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UNITED STATES DISTRICT COURT

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FOR THE WESTERN DISTRICT OF WASHINGTON

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AT SEATTLE

9 J.E.F.M., a minor, by and through his Next Friend, Bob Ekblad; J.F.M., a minor, by and through his
10 Next Friend, Bob Ekblad; D.G.F.M., a minor, by

and through her Next Friend, Bob Ekblad; F.L.B., 11 a minor, by and through his Next Friend, Casey

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Trupin; G.D.S., a minor, by and through his mother and Next Friend, Ana Maria Ruvalcaba;

13 M.A.M., a minor, by and through his mother and Next Friend, Rosa Pedro; S.R.I.C., a minor, by
14 and through his father and Next Friend, Hector

Rolando Ixcoy; G.M.G.C., a minor, by and 15 through her father and Next Friend, Juan Guerrero

16 Diaz; on behalf of themselves as individuals and on behalf of others similarly situated,

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Plaintiffs-Petitioners,

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v.

Case No. _________ COMPLAINT—CLASS ACTION

19 Eric H. HOLDER, Attorney General, United

20 States; Juan P. OSUNA, Director, Executive Office for Immigration Review; Jeh C.

21 JOHNSON, Secretary, Homeland Security;

Thomas S. WINKOWSKI, Principal Deputy 22 Assistant Secretary, U.S. Immigration and

23

Customs Enforcement; Nathalie R. ASHER, Field Office Director, ICE ERO; Kenneth HAMILTON,

24 AAFOD, ERO; Sylvia M. BURWELL, Secretary, Health and Human Services; Eskinder NEGASH,

25 Director, Office of Refugee Resettlement,

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Defendants-Respondents.

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1 I. PRELIMINARY STATEMENT

2 1. Plaintiffs are eight immigrant children, ranging in age from ten to seventeen. The Government

3 has begun proceedings to deport each of them; they will soon be called to appear before an Immigration

4 Judge. In court, the Department of Homeland Security (“DHS”) will be represented by a trained lawyer

5 who will argue for the child’s deportation. But no lawyer will stand with the child. Each will be required

6 to respond to the charges against him or her, and, in theory, will be afforded an opportunity to make

7 legal arguments and present evidence on his or her own behalf. But in reality those rights will be

8 meaningless because children are not competent to exercise them. Each child has attempted to find

9 representation through pro bono legal service providers, but none of them have found anyone with the

10 resources to take on their cases. Absent this Court’s intervention, these children will be forced to defend

11 themselves pro se under the immigration laws – a legal regime that, as the courts have recognized, rivals

12 the Internal Revenue Code in its complexity.

13 2. The plight of these eight children is not unique. Plaintiffs seek to represent a class of

14 unrepresented children, all of whom face deportation. Each year the Government initiates immigration

15 proceedings against thousands of such children, and in each case the purpose of the proceedings is to

16 determine whether the child may remain in the United States. Although a remarkable network of pro

17 bono service providers, working in concert with (and in some cases funded directly by) the Government,

18 has endeavored to represent as many of these children as possible, the majority of children appearing in 19 immigration court still do so without an attorney.1 At the present time, legal service organizations

20 representing immigrant children throughout the country have nowhere near the capacity to meet the 21 demand. The rising number of children fleeing to this country will likely worsen that shortfall.2 The

22 Government, in contrast, is represented in every case.

23 3. Neither the Constitution nor the immigration laws permit this state of affairs. More than four

24

25 1 Center for Gender and Refugee Studies & Kids in Need of Defense, A Treacherous Journey: Child Migrants Navigating the U.S. Immigration System at iii-iv (Feb. 2014) [hereinafter “A Treacherous
26 Journey”] available at http://www.uchastings.edu/centers/cgrs-ocs/treacherous_journey_cgrs_kind_ report.pdf.
27 28 2 A Treacherous Journey at 2.

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1 decades ago, the Supreme Court recognized that when the Government initiates proceedings against

2 children facing juvenile delinquency charges, the Due Process Clause requires the Government to

3 provide those children with legal representation to ensure that the proceedings are fundamentally fair. In

4 re Gault, 387 U.S. 1, 41 (1967). The Court held that “[t]he juvenile needs the assistance of counsel to

5 cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the

6 proceedings, and to ascertain whether he has a defense and to prepare and submit it. The child requires

7 the guiding hand of counsel at every step in the proceedings against him.” Id. at 36 (citation and

8 quotation marks omitted).. The Constitution guarantees children this safeguard notwithstanding the civil,

9 rather than criminal, character of juvenile delinquency proceedings.

10 4. Immigrants, including immigrant children, are also entitled to Due Process when facing

11 deportation. Reno v. Flores, 507 U.S. 292, 306 (1993). Both the Constitution and the immigration laws

12 guarantee all children the right to a full and fair removal hearing, including the opportunity to defend

13 against deportation and seek any forms of relief that would enable them to remain in the United States.

14 And just as in juvenile delinquency proceedings, children cannot receive that fair hearing without legal

15 representation. As the Supreme Court stated in discussing proceedings of similarly “tremendous

16 consequences,” for children in immigration proceedings “[t]he right to representation by counsel is not a

17 formality. It is not a grudging gesture to a ritualistic requirement. It is of the essence of justice.” Kent v.

18 United States, 383 U.S. 541, 554, 561 (1966) (addressing child’s right to appointed counsel in

19 proceedings to determine whether juvenile court should waive its jurisdiction in favor of criminal court).

20 5. Yet every day in courts throughout the country, children represent themselves in deportation 21 cases that are often more complex and more serious than most juvenile delinquency cases.3 The resulting

22 adjudications are fundamentally unfair. Children are forced to admit or deny allegations against them,

23

24

3 Julia Preston, Young and Alone, Facing Court and Deportation, N.Y. Times, Aug. 25, 2012, at A1, available at http://www.nytimes.com/2012/08/26/us/more-young-illegal-immigrants-face-

25 deportation.html?pagewanted=all (describing six-year-old child in removal proceedings without counsel); see also Julie Myers Wood & Wendy Young, Children Alone and Lawyerless in a Strange
26 Land, The Wall Street Journal, Sept. 22, 2013, available at

http://online.wsj.com/news/articles/SB10001424127887324492604579083400349940432 (“We’ve seen 27 children as young as 5 facing an immigration judge with no representation.”).

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1 compile evidence in support of their claims to remain in the United States, and articulate legal

2 arguments on their own behalf, when in reality they “are unlikely to understand the complex procedures 3 they face and the options and remedies that may be available to them under the law.”4

4 6. To fulfill its statutory and constitutional obligations, the Government must ensure that no child

5 faces the life-altering prospect of deportation without legal representation.

6

7 II. JURISDICTION AND VENUE

8 7. Plaintiffs challenge the federal Government’s failure to provide appointed legal representation 9 for children in immigration proceedings on federal statutory and constitutional grounds.5

10 8. This court has subject matter jurisdiction pursuant to the general federal question statute, 28

11 U.S.C. § 1331, the federal habeas statute, 28 U.S.C. § 2241, et seq., and the All Writs Act, 28 U.S.C. §

12 1651.

13 9. This court has personal jurisdiction over the Defendants because of, inter alia, the nationwide

14 reach of Defendants’ conduct and the presence of courts operated by Defendants within the Western

15 District of Washington where immigration proceedings involving members of the Plaintiff Class are

16 held.

17 10. Venue is proper in the Western District of Washington under 28 U.S.C. § 1391(e)(1) because a

18 substantial part of the events or omissions giving rise to this action occurred in this district. Plaintiffs

19 F.L.B. and G.D.S. reside in this district, and Plaintiffs J.E.F.M., J.F.M., D.G.F.M., F.L.B., and G.D.S. all

20 have immigration proceedings scheduled to occur in this district. In addition, venue is proper under28

21 U.S.C. §§ 2242-43 because Plaintiffs J.E.F.M., J.F.M., D.G.F.M., F.L.B., and G.D.S. are in the

22 constructive custody of immigration authorities by virtue of immigration proceedings in this district.

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24 25 4 A Treacherous Journey at iii.

26 5 Plaintiffs define “immigration proceedings” as any proceeding that occurs before an Immigration Judge or the Board of Immigration Appeals (“BIA”). Where the reference is ambiguous, the term
27 “Immigration Judges” should be understood to refer to both individual Immigration Judges and 28 members of the BIA.

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1 III. PARTIES

2 3 11.

A. Plaintiffs Plaintiff J.E.F.M. is a 10-year-old native and citizen of El Salvador.6 He now resides in

4 Washington State. He has a removal hearing scheduled for September 2014 in Seattle, Washington, and

5 does not have an attorney to represent him in his immigration case. J.E.F.M. appears by his next friend

6 Bob Ekblad, a minister who has worked closely with J.E.F.M. and his family.

7 12. Plaintiff J.F.M. is a 13-year-old native and citizen of El Salvador. He is the older brother of

8 J.E.F.M. He now resides in Washington State. He has a removal hearing scheduled for September 2014,

9 in Seattle, Washington, and does not have an attorney to represent him in his immigration case. J.F.M.

10 appears by his next friend Bob Ekblad, a minister who has worked closely with J.F.M. and his family.

11 13. Plaintiff D.G.F.M.is a 15-year-old native and citizen of El Salvador. She is the older sister of

12 J.F.M. and J.E.F.M. She now resides in Washington State. She has a removal hearing scheduled for

13 September 2014, in Seattle, Washington, and does not have an attorney to represent her in her

14 immigration case. D.G.F.M. appears by her next friend Bob Ekblad, a minister who has worked closely

15 with D.G.F.M. and her family.

16 14. Plaintiff F.L.B. is a 15-year-old native and citizen of Guatemala. He now resides in Seattle,

17 Washington. He has a removal hearing scheduled for September 2014, and does not have an attorney to

18 represent him in his immigration case. F.L.B. appears by his next friend Casey Trupin. Mr. Trupin is the

19 Project Coordinator for the Children and Youth Project at Columbia Legal Services in Seattle,

20 Washington.

21 15. Plaintiff G.D.S. is a 15-year-old native and citizen of Mexico. He has resided in the United States

22 since approximately the age of one. He does not have an attorney to represent him in his immigration

23 case. G.D.S. appears by his next friend and mother, Ana Maria Ruvalcaba.

24 16. Plaintiff M.A.M. is a 16-year-old native and citizen of Honduras. M.A.M. has resided in the

25

26 6 To protect the privacy of the child Plaintiffs in this case, this complaint refers to them using their initials. See Fed. R. Civ. P. 5.2(a)(3). For the same reason, this complaint also does not provide as much
27 detail as is available concerning the harms they have suffered in their home countries, during their 28 journeys here, and since their arrivals in the United States.

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1 United States since he was eight years old. M.A.M. resides in Oxnard, California. M.A.M. has a removal

2 hearing scheduled for August 2014, and does not have an attorney to represent him in his immigration

3 case. M.A.M. appears by his next friend and mother, Rosa Pedro.

4 17. Plaintiff S.R.I.C. is a 17-year-old native and citizen of Guatemala. S.R.I.C. came to the United

5 States earlier this year and now resides in Los Angeles, California. S.R.I.C. has a removal hearing

6 scheduled for January 2015, and does not have an attorney to represent him in his immigration case.

7 S.R.I.C. appears by his next friend and father, Hector Rolando Ixcoy Ixcoy.

8 18. Plaintiff G.M.G.C. is a 14-year old native and citizen of El Salvador. She came to the United

9 States earlier this year and now resides in Los Angeles, California. G.M.G.C. has a removal hearing

10 scheduled for September 2014, and does not have an attorney to represent her in her immigration case.

11 G.M.G.C. appears by her next friend and father, Juan Guerrero Diaz.

12

B. Defendants

13 19. Defendant Eric H. Holder, Jr., is the Attorney General of the United States and the head of the

14 U.S. Department of Justice (“DOJ”). Mr. Holder shares responsibility for implementing and enforcing

15 the immigration laws. Mr. Holder is sued in his official capacity.

16 20. Defendant Juan P. Osuna is the Director of the Executive Office for Immigration Review

17 (“EOIR”), which is the federal agency within DOJ that operates the immigration courts. Mr. Osuna is

18 responsible for the supervision of the Deputy Director, the Chairman of the Board of Immigration

19 Appeals (“BIA”), the Chief Immigration Judge, the Chief Administrative Hearing Officer, and all EOIR

20 agency personnel in the execution of their duties. Mr. Osuna is sued in his official capacity.

21 21. Defendant Jeh C. Johnson is the Secretary of DHS and is the highest-ranking member of DHS,

22 which is the arm of the federal government responsible for enforcing the immigration laws. Mr. Johnson

23 is sued in his official capacity.

24 22. Defendant Thomas S. Winkowski is the Principal Deputy Assistant Secretary of DHS, and is the

25 head of U.S. Immigration and Customs Enforcement (“ICE”), which is the principal investigative,

26 enforcement, and prosecutorial arm of DHS. ICE attorneys represent the Government in immigration

27 proceedings. Mr. Winkowski is sued in his official capacity.

28 23. Defendant Sylvia M. Burwell is the Secretary of Health and Human Services (“HHS”) and is the

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1 highest-ranking member of HHS, which is the arm of the federal Government responsible for the care

2 and custody of unaccompanied immigrant minors under the Trafficking Victims Protection

3 Reauthorization Act. Ms. Burwell is sued in her official capacity.

4 24. Defendant Eskinder Negash is the Director of the Office of Refugee Resettlement (“ORR”),

5 which is the division of HHS directly responsible for the care and custody of unaccompanied immigrant

6 minors. Mr. Negash is sued in his official capacity.

7 25. Defendant Nathalie R. Asher is the Field Office Director for the Seattle Field Office of ICE,

8 which has custody of Plaintiffs J.E.F.M., J.F.M., D.G.F.M., F.L.B., and G.D.S., by virtue of immigration

9 proceedings in this district. Ms. Asher is sued in her official capacity.

10 26. Defendant Kenneth Hamilton is the Acting Assistant Field Office Director for the Seattle Field

11 Office of ICE, which has custody of Plaintiffs J.E.F.M., J.F.M., D.G.F.M., F.L.B., and G.D.S., by virtue

12 of immigration proceedings in this district. Mr. Hamilton is sued in his official capacity.

13

14 IV. FACTUAL BACKGROUND

15

A. Children Facing Deportation

16 27. Every year, the Government initiates immigration proceedings to deport thousands of children, 17 ranging from toddlers to teenagers.7 Children enter the immigration enforcement system in several ways.

18 Thousands are arrested at or shortly after crossing the United States-Mexico border, often after having

19 survived treacherous and difficult journeys from their countries of origin. Many of them have fled

20 persecution by their governments or their own families, rising rates of extreme violence (much of it

21 caused by the escalating influence of powerful gangs), or economic conditions that make life 22 unsustainable in their countries of origin.8 Some of these children have experienced trauma in the form

23 7 See supra note 3 (news articles reporting cases of children as young as five or six years old in removal

24

proceedings); Matter of Gomez-Gomez, 23 I. & N. Dec. 522 (BIA 2002) (en banc) (addressing case of eight-year-old child ordered removed in absentia based on report of arresting officer); Matter of Ponce-

25 Hernandez, 22 I. & N. Dec. 784, 785 (BIA 1999) (en banc) (describing 15-year-old child charged with removability); A Treacherous Journey at 11-12 (noting case stories of girls aged 12 and 14 who

26 appeared before Immigration Judges).

27 8 Women’s Refugee Commission, Forced from Home: The Lost Boys and Girls of Central America 7

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(2012). This report found that more than 77% of a sample of 151 children cited violence as their primary
(cont’d)

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1 of rape, kidnapping, abandonment, or physical abuse inflicted in their home countries or by smugglers 2 and traffickers during their journey to the United States.9

3 28. Other children are apprehended after spending years in the United States, some having grown up

4 almost entirely in this country. Many of them attend school alongside other children in this country,

5 speak fluent English, and are fully integrated into their communities. Others are not so lucky, suffering

6 abuse, neglect, or abandonment within the United States itself. Some of these children are turned over to

7 DHS after contact with the juvenile justice system, while DHS arrests others during general immigration

8 enforcement activities.

9 29. Although they have entered the immigration system in different ways, Plaintiffs and the putative

10 class they seek to represent share two fundamental characteristics. First, the Government has initiated

11 immigration proceedings in order to remove them from the United States and, despite their inability to

12 secure counsel, will force them to appear unrepresented in complex, adversarial court proceedings

13 against trained ICE attorneys. Second, all of them are under the age of 18, and therefore lack the

14 intellectual and emotional capacity of adults.

15

B. The Structure of Immigration Proceedings for Children

16 30. Immigration proceedings pit the Government against the child in an adversarial process where

17 each side is presumed to have the ability to represent its own interests. An attorney trained in substantive

18 immigration law and immigration court procedures represents the Government. This attorney acts as a

19 prosecutor, and seeks to establish the child’s removability. Each side is expected to present facts and

20 legal arguments to an Immigration Judge, after which the Judge ultimately makes a determination in

21 favor of the Government or the child. Either side can then appeal the decision to the BIA.

22 31. The facts and legal arguments at issue in immigration cases are often complex. The federal

23 reason for fleeing their countries of origin. See also United Nations High Commissioner for Refugees, 24 Children on the Run: Unaccompanied Children Leaving Central America and Mexico and the Need for
International Protection 6 (2014) [hereinafter UNHCR Report] (finding that no less than 58% of the 25 children interviewed for the report “were forcibly displaced because they suffered or faced harms that
indicated a potential or actual need for international protection”). 26
9 The United States Conference of Catholic Bishops Migration and Refugee Services, The Changing 27 Face of the Unaccompanied Alien Child 8 (2012).

28

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1 courts have repeatedly observed that “the immigration laws have been termed second only to the

2 Internal Revenue Code in complexity.” Baltazar-Alcanzar v. INS, 386 F.3d 940, 948 (9th Cir. 2004)

3 (citation and quotation marks omitted); Padilla v. Kentucky, 559 U.S. 356, 369 (2010) (“Immigration

4 law can be complex, and it is a legal specialty of its own.”).

5 32. Even identifying defenses or other avenues to relief from removal, let alone prevailing on them,

6 often requires substantial factual investigation and legal research. For example, a number of children

7 facing removal have fled persecution in their home countries. However, the immigration laws put the

8 burden on the child to prove eligibility for asylum. See 8 U.S.C. § 1158(b)(1)(B)(i). Establishing such

9 eligibility requires the child to present significant amounts of evidence and sophisticated legal

10 arguments. As a result, asylum claims brought by pro se children “frequently fail due to burdensome

11 legal standards and incorrect application of legal principles . . . even when it has been determined that

12 the child suffered egregious harm rising to the level of persecution and is likely to suffer persecution in 13 the future.”10

14 33. As with asylum, children bear the burden of demonstrating eligibility for other forms of relief

15 from deportation. See 8 U.S.C. § 1229a(c)(4) (stating that applicant for relief from removal in

16 immigration proceedings bears burden to demonstrate both eligibility requirements of the particular

17 form of relief, and, if applicable, merits relief as a matter of discretion). These other forms of relief

18 include Special Immigrant Juvenile Status (“SIJS”), which is available to a child when a state juvenile

19 court declares that the child’s reunification with one or both parents is not viable due to abuse, neglect,

20 abandonment, or a similar basis under state law, see 8 U.S.C. § 1101(a)(27)(J)(i); U-visas, which are

21 available to children who have been the victims of certain serious crimes if they would be helpful to the

22 authorities in an investigation or prosecution, see id. §§ 1101(a)(15)(U)(i)(III), 1184(p)(1); T-visas,

23 which protect victims of “severe” forms of human trafficking, see id. § 1101(a)(15)(T)(i)(I); family

24 visas, where a parent who is a U.S. citizen or lawful permanent resident is able to file a visa petition on

25 their child’s behalf, see id. §§ 1151-1154, as well as other forms of relief. Meeting the eligibility

26 requirements for all of these forms of relief requires the child to carefully marshal both facts and law.

27 28 10 A Treacherous Journey at 20.
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1 The child must not only demonstrate substantive eligibility for relief, but also be able to follow

2 procedures for submitting the appropriate applications to different agencies of the Government, along

3 with the required supporting evidence.

4 34. In addition, some children have procedural defenses against removal, including arguments that

5 the immigration proceedings must be terminated because of constitutional or regulatory violations. See,

6 e.g., Matter of Mejia-Andino, 23 I. & N. Dec. 533, 536 (BIA 2002) (en banc) (concluding that

7 proceedings against seven-year-old child were properly terminated due to failure to properly serve the

8 charging document). However, moving an Immigration Judge to terminate the proceedings on such

9 grounds is no small feat. In particular, a suppression motion requires the ability to gather and understand

10 facts surrounding one’s arrest, the interaction between different state and federal agencies, and complex

11 regulatory and constitutional law. Here too, the child bears the burden of establishing that the

12 Government obtained its evidence in a manner that requires suppression. See Matter of Barcenas, 19 I.

13 & N. Dec. 609, 611 (BIA 1988).

14 35. Because of their age, children lack the ability to assert these and other defenses and claims to

15 relief by themselves. “A child’s age is far more than a chronological fact. It is a fact that generates

16 commonsense conclusions about behavior and perception . . . [that] apply broadly to children as a class.”

17 J.D.B. v. North Carolina, 131 S. Ct. 2394, 2403 (2011) (internal quotation marks and citations omitted).

18 These commonsense conclusions are grounded not only in “what any person knows [] about children

19 generally,” id., but also in scientific studies that “continue to show fundamental differences between

20 juvenile and adult minds.” Graham v. Florida, 560 U.S. 48, 68 (2010) (citing amicus briefs from

21 medical and psychological professional associations).

22 36. For example, children possess a reduced capacity to comprehend the consequences of their

23 actions and decisions, and they are often more receptive to adult influence, in part because many of them

24 have been taught not to challenge authority and to please the adults around them. See Dustin Albert &

25 Laurence Steinberg, Judgment and Decision Making in Adolescence, 21 J. Research on Adolescence

26 211, 220 (2011) (noting that “adults tend to make more adaptive decisions than adolescents,” in part

27 because “they have a more mature capacity to resist the pull of social and emotional influences and

28 remain focused on long-term goals”). As a result, they are frequently more susceptible to suggestion and

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1 leading questions, and at times have difficulty distinguishing between people who are seeking to protect

2 their interests and those who are not. What is more, children in the immigration enforcement system are

3 often even more vulnerable than other children, since many of them arrive in the United States after

4 having experienced serious trauma in their countries of origin or during their journeys to the United 5 States.11

6 37. The interests at stake in these complex proceedings could scarcely be higher: children face

7 expulsion from this country to a land where they often lack family or other support. Many of them fled

8 their home countries in order to escape persecution, torture, or death; deportation to the country from

9 which the child fled is often not in their best interest.

10 38. Moreover, the civil removal orders issued against children in immigration proceedings bear the

11 same consequences as those issued against adults. Those consequences include not only bars to future

12 admission to the United States (if the child would otherwise have been eligible for a visa), but also the

13 prospect of criminal prosecution should they attempt to reenter the United States.

14 39. Forcing children to appear in immigration court without representation ensures that thousands of

15 children are deprived of a full and fair opportunity to identify defenses or seek relief for which they

16 qualify. A recent report by the United Nations High Commissioner for Refugees, for example, suggests

17 that over half of all unaccompanied children fleeing to the United States from Central America raised

18 potential international protection needs, while a slightly older report found that as many as 40% of 19 unaccompanied children in removal proceedings were eligible for some form of immigration relief.12 20 Despite such estimates, only a small number of children actually receive such relief.13 This gap is likely

21 due in large part to the absence of counsel. The presence of counsel makes a real difference for the

22 children fortunate enough to receive legal representation. Data from the adult removal hearing context

23 11 UNHCR Report at 6 (finding that 48% of children interviewed for study had been “personally affected 24 by the augmented violence” in their countries of origin and that 21% had “survived abuse and violence
in their homes by their caretakers”). 25
12 UNHCR Report at 6; Olga Byrne & Elyse Miller, The Flow of Unaccompanied Children Through the 26 Immigration System, Vera Institute of Justice 4 (Mar. 2012).

27 13 See, e.g., A Treacherous Journey at 19 n.94, 38, 48.

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1 confirms what common sense and experience strongly suggest: immigrants with lawyers are far more 2 likely to identify and prevail on defenses to removal that the law makes available to them.14

3 4 5 40.

C. The Federal Government’s Response to the Legal Needs of Children Facing Deportation
Although the Government initiates deportation cases against thousands of children each year, it

6 does not ensure legal representation for the vast majority of them. Numerous advocates have pointed out

7 the injustice of this practice, and called for the Government to provide representation for children facing

8 deportation. See, e.g., Wendy Young & Megan McKenna, The Measure of a Society: The Treatment of

9 Unaccompanied Refugee and Immigrant Children in the United States, 45 Harv. C.R.-C.L. L. Rev. 247 10 (Winter 2010); M. Aryah Somers, Zealous Advocacy for the Right to Be Heard for Children and Youth 11 in Deportation Proceedings, 15 CUNY L. Rev. 189 (Winter 2011); Julie Myers Wood & Wendy Young,

12 Children Alone and Lawyerless in a Strange Land, The Wall Street Journal, Sept. 22, 2013, available at 13 http://online.wsj.com/news/articles/SB10001424127887324492604579083400349940432;15 Sonia 14 Nazario, Child Migrants, Alone in Court, N.Y. Times, Apr. 10, 2013, A23, available at 15 http://www.nytimes.com/2013/04/11/opinion/give-lawyers-to-immigrant-children.html?_r=0. 16 41. The Government has taken limited steps to afford legal representation to some children facing 17 deportation, but its efforts have fallen well short of ensuring representation for every child it seeks to 18 deport. For the past couple of years, the Government has funded legal representation for a fraction of the

19 children in ORR detention facilities, and more recently has initiated programs in Houston, Texas, and 20 Los Angeles, California to afford legal representation to certain children released from ORR custody. 21 But these programs fail to provide all children even in those two regions with representation.

22 42. In October 2013, Plaintiffs’ counsel sent a letter to Defendants urging them to take additional

23

24

14 One recent study that focused on adults in removal proceedings concluded that they fared substantially better when represented by counsel. See Accessing Justice: The Availability and Adequacy

25 of Counsel in Immigration Proceedings, Study Group on Immigrant Representation 4 (Dec. 2011) (finding that 74% of represented non-detained noncitizens received favorable outcomes, as opposed to
26 13% of unrepresented non-detained noncitizens).

27 15 Ms. Myers Wood was the Assistant Secretary of Homeland Security for Immigration and Customs 28 Enforcement under President George W. Bush.

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1 steps to ensure that all children in immigration proceedings are provided legal representation. Ex. A,

2 Letter regarding Counsel for Immigrants in Removal Proceedings. In January 2014, Plaintiffs’ counsel

3 met with officials from DHS, DOJ, and ORR to discuss the concerns expressed in the letter.

4 43. Several weeks ago, the Government announced a new “strategic partnership” to “facilitat[e] the

5 effective and efficient adjudication of immigration proceedings involving certain children who have

6 crossed the border without a parent or legal guardian.” justice AmeriCorps Legal Services for

7 Unaccompanied Children, Corporation for Nat’l & Comm. Serv., available at

8 http://www.nationalservice.gov/build-your-capacity/grants/funding-opportunities/2014/justice-

9 americorps-legal-services (last visited June 9, 2014). Under this program, the Government has set aside

10 $2 million to partner with legal services providers in order to support living allowances for 100 legal

11 fellows who will represent children under 16 in removal proceedings in selected areas of the country.

12 See Announcement of Federal Funding Opportunity, Corporation for National and Community Service,

13 2014 justice AmeriCorps Legal Services for Unaccompanied Children (June 6, 2014), available at

14 http://www.nationalservice.gov/sites/default/files/upload/JusticeAmeriCorpsNOFO.pdf.

15 44. Assuming that the Government’s plan is implemented as announced, it would still fall far short

16 of meeting the need created by the Government’s policy of deporting children without representation,

17 for several reasons. First, the geographic reach of the Government’s new program appears to exclude

18 certain critical locations, such as Los Angeles, and does not ensure representation for every child even 19 for those populations it explicitly targets. Id. at 6-7.16 Second, the Government’s new program will fund

20 representation only for children younger than 16, thereby excluding a substantial number of children

21 who face removal, including several of the Plaintiffs. Id. at 31 (defining “[u]naccompanied children” as

22 “children under the age of 16”). And finally, this initiative devotes only limited resources to the

23 problem. Advocates already have noted that the Government’s program “at best [] would only touch a

24 fraction of all the unaccompanied minors expected to appear in court in the coming months.” Kirk

25 Semple, Youths Facing Deportation to Be Given Legal Counsel, N.Y. Times, June 6, 2014, A11

26 16 The Government’s announcement indicates that “[p]riority shall be given to programs” in certain
27 immigration court locations. See Announcement of Federal Funding Opportunity at 6-7. But the 28 announcement does not pledge that a provider in each of those locations is certain to receive funding.

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1 available at http://www.nytimes.com/2014/06/07/us/us-to-provide-lawyers-for-children-facing-

2 deportation.html?_r=0.

3 45. Several important actors within the Government have also indicated more generally that they

4 would support a system that provided representation for all children. In a recent House Committee on

5 Appropriations Report, the Committee commented on the existence of pilot programs created “to

6 explore ways to better serve vulnerable populations such as children and improve court efficiency

7 through pilot efforts aimed at improving their legal representation,” but specified “that such pilots shall

8 not require the U.S. Government to bear any expense for legal representation for any alien in removal

9 proceedings, except to the extent required by Federal court order.” See H.R. Rep. 113-448, at 42 10 (2014).17

11 46. Defendant Eric Holder, Attorney General of the United States, has also indicated support for the

12 relief sought in this case, stating that “[i]t is inexcusable that young kids – . . . six-, seven-year-olds,

13 fourteen-year-olds – have immigration decisions made on their behalf, against them, . . . and they’re not

14 represented by counsel. That’s simply not who we are as a nation. It’s not the way in which we do

15 things.” Senate Judiciary Committee Hearing on Oversight of the Justice Department (Mar. 6, 2013)

16 (video available at http://www.judiciary.senate.gov/meetings/oversight-of-the-us-department-of-justice17 2013-03-06).18

18 47. The Administration has also asked Congress, as part of an emergency appropriations request, to

19 fund $15 million for “direct legal representation services to children in immigration proceedings.” Letter

20 from President Barack Obama to the Hon. John Boehner, Speaker of the House of Representatives at 6

21 (July 8, 2014), http://www.whitehouse.gov/sites/default/files/omb/assets/budget_amendments/

22 17 The Administration had previously requested an allocation of $5,824,000 for EOIR to “develop,
23 implement and evaluate a pilot program to provide counsel for unaccompanied alien children.” See

24

White House Proposed Budget for FY 2015, Department of Justice, General Administration, Federal Funds, available at http://www.whitehouse.gov/sites/default/files/omb/budget/fy2015/assets/jus.html.

25 18 The Administration also previously supported Senate Bill S. 744, the bipartisan comprehensive 26 immigration reform legislation. That bill includes a provision requiring appointed counsel for a large
subset of children in the putative class at issue here—all “unaccompanied alien children.” See S. 744, 27 13th Cong. § 3502 (2013).

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1 emergency-supplemental-request-to-congress-07082014.pdf.19 It is far from clear that Congress intends

2 to act on this request, in whole or in part. Even assuming it does, the Administration has not specified

3 how this money will be distributed, or whether these funds will come with the same limitations as the

4 Government’s recently-announced “strategic partnership” to provide counsel for unaccompanied

5 children. Moreover, it is highly unlikely that any approved funds would be sufficient to meet the need.

6 48. In the meantime, the Government continues to send children like the Plaintiffs in this case

7 without lawyers to face off against ICE trial attorneys who argue for their deportation before

8 Immigration Judges.

9

D.

The Plaintiffs

10 J.E.F.M.

11 49. J.E.F.M. is a 10-year-old boy, and a native and citizen of El Salvador. He presently resides in

12 Washington State. He is the youngest of four children born to his parents. His father was a former gang

13 member, who then converted to Christianity and later became a pastor. J.E.F.M.’s mother was also a

14 pastor. His parents met at church and together they started a rehabilitation center for people leaving

15 gangs. Gang members retaliated against the center for housing young people trying to leave the gangs.

16 First, they warned J.E.F.M.’s parents to stop assisting former gang members. Then they killed J.E.F.M.’s

17 cousin. Two weeks later, gang members murdered J.E.F.M.’s father in the street in front of their house,

18 while J.E.F.M. and his siblings watched. J.E.F.M.’s mother continued to be threatened after this

19 incident, so she fled the country, leaving her children with their grandmother.

20 50. Approximately seven years later, the children also became targets of gang members in El

21 Salvador. Gang members demanded that the children join and threatened them with harm if they did not.

22 Rather than enter the gang, J.E.F.M. fled with his two older siblings. At the time he was only nine years

23 old.

24 51. J.E.F.M. and his two siblings entered the United States around July 2013, were apprehended by

25

26 19 See also White House Office of the Press Secretary, FACT SHEET: Emergency Supplemental Request to Address the Increase in Child and Adult Migration from Central America in the Rio Grande Valley
27 Areas of the Southwest Border (July 8, 2014), available at http://www.whitehouse.gov/the-press28 office/2014/07/08/fact-sheet-emergency-supplemental-request-address-increase-child-and-adu.

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1 U.S. Customs and Border Protection (“CBP”), and then placed in the custody of ORR. They were

2 released to a family member fifteen days later. They have been residing in Washington State since their

3 release.

4 52. J.E.F.M. has a removal hearing in September 2014, but has no legal representation in his

5 immigration case because he has no resources to hire private counsel and the legal service providers in

6 the Seattle area are stretched well beyond capacity to take on the cases of children in removal

7 proceedings. J.E.F.M. appears by his next friend, Bob Ekblad. Mr. Ekblad is a minister who has worked

8 closely with J.E.F.M. and his family; he is familiar with J.E.F.M.’s immigration case and is truly

9 dedicated to his best interests in this case.

10 J.F.M.

11 53. J.F.M. is a 13-year-old boy and a native and citizen of El Salvador. He presently resides in

12 Washington. He is the older brother of J.E.F.M. He also saw his father killed, was later threatened by

13 gang members, and left El Salvador at the same time and for the same reasons as his younger brother.

14 54. J.F.M. has a removal hearing in September 2014, but has no legal representation in his

15 immigration case because he has no resources to hire private counsel and the legal service providers in

16 the Seattle area are stretched well beyond capacity to take on the cases of children in removal

17 proceedings. J.F.M. appears by his next friend, Bob Ekblad. Mr. Ekblad is a minister who has worked

18 closely with J.F.M. and his family; he is familiar with J.F.M.’s immigration case and is truly dedicated

19 to his best interests in this case.

20 D.G.F.M.

21 55. D.G.F.M. is a 15-year-old girl and a native and citizen of El Salvador. She presently resides in

22 Washington. She is the older sister of J.F.E.M. and J.F.M. She also saw her father killed, was threatened

23 by gang members, and left El Salvador with her two younger brothers at the same time and for the same

24 reasons.

25 56. D.G.F.M. has a removal hearing in September 2014, but has no legal representation in her

26 immigration case because she has no resources to hire private counsel, and the legal service providers in

27 the Seattle area are stretched well beyond capacity to take on the cases of children in removal

28 proceedings. D.G.F.M. appears by her next friend, Bob Ekblad. Mr. Ekblad is a minister who has

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1 worked closely with D.G.F.M. and her family; he is familiar with D.G.F.M.’s immigration case and is

2 truly dedicated to her best interests in this case.

3 F.L.B.

4 57. F.L.B. is a 15-year-old boy, and a native and citizen of Guatemala. He presently resides in

5 Seattle, Washington. He is the fourth of six children born to his parents. Throughout F.L.B.’s childhood,

6 his father, an alcoholic who abused F.L.B. and his siblings, resided in a different city and only visited

7 occasionally. Moreover, F.L.B.’s father did not make any financial contributions to the home.

8 58. When he was ten years old, F.L.B. dropped out of school to work with his father in order to

9 provide for himself, his mother, and his two younger siblings. After two years of living and working

10 with his father, F.L.B. returned to his mother’s home because he was no longer able to bear his father’s

11 abuse and excessive drinking. However, after six months at home he had to leave again due to the

12 family’s poor financial situation. F.L.B. moved back to the town where he had worked with his father,

13 but this time lived with acquaintances. He only ever saw his father by chance, and seldom saw his

14 mother.

15 59. After more than a year of working and living outside the family’s home, F.L.B. set out for the

16 United States, hoping to be able to support himself and have the opportunity to enroll in school. He

17 spent approximately one month traveling through Mexico and crossed the United States border in

18 August 2013, at the age of 14. United States Border Patrol agents apprehended him in the desert and

19 placed him in the custody of ORR. With no family in the United States, F.L.B. was released to the

20 custody of a family acquaintance in October 2013. He has been residing in Seattle, Washington, since

21 his release from ORR custody.

22 60. F.L.B. has a removal hearing in September 2014. However, F.L.B. has no resources to retain

23 counsel and the legal service providers in the Seattle area are stretched well beyond capacity to take on

24 the cases of children in removal proceedings. F.L.B. appears by his next friend, Casey Trupin. Mr.

25 Trupin is the Project Coordinator for the Children and Youth Project at Columbia Legal Services in

26 Seattle, Washington; he is familiar with F.L.B.’s ongoing immigration proceedings and is truly

27 dedicated to F.L.B.’s best interests in this case.

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1 G.D.S.

2 61. Plaintiff G.D.S. is a 15-year old boy and a native and citizen of Mexico who has lived in the

3 United States since he was approximately one year old. He is the second youngest in a family of five

4 children, all of whom reside in this country. He, his mother, and an older brother all possess U

5 nonimmigrant visa status and are now seeking to adjust their status to become lawful permanent

6 residents.

7 62. G.D.S. was in ninth grade when he was placed in a juvenile rehabilitation facility after pleading

8 guilty to charges in juvenile court. ICE then filed a detainer against him, which advised that he faces

9 removal proceedings where the Government will seek to take away his lawful status and deport him

10 from his home. He thus faces the threat of permanent separation from his mother and siblings. He and

11 his mother cannot afford an attorney to represent him in immigration court, and the legal service

12 providers in the Seattle area are stretched well beyond capacity to take on the cases of children in

13 removal proceedings.

14 63. G.D.S. appears by his next friend and mother, Ana Maria Ruvalcaba. Ms. Ruvalcaba maintains a

15 close personal relationship with G.D.S., is familiar with his immigration matters, and is truly dedicated

16 to his best interests in this case.

17 M.A.M.

18 64. Plaintiff M.A.M. is a 16-year-old boy, and a native and citizen of Honduras. He presently resides

19 in Oxnard, California. M.A.M. has limited communication skills and special education issues, as a result

20 of which he has limited ability to recount the suffering that he and his family endured in Honduras.

21 65. M.A.M. spent his first eight years in Honduras, raised primarily by his maternal grandmother.

22 During that time, M.A.M.’s mother left him and came to the United States, where she received

23 Temporary Protected Status (“TPS”). Although M.A.M.’s grandmother cared for him, she could not

24 shield him from life’s brutality there. At some point prior to his eighth birthday, someone attacked

25 M.A.M.’s father with a machete, leaving him profoundly disabled. M.A.M.’s half-brothers’ father was

26 kidnapped and murdered during those years as well.

27 66. Eventually, M.A.M.’s grandmother grew elderly and ill. His father was not involved in his life,

28 and no one else could care for him. As a result, M.A.M. came to the United States at the age of eight.

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1 Since 2006, he has resided with his mother in California. Although she has TPS, the law does not permit

2 her to extend that status to her son.

3 67. Despite the lack of an adult conviction, M.A.M. was swept into the net of interior immigration

4 enforcement. ICE arrested M.A.M. and took him into custody in September 2011, when he was only 13

5 years old and placed him into removal proceedings. Rather than transfer M.A.M. to ORR custody,

6 however, ICE retained custody over him until his mother came forward, after which ICE released him

7 into her care.

8 68. The Los Angeles Immigration Court already has held multiple hearings where M.A.M. was

9 unrepresented by counsel. M.A.M.’s next removal hearing is scheduled for August 2014. He and his

10 mother are indigent. They cannot afford to hire private counsel for his upcoming hearing. The Los

11 Angeles-based, Government-funded legal representation program rejected M.A.M.’s immigration court

12 case because he fell outside their scope of service (because M.A.M. was never in ORR custody).

13 M.A.M. appears by his next friend and mother, Rosa Pedro. Ms. Pedro maintains a close personal

14 relationship with M.A.M., is familiar with his ongoing immigration proceedings, and is truly dedicated

15 to his best interests in this case.

16 S.R.I.C.

17 69. S.R.I.C. is a 17-year-old boy, and a native and citizen of Guatemala. He presently resides in Los

18 Angeles, California. His father, Hector Rolando Ixcoy Ixcoy, left Guatemala for the United States when

19 S.R.I.C. was a young boy. S.R.I.C. lived in Guatemala with his mother and three siblings. Although Mr.

20 Ixcoy was in the United States during S.R.I.C.’s childhood, he called the family frequently and sent

21 money to support S.R.I.C. and the rest of the family. Mr. Ixcoy became a lawful permanent resident of

22 the United States in 2009.

23 70. S.R.I.C. was forced to flee from Guatemala when gang members began attempting to recruit

24 him. The gang members would wait outside of his school and threaten S.R.I.C. During one such

25 confrontation, one of the gang members cut S.R.I.C.’s leg with a knife. He still has the scars from that

26 confrontation. When S.R.I.C. continued to resist their recruitment efforts, the gang threatened to kill

27 S.R.I.C. and his family unless S.R.I.C. agreed to join the gang.

28 71. Fearing for his life and for the well-being of his family, S.R.I.C. came to the United States to

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1 reunite with his father. Several days later, S.R.I.C. left Guatemala for the United States. In February

2 2014, CBP apprehended S.R.I.C. and held him in custody near the United States-Mexico border. The

3 Government thereafter initiated removal proceedings against him, and he has a removal hearing date in

4 January 2015.

5 72. After several days in detention along the border, S.R.I.C. was sent to a shelter in Houston, Texas,

6 where he remained until he was sent to Los Angeles, California to reunite with his father in March.

7 S.R.I.C. now resides in Los Angeles, where he is currently enrolled in school.

8 73. Since arriving in Los Angeles, S.R.I.C. met with legal services providers and inquired about the

9 possibility of obtaining legal representation in his immigration case. However, he was turned away

10 because the legal services provider did not have the capacity to take on his case and could not locate pro

11 bono representation for him. S.R.I.C. and his father also have reached out to private immigration

12 attorneys, but cannot afford to pay the fees charged by such attorneys to take on his immigration case.

13 S.R.I.C. therefore remains unrepresented in his immigration case.

14 74. S.R.I.C. appears by his next friend and father, Mr. Ixcoy. Mr. Ixcoy maintains a close personal

15 relationship with S.R.I.C. and is truly dedicated to S.R.I.C.’s best interests in this case.

16 G.M.G.C.

17 75. G.M.G.C. is a 14-year-old girl, and a native and citizen of El Salvador. She presently resides in

18 Los Angeles, California. Her parents left El Salvador when she was a young girl, and she grew up living

19 with her grandparents, sisters, and aunts. Although her parents were living in the United States, they

20 called frequently and sent money to support the family. Around 2001, her father, Juan Guerrero Diaz,

21 received TPS in the United States.

22 76. G.M.G.C. was forced to leave her home of El Salvador after gang members began threatening

23 the young women in her family. Her uncle in El Salvador, who is a police officer, refused to provide

24 supplies to gang members in their town. In retaliation, the gang members made threats to the young

25 women in the family, surveilled the family home, and harassed the young women. On one occasion,

26 gang members attacked G.M.G.C. and her older sister while they were out buying dinner. After these

27 incidents, the young girls were too scared to leave the family home.

28 77. Fearing for their lives, G.M.G.C., her two sisters, and her young aunt, fled El Salvador and came

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1 to the United States. Border Patrol agents apprehended G.M.G.C., her sisters, and her aunt in January

2 2014. After spending approximately one day at holding facilities near the border, G.M.G.C. was

3 transferred to ORR custody. She remained in ORR custody until February 2014, when she was taken to

4 Los Angeles, California, to reunite with her father. G.M.G.C. has a removal hearing date in September

5 2014.

6 78. After arriving in Los Angeles, G.M.G.C. and her father met with legal services providers and

7 inquired about the possibility of obtaining legal representation for her in her immigration case. However,

8 they never heard back from the legal services providers, and when they inquired further, were told that

9 the legal services providers could not take on G.M.G.C.’s case. G.M.G.C. and her father have also

10 reached out to private immigration attorneys, but cannot afford to pay the fees charged by such attorneys

11 to take on her immigration case. Therefore, G.M.G.C. remains unrepresented in her immigration case.

12 79. G.M.G.C. appears by her next friend and father, Mr. Guerrero Diaz. Mr. Guerrero Diaz

13 maintains a close personal relationship with G.M.G.C., is familiar with her immigration matters, and is

14 truly dedicated to her best interests in this case.

15

16 V.

LEGAL BACKGROUND

17 80. Plaintiffs and the putative class raise statutory and constitutional claims challenging the

18 Government’s failure to ensure legal representation for them in their immigration proceedings.

19 Specifically, Plaintiffs contend that the Immigration and Nationality Act (“INA”) and the Due Process

20 Clause of the Fifth Amendment mandate that the Government ensure that all children in immigration

21 proceedings have legal representation.

22 81. The INA and immigration regulations require that all persons in removal proceedings have “a

23 reasonable opportunity” to present, examine, and object to evidence. 8 U.S.C. § 1229a(b)(4)(B); 8

24 C.F.R. § 1240.10(a)(4). In addition, all persons in removal proceedings, whatever their age, have the

25 right to be advised of the charges against them, 8 U.S.C. § 1229(a)(1)(D); 8 C.F.R. § 239.1, and “the

26 privilege of being represented, at no expense to the Government, by counsel of the alien’s choosing.” 8

27

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1 U.S.C. § 1229a(b)(4)(A); 8 C.F.R. §§ 238.1(b)(2), 1240.10(a)(1).20

2 82. Existing regulations address the rights of children in some respects, but do not come close to

3 ensuring fair hearings. One regulation precludes Immigration Judges from accepting admissions of

4 removability from “an unrepresented respondent who is . . . under the age of 18,” but permits such

5 admissions if the child is accompanied by a relative or friend. 8 C.F.R. § 1240.10(c). The BIA has

6 undermined even the minimal protection this regulation provides by holding that Immigration Judges

7 can accept factual admissions from children that, taken together, are sufficient to prove the child’s

8 removability. See Matter of Amaya, 21 I. & N. Dec. 583, 587 (BIA 1996). Similarly, another regulation

9 requires DHS to serve charging documents for a minor under 14 years of age upon the person with

10 whom the minor resides, and “whenever possible,” the minor’s “near relative, guardian, committee, or

11 friend.” 8 C.F.R. § 103.8(c)(2)(ii). But this regulation does not impose any obligations on such

12 individuals, and the BIA has concluded that these regulations even permit service upon the director of

13 the facility where the minor is currently detained. See Amaya, 21 I. & N. Dec. at 585.

14 83. At a more general level, the BIA has long interpreted the statutory rights provided in 8 U.S.C.

15 §§ 1229, 1229a as creating a general right to a fair hearing in the deportation context. Matter of Exilus,

16 18 I. & N. Dec. 276, 278-79 (BIA 1982). Similarly, the Ninth Circuit has made clear that “every

17 individual in removal proceedings is entitled to a full and fair hearing” of his claims. Oshodi v. Holder,

18 729 F.3d 883, 889 (9th Cir. 2013) (en banc).

19 84. These statutory rules implement a constitutional command. The Supreme Court held over a

20 century ago that the Fifth Amendment guarantees a noncitizen the right to due process in any proceeding

21 where the Government seeks his deportation. See Yamataya v. Fisher, 189 U.S. 86, 100-01 (1903) [“The

22 Japanese Immigrant Case”]. And as applied to children, both prior Supreme Court precedent from the

23 20 The immigration statutes also contain certain protections specific to “unaccompanied alien children,”

24

defined as individuals under the age of 18 without lawful immigration status in the United States “with respect to whom: (i) there is no parent or legal guardian in the United States; or (ii) no parent or legal

25 guardian in the United States is available to provide care and physical custody.” 6 U.S.C. § 279(g)(2). “Unaccompanied alien children” who are not from “contiguous countries” are entitled to additional legal

26 protections. See, e.g., 8 U.S.C. § 1232(b)-(c) (custody provisions); 8 U.S.C. § 1232(a)(5)(D)(iii)

(regarding counsel); 8 U.S.C. § 1232(c)(5) (directing HHS to ensure unaccompanied children are 27 represented “to the greatest extent practicable”); 8 U.S.C. § 1232(c)(6) (regarding child advocates).

28

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1 juvenile delinquency context and more recent Ninth Circuit precedent involving a child facing

2 deportation demonstrate that all children, with their limited capacity to present complex factual and legal

3 arguments, are entitled to legal representation in immigration proceedings. In re Gault, 387 U.S. at 36;

4 Lin v. Ashcroft, 377 F.3d 1014, 1030, 1032-34 (9th Cir. 2004). This is all the more true given the

5 adversarial nature of the proceedings and the grave interests at stake. See generally Turner v. Rogers,

6 131 S. Ct. 2507, 2517 (2011).

7

8 VI. CLASS ACTION ALLEGATIONS

9 85. Pursuant to Federal Rule of Civil Procedure 23, Plaintiffs bring this action on behalf of

10 themselves and all other similarly situated individuals. Plaintiffs seek injunctive relief that applies

11 generally to the Plaintiff Class, as described below.

12 86. The Plaintiff Class consists of:

13

 All individuals under the age of eighteen (18) who are or will be in immigration

14

proceedings on or after July 9, 2014, without legal representation in their immigration

15

proceedings.21

16 87. The Plaintiff Class is so numerous that joinder of all members is impracticable. Although the

17 number of individuals under the age of 18 who are pro se in immigration proceedings is not known with

18 precision, most reports indicate that there are thousands of such children. See supra Part IV.A.

19 88. Common questions of law and fact bind the members of the Plaintiff Class. These questions

20 include, but are not limited to, the following:

21

22

23

24

21 As noted supra note 5, Plaintiffs define “immigration proceedings” as any proceeding that occurs before an Immigration Judge or the Board of Immigration Appeals. Plaintiffs define “legal

25 representation” as representation by a lawyer, a law student or graduate supervised by a lawyer, or a BIA-accredited representative. See Franco-Gonzalez, et al. v. Holder, 828 F. Supp. 2d 1133, 1147 (C.D.

26 Cal. 2011) (defining Qualified Representative for purposes of providing legal representation to mentally

incompetent individuals in immigration proceedings as including “(1) an attorney, (2) a law student or 27 law graduate directly supervised by a retained attorney, or (3) an accredited representative, all as defined

28 in 8 C.F.R. § 1292.1”).

COMPLAINT (No. ___) - 23 of 27

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 Telephone (206) 957-8611 Fax (206) 587-4025

Case 2:14-cv-01026 Document 1 Filed 07/09/14 Page 24 of 27

1

 Whether the Due Process Clause of the U.S. Constitution and/or federal statutory law

2

requires the Government to provide legal representation for the members of the Plaintiff

3

Class;

4

 Whether existing procedures suffice to protect the Plaintiff Class members’ right to a full

5

and fair hearing as required by the Due Process Clause of the U.S. Constitution and/or

6

federal statutory law.

7 89. The claims of the named Plaintiffs are typical of the claims of the Plaintiff Class as a whole.

8 Plaintiffs know of no conflict between their interests and those of the Plaintiff Class. The members of

9 the Plaintiff Class are ascertainable and can be identified through notice and discovery. In defending

10 their own rights, the individual Plaintiffs and their next friends will defend the rights of all proposed

11 Plaintiff Class members fairly and adequately.

12 90. Plaintiffs are represented in this case by counsel with deep knowledge of immigration law and

13 extensive experience litigating class actions and complex cases, including the only class action that has

14 secured appointed legal representation for a class of immigrants. Plaintiffs’ attorneys have the requisite

15 level of expertise to adequately prosecute this case on their behalf and on behalf of the Class.

16 91. Defendants have acted or refused to act on grounds generally applicable to each member of the

17 Plaintiff Class by refusing to recognize that the members of the Plaintiff Class have a statutory and

18 constitutional right to legal representation in their immigration proceedings, and by refusing to provide

19 that representation for such individuals.

20 92. A class action is superior to other methods available for the fair and efficient adjudication of this

21 controversy because joinder of all members of the Plaintiff Class is impracticable. Moreover, members

22 of the Plaintiff Class remain unrepresented in immigration proceedings and lack the ability to assert the

23 claims made here. Absent the relief they seek here, there would be no other way for the Plaintiff Class to

24 individually redress the wrongs they have suffered and continue to suffer.

25

26

27

28 COMPLAINT (No. ___) - 24 of 27

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 Telephone (206) 957-8611 Fax (206) 587-4025

Case 2:14-cv-01026 Document 1 Filed 07/09/14 Page 25 of 27

1 VII. CLAIMS FOR RELIEF

2

FIRST CAUSE OF ACTION

3

Violation of the Immigration and Nationality Act

4

(Against All Defendants by All Plaintiffs)

5 93. Plaintiffs reallege and incorporate by reference each and every allegation contained in the

6 preceding paragraphs.

7 94. The Immigration and Nationality Act requires that all individuals in removal proceedings be

8 afforded a reasonable opportunity to, inter alia, examine and present evidence and witnesses. See 8

9 U.S.C. § 1229a(b). These provisions require that unrepresented children be provided a fair hearing in

10 their immigration proceedings. The only way to ensure that these children receive a fair hearing is by

11 providing them with legal representation.

12 95. Plaintiffs and the Plaintiff Class have suffered and will imminently suffer irreparable injury as a

13 proximate cause of the Government’s failure to provide them with legal representation in their

14 immigration proceedings, and are therefore entitled to injunctive relief to avoid any injury.

15

SECOND CAUSE OF ACTION

16

Violation of the Due Process Clause of the Fifth Amendment

17

(Against All Defendants by All Plaintiffs)

18 96. Plaintiffs reallege and incorporate by reference each and every allegation contained in the

19 preceding paragraphs.

20 97. The Due Process Clause requires that unrepresented children in immigration proceedings be

21 provided legal representation.

22 98. Plaintiffs and the Plaintiff Class have suffered and will imminently suffer irreparable injury as a

23 proximate cause of the Government’s failure to provide them with legal representation in their

24 immigration proceedings, and are therefore entitled to injunctive relief to avoid any injury.

25

26

27

28 COMPLAINT (No. ___) - 25 of 27

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 Telephone (206) 957-8611 Fax (206) 587-4025

Case 2:14-cv-01026 Document 1 Filed 07/09/14 Page 26 of 27

1 VIII. PRAYER FOR RELIEF

2 WHEREFORE, Plaintiffs respectfully request that the Court grant the following relief:

3

a. Certify a class pursuant to Federal Rule of Civil Procedure 23 in accordance with this

4

Complaint’s allegations and the accompanying Motion for Class Certification;

5

b. Declare that the Defendants’ failure to ensure legal representation for Plaintiffs and the

6

Plaintiff Class violates constitutional and statutory law, pursuant to the Court’s equitable

7

powers and the Declaratory Judgment Act, 28 U.S.C. § 2201;

8

c. Issue an injunction directing Defendants to ensure that Plaintiffs and other members of

9

the Plaintiff Class receive legal representation in their immigration proceedings;

10

d. Grant any other relief the Court deems just, equitable, and appropriate, including, but not

11

limited to, fees under the Equal Access to Justice Act, and any other applicable statute or

12

regulation.

13 Dated this 9th day of July, 2014.
14
15 Respectfully submitted,

16 s/ Matt Adams Matt Adams, WSBA No. 28287
17 Glenda M. Aldana Madrid, WSBA 46987

NORTHWEST IMMIGRANT 18 RIGHTS PROJECT

19

615 2nd Avenue, Suite 400 Seattle, WA 98104

20 (206) 957-8611 (206) 587-4025 (fax)
21

Ahilan Arulanantham, Cal. State Bar. No. 237841 (pro hac vice motion pending) 22 ACLU IMMIGRANTS’ RIGHTS PROJECT

23 ACLU OF SOUTHERN CALIFORNIA 1313 West 8th Street

24 Los Angeles, CA 90017
(213) 977-5211 25 (213) 417-2211 (fax)

26

27

28 COMPLAINT (No. ___) - 26 of 27

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 Telephone (206) 957-8611 Fax (206) 587-4025

Case 2:14-cv-01026 Document 1 Filed 07/09/14 Page 27 of 27

1 Cecillia Wang, Cal. State Bar. No. 187782 (pro hac vice motion pending)

2

Stephen Kang, Cal. State Bar No. 292280 (pro hac vice motion pending) ACLU IMMIGRANTS’ RIGHTS PROJECT

3 39 Drumm Street San Francisco, CA 94111

4 (415) 343-0770

(415) 343-0950 (fax) 5

6 Carmen Iguina, Cal. State Bar No. 277369 (pro hac vice motion pending) ACLU OF SOUTHERN CALIFORNIA
7 1313 West 8th Street Los Angeles, CA 90017
8 (213) 977-5211
(213) 417-2211 (fax) 9

10 Kristen Jackson, Cal. State Bar. No. 226255 (pro hac vice motion pending) Talia Inlender, Cal. State Bar No. 253796 (pro hac vice motion pending)

11 PUBLIC COUNSEL

610 South Ardmore Avenue 12 Los Angeles, CA 90005

13

(213) 385-2977 (213) 385-9089 (fax)

14 Beth Werlin, D.C. Bar No. 1006954 (pro hac vice motion pending)

15 Melissa Crow, D.C. Bar No. 453487 (pro hac vice motion pending)

AMERICAN IMMIGRATION COUNCIL 16 1331 G Street NW, Suite 200

17

Washington, DC 20005 (202) 507-7500

18 (202) 742-5619 (fax)

19 Theodore Angelis, WSBA No. 30300

Todd Nunn, WSBA No. 23267 20 K&L GATES

21

925 Fourth Avenue, Suite 2900 Seattle, WA 98104

22 (206) 623-7580 (206) 623-7022 (fax)

23

Sarah Dunne, WSBA No. 34869 24 ACLU OF WASHINGTON FOUNDATION

25

901 Fifth Avenue, Suite 630 Seattle, WA 98164

26 (206) 624-2184

27 Counsel for Plaintiffs-Petitioners

28 COMPLAINT (No. ___) - 27 of 27

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 Telephone (206) 957-8611 Fax (206) 587-4025

 
 Case 2:14-cv-01026-TSZ Document 81 Filed 09/29/14 Page 1 of 15

1

2

3

4

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

5

AT SEATTLE

6 J.E.F.M., et al.,

7

Plaintiffs,

8

v.

9 ERIC H. HOLDER, et al. ,

C14-1026 TSZ ORDER

10

Defendants.

11

This case poses an important constitutional question of whether juveniles subject

12 to exclusion or deportation are entitled to have attorneys appointed to represent them at

13 government expense in connection with their removal proceedings. Plaintiffs

14 acknowledge that the Sixth Amendment of the Constitution does not guarantee a right to

15 appointed counsel in removal proceedings. United States v. Gasca-Kraft, 522 F.2d 149,

16 152 (9th Cir. 1975); Dearinger ex rel. Volkova v. Reno, 232 F.3d 1042, 1045 (9th Cir.

17 2000); Michelson v. INS, 897 F.2d 465, 467 (10th Cir. 1990); United States v. Saucedo-

18 Velasquez, 843 F.2d 832, 834 n.2 (5th Cir. 1988). Instead, plaintiffs contend that such

19 right may be inferred from the Due Process Clause of the Fifth Amendment. In their

20 pending motion for a preliminary injunction, however, plaintiffs do not ask the Court to

21 compel defendants to provide them attorneys at government expense, but rather seek only

22 an order enjoining defendants from “denying continuances” of the removal proceedings

23

ORDER - 1

Case 2:14-cv-01026-TSZ Document 81 Filed 09/29/14 Page 2 of 15

1 instituted against six of the eight named plaintiffs, none of whom had previously

2 requested such relief from an immigration judge. For the reasons explained in this order,

3 the Court concludes that plaintiffs’ motion is not ripe for adjudication and that the Court

4 currently lacks jurisdiction to grant the specific relief sought by plaintiffs. The core issue

5 of whether plaintiffs are entitled, under the Fifth Amendment, to counsel at government

6 expense1 is not now before the Court and must await another day.

7 Discussion

8

In response to plaintiffs’ motion for a preliminary injunction,2 defendants have

9 raised three objections to the Court’s jurisdiction. Two of their arguments are based on

10 provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996

11 (“IIRIRA”), as amended by the REAL ID Act of 2005, and the third involves sovereign

12 immunity. The first contention lacks merit, but the other two raise serious doubts about

13 the Court’s jurisdiction.

14

1 Plaintiffs’ statutory “privilege” to be represented in removal proceedings by counsel at their own
15 expense is not at issue in this case. See 8 U.S.C. § 1362 (“In any removal proceedings before an

immigration judge and in any appeal proceedings before the Attorney General from any such removal

16 proceedings, the person concerned shall have the privilege of being represented (at no expense to the

Government) by such counsel, authorized to practice in such proceedings, as he shall choose.”); see also

17 8 U.S.C. § 1229a(b)(4)(A).
2 Contrary to plaintiffs’ counsel’s suggestion at oral argument, Rodriguez v. Hayes, 591 F.3d 1105 (9th

18

Cir. 2009), makes clear that the Court lacks jurisdiction to grant classwide injunctive relief. Id. at 1119. In Rodriguez, the Ninth Circuit interpreted 8 U.S.C. 1252(f)(1), which deprives the Court of jurisdiction

to “enjoin” or “restrain” the operation of 8 U.S.C. §§ 1221-1232. As used in § 1252(f)(1), “enjoin” refers
19 to permanent injunctions, while “restrain” connotes temporary or preliminary injunctive relief. 591 F.3d

at 1119 (citing Arevalo v. Ashcroft, 344 F.3d 1, 7 (1st Cir. 2003)). Unlike 28 U.S.C. §§ 1341 & 1342,

20 however, § 1252(f)(1) does not also include the word “suspend,” which has been interpreted to cover

declaratory relief. 591 F.3d at 1119. Thus, although § 1252(f)(1) precludes the Court from granting

21

classwide preliminary or permanent injunctive relief, it does not bar the Court from entering a declaratory judgment in favor of a class. Id. (citing Cal. v. Grace Brethren Church, 457 U.S. 393, 408 (1982)); see

also Alli v. Decker, 650 F.3d 1007, 1014-15 (3d Cir. 2011). Plaintiffs’ pending motion does not ask for
22 declaratory relief.

