect them because of the unique risk posed by the possibility of deportation without a hearing. The need to protect individuals with in absentia orders thus displaces other immigration defense work.
77. Accordingly, at the expense of fully pursuing its core goals, ImmDef has been compelled to devote significant portions of its limited resources to counteract the constitutionally insufficient process afforded immigrants subject to in absentia removal orders, for instance by undertaking additional legal representations, outreach efforts, and advocacy. If ImmDef had not been compelled to expend these resources, it would have directed them toward other efforts to represent individuals in immigration court and otherwise advance immigrants’ rights and combat other abuses in the immigration-enforcement system.
78. Plaintiff Public Counsel also runs several programs to protect the rights of immigrants facing deportation, including people fleeing Central America. Public Counsel provides know-your-rights trainings and individualized legal assistance to detained individuals,
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including those who are detained after having previously received in absentia removal orders. When they encounter such individuals, Public Counsel attorneys must prioritize assisting them by explaining the requirements for filing motions to reopen, and, in some cases, filing the motions on their behalf. Because of the imminent threat of deportation in such cases, Public Counsel must divert immediate resources to them, at the expense of education other detainees in need of advice and/or taking on representation in other cases. Motion to reopen work is substantial. It may involve contacting the detainee’s family members on an expedited basis, speaking with local ICE authorities or detention center personnel, attempting to obtain the relevant documents from the A-file through extraordinary channels, and assisting with the filing of a motion to reopen on an extremely expedited basis.
79. Public Counsel has other programs that serve Central Americans fleeing persecution. For example, Public Counsel has several staff attorneys who represent children facing removal. Those attorneys have represented people who entered the United States as unaccompanied children and were later ordered removed in absentia. In some cases those children have come to Public Counsel through the foster-care system, while in others they have come through the adult-detainee population. Regardless of how the case arises, Public Counsel’s attorneys are forced to act more quickly in these cases in order to prevent execution of the in absentia removal order before a judge has had the opportunity to examine the individual’s defenses.
80. Because of the risk that a large number of its constituents could be immediately deported without a hearing, Public Counsel has been forced to expend resources on creating a new program to train attorneys on screening individuals in advance of the technically complex processes for preparing and filing written motions to reopen. Public Counsel has had to divert non-immigration attorneys from its other programs to receive training on and assist with handling these screenings. Public Counsel also has had to educate the legal community and members of the immigrant community on how to learn of the existence of in absentia orders and what legal strategies exist for challenging such orders. Thus, at the expense of fully pursuing its
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core goals, Public Counsel has been compelled to devote significant portions of its limited resources to counteract the constitutionally insufficient process afforded immigrants subject to in absentia removal orders, for instance by undertaking additional legal representations, outreach efforts, and advocacy. If Public Counsel had not been compelled to expend these resources, it would have directed them toward other efforts to advance immigrants’ rights and other abuses in the immigration-enforcement system.
81. Each of these organizations also engages in public advocacy to inform immigrant families and the general public about the risks associated with in absentia orders and to advocate against their use. For example, CARECEN-LA, ImmDef, and Public Counsel, along with other groups, organized a press conference to protest the Obama Administration’s raids against Central American refugees in January 2016.
Imminent Deportations of Families and Children Subjected to the “Rocket Docket.” 82. While families and children who receive in absentia removal orders have been at risk of deportation for years, the government has not consistently targeted them specifically in its enforcement efforts. The Obama Administration did so briefly in January 2016 and was heavily criticized for doing so. See, e.g., Josh Gerstein and Seung Min Kim, Obama administration kicks off family deportation raids, Politico (Jan. 4, 2016), https://www.politico.com/story/2016/01/obama-family-deportation-raids-217329 (describing raids affecting several dozen people in January 2016). 83. Upon information and belief, the situation has now changed. The President himself tweeted on June 17, 2019, that “[n]ext week ICE will begin the process of removing the millions of illegal aliens who have illicitly found their way into the United States.” Recent reports indicate that the President was referring to a plan to target families and children with in absentia removal orders en masse. In addition, on June 19, 2019, Mark Morgan, Acting Director of ICE, announced the upcoming mass arrests would include among its targets 2,000 families who recently arrived, were part of an expedited court process, failed to report for their hearing,
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and were ordered deported in early 2019. After a brief pause, on June 28, 2019 the President reiterated that ICE immigration raids would start in about a week, sometime after July 4.
84. These reports are consistent with earlier ones suggesting the Administration first considered plans to target families and children subject to in absentia orders at least two years ago. As reported in September 2017, “[t]he Trump administration is weighing a new policy that would fast-track the deportation of thousands of Central American teenagers who arrived at the southern border, unaccompanied by adults. . . . This new policy would call for expedited deportation of . . . the more than 150,000 children who arrived at the southern border alone, escaping violence and poverty in El Salvador, Honduras and Guatemala. Under the plan being discussed . . . they would not see an immigration judge first.”18
85. Upon information and belief, those plans were delayed by officials who thought them too draconian, if not unlawful. Those officials are now gone.19
LEGAL BACKGROUND 86. The central legal injury that Plaintiffs face arises from the government’s view that it may use in absentia removal orders to summarily deport unrepresented families and children, despite the massive notice deficiencies and other errors that infected thousands of those orders. 87. The Constitution and immigration laws require that individuals facing deportation receive hearings at which they can present their defenses. The Supreme Court held over one hundred years ago that the Fifth Amendment protects people facing deportation and therefore entitles them to notice, hearings, and other basic Due Process protections. Yamataya v. Fisher, 189 U.S. 86 (1903). 88. Immigration statutes codify that basic principle by providing a hearing and other protections to all people in removal proceedings, including those who have a credible fear of
18 See Franco Ordonez, Exclusive: Trump team drafting plan to deport more young people — Central American teens, (Sept. 21, 2017), http://www.mcclatchydc.com/news/politicsgovernment/white-house/article174488221.html#storylink=cpy. 19 Zolan Kanno-Youngs, In Shift, U.S. Vows to More Aggressively Deport Migrant Families, N.Y. TIMES, June 4, 2019, https://www.nytimes.com/2019/06/04/us/politics/ice-migrantfamilies.html (last visited June 19, 2019).
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persecution or torture. See generally 8 U.S.C. 1229a, 1225(b). Under these statutes and the Fifth Amendment, individuals in removal proceedings are entitled to “a full and fair hearing which provides a meaningful opportunity to be heard.” Lin v. U.S. Dept. of Justice, 453 F.3d 99, 104105 (2d Cir. 2006) (quoting Capric v. Ashcroft, 355 F.3d 1075, 1087 (7th Cir. 2004)).
89. While, as noted above, the statute and agency regulations on their face permit the deportation of individuals who failed to appear without further process, neither the Due Process Clause nor the refugee-protection provisions of the immigration laws permit application of that rule to unrepresented families and children ordered deported in absentia since 2014. Thousands of people in that group certainly failed to appear through no fault of their own, lack the ability to file a motion to reopen, and will face persecution or torture if returned to their home countries. Under those conditions, the risk of erroneous deprivation arising from the imposition of a requirement that they file a written motion to reopen before they can appear in court is intolerably high and therefore violates the Fifth Amendment and the immigration laws.
90. Several courts have issued injunctions against ICE’s use of process-free mass removals where particular populations were targeted for expedited enforcement, in order to provide such individuals meaningful access to procedures needed to seek immigration relief. See Chhoeun v. Marin, 306 F.Supp.3d 1147, 1162 (C.D. Cal. 2018) (“The Court has found that Petitioners [Cambodian nationals] are likely to succeed on their claim that removal without an opportunity to file and litigate motions to reopen constitutes a deprivation of Petitioners’ due process rights”); Devitri v. Cronen, 289 F.Supp.3d 287, 295 (D. Mass. 2018) (“Petitioners have proven a likelihood of success on their due process claim that they will suffer prejudice through a denial of a meaningful opportunity to have a motion to reopen and motion to stay ruled on by the BIA and Court of Appeals prior to removal to a country [Indonesia] where they have a credible fear of persecution”); but see Hamama v. Adducci, 912 F.3d 869, 874 (9th Cir. 2018) (“The Attorney General’s enforcement of long-standing removal orders . . . is not subject to judicial review”).
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COUNT I Violation of the Due Process Clause of the Fifth Amendment
to the United States Constitution 91. All of the foregoing allegations are repeated and realleged as though fully set forth herein. 92. The Fifth Amendment to the U.S. Constitution provides that “[n]o person shall be . . . deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. 93. Defendants’ actions, policies, and practices violate the Due Process Clause of the Fifth Amendment.
COUNT II Violation of the Immigration and Nationality Act, Prohibition on Removal to
Country Where Individual Would Face Persecution or Torture 94. All of the foregoing allegations are repeated and realleged as though fully set forth herein. 95. Defendants’ actions, policies, and practices violate the refugee-protection provisions of the INA, including 8 U.S.C. 1229a(b)(4)(B), 8 U.S.C. 1229a(b)(5)(C), 8 U.S.C. 1229a(c)(7), 8 U.S.C. 1231(b)(3), the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA), Pub. L. No. 105-277, Div. G., Title XXII, § 2242, 112 Stat. 2681-822 (Oct. 21, 1998) (codified as Note to 8 U.S.C. 1231), and 8 C.F.R. 208.16-18 (implementing prohibition on deportation in the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment).
PRAYER FOR RELIEF Plaintiffs ask this Court to grant the following relief: 1. A declaration that, under the Due Process Clause, all currently unrepresented families and children who were ordered removed in absentia on or after May 1, 2014 are entitled, prior to their physical removal, to (1) a hearing before an immigration judge, with all its attendant
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procedural protections, in order for the judge to determine whether their removal order should be rescinded; and (2) access to the A-files and Records of Proceedings containing information about their cases, to obtain information relevant to that determination, with sufficient time prior to that hearing to permit them to prepare for it. 2. An order requiring Defendants, (1) prior to physically removing any currently unrepresented family or child who was ordered removed in absentia on or after May 1, 2014, to hold a hearing to determine whether their removal order should be rescinded; and (2) grant each such person access to their A-files and Records of Proceedings with sufficient time prior to that hearing to permit them to prepare for it. 3. Plaintiffs’ reasonable attorneys’ fees, costs, and other disbursements pursuant to the Equal Access to Justice Act, 28 U.S.C. 2412; and 4. Any and all such other relief as the Court deems just and equitable.