23

ORDER - 2

Case 2:14-cv-01026-TSZ Document 81 Filed 09/29/14 Page 3 of 15

1 A. Section 1252(g)

2

Defendants’ first assertion is based on 8 U.S.C. § 1252(g). Defendants’ reliance is

3 misplaced. Section 1252(g) is narrow and “applies only to three discrete actions” that the

4 Attorney General might take, namely to “commence proceedings, adjudicate cases, or

5 execute removal orders.” Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471,

6 482 (1999). Section 1252(g) is aimed merely at “preserving prosecutorial discretion.”

7 Barahona-Gomez v. Reno, 236 F.3d 1115, 1119 (9th Cir. 1999). After a removal

8 proceeding has been initiated, however, discretion no longer plays a role; immigration

9 courts may not decline to hear cases. Id. at 1120. Thus, consistent with the limited

10 purpose of § 1252(g) and with Ninth Circuit jurisprudence, the Court concludes that the

11 provision does not deprive the Court of jurisdiction to hear constitutional challenges to

12 the manner in which removal proceedings are conducted. Id. at 1119-21; Walters v.

13 Reno, 145 F.3d 1032, 1052 (9th Cir. 1998); see also Franco-Gonzales v. Holder, 767 F.

14 Supp. 2d 1034, 1049 (C.D. Cal. 2010).

15 B. Section 1252(b)(9)

16

Defendants’ second challenge to the Court’s jurisdiction is premised on 8 U.S.C.

17 § 1252(b)(9), which reads:

18

Judicial review of all questions of law and fact, including interpretation and

application of constitutional and statutory provisions, arising from any

19

action taken or proceeding brought to remove an alien from the United

States under this subchapter shall be available only in judicial review of a

20

final order under this section. Except as otherwise provided in this section,

no court shall have jurisdiction, by habeas corpus under section 2241 of

21

Title 28 or any other habeas corpus provision, by section 1361 or 1651 of

22

23

ORDER - 3

Case 2:14-cv-01026-TSZ Document 81 Filed 09/29/14 Page 4 of 15

1

such title, or by any other provision of law (statutory or nonstatutory), to

review such an order of such questions of law or fact. 2

8 U.S.C. § 1252(b)(9). The expanse of § 1252(b)(9) has been described as breathtaking.

3

Aguilar v. U.S. Immigration & Customs Enforcement Div. of the Dep’t of Homeland Sec.,

4

510 F.3d 1, 9 (1st Cir. 2007). Section 1252(b)(9) was “designed to consolidate and

5

channel review of all legal and factual questions that arise from the removal of an alien

6

into the administrative process, with judicial review of those decisions vested exclusively

7

in the courts of appeal.” Id. (emphasis in original); see also 8 U.S.C. § 1252(b)(2). The

8

purpose was to “put an end to the scattershot and piecemeal nature of the review process

9

that previously had held sway in regard to removal proceedings.” Aguilar, 510 F.3d at 9

10

(citing H.R. Rep. No. 109-72, at 174 (2005), reprinted in 2005 U.S.C.C.A.N. 240, 299).

11

In Aguilar, a group of undocumented aliens, who were detained following a raid

12

of a government contractor’s factory, alleged that the government infringed their rights to

13

counsel by “barring their access to lawyers, interfering with preexisting attorney-client

14

relationships, and making it difficult to secure counsel of their choosing.” Id. at 13. The

15 First Circuit concluded that such claims arise3 from the removal proceeding and must

16

therefore be exhausted through the administrative process and raised, if administratively

17

unaddressed, on review before the appropriate court of appeals. Id. at 13-14. The

18

19

3 The Aguilar Court observed that the phrase “arising from,” which appears in § 1252(b)(9), is not as

20 sweeping as other language that Congress might have used, for example “relating to,” which signifies a
“somewhat looser nexus.” 510 F.3d at 10. Thus, § 1252(b)(9) does not “swallow all claims that might

21

somehow touch upon, or be traced to, the government’s efforts to remove an alien,” and claims that are “independent of, or wholly collateral to, the removal process” are excluded from § 1252(b)(9)’s reach, for

example, challenges to the legality of detention in the immigration context. Id. at 10-11; see also
22 Nadarajah v. Gonzales, 443 F.3d 1069 (9th Cir. 2006).

23

ORDER - 4

Case 2:14-cv-01026-TSZ Document 81 Filed 09/29/14 Page 5 of 15

1 Aguilar Court reasoned that “[u]ndocumented aliens cannot escape the vise-like grip of

2 § 1252(b)(9) by the simple expedient of banding together claims consigned by law to

3 administrative channels, declining to raise them within the ambit of removal proceedings

4 per se, and maintaining that those unexhausted claims do not implicate a particular

5 removal determination.” Id. at 9. The First Circuit viewed right-to-counsel claims as

6 “commonplace,” frequently featured in petitions for judicial review of removal orders,

7 and thus not “sufficiently separate from removal proceedings to be considered either

8 ‘independent’ or ‘collateral.’” Id. at 13. Rather, in the First Circuit’s view, aliens “can

9 receive effective relief for their alleged violations of the right to counsel simply by

10 navigating the channels deliberately dredged by Congress,” as evidenced by the

11 experiences of the plaintiffs in Aguilar, who received continuances when requested for

12 the purpose of retaining counsel, and who generally secured changes in venue back to

13 Massachusetts, where they had been working and residing. Id. at 14.

14

The Ninth Circuit has reached a similar result based on 8 U.S.C. § 1252(a)(5).

15 Ching v. Mayorkas, 725 F.3d 1149 (9th Cir. 2013). In Ching, the plaintiffs were a U.S.

16 citizen and his wife, on whose behalf the husband sought an I-130 visa. Id. at 1153. The

17 wife had lawfully entered the United States as a nonimmigrant visitor and then dated,

18 married, and divorced another U.S. citizen. Id. During an investigation, United States

19 Citizenship and Immigration Services (“USCIS”) officers obtained a sworn statement

20 from the first husband indicating that the first marriage was a sham, and the second

21 husband’s I-130 visa petition was denied. Id. The plaintiffs sued, alleging that USCIS

22 had violated Immigration and Nationality Act (“INA”) § 240(b), which governs removal

23

ORDER - 5

Case 2:14-cv-01026-TSZ Document 81 Filed 09/29/14 Page 6 of 15

1 proceedings, as well as their due process rights, by not affording the plaintiffs an

2 opportunity to cross-examine the first husband about his sworn statement. Id. at 1154.

3 The Ninth Circuit held that, to the extent the plaintiffs claimed USCIS had violated

4 INA § 240(b), which requires that an alien be given a reasonable opportunity to examine

5 the evidence, to present evidence on his or her own behalf, and to cross-examine adverse

6 witnesses, see 8 U.S.C. § 1229a(b)(4)(B), the district court properly granted summary

7 judgment because it lacked jurisdiction to consider the claim, a petition for review to the

8 court of appeals being the “sole and exclusive means” for judicial review of an order of

9 removal. 725 F.3d at 1154 (citing 8 U.S.C. § 1252(a)(5)). Moreover, because the wife’s

10 removal proceedings were still pending, no final order existed for the Ninth Circuit to

11 review. Id.

12

1. McNary: Pattern and Practice Claims

13

Although Aguilar and Ching seem to indicate that plaintiffs are required to exhaust

14 their right-to-counsel claims and that any judicial involvement must await a final order of

15 removal, to be reviewed only by the Ninth Circuit, the First Circuit’s decision in Aguilar

16 discusses a legal doctrine that supports the opposite conclusion. The First Circuit refers

17 to the doctrine as one of “constitutional avoidance.” 510 F.3d at 14. The Ninth Circuit

18 uses the description “pattern and practice claim.” See City of Rialto v. W. Coast Loading

19 Corp., 581 F.3d 865, 872-878 (9th Cir. 2009). Both phrases stem from the Supreme

20 Court’s decision in McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479 (1991).

21

In McNary, the plaintiffs sought relief on behalf of a class of undocumented aliens

22 who applied for special agricultural worker (“SAW”) status under amnesty programs

23

ORDER - 6

Case 2:14-cv-01026-TSZ Document 81 Filed 09/29/14 Page 7 of 15

1 enacted in 1986. Id. at 482-87. The plaintiffs in McNary alleged that the Immigration

2 and Naturalization Service (“INS”) had adopted unlawful practices and policies for

3 administering the SAW program, including denying applicants an opportunity to

4 challenge adverse evidence on which denials were predicated, failing to provide

5 competent interpreters, and interviewing applicants in an arbitrary fashion without

6 making a verbatim recording and thereby inhibiting meaningful administrative review.

7 Id. at 487-88. A provision of the amnesty statute prohibited judicial review of a denial of

8 SAW status, except in an appeal from an order of exclusion or deportation. Id. at 485-86

9 (citing 8 U.S.C. § 1160(e)). The McNary Court held that the statutory restriction on

10 jurisdiction applied only to “direct review of individual denials of SAW status,” and not

11 to “collateral challenges to unconstitutional practices and policies used by the agency in

12 processing applications.” Id. at 492.

13

The Ninth Circuit has “distilled two ‘guiding principles’” from McNary and its

14 progeny, including Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43 (1993). City of Rialto,

15 581 F.3d at 874. First, the claim at issue must challenge “a ‘procedure or policy that is

16 collateral to an alien’s substantive eligibility,’ for which ‘the administrative record is

17 insufficient to provide a basis for meaningful judicial review.’” Id. (quoting Proyecto

18 San Pablo v. INS, 189 F.3d 1130, 1138 (9th Cir. 1999) (quoting Ortiz v. Meissner, 179

19 F.3d 718, 722 (9th Cir. 1999))). Second, the plaintiffs’ claim must be ripe, meaning that

20 the plaintiffs have “taken ‘the affirmative steps that [they] could take before the INS

21 blocked [their] path.’” Id. (alterations in original). This second requirement is derived

22 from the holding in Catholic Soc. Servs., which observed that injunctive and declaratory

23

ORDER - 7

Case 2:14-cv-01026-TSZ Document 81 Filed 09/29/14 Page 8 of 15

1 judgment remedies are “discretionary, and courts traditionally have been reluctant to

2 apply them to administrative determinations unless these arise in the context of a

3 controversy ‘ripe’ for judicial resolution.” 509 U.S. at 57.

4

In Aguilar, the First Circuit drew similar insights from McNary:

5

As the Supreme Court suggested in McNary, requiring exhaustion of

certain pattern and practice claims might result in a total denial of

6

meaningful judicial review. The trick is to distinguish wheat from chaff,

that is, to distinguish what must be exhausted from what need not be

7

exhausted. In that endeavor, the most salient questions involve whether the

underlying claims are cognizable within the review process established by

8

Congress, and if so, whether enforcement of the exhaustion requirement

will allow meaningful judicial review without inviting an irreparable injury. 9

510 F.3d at 17 (citations omitted). The Aguilar Court concluded, however, that “[w]hen,

10

as in [the Aguilar] case, the answers to these queries yield no persuasive reason for

11 bypassing the channels that Congress has created, the use of pattern and practice or class

12

action nomenclature cannot alter the result.” Id. The First Circuit was satisfied that the

13

remedies “left open by section 1252(b)(9) are neither inadequate nor ineffective,” and

14

that each plaintiff’s “right to counsel can be adequately addressed and effectively

15

vindicated before an immigration judge (who can grant a continuance, order a change of

16

venue, or take other pragmatic steps to ensure that the right is not sullied).” Id. at 18.

17

Because the immigration judge’s orders could be “meaningfully reviewed, first by the

18 BIA [Board of Immigration Appeals] and then by the court of appeals,” the Aguilar Court

19

was persuaded that “the channeling mechanism of section 1252(b)(9)” governed the

20

plaintiffs’ right-to-counsel claims. Id.

21

22

23

ORDER - 8

Case 2:14-cv-01026-TSZ Document 81 Filed 09/29/14 Page 9 of 15

1

2. Beyond Agency Authority

2

The First Circuit was, however, careful to reserve room for denial of due process

3 claims “that are beyond the authority of the agency to adjudicate.” Id. at 18 n.4. Indeed,

4 as the Aguilar Court recognized, § 1252(b)(9) is “a judicial channeling provision, not a

5 claim-barring one.” Id. at 11. Thus, § 1252(b)(9) cannot be read to swallow claims as to

6 which no meaningful relief is available at the agency level. The Aguilar Court, however,

7 characterized such claims as “rare,” and concluded that the claims of the plaintiffs in

8 Aguilar did not fall within their ambit. Id. at 18 n.4.

9

In contrast, the right-to-counsel claim at issue in this case, raised by the individual

10 plaintiffs,4 might qualify for the extraordinary treatment contemplated by McNary and its

11 progeny. In Aguilar, the plaintiffs complained of interference with the statutory right to

12 retained counsel, see 8 U.S.C. § 1362; supra note 1, thereby raising a claim that an

13 immigration judge could adequately address during the course of removal proceedings.

14 In this case, however, plaintiffs assert a constitutional right to the appointment of counsel, 15 thereby seeking relief that, at least as to five of the six plaintiffs at issue,5 an immigration

16 judge would apparently be unable to grant even if he or she agreed with the underlying

17

18

4 Even if one or more of the individual plaintiffs would be entitled to relief, whether a classwide remedy

19 would be available or appropriate is an entirely different matter.

5 As an “unaccompanied” minor, F.L.B. might qualify for appointed counsel through the recently

20 announced “justice AmeriCorps” program, which is the product of an interagency agreement between the
Department of Justice and the Corporation for National and Community Service (“CNCS”), which

21

administers AmeriCorps. See http://www.nationalservice.gov/newsroom/press-releases/2014/justicedepartment-and-cncs-announce-new-partnership-enhance. According to the CNCS press release, the

“justice AmeriCorps” grant program will enroll approximately 100 lawyers and paralegals to provide
22 services to “certain children who have crossed the U.S. Border without a parent or legal guardian.” Id.

23

ORDER - 9

Case 2:14-cv-01026-TSZ Document 81 Filed 09/29/14 Page 10 of 15

1 due process analysis. See El Rescate Legal Servs., Inc. v. Exec. Office of Immigration

2 Review, 959 F.2d 742, 750 (9th Cir. 1991) (“Although an alien might have little

3 familiarity with our legal system, and thus be ill-equipped to exercise these opportunities

4 [to examine the evidence, object if warranted, cross-examine witnesses, and present

5 favorable testimony], Congress expressly instructed the Attorney General not to provide

6 appointed counsel.”). Thus, plaintiffs’ right-to-counsel claim appears to involve a

7 “procedure or policy” (or perhaps, the absence of one) that is collateral to the substance

8 of the related removal proceedings, and absent the appointed attorney to which plaintiffs

9 allege they are entitled, the administrative record might not provide an adequate basis for

10 meaningful judicial review.

11

Nevertheless, the Court must conclude that the first McNary requirement has not

12 yet been satisfied. In their pending motion for a preliminary injunction, plaintiffs do not

13 even attempt to present their right-to-counsel claim, but rather request only continuances,

14 see Proposed Order at 2 (docket no. 24-1) (asking the Court to enjoin defendants from

15 “denying continuances” in plaintiffs’ immigration proceedings), which can be effectively

16 sought from and granted by the appropriate immigration judges. Plaintiffs did not do so

17 before filing their motion for preliminary relief, and thus the second McNary criterion of

18 ripeness has also not been met. Although exhaustion is not required “where resort to the

19 agency would be futile,” El Rescate, 959 F.2d at 747, plaintiffs have not demonstrated

20 that the continuances they ask the Court to enjoin defendants from denying would not be

21

22

23

ORDER - 10

Case 2:14-cv-01026-TSZ Document 81 Filed 09/29/14 Page 11 of 15

1 granted if sought, in the first instance, during the course of their removal proceedings.6

2 Cf. Proyecto San Pablo, 189 F.3d at 1138 (concluding that the claim at issue was “ripe

3 because [the plaintiffs] attempted to obtain their prior deportation files while their cases

4 were pending before the LAU [Legalization Appeals Unit], but were hindered by the

5 INS’s policy of requiring the filing of a FOIA [Freedom of Information Act] request, and

6 by the alleged slowness of the FOIA procedure”).

7

Indeed, as indicated in defendants’ supplemental materials, docket no. 75, after the

8 pending motion for preliminary relief was argued on September 3, 2014, each of the three

9 named plaintiffs who are siblings requested and received an eight-month continuance 10 from the presiding immigration judge.7 Plaintiffs agree that continuances were granted,

11 but assert that other juveniles appearing on the same day before a different immigration

12 judge were treated less favorably. See Aldana Madrid Decl. (docket no. 78). The Court,

13 however, cannot consider these other minors, who are not currently parties to this case, in

14 assessing whether the Court has jurisdiction to grant the requested relief. Meanwhile, the

15 juveniles who are before the Court wish to be excused from the requirement that they

16 seek the requested relief, namely continuances, from the appropriate immigration judges,

17

18

6 Under longstanding Ninth Circuit precedent, an immigration judge’s refusal to grant a continuance for a

19 reasonable time so that an alien in removal proceedings can retain an attorney constitutes a due process
violation. See Montes-Lopez v. Holder, 694 F.3d 1085, 1090 (9th Cir. 2012) (the immigration judge’s

20

“refusal to grant Petitioner a continuance was a violation of Petitioner’s right to counsel”); Rios-Berrios v. INS, 776 F.2d 859, 862 (9th Cir. 1985) (continuances for “little more than two working days’ time” was

an abuse of discretion). Plaintiffs have provided no basis for believing that immigration judges are

21 unaware of or will disregard such jurisprudence.

7 Whether these three named plaintiffs also demanded from the immigration judge the appointment of
22 counsel at government expense was not discussed in the supplemental materials presented to the Court.

23

ORDER - 11

Case 2:14-cv-01026-TSZ Document 81 Filed 09/29/14 Page 12 of 15

1 but they have not made the necessary showing of futility, and the Court therefore lacks

2 jurisdiction with respect to the specific injunction plaintiffs currently urge the Court to

3 enter.

4 C. Sovereign Immunity

5

Defendants’ third ground for questioning the Court’s jurisdiction involves

6 sovereign immunity. The United States, as sovereign, is immune from suit “save as it

7 consents to be sued,” and any waiver of sovereign immunity must be “unequivocally

8 expressed.” United States v. Testan, 424 U.S. 392, 399 (1976). An action seeking

9 injunctive relief against a federal officer in his or her official capacity is equivalent to an

10 action against the United States. Stimac v. Haag, 2010 WL 3835719 at *2 (N.D. Cal.

11 Sep. 29, 2010) (citing Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682

12 (1949)). Defendants are each sued in their official capacity. See Complaint at ¶¶ 19-26

13 (docket no. 1); Amended Complaint at ¶¶ 19-26 (docket no. 73). Plaintiffs therefore bear

14 the burden of establishing the existence of an unequivocal waiver of sovereign immunity.

15 See, e.g., Baker v. United States, 817 F.2d 560, 562 (9th Cir. 1987).

16

In their original complaint, plaintiffs failed to do so. Plaintiffs were subsequently

17 granted leave to amend their complaint, and they now rely on a provision of the

18 Administrative Procedures Act (“APA”), which reads in relevant part:

19

An action in a court of the United States seeking relief other than money

damages and stating a claim that an agency or an officer or employee

20

thereof acted or failed to act in an official capacity or under color of legal

authority shall not be dismissed nor relief therein be denied on the ground

21

that it is against the United States or that the United States is an

indispensable party.

22

23

ORDER - 12

Case 2:14-cv-01026-TSZ Document 81 Filed 09/29/14 Page 13 of 15

1 5 U.S.C. § 702. In support of their assertion that § 702 operates as a waiver of sovereign

2 immunity, plaintiffs cite an opinion that predates IIRIRA. See The Presbyterian Church

3 (U.S.A.) v. United States, 870 F.2d 518 (9th Cir. 1989). Whether the reasoning in this

4 case holds true in light of IIRIRA and the Real ID Act has not been addressed by the

5 parties. See 5 U.S.C. § 701(a); see also Ardestani v. INS, 502 U.S. 129, 133 (1991) (the

6 INA “expressly supersedes” the APA); Hamdi ex rel. Hamdi v. Napolitano, 620 F.3d 615

7 (6th Cir. 2010). Moreover, the parties have not briefed the effect of the APA’s own

8 channeling provision, 5 U.S.C. § 704, which defendants’ attorney referenced for the first

9 time during oral argument. In light of the Court’s ruling concerning § 1252(b)(9) and the

10 incomplete nature of the parties’ respective arguments concerning sovereign immunity,

11 the issue must be reserved for later consideration.

12 Conclusion

13

The Court is sympathetic to plaintiffs’ plea for legal assistance with the

14 immigration maze in which they now find themselves. As the Ninth Circuit has

15 observed, “[w]ith only a small degree of hyperbole, the immigration laws have been

16 termed second only to the Internal Revenue Code in complexity. A lawyer is often the

17 only person who could thread the labyrinth.” Baltazar-Alcazar v. INS, 386 F.3d 940, 948

18 (9th Cir. 2004); see also Ardestani, 502 U.S. at 138 (The “complexity of immigration

19 procedures, and the enormity of the interests at stake, make legal representation in

20

21

22

23

ORDER - 13

Case 2:14-cv-01026-TSZ Document 81 Filed 09/29/14 Page 14 of 15

1 deportation proceedings especially important.”).8 The relief plaintiffs currently desire,

2 however, is limited to continuance requests that they did not present to the appropriate

3 immigration judge before filing the pending motion. The Court cannot disregard

4 the various prudential principles designed to keep the judiciary from issuing advisory

5 rulings, becoming entangled in abstract disagreements, and unnecessarily deciding issues

6 of constitutional magnitude. See Am.-Arab Anti-Discrimination Comm. v. Thornburgh,

7 970 F.2d 501, 511 (9th Cir. 1991); see also Mangual v. Rotger-Sabat, 317 F.3d 45, 59

8 (1st Cir. 2003). Thus, plaintiffs’ motion for a preliminary injunction, docket no. 24, is

9 DENIED. Plaintiffs’ motion for class certification, docket no. 2, is DEFERRED, and will

10 be considered after the Court rules on defendants’ recently filed motion to dismiss, and

11 only upon a finding that the Court has jurisdiction to consider the underlying claims.

12

13

8 The Court is keenly aware that the other two branches of government are struggling with the question of whether and how to appoint counsel for alien juveniles. See Senate Comm. on the Judiciary Holds a

Hearing on Oversight of the Justice Dep’t, 113th Cong., 2013 WL 820332 (Mar. 6, 2013). In response to

14 Senator Al Franken’s question concerning whether the responsibility for ensuring, to the extent

practicable, that certain unaccompanied minors have access to legal representation should be transferred

15 from the Department of Health and Human Services, see 8 U.S.C. § 1232(c)(5), to the Department of
Justice, Attorney General Eric Holder indicated: “If this is something that is better housed in the Justice

16

Department, that’s certainly something we’re willing to consider. But I would also say that this is going to be a resource issue. We should not simply give this responsibility to the Justice Department without

giving us additional resources.” 2013 WL 820332. Attorney General Holder further remarked that

17 making immigration decisions about young kids who are unrepresented is “simply not who we are as a

nation. It’s not the way in which we do things.” Id. In reply, Senator Franken expressed hope that “our

18

offices can work together” on the issue. Id. The Court shares this hope that the legislative and executive branches can craft a solution to the problem, but in the meanwhile, the financial constraints and border-

policing concerns raised by defendants’ attorney during oral argument will play a role in any analysis
19 concerning plaintiffs’ assertion of a right to appointed counsel under the Due Process Clause of the Fifth

Amendment. See Turner v. Rogers, 131 S. Ct. 2507, 2517-18 (2011) (for the purpose of assessing “what

20 specific safeguards the Constitution’s Due Process Clause requires in order to make a civil proceeding

fundamentally fair,” the factors articulated in Mathews v. Eldridge, 424 U.S. 319 (1976), are “relevant,”

21

namely (i) the nature of the private interest affected by the government action; (ii) the risk of “erroneous deprivation” of such interest through the procedures used, as well as the probable value of “additional or

substitute procedural safeguards”; and (iii) the countervailing interest of the government, including the
22 fiscal or administrative burdens that additional or different procedural requirements would entail).

23

ORDER - 14

Case 2:14-cv-01026-TSZ Document 81 Filed 09/29/14 Page 15 of 15

1

IT IS SO ORDERED.

2

Dated this 29th day of September, 2014.

3

A

4

THOMAS S. ZILLY

5

United States District Judge

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9

10

11

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ORDER - 15

 
 Case 2:14-cv-01026-TSZ Document 80 Filed 09/19/14 Page 1 of 27

1

United States District Judge Thomas S. Zilly

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9
10 J.E.F.M. a minor, et al., Plaintiffs,
11
v.
12
ERIC HOLDER, United States Attorney
13
General, et al.,
14
Defendants.
15
16

No. 2:14-cv-01026
DEFENDANTS’ MOTION TO DISMISS THE AMENDED COMPLAINT
HON. Thomas S. Zilly
Motion to Dismiss Noted on Motion Calendar: October 17, 2014

17

18

19

20

21

22

23

24

25

26

27

28 Defendants’ Motion to Dismiss Amended Complaint
No. 2:14-cv-01026

U.S. Department of Justice, Civil Division
Office of Immigration Litigation P.O. Box 868, Ben Franklin Station, Wash., DC 20044

Case 2:14-cv-01026-TSZ Document 80 Filed 09/19/14 Page 2 of 27

INTRODUCTION
1

2

Plaintiffs seek a Court Order enjoining the removal of all noncitizen minors unless they

3 are provided with taxpayer-funded counsel during their administrative removal proceedings.1

4 Plaintiffs have styled their complaint as a class action, and have filed a motion for class
5
certification. ECF No. 2. This Court lacks subject-matter jurisdiction to declare a Constitutional
6
right to counsel at taxpayer expense for all noncitizen minors in administrative removal
7
8 proceedings. Simply put: none of Plaintiffs’ cases is ripe for adjudication; Congress clearly

9 stated its intent to foreclose preemptive District Court adjudication of Constitutional claims
10
arising from removal proceedings; and Defendants have not waived their sovereign immunity.
11
But even if the Court were inclined to adjudicate this case on the merits, there is simply no
12
13 statutory or Constitutional right for non-citizen minors to receive taxpayer-funded lawyers for
14 administrative removal proceedings.

15

First, Plaintiffs’ claims are not ripe. In every case that has ever declared or even

16
contemplated a right to counsel in any context, the courts have only ever examined whether such
17
a right exists after the conclusion of the merits proceedings of the litigants involved. Here – for
18

19 the very first time in American history – Plaintiffs ask the Court to declare a Constitutional right

20 to taxpayer-funded counsel for all non-citizen minors in administrative removal proceedings

21 before these proceedings have even occurred, let alone been completed, before Plaintiffs have
22
actually failed to obtain counsel, and before anyone knows whether any of the Plaintiffs have
23
been adversely affected by not having counsel. Because Plaintiffs’ claims are non-justiciable,
24
25 they must be dismissed.

26
1 In their complaint, Plaintiffs seek to represent a class of individuals who do not have “legal representation,” citing 27 8 C.F.R. § 1291.1(a) for the definition of the individuals permitted to represent aliens in removal proceedings.
Compl. at 23, n. 21, ECF No. 1. For simplicity in this brief, Defendants’ reference to “counsel” includes all 28 categories of individuals within Plaintiffs’ definition of “legal representation.”

Defendants’ Motion to Dismiss Amended Complaint No. 2:14-cv-01026, Page 1

U.S. Department of Justice, Civil Division
Office of Immigration Litigation P.O. Box 868, Ben Franklin Station, Wash., DC 20044

Case 2:14-cv-01026-TSZ Document 80 Filed 09/19/14 Page 3 of 27

Second, Plaintiffs’ claims are barred in District Court by the jurisdiction channeling
1
2 provisions of the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1252(a)(5), (b)(9), and

3 (g). Plaintiffs have a perfectly adequate forum in which to raise their claims, the Ninth Circuit
4 Court of Appeals, but the INA precludes this Court from hearing them in the first instance. If the
5
Court were to permit Plaintiffs to circumvent these clear statutory jurisdictional mandates, there
6
would be no limiting principle that would prevent non-citizens from filing district court
7
8 challenges across the country seeking injunctive relief against any and all other perceived threats

9 to alleged due process rights before their removal proceedings have even begun.
10
Third, Plaintiffs’ claims are barred by the doctrine of sovereign immunity. The
11
Administrative Procedure Act (“APA”), upon which Plaintiffs rely for their sovereign immunity
12
13 waiver, does not permit a waiver of sovereign immunity in cases where a plaintiff has an
14 alternative forum for their claims, which, in this case, is the Court of Appeals for the Ninth

15 Circuit--if and when any of these Plaintiffs is ever ordered removed.
16
Finally, even if the Court is inclined to adjudicate this case on the merits, there is simply
17
no statutory or Constitutional right for non-citizen minors to receive taxpayer-funded lawyers for
18
19 administrative removal proceedings. The INA unambiguously states twice that non-citizens are

20 not entitled to taxpayer-funded counsel. Plaintiffs’ constitutional claim also fails because: these
21 are administrative removal proceedings, Plaintiffs’ physical liberty is not at issue, there are
22
sufficient statutory procedural safeguards in place for non-citizen minors in removal
23
proceedings, and the government has an exceptional interest in being able to adjudicate removal
24
25 proceedings and remove unlawfully present non-citizen minors.

26

BACKGROUND

27

On July 9, 2014, Plaintiffs filed a Complaint alleging that non-citizen minors placed in

28

Defendants’ Motion to Dismiss Amended Complaint No. 2:14-cv-01026, Page 2

U.S. Department of Justice, Civil Division
Office of Immigration Litigation P.O. Box 868, Ben Franklin Station, Wash., DC 20044

Case 2:14-cv-01026-TSZ Document 80 Filed 09/19/14 Page 4 of 27

immigration removal proceedings are not provided with an attorney at taxpayer expense. Compl.
1
2 at ¶ 1, ECF No. 1. On September 3, 2014, Plaintiffs filed an Amended Complaint, containing the

3 same substantive allegations, but including allegations concerning sovereign immunity. Am.
4 Compl, ECF. No. 73. Plaintiffs style their Complaint as a class action, id. ¶¶89-96, and allege
5
violations of the Fifth Amendment and the INA. Id. ¶¶ 97-102. They seek injunctive relief, but
6
have not sought compensatory damages. Id. at p. 27: “Prayer for Relief.” Concurrently with the
7
8 initial complaint, Plaintiffs filed a motion for class certification. ECF No. 2.

9

On July 31, 2014, Plaintiffs filed a motion for a preliminary injunction, requesting the

10
Court to enjoin their immigration proceedings to “permit them as much time as needed to find
11
legal representation,” or until Defendants provide them with counsel at taxpayer expense. Pls.’
12
13 Mot. Prelim. Inj. at 2, ECF No. 24. On September 3, 2014, the Court heard oral argument on the

14 motions for class certification and for a preliminary injunction. Minute Entry, ECF No. 76. The

15 Court has taken these motions under advisement.
16
LEGAL STANDARDS
17
Plaintiffs bear the burden of proving the existence of the court’s subject matter
18
19 jurisdiction, and the Court must dismiss the case absent such a showing. See Thompson v.

20 McCombe, 99 F.3d 352, 353 (9th Cir. 1996). A court may also dismiss a complaint that fails to

21 allege a cognizable legal theory or fails to plead “enough facts to state a claim to relief that is
22
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 569 (2007).
23
ARGUMENT
24

25 I.
26 27

This Court should dismiss this action under Rule 12(b)(1) for lack of subject matter jurisdiction because Plaintiffs’ claims are not ripe, because the INA requires Plaintiffs to raise these claims in the Court of Appeals, and because sovereign immunity bars Plaintiffs from raising these claims in District Court.

28

Defendants’ Motion to Dismiss Amended Complaint No. 2:14-cv-01026, Page 3

U.S. Department of Justice, Civil Division
Office of Immigration Litigation P.O. Box 868, Ben Franklin Station, Wash., DC 20044

Case 2:14-cv-01026-TSZ Document 80 Filed 09/19/14 Page 5 of 27

A. This Court lacks jurisdiction to grant the relief requested in the Amended

1

Complaint because Plaintiffs’ claims are not ripe for review.

2

3

This Court should dismiss the Amended Complaint because Plaintiffs’ feared harms –

4 i.e., that they will be unrepresented in their removal proceedings and, as a result, their removal

5 proceedings will violate the Due Process Clause of the Fifth Amendment; and, that because they

6 lack counsel, they will be erroneously ordered removed – have not actually been realized and

7 may never occur. Accordingly, Plaintiffs’ claims are not ripe for judicial review.

8

It is well-settled that “[a] claim is not ripe for adjudication if it rests upon contingent

9 future events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United

10 States, 523 U.S. 296, 300 (1998). Thus, courts should not preemptively review possible

11 administrative determinations “unless the effects of the administrative action challenged have

12 been felt in a concrete way by the challenging parties.” Reno v. Catholic Soc. Servs., Inc., 509

13 U.S. 43, 57 (1993). In Reno, the Supreme Court held that plaintiffs’ challenge to the former

14 Immigration and Nationality Service’s (“INS”) practice of issuing preliminary denials of

15 legalization applications (or “front-desking”) – and thereby denying them a judicial forum to

16 challenge the regulations administering the legalization program – was not ripe for judicial

17 review because there was insufficient evidence that any class member’s application had actually

18 been “front-desked.” Id. at 66. Consequently, the Court found the issue was non-justiciable and

19 remanded the case for a determination of whether any class members had been impacted by the

20 challenged practices, thereby having ripe claims. Id.; see also City of Rialto v. West Coast

21 Loading Corp., 581 F.3d 865, 878 (9th Cir. 2009) (holding that certain aspects of the plaintiffs’

22 CERCLA case were “not ripe for adjudication because the feared harm has not yet been

23 realized.”); Zabadi v. Holder, 407 Fed. Appx. 219, 221 (9th Cir. Jan. 4, 2011) (dismissing

24 challenge to deportation to “destination outside Kuwait” as unripe because alien presented no

25 evidence deportation was likely or imminent and therefore “nothing demonstrate[ed] that the

26 harm [he] seeks to avoid will ever happen, much less that it is likely to occur”); Barapind v.

27 Reno, 225 F.3d 1100, 1114-15 (9th Cir. 2000) (dismissing claim that asylum applicant had right

28 to have asylum application adjudicated before his potential extradition to a country in which his

Defendants’ Motion to Dismiss Amended Complaint No. 2:14-cv-01026, Page 4

U.S. Department of Justice, Civil Division
Office of Immigration Litigation P.O. Box 868, Ben Franklin Station, Wash., DC 20044

Case 2:14-cv-01026-TSZ Document 80 Filed 09/19/14 Page 6 of 27

1 life may be threatened, because his extraditability had not yet been adjudicated, rending his

2 claims “not ripe for review”).

3

Likewise here, Plaintiffs fear that if they do not obtain counsel, they will be denied Due

4 Process, and they will ultimately be ordered erroneously removed. Am. Compl. ¶¶ 1-5. Yet none

5 of the three feared harms have been realized and, in fact, they may never occur. Accordingly,

6 Plaintiffs’ claims are not ripe for adjudication. See City of Rialto, 581 F.3d at 878. First,

7 Plaintiffs have not failed to get counsel yet. The three representative plaintiffs with Master

8 Calendar hearings on September 4, 2014, for example, had their hearings continued until May 9 2015. 2 Unless Plaintiffs are affirmatively prevented from obtaining counsel, eight months should

10 provide more than adequate time for one of Plaintiffs’ 14 counsels of record to assist them to fill

11 out an asylum application. ECF No. 76. And there is no allegation in the Amended Complaint

12 that the remaining representative plaintiffs have been denied a reasonable continuance of their

13 removal proceeding to find counsel. Second, Plaintiffs do not allege that they have yet had a

14 hearing that has violated their due process rights. And third, Plaintiffs do not allege that they

15 failed to obtain relief from removal during their removal proceedings. Because these feared

16 harms have yet to be realized, they are not ripe for adjudication, and this Court should dismiss

17 the Amended Complaint. Reno, 509 U.S. at 66; City of Rialto, 581 F.3d at 878.

18

Ripeness is especially important to Plaintiffs’ claims, because in every case that has

19 declared or contemplated a right to counsel in any context, the courts have only examined

20 whether such a right exists after the conclusion of the merits proceedings of the litigants

21 involved. See Turner v. Rogers, 131 S. Ct. 2507, 2514 (2011) (petitioner incarcerated for civil

22 contempt after family court proceedings was denied due process of law in those proceedings

23 where he was not provided with either counsel or alternative procedural safeguards during those

24 proceedings); accord In re Gault, 387 U.S. 1, 4 (1967) (committed juvenile delinquent was

25 deemed, after his delinquency proceeding, to be entitled to government-appointed counsel if his

26 family could not afford counsel because his physical liberty was at risk); Lassiter v. Dep't of Soc.

27 2 Named Plaintiff FLB appeared for a hearing on September 17, 2014 without counsel. At FLB’s request, the IJ continued the hearing until May 20, 2015 so that he could find an attorney. The IJ provided FLP with a copy of the
28 Free Legal Service Provider’s List and all suggested FLB look for other attorneys beyond those on the list.

Defendants’ Motion to Dismiss Amended Complaint No. 2:14-cv-01026, Page 5

U.S. Department of Justice, Civil Division
Office of Immigration Litigation P.O. Box 868, Ben Franklin Station, Wash., DC 20044

Case 2:14-cv-01026-TSZ Document 80 Filed 09/19/14 Page 7 of 27

1 Servs. of Durham Cnty., N. C., 452 U.S. 18, 20-24 (1981) (indigent mother granted certiorari on

2 claim that Due Process clause required that she receive counsel during her custody hearing after

3 her parental rights had been terminated); Escobar Ruiz v. I.N.S., 838 F.2d 1020, 1022 (9th Cir.

4 1988) (indigent alien filed petition for review of removal proceedings on claim he was entitled to

5 costs of representation in immigration court and before the Board of Immigration Appeals

6 (“BIA”) after the merits proceedings concluded) (abrogated by Ardestani v. I.N.S., 502 U.S. 129,

7 131 (1991) (same)); Aguilera-Enriquez v. Immigration & Naturalization Serv., 516 F.2d 565,

8 569 (6th Cir. 1975) (alien ordered removed filed petition for review after his merits hearing

9 alleging that he was denied due process because he was not provided government-appointed

10 counsel).

11

In contrast to the long line of cases cited where claims were ripe for review because they

12 were brought after suffering alleged constitutional injuries, Plaintiffs ask the Court to declare a

13 constitutional right to taxpayer-funded counsel for all juvenile non-citizens in administrative

14 removal proceedings before they have actually failed to obtain counsel, before these proceedings

15 have even occurred, let alone been completed, and before anyone knows whether any Plaintiff is

16 adversely affected. This Court should not disregard this long-settled precedent, and should

17 instead dismiss the Amended Complaint for lack of justiciability. See Reno, 509 U.S. at 66; see

18 also City of Rialto, 581 F.3d at 878.

19

B. The Court lacks jurisdiction because 8 U.S.C. 1252(b)(9) and (g) place exclusive

20

jurisdiction over these claims in the Court of Appeals.

21

1. The Court of Appeals has exclusive jurisdiction to consider Plaintiffs’

claim that they are entitled to taxpayer-funded counsel.
22

23

Pursuant to the REAL ID Act, “[j]udicial review of all questions of law and fact,

24 including interpretation and application of constitutional and statutory provisions, arising from

25 any action taken or proceeding brought to remove an alien from the United States under this
26
subchapter shall be available only in judicial review of a final order,” which may occur
27

28

Defendants’ Motion to Dismiss Amended Complaint No. 2:14-cv-01026, Page 6

U.S. Department of Justice, Civil Division
Office of Immigration Litigation P.O. Box 868, Ben Franklin Station, Wash., DC 20044

Case 2:14-cv-01026-TSZ Document 80 Filed 09/19/14 Page 8 of 27

exclusively in the courts of appeals. 8 U.S.C. §§ 1252(a)(5), (b)(9) (emphasis added). 8 U.S.C.
1
2 1252(b)(9) expressly precludes district court review “by habeas corpus . . . or by any other

3 provision of law (statutory or nonstatutory)” of an order of removal or “questions of law or fact”
4 arising from any action taken or proceeding brought to remove an alien from the United States.
5
The Supreme Court has made clear that section 1252(b)(9) is “the unmistakable ‘zipper’
6
clause,” channeling “judicial review of all” “decisions and actions leading up to or consequent
7
8 upon final orders of deportation,” including “non-final order[s],” into one proceeding before a

9 court of appeals. Reno v. Am.-Arab Anti-Discrimination Com., 525 U.S. 471, 483, 485 (1999)
10
(emphasis added); Aguilar v. U.S. ICE, 510 F.3d 1, 9, 11 (1st Cir. 2007) (“section 1252(b)(9) is
11
not limited to singular orders of removal,” but “consolidate[s] ‘all questions of law and fact’ that
12
13 ‘arise from’ either an ‘action’ or a ‘proceeding’ brought in connection with the removal of an
14 alien,” and “channels federal court jurisdiction over ‘such questions[]’ to the courts of appeals”

15 following “exhaustion of administrative procedures and the consolidation of claims for judicial
16
review.”). Through the REAL ID Act, Congress amended section 1252(b)(9) to eliminate
17
“claim-splitting -- pursuing selected arguments in the district court and leaving others for
18
19 adjudication in the immigration court,” which in Congress’s view “heralds an obvious loss of

20 efficiency and bifurcation of review mechanisms.” Aguilar, 510 F.3d at 14 (claim-splitting and
21 inefficiency “among the principal evils that Congress sought to avoid through . . . section
22
1252(b)(9)”) (citing H.R. Rep. No. 109-72, at 174, reprinted in 2005 U.S.C.C.A.N. at 299)).
23
Although Plaintiffs suggest that 1252(b)(9) only applies if a final order of removal exists,
24
25 that claim is belied by their reliance in their preliminary injunction papers on Aguilar v. U.S.

26 ICE, 510 F.3d 1 (1st Cir. 2007), see ECF 66 at 6 n.7, which addressed precisely the claim at
27 issue here, and did not find the fact that no final removal order existed determinative of section
28

Defendants’ Motion to Dismiss Amended Complaint No. 2:14-cv-01026, Page 7

U.S. Department of Justice, Civil Division
Office of Immigration Litigation P.O. Box 868, Ben Franklin Station, Wash., DC 20044

Case 2:14-cv-01026-TSZ Document 80 Filed 09/19/14 Page 9 of 27

1252(b)(9)’s application. 510 F.3d at 3-6, 13-14. Relying on Aguilar, Plaintiffs argue that
1
2 “claims that cannot effectively be handled through the available administrative process are

3 excluded from §1252(b)(9)’s purview.” ECF 66 at 6 n. 7. Plaintiffs fail to point out that, in fact,
4 Aguilar found the precise claims at issue here – the right to counsel in immigration proceedings –
5
to be foreclosed, at least in district court, by 1252(b)(9). Aguilar, 510 F.3d at 13-14.
6
There, a class of plaintiffs alleged that a series of actions taken by the government before
7
8 “formal removal proceedings” began were not covered by section 1252(b)(9). 510 F.3d at 10.

9 Among other things, plaintiffs alleged that the Government’s decision to detain and then transfer

10
certain aliens to other locations, prior to the initiation of removal proceedings, “infringed their
11
rights to counsel by barring their access to lawyers [and] interfering with preexisting attorney-
12
13 client relationships.” Id. at 13-14. As Aguilar held,

14

“[t]he frequency with which right-to-counsel claims arise in removal proceedings

refutes any notion that such claims are sufficiently separate from removal

15

proceedings to be considered either ‘independent’ or ‘collateral.’ Challenges to

16

removal orders premised on the government's putative violation of an alien’s right

to counsel are commonplace, and such claims are often featured in petitions for

17

judicial review of removal orders. Ultimately, allowing aliens to ignore the

channeling provisions of section 1252(b)(9) and bring right-to-counsel claims

18

directly in the district court would result in precisely the type of fragmented

19

litigation that Congress sought to forbid.”3

20 Id. at 13-14.

21
3 Plaintiffs suggest also that 1252(b)(9) need not be followed because their claims ought to be exempt from any 22 exhaustion requirement. ECF 66 at 6, n.7. This claim is premised on Plaintiffs’ belief that their claims cannot be
effectively handled in immigration court and before the Ninth Circuit. Id. As noted, Aguilar rejects this proposition. 23 510 F.3d at 13-14. But more importantly, Aguilar also rejects Plaintiffs’ exhaustion argument:

24

In this instance, requiring the administrative exhaustion of such claims does not, in the Supreme

Court's phrase, “foreclose all meaningful judicial review” of the claims. The petitioners

25

unquestionably have the right, under the INA, to raise these claims before the immigration judge,

before the Board of Immigration Appeals (BIA), and ultimately before the court of appeals. Thus,

26

the petitioners . . . can receive effective relief for their alleged violations of the right to counsel

simply by navigating the channels deliberately dredged by Congress. 27

Id. at 14. Plaintiffs therefore must pursue and exhaust their administrative remedies. 28

Defendants’ Motion to Dismiss Amended Complaint No. 2:14-cv-01026, Page 8

U.S. Department of Justice, Civil Division
Office of Immigration Litigation P.O. Box 868, Ben Franklin Station, Wash., DC 20044

Case 2:14-cv-01026-TSZ Document 80 Filed 09/19/14 Page 10 of 27

1

Critically, “section 1252(b)(9) is a judicial channeling provision, not a claim-barring

2
one.” Id. at 18. The INA makes quite clear that “[n]othing . . . in any other provision of this
3
chapter . . . shall be construed as precluding review of constitutional claims or questions of law
4

5 raised upon a petition for review filed with an appropriate court of appeals in accordance with

6 this section.” 8 U.S.C. § 1252(a)(2)(D) (emphasis added).4 Thus, any suggestion that Plaintiffs’

7 claims cannot effectively be handled through the required administrative process is meritless.
8
Plaintiffs may raise their claims before an immigration judge (“IJ”), and again to the BIA, and
9
ultimately. If they ever actually suffer cognizable harm because of a lack or representation or
10

11 ineffective assistance of counsel, they may seek review of all constitutional and statutory claims

12 – the very basis of their Complaint – in the Ninth Circuit. Accordingly, section 1252(b)(9)

13 forecloses district court jurisdiction over these claims.5

14

2. This Court lacks subject matter jurisdiction to enter an injunction which

15

would prevent the government from adjudicating removal proceedings

16

involving minors who do not have counsel.

17

This action seeks to enjoin the government from adjudicating the removal cases of

18 unrepresented non-citizen juveniles. See, e.g., Am. Compl. ¶ 1. Although the INA bars this Court
19
from hearing claims arising from “decision or action by the Attorney General to commence
20

21

22
4 If this Court were to permit Plaintiffs to circumvent these clear statutory mandates, there would be no limiting 23 principle that would prevent non-citizens from filing district court challenges across the country seeking injunctive
relief against any and all other perceived threats to alleged due process rights before their removal proceedings have 24 even begun. Congress designed the INA judicial review provisions to prevent the fragmentation of removal
proceedings that would result from such challenges in District Court, but ultimately allows plaintiffs to raise such 25 challenges in the Court of Appeals on a petition for review.
5 To the extent Plaintiffs suggest that Singh v. Gonazales, 499 F.3d 969 (9th Cir. 2007) requires the existence of a 26 final order of removal before section 1252(b)(9) is applicable, that suggestion is incorrect, and misunderstands the
thrust of Singh’s holding. Singh is inapposite for several reasons, most importantly that – unlike Plaintiffs here – 27 Singh’s ineffective assistance of counsel claim could not be raised on a petition for review because his lawyer was
late in filing the petition itself. 499 F.3d at 979. 28

Defendants’ Motion to Dismiss Amended Complaint No. 2:14-cv-01026, Page 9

U.S. Department of Justice, Civil Division
Office of Immigration Litigation P.O. Box 868, Ben Franklin Station, Wash., DC 20044

Case 2:14-cv-01026-TSZ Document 80 Filed 09/19/14 Page 11 of 27

proceedings, adjudicate cases, or execute removal orders against any alien,” 8 U.S.C. § 1252(g)
1
2 (emphasis added), Plaintiffs would have the Court do just that.

3

Plaintiffs ask for a declaration that the government’s decision to commence removal

4 proceedings and to adjudicate the removal cases of unrepresented minors “violates constitutional
5
and statutory law.” Am. Compl. at 27. Plaintiffs also request an injunction that would “ensure
6
that Plaintiffs and other members of the Plaintiff Class receive legal representation in their
7
8 immigration proceedings.” Id. Taken at face value, Plaintiffs are essentially asking this Court to

9 enjoin the removal proceedings of Plaintiffs and all noncitizen minors in the United States.
10 Section 1252(g) precludes this Court from doing so6. See Reno, 525 U.S. at 472-76, 487 (holding
11
that Section 1252(g) acts as a jurisdictional bar to a suit seeking to enjoin removal proceedings
12
13 because of selective prosecution); see also Ali v. Mukasey, 524 F.3d 145, 150 (2d Cir. 2008)
14 (holding that § 1252(g) applied to a claim that DHS had improperly exercised its discretion in

15 bringing removal proceedings against various aliens); Tobar-Barrera v. Napolitano, Civil Nos.
16
RDB 09-3064, RDB 10-0176, 2010 WL 972557 *2 (D. Md. March 12, 2010) (holding that under
17
§ 1252(g) the court lacks subject matter jurisdiction to enjoin removal proceedings); Moore v.
18
19 Mukasey, No. H-08-1923, 2008 WL 4560619 *2 (S.D. Tex. October 9, 2008) (holding that under

20 § 1252(g) the court lacks subject matter jurisdiction to enjoin removal proceedings because of

21 selective prosecution). Because Plaintiffs seek the exact relief § 1252(g) explicitly prohibits this
22
Court from granting, the Court should dismiss this action for lack of subject matter jurisdiction.
23
This case is distinguishable from Ninth Circuit cases limiting § 1252(g)’s reach because,
24
25 in this case, Plaintiffs’ claims are not actually barred by § 1252(g), but are simply channeled to

26 6 The administration has asked for additional funding for counsel for minors and, so far, Congress has not provided
this funding. See, e.g., Caitlin Dickson, The Border Kid Crisis Hits the Courts, U.S. NEWS, available at 27 http://www.thedailybeast.com/articles/2014/09/19/the-border-kid-crisis-hits-the-courts.html If Congress were to
continue to oppose additional funding, and Plaintiffs’ requested relief is granted, this relief could have the effect of 28 substantially limiting the federal government’s ability to conduct removal proceedings involving noncitizen minors.

Defendants’ Motion to Dismiss Amended Complaint No. 2:14-cv-01026, Page 10

U.S. Department of Justice, Civil Division
Office of Immigration Litigation P.O. Box 868, Ben Franklin Station, Wash., DC 20044

Case 2:14-cv-01026-TSZ Document 80 Filed 09/19/14 Page 12 of 27

the Court of Appeals by operation of § 1252(b)(9). For example, in Barahona-Gomez v. Reno.
1
2 236 F.3d 1115 (9th Cir. 2001), plaintiffs challenged directives from the Chairman of the BIA and

3 the Chief IJ to prevent the granting of suspension of deportation to individuals in removal
4 proceedings. Plaintiffs sought to enjoin the BIA and immigration courts from following these
5
directives, and at least one plaintiff was able to show that he would have been granted
6
suspension of deportation at his removal proceedings but-for the directives. Because there was
7
8 no final agency action to challenge on a petition for review, the district court was the only venue

9 for in which the challenge could be made. Likewise, in Walters v. Reno, 145 F.3d 1032 (9th Cir.
10
1998), plaintiffs alleged that certain INS notices were constitutionally deficient because they did
11
not adequately advise them of their rights. 145 F.3d at 1036. If the recipients of these notices did
12
13 not adequately respond within 60 days, they were subjected to unappealable final orders, and
14 permanently excludable from the United States. Id. Thus, if plaintiffs had been unable to raise

15 their claims in district court, they would be precluded from raising them anywhere, because the
16
final orders were not appealable. In contrast, and as discussed above, Plaintiffs in this case can
17
raise their statutory and due process challenges in a petition for review. Accordingly, the
18
19 concerns raised in Barahona-Gomez and Walters are absent here.

20

Similarly, Franco-Gonzales v. Holder, 767 F. Supp. 2d 1034 (C.D. Cal 2010), which

21 Plaintiffs cited in support their motion for a preliminary injunction, is distinguishable from this
22
case on several grounds. First, unlike the Plaintiffs here, plaintiffs in Franco asserted prolonged
23
detention claims that required more immediate relief from the court and were less amenable to
24

25 waiting for a petition for a review. Second, in Franco, the Court noted that “Plaintiffs merely

26 seek to continue their cases for a matter of several weeks until such time as they have secured
27 qualified representation.” Id. at 1049. However, as noted, should Congress continue to decline
28

Defendants’ Motion to Dismiss Amended Complaint No. 2:14-cv-01026, Page 11

U.S. Department of Justice, Civil Division
Office of Immigration Litigation P.O. Box 868, Ben Franklin Station, Wash., DC 20044

Case 2:14-cv-01026-TSZ Document 80 Filed 09/19/14 Page 13 of 27

Executive requests for more funding for the immigration courts, the relief that Plaintiffs request
1
2 here could permanently enjoin Defendants from removing minors from the United States. Thus,

3 this cases is unlike Franco where the injunction purportedly would only continue plaintiffs’

4 cases for a matter of weeks.7 Finally, the plaintiff class in Franco, which is limited to mentally
5
incompetent aliens, is miniscule in relation to the putative class in this case, which if certified
6
would include, “[a]ll individuals under the age of eighteen (18) who are or will be in
7
8 immigration proceedings on or after July 9, 2014, without legal representation in their

9 immigration proceedings.”8 Am. Compl. ¶ 90. Thus, were the Court to grant relief to the
10
Plaintiffs who filed this motion, and later extend it to a class, it would prevent Defendants from
11
“commencing actions” and “adjudicating cases” against most – if not all – of the putative class.
12
13 It is this type of interference with the adjudication of removal proceedings that § 1252(g) bars.

14

3. This Court lacks subject matter jurisdiction to grant the relief requested

in the Amended Complaint because the doctrine of sovereign immunity

15

prevents Plaintiffs from bringing this action in District Court.

16
As sovereign, the United States is immune from suit, unless it waives this immunity and
17
consents to suit. United States v. Dalm, 494 U.S. 596, 608 (1990); see Butz v. Economou, 438
18

19 U.S. 478, 504 (1978) (“barrier of sovereign immunity is frequently impenetrable”). The Supreme

20 Court has consistently stated that “a waiver of sovereign immunity must be ‘unequivocally

21 expressed’ in a statutory text.” Fed. Aviation Admin. v. Cooper, 132 S.Ct. 1441, 1448 (2012)
22

23

24
7 Moreover, the Franco class’s size pales in comparison to the putative class at issue here, such that EOIR did not 25 need funding from Congress to comply with the court’s directive under the Rehabilitation Act—not the INA or the
constitution--concerning continuances. Here, by contrast, the potential funding needed would be far greater. 26 8 To the extent that the government opts to adjudicate the removal cases of minors without counsel – which could
include, inter alia, minors in proceedings with their parents, wealthy minors (or minors with wealthy parents), 1727 year-old foreign exchange students convicted of drug offenses, minors whose parents are foreign diplomats, and
minors who have made no effort to obtain pro bono counsel – Plaintiffs’ claim in this action arises directly from the 28 government’s decision.

Defendants’ Motion to Dismiss Amended Complaint No. 2:14-cv-01026, Page 12

U.S. Department of Justice, Civil Division
Office of Immigration Litigation P.O. Box 868, Ben Franklin Station, Wash., DC 20044

Case 2:14-cv-01026-TSZ Document 80 Filed 09/19/14 Page 14 of 27

(citations omitted). In the absence of an applicable waiver, courts lack jurisdiction to entertain
1
2 claims against the United States. United States v. Sherwood, 312 U.S. 584, 586 (1941).

3

Plaintiffs, relying on Larson v. Domestic & Foreign Commerce Cop., 337 U.S. 682

4 (1949), broadly contend sovereign immunity does not prevent this Court from exercising
5
jurisdiction over their claims because they seek to prevent future constitutional violations and not
6
monetary relief. Am. Compl. ¶ 10. In Larson, the Supreme Court held that sovereign immunity
7

8 does not bar suit for specific relief against a government official’s ultra vires or unconstitutional

9 acts where the “statute or order conferring power upon the officer to take action . . . is claimed to
10
be unconstitutional.” 337 U.S. at 689-90. Because courts have consistently held that the Due
11
Process clause does not require taxpayer-funded counsel in immigration proceedings, see, e.g.,
12
13 Martin-Mendoza v. INS, 499 F.2d 918, 922 (9th Cir. 1974), Plaintiffs cannot plausibly allege that
14 Defendants’ actions, or the INA provisions at issue here, are unconstitutional.

15

Plaintiffs also assert the United States has broadly “waived all immunity from suit in any

16
action requesting non-monetary relief” under the Administrative Procedures Act (“APA”), 5
17
U.S.C. § 702. Am. Compl. ¶ 11. The APA does not apply, however, where “statues preclude
18

19 judicial review.” 5 U.S.C. § 701(a)(1). As discussed in Sections I.B. and I.C. above, the INA

20 specifically precludes judicial review of Plaintiffs’ claims in the District Court. Accordingly, the
21 APA does not waive sovereign immunity for Plaintiffs’ claims.
22
In Veterans for Common Sense v. Shinseki, the Ninth Circuit considered a similar
23
statutory jurisdictional bar concerning veterans’ claims. 678 F.3d 1013 (9th Cir. 2012). Citing
24
25 Beamon v. Brown, 125 F.3d 965 (6th Cir. 1997), the Ninth Circuit articulated that where, as here,

26 plaintiffs challenge the “legality and constitutionality of procedures” of an administrative body, a
27 determination of “the proper procedures for claim adjudication is a necessary precursor to
28

Defendants’ Motion to Dismiss Amended Complaint No. 2:14-cv-01026, Page 13

U.S. Department of Justice, Civil Division
Office of Immigration Litigation P.O. Box 868, Ben Franklin Station, Wash., DC 20044

Case 2:14-cv-01026-TSZ Document 80 Filed 09/19/14 Page 15 of 27

deciding [individual] claims” and therefore jurisdiction was precluded by statute. Id. at 1025-26,
1
2 1029, n.20 (quoting Beamon, 125 F.3d at 970). Likewise here, pursuant to the judicial review

3 channeling provisions at 8 U.S.C. § 1252, the district court may not consider Plaintiffs’ legal or

4 constitutional claims because a determination of the proper procedures for minor aliens in
5
removal proceedings is a necessary precursor to adjudication of their individual claims. Id.
6
Accordingly, because Congress explicitly channeled claims arising from removal proceedings
7
8 out of the District Courts and into the Courts of Appeals, the APA – and its corresponding

9 waiver of sovereign immunity – does not apply to Plaintiffs’ claims. See 5 U.S.C. § 701(a)(1).9

10
II.
11
12

This Court should dismiss this action under Federal Rule of Civil Procedure 12(b)(6) because Plaintiffs have failed to state a cognizable claim for relief under either the INA or the Constitution.

13

A. The INA does not require that counsel be provided for aliens in administrative

immigration proceedings at taxpayer expense.

14

Since 1952, the INA, through 8 U.S.C. § 1362, has guaranteed aliens in immigration

15 proceedings the “privilege” of representation by counsel. However, by including the language “at

16 no expense to the Government,” Congress was clear that the statute does not require provision of

17 counsel at taxpayer expense. See also 8 U.S.C. § 1229a(b)(4)(A). Although Congress amended

18 the INA to address removal proceedings, as opposed to deportation and exclusion proceedings, it

19 retained the express limitation “at no expense to the Government,” indicating once again that the

20 INA does not require provision of counsel at taxpayer expense. See 8 U.S.C. § 1362. This

21 limitation reflects the fact that removal proceedings are relatively informal, streamlined

22 administrative proceedings, where the Federal Rules of Evidence do not apply. Chung Lim You

23 v. Mukasey, No. 06-74741, 2007 U.S. App. LEXIS 29127, *5 (9th Cir. Dec. 13, 2007).

24

Instead of creating a right to appointed counsel, the INA expressly provides a limited

25 “privilege of being represented, at no expense to the Government, by counsel of the alien’s

26
9 Further, Plaintiffs’ assertion of jurisdiction under the general federal question statute and All Writs Act do not 27 assist them in avoiding sovereign immunity, because neither statute operates as a waiver of sovereign immunity. See
Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983) (general federal question statute does not waive sovereign 28 immunity); Stimac v. Haag, C10-02216, 2010 WL 3835719 (N.D. Cal. Sept. 29, 2010) (same as to All Writs Act).

Defendants’ Motion to Dismiss Amended Complaint No. 2:14-cv-01026, Page 14

U.S. Department of Justice, Civil Division
Office of Immigration Litigation P.O. Box 868, Ben Franklin Station, Wash., DC 20044

Case 2:14-cv-01026-TSZ Document 80 Filed 09/19/14 Page 16 of 27

1 choosing.” 8 U.S.C. § 1362; see 8 U.S.C. § 1229a(b)(4)(A). Plaintiffs’ claim that the INA

2 requires appointed counsel is belied by Congress’ expressed intent that the government is not

3 required to pay for counsel in removal proceedings. See, e.g., El Rescate Legal Services, Inc. v.

4 EOIR, 959 F.2d 742, 750 (9th Cir. 1992) (discussing congressional intent that the government

5 not be required to pay for appointed counsel in immigration court proceedings); Escobar Ruiz v.

6 INS, 838 F.2d 1020, 1028 (9th Cir. 1988) (stating that 8 U.S.C. § 1362 “expresses Congress’

7 intent to grant aliens the right to be represented by counsel in such proceedings, but not to grant

8 indigent aliens the right to have counsel appointed at government expense”).

9

“[U]nder accepted canons of statutory interpretation, statutes are to be interpreted as a

10 whole,” meaning that “[o]ne provision of a statute should not be interpreted in a manner that

11 renders other sections of the same statute inconsistent, meaningless or superfluous.” United

12 States v. Fiorillo, 186 F.3d 1136, 1153 (9th Cir. 1999). If this Court were to read a right to

13 appointed counsel for juvenile aliens into 8 U.S.C. § 1229a(b)(4)(B) and other parts of the INA

14 that safeguard aliens’ procedural rights, it would render meaningless the express language of 8

15 U.S.C. § 1229a(b)(4)(A) and 8 U.S.C. § 1362, which make clear that the government is not

16 required to pay for counsel in removal proceedings. Thus, this Court cannot read into the statute

17 a requirement for the Government to provide appointed counsel without frustrating Congress’

18 clear intent. Accordingly, this Court should dismiss Plaintiffs’ First Claim for Relief, because

19 Plaintiffs have failed a state a cognizable legal claim.

20

B. The Constitution does not require Defendants to provide minors with

21

taxpayer funded counsel in administrative immigration proceedings.