DATED: July 11, 2019

Respectfully submitted,
MUNGER, TOLLES & OLSON LLP MELINDA E. LEMOINE
BRADLEY S. PHILLIPS* GREGORY D. PHILLIPS* ROBERT L. DELL ANGELO* SKYLAR BROOKS* GINA F. ELLIOTT*

By:

/s/ Melinda LeMoine

AHILAN T. ARULANANTHAM* aarulanantham@aclusocal.org ACLU FOUNDATION OF SOUTHERN CALIFORNIA 1313 West 8th Street Los Angeles, CA 90017 Telephone: (213) 977-5211 Facsimile: (213) 977-5297
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BRADLEY S. PHILLIPS* brad.phillips@mto.com GREGORY D. PHILLIPS* gregory.phillips@mto.com ROBERT L. DELL ANGELO* robert.dellangelo@mto.com MELINDA E. LEMOINE melinda.lemoine@mto.com SKYLAR BROOKS* skylar.brooks@mto.com GINA F. ELLIOTT* gina.elliott@mto.com MUNGER, TOLLES & OLSON LLP 350 South Grand Avenue Fiftieth Floor Los Angeles, California 90071-3426 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 CHRISTOPHER DUNN AMY BELSHER ROBERT HODGSON NEW YORK CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street—19th Floor New York, New York 10004 T: (212) 607-3300 F: (212) 607-3318 cdunn@nyclu.org * Application for Pro Hac Vice forthcoming
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EXHIBIT A

Case 1:19-cv-06443-JMF Document 1 Filed 07/11/19 Page 29 of 44
February 9, 2015
Juan Osuna Director of the Executive Office for Immigration Review 5107 Leesburg Pike, Suite 1902 Falls Church, VA 20530
Sarah Saldaña Assistant Secretary Department of Homeland Security (DHS) U.S Immigration and Customs Enforcement 500 12th St., SW Washington, D.C. 20536
Ken Tota Acting Director Administration for Children and Families 901 D Street, SW ORR/8th Floor Washington, DC 20447
Dear Sir or Madam:
The undersigned organizations write to express our concern that Immigration Judges nationwide have issued, and are continuing to issue, large numbers of in absentia removal orders against recently-arrived children who did not receive notice of their removal proceedings. Legal service providers, social service providers, and immigration advocates that work with children in removal proceedings have received numerous reports throughout the country of significant numbers of children who have either received defective notice of their removal proceedings and upcoming hearing dates, or who have not received notice at all. Yet immigration courts have issued and continue to issue numerous in absentia removal orders against such children, including those without legal representation. In absentia orders should not be issued on children’s cases when they have not received adequate notice of their immigration proceedings.
We suggest that you take following steps to remedy this problem. First, we appreciate the endeavors this Administration, Office of Refugee Resettlement (ORR) and the Executive Office for Immigration Review (EOIR) have taken to provide counsel for children; we ask that this program be expanded to ensure no unaccompanied child will go before an immigration judge alone. Second, we ask that you immediately put procedures in place to ensure that children are given proper legal notice of their removal proceedings and hearing dates. Third, in light of the significant numbers of children who recently have received in absentia removal orders without notice, we request that for every child who has received an in absentia removal order on or after May 24, 2014, Department of Homeland Security (DHS) should move to reopen. EOIR should grant that request, or alternatively, EOIR should reopen a child’s removal proceedings sua
1
AILA Doc. No. 15030961. (Posted 3/9/15)