22
1. Assuming Plaintiffs’ claims are ripe for review, the Court should

23

construe the Complaint as alleging a facial constitutional challenge, such

that Plaintiffs must demonstrate that the failure to provide juvenile aliens

24

representation violates the Constitution as to all possible juvenile aliens.

25
Assuming, arguendo, that this Court has subject matter jurisdiction, and notwithstanding
26
the non-justiciability of Plaintiffs’ claims, Plaintiffs fail to plead a plausible claim for relief
27

28 under the Fifth Amendment. Plaintiffs allege that the Due Process Clause requires that all

Defendants’ Motion to Dismiss Amended Complaint No. 2:14-cv-01026, Page 15

U.S. Department of Justice, Civil Division
Office of Immigration Litigation P.O. Box 868, Ben Franklin Station, Wash., DC 20044

Case 2:14-cv-01026-TSZ Document 80 Filed 09/19/14 Page 17 of 27

noncitizen minors appearing in immigration proceedings, regardless of their age or individual
1
2 circumstances, “must be provided legal representation,” and seek a declaration and injunctive 3 relief to that effect.10 Complaint, ¶ 97; Prayer for Relief, b. If Plaintiffs are truly seeking a Court

4 order declaring it unconstitutional to remove a noncitizen minor without providing the minor
5
with taxpayer-funded counsel, they are asserting a facial challenge to the law. See, e.g., El
6
Rescate, 959 F.2d at 751. Such a challenge to law cannot stand when the current law “can be
7
8 construed in such a manner that [it] can be applied to a set of individuals without infringing upon

9 constitutionally protected rights.” Id. (quoting Rust v. Sullivan, 500 U.S. 173, 183 (1991)).
10
Plaintiffs “face a heavy burden in seeking to have the [representation policy] invalidated as
11
facially unconstitutional since the challenger must establish that no set of circumstances exists
12
13 under which the [policy] would be valid.” Id.; accord United States v. Salerno, 481 U.S. 739,
14 745 (1987) (describing Plaintiffs’ burden in a facial challenge).

15

Indeed, the Ninth Circuit has applied this doctrine in a similar case. In El Rescate, a class

16
of aliens alleged that EOIR’s practice at the time of not translating all immigration proceedings
17
in full violated the Fifth Amendment. 959 F.2d at 745. The Ninth Circuit rejected this claim,
18

19 concluding the practice was facially constitutional. In particular, the Court noted that it was

20 appropriate for EOIR to rely on an IJ’s discretion to determine whether all of the proceedings, or

21 only those portions required by statute, had to be translated. Id. at 752. This followed from the
22
more general fact that where an alien was unrepresented, the regulations required IJs to “afford
23
aliens a reasonable opportunity to show why they should not be deported”11 and “[t]he mere fact
24

25
10 Plaintiffs allege a right to counsel under the Fifth Amendment and not the Sixth Amendment. Am. Compl. ¶¶ 10026 102.
11 The Court noted several such opportunities, including: (1) “making [the alien] aware of the facts the Government 27 will seek to prove and the significance of those facts if proved”; (2) “afford[ing] the alien a reasonable opportunity
to examine the evidence against him” and “to put on his own evidence”; and (3) “cross-examine witnesses,” even if 28 it is without “appointed counsel.” Rescate, 959 F.3d at 752.

Defendants’ Motion to Dismiss Amended Complaint No. 2:14-cv-01026, Page 16

U.S. Department of Justice, Civil Division
Office of Immigration Litigation P.O. Box 868, Ben Franklin Station, Wash., DC 20044

Case 2:14-cv-01026-TSZ Document 80 Filed 09/19/14 Page 18 of 27

that part of the [] regulatory scheme for protecting aliens’ constitutional interests relies on IJs to
1
2 properly exercise their discretion does not render the scheme unconstitutional.” Id. at 751.

3 Accordingly, the Court reasoned that “[i]f the IJ properly exercises his discretion to afford the
4 alien his reasonable opportunities, the alien receives a full and fair hearing, and all the process he
5
is due.” Id. at 752. Because relying on IJs to exercise such discretion when an alien lacked
6
counsel was constitutionally permissible, the Court concluded that Plaintiffs could not “show
7
8 ‘that no set of circumstances exists under which the Act would be valid. The fact that the

9 regulations might operate unconstitutionally under some conceivable set of circumstances is
10 insufficient to render them wholly invalid.’” Id. (citing Rust, 111 S. Ct. at 1767).12
11
This case is no different. As the Ninth Circuit has noted if an alien is unrepresented, “the
12
13 IJ has an affirmative duty to ensure that the record is fully developed for the benefit of the
14 applicant,” Oshodi v. Holder, 729 F.3d 883, 889 (9th Cir. 2013), and “[e]xplaining the factual

15 allegations and the charges” against the alien “in nontechnical language, constitutes a reasonable
16
approach to affording the alien his reasonable opportunities” to meaningfully participate in his
17
proceedings should he lack an attorney. El Rescate, 959 F.2d at 749. And as discussed below,
18
19 minors, particularly unaccompanied minors, receive special protections and procedures

20 throughout the immigration process designed to ensure a full and fair opportunity to exercise 21 their rights. Thus, Plaintiffs cannot “establish that no set of circumstances exists under which”
22

23

24

25
12 Indeed, Plaintiffs’ own complaint cites a study which purportedly finds that 13 percent of unrepresented, non26 detained noncitizens receive favorable outcomes in their immigration proceedings. Although Defendants do not
concede the accuracy or accept Plaintiffs’ interpretation of these reports, the Court must accept them as true for the 27 purposes of this motion to dismiss -- and accepting them as such fatally nullifies their facial challenge in this case.
Am. Compl. at 13, n.14. 28

Defendants’ Motion to Dismiss Amended Complaint No. 2:14-cv-01026, Page 17

U.S. Department of Justice, Civil Division
Office of Immigration Litigation P.O. Box 868, Ben Franklin Station, Wash., DC 20044

Case 2:14-cv-01026-TSZ Document 80 Filed 09/19/14 Page 19 of 27

the statutes and regulations governing the provision of counsel to aliens in proceedings “would
1
2 be valid,” El Rescate, 959 F.2d at 751, and their Complaint must be dismissed.13

3

2. Plaintiffs do not have a right to taxpayer funded counsel in their

administrative immigration proceedings under the Fifth Amendment.
4

Plaintiffs assert that their Fifth Amendment due process right to a full and fair removal

5

hearing encompasses a right to taxpayer-funded counsel. Am. Compl. ¶¶ 100-102. Although an
6

alien in removal proceedings is entitled to due process in the form of a “full and fair” hearing,

7

see, e.g., Burgos-Abril v. INS, 58 F.3d 475, 476 (9th Cir. 1995), the guarantee does not mandate

8
the appointment of taxpayer funded counsel for noncitizen minors.14 Nothing in the Constitution
9

requires the taxpayers to provide counsel to minors in immigration court. In fact, the Eastern

10

District of Washington has already rejected this claim. See Gonzalez-Machado v. Ashcroft, No.

11

02-0066 (E.D. Wash.), Order Granting Defendants’ Motion to Dismiss (June 18, 2002). Plaintiff
12

in that case made the exact same argument that Plaintiffs assert here. See Gonzalez-Machado,

13

ECF No. 69 at 18-22; ECF No. 73. The court readily disposed of the contention. The court

14

emphasized that both the Supreme Court and the Ninth Circuit rely on the civil/criminal
15

distinction in the immigration context to limit the process due in removal proceedings. See ECF

16

51-1 at 19, 21. Further, Ninth Circuit precedent rejecting a due process right to appointed counsel

17

in removal proceedings is not based on the concept that adult aliens can effectively participate in
18

removal proceedings without the assistance of counsel, but on the civil nature of the removal

19

proceedings themselves. Id. at 19. The court therefore found that the question was not whether
20

the needs of juvenile aliens were different than those of adults, but whether the interests of

21

22
13 The foregoing also demonstrates further why this action is inappropriate for class certification. Because Plaintiffs 23 cannot allege a facial challenge, they must allege an as applied challenge as to each of the putative class members.
But each of these individuals will present vastly different facts and circumstances, such that Plaintiffs will not be 24 able to demonstrate commonality, among other things. This, combined with the difficulties in alleging injury based
on contingent, future events, demonstrates why it is more appropriate for each juvenile alien in this case to raise 25 their claims, should they ripen, through the administrative and judicial process provided by 8 U.S.C. §§ 1252(a), (b),
and (d), where they may raise their individual claims -- including any constitutional claim – before an IJ, the BIA, 26 and the Ninth Circuit. See infra.
14 In order to show that his right to a full and fair hearing was violated, “the alien must demonstrate that the 27 challenged proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his
case.” Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000). Should he make this showing, he also must establish 28 prejudice, i.e., “that the outcome of the proceeding may have been affected by the alleged violation.” Id.

Defendants’ Motion to Dismiss Amended Complaint No. 2:14-cv-01026, Page 18

U.S. Department of Justice, Civil Division
Office of Immigration Litigation P.O. Box 868, Ben Franklin Station, Wash., DC 20044

Case 2:14-cv-01026-TSZ Document 80 Filed 09/19/14 Page 20 of 27

1 juvenile aliens in removal proceedings were different from those of adults. Id. at 20. The court

2 concluded that because the interests of juveniles generally could not be distinguished from those

3 of adults, plaintiff had “not demonstrated that the fundamental civil/criminal dichotomy that

4 forms the basis for Ninth Circuit case law on this issue is no longer a valid analytical model or

5 that the interests of juvenile aliens undermines the reasoning of those prior opinions when

6 applied to children.” Id. at 21-22. Accordingly, the court dismissed the complaint. Id. at 22.

7

Plaintiffs rely on the Supreme Court’s right-to-counsel jurisprudence in civil cases to

8 assert a taxpayer funded right to counsel for foreign juveniles in administrative removal

9 proceedings. See Pls.’ Mot. Prelim. Inj., ECF No. 51, at 8-9. This line of cases recognizes only

10 that procedural due process may require the appointment of counsel for some indigent

11 individuals where actual imprisonment may result. Additionally, this line of case recognizes,

12 based on the factors set forth in Mathews v. Eldridge, 424 U.S. 319 (1976), that specific

13 safeguards may be needed to render a civil proceeding fundamentally fair. 424 U.S. at 335. The

14 Mathews factors that courts must consider in making this determination are: “(1) the nature of

15 the private interest that will be affected, (2) the comparative risk of an erroneous deprivation of

16 that interest with and without additional or substitute procedural safeguards, and (3) the nature

17 and magnitude of any countervailing interest in not providing additional or substitute procedural

18 requirement[s].” Turner v. Rodgers, 131 S. Ct. 2507, 2510 (2011) (citing Mathews, 424 U.S. at

19 335); see also Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18 (1981). None of these cases permits

20 the conclusion that there is a constitutional right to taxpayer funded counsel for non-citizens in

21 administrative removal proceedings.

22

To begin with, Lassiter v. Dept. of Soc. Services establishes, that in civil cases there is a

23 “presumption that an indigent litigant has a right to appointed counsel only when, if he loses, he

24 may be deprived of his physical liberty. It is against this presumption that all the other elements

25 in the due process decision must be measured.” 452 U.S. at 26-27. In Lassiter, a mother sought

26 the appointment of an attorney to represent her in her parental termination hearings on the basis

27 that she was indigent and unable to afford counsel specifically for this purpose. Lassiter rooted

28 her claim to appointed counsel in the Due Process Clause of the Fourteenth Amendment. In

Defendants’ Motion to Dismiss Amended Complaint No. 2:14-cv-01026, Page 19

U.S. Department of Justice, Civil Division
Office of Immigration Litigation P.O. Box 868, Ben Franklin Station, Wash., DC 20044

Case 2:14-cv-01026-TSZ Document 80 Filed 09/19/14 Page 21 of 27

1 examining the issue, the Court found that “[t]he pre-eminent generalization that emerges from

2 [the] Court’s precedents on an indigent’s right to appointed counsel is that such a right has been

3 recognized to exist only where the litigant may lose his physical liberty if he loses the litigation.”

4 Id. at 24. The Lassiter Court based this holding on Argersinger v. Hamlin, 407 U.S. 25 (1972), in

5 which it had recognized that “counsel must be provided before any indigent may be sentenced to

6 prison, even where the crime is petty and the prison term brief.” Lassiter, 452 U.S. at 25.

7 Argersinger arose from the criminal context, where the Sixth Amendment and Gideon v.

8 Wainwright, 372 U.S. 335 (1963), make clear that appointed counsel is necessary for indigent

9 defendants. The Court also relied on In re Gault, 387 U.S. 1 (1967), a civil case in which the

10 Court held that the Due Process Clause requires appointed counsel if the civil proceedings result

11 in an involuntary commitment to an institution in which a juvenile’s physical liberty would be

12 curtailed. Lassiter, 452 U.S. at 25. Additionally, the Lassiter Court found support in Vitek v.

13 Jones, 445 U.S. 480 (1980), a case in which four of the five justices who formed the opinion of

14 the Court required appointment of counsel for an indigent prisoner who faced possible transfer to

15 a state mental institution. Thus, the Court recognized the possibility that, under the Due Process

16 Clause, civil cases involving the deprivation of physical liberty may require appointing counsel

17 for indigent individuals. However, the Court also pointed out that “as a litigant’s interest in

18 personal liberty diminishes, so does his right to appointed counsel.” 452 U.S. at 26. In cases not

19 involving an outcome of incarceration, the Court explained, a per se rule requiring appointment

20 of counsel was not appropriate. Rather, trial courts should weigh the Mathews factors on a case-

21 by-basis against the presumption that appointed counsel is only necessary “when, if [the

22 plaintiff] loses, he may be deprived of his physical liberty.” Id. at 27. In Lassiter, the Court

23 conducted such a weighing using the particular facts of Lassiter’s case – importantly, after his

24 merits proceedings had concluded--and concluded that the petitioner was not entitled to counsel

25 to represent her in her parental termination proceedings. Id. at 32-33. Here too, the Mathews

26 balancing test does not overcome the presumption against the right to appointed counsel.

27

First, although Plaintiffs may allege that potential removal amounts to a drastic loss of

28

Defendants’ Motion to Dismiss Amended Complaint No. 2:14-cv-01026, Page 20

U.S. Department of Justice, Civil Division
Office of Immigration Litigation P.O. Box 868, Ben Franklin Station, Wash., DC 20044

Case 2:14-cv-01026-TSZ Document 80 Filed 09/19/14 Page 22 of 27

1 liberty, this argument overlooks two critical facts. As an initial matter, deportation is not

2 punishment, it is an administrative act that does not threaten a non-citizen’s physical liberty.

3 Secondly, Plaintiffs erroneously allege that the liberty interest at stake is the same for all

4 Plaintiffs. However, some Plaintiffs may have asylum claims, and some may have ties to the

5 United States, while others have neither. In fact, not all of the Plaintiffs have asylum claims and

6 it appears few of them have even been here long enough to have the requisite ties to qualify for

7 relief under the administration’s deferred action for childhood arrivals guidance. Thus, unlike

8 incarceration, or the termination of parental rights, the interests at stake here are not the same for

9 all Plaintiffs and the putative class. Nonetheless, Plaintiffs seek a rigid rule requiring appointed

10 counsel for all children in removal proceedings. However, “[t]he very nature of due process

11 negates any concept of inflexible procedures universally applicable to every imaginable

12 situation.” Lujan v. G&G Fire Sprinklers, Inc., 532 U.S. 189, 196 (2001); see Mathews, 424 U.S.

13 at 334 (“due process is flexible and calls for such procedural protections as the particular

14 situation demands”).

15

Second, the risk of erroneous deprivation of due process is the same for a juvenile alien

16 as for an adult alien, and courts have held that indigent adult aliens in removal proceedings lack

17 any constitutional right to appointed counsel. See, e.g., Mohammed v. Gonzales, 400 F.3d 785,

18 794 (9th Cir. 2005); United States v. Gasca-Kraft, 522 F.2d 149, 152 (9th Cir. 1975); Murgia-

19 -Melendrez v. INS, 407 F.2d 207 (9th Cir. 1969). In any event, due process is satisfied by the

20 procedural safeguards already in place to ensure fundamental fairness for juvenile aliens whether

21 they appear with or without counsel.

22

For example, unaccompanied alien children are provided special protections in the way

23 they are screened at ports of entry into the United States, in applying for asylum, and in their care

24 and custody with the Office of Refugee Resettlement (“ORR”), a component of the Department

25 of Health and Human Services. See William Wilberforce Trafficking Victims Protection

26 Reauthorization Act of 2008 (“TVPRA”), § 235, Pub. L. 110-457, 122 Stat. 5044 (2008); 6

27 U.S.C. § 279; 8 U.S.C. § 1232(b)(1). Unaccompanied alien children also receive enhanced

28 procedural protections and modifications in immigration court, including a prohibition against

Defendants’ Motion to Dismiss Amended Complaint No. 2:14-cv-01026, Page 21

U.S. Department of Justice, Civil Division
Office of Immigration Litigation P.O. Box 868, Ben Franklin Station, Wash., DC 20044

Case 2:14-cv-01026-TSZ Document 80 Filed 09/19/14 Page 23 of 27

1 accepting admissions of removability from an unrepresented respondent who is under eighteen

2 and not accompanied by “an attorney or legal representative, a near relative, legal guardian, or

3 friend.” 8 C.F.R. § 1240.10(c); see also 8 C.F.R. § 1240.48(b) (prohibiting an IJ from

4 “accept[ing] an admission of deportability from an unrepresented respondent who is . . . under

5 the age of 16 and is not accompanied by a guardian, relative, or friend”). And as a general

6 matter, “where an applicant is not represented, the IJ has an affirmative duty to ensure that the

7 record is fully developed for the benefit of the applicant.” Oshodi, 729 F.3d at 889.

8

Moreover, Immigration Courts utilize juvenile dockets or separate scheduling of cases

9 involving unaccompanied alien children, where the IJs employ child-sensitive modifications to

10 assist the children in appearing before the court. Specifically, the Office of the Chief IJ for

11 EOIR, a component of the Department of Justice, has issued (OPPM) 07-01, Guidelines for

12 Immigration Court Cases Involving Unaccompanied Alien Children, which mandates use of

13 child-sensitive procedures and modifications in immigration court, tailored to the age and

14 maturity of the juvenile respondent, and encourages establishment of separate juvenile dockets.

15 See Operating Policy and Procedure Memorandum (OPPM) 07-01, Guidelines for Immigration

16 Court Cases Involving Unaccompanied Alien Children, Executive Office for Immigration Review

17 (“EOIR”), available at http://www.justice.gov/eoir/efoia/ocij/oppm07/07-01.pdf. It allows other

18 modifications from the standards found in other cases, such as allowing IJs to accept unopposed

19 motions for changes of venue without the inclusion of applications for relief or pleadings to the

20 charges of removability, as is required of most adult respondents, and exempts juvenile cases

21 from administrative case completion goals and aged case completion deadlines, allowing judges

22 to grant continuances without undue concern for administrative deadlines.

23

Further, care and custody of unaccompanied alien children is given to ORR. 6 U.S.C. §

24 279; 8 U.S.C. § 1232(b)(1). ORR is authorized by the TVPRA to appoint child advocates for

25 children who are victims of trafficking and other vulnerable, unaccompanied alien children, and

26 to ensure access to counsel for unaccompanied alien children to the greatest extent practicable,

27 consistent with the provision that such counsel be at no expense to the Government. 8 U.S.C. §

28 1232(b)(5)-(6). Unaccompanied alien children also receive additional protections in the asylum

Defendants’ Motion to Dismiss Amended Complaint No. 2:14-cv-01026, Page 22

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1 context. The TVPRA gives initial jurisdiction over asylum applications to the United States

2 Citizenship and Immigration Service (“USCIS”), a component of the Department of Homeland

3 Security, for all unaccompanied alien children. 8 U.S.C. § 1158(b)(3)(C). This enables

4 unaccompanied alien children to have their asylum applications adjudicated in the first instance

5 by an asylum officer, rather than an IJ, in a non-adversarial environment. If the unaccompanied

6 alien child is unsuccessful before USCIS, he may generally renew that claim a second time

7 before an IJ. The TVPRA also excludes unaccompanied alien children from the deadline to file

8 for asylum within one year of their arrival in the United States absent extraordinary

9 circumstances. 8 U.S.C. § 1158(a)(2)(E)). Similarly, unaccompanied alien children are exempt

10 from the safe third country provisions. Id. (stating alien is ineligible for asylum if he “may be

11 removed . . . to a country . . . in which the alien’s life or freedom would not be threatened . . . .”).

12

In addition to these special procedures, Plaintiffs may appeal, as of right, the IJ’s denial

13 of any right or relief to the BIA, and from there, to the Court of Appeals. See 8 U.S.C. § 1252.

14 Thus, Congress, by enacting 8 U.S.C. § 1252, ensured judicial review of all constitutional

15 violations these Plaintiffs may allege, including right to counsel. See Comm. of Cent. Am.

16 Refugees v. I.N.S., 682 F. Supp. 1055, 1063 (N.D. Cal. 1988) (holding that if the alien’s asylum

17 application is denied, “he may challenge the validity of his deportation order to the BIA and the

18 Ninth Circuit [] on the basis of an alleged denial of the right to counsel”). The Courts of Appeals

19 are more than equipped to protect the interest of all persons, including minors, who claim to have

20 been denied a right during removal proceedings. See, e.g., Biwot v. Gonzales, 403 F.3d 1094,

21 1097-1100 (9th Cir. 2005), (petitioner alleged that he was denied the right to counsel when the IJ

22 had only given him five days to get representation, but ultimately prevailed on his claim in the

23 Court of Appeals after obtaining counsel for his petition for review). Because of these additional

24 procedural safeguards for minors, Plaintiffs cannot demonstrate that their removal proceedings

25 are fundamentally unfair without taxpayer funded counsel.

26

Third, the government’s interests in enforcing its immigration laws and avoiding the

27 unnecessary expenditure of scarce administrative resources are significant. See Matthews, 424

28 U.S. at 347-48 (holding that “the Government’s interest . . . in conserving scarce fiscal and

Defendants’ Motion to Dismiss Amended Complaint No. 2:14-cv-01026, Page 23

U.S. Department of Justice, Civil Division
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Case 2:14-cv-01026-TSZ Document 80 Filed 09/19/14 Page 25 of 27

1 administrative resources is a factor that must be weighed” in “striking the appropriate due

2 process balance”). Given the potentially enormous taxpayer expense that would be required to

3 provide counsel to every minor in removal proceedings – and the fact that Congress has recently

4 indicated that it will not appropriate funds to provide counsel – the net effect of requiring

5 government-appointed counsel could preclude the government from adjudicating any cases

6 involving unrepresented minors. Moreover, if a minor is not placed into removal proceedings

7 because there is no money to provide the minor with counsel, that minor might not learn from the

8 IJ—who has a duty to develop the record in a pro se case—that the minor has claims for relief

9 that must be adjudicated quickly in order for the minor to remain in the country. Such a minor

10 might age out of special immigrant juvenile status or find that their asylum case has become stale

11 because the conditions in their country have improved.

12

Finally, in addition to halting the proceedings of tens of thousands of individuals already

13 in the United States unlawfully, such delay, coupled with the possibility that Congress will

14 continue to decline Executive requests for more funding, may encourage more minors to make

15 the dangerous and unlawful journey to the United States.

16

Because courts have generally not extended the right to government-appointed counsel to

17 civil cases where the defendant does not potentially face physical detention, and because the

18 Mathews factors nevertheless weigh against a finding that a fair hearing requires the government

19 to appoint counsel to minors in removal proceedings, Plaintiffs do not state a cognizable legal

20 claim, and their Amended Complaint must be dismissed.

21

CONCLUSION

22

This Court lacks subject matter jurisdiction to consider the merits of Plaintiffs’ Amended

23 Complaint. Additionally, Plaintiffs failed to state a cognizable claim for relief because neither

24 the United States Constitution nor the INA requires the federal government to provide counsel at

25 taxpayer expense to noncitizen minors in immigration proceedings. Accordingly, this Court

26 should grant the Defendants’ motion and dismiss the Amended Complaint.

27

28

Defendants’ Motion to Dismiss Amended Complaint No. 2:14-cv-01026, Page 24

U.S. Department of Justice, Civil Division
Office of Immigration Litigation P.O. Box 868, Ben Franklin Station, Wash., DC 20044

Case 2:14-cv-01026-TSZ Document 80 Filed 09/19/14 Page 26 of 27

DATED: September 19, 2014
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Defendants’ Motion to Dismiss Amended Complaint No. 2:14-cv-01026, Page 25

Respectfully Submitted,
JOYCE R. BRANDA Acting Assistant Attorney General
LEON FRESCO Deputy Assistant Attorney General
WILLIAM C. PEACHEY Director Office of Immigration Litigation District Court Section
COLIN A. KISOR Deputy Director
WILLIAM C. SILVIS Assistant Director
ELIANIS PEREZ Senior Litigation Counsel
MARGARET KUEHNE TAYLOR Senior Litigation Counsel
YAMILETH G. DAVILA Senior Litigation Counsel
SARAH MALONEY Trial Attorney
s/ Erez Reuveni EREZ REUVENI Trial Attorney Office of Immigration Litigation District Court Section Civil Division, U.S. Department of Justice P.O. Box 878, Ben Franklin Station Washington, D.C. 20044 Tel.: (202) 307-4293 Fax: (202) 305-7000 E-mail: erez.r.reuveni@usdoj.gov
U.S. Department of Justice, Civil Division Office of Immigration Litigation
P.O. Box 868, Ben Franklin Station, Wash., DC 20044

Case 2:14-cv-01026-TSZ Document 80 Filed 09/19/14 Page 27 of 27

1

CERTIFICATE OF SERVICE

2
I HEREBY CERTIFY that on this September 19, 2014, I electronically filed the
3
foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of
4

5 such filing to all parties of record.

6

s/ Erez Reuveni

7

EREZ REUVENI

8

Trial Attorney

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28 Defendants’ Motion to Dismiss Amended Complaint
No. 2:14-cv-01026, Page 26

U.S. Department of Justice, Civil Division
Office of Immigration Litigation P.O. Box 868, Ben Franklin Station, Wash., DC 20044

 
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1

The Honorable Thomas S. Zilly

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

FOR THE WESTERN DISTRICT OF WASHINGTON

9

AT SEATTLE

10 J.E.F.M., a minor, by and through his Next Friend, Bob Ekblad; J.F.M., a minor, by and through his
11 Next Friend, Bob Ekblad; D.G.F.M., a minor, by

and through her Next Friend, Bob Ekblad; F.L.B., 12 a minor, by and through his Next Friend, Casey

13 Trupin; G.D.S., a minor, by and through his mother and Next Friend, Ana Maria Ruvalcaba;

14 M.A.M., a minor, by and through his mother and
Next Friend, Rosa Pedro; S.R.I.C., a minor, by 15 and through his father and Next Friend, Hector

16

Rolando Ixcoy; G.M.G.C., a minor, by and through her father and Next Friend, Juan Guerrero

17 Diaz; on behalf of themselves as individuals and on behalf of others similarly situated,

18

19 v.

Plaintiffs-Petitioners,

Case No. 2:14-cv-01026-TSZ
AMENDED COMPLAINT—CLASS ACTION

20 Eric H. HOLDER, Attorney General, United

21 States; Juan P. OSUNA, Director, Executive Office for Immigration Review; Jeh C.

22 JOHNSON, Secretary, Homeland Security;

Thomas S. WINKOWSKI, Principal Deputy 23 Assistant Secretary, U.S. Immigration and

24

Customs Enforcement; Nathalie R. ASHER, Field Office Director, ICE ERO; Kenneth HAMILTON,

25 AAFOD, ERO; Sylvia M. BURWELL, Secretary, Health and Human Services; Eskinder NEGASH,

26 Director, Office of Refugee Resettlement,

27

Defendants-Respondents.

28

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1 I. PRELIMINARY STATEMENT

2 1. Plaintiffs are eight immigrant children, ranging in age from ten to seventeen. The Government

3 has begun proceedings to deport each of them; they will soon be called to appear before an Immigration

4 Judge. In court, the Department of Homeland Security (“DHS”) will be represented by a trained lawyer

5 who will argue for the child’s deportation. But no lawyer will stand with the child. Each will be required

6 to respond to the charges against him or her, and, in theory, will be afforded an opportunity to make

7 legal arguments and present evidence on his or her own behalf. But in reality those rights will be

8 meaningless because children are not competent to exercise them. Each child has attempted to find

9 representation through pro bono legal service providers, but none of them have found anyone with the

10 resources to take on their cases. Absent this Court’s intervention, these children will be forced to defend

11 themselves pro se under the immigration laws – a legal regime that, as the courts have recognized, rivals

12 the Internal Revenue Code in its complexity.

13 2. The plight of these eight children is not unique. Plaintiffs seek to represent a class of

14 unrepresented children, all of whom face deportation. Each year the Government initiates immigration

15 proceedings against thousands of such children, and in each case the purpose of the proceedings is to

16 determine whether the child may remain in the United States. Although a remarkable network of pro

17 bono service providers, working in concert with (and in some cases funded directly by) the Government,

18 has endeavored to represent as many of these children as possible, the majority of children appearing in 19 immigration court still do so without an attorney.1 At the present time, legal service organizations

20 representing immigrant children throughout the country have nowhere near the capacity to meet the 21 demand. The rising number of children fleeing to this country will likely worsen that shortfall.2 The

22 Government, in contrast, is represented in every case.

23 3. Neither the Constitution nor the immigration laws permit this state of affairs. More than four

24

25 1 Center for Gender and Refugee Studies & Kids in Need of Defense, A Treacherous Journey: Child Migrants Navigating the U.S. Immigration System at iii-iv (Feb. 2014) [hereinafter “A Treacherous
26 Journey”] available at http://www.uchastings.edu/centers/cgrs-ocs/treacherous_journey_cgrs_kind_ 27 report.pdf.

28 2 A Treacherous Journey at 2.

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1 decades ago, the Supreme Court recognized that when the Government initiates proceedings against

2 children facing juvenile delinquency charges, the Due Process Clause requires the Government to

3 provide those children with legal representation to ensure that the proceedings are fundamentally fair. In

4 re Gault, 387 U.S. 1, 41 (1967). The Court held that “[t]he juvenile needs the assistance of counsel to

5 cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the

6 proceedings, and to ascertain whether he has a defense and to prepare and submit it. The child requires

7 the guiding hand of counsel at every step in the proceedings against him.” Id. at 36 (citation and

8 quotation marks omitted). The Constitution guarantees children this safeguard notwithstanding the civil,

9 rather than criminal, character of juvenile delinquency proceedings.

10 4. Immigrants, including immigrant children, are also entitled to Due Process when facing

11 deportation. Reno v. Flores, 507 U.S. 292, 306 (1993). Both the Constitution and the immigration laws

12 guarantee all children the right to a full and fair removal hearing, including the opportunity to defend

13 against deportation and seek any forms of relief that would enable them to remain in the United States.

14 And just as in juvenile delinquency proceedings, children cannot receive that fair hearing without legal

15 representation. As the Supreme Court stated in discussing proceedings of similarly “tremendous

16 consequences,” for children in immigration proceedings “[t]he right to representation by counsel is not a

17 formality. It is not a grudging gesture to a ritualistic requirement. It is of the essence of justice.” Kent v.

18 United States, 383 U.S. 541, 554, 561 (1966) (addressing child’s right to appointed counsel in

19 proceedings to determine whether juvenile court should waive its jurisdiction in favor of criminal court).

20 5. Yet every day in courts throughout the country, children represent themselves in deportation 21 cases that are often more complex and more serious than most juvenile delinquency cases.3 The resulting

22 adjudications are fundamentally unfair. Children are forced to admit or deny allegations against them,

23

24 3 Julia Preston, Young and Alone, Facing Court and Deportation, N.Y. Times, Aug. 25, 2012, at A1, available at http://www.nytimes.com/2012/08/26/us/more-young-illegal-immigrants-face-
25 deportation.html?pagewanted=all (describing six-year-old child in removal proceedings without counsel); see also Julie Myers Wood & Wendy Young, Children Alone and Lawyerless in a Strange
26 Land, The Wall Street Journal, Sept. 22, 2013, available at 27 http://online.wsj.com/news/articles/SB10001424127887324492604579083400349940432 (“We’ve seen
children as young as 5 facing an immigration judge with no representation.”).
28

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1 compile evidence in support of their claims to remain in the United States, and articulate legal

2 arguments on their own behalf, when in reality they “are unlikely to understand the complex procedures 3 they face and the options and remedies that may be available to them under the law.”4

4 6. To fulfill its statutory and constitutional obligations, the Government must ensure that no child

5 faces the life-altering prospect of deportation without legal representation.

6

7 II. JURISDICTION AND VENUE

8 7. Plaintiffs challenge the federal Government’s failure to provide appointed legal representation 9 for children in immigration proceedings on federal statutory and constitutional grounds.5

10 8. This court has subject matter jurisdiction pursuant to the general federal question statute, 28

11 U.S.C. § 1331, the federal habeas statute, 28 U.S.C. § 2241, et seq., the All Writs Act, 28 U.S.C. § 1651,

12 and 5 U.S.C. § 702.

13 9. This court has personal jurisdiction over the Defendants because of, inter alia, the nationwide

14 reach of Defendants’ conduct and the presence of courts operated by Defendants within the Western

15 District of Washington where immigration proceedings involving members of the Plaintiff Class are

16 held.

17 10. Sovereign immunity does not prevent this Court from exercising jurisdiction over these claims.
18 Plaintiffs have brought suit against various federal officials, and it is well established that sovereign
19 immunity does not bar claims against federal officials seeking solely to prevent future violations of 20 federal law (rather than monetary relief). See, e.g., Larson v. Domestic & Foreign Commerce Corp., 21 337 U.S. 682, 697-99 & nn.18-19 (1949); Shields v. Utah Idaho Cent. R.R. Co., 305 U.S. 177, 183-84 22 (1938) (holding that the court had jurisdiction to consider a claim seeking to enjoin government 23 officials’ actions); ERWIN CHEMERINSKY, FEDERAL JURISDICTION § 9.1, at 588 (4th ed. 2003) (“[T]he
Supreme Court long has held that federal officers may be sued for injunctive relief.”); James E. Pfander, 24
25 4 A Treacherous Journey at iii.

26 5 Plaintiffs define “immigration proceedings” as any proceeding that occurs before an Immigration

27

Judge or the Board of Immigration Appeals (“BIA”). Where the reference is ambiguous, the term “Immigration Judges” should be understood to refer to both individual Immigration Judges and

28 members of the BIA.

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1 The Limits of Habeas Jurisdiction and the Global War on Terror, 91 CORNELL L. REV. 497, 528-29
2 (2006) (“[H]igh government officials in Washington, D.C. cannot invoke the doctrine of official
3 immunity against constitutional challenges to government action” even outside the habeas context.)
4 (footnotes omitted).
5 11. In addition, in 1976, the United States broadly and explicitly waived all immunity from suit in
6 any action requesting non-monetary relief (including injunctive and declaratory relief) in 5 U.S.C. § 702, 7 90 Stat. 2721 (1976) (“An action in a court of the United States seeking relief other than money
damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an 8
official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on 9
the ground that it is against the United States or that the United States is an indispensable party.”); see 10
also Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 525 (9th Cir. 1989) (“[T]he time [has] 11
now come to eliminate the sovereign immunity defense in all equitable actions for specific relief against 12
a Federal agency or officer in an official capacity.”) (quoting H.Rep. No. 1656, 94th Cong., 2d Sess. 9, 13
reprinted in 1976 U.S. Code Cong. & Admin. News 6121, 6129). 14
12. Venue is proper in the Western District of Washington under 28 U.S.C. § 1391(e)(1) because a 15
substantial part of the events or omissions giving rise to this action occurred in this district. Plaintiffs 16
F.L.B. and G.D.S. reside in this district, and Plaintiffs J.E.F.M., J.F.M., D.G.F.M., F.L.B., and G.D.S. all 17
have immigration proceedings scheduled to occur in this district. In addition, venue is proper under 28 18
U.S.C. §§ 2242-43 because Plaintiffs J.E.F.M., J.F.M., D.G.F.M., F.L.B., and G.D.S. are in the 19
constructive custody of immigration authorities by virtue of immigration proceedings in this district. 20

21 III. PARTIES

22 A. Plaintiffs

23 13.

Plaintiff J.E.F.M. is a 10-year-old native and citizen of El Salvador.6 He now resides in

24 Washington State. He has a removal hearing scheduled for September 2014 in Seattle, Washington, and

25

26 6 To protect the privacy of the child Plaintiffs in this case, this complaint refers to them using their

27

initials. See Fed. R. Civ. P. 5.2(a)(3). For the same reason, this complaint also does not provide as much detail as is available concerning the harms they have suffered in their home countries, during their

28 journeys here, and since their arrivals in the United States.

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1 does not have an attorney to represent him in his immigration case. J.E.F.M. appears by his next friend

2 Bob Ekblad, a minister who has worked closely with J.E.F.M. and his family.

3 14. Plaintiff J.F.M. is a 13-year-old native and citizen of El Salvador. He is the older brother of

4 J.E.F.M. He now resides in Washington State. He has a removal hearing scheduled for September 2014,

5 in Seattle, Washington, and does not have an attorney to represent him in his immigration case. J.F.M.

6 appears by his next friend Bob Ekblad, a minister who has worked closely with J.F.M. and his family.

7 15. Plaintiff D.G.F.M.is a 15-year-old native and citizen of El Salvador. She is the older sister of

8 J.F.M. and J.E.F.M. She now resides in Washington State. She has a removal hearing scheduled for

9 September 2014, in Seattle, Washington, and does not have an attorney to represent her in her

10 immigration case. D.G.F.M. appears by her next friend Bob Ekblad, a minister who has worked closely

11 with D.G.F.M. and her family.

12 16. Plaintiff F.L.B. is a 15-year-old native and citizen of Guatemala. He now resides in Seattle,

13 Washington. He has a removal hearing scheduled for September 2014, and does not have an attorney to

14 represent him in his immigration case. F.L.B. appears by his next friend Casey Trupin. Mr. Trupin is the

15 Project Coordinator for the Children and Youth Project at Columbia Legal Services in Seattle,

16 Washington.

17 17. Plaintiff G.D.S. is a 15-year-old native and citizen of Mexico. He has resided in the United States

18 since approximately the age of one. He does not have an attorney to represent him in his immigration

19 case. G.D.S. appears by his next friend and mother, Ana Maria Ruvalcaba.

20 18. Plaintiff M.A.M. is a 16-year-old native and citizen of Honduras. M.A.M. has resided in the

21 United States since he was eight years old. M.A.M. resides in Oxnard, California. M.A.M. has a removal

22 hearing scheduled for August 2014, and does not have an attorney to represent him in his immigration

23 case. M.A.M. appears by his next friend and mother, Rosa Pedro.

24 19. Plaintiff S.R.I.C. is a 17-year-old native and citizen of Guatemala. S.R.I.C. came to the United

25 States earlier this year and now resides in Los Angeles, California. S.R.I.C. has a removal hearing

26 scheduled for January 2015, and does not have an attorney to represent him in his immigration case.

27 S.R.I.C. appears by his next friend and father, Hector Rolando Ixcoy Ixcoy.

28
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1 20. Plaintiff G.M.G.C. is a 14-year old native and citizen of El Salvador. She came to the United

2 States earlier this year and now resides in Los Angeles, California. G.M.G.C. has a removal hearing

3 scheduled for September 2014, and does not have an attorney to represent her in her immigration case.

4 G.M.G.C. appears by her next friend and father, Juan Guerrero Diaz.

5

B. Defendants

6 21. Defendant Eric H. Holder, Jr., is the Attorney General of the United States and the head of the

7 U.S. Department of Justice (“DOJ”). Mr. Holder shares responsibility for implementing and enforcing

8 the immigration laws. Mr. Holder is sued in his official capacity.

9 22. Defendant Juan P. Osuna is the Director of the Executive Office for Immigration Review

10 (“EOIR”), which is the federal agency within DOJ that operates the immigration courts. Mr. Osuna is

11 responsible for the supervision of the Deputy Director, the Chairman of the Board of Immigration

12 Appeals (“BIA”), the Chief Immigration Judge, the Chief Administrative Hearing Officer, and all EOIR

13 agency personnel in the execution of their duties. Mr. Osuna is sued in his official capacity.

14 23. Defendant Jeh C. Johnson is the Secretary of DHS and is the highest-ranking member of DHS,

15 which is the arm of the federal government responsible for enforcing the immigration laws. Mr. Johnson

16 is sued in his official capacity.

17 24. Defendant Thomas S. Winkowski is the Principal Deputy Assistant Secretary of DHS, and is the

18 head of U.S. Immigration and Customs Enforcement (“ICE”), which is the principal investigative,

19 enforcement, and prosecutorial arm of DHS. ICE attorneys represent the Government in immigration

20 proceedings. Mr. Winkowski is sued in his official capacity.

21 25. Defendant Sylvia M. Burwell is the Secretary of Health and Human Services (“HHS”) and is the

22 highest-ranking member of HHS, which is the arm of the federal Government responsible for the care

23 and custody of unaccompanied immigrant minors under the Trafficking Victims Protection

24 Reauthorization Act. Ms. Burwell is sued in her official capacity.

25 26. Defendant Eskinder Negash is the Director of the Office of Refugee Resettlement (“ORR”),

26 which is the division of HHS directly responsible for the care and custody of unaccompanied immigrant

27 minors. Mr. Negash is sued in his official capacity.

28
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1 27. Defendant Nathalie R. Asher is the Field Office Director for the Seattle Field Office of ICE,

2 which has custody of Plaintiffs J.E.F.M., J.F.M., D.G.F.M., F.L.B., and G.D.S., by virtue of immigration

3 proceedings in this district. Ms. Asher is sued in her official capacity.

4 28. Defendant Kenneth Hamilton is the Acting Assistant Field Office Director for the Seattle Field

5 Office of ICE, which has custody of Plaintiffs J.E.F.M., J.F.M., D.G.F.M., F.L.B., and G.D.S., by virtue

6 of immigration proceedings in this district. Mr. Hamilton is sued in his official capacity.

7

8 IV. FACTUAL BACKGROUND

9

A. Children Facing Deportation

10 29. Every year, the Government initiates immigration proceedings to deport thousands of children, 11 ranging from toddlers to teenagers.7 Children enter the immigration enforcement system in several ways.

12 Thousands are arrested at or shortly after crossing the United States-Mexico border, often after having

13 survived treacherous and difficult journeys from their countries of origin. Many of them have fled

14 persecution by their governments or their own families, rising rates of extreme violence (much of it

15 caused by the escalating influence of powerful gangs), or economic conditions that make life

16 unsustainable in their countries of origin.8 Some of these children have experienced trauma in the form

17

18

19

20 7 See supra note 3 (news articles reporting cases of children as young as five or six years old in removal proceedings); Matter of Gomez-Gomez, 23 I. & N. Dec. 522 (BIA 2002) (en banc) (addressing case of
21 eight-year-old child ordered removed in absentia based on report of arresting officer); Matter of PonceHernandez, 22 I. & N. Dec. 784, 785 (BIA 1999) (en banc) (describing 15-year-old child charged with
22 removability); A Treacherous Journey at 11-12 (noting case stories of girls aged 12 and 14 who 23 appeared before Immigration Judges).

24 8 Women’s Refugee Commission, Forced from Home: The Lost Boys and Girls of Central America 7 (2012). This report found that more than 77% of a sample of 151 children cited violence as their primary
25 reason for fleeing their countries of origin. See also United Nations High Commissioner for Refugees, Children on the Run: Unaccompanied Children Leaving Central America and Mexico and the Need for
26 International Protection 6 (2014) [hereinafter UNHCR Report] (finding that no less than 58% of the 27 children interviewed for the report “were forcibly displaced because they suffered or faced harms that
indicated a potential or actual need for international protection”).
28

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1 of rape, kidnapping, abandonment, or physical abuse inflicted in their home countries or by smugglers

2 and traffickers during their journey to the United States.9

3 30. Other children are apprehended after spending years in the United States, some having grown up

4 almost entirely in this country. Many of them attend school alongside other children in this country,

5 speak fluent English, and are fully integrated into their communities. Others are not so lucky, suffering

6 abuse, neglect, or abandonment within the United States itself. Some of these children are turned over to

7 DHS after contact with the juvenile justice system, while DHS arrests others during general immigration

8 enforcement activities.

9 31. Although they have entered the immigration system in different ways, Plaintiffs and the putative

10 class they seek to represent share two fundamental characteristics. First, the Government has initiated

11 immigration proceedings in order to remove them from the United States and, despite their inability to

12 secure counsel, will force them to appear unrepresented in complex, adversarial court proceedings

13 against trained ICE attorneys. Second, all of them are under the age of 18, and therefore lack the

14 intellectual and emotional capacity of adults.

15

B. The Structure of Immigration Proceedings for Children

16 32. Immigration proceedings pit the Government against the child in an adversarial process where

17 each side is presumed to have the ability to represent its own interests. An attorney trained in substantive

18 immigration law and immigration court procedures represents the Government. This attorney acts as a

19 prosecutor, and seeks to establish the child’s removability. Each side is expected to present facts and

20 legal arguments to an Immigration Judge, after which the Judge ultimately makes a determination in

21 favor of the Government or the child. Either side can then appeal the decision to the BIA.

22 33. The facts and legal arguments at issue in immigration cases are often complex. The federal

23 courts have repeatedly observed that “the immigration laws have been termed second only to the

24 Internal Revenue Code in complexity.” Baltazar-Alcanzar v. INS, 386 F.3d 940, 948 (9th Cir. 2004)

25

26

27

9 The United States Conference of Catholic Bishops Migration and Refugee Services, The Changing Face of the Unaccompanied Alien Child 8 (2012).

28

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1 (citation and quotation marks omitted); Padilla v. Kentucky, 559 U.S. 356, 369 (2010) (“Immigration

2 law can be complex, and it is a legal specialty of its own.”).

3 34. Even identifying defenses or other avenues to relief from removal, let alone prevailing on them,

4 often requires substantial factual investigation and legal research. For example, a number of children

5 facing removal have fled persecution in their home countries. However, the immigration laws put the

6 burden on the child to prove eligibility for asylum. See 8 U.S.C. § 1158(b)(1)(B)(i). Establishing such

7 eligibility requires the child to present significant amounts of evidence and sophisticated legal

8 arguments. As a result, asylum claims brought by pro se children “frequently fail due to burdensome

9 legal standards and incorrect application of legal principles . . . even when it has been determined that

10 the child suffered egregious harm rising to the level of persecution and is likely to suffer persecution in

11 the future.”10

12 35. As with asylum, children bear the burden of demonstrating eligibility for other forms of relief

13 from deportation. See 8 U.S.C. § 1229a(c)(4) (stating that applicant for relief from removal in

14 immigration proceedings bears burden to demonstrate both eligibility requirements of the particular

15 form of relief, and, if applicable, merits relief as a matter of discretion). These other forms of relief

16 include Special Immigrant Juvenile Status (“SIJS”), which is available to a child when a state juvenile

17 court declares that the child’s reunification with one or both parents is not viable due to abuse, neglect,

18 abandonment, or a similar basis under state law, see 8 U.S.C. § 1101(a)(27)(J)(i); U-visas, which are

19 available to children who have been the victims of certain serious crimes if they would be helpful to the

20 authorities in an investigation or prosecution, see id. §§ 1101(a)(15)(U)(i)(III), 1184(p)(1); T-visas,

21 which protect victims of “severe” forms of human trafficking, see id. § 1101(a)(15)(T)(i)(I); family

22 visas, where a parent who is a U.S. citizen or lawful permanent resident is able to file a visa petition on

23 their child’s behalf, see id. §§ 1151-1154, as well as other forms of relief. Meeting the eligibility

24 requirements for all of these forms of relief requires the child to carefully marshal both facts and law.

25 The child must not only demonstrate substantive eligibility for relief, but also be able to follow

26

27 28 10 A Treacherous Journey at 20.
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1 procedures for submitting the appropriate applications to different agencies of the Government, along

2 with the required supporting evidence.

3 36. In addition, some children have procedural defenses against removal, including arguments that

4 the immigration proceedings must be terminated because of constitutional or regulatory violations. See,

5 e.g., Matter of Mejia-Andino, 23 I. & N. Dec. 533, 536 (BIA 2002) (en banc) (concluding that

6 proceedings against seven-year-old child were properly terminated due to failure to properly serve the

7 charging document). However, moving an Immigration Judge to terminate the proceedings on such

8 grounds is no small feat. In particular, a suppression motion requires the ability to gather and understand

9 facts surrounding one’s arrest, the interaction between different state and federal agencies, and complex

10 regulatory and constitutional law. Here too, the child bears the burden of establishing that the

11 Government obtained its evidence in a manner that requires suppression. See Matter of Barcenas, 19 I.

12 & N. Dec. 609, 611 (BIA 1988).

13 37. Because of their age, children lack the ability to assert these and other defenses and claims to

14 relief by themselves. “A child’s age is far more than a chronological fact. It is a fact that generates

15 commonsense conclusions about behavior and perception . . . [that] apply broadly to children as a class.”

16 J.D.B. v. North Carolina, 131 S. Ct. 2394, 2403 (2011) (internal quotation marks and citations omitted).

17 These commonsense conclusions are grounded not only in “what any person knows [] about children

18 generally,” id., but also in scientific studies that “continue to show fundamental differences between

19 juvenile and adult minds.” Graham v. Florida, 560 U.S. 48, 68 (2010) (citing amicus briefs from medical

20 and psychological professional associations).

21 38. For example, children possess a reduced capacity to comprehend the consequences of their

22 actions and decisions, and they are often more receptive to adult influence, in part because many of them

23 have been taught not to challenge authority and to please the adults around them. See Dustin Albert &

24 Laurence Steinberg, Judgment and Decision Making in Adolescence, 21 J. Research on Adolescence

25 211, 220 (2011) (noting that “adults tend to make more adaptive decisions than adolescents,” in part

26 because “they have a more mature capacity to resist the pull of social and emotional influences and

27 remain focused on long-term goals”). As a result, they are frequently more susceptible to suggestion and

28 leading questions, and at times have difficulty distinguishing between people who are seeking to protect

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1 their interests and those who are not. What is more, children in the immigration enforcement system are

2 often even more vulnerable than other children, since many of them arrive in the United States after

3 39. having experienced serious trauma in their countries of origin or during their journeys to the

4 United States.11

5 40. The interests at stake in these complex proceedings could scarcely be higher: children face

6 expulsion from this country to a land where they often lack family or other support. Many of them fled

7 their home countries in order to escape persecution, torture, or death; deportation to the country from

8 which the child fled is often not in their best interest.

9 41. Moreover, the civil removal orders issued against children in immigration proceedings bear the

10 same consequences as those issued against adults. Those consequences include not only bars to future

11 admission to the United States (if the child would otherwise have been eligible for a visa), but also the

12 prospect of criminal prosecution should they attempt to reenter the United States.

13 42. Forcing children to appear in immigration court without representation ensures that thousands of

14 children are deprived of a full and fair opportunity to identify defenses or seek relief for which they

15 qualify. A recent report by the United Nations High Commissioner for Refugees, for example, suggests

16 that over half of all unaccompanied children fleeing to the United States from Central America raised

17 potential international protection needs, while a slightly older report found that as many as 40% of

18 unaccompanied children in removal proceedings were eligible for some form of immigration relief.12

19 Despite such estimates, only a small number of children actually receive such relief.13 This gap is likely

20 due in large part to the absence of counsel. The presence of counsel makes a real difference for the

21 children fortunate enough to receive legal representation. Data from the adult removal hearing context

22

23 11 UNHCR Report at 6 (finding that 48% of children interviewed for study had been “personally affected

24 by the augmented violence” in their countries of origin and that 21% had “survived abuse and violence

in their homes by their caretakers”). 25

26

12 UNHCR Report at 6; Olga Byrne & Elyse Miller, The Flow of Unaccompanied Children Through the Immigration System, Vera Institute of Justice 4 (Mar. 2012).

27 13 See, e.g., A Treacherous Journey at 19 n.94, 38, 48. 28

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1 confirms what common sense and experience strongly suggest: immigrants with lawyers are far more 2 likely to identify and prevail on defenses to removal that the law makes available to them.14

3 4 5 43.

C. The Federal Government’s Response to the Legal Needs of Children Facing Deportation
Although the Government initiates deportation cases against thousands of children each year, it

6 does not ensure legal representation for the vast majority of them. Numerous advocates have pointed out

7 the injustice of this practice, and called for the Government to provide representation for children facing

8 deportation. See, e.g., Wendy Young & Megan McKenna, The Measure of a Society: The Treatment of

9 Unaccompanied Refugee and Immigrant Children in the United States, 45 Harv. C.R.-C.L. L. Rev. 247

10 (Winter 2010); M. Aryah Somers, Zealous Advocacy for the Right to Be Heard for Children and Youth

11 in Deportation Proceedings, 15 CUNY L. Rev. 189 (Winter 2011); Julie Myers Wood & Wendy Young,

12 Children Alone and Lawyerless in a Strange Land, The Wall Street Journal, Sept. 22, 2013, available at

13 http://online.wsj.com/news/articles/SB10001424127887324492604579083400349940432;15 Sonia

14 Nazario, Child Migrants, Alone in Court, N.Y. Times, Apr. 10, 2013, A23, available at

15 http://www.nytimes.com/2013/04/11/opinion/give-lawyers-to-immigrant-children.html?_r=0.

16 44. The Government has taken limited steps to afford legal representation to some children facing

17 deportation, but its efforts have fallen well short of ensuring representation for every child it seeks to

18 deport. For the past couple of years, the Government has funded legal representation for a fraction of the

19 children in ORR detention facilities, and more recently has initiated programs in Houston, Texas, and

20 Los Angeles, California to afford legal representation to certain children released from ORR custody.

21 But these programs fail to provide all children even in those two regions with representation.

22

23

24 14 One recent study that focused on adults in removal proceedings concluded that they fared substantially better when represented by counsel. See Accessing Justice: The Availability and Adequacy
25 of Counsel in Immigration Proceedings, Study Group on Immigrant Representation 4 (Dec. 2011)
(finding that 74% of represented non-detained noncitizens received favorable outcomes, as opposed to 26 13% of unrepresented non-detained noncitizens).

27 15 Ms. Myers Wood was the Assistant Secretary of Homeland Security for Immigration and Customs 28 Enforcement under President George W. Bush.

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1 45. In October 2013, Plaintiffs’ counsel sent a letter to Defendants urging them to take additional

2 steps to ensure that all children in immigration proceedings are provided legal representation. Ex. A,

3 Letter regarding Counsel for Immigrants in Removal Proceedings. In January 2014, Plaintiffs’ counsel

4 met with officials from DHS, DOJ, and ORR to discuss the concerns expressed in the letter.

5 46. Several weeks ago, the Government announced a new “strategic partnership” to “facilitat[e] the

6 effective and efficient adjudication of immigration proceedings involving certain children who have

7 crossed the border without a parent or legal guardian.” justice AmeriCorps Legal Services for

8 Unaccompanied Children, Corporation for Nat’l & Comm. Serv., available at

9 http://www.nationalservice.gov/build-your-capacity/grants/funding-opportunities/2014/justice-

10 americorps-legal-services (last visited June 9, 2014). Under this program, the Government has set aside

11 $2 million to partner with legal services providers in order to support living allowances for 100 legal

12 fellows who will represent children under 16 in removal proceedings in selected areas of the country.

13 See Announcement of Federal Funding Opportunity, Corporation for National and Community Service,

14 2014 justice AmeriCorps Legal Services for Unaccompanied Children (June 6, 2014), available at

15 http://www.nationalservice.gov/sites/default/files/upload/JusticeAmeriCorpsNOFO.pdf.

16 47. Assuming that the Government’s plan is implemented as announced, it would still fall far short

17 of meeting the need created by the Government’s policy of deporting children without representation,

18 for several reasons. First, the geographic reach of the Government’s new program appears to exclude

19 certain critical locations, such as Los Angeles, and does not ensure representation for every child even

20 for those populations it explicitly targets. Id. at 6-7.16 Second, the Government’s new program will fund

21 representation only for children younger than 16, thereby excluding a substantial number of children

22 who face removal, including several of the Plaintiffs. Id. at 31 (defining “[u]naccompanied children” as

23 “children under the age of 16”). And finally, this initiative devotes only limited resources to the

24 problem. Advocates already have noted that the Government’s program “at best [] would only touch a

25 fraction of all the unaccompanied minors expected to appear in court in the coming months.” Kirk

26

27

16 The Government’s announcement indicates that “[p]riority shall be given to programs” in certain immigration court locations. See Announcement of Federal Funding Opportunity at 6-7. But the

28 announcement does not pledge that a provider in each of those locations is certain to receive funding.

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1 Semple, Youths Facing Deportation to Be Given Legal Counsel, N.Y. Times, June 6, 2014, A11

2 available at http://www.nytimes.com/2014/06/07/us/us-to-provide-lawyers-for-children-facing-

3 deportation.html?_r=0.

4 48. Several important actors within the Government have also indicated more generally that they

5 would support a system that provided representation for all children. In a recent House Committee on

6 Appropriations Report, the Committee commented on the existence of pilot programs created “to

7 explore ways to better serve vulnerable populations such as children and improve court efficiency

8 through pilot efforts aimed at improving their legal representation,” but specified “that such pilots shall

9 not require the U.S. Government to bear any expense for legal representation for any alien in removal

10 proceedings, except to the extent required by Federal court order.” See H.R. Rep. 113-448, at 42

11 (2014).17

12 49. Defendant Eric Holder, Attorney General of the United States, has also indicated support for the

13 relief sought in this case, stating that “[i]t is inexcusable that young kids – . . . six-, seven-year-olds,

14 fourteen-year-olds – have immigration decisions made on their behalf, against them, . . . and they’re not

15 represented by counsel. That’s simply not who we are as a nation. It’s not the way in which we do

16 things.” Senate Judiciary Committee Hearing on Oversight of the Justice Department (Mar. 6, 2013)

17 (video available at http://www.judiciary.senate.gov/meetings/oversight-of-the-us-department-of-justice-

18 2013-03-06).18

19 50. The Administration has also asked Congress, as part of an emergency appropriations request, to

20 fund $15 million for “direct legal representation services to children in immigration proceedings.” Letter

21

22

23

17 The Administration had previously requested an allocation of $5,824,000 for EOIR to “develop, implement and evaluate a pilot program to provide counsel for unaccompanied alien children.” See

24 White House Proposed Budget for FY 2015, Department of Justice, General Administration, Federal Funds, available at http://www.whitehouse.gov/sites/default/files/omb/budget/fy2015/assets/jus.html.

25 18 The Administration also previously supported Senate Bill S. 744, the bipartisan comprehensive
26 immigration reform legislation. That bill includes a provision requiring appointed counsel for a large

27

subset of children in the putative class at issue here—all “unaccompanied alien children.” See S. 744, 13th Cong. § 3502 (2013).

28

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1 from President Barack Obama to the Hon. John Boehner, Speaker of the House of Representatives at 6

2 (July 8, 2014), http://www.whitehouse.gov/sites/default/files/omb/assets/budget_amendments/

3 51. emergency-supplemental-request-to-congress-07082014.pdf.19 It is far from clear that Congress

4 intends to act on this request, in whole or in part. Even assuming it does, the Administration has not

5 specified how this money will be distributed, or whether these funds will come with the same limitations

6 as the Government’s recently-announced “strategic partnership” to provide counsel for unaccompanied

7 children. Moreover, it is highly unlikely that any approved funds would be sufficient to meet the need.

8 52. In the meantime, the Government continues to send children like the Plaintiffs in this case

9 without lawyers to face off against ICE trial attorneys who argue for their deportation before

10 Immigration Judges.

11

D. The Plaintiffs

12 J.E.F.M.

13 53. J.E.F.M. is a 10-year-old boy, and a native and citizen of El Salvador. He presently resides in

14 Washington State. He is the youngest of four children born to his parents. His father was a former gang

15 member, who then converted to Christianity and later became a pastor. J.E.F.M.’s mother was also a

16 pastor. His parents met at church and together they started a rehabilitation center for people leaving

17 gangs. Gang members retaliated against the center for housing young people trying to leave the gangs.

18 First, they warned J.E.F.M.’s parents to stop assisting former gang members. Then they killed J.E.F.M.’s

19 cousin. Two weeks later, gang members murdered J.E.F.M.’s father in the street in front of their house,

20 while J.E.F.M. and his siblings watched. J.E.F.M.’s mother continued to be threatened after this

21 incident, so she fled the country, leaving her children with their grandmother.

22 54. Approximately seven years later, the children also became targets of gang members in El

23 Salvador. Gang members demanded that the children join and threatened them with harm if they did not.

24 Rather than enter the gang, J.E.F.M. fled with his two older siblings. At the time he was only nine years

25 old.

26 19 See also White House Office of the Press Secretary, FACT SHEET: Emergency Supplemental Request

27

to Address the Increase in Child and Adult Migration from Central America in the Rio Grande Valley Areas of the Southwest Border (July 8, 2014), available at http://www.whitehouse.gov/the-press-

28 office/2014/07/08/fact-sheet-emergency-supplemental-request-address-increase-child-and-adu.

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1 55. J.E.F.M. and his two siblings entered the United States around July 2013, were apprehended by

2 U.S. Customs and Border Protection (“CBP”), and then placed in the custody of ORR. They were

3 released to a family member fifteen days later. They have been residing in Washington State since their

4 release.

5 56. J.E.F.M. has a removal hearing in September 2014, but has no legal representation in his

6 immigration case because he has no resources to hire private counsel and the legal service providers in

7 the Seattle area are stretched well beyond capacity to take on the cases of children in removal

8 proceedings. J.E.F.M. appears by his next friend, Bob Ekblad. Mr. Ekblad is a minister who has worked

9 closely with J.E.F.M. and his family; he is familiar with J.E.F.M.’s immigration case and is truly

10 dedicated to his best interests in this case.

11 J.F.M.

12 57. J.F.M. is a 13-year-old boy and a native and citizen of El Salvador. He presently resides in

13 Washington. He is the older brother of J.E.F.M. He also saw his father killed, was later threatened by

14 gang members, and left El Salvador at the same time and for the same reasons as his younger brother.

15 58. J.F.M. has a removal hearing in September 2014, but has no legal representation in his

16 immigration case because he has no resources to hire private counsel and the legal service providers in

17 the Seattle area are stretched well beyond capacity to take on the cases of children in removal

18 proceedings. J.F.M. appears by his next friend, Bob Ekblad. Mr. Ekblad is a minister who has worked

19 closely with J.F.M. and his family; he is familiar with J.F.M.’s immigration case and is truly dedicated

20 to his best interests in this case.

21 D.G.F.M.

22 59. D.G.F.M. is a 15-year-old girl and a native and citizen of El Salvador. She presently resides in

23 Washington. She is the older sister of J.F.E.M. and J.F.M. She also saw her father killed, was threatened

24 by gang members, and left El Salvador with her two younger brothers at the same time and for the same

25 reasons.

26 60. D.G.F.M. has a removal hearing in September 2014, but has no legal representation in her

27 immigration case because she has no resources to hire private counsel, and the legal service providers in

28 the Seattle area are stretched well beyond capacity to take on the cases of children in removal

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1 proceedings. D.G.F.M. appears by her next friend, Bob Ekblad. Mr. Ekblad is a minister who has

2 worked closely with D.G.F.M. and her family; he is familiar with D.G.F.M.’s immigration case and is

3 truly dedicated to her best interests in this case.

4 F.L.B.

5 61. F.L.B. is a 15-year-old boy, and a native and citizen of Guatemala. He presently resides in

6 Seattle, Washington. He is the fourth of six children born to his parents. Throughout F.L.B.’s childhood,

7 his father, an alcoholic who abused F.L.B. and his siblings, resided in a different city and only visited

8 occasionally. Moreover, F.L.B.’s father did not make any financial contributions to the home.

9 62. When he was ten years old, F.L.B. dropped out of school to work with his father in order to

10 provide for himself, his mother, and his two younger siblings. After two years of living and working

11 with his father, F.L.B. returned to his mother’s home because he was no longer able to bear his father’s

12 abuse and excessive drinking. However, after six months at home he had to leave again due to the

13 family’s poor financial situation. F.L.B. moved back to the town where he had worked with his father,

14 but this time lived with acquaintances. He only ever saw his father by chance, and seldom saw his

15 mother.

16 63. After more than a year of working and living outside the family’s home, F.L.B. set out for the

17 United States, hoping to be able to support himself and have the opportunity to enroll in school. He

18 spent approximately one month traveling through Mexico and crossed the United States border in

19 August 2013, at the age of 14. United States Border Patrol agents apprehended him in the desert and

20 placed him in the custody of ORR. With no family in the United States, F.L.B. was released to the

21 custody of a family acquaintance in October 2013. He has been residing in Seattle, Washington, since

22 his release from ORR custody.

23 64. F.L.B. has a removal hearing in September 2014. However, F.L.B. has no resources to retain

24 counsel and the legal service providers in the Seattle area are stretched well beyond capacity to take on

25 the cases of children in removal proceedings. F.L.B. appears by his next friend, Casey Trupin. Mr.

26 Trupin is the Project Coordinator for the Children and Youth Project at Columbia Legal Services in

27 Seattle, Washington; he is familiar with F.L.B.’s ongoing immigration proceedings and is truly

28 dedicated to F.L.B.’s best interests in this case.
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1

2 G.D.S.

3 65. Plaintiff G.D.S. is a 15-year old boy and a native and citizen of Mexico who has lived in the

4 United States since he was approximately one year old. He is the second youngest in a family of five

5 children, all of whom reside in this country. He, his mother, and an older brother all possess U

6 nonimmigrant visa status and are now seeking to adjust their status to become lawful permanent

7 residents.

8 66. G.D.S. was in ninth grade when he was placed in a juvenile rehabilitation facility after pleading

9 guilty to charges in juvenile court. ICE then filed a detainer against him, which advised that he faces

10 removal proceedings where the Government will seek to take away his lawful status and deport him

11 from his home. He thus faces the threat of permanent separation from his mother and siblings. He and

12 his mother cannot afford an attorney to represent him in immigration court, and the legal service

13 providers in the Seattle area are stretched well beyond capacity to take on the cases of children in

14 removal proceedings.

15 67. G.D.S. appears by his next friend and mother, Ana Maria Ruvalcaba. Ms. Ruvalcaba maintains a

16 close personal relationship with G.D.S., is familiar with his immigration matters, and is truly dedicated

17 to his best interests in this case.

18 M.A.M.

19 68. Plaintiff M.A.M. is a 16-year-old boy, and a native and citizen of Honduras. He presently resides

20 in Oxnard, California. M.A.M. has limited communication skills and special education issues, as a result

21 of which he has limited ability to recount the suffering that he and his family endured in Honduras.

22 69. M.A.M. spent his first eight years in Honduras, raised primarily by his maternal grandmother.

23 During that time, M.A.M.’s mother left him and came to the United States, where she received

24 Temporary Protected Status (“TPS”). Although M.A.M.’s grandmother cared for him, she could not

25 shield him from life’s brutality there. At some point prior to his eighth birthday, someone attacked

26 M.A.M.’s father with a machete, leaving him profoundly disabled. M.A.M.’s half-brothers’ father was

27 kidnapped and murdered during those years as well.

28
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1 70. Eventually, M.A.M.’s grandmother grew elderly and ill. His father was not involved in his life,

2 and no one else could care for him. As a result, M.A.M. came to the United States at the age of eight.

3 Since 2006, he has resided with his mother in California. Although she has TPS, the law does not permit

4 her to extend that status to her son.

5 71. Despite the lack of an adult conviction, M.A.M. was swept into the net of interior immigration

6 enforcement. ICE arrested M.A.M. and took him into custody in September 2011, when he was only 13

7 years old and placed him into removal proceedings. Rather than transfer M.A.M. to ORR custody,

8 however, ICE retained custody over him until his mother came forward, after which ICE released him

9 into her care.

10 72. The Los Angeles Immigration Court already has held multiple hearings where M.A.M. was

11 unrepresented by counsel. M.A.M.’s next removal hearing is scheduled for August 2014. He and his

12 mother are indigent. They cannot afford to hire private counsel for his upcoming hearing. The Los

13 Angeles-based, Government-funded legal representation program rejected M.A.M.’s immigration court

14 case because he fell outside their scope of service (because M.A.M. was never in ORR custody).

15 M.A.M. appears by his next friend and mother, Rosa Pedro. Ms. Pedro maintains a close personal

16 relationship with M.A.M., is familiar with his ongoing immigration proceedings, and is truly dedicated

17 to his best interests in this case.

18 S.R.I.C.

19 73. S.R.I.C. is a 17-year-old boy, and a native and citizen of Guatemala. He presently resides in Los

20 Angeles, California. His father, Hector Rolando Ixcoy Ixcoy, left Guatemala for the United States when

21 S.R.I.C. was a young boy. S.R.I.C. lived in Guatemala with his mother and three siblings. Although Mr.

22 Ixcoy was in the United States during S.R.I.C.’s childhood, he called the family frequently and sent

23 money to support S.R.I.C. and the rest of the family. Mr. Ixcoy became a lawful permanent resident of

24 the United States in 2009.

25 74. S.R.I.C. was forced to flee from Guatemala when gang members began attempting to recruit

26 him. The gang members would wait outside of his school and threaten S.R.I.C. During one such

27 confrontation, one of the gang members cut S.R.I.C.’s leg with a knife. He still has the scars from that

28
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1 confrontation. When S.R.I.C. continued to resist their recruitment efforts, the gang threatened to kill

2 S.R.I.C. and his family unless S.R.I.C. agreed to join the gang.

3 75. Fearing for his life and for the well-being of his family, S.R.I.C. came to the United States to

4 reunite with his father. Several days later, S.R.I.C. left Guatemala for the United States. In February

5 2014, CBP apprehended S.R.I.C. and held him in custody near the United States-Mexico border. The

6 Government thereafter initiated removal proceedings against him, and he has a removal hearing date in

7 January 2015.

8 76. After several days in detention along the border, S.R.I.C. was sent to a shelter in Houston, Texas,

9 where he remained until he was sent to Los Angeles, California to reunite with his father in March.

10 S.R.I.C. now resides in Los Angeles, where he is currently enrolled in school.

11 77. Since arriving in Los Angeles, S.R.I.C. met with legal services providers and inquired about the

12 possibility of obtaining legal representation in his immigration case. However, he was turned away

13 because the legal services provider did not have the capacity to take on his case and could not locate pro

14 bono representation for him. S.R.I.C. and his father also have reached out to private immigration

15 attorneys, but cannot afford to pay the fees charged by such attorneys to take on his immigration case.

16 S.R.I.C. therefore remains unrepresented in his immigration case.

17 78. S.R.I.C. appears by his next friend and father, Mr. Ixcoy. Mr. Ixcoy maintains a close personal

18 relationship with S.R.I.C. and is truly dedicated to S.R.I.C.’s best interests in this case.

19 G.M.G.C.

20 79. G.M.G.C. is a 14-year-old girl, and a native and citizen of El Salvador. She presently resides in

21 Los Angeles, California. Her parents left El Salvador when she was a young girl, and she grew up living

22 with her grandparents, sisters, and aunts. Although her parents were living in the United States, they

23 called frequently and sent money to support the family. Around 2001, her father, Juan Guerrero Diaz,

24 received TPS in the United States.

25 80. G.M.G.C. was forced to leave her home of El Salvador after gang members began threatening

26 the young women in her family. Her uncle in El Salvador, who is a police officer, refused to provide

27 supplies to gang members in their town. In retaliation, the gang members made threats to the young

28 women in the family, surveilled the family home, and harassed the young women. On one occasion,

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1 gang members attacked G.M.G.C. and her older sister while they were out buying dinner. After these

2 incidents, the young girls were too scared to leave the family home.

3 81. Fearing for their lives, G.M.G.C., her two sisters, and her young aunt, fled El Salvador and came

4 to the United States. Border Patrol agents apprehended G.M.G.C., her sisters, and her aunt in January

5 2014. After spending approximately one day at holding facilities near the border, G.M.G.C. was

6 transferred to ORR custody. She remained in ORR custody until February 2014, when she was taken to

7 Los Angeles, California, to reunite with her father. G.M.G.C. has a removal hearing date in September

8 2014.

9 82. After arriving in Los Angeles, G.M.G.C. and her father met with legal services providers and

10 inquired about the possibility of obtaining legal representation for her in her immigration case. However,

11 they never heard back from the legal services providers, and when they inquired further, were told that

12 the legal services providers could not take on G.M.G.C.’s case. G.M.G.C. and her father have also

13 reached out to private immigration attorneys, but cannot afford to pay the fees charged by such attorneys

14 to take on her immigration case. Therefore, G.M.G.C. remains unrepresented in her immigration case.

15 83. G.M.G.C. appears by her next friend and father, Mr. Guerrero Diaz. Mr. Guerrero Diaz

16 maintains a close personal relationship with G.M.G.C., is familiar with her immigration matters, and is

17 truly dedicated to her best interests in this case.

18

19 V. LEGAL BACKGROUND

20 84. Plaintiffs and the putative class raise statutory and constitutional claims challenging the

21 Government’s failure to ensure legal representation for them in their immigration proceedings.

22 Specifically, Plaintiffs contend that the Immigration and Nationality Act (“INA”) and the Due Process

23 Clause of the Fifth Amendment mandate that the Government ensure that all children in immigration

24 proceedings have legal representation.

25 85. The INA and immigration regulations require that all persons in removal proceedings have “a

26 reasonable opportunity” to present, examine, and object to evidence. 8 U.S.C. § 1229a(b)(4)(B); 8

27 C.F.R. § 1240.10(a)(4). In addition, all persons in removal proceedings, whatever their age, have the

28 right to be advised of the charges against them, 8 U.S.C. § 1229(a)(1)(D); 8 C.F.R. § 239.1, and “the

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1 privilege of being represented, at no expense to the Government, by counsel of the alien’s choosing.” 8

2 U.S.C. § 1229a(b)(4)(A); 8 C.F.R. §§ 238.1(b)(2), 1240.10(a)(1).20

3 86. Existing regulations address the rights of children in some respects, but do not come close to

4 ensuring fair hearings. One regulation precludes Immigration Judges from accepting admissions of

5 removability from “an unrepresented respondent who is . . . under the age of 18,” but permits such

6 admissions if the child is accompanied by a relative or friend. 8 C.F.R. § 1240.10(c). The BIA has

7 undermined even the minimal protection this regulation provides by holding that Immigration Judges

8 can accept factual admissions from children that, taken together, are sufficient to prove the child’s

9 removability. See Matter of Amaya, 21 I. & N. Dec. 583, 587 (BIA 1996). Similarly, another regulation

10 requires DHS to serve charging documents for a minor under 14 years of age upon the person with

11 whom the minor resides, and “whenever possible,” the minor’s “near relative, guardian, committee, or

12 friend.” 8 C.F.R. § 103.8(c)(2)(ii). But this regulation does not impose any obligations on such

13 individuals, and the BIA has concluded that these regulations even permit service upon the director of

14 the facility where the minor is currently detained. See Amaya, 21 I. & N. Dec. at 585.

15 87. At a more general level, the BIA has long interpreted the statutory rights provided in 8 U.S.C.

16 §§ 1229, 1229a as creating a general right to a fair hearing in the deportation context. Matter of Exilus,

17 18 I. & N. Dec. 276, 278-79 (BIA 1982). Similarly, the Ninth Circuit has made clear that “every

18 individual in removal proceedings is entitled to a full and fair hearing” of his claims. Oshodi v. Holder,

19 729 F.3d 883, 889 (9th Cir. 2013) (en banc).

20 88. These statutory rules implement a constitutional command. The Supreme Court held over a

21 century ago that the Fifth Amendment guarantees a noncitizen the right to due process in any proceeding

22 where the Government seeks his deportation. See Yamataya v. Fisher, 189 U.S. 86, 100-01 (1903) [“The

23 20 The immigration statutes also contain certain protections specific to “unaccompanied alien children,” 24 defined as individuals under the age of 18 without lawful immigration status in the United States “with
respect to whom: (i) there is no parent or legal guardian in the United States; or (ii) no parent or legal 25 guardian in the United States is available to provide care and physical custody.” 6 U.S.C. § 279(g)(2).
“Unaccompanied alien children” who are not from “contiguous countries” are entitled to additional legal 26 protections. See, e.g., 8 U.S.C. § 1232(b)-(c) (custody provisions); 8 U.S.C. § 1232(a)(5)(D)(iii) 27 (regarding counsel); 8 U.S.C. § 1232(c)(5) (directing HHS to ensure unaccompanied children are
represented “to the greatest extent practicable”); 8 U.S.C. § 1232(c)(6) (regarding child advocates).
28

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1 Japanese Immigrant Case”]. And as applied to children, both prior Supreme Court precedent from the

2 juvenile delinquency context and more recent Ninth Circuit precedent involving a child facing

3 deportation demonstrate that all children, with their limited capacity to present complex factual and legal

4 arguments, are entitled to legal representation in immigration proceedings. In re Gault, 387 U.S. at 36;

5 Lin v. Ashcroft, 377 F.3d 1014, 1030, 1032-34 (9th Cir. 2004). This is all the more true given the

6 adversarial nature of the proceedings and the grave interests at stake. See generally Turner v. Rogers,

7 131 S. Ct. 2507, 2517 (2011).

8

9 VI. CLASS ACTION ALLEGATIONS

10 89. Pursuant to Federal Rule of Civil Procedure 23, Plaintiffs bring this action on behalf of

11 themselves and all other similarly situated individuals. Plaintiffs seek injunctive relief that applies

12 generally to the Plaintiff Class, as described below.

13 90. 14

The Plaintiff Class consists of: • All individuals under the age of eighteen (18) who are or will be in immigration

15

proceedings on or after July 9, 2014, without legal representation in their immigration

16

proceedings.21

17 91. The Plaintiff Class is so numerous that joinder of all members is impracticable. Although the

18 number of individuals under the age of 18 who are pro se in immigration proceedings is not known with

19 precision, most reports indicate that there are thousands of such children. See supra Part IV.A.

20 92. Common questions of law and fact bind the members of the Plaintiff Class. These questions

21 include, but are not limited to, the following:

22

23

24 21 As noted supra note 5, Plaintiffs define “immigration proceedings” as any proceeding that occurs before an Immigration Judge or the Board of Immigration Appeals. Plaintiffs define “legal

25 representation” as representation by a lawyer, a law student or graduate supervised by a lawyer, or a

BIA-accredited representative. See Franco-Gonzalez, et al. v. Holder, 828 F. Supp. 2d 1133, 1147 (C.D. 26 Cal. 2011) (defining Qualified Representative for purposes of providing legal representation to mentally

27

incompetent individuals in immigration proceedings as including “(1) an attorney, (2) a law student or law graduate directly supervised by a retained attorney, or (3) an accredited representative, all as defined

28 in 8 C.F.R. § 1292.1”).

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1

• Whether the Due Process Clause of the U.S. Constitution and/or federal statutory law

2

requires the Government to provide legal representation for the members of the Plaintiff

3

Class;

4

• Whether existing procedures suffice to protect the Plaintiff Class members’ right to a full

5

and fair hearing as required by the Due Process Clause of the U.S. Constitution and/or

6

federal statutory law.

7 93. The claims of the named Plaintiffs are typical of the claims of the Plaintiff Class as a whole.

8 Plaintiffs know of no conflict between their interests and those of the Plaintiff Class. The members of

9 the Plaintiff Class are ascertainable and can be identified through notice and discovery. In defending

10 their own rights, the individual Plaintiffs and their next friends will defend the rights of all proposed

11 Plaintiff Class members fairly and adequately.

12 94. Plaintiffs are represented in this case by counsel with deep knowledge of immigration law and

13 extensive experience litigating class actions and complex cases, including the only class action that has

14 secured appointed legal representation for a class of immigrants. Plaintiffs’ attorneys have the requisite

15 level of expertise to adequately prosecute this case on their behalf and on behalf of the Class.

16 95. Defendants have acted or refused to act on grounds generally applicable to each member of the

17 Plaintiff Class by refusing to recognize that the members of the Plaintiff Class have a statutory and

18 constitutional right to legal representation in their immigration proceedings, and by refusing to provide

19 that representation for such individuals.

20 96. A class action is superior to other methods available for the fair and efficient adjudication of this

21 controversy because joinder of all members of the Plaintiff Class is impracticable. Moreover, members

22 of the Plaintiff Class remain unrepresented in immigration proceedings and lack the ability to assert the

23 claims made here. Absent the relief they seek here, there would be no other way for the Plaintiff Class to

24 individually redress the wrongs they have suffered and continue to suffer.

25

26

27

28
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1 VII. CLAIMS FOR RELIEF

2

FIRST CAUSE OF ACTION

3

Violation of the Immigration and Nationality Act

4

(Against All Defendants by All Plaintiffs)

5 97. Plaintiffs reallege and incorporate by reference each and every allegation contained in the

6 preceding paragraphs.

7 98. The Immigration and Nationality Act requires that all individuals in removal proceedings be

8 afforded a reasonable opportunity to, inter alia, examine and present evidence and witnesses. See 8

9 U.S.C. § 1229a(b). These provisions require that unrepresented children be provided a fair hearing in

10 their immigration proceedings. The only way to ensure that these children receive a fair hearing is by

11 providing them with legal representation.

12 99. Plaintiffs and the Plaintiff Class have suffered and will imminently suffer irreparable injury as a

13 proximate cause of the Government’s failure to provide them with legal representation in their

14 immigration proceedings, and are therefore entitled to injunctive relief to avoid any injury.

15

SECOND CAUSE OF ACTION

16

Violation of the Due Process Clause of the Fifth Amendment

17

(Against All Defendants by All Plaintiffs)

18 100. Plaintiffs reallege and incorporate by reference each and every allegation contained in the

19 preceding paragraphs.

20 101. The Due Process Clause requires that unrepresented children in immigration proceedings be

21 provided legal representation.

22 102. Plaintiffs and the Plaintiff Class have suffered and will imminently suffer irreparable injury as a

23 proximate cause of the Government’s failure to provide them with legal representation in their

24 immigration proceedings, and are therefore entitled to injunctive relief to avoid any injury.

25

26

27

28
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1 VIII. PRAYER FOR RELIEF

2 WHEREFORE, Plaintiffs respectfully request that the Court grant the following relief:

3

a. Certify a class pursuant to Federal Rule of Civil Procedure 23 in accordance with this

4

Complaint’s allegations and the accompanying Motion for Class Certification;

5

b. Declare that the Defendants’ failure to ensure legal representation for Plaintiffs and the

6

Plaintiff Class violates constitutional and statutory law, pursuant to the Court’s equitable

7

powers and the Declaratory Judgment Act, 28 U.S.C. § 2201;

8

c. Issue an injunction directing Defendants to ensure that Plaintiffs and other members of

9

the Plaintiff Class receive legal representation in their immigration proceedings;

10

d. Grant any other relief the Court deems just, equitable, and appropriate, including, but not

11

limited to, fees under the Equal Access to Justice Act, and any other applicable statute or

12

regulation.

13 14 Dated this 4th day of September, 2014.
15 Respectfully submitted,

16 /s/Theodore J. Angelis
Theodore J. Angelis, WSBA No. 30300 17 Todd L. Nunn, WSBA No. 23267
18 K&L GATES LLP 925 Fourth Avenue, Suite 2900
19 Seattle, WA 98104 (206) 623-7580
20 (206) 623-7022 (fax)

21 Matt Adams, WSBA No. 28287

22 Glenda M. Aldana Madrid, WSBA 46987 NORTHWEST IMMIGRANT

23 RIGHTS PROJECT

615 2nd Avenue, Suite 400

24 Seattle, WA 98104

25

(206) 957-8611 (206) 587-4025 (fax)

26 Ahilan Arulanantham, Cal. State Bar. No. 237841 (pro hac vice motion pending)
27 ACLU IMMIGRANTS’ RIGHTS PROJECT ACLU OF SOUTHERN CALIFORNIA
28 1313 West 8th Street

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Los Angeles, CA 90017 1 (213) 977-5211 2 (213) 417-2211 (fax)

3 Cecillia Wang, Cal. State Bar. No. 187782 (pro hac vice motion pending) Stephen Kang, Cal. State Bar No. 292280 (pro hac vice motion pending)
4 ACLU IMMIGRANTS’ RIGHTS PROJECT

39 Drumm Street 5 San Francisco, CA 94111

6 (415) 343-0770 (415) 343-0950 (fax)

7
Carmen Iguina, Cal. State Bar No. 277369 (pro hac vice motion pending) 8 ACLU OF SOUTHERN CALIFORNIA

9

1313 West 8th Street Los Angeles, CA 90017

10 (213) 977-5211 (213) 417-2211 (fax)

11 Kristen Jackson, Cal. State Bar. No. 226255 (pro hac vice motion pending)
12 Talia Inlender, Cal. State Bar No. 253796 (pro hac vice motion pending)

13

PUBLIC COUNSEL 610 South Ardmore Avenue

14 Los Angeles, CA 90005 (213) 385-2977

15 (213) 385-9089 (fax)

16 Beth Werlin, D.C. Bar No. 1006954 (pro hac vice motion pending)

17

Melissa Crow, D.C. Bar No. 453487 (pro hac vice motion pending) AMERICAN IMMIGRATION COUNCIL

18 1331 G Street NW, Suite 200 Washington, DC 20005

19 (202) 507-7500

(202) 742-5619 (fax) 20

21

Sarah Dunne, WSBA No. 34869 ACLU OF WASHINGTON FOUNDATION

22 901 Fifth Avenue, Suite 630

Seattle, WA 98164

23 (206) 624-2184

24 Counsel for Plaintiffs-Petitioners 25

26

27

28
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CERTIFICATE OF ECF FILING AND SERVICE 1

2

I certify that on September 4, 2014, I arranged for electronic filing of the foregoing document with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to all

3 CM/ECF registered counsel of record in this case.

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/s/Theodore J. Angelis

Theodore J. Angelis, WSBA No. 30300

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Todd L. Nunn, WSBA No. 23267

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K&L GATES LLP

925 Fourth Avenue, Suite 2900

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Seattle, WA 98104

(206) 623-7580

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(206) 623-7022 (fax)

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AMENDED COMPLAINT - 29 of 29
Case No. 2:14-cv-01026-TSZ

K&L GATES LLP
925 FOURTH AVENUE SUITE 2900
SEATTLE, WASHINGTON 98104-1158 TELEPHONE: (206) 623-7580 FACSIMILE: (206) 623-7022

 
 Case 2:14-cv-01026-TSZ Document 114 Filed 04/13/15 Page 1 of 39

1

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UNITED STATES DISTRICT COURT

5

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE 6

7 J.E.F.M., et al.,

8

Plaintiffs,

9

v.

10 ERIC H. HOLDER, et al.,

11

Defendants.

C14-1026 TSZ ORDER

12

THIS MATTER comes before the Court on defendants’ motion to dismiss, docket

13 no. 80, based on lack of jurisdiction and failure to state a claim. Having considered all of

14 the materials filed in support of, and in opposition to, the motion, and the oral arguments

15 of counsel, the Court enters the following order.

16 Background

17

In this action, nine juveniles ranging in age from 3 to 17, on behalf of themselves

18 and others similarly situated,1 assert both a statutory and a constitutional claim that they

19

20 1 According to a report cited by defendants, which was prepared by the Transactional Records Access

Clearinghouse (“TRAC”) at Syracuse University, the number of juvenile cases in immigration courts

21

increased dramatically over the last few years, jumping from 6,425 in 2011, to 11,411 in 2012, and 21,351 in 2013. See Surreply at 2 n.1 (docket no. 70) (citing http://trac.syr.edu/immigration/reports/359/).

In a different report, TRAC indicates that 59,394 immigration cases involving minors were filed in 2014.
22 See http://trac.syr.edu/phptools/immigration/juvenile/.

23

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Case 2:14-cv-01026-TSZ Document 114 Filed 04/13/15 Page 2 of 39

1 are entitled to have attorneys appointed to represent them at government expense in

2 connection with their removal proceedings.2 They assert the statutory claim under § 240

3 of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1229a, and they bring the

4 constitutional claim under the Due Process Clause of the Fifth Amendment. As to five of

5 the nine plaintiffs, three of whom are siblings, removal proceedings are ongoing. See 2d

6 Am. Compl. ¶¶ 13-16, 18, & 85 (docket no. 95). As to the other four plaintiffs, however,

7 removal proceedings are not currently pending.3

8

Under the INA, as amended by the Illegal Immigration Reform and Immigrant

9 Responsibility Act of 1996 (“IIRIRA”), an alien is “removable” if (i) he or she was not

10 admitted to the United States and is “inadmissible” under 8 U.S.C. § 1182, or (ii) he or

11 she was admitted to the United States and is “deportable” under 8 U.S.C. § 1227. See

12 8 U.S.C. § 1229a(e)(2). Before the enactment of IIRIRA, a distinction had been drawn

13 between “exclusion” and “deportation” of individuals. See Dormescar v. U.S. Att’y Gen.,

14 690 F.3d 1258, 1260 (11th Cir. 2012); see also U.S. ex rel. Knauff v. Shaughnessy, 338

15

16

2 The parties agree that no Sixth Amendment right to counsel exists in removal proceedings, which are civil in nature. See United States v. Gasca-Kraft, 522 F.2d 149, 152 (9th Cir. 1975); see also Dearinger

ex rel. Volkova v. Reno, 232 F.3d 1042, 1045 (9th Cir. 2000); Michelson v. INS, 897 F.2d 465, 467 (10th

17 Cir. 1990); United States v. Saucedo-Velasquez, 843 F.2d 832, 834 n.2 (5th Cir. 1988).

18 3 With respect to G.D.S., who is currently in a juvenile rehabilitation facility, and A.E.G.E., who is 3
years old and living in Los Angeles with his mother, a permanent resident, plaintiffs do not allege that

removal proceedings have commenced. See 2d Am. Compl. ¶¶ 79 & 100-101. At the hearing held on
19 March 6, 2015, plaintiffs’ counsel suggested that a charging document has been filed against A.E.G.E.,

but defendants’ attorney was adamant that removal proceedings are not pending as to A.E.G.E. On the

20 other end of the spectrum, plaintiffs indicate that G.J.C.P. and J.E.V.G. have already been ordered

removed in absentia. 2d Am. Compl. ¶¶ 22 & 23. A motion to reopen J.E.V.G.’s removal proceedings

21

was filed by the government, see Defs.’ Supp. Br. at 10 n.6 (docket no. 97), and defendants’ attorney represented during oral argument that a hearing concerning J.E.V.G. is currently scheduled in May 2015,

but neither the anticipated nature of such hearing nor the exact status of J.E.V.G.’s removal proceedings
22 are reflected in any pleading that has been filed in this action.

23

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Case 2:14-cv-01026-TSZ Document 114 Filed 04/13/15 Page 3 of 39

1 U.S. 537, 543 (1950). “Excludable” aliens, meaning those who sought but had not yet

2 achieved admission, were treated as though they were detained at the border, even if they

3 were physically present within the United States, Dormescar, 690 F.3d at 1260, and

4 “excludable” aliens were entitled to fewer procedural protections than “deportable”

5 aliens, Mariscal-Sandoval v. Ashcroft, 370 F.3d 851, 854 (9th Cir. 2004). When IIRIRA

6 became effective on April 1, 1997, see Pub. L. No. 104-208, § 309(a), 110 Stat. 3009

7 (1996), exclusion and deportation proceedings were merged into the broader category of

8 “removal” proceedings. Mariscal-Sandoval, 370 F.3d at 854 n.6.

9

Removal proceedings are conducted before an immigration judge, and such

10 proceedings are “the sole and exclusive” means for determining whether an alien may be

11 admitted to or removed from the United States. 8 U.S.C. §§ 1229a(a)(1) & (3). Pursuant

12 to INA § 240(b), an alien in a removal proceeding may offer evidence on his or her own

13 behalf and may review the evidence and cross-examine the witnesses presented by the

14 Government. 8 U.S.C. § 1229a(b)(4)(B). An alien also has the statutory “privilege of

15 being represented, at no expense to the Government, by counsel of the alien’s choosing”

16 in both “removal proceedings before an immigration judge” and “appeal proceedings

17 before the Attorney General.” 8 U.S.C. §§ 1229a(b)(4)(A) & 1362. In this case,

18 plaintiffs contend that, because they are unable to retain counsel, for either financial or

19 other reasons, they cannot exercise their statutory right to present evidence and cross-

20 examine witnesses and are being denied their constitutional right to due process of law.

21

22

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Case 2:14-cv-01026-TSZ Document 114 Filed 04/13/15 Page 4 of 39

1 Discussion

2

Defendants move to dismiss for lack of subject-matter jurisdiction and for failure

3 to state a claim. Defendants’ motion to dismiss was filed before the Court entered its

4 order denying plaintiffs’ earlier motion for a preliminary injunction, see Order (docket

5 no. 81), and before plaintiffs sought and were granted leave to file their Second Amended 6 Complaint.4 Although jurisdiction was addressed in the Court’s prior order, additional

7 plaintiffs have now been named and the jurisdictional issues more squarely concern the

8 right-to-counsel claim, as opposed to the continuances or stays plaintiffs sought in their

9 motion for a preliminary injunction. The Court will therefore consider defendants’

10 jurisdictional arguments anew.

11 A. Jurisdiction

12

Defendants assert three overlapping reasons for dismissing this action for lack of

13 jurisdiction:5 (i) lack of ripeness; (ii) the jurisdiction-stripping and channeling provisions

14 of IIRIRA, as amended by the REAL ID Act of 2005; and (iii) sovereign immunity.

15

4 After joining three more juveniles in the Second Amended Complaint, plaintiffs voluntarily dismissed

16 two of the original eight minors, namely G.M.G.C. and S.R.I.C. See Notice (docket no. 107). Plaintiffs
provided no explanation for the voluntary dismissal. According to defendants, however, S.R.I.C., who

17

turned 18 in January, is now being represented by counsel. See Reply at 2 n.2 (docket no. 104). During the hearing on March 6, 2015, defendants’ attorney indicated that G.M.G.C. also now has a lawyer.

18 5 In their Rule 12(b)(1) motion, defendants present a facial, rather than a factual, jurisdictional challenge.

A facial attack asserts that the allegations of the complaint are insufficient on their face to invoke federal

19 jurisdiction, while a factual challenge disputes the truth of the allegations in the complaint, which would
otherwise support subject-matter jurisdiction. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1038

20

(9th Cir. 2004). With respect to a facial challenge under Rule 12(b)(1), a plaintiff is entitled to the same safeguards that apply to a Rule 12(b)(6) motion to dismiss for failure to state a claim. See Friends of

Roeding Park v. City of Fresno, 848 F. Supp. 2d 1152, 1159 (E.D. Cal. 2012). The allegations of the

21 complaint are presumed to be true, id., and the Court may not consider matters outside the pleading

without converting the motion into one for summary judgment, see White v. Lee, 227 F.3d 1214, 1242

22 (9th Cir. 2000).

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Case 2:14-cv-01026-TSZ Document 114 Filed 04/13/15 Page 5 of 39

1 Defendants’ arguments can be distilled into one basic premise, namely that plaintiffs can 2 and should be required to raise their right-to-counsel claim in their removal proceedings

3 and then seek review of the predictably unfavorable result by the Board of Immigration

4 Appeals (“BIA”) and the appropriate court of appeals.

5

Plaintiffs appear to view defendants’ analysis as stating a form of Catch-22.6

6 Plaintiffs contend that, as children, they lack the capacity to request an attorney in the

7 midst of a removal proceeding, to appeal to the BIA, or to petition for review by a court

8 of appeals, and that they cannot be assisted in any of these endeavors by a lawyer without

9 thereby forfeiting their claim to appointment of counsel. In other words, according to

10 plaintiffs, they cannot feasibly ask for an attorney without the help of an attorney, but if

11 they receive the help of an attorney, then they cannot ask for an attorney at government

12 expense.

13

This alleged paradox presupposes cognitive limitations on the part of all alien

14 juveniles that the Court is not ready to accept.7 The Court is persuaded, however, that the

15 jurisdictional hurdles defendants seek to erect would create a different unfair result.

16

17

6 Since being coined by Joseph Heller in 1961, the term “Catch-22” has appeared in over two thousand opinions or orders issued by federal courts. The term is a shorthand way of referring to a “paradox in

which seeming alternatives actually cancel each other out, leaving no means of escape from a dilemma.”
18 WEBSTER’S II NEW RIVERSIDE UNIV. DICTIONARY 237 (1984); see THE RANDOM HOUSE DICTIONARY

OF THE ENGLISH LANGUAGE 327 (2d ed. 1987) (“a frustrating situation in which one is trapped by

19 contradictory regulations or conditions” or “any illogical or paradoxical problem or situation; dilemma”).

20

7 The Court does not agree that requesting an attorney requires the skills of a “Doogie Howser,” the fictional character mentioned by plaintiffs’ counsel during oral argument, from a television series popular

in the early 1990s, about a genius teenager with a medical degree, who is a surgeon at a Los Angeles

21 hospital. The Court is satisfied that many, if not most, youngsters are capable of uttering, in their native

language if not in English, the words “I want a lawyer,” and of inscribing that phrase on a notice of appeal

22 or petition for review.

23

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Case 2:14-cv-01026-TSZ Document 114 Filed 04/13/15 Page 6 of 39

1 Assuming an alien minor, acting pro se, successfully navigated the immigration labyrinth

2 all the way to the appropriate court of appeals, he or she would arrive there without the

3 record necessary to conduct the balancing of interests required by Mathews v. Eldridge,

4 424 U.S. 319 (1976), in connection with a due process right-to-counsel claim.8 An

5 immigration judge, who has no authority to appoint an attorney at government expense,

6 would have no reason to hold an evidentiary hearing or engage in the Mathews analysis.

7 Absent an endeavor by an immigration judge to weigh the Mathews factors with regard to

8 a right-to-counsel claim, neither the BIA nor a court of appeals would have anything to

9 review. Meanwhile, the petitioner would likely have turned 18 while the appeal was

10 pending, meaning that remand to develop a record would not be a viable option and the

11 claim of a right to counsel for alien juveniles would remain unresolved. A different

12 youth might later take up the cause and run the same gauntlet, but with probably the same

13 result.

14

The Court is of the opinion that the due process question plaintiffs have raised in

15 this case is far too important to consign it, as defendants propose, to the perhaps perpetual

16 loop of the administrative and judicial review process. A fundamental precept of due

17 process is that individuals have a right “to be heard ‘at a meaningful time and in a

18 meaningful manner’” before “being condemned to suffer grievous loss of any kind, even

19

8 Under Mathews, in evaluating whether due process has been satisfied, the following factors must be

20 weighed: (i) the nature of the private interest affected by the government action; (ii) the risk of erroneous
deprivation of such interest through the procedures used, as well as the probable value of additional or

21

substitute safeguards; and (iii) the interest of the government, including the fiscal or administrative burdens that additional or different procedural requirements would entail. 424 U.S. at 335. In Turner v.

Rogers, 131 S. Ct. 2507 (2011), the Supreme Court indicated that the Mathews factors are “useful” in
22 determining whether due process requires the appointment of counsel in a civil proceeding. Id. at 2517.

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Case 2:14-cv-01026-TSZ Document 114 Filed 04/13/15 Page 7 of 39

1 though it may not involve the stigma and hardships of a criminal conviction.” Mathews,

2 424 U.S. at 333. Unlike some other legal doctrines, due process is “not a technical

3 conception with a fixed content unrelated to time, place and circumstances,” but rather is

4 “flexible and calls for such procedural protections as the particular situation demands.”

5 Id. at 334 (quoting Cafeteria & Rest. Workers Union, Local 473 v. McElroy, 367 U.S.

6 886, 895 (1961), and Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). Whether

7 plaintiffs’ constitutional due process right-to-counsel claim has merit cannot yet be

8 determined, but plaintiffs deserve, and the Court concludes that it has jurisdiction (at least

9 with respect to juveniles currently in removal proceedings) to eventually provide an

10 answer. With respect to plaintiffs’ statutory claim, however, the Court lacks jurisdiction.

11

1. Ripeness

12

Defendants contend that plaintiffs’ right-to-counsel claim is not ripe because no

13 named plaintiff has yet, during the course of removal proceedings, requested and been

14 refused an attorney at government expense. Defendants’ argument has merit with respect

15 to minors against whom removal proceedings have not yet been initiated. A claim “is not

16 ripe for adjudication if it rests upon ‘contingent future events that may not occur as

17 anticipated, or indeed may not occur at all.’” Texas v. United States, 523 U.S. 296, 300

18 (1998) (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81

19 (1985)). Removal proceedings might never be commenced with respect to G.D.S. and

20 A.E.G.E., and their claims asserting a constitutional or statutory right to the appointment

21 of an attorney to represent them in removal proceedings are premature. Thus, as to these

22 two juveniles, the Court currently lacks jurisdiction, and defendants’ Rule 12(b)(1)

23

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Case 2:14-cv-01026-TSZ Document 114 Filed 04/13/15 Page 8 of 39

1 motion to dismiss is GRANTED in part. The claims of G.D.S. and A.E.G.E. are

2 DISMISSED without prejudice.

3

Defendants’ ripeness challenge otherwise fails. Exhaustion is not required to

4 make a claim ripe when the agency lacks authority to grant relief. See Xiao v. Barr, 979

5 F.2d 151, 154 (9th Cir. 1992); El Rescate Legal Servs., Inc. v. Exec. Office of

6 Immigration Review, 959 F.2d 742, 746-47 (9th Cir. 1991); see also Am.-Arab Anti-

7 Discrimination Comm. v. Reno (“AAADC I”), 70 F.3d 1045, 1058 (9th Cir. 1995) (“[W]e

8 customarily decline to apply the prudential ripeness doctrine when exhaustion would be a

9 futile attempt to challenge a fixed agency position.”). Defendants concede that neither an

10 immigration judge nor the BIA “has the authority to appoint counsel” for an alien minor

11 or “to declare that 8 U.S.C. § 1362 is unconstitutional as applied to all minors.” Defs.’

12 Supp. Br. at 7 (docket no. 97). Thus, any attempt by plaintiffs to secure from an

13 immigration judge or the BIA a government-compensated lawyer to assist them with

14 removal proceedings would be futile.

15

In El Rescate, the plaintiffs faced a similar issue of futility in challenging certain

16 practices of the Executive Office of Immigration Review (“EOIR”), namely the use of

17 incompetent translators and the failure to interpret many portions of immigration court

18 hearings. 959 F.2d at 745. The district court granted summary judgment in favor of the

19 plaintiffs, and the EOIR appealed, arguing that the district court lacked jurisdiction

20 because the plaintiffs did not exhaust their administrative remedies. Id. at 745-46. In

21 holding that exhaustion was not required, the Ninth Circuit focused on the distinction

22 between claims attacking the validity of an individual order of deportation or exclusion

23

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Case 2:14-cv-01026-TSZ Document 114 Filed 04/13/15 Page 9 of 39

1 (now known collectively as removal) and claims predicated on “an alleged pattern and

2 practice of constitutional or statutory violations.” Id. at 746. With regard to the latter,

3 the Ninth Circuit held that exhaustion is unnecessary when “the agency’s position on the

4 question at issue ‘appears already set,’” and resort to administrative remedies is “very

5 likely” to produce an unfavorable result or be futile. Id. at 747; see also AAADC I, 70

6 F.3d at 1058 (observing that exhaustion is futile when no “genuine doubt” exists as to

7 “what is going to happen in the administrative process” (quoting Rafeedie v. INS, 880

8 F.2d 506, 514 (D.C. Cir. 1989))). In this case, as in El Rescate, the remaining plaintiffs

9 present a “pattern and practice” claim as to which recourse to the administrative process

10 is guaranteed to fail. Thus, defendants’ attack on the ripeness of plaintiffs’ claim lacks

11 merit.

12

2. IIRIRA and the REAL ID Act

13

Ripeness is not, however, the only obstacle that the remaining plaintiffs’ statutory

14 and constitutional right-to-counsel claims must overcome. As explained in more detail

15 below, IIRIRA’s jurisdiction-stripping provision, as amended by the REAL ID Act,

16 8 U.S.C. § 1252(g), requires the Court to dismiss at least G.J.C.P.’s claim because it

17 seeks to collaterally attack an order of removal entered in absentia. In addition, the

18 REAL ID Act’s and IIRIRA’s channeling mechanism, 8 U.S.C. §§ 1252(a)(5) and (b)(9),

19 removes plaintiffs’ first cause of action for violation of INA § 240 from the purview of

20 this Court. As to the second cause of action, however, brought under the Due Process

21 Clause of the Fifth Amendment, the Court concludes that neither IIRIRA’s jurisdiction-

22

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Case 2:14-cv-01026-TSZ Document 114 Filed 04/13/15 Page 10 of 39

1 stripping provision nor the Real ID Act’s and IIRIRA’s channeling mechanism compel

2 dismissal.

3

a. Section 1252(g)

4

Section 1252(g) provides:

5

Except as provided in this section and notwithstanding any other provision

of law (statutory or nonstatutory), including section 2241 of Title 28, or any

6

other habeas corpus provision, and sections 1361 and 1651 of such title, no

court shall have jurisdiction to hear any cause or claim by or on behalf of

7

any alien arising from the decision or action by the Attorney General to

commence proceedings, adjudicate cases, or execute removal orders against

8

any alien under this chapter.

9 8 U.S.C. § 1252(g). Section 1252(g) is narrow and “applies only to three discrete

10 actions” that the Attorney General might take, namely to “‘commence proceedings,

11 adjudicate cases, or execute removal orders.’” Reno v. Am.-Arab Anti-Discrimination

12 Comm. (“AAADC II”), 525 U.S. 471, 482 (1999) (emphasis in original) (quoting

13 8 U.S.C. § 1252(g)). Section 1252(g) is aimed solely “at preserving prosecutorial

14 discretion.” Barahona-Gomez v. Reno, 236 F.3d 1115, 1119 (9th Cir. 1999). Because

15 immigration courts may not decline to hear cases, after a removal proceeding has been

16 initiated, discretion no longer plays a role. Id. at 1120. Thus, § 1252(g) does not deprive

17 federal courts of jurisdiction to hear constitutional challenges to the manner in which

18 removal proceedings are conducted. Id. at 1119-21; Walters v. Reno, 145 F.3d 1032,

19 1052 (9th Cir. 1998); see also Franco-Gonzales v. Holder, 767 F. Supp. 2d 1034, 1049

20 (C.D. Cal. 2010).

21

With regard to J.E.F.M., J.F.M., D.G.F.M., F.L.B., and M.A.M., who are subject

22 to ongoing removal proceedings, as well as J.E.V.G., whose removal proceeding will be

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Case 2:14-cv-01026-TSZ Document 114 Filed 04/13/15 Page 11 of 39

1 or has been reopened, the right-to-counsel claim does not implicate the Attorney

2 General’s discretion to commence proceedings, adjudicate cases, or execute removal

3 orders. Thus, as to these six plaintiffs, § 1252(g) does not operate as a bar to the Court’s

4 jurisdiction.

5

The same is not true for G.J.C.P., who has already been ordered removed in

6 absentia. An order of removal issued in absentia may be rescinded only upon an

7 immigration judge’s grant of a motion to reopen filed within the time limits set forth in

8 8 U.S.C. § 1229a(b)(5)(C).9 Absent such reopening, any review by a court of appeals

9 must be confined to the validity of the notice of the hearing, the reasons for failing to

10 appear, and the removability of the alien. 8 U.S.C. § 1229a(b)(5)(D). In asserting her

11 right-to-counsel claim, G.J.C.P. is attempting to circumvent the statutory restrictions on

12 challenging a removal order issued in absentia, and she seeks relief that would hamper

13 the Attorney General’s discretion to execute such removal order, i.e., relief that § 1252(g)

14 prohibits the Court from granting. Thus, defendants’ Rule 12(b)(1) motion to dismiss is

15 GRANTED in part, and G.J.C.P.’s claims are DISMISSED without prejudice.

16

b. Sections 1252(a)(5) and (b)(9)

17

In “stark contrast” to § 1252(g), which categorically excludes from judicial review

18 only “certain specified decisions and actions,” AAADC II, 525 U.S. at 482-83, the REAL

19

20 9 A motion to reopen must be filed within 180 days of the date of the removal order if the motion asserts

that the failure to appear was caused by “exceptional circumstances.” 8 U.S.C. § 1229a(b)(5)(C). If the

21

motion to reopen is, however, based on a lack of notice of the hearing or on confinement in federal or state custody at the time of the hearing, then the motion may be filed “at any time.” Id. The filing of a

motion to reopen automatically stays the removal of the alien pending disposition of the motion by an
22 immigration judge. Id.

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1 ID Act’s and IIRIRA’s channeling mechanism, §§ 1252(a)(5) and (b)(9), is broad in

2 scope. Section 1252(a)(5) indicates in relevant part:

3

Notwithstanding any other provision of law (statutory or nonstatutory),

including section 2241 of Title 28, or any other habeas corpus provision,

4

and sections 1361 and 1651 of such title, a petition for review filed with an

appropriate court of appeals in accordance with this section shall be the sole

5

and exclusive means for judicial review of an order of removal entered or

issued under any provision of this chapter . . . .

6

8 U.S.C. § 1252(a)(5). Section 1252(b)(9) reads: 7

Judicial review of all questions of law and fact, including interpretation and

8

application of constitutional and statutory provisions, arising from any

action taken or proceeding brought to remove an alien from the United

9

States under this subchapter shall be available only in judicial review of a

final order under this section. Except as otherwise provided in this section,

10

no court shall have jurisdiction, by habeas corpus under section 2241 of

Title 28 or any other habeas corpus provision, by section 1361 or 1651 of

11

such title, or by any other provision of law (statutory or nonstatutory), to

review such an order of such questions of law or fact. 12

13 8 U.S.C. § 1252(b)(9). The Supreme Court has characterized § 1252(b)(9) as an

14 “unmistakable ‘zipper’ clause,” see AAADC II, 525 U.S. at 483, while the First Circuit

15 has described the expanse of § 1252(b)(9) as “breathtaking,” Aguilar v. U.S. Immigration

16 & Customs Enforcement Div. of the Dep’t of Homeland Sec., 510 F.3d 1, 9 (1st Cir.

17 2007).

18

Sections 1252(a)(5) and (b)(9) were “designed to consolidate and channel review

19 of all legal and factual questions that arise from the removal of an alien into the

20 administrative process, with judicial review of those decisions vested exclusively in the

21 courts of appeal.” Aguilar, 510 F.3d at 9 (emphasis in original); see also, e.g., Iasu v.

22 Smith, 511 F.3d 881, 886-87 (9th Cir. 2007). The purpose was to “put an end to the

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1 scattershot and piecemeal nature of the review process that previously had held sway in

2 regard to removal proceedings.” Aguilar, 510 F.3d at 9 (citing H.R. Rep. No. 109-72,

3 at 174 (2005), reprinted in 2005 U.S.C.C.A.N. 240, 299); see also Iasu, 511 F.3d at 887

4 (Congress’s “explicit intent [was] to give ‘every alien one day in the court of appeals’”).

5 In Aguilar, however, the First Circuit recognized that certain denial-of-due-process

6 claims “are beyond the authority of the agency to adjudicate,” 510 F.3d at 18 n.4, and in

7 those rare circumstances, any exhaustion requirements may be excused if the claims

8 satisfy the standards articulated in McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479

9 (1991), and its progeny.

10

In McNary, the plaintiffs sought relief on behalf of a class of undocumented aliens

11 who had applied for special agricultural worker (“SAW”) status under amnesty programs

12 enacted in 1986. Id. at 482-87. They alleged that the Immigration and Naturalization

13 Service (“INS”) had adopted unlawful practices and policies for administering the SAW

14 program, including denying applicants an opportunity to challenge adverse evidence on

15 which denials were based, failing to provide competent interpreters, and interviewing

16 applicants in an arbitrary fashion without making a verbatim recording and thereby

17 inhibiting meaningful administrative review. Id. at 487-88. A provision of the amnesty

18 statute prohibited judicial review of a denial of SAW status, except in an appeal from an

19 order of exclusion or deportation. Id. at 485-86 (citing 8 U.S.C. § 1160(e)).

20

The McNary Court held that the statutory restriction on jurisdiction applied only to

21 “direct review of individual denials of SAW status,” and not to “collateral challenges to

22

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Case 2:14-cv-01026-TSZ Document 114 Filed 04/13/15 Page 14 of 39

1 unconstitutional practices and policies used by the agency in processing applications.”

2 Id. at 492. The Supreme Court reasoned:

3

To establish the unfairness of the INS practices, respondents in this case

adduced a substantial amount of evidence, most of which would have been

4

irrelevant in the processing of a particular individual application. Not only

would a court of appeals reviewing an individual SAW determination

5

therefore most likely not have an adequate record as to the pattern of INS’

allegedly unconstitutional practices, but it also would lack the factfinding

6

and record-developing capabilities of a federal district court.

7 Id. at 497. The McNary Court therefore refused to apply the statutory restriction on

8 challenges to the denial of SAW status because doing so would have been “the practical

9 equivalent of a total denial of judicial review of generic constitutional and statutory

10 claims.” Id.

11

The Ninth Circuit has “distilled two ‘guiding principles’” from McNary and

12 related decisions. See City of Rialto v. W. Coast Loading Corp., 581 F.3d 865, 874 (9th

13 Cir. 2009). First, to avoid a channeling mechanism, the claim at issue must challenge “a

14 ‘procedure or policy that is collateral to an alien’s substantive eligibility,’ for which ‘the

15 administrative record is insufficient to provide a basis for meaningful judicial review.’”

16 Id. (quoting Proyecto San Pablo v. INS, 189 F.3d 1130, 1138 (9th Cir. 1999) (quoting

17 Ortiz v. Meissner, 179 F.3d 718, 722 (9th Cir. 1999))). Second, the plaintiffs’ claim must

18 be ripe, meaning that the plaintiffs have “taken ‘the affirmative steps that [they] could

19 take before the INS blocked [their] path.’” Id. (alterations in original). This second

20 requirement is derived from Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43 (1993), which

21 observed that injunctive and declaratory judgment remedies are “discretionary, and courts

22

23

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1 traditionally have been reluctant to apply them to administrative determinations unless

2 these arise in the context of a controversy ‘ripe’ for judicial resolution.” 509 U.S. at 57.

3

In conducting the McNary analysis, the Ninth Circuit has focused on whether the

4 claim at issue would become moot if subjected to the administrative and judicial review

5 process. For example, in Ortiz, the plaintiffs filed suit to enforce a statutory provision

6 that allowed persons who had filed non-frivolous applications under an amnesty program

7 promulgated in 1986 to receive authorization to work in the United States pending the

8 “final determination” on their applications. 179 F.3d at 719. In concluding, despite the

9 channeling provision of the amnesty program, that the district court had properly

10 exercised jurisdiction over the plaintiffs’ interim-status claim, the Ninth Circuit reasoned:

11

Plaintiffs, according to the government, must wait until they have been

ordered deported to seek interim work authorization in a court of appeals

12

review of the deportation proceeding. Yet by that time, the period in which

plaintiffs claim they are entitled to work authorization would already have

13

passed. The legal issue would be moot.

14 Id. at 722.

15

The Ninth Circuit reached a similar result in Proyecto. In Proyecto, the plaintiffs

16 sought access to their prior deportation files, the contents of which were considered by

17 the INS in denying their applications for legalization under the amnesty scheme

18 implemented in 1986. 189 F.3d at 1134, 1137-38. Under the McNary doctrine, the Ninth

19 Circuit held that the district court had jurisdiction to consider the plaintiffs’ challenge to

20 the procedures for obtaining prior deportation files, observing that any judicial review of

21 a denial of a legalization application would be limited to the administrative record, and

22

23

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1 thus, prior deportation files received by the plaintiffs after the INS issued a final order 2 would be “of no use.” Id. at 1138.

3

With respect to the McNary inquiries and the mootness concerns expressed in

4 Ortiz and Proyecto, plaintiffs’ constitutional right-to-counsel claim differs from their

5 statutory claim alleging violation of INA § 240. With respect to the constitutional claim,

6 both prongs of the McNary standard are satisfied. First, the alleged right to counsel

7 involves a “procedure or policy” (or perhaps, the absence of one) that is collateral to the

8 substance of the underlying removal proceedings and, because an immigration judge is

9 unlikely to conduct the requisite Mathews balancing, the administrative record would be 10 insufficient to provide a basis for meaningful judicial review.10 Second, although no 11 named plaintiff has yet asked an immigration judge to appoint counsel, the constitutional 12 right-to-counsel claim is ripe because such request would be futile in light of the current 13 immigration laws and regulations. 14

15

16

17 10 In a pre-IIRIRA case, the Fifth Circuit held that, by pressing forward in removal proceedings without

an attorney, the plaintiff waived any right to counsel. Barthold v. INS, 517 F.2d 689 (5th Cir. 1975). The
18 plaintiff in Barthold was advised by the immigration judge that the proceedings could be adjourned so

that he could contact “Legal Services” to “see whether or not they will provide an attorney” for him. Id.

19 at 691. The Fifth Circuit reasoned that the plaintiff was thereby offered the opportunity to obtain free
legal services, and it concluded that the record did not support the plaintiff’s appellate attorney’s

20

suggestion that the plaintiff, who had been assisted by an interpreter, did not understand “Legal Services” operated pro bono. Id. The potential, in light of the analysis used in Barthold, for a juvenile to be

deemed to have waived the right-to-counsel claim by undergoing removal proceedings without an

21 attorney or by failing to persuade an immigration judge to hold an evidentiary hearing on the Mathews

factors also argues in favor of the conclusion that plaintiffs should be excused from exhaustion, under the

22 McNary doctrine, with respect to their due process claim.

23

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1

In addition, because plaintiffs base their constitutional right-to-counsel claim on

2 their particular interests, and the risks of erroneous deprivation they face, as juveniles,11

3 they are confronted with the type of mootness dilemma that Ortiz and Proyecto employed

4 McNary to solve. Plaintiffs will not remain minors for long. Four of the six remaining

5 named plaintiffs are already 16, and they are likely to become adults before having the

6 opportunity to present their right-to-counsel claim to an appropriate court of appeals.

7

Moreover, even if these four plaintiffs were to reach the court of appeals before

8 turning 18, chances are high that the clock would still wind down on their due process

9 right-to-counsel claim. Assuming that no Mathews balancing occurred during the 10 removal proceedings, the court of appeals would not have an adequate record, and 11

12 11 In asserting that minors have interests different from those of adults, plaintiffs rely heavily on In re

Gault, 387 U.S. 1 (1967). Gault concerned juvenile delinquency proceedings, which were considered

13 civil, but were punitive in their effect. In Gault, the juvenile was alleged to have engaged in lewd

telephone calls, which might have subjected an adult to a maximum penalty of $50 and imprisonment for

14 two months, but the juvenile was committed to the “State Industrial School” for the next six years, until
he reached the age of 21. Id. at 4, 7-9. Contrary to plaintiffs’ suggestion, Gault does not stand for the

proposition that minors are entitled to special treatment in the due process arena; rather Gault supports the
15 converse concept that juveniles should have the safeguards available to adults when they face similar

penal consequences. See id. at 29. Reference to Gault was equally unpersuasive in Machado v. Ashcroft,

16 E.D. Wash. Case No. 2:02-cv-66-FVS. See Order at 18-21, copy attached as Ex. A to Resp. to Mot. for

Prelim. Inj. (docket no. 51-1). In Machado, having considered Gault and similar authorities, Judge Van

17

Sickle reasoned that the juvenile plaintiff had not sufficiently distinguished between children and adults to justify disregarding Ninth Circuit precedent holding that adults have no due process right to counsel in

removal proceedings. Id. He left open the possibility, however, that a different result might be reached
18 under Mathews:

If the Court had concluded that it was appropriate to examine whether due process

19

required that counsel be appointed under the factors elucidated in Mathews . . . , these

features may have proven determinative. However, the Court does not reach that

20

analysis. The Court is bound by the Ninth Circuit’s precedent on this issue, and the

plaintiff has failed to demonstrate that this precedent should be ignored even under the

21

most compelling of facts.

Id. at 23. When Judge Van Sickle issued this decision, he did not have the benefit of the Supreme Court’s

22 guidance in Turner. See supra note 8.

23

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Case 2:14-cv-01026-TSZ Document 114 Filed 04/13/15 Page 18 of 39

1 lacking the necessary “factfinding and record-developing capabilities,” McNary, 498 U.S.

2 at 497, the court of appeals would need to remand for an immigration judge to conduct

3 the requisite hearing. As a result, prior to or during the course of any proceedings on

4 remand, most, if not all, of the remaining plaintiffs would cease to be juveniles. Thus,

5 channeling plaintiffs’ right-to-counsel claim to the court of appeals would be “the

6 practical equivalent of a total denial of judicial review.” See id. The Court therefore

7 holds that, pursuant to the McNary doctrine, plaintiffs are not required by §§ 1252(a)(5)

8 and (b)(9) to administratively exhaust their due process claim to appointment of counsel

9 at government expense.

10

The Court, however, reaches the opposite conclusion with respect to plaintiffs’

11 statutory claim that, absent an appointed attorney, they cannot take advantage of their

12 rights under INA § 240(b) to present evidence and cross-examine witnesses. Although

13 this claim involves a “procedure or policy” collateral to plaintiffs’ substantive eligibility,

14 it does not meet the other McNary criteria. Because the claim is predicated on statutory

15 rather than due process rights, the Mathews balancing standard does not apply and, as a

16 result, concerns about the adequacy of the administrative record are not warranted. In

17 addition, because the claim involves statutory rights, which an immigration judge must

18 and has authority to honor, plaintiffs cannot show ripeness by establishing the requisite

19 futility.

20

The conclusion that the Court lacks jurisdiction over plaintiffs’ statutory claim is

21 supported by Ching v. Mayorkas, 725 F.3d 1149 (9th Cir. 2013). In Ching, the plaintiffs

22 were a U.S. citizen and his wife, on whose behalf the husband sought an I-130 visa. Id.

23

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Case 2:14-cv-01026-TSZ Document 114 Filed 04/13/15 Page 19 of 39

1 at 1153. The wife had lawfully entered the United States as a nonimmigrant visitor and

2 then dated, married, and divorced another U.S. citizen. Id. During an investigation,

3 United States Citizenship and Immigration Services (“USCIS”) officers obtained a sworn

4 statement from the first husband indicating that the first marriage was a sham, and the

5 second husband’s I-130 visa petition was denied. Id. The plaintiffs sued, alleging that

6 USCIS had violated INA § 240(b) by not affording the plaintiffs an opportunity to cross-

7 examine the first husband about his sworn statement. Id. at 1154. The Ninth Circuit held

8 that, to the extent the plaintiffs claimed USCIS violated INA § 240(b), the district court

9 properly granted summary judgment because it lacked jurisdiction to consider the claim,

10 a petition for review to the court of appeals being the “sole and exclusive means” for

11 judicial review. Id. (citing 8 U.S.C. § 1252(a)(5)). Ching requires that plaintiffs’

12 statutory claim, which likewise asserts a violation of INA § 240(b), be channeled via

13 § 1252(a)(5) to the appropriate court of appeals.

14

Ching also supports the distinction being drawn here between plaintiffs’ statutory

15 and constitutional claims. In Ching, in addition to their assertion that USCIS violated

16 INA § 240(b), the plaintiffs alleged that their due process rights were infringed when they

17 were not permitted to cross-examine the first husband or the USCIS officer who took his

18 statement. The district court granted summary judgment against the plaintiffs, finding

19 that the opportunity to respond in writing to the first husband’s statement was sufficient

20 for due process. Id. at 1154. The Ninth Circuit employed the three-part balancing test

21

22

23

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Case 2:14-cv-01026-TSZ Document 114 Filed 04/13/15 Page 20 of 39

1 articulated in Mathews12 to reverse the district court’s decision on the due process claim.

2 Id. at 1157-59. In other words, in Ching, although the statutory and constitutional claims

3 sought identical relief, the channeling of the statutory claim to the court of appeals did 4 not affect the constitutional claim.13 The Court is persuaded that, in this case, the same

5 result is appropriate.