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sponte. EOIR should administratively close those children’s case they are unable to provide adequate legal notice of the new hearing. Going forward, EOIR should also grant continuances in children’s cases until such time as they can be sure proper legal notice is provided. Finally, EOIR should allocate sufficient resources in order to update the EOIR hotline in a timely manner.
As you know, immigration courts have been directed to ensure that recently-arrived children have their first master calendar hearing date within 21 days of the date that their notice to appear (“NTA”) is filed with the immigration court.1 Many immigration courts, including those with the highest volumes of cases, have responded to this directive by establishing specialized dockets for handling children’s cases. In the midst of the increase in children’s cases, ORR, EOIR and DHS instituted a new procedure on May 1, 2014 meant to increase court efficiency and reduce the burden on sponsors to file change of address (“COA”) or change of venue (“COV”) forms. Under the new procedure, DHS issues the NTA with the immigration court location and hearing date marked “TBD” and delays filing the NTA until after the child is released to a sponsor or after 60 days, whichever is earlier, or unless the child requests an earlier hearing. In such cases, ORR, service providers and sponsors do not need to complete either the ORR Release Notification or the COV and COA forms. Instead, ORR emails a Discharge Notification form to various stakeholders. DHS procedure is to file the NTA with an immigration court based off the address from the Discharge Notification. Since the procedure has gone into effect, service providers have noticed a sharp increase in the breakdown in adequate notice to sponsors and children and on-going problems with NTAs being filed at the appropriate venue.
In addition to this, the online version of the packet that ORR distributes to sponsors contains the wrong form for updating one’s address.2 Instead of the form titled Alien’s Change of Address/Immigration Court, the packet includes a form used for address changes once an appeal is pending with the BIA. Unlike the correct form, this form does not contain any warnings about the consequences of failing to update one’s address and it is pre-addressed to the BIA in Falls Church, Virginia—not to the local immigration court. Another issue resulting from the delay in filing are cases in which a child and their sponsor move before their NTA is filed. Without knowing which court they will be required to appear in, a child cannot file their EOIR-33. This can result in additional no-notice in absentia orders.
Compounding this problem is the recent mandate to expedite the cases of recently-arrived children. Because EOIR is now required to have a child’s first master calendar hearing within 21 days of the NTA’s filing, there is not enough time to identify these errors before the court issues the invalid hearing notice.
Regardless of the exact point where the flow of information is breaking down, these communication failures, combined with the mandate to expedite children’s cases, are clearly resulting in ubiquitous notice problems. We have received many reports of hearing notices arriving with only a few days’ advance warning, and some reports of them arriving after a scheduled hearing date has passed. In some cases, the hearings were set to take place over a
1 See David Rogers, Migrants’ right to counsel argued, Politico (Sept. 3, 2014) (quoting counsel for the government at oral argument in J.E.F.M. v. Holder as stating existence of 21-day policy). 2 See ORR Div. of Children’s Services, Sponsor Handbook, PDF at 12-13. https://www.acf.hhs.gov/sites/default/files/orr/sponsor_handbookrev_09_15_2014.pdf.
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thousand miles away from the address to which the notice was sent just days beforehand. For example:
● Two sisters were initially detained in Los Angeles, where their NTAs were filed, but were subsequently released to a sponsor in Alexandria, Virginia. The sisters did not receive notice of their hearing date, so their lawyer called EOIR in mid-July 2014 and found out that they had a hearing scheduled for early/mid-September 2014. This lawyer submitted a notice of appearance and a venue change request via U.S. mail to the Los Angeles Immigration Court, requesting a transfer to the Arlington Immigration Court. Much to the sisters’ surprise, on July 28, 2014, they received a notice stating that their hearing dates had been set for that very afternoon in Los Angeles. The notices were dated July 23, 2014, and had been sent via regular mail to the sisters’ address in Virginia. The sisters’ lawyer managed to avert the entry of an in absentia order only by calling in a personal favor with a local Los Angeles attorney, who covered the girls’ hearing and requested a venue transfer.3
● In the last quarter of Fiscal Year 2014, one regional post-release social service provider reported that out of her caseload of 13 cases, only in one case was the hearing notice provided before the hearing.4
● One child who was in ORR custody in Virginia was awaiting a home study on the sponsor in New Orleans prior to the child's release. The legal service provider checked the EOIR hotline and discovered that the child's hearing was scheduled miles away in the New Orleans immigration court for a hearing several days later, despite the child having not been released from ORR custody.5
In other cases, children are not receiving notice of their hearings at all. The reasons for these notice failures appear to be complex, but much of this phenomenon also is likely explained by the large numbers of children who have been required to appear in immigration court on an expedited basis. For example, legal and social service providers have observed an increase in database and human errors on the part of government actors, such as incorrect entry of addresses, and addresses on file with EOIR that do not match the addresses provided by the ORR sponsors. These malfunctions not only result in initial notice failures, but also stymie those children and custodians who make diligent efforts to obtain crucial information regarding their cases. The EOIR hotline, which sponsors rely on in order to obtain case status updates, often contains incorrect information or is not updated in a timely fashion. We have also heard reports of sponsors calling courts for assistance with filling out change-of-address forms, only to be turned away without instructions or told that they must wait to receive a notice of hearing before they are allowed to move. For example:
● In Los Angeles, an ORR sponsor received a hearing notice for the child living with her, as well as a notice for a child completely unknown to her. The ORR sponsor drove to the unknown child’s address and delivered the notice of hearing personally. The notice stated that this child was required to appear in immigration court three days later. But for this
3 Decl. of Simon Sandoval-Moshenberg, J.E.F.M. v. Holder, 14-cv-01026-TSZ (July 31, 2014), Dkt. 34, ¶¶9-12. 4 Lutheran Immigration and Refugee Service (LIRS), report from partner (November 2014). 5 CAIR Coalition (January 2015).
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particular sponsor’s generosity, the child would never have received notice of her fastapproaching hearing date. ● In J.E.F.M. v. Holder, the Plaintiffs filed an amended complaint which added a new plaintiff named J.E.V.G. to the case.6 J.E.V.G. had never received notice of his first removal hearing date. When he did not appear at the hearing, the immigration judge issued an in absentia removal order against him. After he was added as a plaintiff to the federal lawsuit, the government conducted a review of J.E.V.G.’s file, which revealed that EOIR had sent notice to an incorrect mailing address, likely resulting from an error transcribing his address in the EOIR database. ● One teenage girl never received her notice in the mail. She was instructed by her postrelease social service provider to call the hotline every day. The girl, however, was using the Alien number of her son—not realizing that her number corresponded to a separate case. Each time she called there was no hearing scheduled. The post-release service provider then called on her behalf two weeks later and discovered that the girl and her son both had received removal orders in absentia.7
These widespread notice problems are no doubt responsible, at least in part, for the large numbers of children who have been ordered removed in absentia during the latter half of 2014. According to EOIR’s own data, from July 18, 2014 to October 1, 2014, immigration courts issued 1,449 in absentia orders against children who did not appear for their hearing dates.8 No doubt that number has risen since October 1, 2014. Moreover, legal services providers have submitted sworn affidavits in J.E.F.M. v. Holder, 14-cv-01026-TSZ (W.D. Wash.), attesting to the entry of at least dozens of in absentia removal orders against children, including in some cases where notice was plainly deficient.9
While the government has initiated new programs expand legal counsel for vulnerable groups, the vast majority of unaccompanied children still do not have access to counsel. The representation rate of children in immigration court has dropped precipitously, from 71% in 2012 to as low as 14-15% in some months of 2014.10 As data on case outcomes indicates, legal representation vastly increases the chances that a child will appear in immigration court: Over the last decade, only 6.1% of children with counsel received in absentia removal orders, compared with 64.2% of unrepresented children.11 The intervention of counsel would no doubt
6 Second Amended Compl., J.E.F.M. v. Holder, 14-cv-01026-TSZ (Dec. 1, 2014), Dkt. 95, ¶¶109-12. 7 Story from Lutheran Immigration and Refugee Service (2014). 8 David Rogers, Thousands of child migrants still lack lawyers, Politico (Nov. 6, 2014), http://www.politico.com/story/2014/11/child-migrants-lawyers-112654 html. 9 Decl. of Tin Thanh Nguyen, J.E.F.M. v. Holder, 14-cv-01026-TSZ (Aug. 25, 2014), Dkt. 63, ¶¶12-13 (to the best of declarant’s recollection, immigration judge in Charlotte ordered removed in absentia all children who did not appear to hearings on July 31, 2014 and August 12, 2014; one child who appeared in court had received fewer than four days’ notice); Decl. of Simon Sandoval-Moshenberg, J.E.F.M. v. Holder, 14-cv-01026-TSZ (July 31, 2014), Dkt. 34, ¶¶9-12 (describing children living in Virginia who received notice only two days prior to hearing in Los Angeles Immigration Court); Decl. of Stacy Tolchin, J.E.F.M. v. Holder, 14-cv-01026-TSZ (July 31, 2014), Dkt. 31, ¶¶3-5; (same). 10 Transactional Records Access Clearinghouse, Representation for Unaccompanied Children in Immigration Court, http://trac.syr.edu/immigration/reports/371/ (Nov. 25, 2014). 11 Transactional Records Access Clearinghouse, Juveniles — Immigration Court Deportation Proceedings Court Data through December 2014, http://trac.syr.edu/phptools/immigration/juvenile/ (last visited Jan. 21, 2015).
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have prevented numerous children from receiving in absentia orders in recent months. For example, on a single day in August, legal service organizations filed change of venue motions for 200 children scheduled for hearings at the Chicago immigration court, but who no longer lived in the area.12 Without the work of those organizations, many if not all of those children would now have removal orders.
Despite mounting evidence of these pervasive and systemic notice deficiencies, Immigration Judges have ordered and continue to order the removal of children who fail to appear for their hearings. ORR sponsors frequently find out about the resulting in absentia order only when a legal service provider or a post-release social service provider takes it upon herself to obtain the sponsor’s phone number and contact them. And, we presume, many such sponsors likely never find out that the children in their care have been ordered removed in absentia.
In absentia removal orders issued against children who have failed to receive proper notice violate both the INA and the U.S. Constitution. See, e.g., Reno v. Flores, 507 U.S. 292, 306 (1993) (“It is well established that the Fifth Amendment entitles aliens to due process of law in [removal] proceedings[.]”); see also Matter of G-Y-R, 23 I&N Dec. 181 (BIA 2001) (due process requires that non-citizens receive notice of their removal hearings that is reasonably calculated to reach them). In keeping with these requirements, the INA and agency regulations require that all respondents in removal proceedings receive proper notice of their hearings, and also create additional protections specific to children. See 8 U.S.C. § 1229(a)(1)-(2); 8 C.F.R. § 103.8(c)(2)(ii); 8 C.F.R. § 236.2(a); see also G-Y-R, 23 I&N Dec. at 189-90 (recognizing that that respondents may not be ordered removed in absentia until they are warned – by proper service of the NTA – that consequence of failing to inform government of change in address is entry of removal order). If the child does not attend a removal hearing because she was not provided proper notice of the hearing, she may have the resulting in absentia removal order rescinded. See 8 U.S.C. § 1229a(b)(5)(C)(ii).
Given that a significant proportion of recently-arrived children who have been ordered removed in absentia have received defective or no notice of their hearing dates, thereby violating their statutory and constitutional due process rights, the government must take steps to prevent these notice problems in the future and undo the harm that has already been done. The circumstances of one of the named plaintiffs in J.E.F.M. v. Holder illustrates the effectiveness of the remedial measures that we propose. As noted above, one of the new Plaintiffs in that case, J.E.V.G., never received notice of his first removal hearing date and received an in absentia removal order. 13 After the government ascertained that EOIR had sent his hearing notice to the wrong address, it then filed a motion to reopen J.E.V.G.’s in absentia order, acknowledging its error.14 Based on our experience serving these children and the reports of service providers throughout the country, we suspect there are at least dozens, if not hundreds, of children who did not receive notice, just as J.E.V.G. did not. A review of their files would likely reveal that DHS should move to reopen, or alternatively, EOIR should reopen sua sponte the child’s case.
12 Odette Yousef, Lawyers Fear Speedy Deportations Harm Minors, WBEZ 91.5 (Aug. 27, 2014), http://www.wbez.org/news/lawyers-fear-speedy-deportations-harm-minors-110715. 13 Second Amended Compl., J.E.F.M. v. Holder, 14-cv-01026-TSZ (Dec. 1, 2014), Dkt. 95, ¶¶109-12. 14 Defs’ Br. Supplementing Their Mot. to Dismiss, J.E.F.M. v. Holder, 14-cv-01026-TSZ (Dec. 1, 2014), Dkt. 97, at 10 n.6.
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In conclusion, the increased volume of children’s cases in immigration courts, combined with the government’s mandate to expedite the those cases, has resulted in numerous in absentia removal orders that were issued in violation of the constitutional, statutory, and regulatory due process rights of children in removal proceedings. To remedy the violations that these children have suffered, we recommend that the Government take the following steps:
1. Unaccompanied children in removal proceedings should be appointed counsel, no child should be forced to navigate the complex immigration system alone.
2. For every child who has received an in absentia removal order on or after May 24, 2014, Department of Homeland Security (DHS) should move to reopen. EOIR should grant that request, or alternatively, EOIR should reopen a child’s removal proceedings sua sponte, and EOIR should administratively close those children’s case they are unable to provide adequate legal notice of the new hearing. Going forward, EOIR should also grant continuances in children’s cases until such time as they can be sure proper legal notice is provided.
3. Implement reliable procedures to ensure that children are provided fair and accurate notice of their hearings, while not unduly burdening the sponsor or child by having to file COVs or COAs.
4. Ensure children are adequately advised of their right to request a hearing prior to the 60 day filing delay; in particular this consequence needs to be explained to children who do not have family reunification resources and children in secure facilities.
5. Pending the implementation of reliable procedures and practices for providing notice, EOIR should direct the immigration courts to grant continuances to nonappearing pro se children and continue to permit legal service providers to attempt to contact them, rather than entering in absentia removal orders against them. EOIR should also accept EOIR-33 forms at a central location as children and their sponsors do not have a court address prior to the filing.
6. Allocate sufficient resources to the EOIR hotline procedures to ensure it is updated in a timely fashion and serves its purpose of facilitating notice.
We look forward to working with you in improving and implementing the above recommendations. Thank you for your attention.
Sincerely,
American Friends Service Committee Americans for Immigrant Justice
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American Immigration Lawyers Association Ascentria Care Alliance Asian Pacific Institute on Gender Based Violence ASISTA Immigration Assistance Atlas: DIY Bethany Christian Services Boston University Immigrants' Rights Clinic Brooks Immigration, LLC Capital Area Immigrants' Rights (CAIR) Coalition Catholic Legal Immigration Network Inc. (CLINIC) CCDA - Hogar Immigrant Services Center for Gender & Refugee Studies Center for the Human Rights of Children, Loyola University Chicago Children's Choice, Inc. Children's Law Center of Massachusetts Church World Service Community Legal Services in East Palo Alto Durham/Orange Woman Attorneys (D.O.W.A.) First Focus Florence Immigrant and Refugee Rights Project (FIRRP) Grossman Law, LLC HIAS Pennsylvania Hofstra Youth Advocacy Clinic Immigration Center for Women and Children Immigration Counseling Service (ICS) Kids in Need of Defense (KIND) Las Americas Immigrant Advocacy Center Law Office of Jennifer M. Smith, P.C. Legal Services for Children LifeBridge Community Alliance (Phoenix, AZ) Lutheran Children and Family Service of Eastern Pennsylvania Lutheran Immigration and Refugee Service (LIRS) Lutheran Services Carolinas Morrison Child & Family Services National Immigrant Justice Center National Immigration Law Center National Justice for Our Neighbors National Latin@ Network; Casa de Esperanza Neighborhood Ministries (Phoenix, AZ) North Carolina Justice Center Northwest Immigrant Rights Project
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Pangea Legal Services Public Counsel RAICES Refugio del Rio Grande Rocky Mountain Immigrant Advocacy Network Sin Fronteras Tahirih Justice Center The Door's Legal Services Center Tulsa Immigration Resource Network, University of Tulsa College of Law U.S. Committee for Refugees and Immigrants UC Davis School of Law Immigration Law Clinic Urban Justice Center's Peter Cicchino Youth Project Women's Refugee Commission Young Center for Immigrant Children's Rights
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EXHIBIT B

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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:

ASYLUM SEEKER ADVOCACY PROJECT et al.,

:

:

Plaintiffs,

:

:

-v-

:

:

WILLIAM BARR et al.,

:

:

Defendants.

:

:

---------------------------------------------------------------------- X

19-CV-6443 (JMF)
MEMORANDUM OPINION AND ORDER

JESSE M. FURMAN, United States District Judge: Rule 5.2(c) of the Federal Rules of Civil Procedure provides that, “[u]nless the court
orders otherwise,” limitations on remote electronic access apply to actions or proceedings that “relat[e] to an order of removal, to relief from removal, or to immigration benefits or detention.” Because Plaintiffs in this case selected “Other Immigration Actions” as the nature of suit on their civil cover sheet, those limitations currently apply. See Docket No. 2.
In the Court’s view, those limitations are unwarranted and inappropriate in this case for at least two reasons. First, given the nature of this case — namely, that it does not involve an individual order of removal or relate to the immigration benefits or detention of an individual — it is less likely to involve the sort of “sensitive information” that prompted the adoption of Rule 5.2(c). See Fed. R. Civ. P. 5.2 advisory committee notes. And to the extent that filings in the case do include sensitive information, the usual tools at the Court’s disposal — including redaction and sealing — should suffice. Second, given the nature of (and public interest in) the case, there is a particularly strong interest in promoting readily available public access to the

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record. See generally Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119-20 (2d Cir. 2006).
For these reasons, the Clerk of Court is directed to change the nature of suit code to No. 890, “Other Statutory Actions,” thereby lifting the limitations on remote electronic access to the docket imposed by Rule 5.2(c).