6

Channeling the statutory claim but not the constitutional claim is also consistent

7 with the First Circuit’s decision in Aguilar. Unlike plaintiffs in this case, the plaintiffs in

8 Aguilar did not seek counsel at government expense. Rather, the plaintiffs in Aguilar,

9 who were detained following a raid of a government contractor’s factory, alleged that the

10

11

12 With regard to the first Mathews factor concerning the plaintiffs’ interests in Ching, the Ninth Circuit

12 observed that the right “to live with and not be separated from one’s immediate family is ‘a right that
ranks high among the interests of the individual’ and that cannot be taken away without procedural due

13

process.” 725 F.3d at 1157. As to the second prong of the Mathews analysis, the Ninth Circuit concluded that the risk of erroneously finding a prior marriage fraudulent is “high” when the only evidence of fraud

is a six-sentence written statement of an ex-spouse, who might be motivated by malice, vindictiveness, or
14 jealously, and/or who might have been intimidated by an unexpected visit from government officers. Id.

at 1157-58. Finally, in assessing the third Mathews component, the Ninth Circuit considered the fact that

15 the process sought by plaintiffs, namely to cross-examine witnesses presented by the government, was
already statutorily guaranteed to aliens in removal proceedings, and thus, in the different context of

16

adjudicating an I-130 visa petition, such process would not likely pose “practical problems” or entail significant financial or administrative burdens. Id. at 1158-59.

17 13 Indeed, because the district court in Ching addressed the merits of the plaintiffs’ due process claim, the

Ninth Circuit had an adequate record for engaging in the Mathews balancing. In Ching, however, the

18 Mathews analysis was relatively straightforward, involving primarily the events leading to USCIS’s
procurement of the first husband’s statement, evidence proffered by the plaintiffs to rebut the allegation

that the previous marriage was a sham, and inferences about the manner in which an ex-spouse might
19 behave, particularly if the prior relationship was bona fide and intimate. See 725 F.3d at 1158. In

contrast, in this case, the Mathews inquiry is anticipated to be complex, perhaps requiring statistical

20 comparisons and expert testimony. Unlike the husband and wife in Ching, plaintiffs in this case seek

process that is not already available or statutorily authorized, and the evaluation of financial and

21

administrative burdens associated with the additional or alternative procedural safeguards proposed in this case might necessitate far more factfinding than transpired in Ching. The intricacies of applying Mathews

in this case precisely illustrate the point made in McNary about a district court, rather than a court of
22 appeals, constituting the appropriate forum for developing the requisite record. See 498 U.S. at 497.

23

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Case 2:14-cv-01026-TSZ Document 114 Filed 04/13/15 Page 21 of 39

1 government infringed their statutory rights by “barring their access to lawyers, interfering

2 with preexisting attorney-client relationships, and making it difficult to secure counsel of

3 their choosing.” 510 F.3d at 13. The First Circuit viewed the statutory right-to-counsel

4 claims as “commonplace,” frequently featured in petitions for judicial review of removal

5 orders, and thus not “sufficiently separate from removal proceedings to be considered

6 either ‘independent’ or ‘collateral.’” Id. In the First Circuit’s view, aliens “can receive

7 effective relief for their alleged violations of the right to counsel simply by navigating the

8 channels deliberately dredged by Congress,” as evidenced by the experiences of the

9 plaintiffs in Aguilar, who received continuances when requested for the purpose of

10 retaining counsel, and who generally secured changes in venue back to Massachusetts,

11 where they had been working and residing. Id. at 14. These same or similar methods

12 might be equally effective in ensuring that the statutory rights of plaintiffs in this case, to

13 present evidence and cross-examine witnesses during the course of removal proceedings,

14 are protected. Because continuances, changes of venue, and the like might enable at least

15 some alien minors to gather the relevant materials and prepare to adequately confront the

16 government’s evidence, including any witnesses, the Court concludes that § 1252(b)(9)

17 requires plaintiffs to exhaust these avenues of possible relief.

18

In rejecting the contention that McNary allowed the plaintiffs in Aguilar to

19 circumvent the channeling mechanism of § 1252(b)(9), the First Circuit observed:

20

As the Supreme Court suggested in McNary, requiring exhaustion of

certain pattern and practice claims might result in a total denial of

21

meaningful judicial review. The trick is to distinguish wheat from chaff,

that is, to distinguish what must be exhausted from what need not be

22

exhausted. In that endeavor, the most salient questions involve whether the

23

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Case 2:14-cv-01026-TSZ Document 114 Filed 04/13/15 Page 22 of 39

1

underlying claims are cognizable within the review process established by

Congress, and if so, whether enforcement of the exhaustion requirement

2

will allow meaningful judicial review without inviting an irreparable injury.

3 510 F.3d at 17 (citations omitted). The First Circuit distinguished, as does this Court,

4 between statutory claims that an immigration judge can adequately address during the

5 course of removal proceedings and the “rare” denial-of-due-process claims “that are

6 beyond the authority of the agency to adjudicate.” Id. at 18 n.4. With regard to the

7 former “commonplace” claims, the “vise-like grip of § 1252(b)(9)” cannot be avoided.

8 Id. at 9. As to the latter claims, which, if they exist at all, must include the constitutional

9 right-to-counsel claim asserted in this case, McNary preserves the “strong presumption in

10 favor of judicial review of administrative action.” See 498 U.S. at 498. Having thus

11 separated the proverbial wheat from chaff, the Court GRANTS in part defendants’

12 Rule 12(b)(1) motion and DISMISSES for lack of jurisdiction plaintiffs’ first claim for 13 violation of INA § 240.14 The Court further HOLDS that §§ 1252(a)(5) and (b)(9) do not

14 bar plaintiffs’ second claim under the Due Process Clause of the Fifth Amendment, and

15 now turns its attention to the issue of sovereign immunity.

16

3. Sovereign Immunity

17

The United States, as sovereign, is immune from suit “save as it consents to be

18 sued,” and any waiver of sovereign immunity must be “unequivocally expressed.”

19 United States v. Testan, 424 U.S. 392, 399 (1976). An action seeking injunctive relief

20

21 14 The Court need not address the parties’ arguments concerning the Criminal Justice Act (“CJA”)
because plaintiffs “nowhere allege that the CJA creates a freestanding right to appointed counsel.” See
22 Plas.’ Supp. Br. at 12-13 (docket no. 98).

23

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Case 2:14-cv-01026-TSZ Document 114 Filed 04/13/15 Page 23 of 39

1 against a federal officer in his or her official capacity is equivalent to an action against

2 the United States. Stimac v. Haag, 2010 WL 3835719 at *2 (N.D. Cal. Sep. 29, 2010)

3 (citing Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 687-88 (1949)).

4 In this case, defendants are each sued in their official capacity. See 2d Am. Compl.

5 ¶¶ 24-31 (docket no. 95). Plaintiffs therefore bear the burden of establishing the

6 existence of an unequivocal waiver of sovereign immunity. See, e.g., Baker v. United

7 States, 817 F.2d 560, 562 (9th Cir. 1987).

8

The only basis for jurisdiction pleaded by plaintiffs that might serve as a waiver

9 of sovereign immunity15 is a provision of the Administrative Procedures Act (“APA”),

10 namely 5 U.S.C. § 702, which reads in relevant part:

11

An action in a court of the United States seeking relief other than money

damages and stating a claim that an agency or an officer or employee

12

thereof acted or failed to act in an official capacity or under color of legal

authority shall not be dismissed nor relief therein be denied on the ground

13

that it is against the United States or that the United States is an

indispensable party. 14

The case on which plaintiffs principally rely, The Presbyterian Church (U.S.A.) v. United

15

States, 870 F.2d 518 (9th Cir. 1989), predates IIRIRA and the REAL ID Act, but more

16

recent authorities support plaintiffs’ position that sovereign immunity has been waived.

17

18

15 Plaintiffs have also pleaded that jurisdiction exists under 28 U.S.C. §§ 1331, 1651, & 2241, see 2d Am.

19 Compl. ¶ 8 (docket no. 95), but none of these statutes operates as a waiver of sovereign immunity. See
Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983) (“Section 1331 does not waive the government’s

20

sovereign immunity from suit.”); Stimac, 2010 WL 3835719 at *2 (Section 1651 “does not constitute a waiver of sovereign immunity.”); see also Rumsfeld v. Padilla, 542 U.S. 426, 447 (2004) (holding that the

proper respondent in a matter brought under § 2241 is the warden who has physical custody over the

21 habeas petitioner); O’Brien v. Moore, 395 F.3d 499, 508 (4th Cir. 2005) (Equal Access to Justice Act’s

“waiver of sovereign immunity for awards of attorneys fees does not extend to habeas corpus

22 proceedings”).

23

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1

Historically, courts relied on the “fiction” articulated in Ex parte Young, 209 U.S.

2 123 (1908), to permit claims for prospective injunctive relief against government officials

3 despite sovereign immunity. EEOC v. Peabody W. Coal Co., 610 F.3d 1070, 1085 (9th

4 Cir. 2010). Since 1976, however, courts have looked to § 702 of the APA to serve the

5 purposes of the Ex parte Young fiction in suits against federal officers; section 702 is

6 viewed as the requisite waiver of sovereign immunity for equitable actions brought under

7 28 U.S.C. § 1331. See id. at 1085-86; Gallo Cattle Co. v. U.S. Dep’t of Agric., 159 F.3d

8 1194, 1198 (9th Cir. 1998); see also Match-E-Be-Nash-She-Wish Band of Pottawatomi

9 Indians v. Patchak, 132 S. Ct. 2199, 2204 (2012); Pullman Constr. Indus., Inc. v. United

10 States, 23 F.3d 1166, 1168 (7th Cir. 1994) (observing that “the United States is no

11 stranger to litigation in its own courts” and that “Congress has consented to litigation in

12 federal courts seeking equitable relief from the United States” (citing 5 U.S.C. § 702 and

13 Bowen v. Mass., 487 U.S. 879 (1988))); Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1159-

14 60 (D. Minn. 1999).

15

The APA contains explicit exceptions to, and thereby limits, its waiver of

16 sovereign immunity. See Gallo, 159 F.3d at 1198; see also Patchak, 132 S. Ct. at 2204-

17 05. Section 702’s waiver of sovereign immunity does not extend to (i) claims as to which

18 a statute precludes judicial review, (ii) claims that challenge an action committed by law

19 to agency discretion, or (iii) claims that seek review of a decision that is not final within

20 the meaning of the APA. See 5 U.S.C. § 701(a) (“This chapter applies, according to the

21 provisions thereof, except to the extent that-- (1) statutes preclude judicial review; or

22 (2) agency action is committed to agency discretion by law.”); 5 U.S.C. § 704 (“Agency

23

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Case 2:14-cv-01026-TSZ Document 114 Filed 04/13/15 Page 25 of 39

1 action made reviewable by statute and final agency action for which there is no other

2 adequate remedy in a court are subject to judicial review.”); see also Patchak, 132 S. Ct.

3 at 2204-05; Gallo, 159 F.3d at 1198; Shanti, 36 F. Supp. 2d at 1160. An action is final if

4 it “mark[s] the consummation of the agency’s decision making process,” is not “merely

5 tentative or interlocutory” in nature, and is “one by which rights or obligations have been

6 determined, or from which legal consequences will flow.” Gallo, 159 F.3d at 1198-99.

7

The Court is satisfied that the exceptions to § 702’s waiver of sovereign immunity

8 do not apply with regard to plaintiffs’ constitutional right-to-counsel claim. Having

9 performed the McNary analysis, the Court concludes that no statute precludes judicial

10 review of such claim, and thus § 701(a)(1) is no obstacle. Moreover, the issue of whether

11 plaintiffs are entitled to an attorney at government expense is undisputedly not committed

12 to agency discretion by law and, as a result, § 701(a)(2) has no relevance. Finally, the

13 matter comports with § 704’s finality requirement because neither immigration judges

14 nor the BIA have the authority to grant plaintiffs the relief they seek. In essence, as noted

15 by plaintiffs’ counsel during oral argument, the answer to the sovereign immunity

16 question tracks the result of the McNary inquiry; because §§ 1252(a)(5) and (b)(9) do not

17 channel plaintiffs’ constitutional right-to-counsel claim away from this Court, sovereign

18 immunity is waived. Cf. Morrison-Knudsen Co. v. CHG Int’l, Inc., 811 F.2d 1209, 1214

19 (9th Cir. 1987) (“[The Federal Savings and Loan Insurance Corporation’s] effort to

20 recharacterize its essential argument as a sovereign immunity claim is disingenuous. If

21 the pertinent statutes indeed confer upon FSLIC exclusive jurisdiction over the matters at

22 issue, then the sovereign immunity issue does not arise. If they do not, then the immunity

23

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Case 2:14-cv-01026-TSZ Document 114 Filed 04/13/15 Page 26 of 39

1 contention is unavailing. The sovereign immunity terminology . . . adds nothing to

2 FSLIC’s argument.”).

3

The finding of sovereign-immunity waiver in this case is consistent with other

4 decisions. For example, with regard to the claims of a minor, who was an American

5 citizen seeking to prevent the removal of his undocumented alien mother on the ground

6 that his mother’s removal would violate his own constitutional rights, the Sixth Circuit

7 held that the district court had subject-matter jurisdiction pursuant to 28 U.S.C. § 1331,

8 and that the APA operated to waive sovereign immunity. See Hamdi ex rel. Hamdi v.

9 Napolitano, 620 F.3d 615 (6th Cir. 2010). Like remaining plaintiffs in this case, the

10 plaintiff in Hamdi had no other avenue for presenting his constitutional claims; he could

11 not have raised them in either his mother’s removal proceedings or on judicial review.

12 See id. at 620-24.

13

Neither Ardestani v. INS, 502 U.S. 129 (1991),16 which was cited by the Sixth

14 Circuit in Hamdi, nor Al-Nashiri v. MacDonald, 2012 WL 1642306 (W.D. Wash. 15 May 10, 2012),17 require a different result. Although both Ardestani and Al-Nashiri rely

16

17

16 In Ardestani, the petitioner successfully sought asylum during the course of deportation proceedings
18 and was awarded attorney fees by the immigration judge pursuant to the Equal Access to Justice Act

(“EAJA”) on the ground that she was the prevailing party and the INS’s position had not been

19 “substantially justified.” 502 U.S. at 131. The Supreme Court concluded that EAJA, which operates as a
waiver of sovereign immunity, did not extend to administrative deportation proceedings. Id. at 132-34,

20

137-38. In reaching this decision, the Ardestani Court reiterated that the INA “expressly supersedes” the APA. Id. at 133.

21 17 In Al-Nashiri, the plaintiff argued that the APA waived sovereign immunity as to his claim that the
official who convened a military commission against him, relating to his alleged role in al Qaeda terrorist
22 attacks, acted in an unconstitutional manner. 2012 WL 1642306 at *1, *4, & *8. The district court ruled
that 28 U.S.C. § 2241(e)(2), which relates to certain claims of an alien “enemy combatant,” constituted a

23

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1 on jurisdiction-stripping or channeling provisions to reject assertions of a waiver of

2 sovereign immunity, the cases are distinguishable because neither case involved a claim,

3 like the one at issue here, that is eligible for McNary treatment. Moreover, neither case

4 concerned IIRIRA or the REAL ID Act, Ardestani having been decided before those

5 statutes were enacted and Al-Nashiri dealing exclusively with the Military Commissions

6 Act of 2006. Thus, with respect to remaining plaintiffs’ constitutional claim, the Court is

7 persuaded that sovereign immunity has been unequivocally waived, and to the extent

8 defendants’ Rule 12(b)(1) motion to dismiss is premised on sovereign immunity, it is

9 DENIED.

10 B. 11

Failure to State a Claim Without conceding that the Mathews balancing standard applies to plaintiffs’ due

12 process claim, defendants contend that plaintiffs do not state a “plausible” basis for relief 13 under Mathews.18 Defendants’ Rule 12(b)(6) motion, however, ignores the allegations of

14 the Second Amended Complaint, relies on facts outside the pleadings, and invites the

15 Court to engage in the type of analysis more appropriately reserved for summary

16

17 statute precluding judicial review that thwarted the plaintiff’s invocation of APA § 702. Id. at *8 (citing
APA § 701(a)(1)).

18 18 A complaint must offer “more than labels and conclusions,” contain more than a “formulaic recitation

of the elements of a cause of action,” and indicate more than mere speculation of a right to relief. Bell
19 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint may be lacking for one of two reasons:

(i) absence of a cognizable legal theory, or (ii) insufficient facts under a cognizable legal claim. See

20 Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). In ruling on a motion to

dismiss, the Court must assume the truth of the plaintiff’s allegations and draw all reasonable inferences

21

in the plaintiff’s favor. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). The question for the Court is whether the facts in the complaint sufficiently state a “plausible” claim. Twombly, 550 U.S.

at 570 (“we do not require heightened fact pleading of specifics, but only enough facts to state a claim to
22 relief that is plausible on its face”).

23

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1 judgment or trial. The Court declines to prematurely evaluate the merits of plaintiffs’

2 constitutional claim and, for the reasons discussed below, DENIES defendants’

3 Rule 12(b)(6) motion.

4

Historically, right-to-counsel claims under the Due Process Clause of the Fifth

5 Amendment in the immigration context were analyzed under a two-part standard:

6 (i) whether the proceedings were rendered “fundamentally unfair,” and (ii) whether the

7 alien was thereby prejudiced. See, e.g., Lin v. Ashcroft, 377 F.3d 1014, 1023-24 (9th Cir.

8 2004); Dearinger ex rel. Volkova v. Reno, 232 F.3d 1042, 1045 (9th Cir. 2000). The

9 procedural postures of previous right-to-counsel cases, however, differ from that of the

10 one before the Court. Those cases all involved either direct review of a removal or other

11 BIA order or collateral attack of a removal order being used as evidence in a prosecution 12 for illegal reentry.19

13

Cases more procedurally analogous to the matter before the Court indicate that

14 Mathews sets forth the appropriate test. See Walters v. Reno, 145 F.3d 1032, 1043-44

15 (9th Cir. 1998); see also Ching v. Mayorkas, 725 F.3d 1149, 1157-59 (9th Cir. 2013). At

16 oral argument, counsel for defendants seemed to suggest that Mathews would apply with

17 respect to “deportable” aliens, but not as to “inadmissible” aliens. Defendants, however,

18

19 19 See Mohammed v. Gonzales, 400 F.3d 785 (9th Cir. 2005) (review of BIA decisions); Lin, 377 F.3d at

1019 (review of BIA decision); United States v. Gasca-Kraft, 522 F.2d 149, 150 (9th Cir. 1975) (appeal

20 from conviction for illegal reentry); Murgia-Melendrez v. INS, 407 F.2d 207 (9th Cir. 1969) (review of

BIA decision); see Michelson v. INS, 897 F.2d 465, 466 (10th Cir. 1990) (review of deportation order);

21

United States v. Saucedo-Velasquez, 843 F.2d 832, 833 (5th Cir. 1988) (appeal from conviction for illegal reentry); Aguilera-Enriquez v. INS, 516 F.2d 565 (6th Cir. 1975) (review of deportation order); see also

Dearinger, 232 F.3d at 1043-44 (habeas review of denial of asylum); United States v. Segundo, 2010 WL
22 4791280 (S.D. Tex. Nov. 16, 2010) (dismissal of indictment charging illegal reentry).

23

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1 have cited no authority to support the proposition that such distinction can now be drawn,

2 in the context of analyzing what process is due to such individuals, in light of IIRIRA’s

3 merger of matters involving inadmissible and deportable aliens into one proceeding

4 known as “removal.” The Court is satisfied that plaintiffs’ due process right-to-counsel

5 claim requires a weighing of the three factors articulated in Mathews, namely, the nature

6 of plaintiffs’ interest, the risk of erroneous deprivation, and the fiscal or administrative

7 burdens on the government associated with additional or substitute safeguards. See 424

8 U.S. at 335; see also Turner v. Rogers, 131 S. Ct. 2507, 2517-18 (2011).

9

In Turner, in which the Supreme Court employed Mathews, a noncustodial parent,

10 who was incarcerated until he “purged” himself of contempt by making the requisite

11 child support payments, asserted that his due process rights had been violated by South

12 Carolina’s failure to appoint counsel to represent him. 131 S. Ct. at 2512-13, 2515-16.

13 In concluding that due process “does not automatically require the provision of counsel at

14 civil contempt proceedings . . . even if [the indigent] individual faces incarceration,” id.

15 at 2520 (emphasis in original), the Turner Court was persuaded that a substitute set of 16 safeguards20 would sufficiently reduce the risk of erroneous deprivation, and that,

17 because the opposing party (the custodial parent) was likewise unrepresented by counsel,

18 the playing field was appropriately level, id. at 2519. The Supreme Court expressed

19 concern that requiring South Carolina to provide counsel to noncustodial parents would

20
20 The alternatives to the appointment of counsel included (i) providing notice to the noncustodial parent
21 that “ability to pay” constitutes a critical issue, (ii) using a form to elicit relevant financial information,
(iii) allowing the noncustodial parent to be heard about his or her financial status, and (iv) requiring the
22 court to enter findings about the “ability to pay.” 131 S. Ct. at 2519.

23

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1 “create an asymmetry” unfavorable to the custodial parent to whom child support

2 payments are owed. Id.

3

In Turner, the Supreme Court left open the issue of whether, when the government

4 has “counsel or some other competent representative” in the proceeding, the individual

5 involved is owed more process than the privilege of retaining an attorney. See id. at

6 2520. The Turner Court similarly reserved ruling on “what due process requires in an

7 unusually complex case” when the individual “can fairly be represented only by a trained

8 advocate.” Id. The right-to-counsel claim asserted by plaintiffs in this case falls squarely

9 within the intersection of the questions unanswered in Turner. The removal proceedings

10 at issue in this case pit juveniles against the full force of the federal government ‒ the

11 government initiates the proceedings, it is represented in them, and its discretion in 12 executing removal orders is insulated from judicial review.21 Moreover, courts have

13 repeatedly recognized “[w]ith only a small degree of hyperbole” that the immigration 14 laws are “second only to the Internal Revenue Code in complexity.”22 Baltazar-Alcazar

15

16
21 Prior to the passage of IIRIRA, an alien who appealed a decision of the BIA was automatically entitled

17

to a stay of removal; IIRIRA eliminated this statutory provision. Andreiu v. Ashcroft, 253 F.3d 477, 47980 (9th Cir. 2001). A stay of removal must now be obtained from a court of appeals; in the Ninth Circuit,

the standard for obtaining such stay is a showing of either (i) probable success on the merits and the
18 possibility of irreparable injury or (ii) serious legal questions on the merits and a balance of hardships

tipping sharply in the movant’s favor. Id. at 480-84; see also Nken v. Holder, 556 U.S. 418 (2009).

19
22 For example, navigating just through the provisions relating specifically to juveniles is itself difficult.

20

In defining “inadmissible” aliens as those “present without admission or parole,” Congress included an exception for certain battered women and children, which applies when (i) the alien is a petitioner under

the Violence Against Women Act of 1994, (ii) the alien or the alien’s child has been “battered or
21 subjected to extreme cruelty” by an enumerated household member, and (iii) a “substantial connection”
exists between such battery or extreme cruelty and the alien’s unlawful entry into the United States.

22 8 U.S.C. § 1182(a)(6)(A)(ii); see 8 U.S.C. § 1229b(b)(2)(A) (allowing the Attorney General to “cancel
removal of, and adjust to the status of an alien lawfully admitted for permanent residence” an alien

23

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1 v. INS, 386 F.3d 940, 948 (9th Cir. 2004). With this perspective in mind, the Court turns

2 to the Mathews factors.

3

1. First Mathews Factor: Nature of Interest

4

In their motion to dismiss, defendants contend that the requisite liberty interest is

5 not at stake, stating that “deportation is not punishment.” Defs.’ Mot. at 21 (docket 6 no. 80). Defendants’ assertion misses the mark. Deportation has been described as “a

7 drastic measure and at times the equivalent of banishment or exile” ‒ it is a “forfeiture for

8 misconduct” and “a penalty.” INS v. Errico, 385 U.S. 214, 225 (1966). In contrast,

9 “exclusion” requires no showing of wrongdoing, only a finding of inadmissibility. See

10 Dormescar, 690 F.3d at 1260; see also 8 U.S.C. § 1229a(e)(2)(A). The terms

11 “deportation” and “exclusion,” however, no longer play their historical roles because of 12 the changes wrought by IIRIRA, and plaintiffs in this case are facing “removal.”

13

14

15 qualifying as a battered spouse or child); see also Lopez-Birrueta v. Holder, 633 F.3d 1211, 1216 (9th
Cir. 2011) (differentiating between “battery,” which involves an act or threatened act of violence, and

“extreme cruelty,” which connotes “something other than physical assault, presumably actions in some
16 way involving mental or psychological cruelty”). Congress has also provided a mechanism for certain

juveniles to obtain “special immigrant” status and thereby apply for permanent residency. See Perez-

17 Olano v. Gonzalez, 248 F.R.D. 248, 252 (C.D. Cal. 2008). For a minor to be eligible for “special

immigrant” status, (i) the minor must be dependent on a juvenile court or state agency and qualify for

18 long-term foster care because of abuse, neglect, or abandonment, (ii) an administrative or judicial
determination must be made that the minor’s best interest would not be served by return to his or her

home country, and (iii) the Secretary of Homeland Security must consent. Id. at 253; see 8 U.S.C.
19 § 1101(a)(27)(J); see also 8 C.F.R. § 204.11(c). A minor granted “special immigrant” status may apply

for adjustment to permanent residence status pursuant to 8 U.S.C. § 1255; however, once a minor is in

20 removal proceedings, he or she may seek an adjustment of status only from the immigration judge or

BIA. 8 C.F.R. §§ 245.2(a)(1) & 1245.2(a)(1)(i). In addition, Congress has crafted special rules for

21

children from contiguous countries who are unaccompanied and (i) have been victims of trafficking in persons, (ii) have credible fear of persecution if returned to their country of nationality or last residence,

or (iii) are unable to make independent decisions to withdraw applications for admission to the United
22 States. 8 U.S.C. § 1232; see infra note 27.

23

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1

In discounting the nature of plaintiffs’ interest, defendants rely on Turner, in

2 which the Supreme Court observed that, in the civil context, incarceration has been

3 deemed a necessary, but not sufficient, prerequisite to finding a right to counsel under the

4 Due Process Clause. See 131 S. Ct. at 2517. Defendants, however, cite no authority for

5 the proposition that the Court must focus on the “administrative act” of removal itself,

6 see Defs.’ Mot. at 21, and ignore the potential effect of removal, which might be the same 7 or worse than incarceration for some minor aliens.23 Thus, for purposes of ruling on

8 defendants’ motion to dismiss, the allegations in the Second Amended Complaint, which

9 the Court must accept as true, support the likely consequences of plaintiffs returning to

10 their homelands.24

11

2. Second Mathews Factor: Risk of Erroneous Deprivation

12

Defendants offer three reasons why plaintiffs cannot establish the requisite risk of

13 erroneous deprivation: (i) the risk of error in removal decisions is the same for juveniles

14

23 Indeed, defendants do not, and cannot on a Rule 12(b)(6) motion, contest the allegations of the Second
15 Amended Complaint. The operative pleading indicates that the three siblings, J.E.F.M., J.F.M., and

D.G.F.M., fled El Salvador because they had become targets of a gang, which had murdered their father

16 in front of them. 2d Am. Compl. ¶¶ 66-73 (docket no. 95). Their parents, both pastors, had been working

to encourage youth to leave gangs, and after their father was killed, their mother fled the country, leaving

17

them in the care of their grandmother. Id. at ¶ 66. They were threatened with harm if they did not join the gang; at the time, the youngest sibling was only nine years old. Id. at ¶¶ 67, 70, & 72. J.E.V.G.

similarly alleges that he left El Salvador because he feared gang violence. Id. at ¶ 109. F.LB. indicates
18 that he was a victim of abuse at the hands of his alcoholic father in Guatemala, id. at ¶ 74, and M.A.M.

expresses concern about his inability to adapt to his country of origin in light of the tender age at which he

19 left and about the absence of a caretaker in his native land, id. at ¶¶ 81-86 (indicating that, shortly before

M.A.M. turned eight, his father was attacked with a machete and became, as a result, profoundly disabled;

20

his grandmother having grown elderly and ill, and having no one else in Honduras to care for him, M.A.M. came to the United States to be reunited with his mother).

21 24 Defendants’ argument that the interests of the named plaintiffs are not typical of those of the members
of the putative class does not negate the dire predictions of harm, and is more appropriately addressed in
22 connection with a motion to certify a class, see Fed. R. Civ. P. 23(a), or at a later stage of this litigation.

23

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1 as it is for adults; (ii) children already receive additional process designed to reduce the 2 risk of erroneous removal decisions; and (iii) the availability of appellate and judicial

3 review is a sufficient substitute for the assistance of counsel in removal proceedings. The 4 first two arguments require evidentiary support25 and are not properly before the Court on 5 a Rule 12(b)(6) motion.26 The third contention runs contrary to common sense. Under

6

7

25 In response to defendants’ arguments, plaintiffs have submitted five declarations, three from attorneys,

8 one from a law student, and one from a volunteer for a faith-based organization, concerning the manner in
which particular immigration judges handle removal proceedings. See Dubale Decl. (docket no. 99);

9

Flores Decl. (docket no. 100); Gaughan Decl. (docket no. 101); Pollman Decl. (docket no. 102); Scholtz Decl. (docket no. 103). The Court DECLINES to consider these declarations because doing so would

convert the pending motion to dismiss into one for summary judgment. See Fed. R. Civ. P. 12(d).
10

26 In addition, defendants’ assertion of equivalent risk among minors and adults is inconsistent with their

11 representation that special treatment is afforded to children in removal proceedings. If the risk was in fact
comparable for the two populations, then presumably no additional procedural protections would exist for

juveniles. Youth, however, generally correlates with a lack of proficiency in reading and comprehension,
12 even in a native language. For those whose school-age years were stained by violence, poverty, parental

neglect, or similar hardships, literacy might be an as-yet unachieved goal. Even if minors are, however,

13 able to understand the notices to appear and other documents related to removal proceedings, they are not

necessarily the household members who retrieve or sort the mail, and the presumptions usually made

14

when materials are properly addressed to adults might not be appropriate. Moreover, even assuming children receive hearing notices and grasp their meaning, they might lack the ability to travel to and

attend such hearings, particularly if they are of an age rendering them ineligible to drive or to travel
15 unaccompanied by air. Finally, even when juveniles successfully navigate themselves to removal

proceedings, age might still play a role in increasing their risk of receiving an erroneous ruling. See 2d

16 Am. Compl. ¶ 42 (suggesting that children are taught not to challenge adult authority and are more

susceptible to leading questions and other forms of adult influence). The question that must be addressed

17

in this case is whether the appointment of counsel at government expense is the only effective means of reducing the risk of erroneous removal decisions for minors. Defendants’ contention that the special rules

governing “juvenile dockets” serve as an effective substitute for the appointment of counsel currently
18 lacks statistical support. In opposing plaintiffs’ earlier motion for a preliminary injunction, defendants

cited a report indicating that, in the first half of 2014, 42% of children having no attorney were permitted

19 to remain in the United States. See http://trac.syr.edu/immigration/reports/359/. Defendants argued these
statistics show that not every minor lacking legal representation will suffer a due process violation. The

20

same report, however, revealed that, over the same period, juveniles having counsel received a favorable ruling 66% of the time. Id. In focusing on the percentage of unrepresented minors who avoided removal,

defendants ignored the disparity in outcomes between those who have counsel and those who do not.

21 When the statistics for the years 2005 through 2014 are considered, the gap is even wider, i.e., 10%

versus 47% success rates for unrepresented and represented juveniles, respectively. Id. If counsel was

22 indeed unnecessary, the percentages would presumably be more comparable.

23

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Case 2:14-cv-01026-TSZ Document 114 Filed 04/13/15 Page 34 of 39

1 this theory, counsel would be unnecessary even in a criminal proceeding because the 2 accused, if convicted, could always appeal. Moreover, the argument ignores the fact that

3 review is generally limited to the administrative record, see 8 U.S.C. § 1252(b)(4)(A),

4 and that the absence of counsel in the underlying proceeding is likely to affect the shape

5 and scope of such record. The Court also observes that, despite the safeguards touted by

6 defendants, at least one named plaintiff, J.E.V.G., was improperly ordered removed in

7 absentia. Defendants’ concession in this regard supports a “plausible” claim that the 8 current procedures available to juveniles27 are not an adequate substitute for the

9 appointment of counsel at government expense. Whether plaintiffs can ultimately prevail

10 on this issue is a question for another day.

11

3. Third Mathews Factor: Fiscal and Administrative Burdens

12

Although plaintiffs’ right-to-counsel claim poses significant questions about

13 feasibility and cost, the Court cannot resolve those issues in the context of defendants’

14 Rule 12(b)(6) motion. The parties have not indicated either the percentage of cases

15 involving unaccompanied minors or the percentage of cases in which an attorney was

16 retained, secured from a pro bono panel, or provided under either HHS’s or the justice

17

27 Pursuant to the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008
18 (“TVPRA”), the Secretary of Health and Human Services (“HHS”) is “authorized to appoint independent

child advocates for child trafficking victims and other vulnerable unaccompanied alien children.”

19 8 U.S.C. § 1232(b)(6)(A); see also 6 U.S.C. § 279(g)(2) (an “unaccompanied alien child” is an individual
who “has no lawful immigration status” in the United States, has not attained the age of 18, and has no

20

parent or legal guardian in the United States available to “provide care and physical custody”). Child advocates have historically been sited only in Chicago, Illinois and Harlingen, Texas, but in 2013,

Congress required that, within two years, the Secretary of HHS appoint child advocates at three new

21 detention locations, and that, within three years, child advocates be available at yet another three sites.

8 U.S.C. § 1232(c)(6)(B)(i)&(ii). Defendants’ Rule 12(b)(6) motion is not the appropriate vehicle for

22 considering whether child advocates can sufficiently reduce the risk of error in removal proceedings.

23

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1 AmeriCorps program. Moreover, no estimates have been provided concerning either the

2 amount of funding necessary to appoint counsel for each juvenile desiring an attorney but

3 lacking the means to retain one28 or the financial burden that might be associated with

4 less expansive schemes.29

5

Rather than attempting to quantify the financial and administrative burdens

6 associated with plaintiffs’ requested relief or possible alternatives, defendants speak

7 broadly in “slippery slope” terms. They express concern about the wheels of removal

8 proceedings involving minors grinding to a halt if the government is required to provide

9 counsel for every juvenile in a removal proceeding. Defendants assert that the effect of a

10 ruling favorable to plaintiffs would be to encourage even more youngsters to journey

11 illegally to the United States. They also seem to fear that the Court will inadvertently

12

13

28 The TVPRA requires the Secretary of HHS to “ensure, to the greatest extent practicable and consistent with” INA § 292 (8 U.S.C. § 1362) that all unaccompanied minors “have counsel to represent them in

legal proceedings or matters and protect them from mistreatment, exploitation, and trafficking.” 8 U.S.C.
14 § 1232(c)(5). Defendants represent that $9 million has been allocated to perform this mandate and

provide attorneys to 2,600 unaccompanied minors. See Reply at 2 n.2 (docket no. 104). Defendants have

15 also indicated that, in the fall of 2014, the Department of Justice and the Corporation for National and
Community Service implemented a program known as “justice AmeriCorps,” which will enroll

16

approximately 100 lawyers and paralegals to provide services to “certain children who have crossed the U.S. Border without a parent or legal guardian.” See http://www.nationalservice.gov/newsroom/press-

releases/2014/justice-department-and-cncs-announce-new-partnership-enhance. Defendants have offered

17 no projections concerning the anticipated number of indigent juveniles who are not eligible for either the

HHS or justiceAmeriCorps program or the amount needed to provide attorneys to all such youngsters.

18 29 For example, an alternative might be to employ, for the purposes of assisting minors demonstrating

financial need, one attorney for each site at which removal proceedings are conducted. Such safeguard
19 would presumably entail much less cost than the remedy plaintiffs seek, but it might provide equally

effective relief. Another possibility would be to appoint counsel only during administrative appeals

20 and/or for purpose of judicial review. If a lawyer concluded that no colorable argument could be made

before the BIA and/or a court of appeals, then he or she could simply file a statement to that effect, in the

21

same manner that appointed counsel in criminal cases handle frivolous appeals. Under this scheme, juveniles whose claims could be quickly and favorably adjudicated would not be unnecessarily provided

an attorney, and cases involving youngsters having no legitimate basis for remaining in the United States
22 would be efficiently handled.

23

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1 create a loophole through which parents, guardians, or other adult aliens might receive

2 the services of an appointed attorney. Cf. 8 U.S.C. § 1101(a)(27)(J)(iii)(II) (explicitly

3 addressing a similar concern: “no natural parent or prior adoptive parent of any alien

4 provided special immigrant status . . . shall thereafter, by virtue of such parentage, be

5 accorded any right, privilege, or status under this chapter”). Although the financial

6 constraints and border-policing concerns raised by defendants must play a role in any

7 analysis concerning plaintiffs’ assertion of a right to appointed counsel under the Due

8 Process Clause of the Fifth Amendment, at this juncture, they are not sufficiently

9 quantified or developed to allow the Court to engage in the balancing required by

10 Mathews.

11 C. 12

Classwide Relief In their supplemental brief in support of their motion to dismiss, defendants ask

13 the Court to strike plaintiffs’ request for injunctive relief on behalf of the putative class.

14 The INA makes clear that the Court lacks jurisdiction to grant classwide injunctive relief.

15 See Rodriguez v. Hayes, 591 F.3d 1105, 1119 (9th Cir. 2009) (quoting AAADC II, 525

16 U.S. at 481-82). The Court may, however, enter a classwide declaratory judgment. Id.

17 In Rodriguez, the Ninth Circuit interpreted 8 U.S.C. 1252(f)(1), which provides:

18

Regardless of the nature of the action or claim or of the identity of the party

or parties bringing the action, no court (other than the Supreme Court) shall

19

have jurisdiction or authority to enjoin or restrain the operation of the

provisions of part IV of this subchapter [8 U.S.C. §§ 1221-1232], as

20

amended by the Illegal Immigration Reform and Immigrant Responsibility

Act of 1996, other than with respect to the application of such provisions to

21

an individual alien against whom proceedings under such part have been

initiated.

22

23

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1 8 U.S.C. § 1252(f)(1). The Ninth Circuit concluded that the terms “enjoin” and

2 “restrain,” as used in § 1252(f)(1), have different meanings, and that neither encompasses

3 declaratory relief. 591 F.3d at 1119. Enjoin refers to permanent injunctions, while

4 restrain connotes temporary or preliminary injunctive relief. Id. (citing Arevalo v.

5 Ashcroft, 344 F.3d 1, 7 (1st Cir. 2003)). Unlike provisions relating to state taxes30 and

6 state public utility rates,31 § 1252(f)(1) does not also include the word “suspend,” which

7 has been interpreted to cover declaratory relief, and the Ninth Circuit reasoned that

8 Congress knew it was leaving open the possibility of classwide declaratory relief when it

9 omitted the term “suspend” from § 1252(f)(1). Id. (citing Cal. v. Grace Brethren Church,

10 457 U.S. 393, 408 (1982)).

11

The Third Circuit has reached a similar result. See Alli v. Decker, 650 F.3d 1007,

12 1014-15 (3d Cir. 2011) (“declaratory relief will not always be the functional equivalent of

13 injunctive relief” and the “distinct purpose and effect of a declaration, as compared to an

14 injunction, presents an entirely plausible basis upon which Congress might choose to bar

15 one form of relief but not the other”). In Alli, the Third Circuit explained that, although

16 the district court could enter declaratory judgment in favor of the class, such declaration

17

18 30 28 U.S.C. § 1341 (“The district courts shall not enjoin, suspend or restrain the assessment, levy or
collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts

of such State.”).
19

31 28 U.S.C. § 1342 (“The district courts shall not enjoin, suspend or restrain the operation of, or

20 compliance with, any order affecting rates chargeable by a public utility and made by a State
administrative agency or a rate-making body of a State political subdivision, where: (1) Jurisdiction is

21

based solely on diversity of citizenship or repugnance of the order to the Federal Constitution; and, (2) The order does not interfere with interstate commerce; and, (3) The order has been made after

reasonable notice and hearing; and, (4) A plain, speedy and efficient remedy may be had in the courts of
22 such State.”).

23

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1 “would not ‒ indeed, by the plain terms of the statute, could not ‒ form the basis for

2 classwide injunctive relief.” Id. at 1015. Rather, after securing a declaratory judgment,

3 each individual class member would have to separately invoke it as a ground for

4 individual injunctive relief, which “is expressly permitted under § 1252(f)(1).” Id.; see

5 also id. at 1015 n.13 (observing that, although “the judiciary has ‘long presumed that

6 officials of the Executive Branch will adhere to the law as declared by the court’” the

7 recent position of the Department of Justice is that, “at least under certain circumstances,

8 this presumption applies only after appellate review is exhausted”).

9

In sum, § 1252(f)(1) does not preclude the Court from granting a preliminary or

10 permanent injunction as to “an individual alien against whom proceedings . . . have been

11 initiated.” Section 1252(f)(1), however, deprives the Court of jurisdiction to provide

12 injunctive relief to a class. If appropriate, the Court could enter a classwide declaratory

13 judgment, but the enforcement of such decision would have to be on a case-by-case basis.

14 The Court therefore GRANTS in part defendants’ Rule 12(b)(6) motion to dismiss, and

15 STRIKES plaintiffs’ request for classwide injunctive relief.

16 Conclusion

17

For the foregoing reasons, defendants’ motion to dismiss pursuant to Federal

18 Rules of Civil Procedure 12(b)(1) and 12(b)(6), docket no. 80, is GRANTED in part and

19 DENIED in part. The claims of G.D.S., A.E.G.E., and G.J.C.P. are DISMISSED without

20 prejudice. Plaintiffs’ first claim for violation of INA § 240 is DISMISSED for lack of

21 jurisdiction pursuant to 8 U.S.C. §§ 1252(a)(5) and (b)(9). Plaintiffs’ request for

22 classwide injunctive relief is STRICKEN pursuant to 8 U.S.C. § 1252(f)(1), but

23

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Case 2:14-cv-01026-TSZ Document 114 Filed 04/13/15 Page 39 of 39

1 plaintiffs’ prayer for a classwide declaratory judgment and individual injunctive relief

2 will remain in the case. Defendants’ motion to dismiss is otherwise DENIED.

3

IT IS SO ORDERED.

4

Dated this 13th day of April, 2015.

5 6

A

7

Thomas S. Zilly United States District Judge

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

ORDER - 39

 
 Case 2:14-cv-01026-TSZ Document 174 Filed 08/27/15 Page 1 of 9

1

2

3

UNITED STATES DISTRICT COURT

4

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

5

J.E.F.M., et al., 6

Plaintiffs, 7
v. 8
LORETTA E. LYNCH, et al., 9
Defendants. 10

C14-1026 TSZ ORDER

11

By Minute Order entered June 19, 2015, docket no. 160, the Court DENIED the

12 previously deferred portion of defendants’ motion to hold all deadlines in abeyance,

13 docket no. 133, and DENIED without prejudice plaintiffs’ motion for class certification,

14 docket no. 117, indicating that it would explain its reasons in a separate order. Before the

15 Court could issue such order, defendants filed two motions, one for clarification of the

16 above-described Minute Order and for a protective order, docket no. 163, and another to

17 dismiss as moot the claims of five of the six remaining plaintiffs, docket no. 162. Having

18 reviewed all papers filed in support of, and in opposition to, the additional motions, as

19 well as the two earlier motions, the Court now enters the following order.

20 Background

21

At the time this action commenced, the six remaining plaintiffs were juveniles

22 who asserted, on behalf of themselves and others similarly situated, a due process right to

23

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1 have attorneys appointed to represent them at government expense during the course of

2 removal proceedings. By Order entered April 13, 2015, docket no. 114, the Court

3 concluded that it has jurisdiction to consider the remaining plaintiffs’ constitutional

4 claims, except to the extent that plaintiffs seek class-wide injunctive, as opposed to

5 declaratory, relief. Defendants sought, and the Court granted, a certification pursuant to

6 28 U.S.C. § 1292(b), and an interlocutory appeal concerning the jurisdictional issues is

7 now pending before the United States Court of Appeals for the Ninth Circuit.

8

Providing no basis other than their intent to seek review, defendants asked the

9 Court to stay this matter. See Defs.’ Mtn. (docket no. 133). The Court declined to enter a

10 stay because defendants are unlikely to prevail before the Ninth Circuit on their argument

11 that the Court lacks jurisdiction, plaintiffs might not remain juveniles for the duration of

12 the appellate process, and discovery can be accomplished in the interim. In their more

13 recent motion for “clarification,” which is in fact a motion for reconsideration, defendants

14 argue for the first time that this case is exempt from the initial disclosure requirements of

15 Federal Rule of Civil Procedure 26(a)(1). Defendants further contend that discovery is

16 limited to the administrative record, and they seek a protective order along those lines.

17 Defendants do not explain, however, why they failed to raise these issues in their original

18 motion to hold all deadlines in abeyance.1

19

20 1 Defendants’ assertion that discovery is limited to the administrative record appeared only in their reply
brief, see docket no. 154, and their reliance there on the Administrative Procedure Act (“APA”) for this
21 proposition is misplaced. Although the APA provides the waiver of sovereign immunity necessary for
plaintiffs to pursue this case, it is not the statute under which plaintiffs bring suit; rather, plaintiffs invoke 28 U.S.C. § 1331, which confers on the Court jurisdiction over civil actions arising under the Constitution
22 of the United States.
23

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1

After plaintiffs filed their motion for class certification, but before the Court ruled

2 on it, plaintiffs J.E.F.M., J.F.M., and D.G.F.M. were granted asylum status. See Exs. A,

3 A-1, & A-2 to Reply (docket no. 154-1) (asylum status granted on May 26, 2015).

4 Similarly, while plaintiffs’ motion for class certification was pending, plaintiff M.A.M.

5 received relief in the form of a grant of special immigrant juvenile (“SIJ”) status. See id.

6 at Exs. A & A-3 (SIJ status granted May 13, 2015). Another named plaintiff, J.E.V.G.,

7 retained counsel and his removal proceedings were continued to August 19, 2015, which

8 is after J.E.V.G.’s 18th birthday. See id. at Ex. A. Defendants assert that the right-to-

9 counsel claims of these five plaintiffs are now moot and should be dismissed from this

10 action.

11 Discussion

12

A. Class Certification

13

Whether or not J.E.F.M., J.F.M., D.G.F.M., M.A.M., and J.E.V.G. remain named

14 plaintiffs, the class that plaintiffs have proposed cannot be certified. A class of all

15 juveniles “who are or will be in immigration proceedings on or after July 9, 2014,

16 without legal representation in those proceedings,” Plas.’ Mtn. at 1 (docket no. 117), is

17 far too broad. Such definition fails to acknowledge that class members must be indigent

18 to make any colorable claim to a due process right to counsel at government expense.

19 Moreover, the inclusion of juveniles who “will be” in removal proceedings runs afoul of

20 the jurisdiction-stripping provision of the Illegal Immigration Reform and Immigrant

21 Responsibility Act of 1996 (“IIRIRA”), which does not allow the Court to “hear any

22 cause or claim by or on behalf of any alien arising from the decision or action by the

23

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1 Attorney General to commence proceedings.” 8 U.S.C. § 1252(g) (emphasis added).

2 Although these deficiencies could be addressed by appropriately narrowing the class, the

3 developments in the immigration proceedings involving J.E.F.M., J.F.M., D.G.F.M.,

4 M.A.M., and J.E.V.G. highlight “typicality” and “fair representation” problems that lead

5 the Court to conclude plaintiffs’ motion for class certification should be denied without

6 prejudice.

7

Rule 23 operates as “an exception to the usual rule that litigation is conducted by

8 and on behalf of the individual named parties only.” Comcast Corp. v. Behrend, 133 S.

9 Ct. 1426, 1432 (2013) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979)). To

10 maintain a class action, plaintiffs must “affirmatively demonstrate” compliance with

11 Rule 23. Id. (citing Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011)). The

12 prerequisites of Rule 23 are not mere pleading standards, but rather are evidentiary

13 thresholds. See id. Thus, plaintiffs bear the burden of proving, not just simply alleging,

14 that all four requirements of Rule 23(a) are satisfied and that the proposed class qualifies

15 under at least one of the three provisions of Rule 23(b), see id., only the second of

16 which is relevant here; plaintiffs pursue certification solely under Rule 23(b)(2), which

17 requires a showing that defendants have “acted or refused to act on grounds that apply

18 generally to the class, so that final injunctive relief or corresponding declaratory relief is

19 appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2).

20

Rule 23(a) mandates that plaintiffs prove (1) the class is so numerous that joinder

21 of all members is impracticable; (2) questions of law or fact common to the class exist;

22 (3) the representatives’ claims are typical of the claims of the class; and (4) the

23

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1 representatives will “fairly and adequately” protect the interests of the class. Fed. R. Civ.

2 P. 23(a). Because J.E.F.M., J.F.M., and D.G.F.M. have been granted asylum status, are

3 no longer in removal proceedings, and do not now need the services of an attorney at

4 government expense, they do not have claims typical of the claims of the proposed class

5 and have little incentive to fairly and adequately protect the interests of the class. The

6 same conclusions must be drawn about J.E.V.G., who will no longer be a juvenile when

7 the next hearing occurs in his removal proceedings and who has retained a lawyer to

8 represent him, rendering his situation different from those of proposed class members.

9 Similarly, although M.A.M. remains in removal proceedings, the SIJ status conferred on

10 him as a result of abuse, neglect, or abandonment makes him eligible to apply for a

11 permanent resident visa and eventually citizenship, see Zheng v. Pogash, 416 F. Supp. 2d

12 550, 554 (S.D. Tex. 2006); see also 8 U.S.C. § 1101(a)(27)(J), and it distinguishes him

13 from the bulk of indigent juveniles who might be in the class. Given the over-inclusive

14 language of plaintiffs’ proposed class definition, which the Court opts not to unilaterally

15 redraft, and the significant changes in the circumstances of five of the six plaintiffs, the

16 Court declines to certify a class at this time.

17

B. Mootness

18

The constitutional “case or controversy” boundary of the Court’s jurisdiction

19 mandates that “an actual, ongoing controversy exist at all stages” of the proceedings.

20 Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1086 (9th Cir. 2011). A claim becomes

21 moot when the parties’ dispute resolves and is no longer “live” or when the parties “lack

22 a legally cognizable interest in the outcome” of the litigation. Id. at 1086-87. Mootness

23

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1 is a flexible standard, and dismissal is not required in the following circumstances:

2 (i) when, after a class has been certified, the class representative’s claim becomes moot;

3 and (ii) when, before a class is certified, the class representative’s claim becomes moot,

4 but any future class certification could “relate back” to the filing of the complaint because

5 the substantive claim challenges an action or event of short duration, which is “distinctly

6 ‘capable of repetition yet evading review.’” Id. at 1087-88. The “relation back” doctrine

7 recognizes that some claims are “so inherently transitory” that a motion for class

8 certification cannot be decided “before the proposed representative’s individual interest

9 expires.” Id. at 1090.

10

On the question of mootness, the Court reaches different conclusions with respect

11 to M.A.M. and J.E.V.G. than as to the three siblings, J.E.F.M., J.F.M., and D.G.F.M.

12 Defendants concede that the grant of SIJ status to M.A.M. did not entirely moot his right-

13 to-counsel claim, and he still faces the remote possibility of removal. Defs.’ Reply at 3

14 (docket no. 172). Thus, defendants’ motion to dismiss M.A.M. as a plaintiff is DENIED,

15 but without prejudice to renewing the motion in the event M.A.M. is granted a permanent

16 resident visa.

17

Although J.E.V.G., who has secured counsel to represent him in his removal

18 proceedings, might not be an appropriate class representative, his individual claim is not

19 moot. J.E.V.G. will turn 18 before any substantive decision is issued in his removal

20 proceedings, and his claim that, while still a juvenile, he should have received the

21 assistance of an attorney at government expense constitutes a “live” controversy. Thus,

22 defendants’ motion to dismiss J.E.V.G. as a plaintiff is also DENIED without prejudice.

23

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1

Plaintiffs concede that J.E.F.M., J.F.M., and D.G.F.M. are protected from removal

2 because they have been granted asylum and that their right-to-counsel claims are moot.

3 The three F.M. siblings have received the ultimate relief they desired, and they no longer

4 need the interim remedy they sought in this case of having an attorney appointed to

5 represent them at government expense in removal proceedings. They lack a “legally

6 cognizable interest” in the outcome of this litigation, and defendants’ motion to dismiss

7 them as plaintiffs is GRANTED. The right-to-counsel claims of J.E.F.M., J.F.M., and

8 D.G.F.M. are DISMISSED with prejudice as moot.

9

C. Scope of Discovery

10

Defendants’ contention that they are exempt from initial disclosures lacks merit.

11 Rule 26(a)(1)(B)(i), on which defendants rely, exempts from the requirement of initial

12 disclosure only actions for “review on an administrative record.” This case does not

13 qualify. See supra note 1. The very reason the Court has jurisdiction in this matter is

14 because the constitutional right-to-counsel claim at issue cannot be developed at the

15 agency level and any administrative record would be insufficient to provide a basis for

16 meaningful judicial review. See Order at 16-18 (docket no. 114). The Court therefore

17 DENIES defendants’ motion for “clarification” or reconsideration and their request for a

18 protective order. Plaintiffs will be permitted to conduct discovery related to the factors

19 set forth in Mathews v. Eldridge, 424 U.S. 319 (1976), including statistical evidence

20 concerning the risk of erroneous removal decisions through the procedures currently used

21 and financial data associated with the appointment of counsel for all indigent juveniles

22 and any less expansive, alternative schemes.

23

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1

D. Scheduling Order

2

The Court declines plaintiffs’ invitation to treat defendants as having waived their

3 substantive objections to the previously propounded discovery requests or to require

4 defendants to produce documents within only three days. Instead, the Court DIRECTS

5 defendants to serve their responses, including any objections, to the previously

6 propounded discovery requests and DIRECTS both sides to serve their initial disclosures,

7 to the extent they have not already done so, within thirty-five (35) days of the date of this

8 Order. Based on the parties’ Joint Status Report, docket no. 155, the Court SETS a bench

9 trial date of May 2, 2016, and will issue a separate scheduling order.

10 Conclusion

11

Having now stated the grounds for previously denying plaintiffs’ motion for class

12 certification, docket no. 117, and defendants’ motion to hold all deadlines in abeyance,

13 docket no. 133, the Court further ORDERS:

14

(1) Defendants’ motion for “clarification” and for a protective order, which is

15 treated as a motion for reconsideration, docket no. 163, is DENIED.

16

(2) Defendants’ motion to dismiss, docket no. 162, is GRANTED in part and

17 DENIED in part as follows: the claims of plaintiffs J.E.F.M., J.F.M., and D.G.F.M. are

18 DISMISSED with prejudice as moot, and defendants’ motion as to plaintiffs M.A.M. and

19 J.E.V.G. is DENIED without prejudice.

20

(3) A bench trial as to the constitutional claims of the remaining plaintiffs,

21 namely F.L.B., M.A.M., and J.E.V.G., is SCHEDULED for May 2, 2016; a scheduling

22 order will be separately issued.

23

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1

IT IS SO ORDERED.

2

Dated this 27th day of August, 2015.

3

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7

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ORDER - 9

A
Thomas S. Zilly United States District Judge

 
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1

The Honorable Thomas S. Zilly

2 3 4 5

6

7

UNITED STATES DISTRICT COURT

8

FOR THE WESTERN DISTRICT OF WASHINGTON

9

AT SEATTLE

10 J.E.F.M., a minor, by and through his Next Friend, Bob
11 Ekblad; J.F.M., a minor, by and through his Next Friend,
Bob Ekblad; D.G.F.M., a minor, by and through her 12 Next Friend, Bob Ekblad; F.L.B., a minor, by and
13 through his Next Friend, Casey Trupin; M.A.M., a minor, by and through his mother and Next Friend, Rosa
14 Pedro; A.E.G.E., a minor, by and through his Next Friend, Ana Deutsch; G.J.C.P., a minor, by and through
15 her grandmother and Next Friend, Blanca Griselda
Zelaya; J.E.V.G., a minor, by and through his sister and 16 Next Friend, Santos Angela Vasquez; E.G.C., a minor,
17 by and through his Next Friend, Sonia McLeod; A.F.M.J., by and through her mother and Next Friend,
18 Maria Jimenez; L.J.M., a minor, by and through her mother and Next Friend, Maria Jimenez; M.R.J., a
19 minor, by and through his mother and Next Friend,
Maria Jimenez; J.R.A.P., a minor by and through his 20 Next Friend, Katherine Peguero; K.N.S.M., a minor, by
21 and through her Next Friend, Eloisa Sarahi Mejia Sevilla, on behalf of themselves as individuals and on
22 behalf of others similarly situated,

Case No. 2:14-cv-01026-TSZ
THIRD AMENDED COMPLAINT— CLASS ACTION

23

Plaintiffs-Petitioners,

24

v.

25 Loretta E. LYNCH, Attorney General, United States;
26 Juan P. OSUNA, Director, Executive Office for Immigration Review; Jeh C. JOHNSON, Secretary,
27 Homeland Security; Sarah R. SALDAÑA, Director,

28

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U.S. Immigration and Customs Enforcement; León 1 RODRIGUEZ, Director, U.S. Citizenship and
2 Immigration Services; Lisa McDANIEL, Field Office Director, ICE ERO; Bryan WILCOX, AFOD, ERO;
3 Sylvia M. BURWELL, Secretary, Health and Human Services; Robert CAREY, Director, Office of Refugee
4 Resettlement,

5

Defendants-Respondents.

6 I. PRELIMINARY STATEMENT
7 1. Plaintiffs are fourteen immigrant children, ranging in age from one to 17. The
8 Government has begun proceedings to deport each of them; they have been or will soon be called
9 to appear before an Immigration Judge. In court, the Department of Homeland Security (“DHS”)
10 is represented by a trained lawyer who argues for the child’s deportation. But no lawyer stands
11 with the child. Every child is required to respond to the charges against him or her, and, in
12 theory, afforded an opportunity to make legal arguments and present evidence on his or her own
13 behalf. But in reality those rights are meaningless because children are not competent to exercise
14 them. Each child has attempted to find representation, including through pro bono legal service
15 providers, but none of them have found anyone with the resources to take on their cases. Absent
16 this Court’s intervention, these children were or will be forced to defend themselves pro se under
17 the immigration laws—a legal regime that, as the courts have recognized, rivals the Internal
18 Revenue Code in its complexity.1
19 2. The plight of these children is not unique. Plaintiffs seek to represent a class of indigent
20 unrepresented children, all of whom face deportation. Each year the Government initiates
21 immigration proceedings against thousands of such children, and in each case the purpose of the
22 proceedings is to determine whether the child may remain in the United States. Although a
23 remarkable network of pro bono service providers, working in concert with (and in some cases
24 funded directly by) the Government, has endeavored to represent as many of these children as
25

26 1 One Plaintiff, J.E.V.G., was under 18, without legal representation, and financially unable to pay for such representation at the time he became a Plaintiff, but has since turned 18 and hired an
27 attorney. This Court has held that “his claim that, while still a juvenile, he should have received the assistance of an attorney at government expense constitutes a ‘live’ controversy.” Dkt. 174 at
28 6.

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1 possible, thousands of children appearing in immigration court still do so without an attorney.2
2 At the present time, legal service organizations representing immigrant children throughout the
3 country have nowhere near the capacity to meet the demand. The significant number of children
4 fleeing to this country and the Government’s decision to prioritize children’s cases will likely
5 maintain that shortfall.3 The Government, in contrast, is represented in every case.
6 3. Neither the Constitution nor the immigration laws permit this state of affairs. More than
7 four decades ago, the Supreme Court recognized that when the Government initiates proceedings
8 against children facing juvenile delinquency charges, the Due Process Clause requires the
9 Government to provide those children with legal representation to ensure that the proceedings
10 are fundamentally fair. In re Gault, 387 U.S. 1, 41 (1967). The Court held that “[t]he juvenile
11 needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the
12 facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and
13 to prepare and submit it. The child requires the guiding hand of counsel at every step in the
14 proceedings against him.” Id. at 36 (citation and quotation marks omitted). The Constitution
15 guarantees children this safeguard notwithstanding the civil, rather than criminal, character of
16 juvenile delinquency proceedings.
17 2 Center for Gender and Refugee Studies & Kids in Need of Defense, A Treacherous Journey:
18 Child Migrants Navigating the U.S. Immigration System at iii-iv (Feb. 2014) [hereinafter “A 19 Treacherous Journey”] available at http://www.uchastings.edu/centers/cgrs-
docs/treacherous_journey_cgrs_kind_report.pdf. See also Transactional Records Access 20 Clearinghouse, Juveniles — Immigration Court Deportation Proceedings,
http://trac.syr.edu/phptools/immigration/juvenile/ (last visited Oct. 16, 2015) (indicating that 21 almost 50% of pending cases with a “juvenile” case flag involve unrepresented children).
22 3 For a description of the government’s decision to expedite adjudication of children’s cases, see 23 Press Release, Dep’t of Justice Office of Public Affairs, Department of Justice Announces New
Priorities to Address Surge of Migrants Crossing into the U.S. (Jul. 9, 2014), available at 24 http://www.justice.gov/opa/pr/department-justice-announces-new-priorities-address-surge-
migrants-crossing-us (linking to factsheet describing Government prioritization of recently25 arrived unaccompanied children and families with children). Regarding the continuing shortfall,
see Mara Gay, As Child Immigrants Await Fate, A Race for Counsel, Wall St. J. (Oct. 1, 2014), 26 available at http://online.wsj.com/articles/immigrant-children-in-new-york-city-face-a-shortage27 of-attorneys-1412100510 (“Just under half of the children appearing before the New York City
Immigration Court have no attorney, according to The Legal Aid Society. The children are far 28 more likely to be deported without an attorney, and advocates say the situation is desperate.”).