SO ORDERED.
Dated: July 17, 2019 New York, New York

__________________________________ JESSE M. FURMAN
United States District Judge

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

---------------------------------------------------------------------- X

:

ASYLUM SEEKER ADVOCACY PROJECT et al.,

:

:

Plaintiffs,

:

:

-v-

:

:

WILLIAM BARR et al.,

:

:

Defendants.

:

---------------------------------------------------------------------- X

19-CV-6443 (JMF)
MEMORANDUM OPINION AND ORDER

JESSE M. FURMAN, United States District Judge:

Plaintiffs, a group of organizations dedicated to helping immigrant families and children,

bring this action to challenge removal orders that the Government obtained with respect to

unrepresented immigrants without first affording them proper notice of a hearing or a meaningful

opportunity to be heard. See ECF No. 1 (“Compl.”), ¶¶ 1, 35-36, 40-46, 49. In particular,

Plaintiffs challenge the lawfulness of in absentia removal orders entered pursuant to allegedly

deficient notices to appear (“NTAs”) before immigration judges. According to Plaintiffs, those

NTAs sometimes reflected the incorrect dates of upcoming appearances; were sent to incorrect

addresses; did not include the dates, times, or locations of upcoming appearances; or were “sent

to children who cannot read English and/or have no control over whether they appear.” See ECF

No. 42 (“Opp’n”), at 3-4. Plaintiffs contend that the process by which unrepresented immigrants

may challenge the removal orders — that is, by filing a written motion to reopen — is effectively

unavailable to those who “speak limited[,] if any[,] English” and “lack the capacity to read,

understand, and comply with the requirements for writing and filing a motion to reopen.”

Compl. ¶ 57. Accordingly, Plaintiffs argue, “the motion-to-reopen process does not provide