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1 4. Immigrants, including immigrant children, are also entitled to Due Process when facing
2 deportation. Reno v. Flores, 507 U.S. 292, 306 (1993). Both the Constitution and the
3 immigration laws guarantee all children the right to a full and fair removal hearing, including the
4 opportunity to defend against deportation and seek any forms of relief that would enable them to
5 remain in the United States. And just as in juvenile delinquency proceedings, children cannot
6 receive that fair hearing without legal representation. As the Supreme Court stated in discussing
7 proceedings of similarly “tremendous consequences,” for children in immigration proceedings
8 “[t]he right to representation by counsel is not a formality. It is not a grudging gesture to a
9 ritualistic requirement. It is of the essence of justice.” Kent v. United States, 383 U.S. 541, 554,
10 561 (1966) (addressing child’s right to appointed counsel in proceedings to determine whether
11 juvenile court should waive its jurisdiction in favor of criminal court).
12 5. Yet every day in courts throughout the country, children represent themselves in
13 deportation cases that are often more complex and more serious than most juvenile delinquency 14 cases.4 The resulting adjudications are fundamentally unfair. Children are forced to admit or
15 deny allegations against them, compile evidence in support of their claims to remain in the
16 United States, and articulate legal arguments on their own behalf, when in reality they “are
17 unlikely to understand the complex procedures they face and the options and remedies that may 18 be available to them under the law.”5
19 6. To fulfill its statutory and constitutional obligations, the Government must ensure that no
20 child faces the life-altering prospect of deportation without legal representation.
21
22 23 4 Julia Preston, Young and Alone, Facing Court and Deportation, N.Y. Times, Aug. 25, 2012, at
A1, available at http://www.nytimes.com/2012/08/26/us/more-young-illegal-immigrants-face24 deportation.html?pagewanted=all (describing six-year-old child in removal proceedings without 25 counsel); see also Julie Myers Wood & Wendy Young, Children Alone and Lawyerless in a
Strange Land, The Wall Street Journal, Sept. 22, 2013, available at 26 http://online.wsj.com/news/articles/SB10001424127887324492604579083400349940432
(“We’ve seen children as young as 5 facing an immigration judge with no representation.”). 27
5 A Treacherous Journey at iii. 28

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1 II. JURISDICTION AND VENUE

2 7. Plaintiffs challenge the federal Government’s failure to provide appointed legal

3 representation for indigent children in immigration proceedings on federal statutory and

4 constitutional grounds.6

5 8. This court has subject matter jurisdiction pursuant to the general federal question statute,

6 28 U.S.C. § 1331, the federal habeas statute, 28 U.S.C. § 2241, et seq., the All Writs Act, 28

7 U.S.C. § 1651, and 5 U.S.C. § 702 (waiver of sovereign immunity).

8 9. This court has personal jurisdiction over the Defendants because of, inter alia, the

9 nationwide reach of Defendants’ conduct and the presence of courts operated by Defendants

10 within the Western District of Washington where immigration proceedings involving members

11 of the Plaintiff Class are held.

12 10. Sovereign immunity does not prevent this Court from exercising jurisdiction over these

13 claims. Plaintiffs have brought suit against various federal officials, and it is well established that

14 sovereign immunity does not bar claims against federal officials seeking solely to prevent future

15 violations of federal law (rather than monetary relief). See, e.g., Larson v. Domestic & Foreign

16 Commerce Corp., 337 U.S. 682, 697-99 & nn.18-19 (1949); Shields v. Utah Idaho Cent. R.R.

17 Co., 305 U.S. 177, 183-84 (1938) (holding that the court had jurisdiction to consider a claim
seeking to enjoin government officials’ actions); Erwin Chemerinsky, Federal Jurisdiction § 9.1, 18
at 588 (4th ed. 2003) (“[T]he Supreme Court long has held that federal officers may be sued for 19
injunctive relief.”); James E. Pfander, The Limits of Habeas Jurisdiction and the Global War on 20
Terror, 91 Cornell L. Rev. 497, 528-29 (2006) (“[H]igh government officials in Washington, 21
D.C. cannot invoke the doctrine of official immunity against constitutional challenges to 22
government action” even outside the habeas context.) (footnotes omitted). 23
11. In addition, in 1976, the United States broadly and explicitly waived all immunity from
24 suit in any action requesting non-monetary relief (including injunctive and declaratory relief) in
25 5 U.S.C. § 702, 90 Stat. 2721 (1976) (“An action in a court of the United States seeking relief

26

27 6 Plaintiffs define “immigration proceedings” as any proceeding that occurs before an Immigration Judge or the Board of Immigration Appeals (“BIA”). Where the reference is

28 ambiguous, the term “Immigration Judges” should be understood to refer to both individual

Immigration Judges and members of the BIA.

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Seattle, WA 98104

(206) 957-8611

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1 other than money damages and stating a claim that an agency or an officer or employee thereof
2 acted or failed to act in an official capacity or under color of legal authority shall not be
3 dismissed nor relief therein be denied on the ground that it is against the United States or that the
4 United States is an indispensable party.”); see also Presbyterian Church (U.S.A.) v. United
5 States, 870 F.2d 518, 525 (9th Cir. 1989) (“[T]he time [has] now come to eliminate the sovereign 6 immunity defense in all equitable actions for specific relief against a Federal agency or officer in
an official capacity.”) (alternations and emphasis in original) (quoting H.Rep. No. 1656, 94th 7
Cong., 2d Sess. 9, reprinted in 1976 U.S. Code Cong. & Admin. News 6121, 6129). 8
12. Venue is proper in the Western District of Washington under 28 U.S.C. § 1391(e)(1) 9
because a substantial part of the events or omissions giving rise to this action occurred in this 10
district. Plaintiff F.L.B. and E.G.C. reside in this district, and Plaintiffs J.E.F.M., J.F.M., 11
D.G.F.M., F.L.B., E.G.C., A.F.M.J., L.J.M, and M.R.J. all have immigration proceedings 12
scheduled to occur in this district. In addition, venue is proper under 28 U.S.C. §§ 2242-43 13
because Plaintiffs J.E.F.M., J.F.M., D.G.F.M., F.L.B., E.G.C., A.F.M.J., L.J.M, and M.R.J. are in 14
the constructive custody of immigration authorities by virtue of immigration proceedings in this 15
district. 16

17 III. PARTIES
18 A. Plaintiffs7
19 13. Plaintiff J.E.F.M. is an 11-year-old native and citizen of El Salvador.8 He now resides in
20 Washington State. J.E.F.M. had a removal hearing scheduled for September 2014 at the time
21

22 7 This Court previously dismissed the claims of Plaintiffs J.E.F.M., J.F.M., D.G.F.M., G.J.C.P.,

23 and A.E.G.E. See Dkt. 114 at 7-8, 11; Dkt. 174 at 7. A.E.G.E. has since been scheduled for a removal hearing in April 2016 before the Los Angeles Immigration Court. Because removal

24 proceedings have now undoubtedly commenced against A.E.G.E., he has a live claim as a

Named Plaintiff in this action. With respect to J.E.F.M., J.F.M., D.G.F.M., and G.J.C.P.,

25 Plaintiffs assert their claims here only to preserve them for review. In contrast, former Plaintiffs

G.M.G.C. and S.R.I.C. no longer wish to pursue their claims and therefore do not appear in this 26 complaint. See, e.g., Dkt. 107.

27 8 To protect the privacy of the child Plaintiffs in this case, this complaint refers to them using their initials. See Fed. R. Civ. P. 5.2(a)(3). For the same reason, this complaint also does not

28 provide as much detail as is available concerning the harms they have suffered in their home

countries, during their journeys here, and since their arrivals in the United States.

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1 Plaintiffs filed the original complaint in this case. The day after the Court heard Plaintiffs’ 2 motion for preliminary injunction on his behalf, the Immigration Judge presiding over his case 3 rescheduled his removal hearing for May 2015. J.E.F.M.’s hearings were set in Seattle, 4 Washington, and he did not have an attorney to represent him in his immigration case. J.E.F.M. 5 appears by his next friend Bob Ekblad, a minister who has worked closely with J.E.F.M. and his 6 family. J.E.F.M. was granted asylum in May 2015 by United States Citizenship and Immigration 7 Services (“USCIS”), before which he was represented by pro bono counsel. Subsequently, the 8 Immigration Judge terminated his case. This Court subsequently dismissed his claims as moot. 9 Dkt. 174 at 7. 10 14. Plaintiff J.F.M. is a 14-year-old native and citizen of El Salvador. He is the older brother 11 of J.E.F.M. He now resides in Washington State. J.F.M. had a removal hearing scheduled for 12 September 2014 at the time Plaintiffs filed the original complaint in this case. The day after the 13 Court heard Plaintiffs’ motion for preliminary injunction on his behalf, the Immigration Judge 14 presiding over his case rescheduled his removal hearing for May 2015. J.F.M.’s hearings were 15 set in Seattle, Washington, and he did not have an attorney to represent him in his immigration 16 case. J.F.M. appears by his next friend Bob Ekblad, a minister who has worked closely with 17 J.F.M. and his family. Like his brother, J.F.M. was granted asylum in May 2015 by USCIS, 18 before which he was represented by pro bono counsel. Subsequently, the Immigration Judge 19 terminated his case. This Court dismissed his claims as moot. Dkt. 174 at 7. 20 15. Plaintiff D.G.F.M.is a 17-year-old native and citizen of El Salvador. She is the older 21 sister of J.F.M. and J.E.F.M. She now resides in Washington State. She had a removal hearing 22 scheduled for September 2014 at the time Plaintiffs filed the original complaint in this case. The 23 day after the Court heard Plaintiffs’ motion for preliminary injunction on her behalf, the 24 Immigration Judge presiding over her case rescheduled her removal hearing for May 2015. 25 D.G.F.M.’s hearings were set in Seattle, Washington, and she did not have an attorney to 26 represent her in her immigration case. D.G.F.M. appears by her next friend Bob Ekblad, a 27 minister who has worked closely with D.G.F.M. and her family. Like her brothers, D.G.F.M. was 28 granted asylum in May 2015 by USCIS, before which she was represented by pro bono counsel.

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1 Subsequently, the Immigration Judge terminated her case. This Court dismissed her claims as 2 moot. Dkt. 174 at 7. 3 16. Plaintiff F.L.B. is a 16-year-old native and citizen of Guatemala. He now resides in 4 Seattle, Washington. He had a removal hearing scheduled for September 2014 at the time 5 Plaintiffs filed the original complaint in this case. Two weeks after the Court heard Plaintiffs’ 6 motion for preliminary injunction on his behalf, the Immigration Judge presiding over his case 7 rescheduled his removal hearing for May 2015. His next hearing is scheduled for August 2016. 8 F.L.B.’s hearings are set in Seattle, Washington, and he does not have an attorney to represent 9 him in his immigration case. F.L.B. appears by his next friend Casey Trupin. Mr. Trupin is the 10 Project Coordinator for the Children and Youth Project at Columbia Legal Services in Seattle, 11 Washington. 12 17. Plaintiff M.A.M. is a 17-year-old native and citizen of Honduras. M.A.M. has resided in 13 the United States since he was eight years old. M.A.M. resides in Oxnard, California. M.A.M. 14 had a removal hearing scheduled for August 2014 at the time Plaintiffs filed the original 15 complaint in this case. M.A.M.’s removal proceedings remain ongoing. His next removal hearing 16 is scheduled for February 2016. M.A.M. does not have an attorney to represent him in his 17 immigration case. M.A.M. appears by his next friend and mother, Rosa Pedro. 18 18. Plaintiff A.E.G.E. is a four-year-old native and citizen of El Salvador. He came to the 19 United States in 2014 and now resides in Los Angeles, California. At the time Plaintiffs filed the 20 Second Amended Complaint in this case, A.E.G.E. was awaiting his first court date in Los 21 Angeles, California, and did not have an attorney to represent him in his immigration case. As a 22 result, this Court dismissed A.E.G.E. from this suit over Plaintiffs’ objection. Dkt. 114 at 7-8. 23 A.E.G.E. has since had a removal hearing scheduled for April 2016. He does not have an 24 attorney to represent him. A.E.G.E. appears by his next friend, Ana Deutsch. Ms. Deutsch is a 25 Co-Founder and Clinical Director at the Program for Torture Victims in Los Angeles, California. 26 19. Plaintiff G.J.C.P. is a 15-year-old native and citizen of El Salvador. She came to the 27 United States in 2014 and now resides in Van Nuys, California. An Immigration Judge in Los 28 Angeles, California ordered G.J.C.P. removed in absentia in August 2014. She does not have an

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1 attorney to represent her in her immigration case. G.J.C.P. appears by her next friend and 2 grandmother, Blanca Griselda Zelaya. This Court has dismissed G.J.C.P. from this suit over 3 Plaintiffs’ objection. Dkt. 114 at 7-8. 4 20. Plaintiff J.E.V.G. is an 18-year-old native and citizen of El Salvador. He came to the 5 United States in 2014 and now resides in Houston, Texas. In September 2014, an Immigration 6 Judge in Houston, Texas ordered J.E.V.G. removed in absentia, at which time he was 17 years 7 old and did not have an attorney to represent him in his immigration case. After he became a 8 Plaintiff in this case, the government moved to reopen J.E.V.G.’s removal order and the 9 Immigration Judge granted the motion. Subsequently, J.E.V.G. turned 18 years old and obtained 10 counsel to represent him in his removal proceedings. J.E.V.G. appears by his next friend and 11 sister, Santos Angela Vasquez. 12 21. Plaintiff E.G.C. is an 11-year-old native and citizen of Mexico. He came to the United 13 States in 2013 with his mother, but his mother returned to Mexico without him. He presently 14 resides in Snohomish, Washington. E.G.C. has a removal hearing scheduled for December 2015. 15 He does not have an attorney to represent him in his immigration case. E.G.C. appears by his 16 next friend, Sonia McLeod. Ms. McLeod is a case manager at the University District Youth 17 Center. 18 22. Plaintiff A.F.M.J. is an 11-year-old native and citizen of Mexico. She came to the United 19 States in 2014 with her mother and two siblings L.J.M. and M.R.J., and presently resides in 20 Royal City, Washington. A.F.M.J., with her mother and two siblings, has a removal hearing 21 scheduled in late October 2015. She does not have an attorney to represent her in her 22 immigration case. A.F.M.J. appears by her next friend and mother, Maria Jimenez. 23 23. Plaintiff L.J.M. is a 3-year-old native and citizen of Mexico. She is the younger sister of 24 A.F.M.J. She came to the United States in 2014 with her mother and two siblings, and presently 25 resides in Royal City, Washington. L.J.M., with her mother and two siblings, has a removal 26 hearing scheduled in late October 2015. She does not have an attorney to represent her in her 27 immigration case. L.J.M. appears by her next friend and mother, Maria Jimenez. 28 24. Plaintiff M.R.J. is a 1-year-old native and citizen of Mexico. He is the younger half-

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1 brother of A.F.M.J. and L.J.M. He came to the United States in 2014 with his mother and two

2 siblings, and presently resides in Royal City, Washington. M.R.J., with his mother and two

3 siblings, has a removal hearing scheduled in late October 2015. He does not have an attorney to

4 represent him in his immigration case. M.R.J. appears by his next friend and mother, Maria

5 Jimenez.

6 25. Plaintiff J.R.A.P. is a seven-year-old native and citizen of Honduras. J.R.A.P. came to the

7 United States in 2013 and now resides in Miami, Florida. J.R.A.P. has a removal hearing

8 scheduled for March 2016. He does not have an attorney to represent him in his immigration

9 case. J.R.A.P. appears by his next friend Katherine Peguero. Ms. Peguero is a close friend of

10 J.R.A.P.’s family.

11 26. Plaintiff K.N.S.M. is a nine-year-old native and citizen of Honduras. K.N.S.M. came to

12 the United States in 2014 and now resides in Ontario, California. K.N.S.M. has a removal

13 hearing scheduled for April 2016. She does not have an attorney to represent her in her

14 immigration case. K.N.S.M. appears by her next friend and mother Eloisa Sarahi Mejia Sevilla.

15

B. Defendants

16 27. Defendant Loretta E. Lynch, is the Attorney General of the United States and the head of

17 the U.S. Department of Justice (“DOJ”). Ms. Lynch shares responsibility for implementing and

18 enforcing the immigration laws. Ms. Lynch is sued in her official capacity.

19 28. Defendant Juan P. Osuna is the Director of the Executive Office for Immigration Review

20 (“EOIR”), which is the federal agency within DOJ that operates the immigration courts. Mr.

21 Osuna is responsible for the supervision of the Deputy Director, the Chairman of the Board of

22 Immigration Appeals (“BIA”), the Chief Immigration Judge, the Chief Administrative Hearing

23 Officer, and all EOIR agency personnel in the execution of their duties. Mr. Osuna is sued in his

24 official capacity.

25 29. Defendant Jeh C. Johnson is the Secretary of DHS and is the highest-ranking member of

26 DHS, which is the arm of the federal government responsible for enforcing the immigration

27 laws. Mr. Johnson is sued in his official capacity.

28

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1 30. Defendant Sarah R. Saldaña is the Director of U.S. Immigration and Customs

2 Enforcement (“ICE”), which is the principal investigative, enforcement, and prosecutorial arm of

3 DHS. ICE attorneys represent the Government in immigration proceedings. Director Saldaña is

4 sued in her official capacity.

5 31. Defendant León Rodríguez is the Director of USCIS, which is the arm of DHS

6 responsible for granting various forms of immigration and citizenship benefits. USCIS is

7 responsible for adjudicating applications for certain forms of relief from removal for children in

8 immigration proceedings. Mr. Rodriguez is sued in his official capacity.

9 32. Defendant Sylvia M. Burwell is the Secretary of Health and Human Services (“HHS”)

10 and is the highest-ranking member of HHS, which is the arm of the federal Government

11 responsible for the care and custody of unaccompanied immigrant minors under the Trafficking

12 Victims Protection Reauthorization Act. Ms. Burwell is sued in her official capacity.

13 33. Defendant Robert Carey is the Director of the Office of Refugee Resettlement (“ORR”),

14 which is the division of HHS directly responsible for the care and custody of unaccompanied

15 immigrant minors. Mr. Carey is sued in his official capacity.

16 34. Defendant Bryan Wilcox is the Acting Field Office Director for the Seattle Field Office

17 of ICE, which has custody of Plaintiffs J.E.F.M., J.F.M., D.G.F.M., F.L.B., E.G.C., A.F.M.J.,

18 L.J.M, and M.R.J., by virtue of immigration proceedings in this district. Mr. Wilcox is sued in

19 his official capacity.

20 35. Defendant Lisa McDaniel is the Field Office Director for the Seattle Field Office of ICE,

21 which has custody of Plaintiffs J.E.F.M., J.F.M., D.G.F.M., F.L.B., E.G.C., A.F.M.J., L.J.M.,

22 and M.R.J., by virtue of immigration proceedings in this district. Ms. McDaniel is sued in her

23 official capacity.

24

25 IV. FACTUAL BACKGROUND

26

A. Children Facing Deportation

27

28

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1 36. Every year, the Government initiates immigration proceedings to deport thousands of 2 children, ranging from toddlers to teenagers.9 Children enter the immigration enforcement 3 system in several ways. Thousands are arrested at or shortly after crossing the United States4 Mexico border, often after having survived treacherous and difficult journeys from their 5 countries of origin. Many of them have fled persecution by their governments or their own 6 families, rising rates of extreme violence (much of it caused by the escalating influence of 7 powerful gangs), or economic conditions that make life unsustainable in their countries of 8 origin.10 Some of these children have experienced trauma in the form of rape, kidnapping, 9 abandonment, or physical abuse inflicted in their home countries or by smugglers and traffickers 10 during their journey to the United States.11 11 37. Other children are apprehended after spending years in the United States, some having 12 grown up almost entirely in this country. Many of them attend school alongside other children in 13 this country, speak fluent English, and are fully integrated into their communities. Others are not

14
15 9 See supra note 4 (news articles reporting cases of children as young as five or six years old in removal proceedings); Matter of Gomez-Gomez, 23 I. & N. Dec. 522 (BIA 2002) (en banc)
16 (addressing case of eight-year-old child ordered removed in absentia based on report of arresting officer); Matter of Ponce-Hernandez, 22 I. & N. Dec. 784, 785 (BIA 1999) (en banc) (describing
17 15-year-old child charged with removability); A Treacherous Journey at 11-12 (noting case 18 stories of girls aged 12 and 14 who appeared before Immigration Judges).
19 10 Women’s Refugee Commission, Forced from Home: The Lost Boys and Girls of Central America 7 (2012), http://womensrefugeecommission.org/resources/migrant-rights-and-
20 justice/844-forced-from-home-the-lost-boys-and-girls-of-central-america/file. This report found that more than 77% of a sample of 151 children cited violence as their primary reason for fleeing
21 their countries of origin. See also United Nations High Commissioner for Refugees, Children on 22 the Run: Unaccompanied Children Leaving Central America and Mexico and the Need for
International Protection 6 (2014), 23 http://www.unhcrwashington.org/sites/default/files/1_UAC_Children%20on%20the%20Run_Ful
l%20Report.pdf [hereinafter UNHCR Report] (finding that no less than 58% of the children 24 interviewed for the report “were forcibly displaced because they suffered or faced harms that
indicated a potential or actual need for international protection”). 25
26 11 The United States Conference of Catholic Bishops Migration and Refugee Services, The Changing Face of the Unaccompanied Alien Child 8 (2012),
27 http://www.usccb.org/about/children-and-migration/unaccompanied-refugee-minorprogram/upload/A-Portrait-of-Foreign-Born-Children-in-Federal-Foster-Care-and-How-to-Best-
28 Meet-Their-Needs_USCCB-December-2012.pdf.

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1 so lucky, suffering abuse, neglect, or abandonment within the United States itself. Some of these

2 children are turned over to DHS after contact with the juvenile justice system, while DHS arrests

3 others during general immigration enforcement activities.

4 38. Although they have entered the immigration system in different ways, Plaintiffs and the

5 putative class they seek to represent share two fundamental characteristics. First, the Government

6 has initiated immigration proceedings in order to remove them from the United States and,

7 despite their inability to secure counsel, will force them to appear unrepresented in complex,

8 adversarial court proceedings against trained ICE attorneys. Second, all of them are under the

9 age of 18, and therefore lack the intellectual and emotional capacity of adults.

10

B. The Structure of Immigration Proceedings for Children

11 39. Immigration proceedings pit the Government against the child in an adversarial process

12 where each side is presumed to have the ability to represent its own interests. An attorney trained

13 in substantive immigration law and immigration court procedures represents the Government.

14 This attorney acts as a prosecutor, and seeks to establish the child’s removability. Each side is

15 expected to present facts and legal arguments to an Immigration Judge, after which the Judge

16 ultimately makes a determination in favor of the Government or the child. In most cases, either

17 side can then appeal the decision to the BIA. A litigant may obtain judicial review of removal

18 orders issued by the BIA by filing a “petition for review” in the federal court of appeals

19 governing the place of the removal hearing. As explained below (and as should be obvious),

20 unrepresented children are not capable of filing such petitions.

21 40. The facts and legal arguments at issue in immigration cases are often complex. The

22 federal courts have repeatedly observed that “the immigration laws have been termed second

23 only to the Internal Revenue Code in complexity.” Baltazar-Alcanzar v. INS, 386 F.3d 940, 948

24 (9th Cir. 2004) (citation and quotation marks omitted); Padilla v. Kentucky, 559 U.S. 356, 369

25 (2010) (“Immigration law can be complex, and it is a legal specialty of its own.”). The same

26 substantive immigration law generally governs the cases of both adults and children. Decl. of

27 David O. Thronson, Dkt. 59, ¶11.

28

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1 41. A child’s lack of legal representation in immigration proceedings dramatically 2 undermines her ability to present defenses to and seek relief from removal, even at the earliest 3 stages. At initial hearings, an Immigration Judge may ask the child to accept or deny the 4 Government’s charges and may accept factual testimony or evidence that allows the Government 5 to meet its burden of establishing the child’s removability, such as the record of deportability. Id. 6 ¶13; Decl. of Eve Stotland, Dkt. 33, ¶¶5-8. 7 42. In addition, without the assistance of an attorney, children are unlikely to be aware of 8 procedural defenses against removal that must be raised in these initial hearings. For example, 9 some children have arguments that the immigration proceedings must be terminated because of 10 constitutional or regulatory violations. See, e.g., Matter of Mejia-Andino, 23 I. & N. Dec. 533, 11 536 (BIA 2002) (en banc) (concluding that proceedings against seven-year-old child were 12 properly terminated due to failure to properly serve the charging document). Even if a child is 13 aware of such a defense, moving an Immigration Judge to terminate the proceedings on such 14 grounds requires the ability to gather and understand facts surrounding one’s arrest, the 15 interaction between different state and federal agencies, and complex regulatory and 16 constitutional law. The child bears the burden of establishing that the Government obtained its 17 evidence in a manner that requires suppression. See Matter of Barcenas, 19 I. & N. Dec. 609, 18 611 (BIA 1988). 19 43. Eventually, children are also asked to state what forms of relief from removal they wish 20 to seek and how long they will need to complete the applications for relief. Dkt. 59, ¶14. Even 21 identifying defenses or other avenues to relief from removal, let alone prevailing on them, often 22 requires substantial factual investigation and legal research. For example, a number of children 23 facing removal have fled persecution in their home countries. However, the immigration laws 24 put the burden on the child to prove eligibility for asylum. See 8 U.S.C. § 1158(b)(1)(B)(i). 25 Establishing such eligibility requires the child to present significant amounts of evidence and 26 sophisticated legal arguments. As a result, asylum claims brought by pro se children “frequently 27 fail due to burdensome legal standards and incorrect application of legal principles . . . . even

28

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1 when it has been determined that the child suffered egregious harm rising to the level of 2 persecution and is likely to suffer persecution in the future.”12

3 44. As with asylum, children bear the burden of demonstrating eligibility for other forms of

4 relief from deportation. See 8 U.S.C. § 1229a(c)(4) (stating that applicant for relief from removal

5 in immigration proceedings bears burden to demonstrate both eligibility requirements of the

6 particular form of relief, and, if applicable, merits relief as a matter of discretion). These other

7 forms of relief include Special Immigrant Juvenile Status (“SIJS”), which is available to a child

8 when a state juvenile court declares that the child’s reunification with one or both parents is not

9 viable due to abuse, neglect, abandonment, or a similar basis under state law, see 8 U.S.C. §

10 1101(a)(27)(J)(i); U-visas, which are available to children who have been the victims of certain

11 serious crimes if they would be helpful to the authorities in an investigation or prosecution, see

12 id. §§ 1101(a)(15)(U)(i)(III), 1184(p)(1); T-visas, which protect victims of “severe” forms of

13 human trafficking, see id. § 1101(a)(15)(T)(i)(I); family visas, where a parent who is a U.S.

14 citizen or lawful permanent resident is able to file a visa petition on their child’s behalf, see id.

15 §§ 1151-1154, as well as other forms of relief. Meeting the eligibility requirements for all of

16 these forms of relief requires the child to carefully marshal both facts and law. The child must

17 not only demonstrate substantive eligibility for relief, but also be able to follow procedures for

18 submitting the appropriate applications to different agencies of the Government, along with the

19 required supporting evidence.

20 45. Because of their age, children lack the ability to assert defenses and claims to relief by

21 themselves. “A child’s age is far more than a chronological fact. It is a fact that generates

22 commonsense conclusions about behavior and perception . . . . [that] apply broadly to children as

23 a class.” J.D.B. v. North Carolina, 131 S. Ct. 2394, 2403 (2011) (internal quotation marks and

24 citations omitted). These commonsense conclusions are grounded not only in “what any person

25 knows [] about children generally,” id., but also in scientific studies that “continue to show

26 fundamental differences between juvenile and adult minds.” Graham v. Florida, 560 U.S. 48, 68

27 (2010) (citing amicus briefs from medical and psychological professional associations).

28 12 A Treacherous Journey at 20.
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1 46. For example, children possess a reduced capacity to comprehend the consequences of

2 their actions and decisions, and they are often more receptive to adult influence, in part because

3 many of them have been taught not to challenge authority and to please the adults around them.

4 See Dustin Albert & Laurence Steinberg, Judgment and Decision Making in Adolescence, 21 J.

5 Research on Adolescence 211, 220 (2011), available at

6 http://behaviorchangeresearchnetwork.pbworks.com/w/file/fetch/49649607/Albert%20%26%20

7 Steinberg%20(2011).pdf (noting that “adults tend to make more adaptive decisions than

8 adolescents,” in part because “they have a more mature capacity to resist the pull of social and

9 emotional influences and remain focused on long-term goals”). As a result, they are frequently

10 more susceptible to suggestion and leading questions, and at times have difficulty distinguishing

11 between people who are seeking to protect their interests and those who are not. Children in the

12 immigration enforcement system are often even more vulnerable than other children, since many

13 of them arrive in the United States after having experienced serious trauma in their countries of 14 origin or during their journeys to the United States.13

15 47. The interests at stake in these complex proceedings could scarcely be higher: children

16 face expulsion from this country to a land where they often lack family or other support. Many of

17 them fled their home countries in order to escape persecution, torture, or death; deportation to the

18 country from which the child fled is often not in their best interest. See Cindy Carcamo, In

19 Honduras, U.S. Deportees Seek to Journey North Again, L.A. Times, Aug. 16, 2014, available at

20 http://www.latimes.com/world/mexico-americas/la-fg-honduras-deported-youths-20140816-

21 story.html (“‘There are many youngsters who only three days after they have been deported are

22 killed, shot by a firearm,’ said Hector Hernandez, who runs the morgue in San Pedro Sula. ‘They

23 return just to die.’”); see also Wendy Young & Megan McKenna, The Measure of a Society: The

24 Treatment of Unaccompanied Refugee and Immigrant Children in the United States, 45 Harv.

25 C.R.-C.L. L. Rev. 247, 254 (2010) (describing case of Edgar Chocoy, a child whose asylum

26 claim was denied and who was then murdered 17 days after he was sent back to Guatemala);

27 13 UNHCR Report at 6 (finding that 48% of children interviewed for study had been “personally

28 affected by the augmented violence” in their countries of origin and that 21% had “survived

abuse and violence in their homes by their caretakers”).

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1 Jacqueline Bhabha, “Not a Sack of Potatoes”: Moving and Removing Children Across Borders, 2 15 B.U. Pub. Int. L.J. 197, 203 (2006) (noting that Chocoy was unrepresented in his immigration 3 proceedings).14 4 48. Moreover, the civil removal orders issued against children in immigration proceedings 5 bear the same consequences as those issued against adults. Those consequences include not only 6 bars to future admission to the United States (if the child would otherwise have been eligible for 7 a visa), but also the prospect of criminal prosecution should they attempt to reenter the United 8 States. 9 49. Forcing children to appear in immigration court without representation ensures that 10 thousands of children are deprived of a full and fair opportunity to identify defenses or seek 11 relief for which they qualify. A 2014 report by the United Nations High Commissioner for 12 Refugees, for example, suggests that over half of all unaccompanied children fleeing to the 13 United States from Central America have potential claims under the asylum laws, while a 14 slightly older report found that as many as 40% of unaccompanied children in removal 15 proceedings were eligible for some form of immigration relief.15 Despite such estimates, only a 16 small number of children actually receive such relief.16 This gap is likely due in large part to the 17 absence of counsel. The presence of counsel makes a real difference for the children fortunate 18 enough to receive legal representation. Data confirms what common sense and experience 19 strongly suggest: children with lawyers are far more likely to identify and prevail on defenses to 20 removal that the law makes available to them. See Transactional Records Access Clearinghouse, 21 New Data on Unaccompanied Children in Immigration Court, Table 5 (July 15, 2014),

22 14 See also Human Rights Watch, “You Don’t Have Rights Here”: U.S. Border Screening and
23 Returns of Central Americans to Risk of Serious Harm (Oct. 2014), available at http://www.hrw.org/sites/default/files/reports/us1014_web.pdf (observing that in Honduras,
24 young boys and girls are frequently targets for gang recruitment and sexual violence). 15 UNHCR Report at 6; Olga Byrne & Elyse Miller, The Flow of Unaccompanied Children
25 Through the Immigration System: A Resource for Practitioners, Policy Makers, and
26 Researchers, Vera Institute of Justice 4 (Mar. 2012), http://www.vera.org/sites/default/files/resources/downloads/the-flow-of-unaccompanied-
27 children-through-the-immigration-system.pdf.

28 16 See, e.g., A Treacherous Journey at 19 n.94, 38, 48.

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1 http://trac.syr.edu/immigration/reports/359/ (describing disparity in outcomes between 2 unrepresented and represented children). 3 50. A child’s inability to perform the basic functions of self-representation not only adversely 4 affects her chances of succeeding in her immigration case, but also imposes insurmountable 5 impediments on her ability to seek administrative and judicial review of a final removal order. 6 Just like an adult, a child who wishes to appeal a removal order issued by an Immigration Judge 7 must file an administrative appeal with the BIA within thirty days. See 8 C.F.R. § 1003.3(a). 8 Regulations require the child to “identify the reasons for the appeal . . . in order to avoid 9 summary dismissal.” Id. § 1003.3(b). The child must also, among other things, “specifically 10 identify the findings of fact, the conclusions of law, or both that are being challenged,” express a 11 preference as to oral argument, and state an intention either to file or not file a separate written 12 brief in support of the appeal. Id.; see also Matter of R-S-H-, 23 I. & N. Dec. 629, 638 (BIA 13 2003) (“Moreover, the record does not reflect that the respondent raised any objections to the 14 attorneys’ presence at the hearing. Therefore, the respondent waived his opportunity to pursue 15 this issue on appeal.”). In addition, appeals are conducted based on the record developed before 16 the Immigration Judge. A pro se child who cannot develop a robust record would have very little 17 chance of prevailing on appeal, even if she could somehow manage to file the papers necessary 18 to begin the appellate process. 19 51. If the BIA affirms the child’s removal order, the child has the theoretical right to seek 20 judicial review of that order in the federal court of appeals via a petition for review filed within 21 thirty days. See generally 8 U.S.C. § 1252; INS v. St. Cyr, 533 U.S. 289, 313-14 (2001). But as a 22 prerequisite to obtaining federal court review, the child must first exhaust administrative 23 remedies before the Immigration Judge and the BIA. See 8 U.S.C. § 1252(d) (stating that petition 24 for review can be filed only after administratively final removal order). Absent exceptional 25 circumstances, a reviewing federal court will not address arguments not raised before the agency. 26 See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (finding that petitioners who were pro 27 se at BIA were required to exhaust arguments there before raising them to court of appeal). None

28

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1 of the child Plaintiffs, from one-year-old M.R.J., to eleven-year-old E.G.C., to 16-year-old 2 F.L.B., can even comprehend this process, much less avail themselves of it. 3 52. Past experience confirms that virtually all (if not all) children in immigration proceedings 4 are unable to perform these appellate tasks. Experts in the field who have represented hundreds 5 of children for years cannot recall ever seeing a pro se child appeal any issue even to the BIA, let 6 alone to the federal courts. Decl. of David B. Thronson, Dkt. 59, ¶20; see also Decl. of Jojo 7 Annobil, Dkt. 61, ¶18; Decl. of William O. Holston, Jr., Dkt. 57, ¶13. 8 53. These limitations pose particular barriers to raising the claims that Plaintiffs have asserted 9 in this case. Plaintiffs and the putative class members raise claims for appointed legal 10 representation in their immigration proceedings, pursuant to the Immigration and Nationality Act 11 (“INA”) and the Due Process Clause. See infra, Section VII. By definition, such claims can be 12 raised before an Immigration Judge only by children who lack legal representation. But as 13 described above, children without legal representation are unable to assert or preserve even basic 14 claims on their own behalf, much less make complex arguments about their entitlement to 15 counsel in their immigration proceedings. 16 54. Indeed, the undersigned have searched extensively for any case in which a pro se child 17 filed a petition for review to a court of appeals asserting a right to counsel in immigration 18 proceedings, but have found none. In light of the thousands of children’s immigration cases that 19 are decided every year, this absence is strong evidence that the normal channels of judicial 20 review are simply not available for children seeking to litigate the claims raised in this case. 21 Even if a pro se child could somehow file an appeal of her counsel claim to the BIA and then to 22 the court of appeals, this would not result in a meaningful review of a claim for appointed 23 counsel. For a child to obtain such review, she would have to not only navigate the formal 24 complexities of a petition for review, but would also have to develop a record containing 25 adequate evidence relevant to the statutory and constitutional issues before the Immigration 26

27

28

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1 Judge and preserve all of the relevant issues for review. Children, by reason of their lack of 2 capacity, cannot carry out these functions.17

3 55. For children like Plaintiff G.J.C.P. who have been ordered removed in absentia—due, in

4 nearly all cases, to circumstances beyond their control—judicial review is even further out of 5 reach.18 An in absentia removal order, which can be immediately executed, cannot be appealed.

6 See Matter of Guzman, 22 I. & N. Dec. 722, 723 (BIA 1999) (holding BIA lacks jurisdiction

7 over appeal filed by respondent ordered removed in absentia). Thus, any claim, including a

8 counsel claim, preserved prior to the order’s issuance is of no immediate consequence, as the

9 BIA and the federal courts cannot directly review it. Instead, in order to obtain any redress, these

10 children must first file a motion to rescind the removal order and reopen their removal

11 proceedings before the Immigration Judge. In most cases, these motions are subject to strict time,

12 numerical, and substantive limitations and must comport with strict procedural requirements. See

13 8 U.S.C. § 1229a(b)(5)(C); 8 C.F.R. § 1003.23(b)(4)(ii)-(iii); 8 C.F.R. § 1003.23(b)(1)(i)-(ii).

14 Under the immigration statute, there are two primary situations where individuals who were

15 ordered deported in absentia can reopen their cases: (1) where they did not receive proper notice

16 of the hearing, and (2) where they did not appear at their hearing because of exceptional

17 circumstances. See id. Establishing that either situation exists involves complex legal and factual 18 inquiries.19 For example, in order to prove that notice was improper, a person must consider

19 whether the notice complied with the statutory standards regarding content and service, see 8

20 U.S.C. § 1229(a), and where it appears that service was proper, submit substantial evidence to

21

17 EOIR’s recently-issued “Friend of Court Guidance” makes clear that legal service providers 22 cannot file and litigate appeals for children in their Friend of Court role. Because of their

23 “advisory role,” such individuals “‘can file no pleadings or motions of any kind,’ ‘can reserve no exception to any ruling of the court, and of course cannot prosecute an appeal.’” The Office of

24 the Chief Immigration Judge, “Friend of the Court Guidance,” U.S. Dep’t of Justice, Executive

Office for Immigration Review 2 (Sept. 10, 2014), available at 25 http://www.ilw.com/immigrationdaily/news/2014,0911-DOJ.pdf (quoting In re Perry, 148 N.E.

163, 165 (Ind. App. 1925)). 26 18 This Court ruled that 8 U.S.C. 1252(g) stripped the Court of jurisdiction to entertain G.J.C.P.’s

27 claim for appointed counsel, due to her in absentia order. See Dkt. 114 at 11. Plaintiffs continue to assert the claim here in order to preserve it for review.
28 19 See generally Beth Werlin, Practice Advisory: Rescinding an In Absentia Order of Removal

(Mar. 2010), available at http://www.legalactioncenter.org/sites/default/files/lac_pa_092104.pdf.

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1 overcome a presumption of proper delivery. See, e.g., Matter of M-R-A-, 24 I. & N. Dec. 665

2 (BIA 2008). Likewise, in order to prove exceptional circumstances—which the statute says

3 “refers to exceptional circumstances (such as battery or extreme cruelty to the alien or any child

4 or parent of the alien, serious illness of the alien, or serious illness or death of the spouse, child,

5 or parent of the alien, but not including less compelling circumstances) beyond the control of the

6 alien”, 8 U.S.C. § 1229a(e)(1)—a person must submit evidence to document the claim and often

7 must establish diligence in avoiding the in absentia order. See, e.g., Matter of J-P-, 22 I. & N.

8 Dec. 33, 34-36 (BIA 1998). Children like G.J.C.P. have no hope of understanding or accessing

9 the administrative mechanisms for reopening their cases without legal representation. If they fail

10 to move for reopening, they will have no avenue for appellate review (either administrative or

11 judicial). Because the removal order is already effective, they can be deported at any time. And

12 even if they somehow were to succeed in reopening, all they would win is another opportunity to

13 litigate their cases in the same lopsided fashion as all of the other unrepresented children the

14 Government is trying to deport.

15

C. The Federal Government’s Response to the Legal Needs of Children Facing

Deportation
16 56. Although the Government initiates deportation cases against thousands of children each

17 year, it does not ensure legal representation for many of them. This presents a tremendous

18 problem because the vast majority of such children cannot afford private representation. Studies

19 suggest that a significant portion of children who might be subject to removal proceedings are

20 living in poverty and clearly financially unable to obtain legal representation. See, e.g., Seth

21 Motel and Eileen Patten, Pew Research Center, Statistical Portrait of the Foreign-Born

22 Population in the United States, 2011 Table 37 (2013), available at

23 http://www.pewhispanic.org/2013/01/29/statistical-portrait-of-the-foreign-born-population-in-

24 the-united-states-2011/#poverty-by-age-and-region-of-birth-2011 (a third of all foreign born

25 individuals under 18 years old live in poverty); Jeffrey S. Passel and D’Vera Cohn, Pew

26 Research Center, A Portrait of Unauthorized Immigrants in the United States (2009) available

27 at http://www.pewhispanic.org/2009/04/14/a-portrait-of-unauthorized-immigrants-in-the-united-

28 states/ (finding that a third of children of unauthorized immigrants live in poverty).

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1 57. Numerous advocates have pointed out the injustice of this practice, and called for the

2 Government to provide representation for children facing deportation. See, e.g., Wendy Young &

3 Megan McKenna, supra ¶ 43; M. Aryah Somers, Zealous Advocacy for the Right to Be Heard

4 for Children and Youth in Deportation Proceedings, 15 CUNY L. Rev. 189 (2011); Julie Myers

5 Wood & Wendy Young, Children Alone and Lawyerless in a Strange Land, The Wall Street

6 Journal, Sept. 22, 2013, available at 7 http://online.wsj.com/news/articles/SB10001424127887324492604579083400349940432;20

8 Sonia Nazario, Child Migrants, Alone in Court, N.Y. Times, Apr. 10, 2013, A23, available at

9 http://www.nytimes.com/2013/04/11/opinion/give-lawyers-to-immigrant-children.html?_r=0.

10 58. Since Plaintiffs filed the original complaint, the need for legal representation has

11 remained acute. Shortly after the filing, the Government began to “prioritize” the immigration

12 proceedings of recently-arrived children by placing their cases on expedited dockets, otherwise

13 known as “rocket dockets.” See supra n.3. News reports from across the country have

14 documented the hearings taking place on these “rocket” dockets. See, e.g., Meredith Hobbs,

15 Lawyers Say ‘Rocket Dockets’ Risk Due Process, The Daily Report (Aug. 29, 2014),

16 http://www.dailyreportonline.com/id=1202668537443/Lawyers-Say-Rocket-Dockets-Risk-Due-

17 Process?slreturn=20140921161115 (reporting that, in the Atlanta Immigration Court,

18 “unaccompanied children on the fast-track dockets are being given only 30 days or less from

19 their first appearance until their second hearing, when they are generally required to plea to the

20 charging documents”); Dianne Solis, Rocket Dockets May Be Jettisoning Justice for Immigrant

21 Children, The Dallas Morning News (Aug. 27, 2014),

22 http://www.dallasnews.com/news/metro/20140827-rocket-dockets-may-be-jettisoning-justice-

23 for-immigrant-children.ece (reporting on Dallas children’s rocket dockets); John Fritze,

24 Immigration Court Speeds Review of Cases Involving Children, Baltimore Sun (Aug. 20, 2014),

25 http://articles.baltimoresun.com/2014-08-20/news/bs-md-immigration-rocket-docket-

26 20140820_1_immigration-cases-u-s-immigration-catholic-charities (“Baltimore Immigration

27

28 20 Ms. Myers Wood was the Assistant Secretary of Homeland Security for Immigration and

Customs Enforcement under President George W. Bush.

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1 Court, facing an increase in the number of cases involving immigrant children who crossed the

2 border illegally, is expediting reviews to more quickly decide whether the children should be

3 deported, according to attorneys with clients before the court.”); Kirk Semple, Advocates in New

4 York Scramble as Child Deportation Cases Are Accelerated, N.Y. Times (Aug. 4, 2014),

5 http://www.nytimes.com/2014/08/05/nyregion/advocates-scramble-as-new-york-accelerates-

6 child-deportation-cases.html; Julie Kay, Miami Immigration Court Adopts ‘Rocket Docket’ to

7 Handle Unaccompanied Minor Cases, Daily Bus. Rev. (Aug. 4, 2014)

8 http://www.dailybusinessreview.com/id=1202665758127/Miami-Immigration-Court-Adopts-

9 Rocket-Docket-to-Handle-Unaccompanied-Minor-Cases?slreturn=20140916180220 (stating that

10 three Immigration Judges “appealed to local immigrant advocacy groups . . . for pro bono help

11 for the children. They said they would be rushing 150 kids a day through the immigration

12 process”); Molly Hennessy-Fiske, Young Immigrants Must Risk Deportation for Chance to Gain

13 Legal Status, L.A. Times (Aug. 3, 2014), http://www.latimes.com/nation/immigration/la-na-

14 immigration-law-20140803-story.html#page=1 (describing “fast-tracked unaccompanied youths’ 15 initial hearings” in Los Angeles).21

16 59. After the hearing on the motion for preliminary injunction in this case, the Government

17 issued guidance stating that Immigration Judges are not required to expedite cases by limiting

18 the number or length of continuances available to children who are seeking legal representation.

19 Brian M. O’Leary, Docketing Practices Relating to Unaccompanied Children Cases in Light of

20 the New Priorities (Sep. 9, 2014), at 2; see also Brian M. O’Leary, Docketing Practices Relating

21 to Unaccompanied Children Cases and Adults with Children Released on Alternatives to

22 Detention Cases in Light of the New Priorities (Mar. 24, 2015), at 2. Yet, in addition to news

23

24 21 See also Decl. of William O. Holston Jr., Dkt. 57, ¶¶6-10 (Immigration Judge stated that the

court has received guidance requiring them to expedite children’s cases; court previously 25 provided unrepresented children two to three months after their first hearing to find an attorney,

but since August has provided as little as one week); Decl. of Scott Bratton, Dkt. 60, ¶4 26 (describing rocket docket in Cleveland); Decl. of Jojo Annobil, Dkt. 61, ¶¶9-15 (describing

27 rocket docket in New York City); Decl. of Erin Apte, Dkt. 62, ¶¶ 3-5 (Immigration Judge provided pro se children in Seattle with three weeks to find attorneys); Decl. of Sonia Gutierrez,

28 Dkt. 64, ¶7 (Immigration Judge provided pro se children in Los Angeles with about five weeks

to find attorneys).

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1 reports, evidence from legal services providers and observers shows that in practice, many 2 Immigration Judges throughout the country are giving children far less time than they did 3 previously to find lawyers or prepare their cases. Judges are also forcing children to proceed 4 without representation, including by ordering them removed in absentia, and ordering them to 5 plead to charges, fill out asylum applications, take voluntary departure, or be ordered removed 6 when they do appear. 7 60. Numerous children have already received in absentia removal orders as a consequence of 8 these rocket dockets. One news article reported that between July 18, 2014 and July 28, 2015, of 9 the approximately 29,200 children who were scheduled for hearings in immigration court, 10 Immigration Judges issued over 6,300 in absentia removal orders against children who failed to 11 appear in court. See David Rogers, Obama Plan Leaves Child Migrants Adrift, Politico (Aug. 11, 12 2015), http://www.politico.com/story/2015/08/obama-plan-leaves-child-migrants-adrift13 121254#ixzz3iWQ2IbRV. But as the experiences of G.J.C.P. and J.E.V.G. illustrate, and as the 14 testimony of legal services providers shows, many such children likely failed to appear in court 15 for reasons beyond their control, such as hearing notices being issued to incorrect addresses, 16 hearing notices that were received days after the hearing actually took place, or hearing notices 17 that were never received at all. See Decl. of Tin Thanh Nguyen, Dkt. 63, ¶¶12-13 (to the best of 18 declarant’s recollection, Immigration Judge at the Charlotte Immigration Court ordered removed 19 in absentia all children who did not appear to hearings on July 31, 2014 and August 12, 2014; 20 one child who appeared in court had received fewer than four days’ notice); Decl. of Simon 21 Sandoval-Moshenberg, Dkt. 34, ¶¶9-12 (describing children living in Virginia who received 22 notice only two days prior to a hearing in Los Angeles Immigration Court); Decl. of Stacy 23 Tolchin, Dkt. 31, ¶¶3-5 (same). See also Odette Yousef, Lawyers Fear Speedy Deportations 24 Harm Minors, WBEZ 91.5 (Aug. 27, 2014), http://www.wbez.org/news/lawyers-fear-speedy25 deportations-harm-minors-110715 (reporting that legal service providers filed 200 change of 26 venue motions on one day for children who were scheduled for hearings at the Chicago 27 Immigration Court but no longer lived in the area).

28

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1 61. For these and other reasons, children like G.J.C.P. and J.E.V.G. are far more likely to 2 appear in court when they have legal representation. As a statistical matter, it is very likely that 3 they would not have been ordered removed had they had legal representation. Children with 4 representation appear in court at vastly higher rates than do children without legal representation. 5 See Decl. of Stephen Kang, Dkt. 25, Exh. P (collecting data establishing that over 93% of 6 represented children appear for all court proceedings, whereas only 27.5% of unrepresented 7 children appear for all proceedings). 8 62. While the Government has taken limited steps to afford legal representation to some 9 children facing deportation, its efforts have fallen well short of ensuring representation for every 10 child it seeks to deport with this new-found vigor and speed. For the past couple of years, the 11 Government has funded legal representation for a fraction of the children in ORR detention 12 facilities, and then initiated programs in Houston, Texas, and Los Angeles, California to afford 13 legal representation to certain children released from ORR custody. But these programs failed to 14 provide all children even in those two regions with representation, and more recent and broader15 based efforts will also fall far short of providing comprehensive coverage. 16 63. In October 2013, Plaintiffs’ counsel sent a letter to Defendants urging them to take 17 additional steps to ensure that all children in immigration proceedings are provided legal 18 representation. Ex. A, Letter regarding Counsel for Immigrants in Removal Proceedings. In 19 January 2014, Plaintiffs’ counsel met with officials from DHS, DOJ, and ORR to discuss the 20 concerns expressed in the letter. 21 64. In June 2014, the Government announced a new “strategic partnership” to “facilitat[e] the 22 effective and efficient adjudication of immigration proceedings involving certain children who 23 have crossed the border without a parent or legal guardian.” See justice AmeriCorps Legal 24 Services for Unaccompanied Children, Corporation for Nat’l & Comm. Serv., available at 25 http://www.nationalservice.gov/build-your-capacity/grants/funding-opportunities/2014/justice26 americorps-legal-services (last visited June 9, 2014). Under this program, the Government has 27 awarded $1.8 million to legal services providers in order to support living allowances for 100 28 legal fellows who represent children under 16 in removal proceedings in selected areas of the

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1 country. See Dep’t of Justice Office of Public Affairs, Justice Department and CNCS Announce 2 $1.8 Million in Grants to Enhance Immigration Court Proceedings and Provide Legal 3 Assistance to Unaccompanied Children (Sept. 12, 2014), available at 4 http://www.justice.gov/opa/pr/justice-department-and-cncs-announce-18-million-grants5 enhance-immigration-court-proceedings; see also Equal Justice Works, Equal Justice Works 6 Receives $1.2 Million for justice AmeriCorps Partnership, 7 http://www.equaljusticeworks.org/news/09-12-14-justice-americorps. 8 65. Justice AmeriCorps, even if it continues to be funded in future years, will still fall far 9 short of meeting the need created by the Government’s policy of deporting children without 10 representation, for several reasons. First, the program does not ensure representation for every 11 child even for those populations it explicitly targets. Second, the program funds representation 12 only for children younger than 16, thereby excluding a substantial number of children who face 13 removal, including several of the Plaintiffs. Announcement of Federal Funding Opportunity, 14 Corp. for Nat’l and Comy. Serv., 2014 justice AmeriCorps Legal Services for Unaccompanied 15 Children 31 (June 6, 2014), available at 16 http://www.nationalservice.gov/sites/default/files/upload/JusticeAmeriCorpsNOFO.pdf(defining 17 “[u]naccompanied children” as “children under the age of 16”). And finally, this initiative 18 devotes only limited resources to the problem. After its announcement, advocates noted that the 19 Government’s program “at best . . . would only touch a fraction of all the unaccompanied minors 20 expected to appear in court in the coming months.” Kirk Semple, Youths Facing Deportation to 21 Be Given Legal Counsel, N.Y. Times, June 6, 2014, A11, available at 22 http://www.nytimes.com/2014/06/07/us/us-to-provide-lawyers-for-children-facing23 deportation.html?_r=0. 24 66. In late 2014, the Government announced plans to award the U.S. Conference of Catholic 25 Bishops and the U.S. Committee for Refugees and Immigrants an additional $9 million over a 26 12-month period (September 30, 2014 to September 29, 2015) to provide legal representation to 27 some unaccompanied children through a program overseen by ORR. See Announcement of the 28 Award of Two Single-Source Program Expansion Supplement Grants To Support Legal Services

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1 to Refugees Under the Unaccompanied Alien Children’s Program, 79 Fed. Reg. 62,159-01 (Oct. 2 16, 2014). The program is estimated to provide representation to 2,600 children in nine 3 immigration courts, id., but fails to cover all children released to sponsors in its target cities. 4 67. In June 2015, the Government issued a Request for Proposals as part of an additional 5 program that would fund direct representation of certain children who were previously in ORR 6 custody and are in immigration proceedings in one of nine cities. Department of Health and 7 Human Services, Legal Service Providers Solicitation Notice, RFP15-233-SOL-00264 (Jun. 15, 8 2015), available at 9 https://www.fbo.gov/index?s=opportunity&mode=form&id=a0ad02223e2e3aa94eda83de4b4891 10 f8&tab=core&_cview=1. Yet, this and other government-funded counsel programs have simply 11 not met the need for legal representation. As of September 2015 (the most recent publicly12 available data), children in more than 32,700 pending immigration cases remained 13 unrepresented. Transactional Records Access Clearinghouse, Juveniles — Immigration Court 14 Deportation Proceedings, http://trac.syr.edu/phptools/immigration/juvenile/ (last visited Oct. 16, 15 2015). 16 68. Several important actors within the Government have also indicated more generally that 17 they would support a system that provided representation for all children. In a House Committee 18 on Appropriations Report, the Committee commented on the existence of pilot programs created 19 “to explore ways to better serve vulnerable populations such as children and improve court 20 efficiency through pilot efforts aimed at improving their legal representation,” but specified “that 21 such pilots shall not require the U.S. Government to bear any expense for legal representation for 22 any alien in removal proceedings, except to the extent required by Federal court order.” See H.R. 23 Rep. 113-448, at 42 (2014).22 24 25
22 The Administration had previously requested an allocation of $5,824,000 for EOIR to 26 “develop, implement and evaluate a pilot program to provide counsel for unaccompanied alien 27 children.” See White House Proposed Budget for FY 2015, Department of Justice, General
Administration, Federal Funds, available at 28 http://www.whitehouse.gov/sites/default/files/omb/budget/fy2015/assets/jus.html.

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1 69. Former Attorney General Eric Holder, previously a Defendant in this case, also indicated

2 support for the relief sought in this case, stating that “[i]t is inexcusable that young kids—. . . six-

3 , seven-year-olds, fourteen-year-olds—have immigration decisions made on their behalf, against

4 them, . . . and they’re not represented by counsel. That’s simply not who we are as a nation. It’s

5 not the way in which we do things.” Senate Judiciary Committee Hearing on Oversight of the

6 Justice Department at 1:30:00-1:30:17 (Mar. 6, 2013) (video available at

7 http://www.judiciary.senate.gov/meetings/oversight-of-the-us-department-of-justice-2013-03-

8 06). More recently, he stated that although children “may not” have a constitutional right to legal

9 representation, “we have policy reasons and a moral obligation to insure [sic] the presence of

10 counsel” in children’s immigration proceedings. Attorney General Eric Holder, Remarks at the

11 Hispanic National Bar Association 39th Annual Convention (Sep. 12, 2014) (transcript available

12 at http://www.justice.gov/opa/speech/remarks-attorney-general-eric-holder-hispanic-national13 bar-association-39th-annual).23

14 70. Even the materials that Defendants distribute to unaccompanied children in their custody

15 describe the importance of legal representation for those seeking relief from deportation. See

16 Office of Refugee Resettlement, Legal Resource Guide - Know Your Rights Handout at 5 (Jul. 8,

17 2014), available at

18 https://www.acf.hhs.gov/sites/default/files/orr/lrg_3_kyr_handout_e07_08_14.pdf (“You should

19 always speak with a lawyer to see if you qualify for any form of legal relief.”); id. at 4 (“If you

20 think you might qualify for legal relief, it is very important that you speak with a lawyer who can

21 help explain it to you further.”).

22 71. In the meantime, the Government continues to send unrepresented children like the

23 Plaintiffs in this case to face off against ICE trial attorneys who argue for their deportation before

24 Immigration Judges.

25

D.

The Plaintiffs

26 23 The Administration also previously supported Senate Bill S. 744, the bipartisan comprehensive 27 immigration reform legislation. That bill includes a provision requiring appointed counsel for a
large subset of children in the putative class at issue here—all “unaccompanied alien children.” 28 See S. 744, 13th Cong. § 3502 (2013).

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1 J.E.F.M. 2 72. J.E.F.M. is an 11-year-old boy, and a native and citizen of El Salvador. He presently 3 resides in Washington State. He is the youngest of four children born to his parents. His father 4 was a former gang member, who then converted to Christianity and later became a pastor. 5 J.E.F.M.’s mother was also a pastor. His parents met at church and together they started a 6 rehabilitation center for people leaving gangs. Gang members retaliated against the center for 7 housing young people trying to leave the gangs. First, they warned J.E.F.M.’s parents to stop 8 assisting former gang members. Then they killed J.E.F.M.’s cousin. Two weeks later, gang 9 members murdered J.E.F.M.’s father in the street in front of their house, while J.E.F.M. and his 10 siblings watched. J.E.F.M.’s mother continued to be threatened after this incident, so she fled the 11 country, leaving her children with their grandmother. 12 73. Approximately seven years later, the children also became targets of gang members in El 13 Salvador. Gang members demanded that the children join and threatened them with harm if they 14 did not. Rather than enter the gang, J.E.F.M. fled with his two older siblings. At the time he was 15 only nine years old. 16 74. J.E.F.M. and his two siblings entered the United States around July 2013, were 17 apprehended by U.S. Customs and Border Protection (“CBP”), and then placed in the custody of 18 ORR. They were released to a family member fifteen days later. They have been residing in 19 Washington State since their release. 20 75. In September 2014, he appeared, without counsel, before an IJ in Seattle, Washington to 21 plead to the charges of removability and to assert any defenses against his removal. During that 22 hearing, the IJ continued the case until May 2015, warning that if he and his siblings, J.F.M. and 23 D.G.F.M., did not have an attorney at the May hearing, their mother would have to represent 24 them. See Dkt. 78 ¶3. Before that hearing took place, however, J.E.F.M. and his siblings were 25 scheduled for their asylum interviews with USCIS. They were subsequently able to obtain pro 26 bono representation for the asylum interviews with a USCIS officer. USCIS granted J.E.F.M. 27 asylum at the end of May. Dkt. 154-1 at A-1 & A-2. The IJ in his case subsequently terminated 28 proceedings against J.E.F.M. This Court then dismissed his claims as moot. Dkt. 174 at 7. He

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1 remains a Plaintiff here solely to preserve for review his claim to represent the class. He was not 2 financially able to pay for legal representation. J.E.F.M appears by his next friend, Bob Ekblad. 3 Mr. Ekblad is a minister who has worked closely with J.E.F.M. and his family; he is familiar 4 with J.E.F.M.’s immigration case and is truly dedicated to his best interests in this case. 5 J.F.M. 6 76. J.F.M. is a 14-year-old boy and a native and citizen of El Salvador. He presently resides 7 in Washington. He is the older brother of J.E.F.M. He also saw his father killed, was later 8 threatened by gang members, and left El Salvador at the same time and for the same reasons as 9 his younger brother. 10 77. Like his brother, J.F.M. appeared, without counsel, before an IJ in Seattle, Washington in 11 September 2014, and was later represented by pro bono counsel before USCIS and granted 12 asylum. Subsequently, the IJ terminated the children’s cases in immigration court. He remains a 13 Plaintiff here solely to preserve for review his claim to represent the class. J.F.M. was not 14 financially able to pay for legal representation. He appears by his next friend, Bob Ekblad. Mr. 15 Ekblad is a minister who has worked closely with J.F.M. and his family; he is familiar with 16 J.F.M.’s immigration case and is truly dedicated to his best interests in this case. 17 D.G.F.M. 18 78. D.G.F.M. is a 17-year-old girl and a native and citizen of El Salvador. She presently 19 resides in Washington. She is the older sister of J.E.F.M. and J.F.M. She also saw her father 20 killed, was threatened by gang members, and left El Salvador with her two younger brothers at 21 the same time and for the same reasons. 22 79. Like her brothers, D.G.F.M. appeared, without counsel, before an IJ in Seattle, 23 Washington in September 2014, and was later represented by pro bono counsel before USCIS 24 and granted asylum. Subsequently, the IJ terminated the children’s cases in immigration court. 25 She remains a Plaintiff here solely to preserve for review her claim to represent the class. 26 80. D.G.F.M. was not financially able to pay for legal representation. She appears by her next 27 friend, Bob Ekblad. Mr. Ekblad is a minister who has worked closely with D.G.F.M. and her

28

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1 family; he is familiar with D.G.F.M.’s immigration case and is truly dedicated to her best 2 interests in this case. 3 F.L.B. 4 81. F.L.B. is a 16-year-old boy, and a native and citizen of Guatemala. He presently resides 5 in Seattle, Washington. He is the fifth of eight children born to his parents. Throughout F.L.B.’s 6 childhood, his father, an alcoholic who abused F.L.B. and his siblings, resided in a different city 7 and only visited occasionally. Moreover, F.L.B.’s father did not make any financial contributions 8 to the home. 9 82. When he was 10 years old, F.L.B. dropped out of school to work with his father in order 10 to provide for himself, his mother, and his two younger siblings. After two years of living and 11 working with his father, F.L.B. returned to his mother’s home because he was no longer able to 12 bear his father’s abuse and excessive drinking. However, after six months at home he had to 13 leave again due to the family’s poor financial situation. F.L.B. moved back to the town where he 14 had worked with his father, but this time lived with acquaintances. He only ever saw his father 15 by chance, and seldom saw his mother. 16 83. After more than a year of working and living outside the family’s home, F.L.B. set out 17 for the United States, hoping to be able to support himself and have the opportunity to enroll in 18 school. He spent approximately one month traveling through Mexico and crossed the United 19 States border in August 2013, at the age of 14. United States Border Patrol agents apprehended 20 him in the desert and placed him in the custody of ORR. With no family in the United States, 21 F.L.B. was released to the custody of a family acquaintance in October 2013. He has been 22 residing in Seattle, Washington, since his release from ORR custody. 23 84. F.L.B. had his first removal hearing since his release from ORR custody in September 24 2014. The judge sua sponte granted him a continuance until May 2015, but warned him that if he 25 did not have an attorney present at the next hearing, the boy should be ready to represent himself 26 or have a guardian do so. See Dkt. 118 ¶2, Aldana Madrid Decl. At his May 2015 hearing, 27 F.L.B. again appeared unrepresented. After asking him why he did not have an attorney with 28 him, the IJ proceeded to require F.L.B. to state whether his Notice to Appear had been served on

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1 him and to respond to the allegations in the charging document. See Dkt. 157, Ex. A at 2-3. The 2 IJ then told F.L.B. to return to his next hearing, scheduled for August 2016, with a completed 3 asylum application. Dkt. 157 ¶¶13-14 . He warned F.L.B. that if he appeared without the 4 completed application, his application might be denied. Id. However, F.L.B. has no resources to 5 retain counsel and the legal service providers in the Seattle area are stretched well beyond 6 capacity to take on the cases of children in removal proceedings. 7 85. F.L.B. appears by his next friend, Casey Trupin. Mr. Trupin is the Project Coordinator for 8 the Children and Youth Project at Columbia Legal Services in Seattle, Washington; he is familiar 9 with F.L.B.’s ongoing immigration proceedings and is truly dedicated to F.L.B.’s best interests 10 in this case. 11 M.A.M. 12 86. Plaintiff M.A.M. is a 17-year-old boy, and a native and citizen of Honduras. He presently 13 resides in Oxnard, California. M.A.M. has limited communication skills and special education 14 issues, as a result of which he has limited ability to recount the suffering that he and his family 15 endured in Honduras. 16 87. M.A.M. spent his first eight years in Honduras, raised primarily by his maternal 17 grandmother. During that time, M.A.M.’s mother left him and came to the United States, where 18 she received Temporary Protected Status (“TPS”). Although M.A.M.’s grandmother cared for 19 him, she could not shield him from life’s brutality there. At some point prior to his eighth 20 birthday, someone attacked M.A.M.’s father with a machete, leaving him profoundly disabled. 21 M.A.M.’s half-brothers’ father was kidnapped and murdered during those years as well. 22 88. Eventually, M.A.M.’s grandmother grew elderly and ill. His father was not involved in 23 his life, and no one else could care for him. As a result, M.A.M. came to the United States at the 24 age of eight. Since 2006, he has resided with his mother in California. Although she has TPS, the 25 law does not permit her to extend that status to her son. 26 89. Despite the lack of an adult conviction, M.A.M. was swept into the net of interior 27 immigration enforcement. ICE arrested M.A.M. and took him into custody in September 2011, 28 when he was only 13 years old, and placed him into removal proceedings. Rather than transfer

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1 M.A.M. to ORR custody, however, ICE retained custody over him until his mother came 2 forward, after which ICE released him into her care. 3 90. The Los Angeles Immigration Court already has held multiple hearings where M.A.M. 4 was unrepresented by counsel. A nonprofit legal services organization assisted him in filing a 5 self-petition for Special Immigrant Juvenile visa status, which was eventually granted by USCIS. 6 See Dkt. 154-1. He now is eligible to apply before the IJ for adjustment of status to lawful 7 permanent residence in order to obtain relief from removal. However, he continues to be 8 unrepresented in removal proceedings. See generally Dkt. 95 ¶¶ 81-86; Ex. E. At his most recent 9 removal hearing in October 2015, DHS opposed termination of M.A.M.’s court proceedings, 10 which would have allowed USCIS to adjudicate his adjustment application in a non-adversarial 11 setting. As a result, M.A.M. remains subject to adversarial court proceedings. His next removal 12 hearing is scheduled for February 2016. He and his mother are indigent. They cannot afford to 13 hire private counsel for his upcoming hearing. The Los Angeles-based, Government-funded legal 14 representation program rejected M.A.M.’s immigration court case because he fell outside their 15 scope of service (because M.A.M. was never in ORR custody). 16 91. M.A.M. appears by his next friend and mother, Rosa Pedro. Ms. Pedro maintains a close 17 personal relationship with M.A.M., is familiar with his ongoing immigration proceedings, and is 18 truly dedicated to his best interests in this case. 19 A.E.G.E. 20 92. Plaintiff A.E.G.E. is a four-year-old boy and a native and citizen of El Salvador. He 21 presently resides in Los Angeles, California. A.E.G.E. was conceived as the result of a rape his 22 mother suffered when she was only 15 years old. The rapists threatened to harm her again if she 23 reported the crime. After A.E.G.E.’s birth, his young mother struggled to care for him. She 24 eventually fled to the United States before his first birthday. She left her son in the care of an 25 aunt, but he was not safe. A.E.G.E.’s other family members feared for his life in El Salvador. 26 93. A.E.G.E. was left at the border by a relative in Eagle Pass, Texas in April 2014. He was 27 detained and then transferred to ORR custody, where he remained for several weeks. His “Foster 28 Father” during that time reported that A.E.G.E. “[s]till takes milk in bottle. Teaching him to

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1 brush his teeth.” On May 9, 2014, A.E.G.E. was released to the care of his mother in Los 2 Angeles, California. She is a Lawful Permanent Resident. Although A.E.G.E. may be eligible for 3 that same status, or for asylum based on the threats to himself and his family, he obviously 4 cannot pursue that relief without legal assistance. 5 94. A.E.G.E. is scheduled for a removal hearing in April 2016 in Los Angeles, California. He 6 has no attorney to represent him at that hearing, despite his mother’s attempt to find one. He is 7 not able to afford legal representation. This Court previously dismissed A.E.G.E. from this suit 8 over Plaintiffs’ objection, finding that his removal proceedings “might never be commenced.” 9 Dkt. 114 at 7-8. Now that A.E.G.E. has been scheduled for a removal hearing, his claim is live. 10 He is also named as a Plaintiff here to preserve his claims for review. 11 95. A.E.G.E. appears by his next friend, Ana Deutsch. Ms. Deutsch is a licensed therapist 12 who has worked extensively with victims of violence. She is a Co-Founder and Clinical Director 13 at the Program for Torture Victims in Los Angeles, California. Ms. Deutsch is familiar with 14 A.E.G.E.’s immigration case and is truly dedicated to his best interests in this case. 15 G.J.C.P. 16 96. Plaintiff G.J.C.P. is a 15-year-old girl, and a native and citizen of El Salvador. She 17 presently resides in Van Nuys, California. In El Salvador, she lived with her mother, stepfather, 18 two half-sisters, and two cousins. G.J.C.P. has not had a relationship with her father since she 19 was approximately two years old. 20 97. G.J.C.P. was forced to leave her home in El Salvador after gang members began 21 harassing her and her 13-year-old cousin. These gang members offered the young girls drugs, 22 pressured the girls to become romantically involved with them, and asked them to join the gang. 23 G.J.C.P. refused, even though she had previously witnessed gang members similarly harassing 24 one of her school friends. This friend refused the gang members and later turned up dead. 25 G.J.C.P. was thus afraid the same thing would happen to her and that she would be harmed for 26 refusing the gang members’ advances. Moreover, she had witnessed two of these same gang 27 members brutally beating a young man on the street while she was out with her mother. G.J.C.P. 28 became so fearful for her safety that she rarely left her house alone; her mother dropped her at

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1 school every morning, and another adult picked her up from school in the afternoon. 2 98. Fearing for her safety and her life, G.J.C.P. and her two cousins left El Salvador to travel 3 to the United States. U.S. Border Patrol agents apprehended G.J.C.P. and her cousins near 4 Hidalgo, Texas shortly after they entered the United States in May 2014. G.J.C.P. was first 5 transferred to a holding facility, and then to an ORR shelter. She remained there until 6 approximately June 2014, when ORR released her to the custody of her grandmother, Blanca 7 Griselda Zelaya. Ms. Zelaya has legal status in the United States through the grant of a U-visa. 8 99. As instructed by ORR shelter staff, Ms. Zelaya submitted paperwork on G.J.C.P.’s behalf 9 to transfer her immigration case from Texas to the Los Angeles Immigration Court, the closest to 10 where Ms. Zelaya and G.J.C.P. currently reside. When Ms. Zelaya and G.J.C.P. moved to a new 11 address, she contacted the court about her new address, but court personnel told her that she 12 needed to wait to hear from the court. 13 100. Ms. Zelaya and G.J.C.P., however, never received any information from the court. 14 Instead, when Ms. Zelaya called the EOIR hotline to find out more information about G.J.C.P.’s 15 case, she discovered that the Immigration Judge had already ordered G.J.C.P. removed in 16 absentia in August 2014. 17 101. G.J.C.P. does not have an attorney to represent her in her immigration case and to help 18 her file a motion to rescind her in absentia order and reopen her case. G.J.C.P. lacks both the 19 knowledge and the capacity to file those papers on her own. Nor does she know how to present 20 her claims for relief, even if her case were reopened. The legal services providers and pro bono 21 resources in the Los Angeles area are already operating at capacity, and Ms. Zelaya does not 22 have the resources to hire a private attorney to represent G.J.C.P. This Court has dismissed 23 G.J.C.P. from this suit over Plaintiffs’ objection. Dkt. 114 at 11. She is named as a Plaintiff here 24 to preserve her claims for review. 25 102. G.J.C.P. appears by her next friend and grandmother, Ms. Zelaya. Ms. Zelaya maintains a 26 close personal relationship with G.J.C.P., is familiar with her immigration matters, and is truly 27 dedicated to her best interests in this case. 28 J.E.V.G.

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1 103. Plaintiff J.E.V.G. is an 18-year-old boy, and a native and citizen of El Salvador. He 2 presently resides in Houston, Texas. His father died when J.E.V.G. was about six years old. After 3 his father’s death, J.E.V.G. was left with his mother and an older sister. The family struggled to 4 survive without their primary breadwinner. Gang members were active in J.E.V.G.’s town. They 5 threatened young people like J.E.V.G., telling them they could not wear certain types of shoes or 6 walk in certain parts of town. It was common knowledge that those who ignored those threats 7 were beaten or killed by the gangs, and J.E.V.G. knew of a few individuals in his town who were 8 beaten for not abiding by the gang members’ instructions and threats. 9 104. Shortly after his seventeenth birthday, J.E.V.G. set out to seek a better and safe life in the 10 United States. He entered the United States near McAllen, Texas in July 2014. U.S. Border 11 Patrol agents apprehended him and placed him in ORR custody. He was eventually transferred to 12 a shelter in Phoenix, Arizona. In August 2014, J.E.V.G. was released to the care of his half13 sister, Santos Angela Vasquez, who is a Lawful Permanent Resident. Ms. Vasquez provided 14 authorities with her address in Houston, Texas, where J.E.V.G. currently resides. J.E.V.G. was 15 instructed to await notice of a future court date, but notice never came. 16 105. In September 2014, an Immigration Judge held a hearing in J.E.V.G.’s case and ordered 17 him removed in absentia. J.E.V.G., who did not receive notice of the hearing, was not present in 18 court. Nor was an attorney present to represent J.E.V.G. at that hearing. At the time, he was 17 19 years old and unable to pay for legal representation. He lacked both the knowledge and the 20 capacity to file a motion to reopen his case on his own. 21 106. Following his addition to this case, the Government filed a motion to reopen J.E.V.G.’s 22 removal proceedings after a review of his file “uncovered some discrepancies” indicating that he 23 did not receive notice of his hearing. See Dkt. 97 at 10 n.6; see also Dkt. 95 ¶¶ 109-112; Ex. F. 24 J.E.V.G. then appeared without legal representation before an IJ in Houston, Texas in February 25 2015 to plead to the charges of removability and to assert any defenses against his removal. 26 J.E.V.G. subsequently obtained counsel to represent him in his removal proceedings. His next 27 hearing is scheduled for late October 2015. 28 107. J.E.V.G. appears by his next friend and sister, Santos Angela Vasquez. Ms. Vasquez

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1 maintains a close personal relationship with J.E.V.G., is familiar with his immigration matter, 2 and is truly dedicated to his best interests in this case. 3 E.G.C. 4 108. E.G.C. is an 11-year-old boy, and a native and citizen of Mexico. He presently resides in 5 Snohomish, Washington. E.G.C. grew up in Mexico in an abusive home environment, suffering 6 domestic violence at the hands of both his parents. In late 2013, when he was only nine years 7 old, he fled to the United States with his mother and his sisters in an attempt to escape the 8 turmoil rocking his home state of Michoacan. The family arrived at the U.S. border seeking 9 asylum in November 2013. DHS took them into custody and then paroled them into the United 10 States, after which they were placed into consolidated removal proceedings. E.G.C.’s mother and 11 sisters subsequently returned to Mexico, taking E.G.C.’s sisters back with her but leaving him in 12 the care of family in Washington State because he was too afraid to go back. E.G.C.’s father was 13 kidnapped by a criminal organization and is presumed dead. 14 109. E.G.C. is scheduled for a removal hearing in December 2015 before an IJ in Seattle, 15 Washington. He has no legal representation in his immigration case. E.G.C. has no resources to 16 hire private counsel. He does not qualify for representation through the Seattle-based, 17 Government-funded programs because the Government has not designated him as an 18 unaccompanied child (“UC”) and he therefore falls outside their scope of service. Moreover, the 19 legal service providers in Washington State are stretched well beyond capacity to take on the 20 cases of children in removal proceedings. 21 110. E.G.C. appears by his next friend, Sonia McLeod. Ms. McLeod is a case manager at the 22 University District Youth Center, where she works with youth to access housing and other 23 needed resources. She is familiar with E.G.C.’s ongoing immigration proceedings and is truly 24 dedicated to E.G.C.’s best interests in this case. 25 A.F.M.J. 26 111. A.F.M.J. is an 11-year-old girl, who was born in Mexico. When she was about seven 27 years old, her U.S. citizen father was murdered. Her mother believes the murderer, a man in her 28 town, had a history of criminal activity. Her mother reported the crime to, but the authorities did

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1 not investigate and witnesses were too scared to come forward. The murderer roamed free and 2 boasted about the killing. A.F.M.J.’s mother heard rumors that she would suffer the same fate as 3 her partner if she continued urging the police to investigate the crime. Someone later burglarized 4 A.F.M.J.’s home in a manner that raised suspicion, once again, the police declined to investigate. 5 Instead, they warned A.F.M.J.’s mother that she would be risking her life if she insisted on 6 casting suspicion on her partner’s murderer. 7 112. A.F.M.J., her two siblings, and her mother fled in September 2014 to seek safety in the 8 United States. Her mother requested asylum. DHS took them into custody and subsequently 9 paroled them into the country. She now lives in Royal City, Washington. 10 113. A.F.M.J.’s immigration case is consolidated with that of her mother and siblings. At their 11 third hearing, held in Seattle, the IJ told A.F.M.J.’s mother that he has waived the children’s 12 presence in court, and that the next hearing will go forward regardless of whether they have an 13 attorney. 14 114. A.F.M.J. has a distinct claim to derivative U.S. citizenship through her father and her 15 own asylum claim, but these claims have not been addressed at any hearing. A.F.M.J.’s next 16 hearing is in late October 2015. She has no legal representation in her immigration case. 17 A.F.M.J. has no resources to hire private counsel and she does not qualify for representation 18 through the Seattle-based, Government-funded programs because she falls outside their scopes of 19 service (she is not currently in ORR custody and she is not an unaccompanied child). Other 20 organizations in Washington State are stretched well beyond capacity to take on the cases of 21 children in removal proceedings. A.F.M.J. appears by her next friend and mother, Maria 22 Jimenez. Ms. Jimenez maintains a close personal relationship with A.F.M.J., is familiar with her 23 immigration matters, and is truly dedicated to her best interests in this case. 24 L.J.M. 25 115. L.J.M. is a three-year-old girl born in Mexico. She is the younger sister of A.F.M.J.. She 26 presently resides in Royal City, Washington. Her U.S. citizen father was murdered when her 27 mother was pregnant with her. She came to the United States in the same circumstances as 28 A.F.M.J. in September 2014.

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1 116. The procedural history of L.J.M.’s immigration case mirrors that of her sister A.F.M.J. 2 She too has a distinct claim to derivative U.S. citizenship through her father and her own asylum 3 claim, which has not been addressed at any hearing. 4 117. L.J.M.’s immigration case is consolidated with those of her siblings and mother. She has 5 had three removal hearings, and the IJ waived her presence at any subsequent hearings. L.J.M.’s 6 next hearing is in late October 2015, and she does not have legal representation for those 7 proceedings. She does not have the resources to hire private counsel, and she does not qualify for 8 representation through the Seattle-based, Government-funded programs because she falls outside 9 their scopes of service. Other legal service providers in Washington State are stretched well 10 beyond capacity to take on the cases of children in removal proceedings. L.J.M. appears by next 11 friend and mother, Maria Jimenez. Ms. Jimenez maintains a close personal relationship with 12 L.J.M., is familiar with her immigration matters, and is truly dedicated to her best interests in this 13 case. 14 M.R.J. 15 118. M.R.J. is a one-year-old boy, and a native and citizen of Mexico. He is the half-brother of 16 A.F.M.J. and L.J.M. His father and mother separated while the family was still in Mexico. He 17 came to the United States in the same circumstances as his half-sisters, in September 2014. 18 119. M.R.J.’s immigration case is consolidated with those of his siblings and mother in 19 Seattle, Washington. He has had three removal hearings, and the IJ waived his presence at any 20 subsequent hearings. M.R.J.’s next hearing is in late October 2015. Even though M.R.J. has his 21 own claim to asylum, this claim has not been addressed at any hearing. Like his sisters, M.R.J. 22 does not have legal representation for those proceedings. He does not have the resources to hire 23 private counsel, he does not qualify for representation through the Seattle-based, Government24 funded programs because he falls outside their scopes of service, and other legal service 25 providers in Washington State are stretched well beyond capacity to take on the cases of children 26 in removal proceedings. M.R.J. appears by his next friend and mother, Maria Jimenez. Ms. 27 Jimenez maintains a close personal relationship with M.R.J., is familiar with his immigration 28 matters, and is truly dedicated to his best interests in this case.

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1 J.R.A.P. 2 120. J.R.A.P. is a seven-year-old boy. He is a native and citizen of Honduras. He currently 3 resides in Miami, Florida. While pregnant with J.R.A.P., his mother learned that his father was in 4 a gang, and ended their relationship. J.R.A.P.’s father was subsequently arrested and imprisoned. 5 When J.R.A.P. was very young, his mother traveled to the United States, leaving him in the care 6 of his paternal grandparents in Honduras. J.R.A.P. visited his father a few times in prison, but his 7 father has never played an active role in his life. When J.R.A.P.’s mother learned that his father 8 was considering leaving the gang, she feared the gang would retaliate by harming J.R.A.P. 9 121. In the fall of 2013, J.R.A.P. arrived in the United States. Immigration authorities took 10 custody of him soon after his arrival. After several weeks, J.R.A.P. was released to the care of 11 his mother in Miami. J.R.A.P. attends kindergarten. He is surrounded by loving family including 12 a three-year-old U.S.-citizen sister, a young aunt and uncle who are U.S. citizens, and his 13 maternal grandfather. After J.R.A.P. arrived in the United States, his father called his mother and 14 threatened to kill her and her new partner if she returned to Honduras. 15 122. J.R.A.P. attended his first removal hearing in October 2015 before an IJ in Miami. A 16 friend of the court appeared with him at that initial hearing, but that person is not his lawyer. 17 Although J.R.A.P.’s mother followed up with a local legal services organization to try to obtain 18 legal representation for her son, J.R.A.P. remains on a wait list and without a lawyer. He has no 19 resources to hire a private attorney. His next removal hearing is scheduled for March 2016. 20 123. J.R.A.P. appears by his next friend, Katherine Peguero. Ms. Peguero is a close friend of 21 J.R.A.P.’s family. She is familiar with his ongoing proceedings. Ms. Peguero is truly dedicated 22 to J.R.A.P.’s best interests in this case. 23 K.N.S.M. 24 124. K.N.S.M. is a nine-year-old girl. She is a native and citizen of Honduras. K.N.S.M. is 25 currently residing in Ontario, California, where she is attending the fourth grade. While she was 26 living in Honduras, K.N.S.M. was physically assaulted by her aunt while under her care. Her 27 aunt hit her in the face with a pot because K.N.S.M., who was five years old at the time, had 28 accidentally scratched another pot. K.N.S.M. had to be hospitalized due to her injuries. Her aunt

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1 was arrested as a result of the assault, but the police eventually let her go with only a condition 2 that she report periodically to the authorities. After that, K.N.S.M.’s aunt threatened K.N.S.M. 3 and her mother. The aunt said she would pay them back for getting her arrested. K.N.S.M. even 4 spotted her aunt stalking her at her school. Because they no longer felt safe, K.N.S.M. left 5 Honduras with her mother and came to the United States. 6 125. K.N.S.M. and her mother arrived in the United States in May of 2014. Soon after 7 crossing the border, they were picked up by immigration authorities in Texas. K.N.S.M. and her 8 mother were interviewed by the immigration authorities for several hours, and then released. 9 K.N.S.M. was released under an Order of Release on Recognizance. Since arriving in the United 10 States in May 2014, K.N.S.M. has been living with her mother. She has not seen or heard from 11 her father since she left Honduras. 12 126. K.N.S.M. attended her first removal hearing in September 2015 before an IJ in Los 13 Angeles, California. She did not have an attorney to represent her at that hearing, and her mother 14 does not have the resources to hire an attorney to help K.N.S.M. with her immigration case. Her 15 next removal hearing is scheduled for April 2016. 16 127. K.N.S.M. appears by her next friend and mother, Eloisa Sarahi Mejia Sevilla, who is 17 familiar with her ongoing proceedings and is truly dedicated to her best interests in this case.

18 19 V. LEGAL BACKGROUND 20 128. Plaintiffs and the putative class raise statutory and constitutional claims challenging the 21 Government’s failure to ensure legal representation for them in their immigration proceedings. 22 Specifically, Plaintiffs contend that the Immigration and Nationality Act (“INA”) and the Due 23 Process Clause of the Fifth Amendment mandate that the Government ensure that all children in 24 immigration proceedings have legal representation if they are financially unable to pay for such 25 representation. 26 129. The INA and immigration regulations require that all persons in removal proceedings 27 have “a reasonable opportunity” to present, examine, and object to evidence. 8 U.S.C. 28 § 1229a(b)(4)(B); 8 C.F.R. § 1240.10(a)(4). In addition, all persons in removal proceedings,

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1 whatever their age, have the right to be advised of the charges against them, 8 U.S.C. 2 § 1229(a)(1)(D); 8 C.F.R. § 239.1, and “the privilege of being represented, at no expense to the 3 Government, by counsel of the alien’s choosing.” 8 U.S.C. § 1229a(b)(4)(A); 8 C.F.R. §§ 4 238.1(b)(2), 1240.10(a)(1).24 5 130. Existing regulations address the rights of children in some respects, but do not come 6 close to ensuring fair hearings. One regulation precludes Immigration Judges from accepting 7 admissions of removability from “an unrepresented respondent who is . . . under the age of 18,” 8 but permits such admissions if the child is accompanied by a relative or friend. 8 C.F.R. § 9 1240.10(c). The BIA has undermined even the minimal protection this regulation provides by 10 holding that Immigration Judges can accept factual admissions from children that, taken 11 together, are sufficient to prove the child’s removability. See Matter of Amaya, 21 I. & N. Dec. 12 583, 587 (BIA 1996). Similarly, another regulation requires DHS to serve charging documents 13 for a minor under 14 years of age upon the person with whom the minor resides, and “whenever 14 possible,” the minor’s “near relative, guardian, committee, or friend.” 8 C.F.R. § 103.8(c)(2)(ii). 15 But this regulation does not impose any obligations on such individuals, and the BIA has 16 concluded that these regulations even permit service upon the director of the facility where the 17 minor is currently detained. See Amaya, 21 I. & N. Dec. at 585. 18 131. At a more general level, the BIA has long interpreted the statutory rights provided in 8 19 U.S.C. §§ 1229, 1229a, as creating a general right to a fair hearing in the deportation context. 20 Matter of Exilus, 18 I. & N. Dec. 276, 278-79 (BIA 1982). Similarly, the Ninth Circuit has made 21 clear that “every individual in removal proceedings is entitled to a full and fair hearing” of his 22 claims. Oshodi v. Holder, 729 F.3d 883, 889 (9th Cir. 2013) (en banc).

23 24 The immigration statutes also contain certain protections specific to “unaccompanied alien
24 children,” defined as individuals under the age of 18 without lawful immigration status in the
United States “with respect to whom: (i) there is no parent or legal guardian in the United States; 25 or (ii) no parent or legal guardian in the United States is available to provide care and physical
26 custody.” 6 U.S.C. § 279(g)(2). “Unaccompanied alien children” who are not from “contiguous countries” are entitled to additional legal protections. See, e.g., 8 U.S.C. § 1232(b)-(c) (custody
27 provisions); 8 U.S.C. § 1232(a)(5)(D)(iii) (regarding counsel); 8 U.S.C. § 1232(c)(5) (directing HHS to ensure unaccompanied children are represented “to the greatest extent practicable”); 8
28 U.S.C. § 1232(c)(6) (regarding child advocates).

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1 132. These statutory rules implement a constitutional command. The Supreme Court held over

2 a century ago that the Fifth Amendment guarantees a noncitizen the right to due process in any

3 proceeding where the Government seeks his deportation. See Yamataya v. Fisher, 189 U.S. 86,

4 100-01 (1903) [“The Japanese Immigrant Case”]. And as applied to children, both prior Supreme

5 Court precedent from the juvenile delinquency context and more recent Ninth Circuit precedent

6 involving a child facing deportation demonstrate that all children, with their limited capacity to

7 present complex factual and legal arguments, are entitled to legal representation in immigration

8 proceedings. In re Gault, 387 U.S. at 36; Lin v. Ashcroft, 377 F.3d 1014, 1030, 1032-34 (9th Cir.

9 2004). This is all the more true given the adversarial nature of the proceedings and the grave

10 interests at stake. See generally Turner v. Rogers, 131 S. Ct. 2507, 2517 (2011).

11

12 VI. CLASS ACTION ALLEGATIONS

13 133. Pursuant to Federal Rule of Civil Procedure 23, Plaintiffs bring this action on behalf of 14 themselves and all other similarly situated individuals. Plaintiffs seek injunctive relief25 that

15 applies generally to the Plaintiff Class, as described below.

16 134. The Plaintiff Class consists of:

17

• All individuals under the age of eighteen (18) who are in immigration proceedings

18

on or after July 9, 2014, without legal representation in their immigration

19

proceedings26 and who are financially unable to obtain such representation.27

20

25 This Court ruled that 8 U.S.C. 1252(f)(1) bars this Court from entertaining Plaintiffs’ request 21 for classwide injunctive relief. See Dkt. 114 at 22. Plaintiffs continue to assert the claim here in

22

order to preserve it for review. 26 As noted supra note 5, Plaintiffs define “immigration proceedings” as any proceeding that

23 occurs before an Immigration Judge or the Board of Immigration Appeals. Plaintiffs define

“legal representation” as representation by a lawyer, a law student or graduate supervised by a 24 lawyer, or a BIA-accredited representative. See Franco-Gonzalez, et al. v. Holder, 828 F. Supp.

2d 1133, 1147 (C.D. Cal. 2011) (defining Qualified Representative for purposes of providing 25 legal representation to mentally incompetent individuals in immigration proceedings as including

26 “(1) an attorney, (2) a law student or law graduate directly supervised by a retained attorney, or (3) an accredited representative, all as defined in 8 C.F.R. § 1292.1”).
27 27 The Complaint and original Motion for Class Certification were filed on July 9, 2014. See

Dkts. 1, 2. This Court then struck the Motion in November 2014, explaining that it would give 28 Plaintiffs a new submission deadline after ruling on Defendants’ Motion to Dismiss. See Dkt. 94.

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1 135. The Plaintiff Class is so numerous that joinder of all members is impracticable. Although

2 the number of individuals under the age of 18 who are in immigration proceedings, financially

3 unable to obtain counsel, and therefore are proceeding pro se is not known with precision, most

4 reports indicate that there are thousands of such children. See supra Part IV.A.

5 136. Common questions of law and fact bind the members of the Plaintiff Class. These

6 questions include, but are not limited to, the following:

7

• Whether the Due Process Clause of the U.S. Constitution and/or federal statutory

8

law requires the Government to provide legal representation for the members of

9

the Plaintiff Class;

10

• Whether existing procedures suffice to protect the Plaintiff Class members’ right

11

to a full and fair hearing as required by the Due Process Clause of the U.S.

12

Constitution and/or federal statutory law.

13 137. The claims of the named Plaintiffs are typical of the claims of the Plaintiff Class as a

14 whole. Plaintiffs know of no conflict between their interests and those of the Plaintiff Class. The

15 members of the Plaintiff Class are ascertainable and can be identified through notice and

16 discovery. In defending their own rights, the individual Plaintiffs and their next friends will

17 defend the rights of all proposed Plaintiff Class members fairly and adequately.

18 138. Plaintiffs are represented in this case by counsel with deep knowledge of immigration

19 law and extensive experience litigating class actions and complex cases, including the only class

20 action that has secured appointed legal representation for a class of immigrants. Plaintiffs’

21 attorneys have the requisite level of expertise to adequately prosecute this case on their behalf

22 and on behalf of the Class.

23 139. Defendants have acted or refused to act on grounds generally applicable to each member

24 of the Plaintiff Class by refusing to recognize that the members of the Plaintiff Class have a

25

After the Court did so, Plaintiffs submitted their renewed motion for class certification in April 26 2015. See Dkt. 117. The Court thereafter denied the motion without prejudice to Plaintiffs

27 refiling a motion for class certification. See Dkt. 160. Plaintiffs previously defined their class as “All individuals under the age of eighteen (18) who are or will be in immigration proceedings on

28 or after July 9, 2014, without legal representation in their immigration proceedings.” See Dkt. 1

at 23.

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1 statutory and constitutional right to legal representation in their immigration proceedings, and by

2 refusing to provide that representation for such individuals.

3 140. A class action is superior to other methods available for the fair and efficient adjudication

4 of this controversy because joinder of all members of the Plaintiff Class is impracticable.

5 Moreover, members of the Plaintiff Class remain unrepresented in immigration proceedings and

6 lack the ability to assert the claims made here. Absent the relief they seek here, there would be

7 no other way for the Plaintiff Class to individually redress the wrongs they have suffered and

8 continue to suffer.

9
VII. CLAIMS FOR RELIEF 10
FIRST CAUSE OF ACTION 11
Violation of the Immigration and Nationality Act28 12
(Against All Defendants by All Plaintiffs) 13
141. Plaintiffs reallege and incorporate by reference each and every allegation contained in the 14
preceding paragraphs. 15
142. The INA requires that all individuals in removal proceedings be afforded a reasonable 16
opportunity to, inter alia, examine and present evidence and witnesses. See 8 U.S.C. § 1229a(b). 17
These provisions require that unrepresented children be provided a fair hearing in their 18
immigration proceedings. The only way to ensure that these children receive a fair hearing is by 19
providing them with legal representation. 20
143. Plaintiffs and the Plaintiff Class have suffered and will imminently suffer irreparable 21
injury as a proximate cause of the Government’s failure to provide them with legal 22
representation in their immigration proceedings, and are therefore entitled to injunctive relief to 23
avoid any injury. 24
SECOND CAUSE OF ACTION 25
Violation of the Due Process Clause of the Fifth Amendment 26

27 28 This Court ruled that 8 U.S.C. 1252(b)(9) stripped the Court of jurisdiction to entertain

28 Plaintiffs’ statutory claim for counsel. See Dkt. 114 at 22. Plaintiffs continue to assert the claim

here in order to preserve it for review.

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1

(Against All Defendants by All Plaintiffs)

2 144. Plaintiffs reallege and incorporate by reference each and every allegation contained in the

3 preceding paragraphs.

4 145. The Due Process Clause requires that unrepresented children in immigration proceedings

5 be provided legal representation.

6 146. Plaintiffs and the Plaintiff Class have suffered and will imminently suffer irreparable

7 injury as a proximate cause of the Government’s failure to provide them with legal

8 representation in their immigration proceedings, and are therefore entitled to injunctive relief to

9 avoid any injury.

10

11 VIII. PRAYER FOR RELIEF

12 WHEREFORE, Plaintiffs respectfully request that the Court grant the following relief:

13

a. Certify a class pursuant to Federal Rule of Civil Procedure 23 in accordance with

14

this Complaint’s allegations and the accompanying Motion for Class

15

Certification;

16

b. Declare that the Defendants’ failure to ensure legal representation for Plaintiffs

17

and the Plaintiff Class violates constitutional and statutory law, pursuant to the

18

Court’s equitable powers and the Declaratory Judgment Act, 28 U.S.C. § 2201;

19

c. Issue an injunction directing Defendants to ensure that Plaintiffs and other

20

members of the Plaintiff Class receive legal representation in their immigration

21

proceedings;

22

d. Alternatively, appoint counsel to represent Plaintiffs and other members of the

23

Plaintiff Class in their immigration proceedings, pursuant to the Criminal Justice

24

Act, 18 U.S.C. § 3006A(a)(1);

25

e. Grant any other relief the Court deems just, equitable, and appropriate, including,

26

but not limited to, fees under the Equal Access to Justice Act, and any other

27

applicable statute or regulation.

28

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Dated this 4th day of December, 2015. 1 2 Respectfully submitted,

3 s/ Matt Adams Matt Adams, WSBA No. 28287
4 Glenda M. Aldana Madrid, WSBA No. 46987
NORTHWEST IMMIGRANT 5 RIGHTS PROJECT
6 615 2nd Avenue, Suite 400 Seattle, WA 98104
7 (206) 957-8611 (206) 587-4025 (fax)
8
s/ Ahilan Arulanantham 9 Ahilan Arulanantham, Cal. State Bar. No. 237841 (pro hac vice)
10 ACLU IMMIGRANTS’ RIGHTS PROJECT ACLU OF SOUTHERN CALIFORNIA
11 1313 West 8th Street Los Angeles, CA 90017
12 (213) 977-5211
(213) 417-2211 (fax) 13

14 Theodore J. Angelis, WSBA No. 30300 Todd L. Nunn, WSBA No. 23267

15 Heidi Craig Garcia, WSBA No. 41399

K&L GATES LLP 16 925 Fourth Avenue, Suite 2900

17

Seattle, WA 98104 (206) 623-7580

18 (206) 623-7022 (fax)

19 Cecillia Wang, Cal. State Bar. No. 187782 (pro hac vice)

Stephen Kang, Cal. State Bar No. 292280 (pro hac vice) 20 ACLU IMMIGRANTS’ RIGHTS PROJECT

21

39 Drumm Street San Francisco, CA 94111

22 (415) 343-0770 (415) 343-0950 (fax)

23

Carmen Iguina, Cal. State Bar No. 277369 (pro hac vice) 24 ACLU OF SOUTHERN CALIFORNIA

25 1313 West 8th Street Los Angeles, CA 90017

26 (213) 977-5211 (213) 417-2211 (fax)
27

Kristen Jackson, Cal. State Bar. No. 226255 (pro hac vice) 28 Talia Inlender, Cal. State Bar No. 253796 (pro hac vice)

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PUBLIC COUNSEL 1 610 South Ardmore Avenue 2 Los Angeles, CA 90005
(213) 385-2977 3 (213) 385-9089 (fax)
4 Kristin Macleod-Ball (pro hac vice) Melissa Crow, D.C. Bar No. 453487 (pro hac vice)
5 AMERICAN IMMIGRATION COUNCIL 6 1331 G Street NW, Suite 200
Washington, DC 20005 7 202-507-7500
202-742-5619 (fax) 8
Margaret Chen, WSBA No. 46156 9 ACLU OF WASHINGTON FOUNDATION 10 901 Fifth Avenue, Suite 630
Seattle, WA 98164 11 (206) 624-2184
12 Counsel for Plaintiffs-Petitioners 13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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CERTIFICATE OF ECF FILING AND SERVICE 1

2

I certify that on December 4, 2015, I arranged for electronic filing of the foregoing

document with the Clerk of the Court using the CM/ECF system, which will send notification of

3 such filing to all parties of record:

4

s/ Glenda M. Aldana Madrid

Glenda M. Aldana Madrid, WSBA No. 46987

5

NORTHWEST IMMIGRANT

6

RIGHTS PROJECT

615 2nd Avenue, Suite 400

7

Seattle, WA 98104

(206) 957-8646

8

(206) 587-4025 (fax)

9

10

11

12

13 14 15

16

17

18 19 20 21

22

23 24 25 26

27

28

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Exhibit A

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Case 2:14-cv-01026-TSZ Document 207-1 Filed 12/04/15 Page 3 of 4

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1

2

3

4

5

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

6

AT SEATTLE

7 F.L.B., et al.,

8

Plaintiffs,

9

v.

10 LORETTA E. LYNCH, et al.,

C14-1026 TSZ ORDER

11

Defendants.

12 THIS MATTER comes before the Court on plaintiffs’ third motion for class
13 certification, docket no. 191. Having reviewed all papers filed in support of, and in
14 opposition to, the motion, and having telephonically discussed the matter with counsel,
15 on the record, the Court orally denied the motion. This Order explains the Court’s
16 reasoning.
17 Background
18 In their third motion for class certification, plaintiffs propose to certify a class of
19 “[a]ll individuals under the age of eighteen (18) who are in immigration proceedings on
20 or after July 9, 2014, without legal representation in their immigration proceedings and
21 who are financially unable to obtain such representation.” Motion at 2 (docket no. 191).
22

23

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1 When plaintiffs filed their motion, the only remaining named plaintiffs were F.L.B.,

2 M.A.M., and J.E.V.G. Because J.E.V.G., however, has already turned 18, he is not a

3 member of the proposed class and is not a suitable class representative.

4

While plaintiffs’ third motion for class certification was pending, plaintiffs sought

5 and were granted leave to file their Third Amended Complaint, in which they realleged

6 the previously dismissed claims of A.E.G.E. and added six other plaintiffs. See Minute

7 Order (docket no. 204); 3d Am. Compl. (docket no. 207); see also Order at 7-8 (docket

8 no. 114) (dismissing A.E.G.E.’s claims without prejudice on ripeness grounds). Given

9 the procedural posture of the third motion to certify a class, the Court has not considered

10 named plaintiffs other than F.L.B. and M.A.M. in deciding it.1 Both F.L.B. and M.A.M.,

11 who will turn 18 this year, were unaccompanied by any parent or adult when they crossed

12 the border into the United States. See 3d Am. Compl. at ¶¶ 81-83 & 86-88. F.L.B. has

13 no family in the United States and now resides in Washington. Id. at ¶ 83. M.A.M.

14 currently resides in California, having been reunited with his mother, who has Temporary

15 Protected status. Id. at ¶ 87-89. M.A.M. has been granted Special Immigrant Juvenile

16 (“SIJ”) status and is eligible for an adjustment of status to lawful permanent residence.

17 Id. at ¶ 90.

18

In this litigation, plaintiffs seek declaratory relief on a class-wide basis that they

19 have a constitutional right to have attorneys appointed to represent them at government

20

21

1 Because defendants anticipate moving to dismiss the claims of one or more of the new named plaintiffs, and because the proposed class definition is otherwise unworkable, recitation of the facts underlying the

recently joined parties’ claims and analysis of whether they have claims typical of those of putative class
22 members would not, at this time, be an efficient use of the Court’s resources.

23

ORDER - 2

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1 expense in connection with their removal proceedings. The operative standard for

2 assessing whether plaintiffs have such right to counsel under the Due Process Clause of

3 the Fifth Amendment is the familiar three-part balancing test first articulated in Mathews

4 v. Eldridge, 424 U.S. 319 (1976). See Order at 28-29 (docket no. 114). Under Mathews,

5 the following factors must be weighed: (i) the nature of the private interest affected by

6 the government action; (ii) the risk of erroneous deprivation of such interest through the

7 procedures used, as well as the probable value of additional or substitute safeguards; and

8 (iii) the interest of the government, including the fiscal or administrative burdens that

9 additional or different procedural requirements would entail. 424 U.S. at 335.

10 Discussion

11

Rule 23 operates as “an exception to the usual rule that litigation is conducted by

12 and on behalf of the individual named parties only.” Comcast Corp. v. Behrend, 133 S.

13 Ct. 1426, 1432 (2013) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979)). To

14 maintain a class action, plaintiffs must “affirmatively demonstrate” compliance with

15 Rule 23. Id. (citing Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S. Ct. 2541, 2551

16 (2011)). The prerequisites of Rule 23 are not mere pleading standards, but rather are

17 evidentiary thresholds. See id. Thus, plaintiffs bear the burden of proving, not just

18 simply alleging, that all four requirements of Rule 23(a) are satisfied and that the

19 proposed class qualifies under at least one of the three provisions of Rule 23(b). See id.

20 Plaintiffs pursue certification solely under Rule 23(b)(2), which requires a showing that

21 defendants have “acted or refused to act on grounds that apply generally to the class, so

22

23

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1 that final injunctive relief or corresponding declaratory relief is appropriate respecting the

2 class as a whole.” Fed. R. Civ. P. 23(b)(2).

3

Rule 23(a) mandates that plaintiffs prove (1) the class is so numerous that joinder

4 of all members is impracticable; (2) questions of law or fact common to the class exist;

5 (3) the representatives’ claims are typical of the claims of the class; and (4) the

6 representatives will “fairly and adequately” protect the interests of the class. Fed. R. Civ.

7 P. 23(a). Commonality, within the meaning of Rule 23, requires plaintiffs to demonstrate

8 that the claims of all class members depend on “a common contention” of such nature as

9 “is capable of classwide resolution.” Wal-Mart, 564 U.S. at —, 131 S. Ct. at 2551. The

10 test is whether the determination of the truth or falsity of such common contention “will

11 resolve an issue that is central to the validity of each one of the claims in one stroke.” Id.

12 “What matters . . . is not the raising of common ‘questions’ ‒ even in droves ‒ but, rather

13 the capacity of a class-wide proceeding to generate common answers apt to drive the

14 resolution of the litigation.” Id. (emphasis in original, quoting Richard A. Nagareda,

15 Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. REV. 97, 132 (2009)).

16

The Court must “probe behind the pleadings” and engage in a “rigorous analysis”

17 as to whether the prerequisites for a class action have been satisfied. Behrend, 133 S. Ct.

18 at 1432. The Court’s inquiry will necessarily “entail some overlap with the merits” of the

19 underlying claims because class certification considerations are generally “enmeshed” in

20 the factual and legal issues associated with the causes of action being pursued. Walmart,

21 564 U.S. at —, 131 S. Ct. at 2551-52; see also Behrend, 133 S. Ct. at 1432; Ellis v.

22 Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011) (“[I]t is not correct to say a

23

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1 district court may consider the merits to the extent that they overlay with class

2 certification issues; rather, a district court must consider the merits if they overlap with

3 the Rule 23(a) requirements.” (emphasis in original)).

4

Although plaintiffs frame a common question, namely whether they are entitled to

5 counsel at government expense in removal proceedings, that question cannot be answered

6 on a class-wide basis for the class that plaintiffs have proposed. See Ellis, 657 F.3d at

7 981 (“[I]t is insufficient to merely allege any common question . . . . Instead, [a plaintiff]

8 must pose a question that ‘will produce a common answer to the crucial question . . . .’”

9 (citations omitted)). As defined, the proposed class includes juveniles who face no

10 potential harm if removed to their country of origin (for example, the Canadian teenager

11 or the Australian or Danish exchange student hypothesized by defendants, see Resp. at 7

12 n.4 (docket no. 197); Resp. at 5 n.4 (docket no. 135); Tr. (Sep. 3, 2014) at 74:13-18

13 (docket no. (113)), and therefore cannot make the requisite showing of a protected

14 interest for purposes of the Mathews analysis. In addition, as defined, the proposed class

15 includes juveniles who, because of age, education, intelligence, language skills, and/or

16 experience, might be fully capable of navigating through immigration proceedings

17 without an attorney and thus cannot show, under the Mathews balancing test, that their

18 interests outweigh those of the government. Finally, as defined, the proposed class does

19 not distinguish between unaccompanied minors and juveniles who arrive and/or reside

20 with one or both parents, a factor that might affect available services and how

21 immigration proceedings are conducted. See Order at nn.22, 27, & 28 (docket no. 114).

22

23

ORDER - 5

Case 2:14-cv-01026-TSZ Document 225 Filed 01/21/16 Page 6 of 7

1

Plaintiffs’ overly broad class definition precludes the Court from concluding that

2 questions of law or fact common to the class exist. Moreover, because the proposed class

3 is so expansive, the Court cannot deem F.L.B.’s and M.A.M.’s claims to be typical of

4 those of the class. Neither F.L.B. nor M.A.M. is similarly situated to juveniles who came

5 to the United States with a parent or guardian, and because both F.L.B. and M.A.M. are

6 nearing the age of 18, they are not representative of a large percentage of class members,

7 some of whom might be too young to have “capacity.” See RCW 9A.04.050 (defining

8 the ages at which children are per se (under 8) or presumed (between 8 and 12) unable to

9 form the mens rea to commit a crime). In addition, M.A.M. is in a different situation than

10 perhaps the bulk of the proposed class because he has already qualified for SIJ status and

11 is eligible to receive a “green card.” Finally, no showing has been made that F.L.B. and

12 M.A.M., who reside in Washington and California, respectively, have claims that are

13 typical of those of minors in immigration proceedings in other states or regions of the

14 country.

15

Whether these deficiencies can be addressed by appropriately narrowing the class

16 is unclear. The due process analysis might well require the type of individualized inquiry

17 that would render this matter unsuitable for class treatment. Moreover, given the Court’s

18 inability to grant class-wide injunctive relief, see Order at 36-38 (docket no. 114), the

19 utility of class certification, as opposed the persuasive or binding effect of this Court’s or

20 an appellate court’s decision on the right-to-counsel issue, is uncertain. The complexity

21 and expense associated with certifying a class might far outweigh any efficiency gained

22 in managing this litigation.

23

ORDER - 6

Case 2:14-cv-01026-TSZ Document 225 Filed 01/21/16 Page 7 of 7

1 Conclusion

2

For the foregoing reasons, plaintiffs’ third motion for class certification, docket

3 no. 191, is DENIED without prejudice. Any renewed motion to certify a class shall be

4 filed by February 4, 2016, and noted for February 26, 2016. See Minute Order (docket

5 no. 224).

6

IT IS SO ORDERED.

7

Dated this 20th day of January, 2016.

8

9

A

10

Thomas S. Zilly

United States District Judge 11

12

13

14

15

16

17

18

19

20

21

22

23

ORDER - 7

 
 1

2

3

UNITED STATES DISTRICT COURT

4

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE 5

6 F.L.B., et al.,

7

Plaintiffs,

8

v.

9 LORETTA E. LYNCH, et al.,

10

Defendants.

C14-1026 TSZ ORDER

11

THIS MATTER comes before the Court on a partial motion to dismiss, docket

12 no. 229, pursuant to Federal Rules of Civil Procedure 12(b)(3) and 12(b)(6), brought by

13 defendants Loretta E. Lynch, Attorney General of the United States; Juan P. Osuna,

14 Director of the Executive Office for Immigration Review; Jeh C. Johnson, Secretary of

15 Homeland Security; Sarah R. Saldaña, Director of U.S. Immigration and Customs

16 Enforcement (“ICE”); León Rodríguez, Director of U.S. Citizenship and Immigration 17 Services (“USCIS”); Lisa McDaniel, Field Office Director for ICE’s Office of 18 Enforcement and Removal Operations (“ERO”) in Seattle; Bryan Wilcox, Assistant Field 19 Office Director for ICE’s ERO in Seattle; Sylvia M. Burwell, Secretary of Health and 20 Human Services; and Robert Carey, Director of the Office of Refugee Resettlement. 21 Having reviewed all papers filed in support of, and in opposition to the motion, including

22 the supplemental briefs filed at the Court’s request, see Minute Order (docket no. 256), 23

ORDER - 1

1 and having considered the oral arguments of counsel, the Court enters the following

2 order.

3 Background

4

This action, seeking classwide declaratory and individual injunctive relief on the

5 ground that juveniles in removal proceedings have a constitutional right to counsel at

6 government expense, began with eight (8) named plaintiffs. See Compl. (docket no. 1);

7 Am. Compl. (docket no. 73). Three (3) plaintiffs were added when the Second Amended

8 Complaint, docket no. 95, was filed. In responding to these pleadings, the then-named

9 defendants did not challenge venue. See Defs.’ Mot. (docket no. 80); Defs.’ Supp. Brief

10 (docket no. 97); Defs.’ Supp. Reply (docket no. 104). Of the eleven (11) plaintiffs

11 identified in the Second Amended Complaint, two (2) were voluntarily dismissed, see

12 Notice (docket no. 107), and the claims of another three (3) were dismissed without

13 prejudice on defendants’ motion, see Order at 7-8, 11 & 38 (docket no. 114). The claims

14 of three (3) other plaintiffs, who had been granted asylum status, were later dismissed as

15 moot. See Order at 7-8 (docket no. 174).

16

To the three (3) remaining plaintiffs, the Third Amended Complaint, docket

17 no. 207, joined seven (7) more, one of whom (A.E.G.E.) had previously been dismissed

18 without prejudice. See also Minute Order (docket no. 224) (dismissing certain claims

19 that were improperly re-alleged in the Third Amended Complaint). The Third Amended

20 Complaint also joined a new defendant -- León Rodríguez, the Director of USCIS -- who

21 seeks to be dismissed because plaintiffs do not allege any actionable misconduct by

22 USCIS. As to nine (9) of the ten (10) plaintiffs left in the action (i.e., everyone other than

23

ORDER - 2

1 F.L.B.), defendants collectively assert various grounds for dismissal, including mootness,

2 improper venue, and lack of a cognizable claim to procedural due process and/or counsel

3 at government expense. The Court agrees that Director Rodríguez is not an appropriate

4 defendant, that the right-to-counsel claim of one plaintiff (J.E.V.G.) is moot, and that the

5 right-to-counsel claim of another plaintiff (M.A.M.) might soon be moot. Defendants’

6 motion is therefore GRANTED in part, with regard to Director Rodríguez and J.E.V.G.,

7 and DEFERRED in part as to M.A.M., but it is DENIED in all other respects for the

8 reasons stated in this order.

9 Discussion

10 A. Claims Against León Rodríguez

11

Plaintiffs essentially concede that they have no cognizable claim against USCIS

12 Director León Rodríguez. Plaintiffs indicate that their “primary interest in adding

13 USCIS” was to obtain discovery from the agency. See Resp. at 24 (docket no. 239).

14 They state that, if the Court makes clear USCIS must respond to discovery in this case,

15 they “would not oppose” dismissing their claims against Director Rodríguez. Id. Joining

16 a party to a lawsuit for the sole purpose of conducting discovery is improper. To the

17 extent the other parties to this litigation have refused to produce materials from USCIS

18 files, plaintiffs have remedies other than joining the USCIS Director as a defendant, for

19 example, serving a subpoena under Rule 45, filing a motion to compel under Rule 37, or

20 requesting documents under the Freedom of Information Act. Plaintiffs have made no

21 allegations that USCIS plays a role in removal proceedings or has taken any action

22 adverse to a named plaintiff. To the contrary, USCIS granted asylum status to former

23

ORDER - 3

1 plaintiffs J.E.F.M., J.F.M., and D.G.F.M., see 3d Am. Compl. at ¶¶ 75, 77, & 79 (docket

2 no. 207), and granted special immigrant juvenile status to plaintiff M.A.M., see id. at

3 ¶ 90. Plaintiffs’ claims against Director Rodríguez are DISMISSED.

4 B. Mootness

5

Defendants contend that J.E.V.G.’s and M.A.M.’s right-to-counsel claims are now

6 moot and should be dismissed.1 Both J.E.V.G. and M.A.M. have turned 18, and are no

7 longer within the class of aliens plaintiffs seek to represent. J.E.V.G. has retained an

8 attorney, and his attorney has successfully moved for the dismissal of his removal

9 proceedings so that he may seek special immigrant juvenile (“SIJ”) status from USCIS. 10 See Ex. B to Mot. (docket no. 229-2).2 Because no removal proceedings are now pending

11 against J.E.V.G., forming yet another basis for his exclusion from the class proposed by

12 plaintiffs, and because J.E.V.G. cannot be said to have been prejudiced, while still a

13 juvenile, by the lack of counsel at government expense, his right-to-counsel claim is

14 DISMISSED as moot.

15

M.A.M. has already received SIJ status. According to defendants’ counsel,

16 M.A.M.’s removal proceedings have been continued to April 28, 2016, and he is awaiting

17

18 1 Plaintiffs accuse defendants of repeating an argument the Court previously rejected. The Court,

however, denied defendants’ previous motion without prejudice, see Order at 6 (docket no. 174), thereby
19 acknowledging that circumstances might change during the course of this litigation, in which event,

defendants could again move for dismissal on the basis of mootness.

20
2 With regard to J.E.V.G., because the Court has considered matters outside the pleadings, defendants’

21

Rule 12(b)(6) motion must be treated as one for summary judgment. See Fed. R. Civ. P. 12(d). The Court concludes that no genuine dispute of material fact exists as to the status of J.E.V.G.’s removal

proceedings and that defendants are entitled to judgment as a matter of law concerning the mootness of
22 J.E.V.G.’s right-to-counsel claim. See Fed. R. Civ. P. 56(a).

23

ORDER - 4

1 approval of his adjustment to permanent resident status. See Tr. (Mar. 24, 2016) at 9:2,

2 14-18 (docket no. 261). Because M.A.M.’s removal proceedings remain pending, but are

3 likely to be dismissed in the near future, defendants’ motion to dismiss M.A.M.’s right-

4 to-counsel claim is DEFERRED, and the parties are DIRECTED to file a Joint Status

5 Report by May 6, 2016, concerning the status of M.A.M.’s removal proceedings.

6 C. Venue

7

If an officer or employee of the United States is a defendant in a civil case, venue

8 is proper “in any judicial district in which . . . the plaintiff resides if no real property is

9 involved in the action.” 28 U.S.C. § 1391(e)(1)(C) (emphasis added). In the context of

10 actions involving multiple plaintiffs, the Third and Sixth Circuits have defined the phrase

11 “the plaintiff” to mean “any plaintiff” rather than “all plaintiffs,” and thus, venue lies in a

12 judicial district in which at least one plaintiff resides. Exxon Corp. v. Fed. Trade

13 Comm’n, 588 F.2d 895 (3d Cir. 1978), implicitly overruled on other grounds by Wilton v.

14 Seven Falls Co., 515 U.S. 277 (1995); see Sidney Coal Co. v. Soc. Sec. Admin., 427 F.3d 15 336 (6th Cir. 2005).3

16

The Ninth Circuit has not fully analyzed this issue, but it has cited Exxon with

17 approval, summarizing Exxon as holding that, “in order to avoid a multiplicity of similar

18 suits in different courts, venue need be proper for only one plaintiff under 28 U.S.C.

19

20
3 Defendants incorrectly suggest that the Seventh Circuit has held to the contrary. See Reply at 11

21

(docket no. 240) (citing Reuben H. Donnelley Corp. (“Donnelley”) v. Fed. Trade Comm’n, 580 F.2d 264 (7th Cir. 1978)). In Donnelley, the Seventh Circuit addressed only how residency is determined for

federal agencies and corporate entities and where the cause of action at issue arose; the Seventh Circuit
22 was not faced with litigation involving more than one plaintiff. See 580 F.2d at 266-70.

23

ORDER - 5

1 § 1391(e).” Ry. Labor Execs.’ Ass’n v. Interstate Commerce Comm’n, 958 F.2d 252, 256

2 (9th Cir. 1991); see also Matsuo v. United States, 416 F. Supp. 2d 982, 997 (D. Haw.

3 2006). Under the Third and Sixth Circuits’ interpretation of § 1391(e)(1)(C), with which

4 the Ninth Circuit does not appear to disagree, when plaintiffs initiated this action against

5 then Attorney General Eric H. Holder, Secretaries Johnson and Burwell, Director Osuna,

6 and the predecessors of Directors Saldaña, Carey, McDaniel, and Wilcox, all of whom

7 were, at the time, officers or employees of the United States, the Western District of

8 Washington was an appropriate venue because at least one of the original plaintiffs

9 resided in the district.

10

Defendants’ suggestion that the Court should depart from the Third and Sixth

11 Circuits’ guidance is unsupported by any authority. Moreover, defendants’ current venue

12 challenge is barred because it was waived when it was not raised in their previous motion 13 to dismiss. See Fed. R. Civ. P. 12(g)(2) & 12(h)(1).4 The Second Amended Complaint,

14 which was the operative pleading at the time defendants’ earlier motion to dismiss was

15

16
4 Defendants argue that plaintiffs’ filing of the Third Amended Complaint provides them a “do over.”

17

See Defs.’ Mot. at 6-7 (docket no. 229) (citing Harris v. Sec’y, U.S. Dep’t of Veterans Affairs, 126 F.3d 339 (D.C. Cir. 1997), and In re WellPoint, Inc. Out-of-Network “UCR” Rates Litig., 903 F. Supp. 2d 880

(C.D. Cal. 2012)). Neither of the cases cited by defendants stands for such proposition. Harris merely
18 described the distinction between “forfeiture” and “waiver” of a defense, and indicated that forfeiture by

failing to plead may be cured via amendment pursuant to Rule 15, whereas relief is not available under

19 Rule 15 for the type of intentional relinquishment that constitutes waiver. 126 F.3d at 343 n.2.
In re WellPoint simply concluded, in response to the plaintiffs’ argument that the points made in the

20

defendants’ Rule 12(b)(6) motions were or could have been raised in earlier motions to dismiss, that the defendants would not be held to the high standards applicable to motions for reconsideration.

903 F. Supp. 2d at 893-94. Moreover, In re WellPoint is not relevant to the question before the Court

21 because Rule 12(b)(6) motions are not subject to the waiver provisions of Rules 12(g)(2) and 12(h)(1).

See Fed. R. Civ. P. 12(h)(2) (“Failure to state a claim upon which relief can be granted . . . may be raised:

22 (A) in any pleading allowed or ordered under Rule 7(a); (B) by motion under Rule 12(c); or (C) at trial.”).

23

ORDER - 6

1 considered by the Court, identified plaintiffs who reside in California and Texas, as well 2 as plaintiffs who live in Washington. The Third Amended Complaint’s joinder5 of other

3 plaintiffs who reside outside Washington does not, in any significant way, alter the scope

4 of the case, and it does not resurrect defendants’ ability to contest venue. See Johnson v.

5 Bryson, 851 F. Supp. 2d 688, 704-05 (S.D.N.Y. 2012) (ruling that “[t]he filing of an

6 amended complaint will not revive the right to present by motion defenses that were

7 available but were not asserted in timely fashion prior to the amendment of the pleading”

8 and rejecting the defendant’s improper venue defense because inter alia “all three of the

9 New Plaintiffs reside in close geographic proximity to one or more of the Original

10 Plaintiffs”); Lanehart v. Devine, 102 F.R.D. 592, 595 (D. Md. 1984) (holding that the

11 defense of improper venue was waived by the failure to include it in the answer, even as

12 to plaintiffs who were later joined); cf. DBSI Signature Place, LLC v. BL Greensboro,

13 L.P., 2006 WL 1275394 at *5 (D. Idaho May 9, 2006) (observing that, when an amended

14

15 5 Defendants argue in their motion (and in a supplemental brief filed at the Court’s request) that J.R.A.P.,

who was added as a plaintiff when the Third Amended Complaint was filed, and who is the only plaintiff

16 residing in Florida, could not be joined pursuant to Rule 20, and that the Court therefore lacks venue as to

J.R.A.P.’s right-to-counsel claim, citing the last sentence of § 1391(e)(1), which provides: “Additional

17

persons may be joined as parties . . . in accordance with the Federal Rules of Civil Procedure and with such other venue requirements as would be applicable if the United States or one of its officers . . . were

not a party.” 28 U.S.C. § 1391(e)(1). The Court disagrees. Rule 20 permits the joinder in one action of
18 plaintiffs who “assert any right to relief jointly, severally, or in the alternative with respect to or arising

out of the same . . . series of transactions or occurrences” if “any question of law or fact common to all

19 plaintiffs will arise in the action.” Fed. R. Civ. P. 20(a)(1). All plaintiffs in this litigation seek identical
relief with respect to their removal proceedings, which constitute the requisite “series of transactions or

20

occurrences,” and their assertion that they are constitutionally entitled to counsel at government expense in such proceedings will involve one or more common questions of law or fact. Defendants’ argument

that resources and methods for conducting removal proceedings vary among immigration courts and from

21 state to state does not itself defeat joinder, but rather raises issues the Court may address in crafting any

relief, in certifying any class, and/or by severing matters for trial. See Fed. R. Civ. P. 20(a)(3), 20(b), 21,

22 & 23.

23

ORDER - 7

1 complaint “changes the theory or scope of the case, the defendant is allowed to plead

2 anew as though it were the original complaint” (emphasis added) (quoting Brown v. E.F.

3 Hutton & Co., 610 F. Supp. 76, 78 (S.D. Fla. 1985))). The Court is satisfied that venue is

4 proper because at least one plaintiff resides in Washington, that the joinder of additional

5 plaintiffs who live outside Washington does not fundamentally change the nature of this

6 litigation, and that, by not earlier challenging venue, defendants waived any argument to

7 the contrary. Defendants’ Rule 12(b)(3) motion is DENIED.

8 D. Failure to State a Claim

9

1. Standard

10

Although a complaint challenged by a Rule 12(b)(6) motion to dismiss need not

11 provide detailed factual allegations, it must offer “more than labels and conclusions” and

12 contain more than a “formulaic recitation of the elements of a cause of action.” Bell Atl.

13 Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint must indicate more than

14 mere speculation of a right to relief. Id. In ruling on a motion to dismiss, the Court must

15 assume the truth of a plaintiff’s factual allegations and draw all reasonable inferences in

16 the plaintiff’s favor. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987).

17 The question for the Court is whether the facts in the operative pleading sufficiently state

18 a “plausible” ground for relief. Twombly, 550 U.S. at 570.

19

2. Rights of “Non-Admitted” Aliens

20

Defendants contend that, as “arriving” or “non-admitted” aliens, A.E.G.E., E.G.C.,

21 A.F.M.J., L.J.M., M.R.J., and K.N.S.M. have no procedural due process rights under the

22

23

ORDER - 8

1 Fifth Amendment. Defendants’ argument is not supported by the authorities they cite.6

2 Under the Immigration and Nationality Act (“INA”), as amended by the Illegal

3 Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), an alien is

4 “removable” if (i) he or she was not admitted to the United States and is “inadmissible”

5 under 8 U.S.C. § 1182, or (ii) he or she was admitted to the United States and is

6 “deportable” under 8 U.S.C. § 1227. See 8 U.S.C. § 1229a(e)(2). Before the enactment

7 of IIRIRA, a distinction had been drawn between “exclusion” and “deportation” of

8 individuals. See Dormescar v. U.S. Att’y Gen., 690 F.3d 1258, 1260 (11th Cir. 2012);

9 see also United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950).