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unrepresented individuals facing imminent removal any meaningful opportunity to challenge defects in their in absentia removal orders prior to deportation.” Id. ¶ 60.
Plaintiffs seek both declaratory and injunctive relief. More specifically, they seek a declaration that, under the Due Process Clause of the Fifth Amendment, “all currently unrepresented families and children who were ordered removed in absentia on or after May 1, 2014 are entitled, prior to their physical removal, to . . . a hearing before an immigration judge” and, in advance of such a hearing, to access to their immigration files and certain related records. Compl. at 25-26 (Prayer for Relief). And they seek an order that both “requir[es]” the Government to hold hearings as to such persons in order “to determine whether their removal order[s] should be rescinded” and, in advance of such a hearing, “grant[s] each such person” access to their immigration files and certain related records. Id. Defendants now move, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, to dismiss. They argue, among other things, that the REAL ID Act of 2005, 8 U.S.C. § 1252 et seq., prevents this Court from reviewing or otherwise interfering with the in absentia removal orders at the heart of Plaintiffs’ claims. See ECF No. 40 (“Defs.’ Mem.”). Plaintiffs oppose the motion on the ground that the REAL ID Act’s jurisdiction-stripping and jurisdiction-channeling provisions do not apply to the specific facts of this case and, to the extent that they do, are unconstitutional under the Suspension Clause. For the reasons that follow, the Court concludes that the Government has the better argument and that it lacks subject-matter jurisdiction over Plaintiffs’ claims.
LEGAL STANDARDS A case must be dismissed pursuant to Rule 12(b)(1) “when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (citing Fed. R. Civ. P. 12(b)(1)). In considering a motion to dismiss for lack of
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subject-matter jurisdiction, “the district court may consider evidence outside the pleadings,” Morrison v. Nat’l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (citation omitted), aff’d, 130 S.Ct. 2869 (2010); see Luckett v. Bure, 290 F.3d 493, 496-97 (2d Cir. 2002), and must accept Plaintiffs’ “material factual allegations” as true, Atl. Mut. Ins. Co. v. Balfour Maclaine Int’l Ltd., 968 F.2d 196, 198 (2d Cir. 1992); cf. ECF No. 43 (“July 18 Conf. Tr.”), at 30 (articulating the Government’s contention “that the Court . . . lack[s] jurisdiction regardless of the validity of [Plaintiffs’] underlying arguments, whether [the unrepresented immigrant families and children] received notice or not” (emphasis added)). That said, because “[t]he burden of proving jurisdiction is on the party asserting it,” Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996) (internal quotation marks omitted), “argumentative inferences favorable to the party asserting jurisdiction should not be drawn,” Balfour Maclaine, 968 F.2d at 198.
DISCUSSION The REAL ID Act of 2005 provides that, “[n]otwithstanding any other provision of law (statutory or nonstatutory), . . . a petition for review filed with an appropriate court of appeals . . . shall be the sole and exclusive means for judicial review of an order of removal.” 8 U.S.C. § 1252(a)(5). Further, “[j]udicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States” is “available only in judicial review of a final order under this section. Except as otherwise provided . . . , no court shall have jurisdiction, . . . by any . . . provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact.” 8 U.S.C. § 1252(b)(9). As the Ninth Circuit has explained, “[t]aken together, § 1252(a)(5) and § 1252(b)(9) mean that any issue — whether legal or factual — arising from any removal-related activity can be reviewed only through” a petition for review
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filed with an appropriate court of appeals. J.E.F.M. v. Lynch, 837 F.3d 1026, 1031 (9th Cir. 2016); see 8 U.S.C. §§ 1252(a)(5), (b)(2). Put differently, Sections 1252(a)(5) and 1252(b)(9) channel all challenges to removal orders and removal proceedings to the courts of appeals.
The Second Circuit examined these provisions in Delgado v. Quarantillo, 643 F.3d 52 (2d Cir. 2011). In that case, the plaintiff had already been removed from the country once and reentered without inspection. See id. at 53. Several years later, she married a U.S. citizen and sought permanent resident status; in connection with that effort, she filed a Form I-212, which, if granted, waives the inadmissibility of a previously removed alien and permits him or her to apply for adjustment of status. See id. at 53-54 & n.1. The United States Customs and Immigration Services (“USCIS”) denied Delgado’s I-212 request and her application for adjustment of status and reinstated the order of removal against her. See id. at 54. After unsuccessfully appealing the removal order to the Second Circuit, Delgado brought a mandamus action in the district court “to compel USCIS to make a determination on the merits of her I-212 application, alleging that USCIS denied her application in violation of the [APA].” Id. Holding that Section 1252(a)(5)’s “jurisdictional bar applies . . . to preclude . . . an indirect challenge” to an order of removal, and that whether a plaintiff is bringing an indirect challenge turns “on the substance of the relief” sought, the Second Circuit concluded that the district court lacked jurisdiction to hear Delgado’s case. Id. at 55. The Court did so despite acknowledging that granting an I-212 waiver “would not per se prevent [Delgado’s] removal.” Id. (internal quotation marks omitted). “Obtaining such a waiver,” the Court reasoned, was “a necessary prerequisite to her ultimate goal of adjustment of status. . . . [A]n ‘adjustment-of-status challenge is inextricably linked to the reinstatement of [an alien’s] removal order,’ because ‘a nunc pro tunc Form I-212 waiver of inadmissibility and the adjustment of status to that of [a lawful permanent resident]’ would
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render the reinstatement order ‘invalid.’” Id. (quoting Morales-Izquierdo v. Dep’t of Homeland Sec., 600 F.3d 1076, 1082-83 (9th Cir. 2010)).
Following Delgado, district courts in this Circuit — including this Court — have dismissed a wide variety of indirect challenges to removal orders for lack of jurisdiction. See, e.g., Vidhja v. Whitaker, No. 19-CV-613 (PGG), 2019 WL 1090369, at *3 (S.D.N.Y. Mar. 6, 2019) (petition seeking a stay of removal while a motion to reopen was pending before the BIA); Noor v. Homan, No. 17-CV-1558 (WFK), 2018 WL 1313233, at *3-4 (E.D.N.Y. Feb. 27, 2018) (petition seeking a stay of removal or adjustment of status where “the practical effect of [adjusting] Plaintiff’s status . . . would be to void the removal order”); Singh v. United States Citizenship & Immigration Servs., No. 15-CV-1411 (JMF), 2016 WL 1267796, at *5 (S.D.N.Y. Mar. 30, 2016) (application for review of USCIS’s denial of an adjustment of status application where a favorable decision would require holding, “at least by implication,” that the removal order underlying USCIS’s denial was invalid), aff’d, 878 F.3d 441 (2d Cir. 2017), as amended (Jan. 9, 2018); Hu v. Holder, No. 11-CV-4747 (FB), 2012 WL 2619185 (E.D.N.Y. June 25, 2012) (petition to compel USCIS to adjudicate an application for permanent residency after the filing of several unsuccessful motions to reopen a removal order); Nieto-Ayala v. Holder, No. 08-CV8347 (LMM), 2011 WL 3918156 (S.D.N.Y. Aug. 30, 2011) (mandamus action to compel the Government to extend bond until USCIS adjudicated the asylum application of a petitioner who was subject to a final removal order). Barros Anguisica v. Decker, No. 18-CV-7493 (PAE), 2019 WL 3244122 (S.D.N.Y. July 9, 2019), a recent decision by Judge Engelmayer, is particularly instructive here. That case, like this one, involved a due process challenge to an “attempt to remove [a petitioner] pursuant to an allegedly defective NTA.” Id. at *3. The petitioner sought to stay his scheduled removal until after the BIA decided his then-pending motion to reopen the
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removal order. The petition, he argued, did not constitute a challenge to the removal order itself because the relief it sought would afford him only “a meaningful opportunity for his motion to reopen . . . to be heard by the BIA and not be deported” in the interim. Barros Anguisaca, 2019 WL 3244122, at *5. Relying on Delgado, Judge Engelmayer rejected that argument, reasoning that the petitioner’s claim indirectly challenged his removal order by implying that the immigration court that issued it despite notice defects had done so unlawfully. Id.
Delgado compels the same result here. Plaintiffs’ Complaint and opposition brief are both littered with assertions that the challenged in absentia removal orders were issued in violation of a statute and/or the Constitution, “were not properly entered,” or are otherwise “unlawful.” See, e.g., Compl. ¶¶ 1, 3, 6, 7; Opp’n at 3, 13, 20. It follows that while Plaintiffs may presently seek only an order entitling unrepresented immigrants to a hearing, see id. at 1, their “ultimate goal” is to challenge the lawfulness of the removal orders themselves, Delgado, 643 F.3d at 55. Put differently, the relief that Plaintiffs seek is a “necessary prerequisite” to any administrative challenge to the removal orders. Id.; see Opp’n at 1 (arguing that relief is necessary because unrepresented immigrants “cannot file a motion to reopen”); id. at 8. If the Court grants Plaintiffs the relief that they seek — among other things, an order that has the effect of temporarily barring the Government from acting on certain in absentia removal orders — “then the Government would be without a mechanism to enforce the removal order[s]” at least until it can schedule future hearings. Barros Anguisaca, 2019 WL 3244122, at *5; see Freire v. U.S. Dep’t of Homeland Sec., 711 F. App’x 58, 59 (2d Cir. 2018) (summary order) (reaffirming that Section 1252(a)(5) “removes jurisdiction from the district courts over any challenge [to] the denial of an application for status adjustment of a party who is already subject to a removal order, if the relief requested in the challenge would invalidate the order”). It follows that, in
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substance if not form, Plaintiffs challenge the underlying removal orders. Under Delgado, that means that this Court lacks jurisdiction to hear their claims.
In arguing otherwise, Plaintiffs rely heavily on the Supreme Court’s decision last year in Jennings v. Rodriguez, 138 S. Ct. 830 (2018). See Opp’n at 7-8 & n.5. But that reliance is misplaced. In Jennings, the petitioner was seeking an individualized bond hearing pending the completion of removal proceedings. Jennings, 138 S. Ct. at 838-39. A plurality wrote to independently confirm the Court’s jurisdiction to entertain the underlying claims, given, among other things, Section 1252(b)(9)’s limitation on judicial review of legal questions that “aris[e] from” removal orders. Id. at 835, 839-40. The plurality found that an immigrant’s challenge to the length of his pre-removal detention — like a hypothetical challenge to an assault or other tort that occurs while an immigrant is detained — cannot fairly be said to “aris[e] from” actions taken to remove him. Id. at 840. The plurality explained that “cramming judicial review” of such tangentially related questions “into the review of final removal orders” would be an “absurd” exercise of “uncritical literalism,” and that to do so would be to “make claims of prolonged detention,” which necessarily involve harms that end before the entry of a final order, “effectively unreviewable.” Id. But that reasoning does not preclude the application of Section 1252(b)(9) (or for that matter, Section 1252(a)(5)) to this case, where Plaintiffs seek to temporarily bar the Government from executing removal orders that it has already obtained, as such relief arises from the removal orders themselves. And in any event, the Jennings plurality explicitly declined to outline “the scope of § 1252(b)(9),” reasoning instead that no jurisdictional bar existed where a petitioner was “not asking for review of an order of removal . . . [and was] not even challenging any part of the process by which [his] removability [would] be
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determined.” Id. at 841. Here, by asking the Court to force the Government to hold a hearing to consider whether final orders of removal were lawfully entered, Plaintiffs do both.
The other cases on which Plaintiffs rely are distinguishable or unpersuasive (or both) and, in any event, are not binding on this Court. In Singh v. Gonzales, 499 F.3d 969 (9th Cir. 2007), for example, the Ninth Circuit held that, “[b]y virtue of their explicit language, both §§ 1252(a)(5) and 1252(b)(9) apply only to those claims seeking judicial review of orders of removal.” Id. at 978. As discussed above, however, the claims in this case do just that, albeit indirectly. And whatever Singh may say about an indirect challenge to an order of removal, this Court is bound by the Second Circuit’s holding in Delgado that Sections 1252(a)(5) and 1252(b)(9) bar direct and indirect challenges alike. For similar reasons, the Court may not and does not follow Chhoeun v. Marin, No. SACV-17-01898 (CJC), 2018 WL 1941756 (C.D. Cal. Mar. 26, 2018), which held that Sections 1252(a)(5), 1252(b)(9), and 1252(g) “narrowly . . . preclude district courts’ jurisdiction only where the claim challenges the Attorney General’s discrete acts of commencing proceedings, adjudicating cases, and executing removal orders.” Id. at *4 (internal quotation marks omitted). That may or may not be the law in the Ninth Circuit; but it is not the law in this Circuit. Finally, the Court is not swayed by Plaintiffs’ invocation of Calderon v. Sessions, 330 F. Supp. 3d 944 (S.D.N.Y. 2018). For one thing, the petitioner there — unlike Plaintiffs here, see, e.g., Compl. ¶¶ 1, 3, 6, 7; Opp’n at 3, 13, 20 — conceded “that the order of removal against him [was] valid and enforceable.” Id. at 955; see also id. (citing counsel’s statement that “we are not challenging the underlying order of removal”); id. at 956 (noting that petitioner does not “claim . . . a right to remain in the United States.”). For another, as another court observed, the holding in Calderon ultimately seems to rest on “the fiction” that the petitioner there was “not challenging the execution of [his] removal order[] by seeking to
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stay” it. Ashqar v. Hott, No. 19-CV-716 (TSE), 2019 WL 2712276, at *4 (E.D. Va. June 5, 2019). The Court is unable (and unwilling) to indulge in that fiction here.
That leaves Plaintiffs’ alternative argument: that interpreting Sections 1252(a)(5) and (b)(9) to mean that this Court lacks jurisdiction would violate the Suspension Clause. See Opp’n at 14. That argument can be swiftly rejected. The Suspension Clause provides that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” U.S. Const. art. I, § 9, cl. 2. But this is not a habeas corpus case; it is an action for declaratory and injunctive relief brought by organizational plaintiffs not subject to governmental custody. And, in any event, as Plaintiffs themselves acknowledge, the REAL ID Act does not “suspend” the ability of anyone in custody to seek relief; it merely “channel[s] judicial review” into the courts of appeals by way of a petition for review. Opp’n at 1. The Second Circuit has held that that mechanism is an adequate substitute for the writ of habeas corpus. See Luna v. Holder, 637 F.3d 85 (2d Cir. 2011). And more broadly, courts have almost uniformly rejected Suspension Clause challenges to the REAL ID Act on that ground. See, e.g., Muka v. Baker, 559 F.3d 480, 484-85 (6th Cir. 2009); RuizMartinez v. Mukasey, 516 F.3d 102, 114 (2d Cir. 2008); Iasu v. Smith, 511 F.3d 881, 887-88 (9th Cir. 2007); Mohamed v. Gonzales, 477 F.3d 522, 526 (8th Cir. 2007); Alexandre v. U.S. Attorney Gen., 452 F.3d 1204, 1206 (11th Cir. 2006); Barros Anguisaca, 2019 WL 3244122, at *5-7. But see Gonzalez-Alarcon v. Macias, 884 F.3d 1266, 1276-78 (10th Cir. 2018).
CONCLUSION If true (and the Court has assumed that they are true for purposes of this motion), Plaintiffs’ allegations are certainly troubling. According to the Complaint, unrepresented immigrant families and children find themselves in “a classic Catch-22 situation”: having been
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deprived of notice and the opportunity to challenge entry of removal orders in the first instance, the only way they can challenge those orders now is by filing written motions to reopen. Opp’n at 1; see Compl. ¶¶ 3-6. But without counsel, English fluency, or an ability to navigate the complex immigration system, they realistically “cannot file written motions to reopen to bring those failures [in notice] to light.” Opp’n at 1. In light of Sections 1252(a)(5) and (b)(9), however, any remedy for these circumstances lies not in this Court, but elsewhere: in immigration court (by way of a motion to reopen), in the Court of Appeals (by way of a petition for review), or in Congress (by way of changing the law). Accordingly, and for the foregoing reasons, Defendants’ motion to dismiss for lack of subject-matter jurisdiction is GRANTED and the Complaint is dismissed.1
The Clerk of Court is directed to terminate ECF No. 39 and to close the case.

SO ORDERED.
Dated: September 5, 2019 New York, New York

__________________________________ JESSE M. FURMAN
United States District Judge

1

The Court need not, and does not, reach the Government’s alternative arguments with

respect to Section 1252(g), Section 1252(f)(1), and standing.

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