10 “Excludable” aliens, meaning those who sought but had not yet achieved admission, were

11 treated as though they were detained at the border, even if they were physically present

12 within the United States, Dormescar, 690 F.3d at 1260, and “excludable” aliens were

13 entitled to fewer procedural protections than “deportable” aliens, Mariscal-Sandoval v.

14 Ashcroft, 370 F.3d 851, 854 (9th Cir. 2004). When IIRIRA became effective on

15

16 6 Defendants’ reliance on both Alvarez-Garcia v. Ashcroft, 378 F.3d 1094 (9th Cir. 2004), and Wong v.

United States, 373 F.3d 952 (9th Cir. 2004), is misplaced. Alvarez-Garcia does not support defendants’

17

assertion that excludable aliens have no procedural due process rights, but rather stands for the proposition that Congress may treat excludable and deportable aliens differently without running afoul of

the equal protection prong of the substantive due process doctrines developed under the Fifth
18 Amendment. 378 F.3d at 1097-99; see also Mathews v. Diaz, 426 U.S. 67 (1976) (indicating that

Congress may distinguish between classes of aliens, i.e., those who are permanent residents and

19 continuously present in the United States for five years versus those who are not, in determining who is
eligible for Medicare benefits). In Wong, the Ninth Circuit concluded that the plaintiff, as a “non-

20

admitted” alien, had substantive due process rights under the Fifth Amendment, but held that the individual officers involved in the “purely invidious discrimination” at issue were entitled to qualified

immunity because the law was not clearly established at the time they engaged in the constitutional

21 violations. 373 F.3d at 970-77. The case, however, remained pending against the United States, and the

parties are now engaged in settlement discussions. Wong does not involve procedural due process rights

22 or even removal proceedings, and it offers no guidance concerning the issues now before the Court.

23

ORDER - 9

1 April 1, 1997, see Pub. L. No. 104-208, Div. C, § 309(a), 110 Stat. 3009 (1996),

2 exclusion and deportation proceedings were merged into the broader category of

3 “removal” proceedings.7 Mariscal-Sandoval, 370 F.3d at 854 n.6.

4

In support of their position, defendants rely on both pre-IIRIRA8 and post-IIRIRA

5 cases. None of these decisions, however, stand for the proposition that aliens who have

6 not been “admitted” into the United States are not entitled to any of the protections

7 afforded by the Due Process Clause of the Fifth Amendment. Indeed, most of the cases

8 cited by defendants say quite the opposite. For example, in the oldest case cited by

9 defendants, the Supreme Court interjected certain due process rights into an act of

10 Congress that concerned excludable aliens. See Yamataya v. Fisher, 189 U.S. 86 (1903).

11 In Yamataya, approximately four days after arriving in the United States, the appellant

12 was deemed a pauper and a person likely to become a public charge, and a warrant was

13 issued directing that she be taken into custody and returned to Japan. Id. at 87. The

14 warrant was issued pursuant to a statute authorizing the Secretary of the Treasury to

15

16 7 Removal proceedings are conducted before an immigration judge, and such proceedings are “the sole
and exclusive” means for determining whether an alien may be admitted to or removed from the United
17 States. 8 U.S.C. §§ 1229a(a)(1) & (3). Pursuant to INA § 240(b), an alien in a removal proceeding may
offer evidence on his or her own behalf and may review the evidence and cross-examine the witnesses
18 presented by the Government, subject to certain national security limitations. 8 U.S.C. § 1229a(b)(4)(B).
An alien also has the statutory “privilege of being represented, at no expense to the Government, by counsel of the alien’s choosing” in both “removal proceedings before an immigration judge” and “appeal
19 proceedings before the Attorney General.” 8 U.S.C. §§ 1229a(b)(4)(A) & 1362.

20 8 Two of the pre-IIRIRA cases cited by defendants are so far afield from the issue before the Court that

they do not bear any further discussion. See United States v. Verdugo-Urquidez, 494 U.S. 259 (1990)

21

(holding that the warrant requirements of the Fourth Amendment did not apply to a search by American authorities of the Mexican residence of a Mexican citizen who was apprehended in Mexico); Johnson v.

Eisentrager, 339 U.S. 763 (1950) (holding that an enemy alien who was captured, tried, convicted of war
22 crimes, and imprisoned outside the United States was not entitled to apply for a writ of habeas corpus).

23

ORDER - 10

1 apprehend any alien of such excluded class, within one year after he or she entered the

2 United States, and return him or her to the country of origin. Id. at 99. The Supreme

3 Court rejected the argument that the statute permitted the Secretary of the Treasury or any

4 executive officer to take such actions without providing notice and “all opportunity to be

5 heard upon the questions involving [the alien’s] right to be and remain in the United

6 States.” Id. at 99-101; id. at 101 (“No such arbitrary power can exist where the principles

7 involved in due process of law are recognized.”). The Supreme Court observed that the

8 “reasonable construction” it had given to the act of Congress at issue brought the statute

9 “into harmony with the Constitution,” but the appellant was denied habeas corpus relief

10 because she had, in fact, received the requisite notice and opportunity to be heard. Id. at

11 101-02.

12

The Supreme Court reiterated the rule of Yamataya in deciding Shaughnessy v.

13 United States ex rel. Mezei, 345 U.S. 206 (1953), a case on which defendants heavily

14 rely. In Mezei, the Supreme Court summarized Yamataya as teaching that “aliens who

15 have once passed through our gates, even illegally, may be expelled only after

16 proceedings conforming to traditional standards of fairness encompassed in due process

17 of law.” Id. at 212 (emphasis added). In Mezei, however, unlike in Yamataya, the habeas

18 corpus petitioner never gained entry into the United States; he was stranded on Ellis

19 Island after being excluded upon arrival in New York on national security grounds and

20 after being refused entry by all other countries to which he had applied. Id. at 208-09.

21 With respect to the habeas corpus petitioner in Mezei, the Supreme Court observed that

22 “an alien on the threshold of initial entry stands on a different footing: ‘Whatever the

23

ORDER - 11

1 procedure authorized by Congress is, it is due process as far as an alien denied entry is

2 concerned.’” Id. at 212.

3

Defendants point to this last passage in Mezei as support for the contention that

4 aliens who have not been “admitted” into, but are physically present in, the United States

5 are not entitled to the procedural due process guaranteed by the Fifth Amendment. Their

6 argument, however, ignores Mezei’s and Yamataya’s clear statement to the contrary, and 7 blurs the distinction between entry and admission.9 Entry, meaning physically crossing

8 the border in the United States, can occur both legally and illegally. Admission, within

9 the meaning of the INA as amended by IIRIRA, however, requires the sovereign to grant

10 permission to enter. Mezei and Yamataya teach that an alien who has entered the United

11 States, by being admitted or without having obtained such permission, has at least the

12 procedural due process rights to notice and an opportunity to be heard, which are the

13 constitutional minimum. See United States v. Raya-Vaca, 771 F.3d 1195, 1204 (9th Cir.

14 2014) (“Due process always requires, at a minimum, notice and an opportunity to

15

9 A post-IIRIRA case cited by defendants further confuses matters. See Angov v. Lynch, 788 F.3d 893

16 (9th Cir. 2013) (amended June 8, 2015). In Angov, the question presented was summarized as follows:
“Does an immigration judge err by relying on a State Department investigation of an asylum petitioner’s

17

claim?” Id. at 896. The petitioner argued that the immigration judge’s reliance on a letter summarizing the results of an investigation conducted by the United States consulate in Sofia, Bulgaria (the “Bunton

letter”) violated his procedural due process rights. Id. at 896-98. The majority declared that the petitioner
18 “has no such right,” but then cited Mezei for the proposition that “[a]liens ‘who have once passed through

our gates, even illegally,’ are afforded the full panoply of procedural due process protections.” Id. at 898

19 (quoting Mezei, 345 U.S. at 212). The dissent in Angov observed that five other circuits have held that
“the government may not deny asylum solely on the basis of conclusory letters prepared for litigation in

20

reliance on multiple layers of unauthenticated hearsay, without affording the petitioner some right of confronting the charges.” Id. at 911 (Thomas, C.J., dissenting). Given the dissent’s observation that the

majority’s holding in Angov is at odds with the decisions of five other circuits, and the fact that Angov

21 concerns asylum rather than removal proceedings, the Court declines defendants’ invitation to rely on

Angov for the proposition that a “non-admitted” alien in removal proceedings has no procedural due

22 process rights.

23

ORDER - 12

1 respond.” (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985))); see

2 also Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001) (“[D]ue process requires three

3 things,” namely (i) “factfinding based on a record produced before the decisionmaker and

4 disclosed to” the alien, (ii) an opportunity for the alien “to make arguments on his or her

5 own behalf,” and (iii) “an individualized determination” of the alien’s interests);

6 Marincas v. Lewis, 92 F.3d 195, 203 (3d Cir. 1996) (defining as “two of the most basic of

7 due process protections” the right to “a neutral judge and a complete record of the

8 proceeding”). No named plaintiff in this action is in a situation analogous to that of the

9 habeas corpus petitioner in Mezei, and Mezei provides no basis for dismissing plaintiffs’ 10 right-to-counsel claim for lack of cognizability.10

11

The distinction that defendants draw between “non-admitted” and “deportable”

12 aliens might, however, still play a role in this litigation. The question the Court faces in

13 this case is not whether plaintiffs have procedural due process rights. Clearly they do.

14

15 10 Defendants cite several cases involving “expedited removal” proceedings. See Pena v. Lynch, 815 F.3d

452 (9th Cir. 2015) (amended Feb. 18, 2016) (superseding 804 F.3d 1258 (9th Cir. 2015)); United States

16 v. Barajas-Alvarado, 655 F.3d 1077 (9th Cir. 2011); Garcia de Rincon v. Dep’t of Homeland Sec., 539

F.3d 1133 (9th Cir. 2008); M.S.P.C. v. U.S. Customs & Border Prot., 60 F. Supp. 3d 1156 (D.N.M. 2014),

17

vacated as moot, 2015 WL 7454248 (D.N.M. Sep. 23, 2015). Except for M.S.P.C., which has been vacated and is of no precedential value, these authorities delineate the limits of a court’s jurisdiction to

review “expedited removal” proceedings. See generally Raya-Vaca, 771 F.3d at 1199 (explaining that
18 two classes of aliens are subject to “expedited removal” proceedings: (i) aliens “arriving” in the United

States; and (ii) aliens who have entered the United States, are physically present without having been

19 admitted or paroled, are discovered within 100 “air miles” of the border, and cannot establish that they
have been physically present in the United States for at least 14 days (citing Designating Aliens for

20

Expedited Removal, 69 Fed. Reg. 48877-01, 48880 (Aug. 11, 2004))). In this action, plaintiffs are not pursuing a right-to-counsel claim on behalf of juvenile aliens in “expedited removal” proceedings, and

thus, the cases recognizing legislative restrictions on judicial involvement regarding such proceedings are

21 not relevant. Moreover, defendants’ contention that aliens in “expedited removal” proceedings are

afforded no procedural rights other than what Congress has provided runs contrary to the Ninth Circuit’s

22 holding in Raya-Vaca that such proceedings must conform “to the dictates of due process.” Id. at 1203.

23

ORDER - 13

1 The question is what procedural rights are due to plaintiffs. The answer to this question

2 might be different for “non-admitted” aliens than it is for “deportable” aliens. See

3 Zadvydas v. Davis, 533 U.S. 678, 682 (2001) (observing that “[w]e deal here with aliens

4 who were admitted to the United States [and] subsequently ordered removed,” whereas

5 “[a]liens who have not yet gained initial admission to this country would present a very

6 different question”).

7

In Landon v. Plasencia, 459 U.S. 21 (1982), the Supreme Court recognized this

8 dichotomy. In Plasencia, a pre-IIRIRA case, Maria Antoineta Plasencia, a permanent

9 resident of the United States, was denied admission when she attempted to return to the

10 country after a brief visit to Mexico; at the time, she and her husband were accompanied

11 by six aliens trying to illegally cross the border. Id. at 22-23. The issue in Plasencia was

12 whether the Immigration and Nationalization Service (“INS”) was required to proceed

13 against Plasencia in exclusion proceedings or in deportation proceedings; Plasencia

14 asserted that she was entitled to a deportation hearing at which she would receive more

15 procedural and substantive protections than in an exclusion proceeding. Id. at 22, 27.

16 The Supreme Court concluded that Plasencia was not entitled to a deportation proceeding

17 because the applicable statute indicated that admissibility of an alien was to be

18 determined solely in an exclusion hearing. Id. at 27-32.

19

With respect to any such exclusion proceeding, the United States conceded that

20 Plasencia was entitled to due process. Id. at 34. This concession (which is contrary to

21 defendants’ position in this case) did not, however, resolve the matter. As the Supreme

22 Court observed in Plasencia, the “constitutional sufficiency of procedures provided in

23

ORDER - 14

1 any situation, of course, varies with the circumstances.” Id. The existing safeguards and

2 any additional proposed procedures must be evaluated using the three-part balancing test 3 first articulated in Mathews v. Eldridge, 424 U.S. 319 (1976).11 See 459 U.S. at 34. In

4 Plasencia, the Supreme Court declined to perform the Mathews analysis because the

5 parties had “devoted their attention to the entitlement to a deportation hearing rather than

6 to the sufficiency of the procedures in the exclusion hearing.” Id. at 36-37. The question

7 of whether Plasencia had been “accorded due process under all of the circumstances” was

8 remanded to the Ninth Circuit, id. at 37, which remanded to the district court, Plasencia

9 v. Dist. Dir., Immigration & Naturalization Serv., 719 F.2d 1425 (9th Cir. 1983).

10

In the end, defendants’ argument about the difference between “non-admitted” and

11 “deportable” aliens merely highlights for the Court that the Mathews factors might lead to

12 a variety of results depending on each plaintiff’s circumstances, but such possibility does

13 not establish that plaintiffs have failed to state a plausible claim for relief within the

14 meaning of Rule 12(b)(6) and Twombly. If, as defendants seem to suggest, the potential

15 for losing on the merits was the measure of whether a claim was adequately pleaded, then

16

17 11 Under Mathews, in evaluating whether due process has been satisfied, the following factors must be

weighed: (i) the nature of the private interest affected by the government action; (ii) the risk of erroneous
18 deprivation of such interest through the procedures used, as well as the probable value of additional or

substitute safeguards; and (iii) the interest of the government, including the fiscal or administrative

19 burdens that additional or different procedural requirements would entail. 424 U.S. at 335. In Turner v.
Rogers, 564 U.S. 431 (2011), the Supreme Court indicated that the Mathews factors are “useful” in

20

determining whether due process requires the appointment of counsel in a civil proceeding. Id. at ---, 131 S. Ct. at 2517; see also Oshodi v. Holder, 729 F.3d 883 (9th Cir. 2013) (applying the Mathews standard in

concluding that an asylum petitioner who entered the United States without inspection was denied due

21 process in his removal proceedings when the immigration judge directed him to limit his testimony to

events that were not discussed in his asylum application).

22

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ORDER - 15

1 no claim would ever survive a Rule 12(b)(6) motion. To the extent defendants’

2 Rule 12(b)(6) motion is premised on the theory that “non-admitted” aliens have no due

3 process rights beyond what Congress has provided, their motion is without merit.

4 Whether the scope of such aliens’ procedural rights under the Fifth Amendment includes

5 the right to counsel at government expense is a question more appropriately reserved for

6 dispositive motion practice or trial.

7

3. Consolidated Removal Proceedings

8

Defendants assert that A.F.M.J., L.J.M., and M.R.J. have not pleaded a claim for

9 relief because they cannot seek counsel at government expense when their mother is also

10 in removal proceedings and presumably represents their interests. Although the result of

11 the mother’s removal proceedings will affect her children, presumably because she and

12 her two daughters and son will not wish to be separated, defendants’ contention that the

13 mother is a proper “representative” for her children in their removal proceedings is not

14 supported by the cases they cite. None of the four cases upon which defendants rely

15 stand for the proposition that a parent may or must represent his or her child in removal

16 proceedings. In two of the cases, the minor aliens filed asylum applications that ran 17 contrary to their parents’ wishes. Polovchak v. Meese, 774 F.2d 731 (7th Cir. 1985);12

18

19 12 In Polovchak, citizens of the former Union of Soviet Socialist Republics (“U.S.S.R.”), who had settled
in Chicago, decided to return to their native country. 774 F.2d at 732. Their two eldest children, Nataly
20 and Walter, ages 17 and 12, wanted to remain in the United States, and Walter eventually filed an
application for asylum, which was granted without notice to his parents. Id. at 732-33. The Seventh Circuit held that, although the parents were not parties to the asylum proceedings, they were entitled to
21 notice and an opportunity to be heard before asylum was granted to their son. Id. at 735-36. The Seventh
Circuit reasoned that the parents’ interest was “one of the strongest our society knows” and the proposed
22 pre-deprivation procedures “would burden the government only slightly.” Id.

23

ORDER - 16

1 see Gonzalez v. Reno, 212 F.3d 1338 (11th Cir. 2000).13 Although the Seventh and

2 Eleventh Circuits held in those cases that the parents’ views should ordinarily trump

3 those of young children, both matters involved asylum applications, not removal

4 proceedings, and in neither situation was a parent serving or seeking to serve as a

5 “representative” for a child in removal proceedings.

6

The third case cited by defendants, involving an adult alien asserting a derivative

7 asylum claim, is even less favorable to their position. See Oforji v. Ashcroft, 354 F.3d

8 609 (7th Cir. 2003). In Oforji, the asylum petitioner, who was a Nigerian citizen, claimed

9 that removal would potentially cause her two daughters, who were United States citizens

10 but who would presumably return with her to Nigeria if she was removed, to be subjected

11 to female genital mutilation. Id. at 612. The derivative asylum claim was rejected

12 because the daughters were United States citizens and had a legal right to remain in the

13 country, which could be accommodated through placement with their father, if he could

14 be found, or an appointed guardian. Id. at 616. The Seventh Circuit saw this result as a

15 disincentive to excludable or deportable aliens to bear children whose rights, as American

16

17 13 In Gonzalez, the plaintiff, Elian Gonzalez, arrived in the United States at the age of six, having endured

a boat ride from Cuba during which his mother died. 212 F.3d at 1344. He was paroled into the United
18 States and released to the custody of his great-uncle, who filed an application for asylum on his behalf.

Id. Elian subsequently filed his own asylum application. Id. His father, who remained in Cuba, indicated

19 a desire for Elian’s return. Id. at 1345. The INS concluded that Elian’s asylum applications were legally
void. Id. at 1345-46. The INS reasoned that a six-year-old child lacks the capacity to sign an application

20

for asylum, but must instead be represented by an adult in immigration matters, and absent “special circumstances,” the only proper adult to represent a child is a parent, even when the parent is not within

the United States. Id. at 1349-50. The INS further found that a parent’s residence in a communist,

21 totalitarian state like Cuba did not constitute “special circumstances.” Id. The Eleventh Circuit held that

the INS’s policy was facially reasonable and had not been applied arbitrarily, capriciously, or in a manner

22 constituting an abuse of discretion. Id. at 1350-56.

23

ORDER - 17

1 citizens, to stay in the United States are separate from the parents’ obligations to depart.

2 Id. at 618.

3

In Oforji, the asylum petitioner was not “representing” her daughters in removal

4 proceedings, but rather using their interests in not returning to Nigeria as a basis for her

5 to remain in the United States. Thus, Oforji does not support defendants’ contention that

6 “a parent or other guardian necessarily speaks for a child too young to articulate his or

7 her own claim.” Mot. at 19-20 (docket no. 229) (citing the concurrence in Oforji, as

8 opposed to the majority opinion). Rather, Oforji illustrates the type of problem faced by

9 plaintiffs A.F.M.J. and L.J.M., whose biological father was a United States citizen; their

10 rights to remain in the United States are different from their mother’s, but she might be

11 unwilling to assert their rights for fear of being separated from them if she cannot also

12 stay in the United States.

13

The fourth case on which defendants rely, Johns v. Dep’t of Justice, 624 F.2d 522

14 (5th Cir. 1980), actually runs contrary to their position. In Johns, a husband and wife

15 brought an infant girl from Mexico into the United States without a visa or other proper

16 documentation. Id. at 523. Approximately five years later, the girl’s biological mother

17 sought her return to Mexico, claiming that the child had been kidnapped. Id. The couple

18 contended that the biological mother had willingly given up the child and that they had

19 taken the girl with the biological mother’s consent. Id. The Fifth Circuit concluded that,

20 in connection with deportation proceedings, neither the spouses nor the biological mother

21 could represent the young girl’s interests, and it remanded with instructions to appoint a

22 guardian ad litem for the child and to direct the INS to conduct all further proceedings

23

ORDER - 18

1 with the guardian ad litem serving as the child’s representative. Id. at 523-24. The

2 holding of Johns does not support defendants’ argument that A.F.M.J., L.J.M., and

3 M.R.J. have failed to state a claim for counsel at government expense because their

4 mother is in removal proceedings with them. To the extent their mother’s interests are

5 not aligned with their interests, which is conceivable given that two of them might have a

6 claim to United States citizenship, Johns indicates that someone other than the mother

7 should be appointed to represent the children. Defendants’ assertion that, simply because

8 A.F.M.J., L.J.M., and M.R.J. are in removal proceedings with their mother, their right-to-

9 counsel claims are not cognizable lacks merit.

10 Conclusion

11

For the foregoing reasons, defendants’ partial motion to dismiss, docket no. 229, is

12 GRANTED in part, DEFERRED in part, and DENIED in part. Plaintiffs’ claims against

13 USCIS Director León Rodríguez are DISMISSED. Plaintiff J.E.V.G.’s right-to-counsel

14 claim is DISMISSED as moot. Defendants’ motion is DEFERRED with respect to

15 plaintiff M.A.M.’s right-to-counsel claim, and the parties are DIRECTED to file, by

16 May 6, 2016, a Joint Status Report concerning the status of M.A.M.’s removal

17 proceedings. Defendants’ partial motion to dismiss is otherwise DENIED. Defendants

18 shall file their answer to the Third Amended Complaint by May 16, 2016. See Fed. R.

19 Civ. P. 12(a)(4) (upon the denial of a Rule 12 motion, the Court may set a time for a

20 responsive pleading to be filed).

21

22

23

ORDER - 19

1

IT IS SO ORDERED.

2

Dated this 15th day of April, 2016.

3

4

5

6

7

8

9

10

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12

13

14

15

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23

ORDER - 20

A
Thomas S. Zilly United States District Judge

 
 1

2

3

4

UNITED STATES DISTRICT COURT

5

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

6

F.L.B., et al., 7
Plaintiffs, 8
v. 9
LORETTA E. LYNCH, et al., 10
Defendants. 11

C14-1026 TSZ ORDER

12

THIS MATTER comes before the Court on plaintiffs’ fourth motion to certify

13 class, docket no. 230. Having reviewed all papers filed in support of and in opposition to

14 plaintiffs’ motion, including the supplemental briefs filed in response to the Minute 15 Orders entered March 10, 2016, docket no. 248, and April 18, 2016, docket no. 266, and 16 having considered the oral arguments of counsel, see Transcript (Mar. 24, 2016) (docket 17 no. 261), the Court hereby CERTIFIES the following Class and Subclass pursuant to 18 Federal Rule of Civil Procedure 23(b)(2):

19

Class: All individuals under the age of eighteen (18) who:

(1) are in removal proceedings, as defined in 8 U.S.C. § 1229a, within

20

the boundaries of the Ninth Judicial Circuit, on or after the date of entry of

this Order; 21

(2) were not admitted to the United States and are alleged, in such

22

removal proceedings, to be “inadmissible” under 8 U.S.C. § 1182;

23

ORDER - 1

1

(3) are without legal representation, meaning (a) an attorney, (b) a law

student or law graduate directly supervised by an attorney or an accredited

2

representative, or (c) an accredited representative, all as defined in 8 C.F.R.

§ 1292.1; 3

(4) are financially unable to obtain such legal representation; and

4 (5) are potentially eligible for asylum under 8 U.S.C. § 1158,

5

withholding of removal under 8 U.S.C. § 1231(b)(3), or protection under

the Convention Against Torture, or are potentially able to make a colorable

6

claim of United States citizenship.

7

Subclass: All individuals in the Class who are under the age of fourteen (14).

8 Specifically excluded from the Class and Subclass are juveniles who (i) qualify as an

9 “applicant for admission” as defined in 8 U.S.C. § 1225(a)(1), (ii) have not been paroled

10 into the United States pursuant to 8 U.S.C. § 1182(d)(5), and (iii) satisfy the other criteria

11 for “expedited removal,” e.g., were encountered by an immigration official within 100 air

12 miles of the border and were unable to establish continuous physical presence in the

13 United States during the fourteen-day period prior to such encounter. See Designating

14 Aliens for Expedited Removal, 69 Fed. Reg. 48877-01, 48880 (Aug. 11, 2004).

15 Discussion

16

In a prior motion for class certification, plaintiffs proposed to certify a class of

17 “[a]ll individuals under the age of eighteen (18) who are in immigration proceedings on

18 or after July 9, 2014, without legal representation in their immigration proceedings and

19 who are financially unable to obtain such representation.” Plas.’ 3d Mot. at 2 (docket

20 no. 191). Plaintiffs’ earlier motion was denied without prejudice because the proposed

21 class was too expansive to meet the commonality and typicality requirements of Federal

22 Rule of Civil Procedure 23(a). See Order (docket no. 225) (setting forth the applicable

23

ORDER - 2

1 standards for certifying a Rule 23(b)(2) class). In their current motion, plaintiffs again

2 ask to certify the same overbroad class. Their renewed request lacks merit for the reasons

3 previously articulated by the Court, but the Court concludes that a more narrow class is

4 appropriate.

5

Plaintiffs also seek to certify two pairs of subclasses; each pair of subclasses

6 comprises the entire class. See Plas.’ 4th Mot. at 1-2 (docket no. 230) (suggesting

7 “entering” and “arriving” subclasses, as well as “accompanied” and “unaccompanied”

8 subclasses). The Court requested additional briefing along similar lines, describing

9 potential subclasses of allegedly “inadmissible” and “deportable” juveniles, as well as a

10 subclass of minors in removal proceedings consolidated with those of a parent or legal

11 guardian and a subclass of unaccompanied alien children. See Minute Order (docket

12 no. 266). Having reviewed the supplemental briefs, the Court is persuaded that such

13 subclasses are unnecessary.

14

A. “Inadmissible” Versus “Deportable”

15

For purposes of determining what procedural rights are due to minor aliens under

16 the Fifth Amendment, the Court has acknowledged that a distinction might need to drawn

17 between “non-admitted” and “deportable” individuals. Order at 13-14 (docket no. 264).

18 Plaintiffs, however, concede that no named plaintiff has been admitted to the United

19 States and is alleged, in removal proceedings, to be “deportable” under 8 U.S.C. § 1227.

20 Thus, the named plaintiffs’ claims are not typical of the right-to-counsel claims that

21 might be asserted by juvenile aliens who are alleged, in removal proceedings, to be

22 “deportable.” The Court therefore declines to certify a subclass of allegedly “deportable”

23

ORDER - 3

1 minors, and instead incorporates as part of the class definition that each member must not

2 have been admitted to the United States and must be alleged, in removal proceedings, to

3 be “inadmissible” under 8 U.S.C. § 1182.

4

B. Unaccompanied Minors

5

Defendants contend that the designation of a juvenile as an “unaccompanied alien

6 child” is made at the time he or she is placed into federal custody, see 6 U.S.C. § 279, and

7 it has no relevance to the question of whether, in later removal proceedings, such minor

8 might reside with, be accompanied by, and/or have the assistance of a parent or guardian.

9 Defendants have also represented to the Court that resources have been allocated to

10 provide counsel for certain groups of unaccompanied minors. See Order at 35 n.28

11 (docket no. 114). How the availability of attorneys for some, but apparently not all,

12 unaccompanied juvenile aliens might affect the balancing required under Mathews v.

13 Eldridge, 424 U.S. 319 (1976),1 is unclear. On one hand, it might evidence a consensus

14 or acknowledgement that, even if other aliens can navigate the immigration labyrinth

15 without a lawyer, unaccompanied minors need legal representation. On the other hand, it

16 might demonstrate that existing procedures are sufficient to address or perhaps negate the

17 risk of erroneous deprivation. Regardless, the Court is persuaded that subclasses need

18 not be certified to deal with the possible differences between unaccompanied minors,

19

20 1 Under Mathews, in evaluating whether due process has been satisfied, the following factors must be

weighed: (i) the nature of the private interest affected by the government action; (ii) the risk of erroneous

21

deprivation of such interest through the procedures used, as well as the probable value of additional or substitute safeguards; and (iii) the interest of the government, including the fiscal or administrative

burdens that additional or different procedural requirements would entail. 424 U.S. at 335; see Turner v.
22 Rogers, 564 U.S. 431, 444-45 (2011); see also Oshodi v. Holder, 729 F.3d 883, 894 (9th Cir. 2013).

23

ORDER - 4

1 children in removal proceedings consolidated with those of a parent or guardian, and

2 other juvenile aliens, and that relief, if any, can be crafted in a manner taking into account

3 such circumstances, if appropriate.

4

C. Eligibility for Relief

5

Plaintiffs must demonstrate, as a prerequisite to any Mathews analysis and their

6 assertion of due process rights, the likely adverse consequences associated with removal.

7 See Order at 5 (docket no. 225); Order at 31-32 (docket no. 114). Nevertheless, in all

8 four of their motions for class certification, plaintiffs failed to frame a class of juveniles

9 who might face potential harm if removed to their country of origin. To address this

10 deficiency, the Court suggested that the class definition refer to eligibility for asylum or

11 similar relief. See Minute Orders (docket nos. 248 & 266). In response to the Court’s

12 proposal, plaintiffs assert that class members should include, not only minor aliens

13 potentially eligible for asylum, withholding of removal, or protection under the

14 Convention Against Torture, but also those “potentially eligible for other remedies under

15 the Immigration and Nationality Act.” Plas.’ Supp. Br. at 9 (docket no. 271). Plaintiffs,

16 however, offer no example of relief other than asylum, withholding of removal, or

17 protection under the Convention Against Torture that would be based on the risk of harm

18 possibly arising from removal. Plaintiffs’ proposed catch-all phrase does not eliminate

19 from the class the teenagers or exchange students hypothesized by defendants, who are

20 from relatively stable nations, see Order at 5 (docket no. 225), and the Court therefore

21 declines plaintiffs’ request to incorporate such residual clause.

22

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ORDER - 5

1

D. Class Period

2

In proposing a class of juveniles who “are in immigration proceedings on or after

3 July 9, 2014,” plaintiffs attempt to include within the class any minor aliens as to whom

4 an order of removal was issued on or after July 9, 2014, and before the date of this Order.

5 The Court, however, lacks jurisdiction over the claims of such individuals. See Order at

6 10-11 (docket no. 114); see also 8 U.S.C. § 1252(g). Thus, the Court adopts defendants’

7 suggestion that the class period run forward from the date of class certification, i.e., from

8 the date of this Order. See Defs.’ 2d Supp. Br. at 11 n.4 (docket no. 275).

9

E. Commonality and Typicality

10

In opposing class certification, defendants have not disputed either numerosity or

11 the ability of the class representatives to fairly and adequately protect the interests of the

12 class. See Fed. R. Civ. P. 23(a). Defendants have instead focused on the requirements of

13 commonality and typicality, asserting that the Mathews test cannot be applied on a class-

14 wide basis because of variations in age, abilities, and circumstances among the putative

15 class members. Defendants’ arguments ignore the ways in which the competency and

16 capacity of juveniles are categorically based on age. See Minute Order at ¶ 1 (docket

17 no. 248) (citing various state statutes). Among adolescents, intellect and maturity levels

18 vary significantly, but the age at which they may drive, marry, seek emancipation (and

19 thereby sue, be sued, enter into contracts, and consent to health care), or be prosecuted as

20 adults is generally uniform within each state. Similarly, some young children are savvier

21 than others, but the law presumes all of them below a certain age incapable of committing

22

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ORDER - 6

1 crime. Age is a type of litmus test from which conclusions are frequently drawn about

2 what can and what cannot be expected of a minor.

3

Defendants do not appear to dispute that children below a certain age (perhaps

4 those who cannot yet speak, read, or write) are incapable of appearing pro se in removal

5 proceedings. Such children are also presumably unable, from a financial standpoint, to

6 house, feed, and clothe themselves, and thus, in most cases, they will be residing with a

7 parent or guardian. With respect to such youngsters, defendants’ position in this matter

8 seems to involve, rather than the minors’ individual skills, the role that a parent or

9 guardian can or must play in removal proceedings, which is a legal question susceptible

10 to a common answer. See Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir.

11 2011) (“[I]t is insufficient to merely allege any common question . . . . Instead, [a

12 plaintiff] must pose a question that ‘will produce a common answer to the crucial

13 question . . . .’” (citations omitted)). Thus, the Court is satisfied that some maximum age

14 exists as to which class certification is appropriate.

15

As reflected in the Order entered January 21, 2016, docket no. 225, the Court has

16 struggled with the question of whether a Mathews balancing can be conducted across the

17 ranges of age, education, intelligence, language facility, and experience reflected among

18 juvenile aliens. For purposes of moving this litigation forward, the Court will use the

19 ages of eighteen (18) and fourteen (14) because they are thresholds identified by the

20 states in the Ninth Circuit in which one or more plaintiffs reside, namely Washington and

21 California. See Minute Order at ¶ 1 (docket no. 248); see also Roper v. Simmons, 543

22 U.S. 551, 574 (2005) (“Drawing the line at 18 years of age is subject, of course, to the

23

ORDER - 7

1 objections always raised against categorical rules. . . . For the reasons we have discussed,

2 however, a line must be drawn. . . . The age of 18 is the point where society draws the

3 line for many purposes between childhood and adulthood.”); Thompson v. Oklahoma,

4 487 U.S. 815, 824-25 (1988) (“The line between childhood and adulthood is drawn in

5 different ways by various States. . . . All of this legislation is consistent with the

6 experience of mankind, as well as the long history of our law, that the normal 15-year-old

7 is not prepared to assume the full responsibilities of an adult.”). If, at a later stage in this

8 action, the Court is persuaded that individual questions predominate over common ones

9 with regard to certain age groups, the Court can adjust the definition of the Class and/or

10 Subclass accordingly.

11

F. Notice

12

Unlike with respect to a Rule 23(b)(3) class, notice to members of a Rule 23(b)(2)

13 class is not mandated. Fed. R. Civ. P. 23(c)(2)(A). Contrary to plaintiffs’ suggestion,

14 notice to every class member in this matter is neither necessary nor practicable.2 Because

15 the Court lacks jurisdiction to grant classwide injunctive relief, see Order at 36-38

16 (docket no. 114), and because class members cannot opt out of this litigation, see Fed. R.

17 Civ. P. 23(c)(2) advisory committee’s note to 2003 amendment, certification does not, at

18

2 Plaintiffs request that immigration judges and agency personnel be required to explain this litigation to
19 every class member with whom they come into contact, that defendants transmit information to plaintiffs’

counsel every time a removal order is issued with regard to a class member, and that defendants maintain

20 and/or distribute the address of a website through which plaintiffs’ counsel can provide materials to class

members. Because class members must be indigent and potentially eligible for asylum, withholding of

21

removal, or protection under the Convention Against Torture or able to make a colorable claim of United States citizenship, and because removal orders can be issued in absentia, assessing whether a particular

juvenile alien is a potential class member and whether plaintiffs’ counsel must be advised about such
22 minor might not even be possible, let alone an efficient expenditure of limited resources.

23

ORDER - 8

1 this time, directly affect class members. They will have no active role to play unless the

2 Court grants favorable declaratory relief. See Order at 38 (docket no. 114) (indicating

3 that any classwide declaratory judgment would have to be enforced on a case-by-case

4 basis). The Court therefore agrees with defendants that the issue of what notice, if any,

5 must be provided to class members should be deferred until the merits of plaintiffs’

6 constitutional right-to-counsel claims are resolved.

7 Conclusion

8

For the foregoing reasons, plaintiffs’ fourth motion to certify class, docket no. 230,

9 is GRANTED in part and DENIED in part.

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IT IS SO ORDERED.

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Dated this 24th day of June, 2016.

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A

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Thomas S. Zilly

United States District Judge

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ORDER - 9

 
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

J. E. F.M., a minor, by and through his Next Friend, Bob Ekblad; J. F.M., a minor, by and through his Next Friend Bob Ekblad; D. G. F.M., a minor, by and through her Next Friend, Bob Ekblad; F. L.B., a minor, by and through his Next Friend, Casey Trupin; G. D.S., a minor, by and through his mother and Next Friend, Ana Maria Ruvalcaba; M. A.M., a minor, by and through his mother and Next Friend, Rose Pedro; J. E. V.G.; A. E. G.E.; G. J. C.P.,
Plaintiffs-Appellees/ Cross-Appellants,

Nos. 15-35738 15-35739
D.C. No. 2:14-cv-01026-TSZ
OPINION

v.

LORETTA E. LYNCH, Attorney General; JUAN P. OSUNA, Director, Executive Office for Immigration Review; JEH JOHNSON, Secretary, Homeland Security; THOMAS S. WINKOWSKI, Principal Deputy Assistant Secretary, U.S. Immigration and Customs

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Enforcement; NATHALIE R. ASHER, Field Office Director, ICE ERO; KENNETH HAMILTON, AAFOD, ERO; SYLVIA M. BURWELL, Secretary, Health and Human Services; ESKINDER NEGASH, Director, Office of Refugee Resettlement,
Defendants-Appellants Cross-Appellees.

Appeal from the United States District Court for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
Argued and Submitted July 7, 2016 Seattle, Washington
Filed September 20, 2016
Before: Andrew J. Kleinfeld, M. Margaret McKeown, and Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge McKeown; Concurrence by Judge McKeown; Concurrence by Judge Kleinfeld

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SUMMARY*

Immigration
The panel affirmed in part and reversed in part the district court’s jurisdictional determinations in a class action brought by indigent minor immigrants alleging that they have due process and statutory rights to appointed counsel at government expense in immigration proceedings.
The panel affirmed the district court's dismissal for lack of jurisdiction of the minors' statutory claims for court-appointed counsel. The panel held that because the right-to-counsel claims “arise from" removal proceedings, they must be raised through the administrative petition for review process pursuant to 8 U.S.C. §§ 1252(b)(9) and 1252(a)(5).
The panel reversed the district court's determination that it had jurisdiction over the minors’ constitutional claims. The panel held that the district court erred in finding that an exception to the Immigration and Nationality Act’s exclusive review process provided jurisdiction over the due process right-to-counsel claims. The panel held that the district court incorrectly found that the claims challenged a policy or practice collateral to the substance of removal proceedings, and that because an Immigration Judge was unlikely to conduct the requisite due process balancing the administrative record would not provide meaningful judicial review.

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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Specially concurring, Judge McKeown, joined by Judge M. Smith, wrote to highlight the plight of unrepresented children in immigration proceedings, and to underscore that the Executive and Congress have the power to address this crisis without judicial intervention.

Specially concurring, Judge Kleinfeld agreed that it is unlikely that children or even adults can protect all their rights in deportation proceedings without a lawyer. Judge Kleinfeld wrote that solving the representation problem is a highly controversial political matter, and that advocating for a particular reform is unnecessary and better left to the political process.

COUNSEL
Erez Reuveni (argued), Senior Litigation Counsel; Leon Fresco, Deputy Assistant Attorney General; Benjamin C. Mizer, Principal Deputy Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellants/Cross-Appellees.
Ahilan Thevanesan Arulanantham (argued), ACLU Immigrants’ Rights Project, ACLU of Southern California, Los Angeles, California; Heidi Craig Garcia, Todd Nunn, and Theodore J. Angelis, K&L Gates LLP, Seattle, Washington; Glenda M. Aldana Madrid and Matt Adams, Northwest Immigrant Rights Project, Seattle, Washington; Cecillia Wang and Stephen Kang, ACLU Immigrants’ Rights Project, San Francisco, California; for Plaintiffs-Appellees/CrossAppellants.

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Marsha Chien, Assistant Attorney General; Colleen Melody, Civil Rights Unit Chief; Robert W. Ferguson, Attorney General; Office of the Attorney General, Seattle, Washington; Kamala D. Harris, Attorney General; Office of the Attorney General, Sacramento, California; for Amici Curiae States of Washington and California.

Charles G. Wentworth, The Law Office of Lofgren & Wentworth P.C., Glen Ellyn, Illinois; Charles Roth, National Immigrant Justice Center, Chicago, Illinois; for Amici Curiae National Immigrant Justice Center; American Immigration Lawyers Association; Ayuda; Capital Area Immigrants’ Rights Coalition; Catholic Legal Immigration Network, Inc; Community Legal Services in East Palo Alto; Diocesan Migrant & Refugee Services, Inc; First Focus; Florence Immigrant and Refugee Rights Project; Hebrew Immigrant Aid Society—Pennsylvania; Human Rights Initiative of North Texas; Immigrant Defenders Law Center; Immigrant Law Center of Minnesota; National Immigration Law Center; National Justice for Our Neighbors; Pangea Legal Services; Pennsylvania Immigrant Resource Center; Puentes: Advocacy, Counseling & Education; Refugee and Immigrant Center for Education and Legal Services; the Advocates for Human Rights; Unlocal, Inc.; and U.s. Committee for Immigrants and Refugees.

Paul W. Rodney, Holly E. Sterrett, and R. Reeves Anderson, Arnold & Porter LLP, Denver, Colorado; Sally L. Pei, Arnold & Porter LLP, Washington, D.C.; for Amici Curiae Former Federal Immigration Judges.

Elisa S. Solomon, Covington & Burling LLP, New York, New York; Risa E. Kaufman, Human Rights Institute,

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Columbia Law School, New York, New York; for Amicus Curiae Human Rights Watch.

OPINION
McKEOWN, Circuit Judge:
This interlocutory appeal requires us to answer a single question: does a district court have jurisdiction over a claim that indigent minor immigrants without counsel have a right to government-appointed counsel in removal proceedings? Our answer to this jurisdictional query is no. We underscore that we address only the jurisdictional issue, not the merits of the claims. Congress has clearly provided that all claims—whether statutory or constitutional—that “aris[e] from” immigration removal proceedings can only be brought through the petition for review process in the federal courts of appeals. 8 U.S.C. §§ 1252(a)(5) & (b)(9). Despite the gravity of their claims, the minors cannot bypass the immigration courts and proceed directly to district court. Instead, they must exhaust the administrative process before they can access the federal courts.
BACKGROUND
The appellees (collectively the “minors” or “children”) are immigrant minors, aged three to seventeen, who have been placed in administrative removal proceedings. The children are at various stages of the removal process: some are waiting to have their first removal hearing, some have already had a hearing, and some have been ordered removed in absentia. None of the children can afford an attorney, and

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each has tried and failed to obtain pro bono counsel for removal proceedings.

The children, suing on behalf of themselves and a class, claim a due process1 and statutory right to appointed counsel at government expense in immigration proceedings.2 They claim that, as minors, they “lack the intellectual and emotional capacity of adults,” yet are “force[d] . . . to appear unrepresented in complex, adversarial court proceedings against trained [government] attorneys.” According to the complaint, this lack of representation “ensure[s] that [they and] thousands of children [are] deprived of a full and fair opportunity to identify defenses or seek relief for which they qualify” in immigration court.

The children acknowledge that, generally, an immigrant who has been placed in removal proceedings can challenge those proceedings only after exhausting administrative remedies and filing a petition for review (PFR) in a federal court of appeals. But they argue that this case falls outside the general rule because, in light of the complex nature of removal proceedings and the appeals process, minors cannot

1 Immigration proceedings are civil, not criminal, in nature. Thus, the right-to-counsel claims invoke the Fifth Amendment’s due process requirement, not the Sixth Amendment’s right-to-counsel provision, which is reserved for criminal proceedings.
2 This appeal was taken from the district court’s order dismissing the second amended complaint, which was brought on behalf of all minors without counsel. The district court denied the government’s motion to stay the proceedings pending resolution of the interlocutory appeal. After the briefs were filed in this case, the minors filed a third amended complaint, redefined the proposed class to include an indigency limitation, and dismissed some of the named plaintiffs. None of this activity affects our analysis.

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effectively raise right-to-counsel claims through the PFR process. As a result, they conclude, they would be denied meaningful judicial review of their right-to-counsel claims if the district court lacked jurisdiction to hear the case.

The government moved to dismiss the complaint on multiple grounds, including ripeness (because in some cases the removal proceedings had not commenced and in others they had not concluded at the time the complaint was filed) and jurisdiction (because the Immigration and Nationality Act (INA) channels judicial review of claims arising out of removal proceedings through the PFR process. 8 U.S.C. §§ 1252(a)(5) & (b)(9)). The district court granted the government’s motion in part and denied it in part. As to ripeness, the court dismissed for lack of jurisdiction the named parties “against whom removal proceedings have not yet been initiated,” reasoning that “[r]emoval proceedings might never be commenced.” The other children’s claims were ripe because the agency did not have authority to appoint counsel or to declare a statute barring governmentfunded counsel unconstitutional, and “[e]xhaustion is not required to make a claim ripe when the agency lacks authority to grant relief.”

The district court then turned to the government’s jurisdictional challenge. The court recognized that the INA’s judicial review mechanism, 8 U.S.C. §§ 1252(a)(5) and 1252(b)(9), “is broad in scope” and was “designed to consolidate and channel review of all legal and factual questions that arise from the removal of an alien into the administrative process, with judicial review of those decisions vested exclusively in the courts of appeal.” (quoting Aguilar v. ICE, 510 F.3d 1, 9 (1st Cir. 2007) (emphasis in original)).

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Despite the statutory strictures, the district court identified an exception to the INA’s exclusive review process and concluded that it had jurisdiction over the minors’ due process right-to-counsel claims. Citing McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991), and City of Rialto v. West Coast Loading Corporation, 581 F.3d 865 (9th Cir. 2009), the court explained that the due process claims challenged a procedure or policy collateral to the substance of removal proceedings and, in light of the fact that “an immigration judge is unlikely to conduct the requisite [due process] balancing, the administrative record would be insufficient to provide a basis for meaningful judicial review.” Conversely, the district court held that it lacked jurisdiction over the statutory right-to-counsel claims, in part because “the [constitutional] balancing standard does not apply and . . . concerns about the adequacy of the administrative record are not warranted.”

The government filed this interlocutory appeal, challenging the district court’s determination that it had jurisdiction over the constitutional claims. The minors crossappealed, disputing, among other issues, the district court’s dismissal of the statutory claims.

ANALYSIS

I. The Immigration and Nationality Act Provides Exclusive Judicial Review through the Petition for Review Process.

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This appeal turns on our interpretation of two provisions of the INA, so we begin with the statute.3 The section titled “Exclusive means of review,” 8 U.S.C. § 1252(a)(5), prescribes the vehicle for judicial review: “[A] petition for review . . . shall be the sole and exclusive means for judicial review of an order of removal . . . .” Lest there be any question about the scope of judicial review, § 1252(b)(9) mandates that “[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 . . . shall be available only in judicial review of a final order . . . .”

Section 1252(b)(9) is, as the First Circuit noted, “breathtaking” in scope and “vise-like” in grip and therefore swallows up virtually all claims that are tied to removal proceedings. See Aguilar v. ICE, 510 F.3d 1, 9 (1st Cir. 2007). Taken 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 the PFR process. See Viloria v. Lynch, 808 F.3d 764, 767 (9th Cir. 2015) (“It is well established that this court’s jurisdiction over removal proceedings is limited to review of final orders of removal.”); cf. Bibiano v. Lynch, — F.3d —, 2016 WL 4409351, at *5 (9th Cir. 2016) (holding that 8 U.S.C. § 1252(b)(2)’s venue provision is not jurisdictional, but contrasting the venue statute with other statutes in the INA that use the terms “judicial review” or “jurisdiction”).

3 Section 1252(b)(9) encompasses both the statutory and constitutional claims, which the parties acknowledge stand or fall together.

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Although §§ 1252(a)(5) and 1252(b)(9) might seem draconian at first glance, they have two mechanisms that ensure immigrants receive their “day in court.” Singh v. Gonzales, 499 F.3d 969, 979 (9th Cir. 2007). First, while these sections limit how immigrants can challenge their removal proceedings, they are not jurisdiction-stripping statutes that, by their terms, foreclose all judicial review of agency actions. Instead, the provisions channel judicial review over final orders of removal to the courts of appeals. See Elgin v. Dep’t of Treasury, 132 S. Ct. 2126, 2132 (2012) (explaining that heightened scrutiny is not appropriate where Congress channels judicial review of constitutional questions to a particular court but does not deny all judicial review of those questions). The Supreme Court has thus characterized § 1252(b)(9) as a “‘zipper’ clause,”4 Reno v. Am.-Arab AntiDiscrimination Comm. (AAADC), 525 U.S. 471, 483 (1999), explaining that the statute’s purpose “is to consolidate ‘judicial review’ of immigration proceedings into one action in the court of appeals[.]” INS v. St. Cyr, 533 U.S. 289, 313 & n.37 (2001).

Second, and equally importantly, § 1252(b)(9) has built-in limits. By channeling only those questions “arising from any action taken or proceeding brought to remove an alien,” the statute excludes from the PFR process any claim that does not arise from removal proceedings. Accordingly, claims that are independent of or collateral to the removal process do not fall

4 “The term ‘zipper clause’ comes from labor law, where it refers to a provision in a collective bargaining agreement that prohibits further collective bargaining during the term of the agreement or, more generally, that limits the agreement of the parties to the four corners of the contract.” Gerald L. Neuman, Jurisdiction and the Rule of Law After the 1996 Immigration Act, 113 Harv. L. Rev. 1963, 1984–85 (2000).

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within the scope of § 1252(b)(9). See Torres-Tristan v. Holder, 656 F.3d 653, 658 (7th Cir. 2011) (“Ancillary determinations made outside the context of a removal proceeding, however, are not subject to direct review.”); Aguilar, 510 F.3d at 11 (reading “arising from” “to exclude claims that are independent of, or wholly collateral to, the removal process”); see also City of Rialto, 581 F.3d at 874 (recognizing that McNary allowed the petitioners to challenge a policy that was collateral to their substantive eligibility for relief).

Thus, we have distinguished between claims that “arise from” removal proceedings under § 1252(b)(9)—which must be channeled through the PFR process—and claims that are collateral to, or independent of, the removal process. See Aguilar, 510 F.3d at 11; Nadarajah v. Gonzales, 443 F.3d 1069, 1075–76 (9th Cir. 2006); Singh, 499 F.3d at 979. For example, in Nadarajah v. Gonzales, we held that an immigrant could challenge his five-year administrative detention by filing a petition for a writ of habeas corpus in district court, notwithstanding § 1252(b)(9). 443 F.3d at 1075–76. Nadarajah had “prevailed at every administrative level of review,” had been granted asylum, and had “never been charged with any crime,” yet was being held in detention “without any established timeline for a decision on when he may be released from detention.” Id. at 1071, 1075. We explained that § 1252(b)(9) “does not apply to federal habeas corpus provisions that do not involve final orders of removal.” Id. at 1075. Because “Nadarajah ha[d] prevailed at every administrative level” and been granted asylum, his petition did not involve a final order of removal, and § 1252(b)(9) did not channel jurisdiction to the courts of appeals. Id. at 1076.

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Similarly, in the unique situation in Singh v. Gonzales, we recognized that the district court had jurisdiction over the petitioner’s ineffective-assistance-of-counsel claim that arose after his attorney failed to file a timely PFR. 499 F.3d at 980. We noted that Singh’s claim could not have been raised before the agency because it arose after a final order of removal was entered and, absent habeas review, Singh would have had no legal avenue to obtain judicial review of this claim. We therefore concluded that his petition did not challenge a final order of removal under § 1252(b)(9). Id. at 979. We did not, however, allow Singh to raise a different ineffective assistance of counsel claim that arose before a final order of removal entered and that could and should have been brought before the agency. Id. at 974; cf. Skurtu v. Mukasey, 552 F.3d 651, 658 (8th Cir. 2008) (distinguishing Singh and holding that a right-to-counsel claim must be brought through the PFR process because the claim is a “direct result of the removal proceedings”).

In contrast, in Martinez v. Napolitano, we held in the context of a district court challenge under the Administrative Procedure Act that “[w]hen a claim by an alien, however it is framed, challenges the procedure and substance of an agency determination that is ‘inextricably linked’ to the order of removal, it is prohibited by section 1252(a)(5).” 704 F.3d 620, 623 (9th Cir. 2012).

In light of §§ 1252(b)(9) and 1252(a)(5) and our precedent, the children’s right-to-counsel claims must be raised through the PFR process because they “arise from” removal proceedings. The counsel claims are not independent or ancillary to the removal proceedings. Rather, these claims are bound up in and an inextricable part of the administrative process. The First Circuit was the first court

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to consider whether a right-to-counsel claim falls outside the scope of § 1252(b)(9). The court unequivocally said no. Thus, we agree with the court’s analysis in Aguilar that, “[b]y any realistic measure, the alien’s right to counsel is part and parcel of the removal proceeding itself. . . . [A]n alien’s right to counsel possesses a direct link to, and is inextricably intertwined with, the administrative process that Congress so painstakingly fashioned.” Aguilar, 510 F.3d at 13.

Right-to-counsel claims are routinely raised in petitions for review filed with a federal court of appeals. See, e.g., Ram v. Mukasey, 529 F.3d 1238, 1242 (9th Cir. 2008) (holding that the petitioner did not knowingly and voluntarily waive the right to counsel); Zepeda-Melendez v. INS, 741 F.2d 285, 289 (9th Cir. 1984) (holding that the INS’s deportation of an immigrant without notice to counsel violated the immigrant’s statutory right to counsel). In part, this is because immigration judges have an obligation to ask whether a petitioner wants counsel: “Although [immigration judges] may not be required to undertake Herculean efforts to afford the right to counsel, at a minimum they must inquire whether the petitioner wishes counsel, determine a reasonable period for obtaining counsel, and assess whether any waiver of counsel is knowing and voluntary.” Biwot v. Gonzales, 403 F.3d 1094, 1100 (9th Cir. 2005). An immigration judge’s failure to inquire into whether the petitioner wants (or can knowingly waive) counsel is grounds for reversal. See id. As we discuss below, special protections are provided to minors who are unrepresented. See infra at pp. 21–22.

The legislative history of the INA, as well as amendments to § 1252(b)(9), confirm that Congress intended to channel all claims arising from removal proceedings, including right-tocounsel claims, to the federal courts of appeals and bypass the

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district courts. Consolidation of the review process for immigration orders of removal began in 1961, when Congress amended the INA to channel immigrants’ challenges to their removal proceedings to the courts of appeals via the PFR.5 H.R. Rep. No. 87-1086, at 22 (1961), as reprinted in 1961 U.S.C.C.A.N. 2950, 2966; see also Magana-Pizano v. INS, 152 F.3d 1213, 1220 (9th Cir. 1998) (recognizing 1961 changes to INA), vacated on other grounds, 526 U.S. 1001 (1999) (mem.). The change was intended to “create a single, separate, statutory form of judicial review of administrative orders for the [removal] of aliens from the United States” and to shorten the time frame for judicial review of deportation orders by “eliminat[ing] . . . a suit in a District Court.” H.R. Rep. No. 109-72, at 172 (2005) (Conf. Rep.), reprinted in 2005 U.S.C.C.A.N. 240, 297–301 (citations omitted).

Congress continued to streamline judicial review of immigration proceedings in 1996, when it enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3546 (1996). IIRIRA “repealed the old judicial-review scheme . . . and instituted a new (and significantly more restrictive) one in

5 The text of the 1961 statute differs from the text of §§ 1252(a)(5) and 1252(b)(9). It reads: “[The petition for review process] shall apply to, and shall be the exclusive procedure for, the judicial review of all final orders of deportation . . . made against aliens within the United States pursuant to administrative proceedings . . . .” 8 U.S.C. § 1105a(a) (1964). As we explained in Magana-Pizano, the statute was subject to various “interim measures” from 1961 to 1996. 152 F.3d at 1220. In 1996, Congress repealed § 1105a(a) and enacted § 1252(b)(9). AAADC, 525 U.S. at 475. It enacted § 1252(a)(5) in 2005 as part of the REAL ID Act. Singh, 499 F.3d at 977. In each of these amendments, Congress has consistently sought to channel judicial review of immigration proceedings through the PFR process.

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8 U.S.C. § 1252.” AAADC, 525 U.S. at 475. The new judicial review provisions were designed to make perfectly clear “that only courts of appeals—and not district courts—could review a final removal order,” that “review of a final removal order is the only mechanism for reviewing any issue raised in a removal proceeding,” and that the statute was “intended to preclude all district court review of any issue raised in a removal proceeding.”6 H.R. Rep. No. 10972, at 173.

When it enacted § 1252(b)(9) in 1996, Congress was legislating against the backdrop of recent Supreme Court law. In 1991, in McNary v. Haitian Refugee Center, the Court offered a blueprint for how Congress could draft a jurisdiction-channeling statute that would cover not only individual challenges to agency decisions, but also broader challenges to agency policies and practices. A group of immigrants, who applied unsuccessfully for amnesty under the special agricultural workers (SAW) program (or thought they would be unsuccessful in the future), filed an action in district court, alleging injuries caused by “unlawful practices

6 In the REAL ID ACT of 2005, Congress amended § 1252(b)(9) to clarify that federal courts lack habeas jurisdiction over orders of removal. The statute now contains an additional sentence on habeas jurisdiction, but the operative jurisdiction-channeling language has not changed from 1996. The 2005 amendment provides that: “Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under section 2241 of Title 28 or any other habeas corpus provision, by section 1361 or 1651 of such title, or by any other 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). Congress amended the statute in response to St. Cyr, in which the Supreme Court held that the pre-2005 version of § 1252(b)(9) did not clearly strip the courts of habeas jurisdiction over immigrants who had committed crimes. See H.R. Rep. No. 109-72, at 173.

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and policies adopted by the INS in its administration of the SAW program.” 498 U.S. at 487. The Court held that, under the governing statute, the district court had jurisdiction to hear a challenge to INS practices and policies because the statute channeled only individual—not wider policy—claims through the PFR process.7

Of significance to our analysis, the Court explained that Congress could have crafted language to channel challenges to agency policies through the PFR process if it had chosen to do so:

[H]ad Congress intended the limited review provisions of § 210(e) . . . to encompass challenges to INS procedures and practices, it could easily have used broader statutory language. Congress could, for example, have . . . channel[ed] into the Reform Act’s special review procedures “all causes . . . arising under any of the provisions” of the legalization program. It moreover could have . . . referr[ed] to review “on all questions of law and fact” under the SAW legalization program.

Id. at 494 (citations omitted).

In McNary, the Court did everything but write the future statute and so it makes sense to presume that Congress was aware of this precedent when it amended the INA in 1996.

7 The operative language in the statute at issue in McNary provided that “judicial review of a determination respecting an application for adjustment of status” must be brought through a PFR. Id. at 486, 491.

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See United States v. Wells, 519 U.S. 482, 495 (1997) (“[W]e presume that Congress expects its statutes to be read in conformity with [the Supreme Court’s] precedents. . . .”). With this presumption in mind, we note that § 1252(b)(9) neatly tracks the policy and practice jurisdiction-channeling language suggested in McNary: the amended section channels review of “all questions of law and fact” to the courts of appeals for all claims “arising from any action taken or proceeding brought to remove an alien from the United States.” 8 U.S.C. § 1252(b)(9). Thus, the legislative history and chronology of amendments to § 1252(b)(9) confirm the plain meaning of the statute. We conclude that §§ 1252(a)(5) and 1252(b)(9) channel review of all claims, including policies-and-practices challenges, through the PFR process whenever they “arise from” removal proceedings. Because the children’s right-to-counsel claims arise from their removal proceedings, they can only raise those claims through the PFR process. Aguilar, 510 F.3d at 13.

II. The Minors Have Not Been Denied All Forms of Meaningful Judicial Review.

The minors do not seriously dispute that the plain text of § 1252(b)(9) prohibits them from filing a complaint in federal district court. Instead, they attempt to get around the statute by claiming that they have been (or will be) denied meaningful judicial review in light of their juvenile status. In other words, they argue that § 1252(b)(9), as applied in this context, creates a Catch-22 that effectively bars all judicial review of their claims.

The argument goes as follows: Minors who obtain counsel in their immigration proceedings will be unable to raise right-to-counsel claims because they have no such

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claim. As a practical matter, children who lack counsel will be unable to reach federal court to raise a right-to-counsel claim because they are subject to the same exhaustion requirements and filing deadlines that apply to adults. Even if an unrepresented child were able to navigate the PFR process, the child would still be deprived of meaningful judicial review, because the record on appeal would be insufficient to sustain review. Because, according to the minors, their right-to-counsel claims will never see the light of day through the PFR process, the panel should construe § 1252(b)(9) as not covering these claims.

The assertion that the minors will be denied meaningful judicial review stems from dicta in McNary. In McNary, the Court noted that the SAW regime imposed several practical impediments to judicial review. Most importantly, SAW procedures “d[id] not allow applicants to assemble adequate records” for review.8 498 U.S. at 496. Agency interviews were neither recorded nor transcribed, and SAW applicants had “inadequate opportunity” to present evidence and witnesses on their own behalf. Id. Because the administrative record was minimal, the courts of appeals “[had] no complete or meaningful basis upon which to review application determinations.” Id. As a result, if the workers were “not allowed to pursue their claims in the District Court, [they] would not as a practical matter be able to obtain meaningful judicial review of their application denials or of

8 The Court cited two other aspects of the SAW program that were problematic but are not pertinent here: first, under the statute, judicial review was available only if immigrants voluntarily surrendered themselves for deportation after being denied relief, and second, the plaintiffs “adduced a substantial amount of evidence, most of which would have been irrelevant in the processing of a particular individual application.” 498 U.S. at 496–97.

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their objections to INS procedures.” Id. Citing the “wellsettled presumption favoring interpretations of statutes that allow judicial review of administrative action,” the Court concluded that it is “most unlikely that Congress intended to foreclose all forms of meaningful judicial review.” Id.

The difficulty with the minors’ argument is that McNary was, at its core, a statutory interpretation case involving a completely different statute.9 See Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 14 (2000) (declining to apply McNary because it “turned on the different language of that different statute,” and noting that “the Court suggested that statutory language similar to the language at issue here—any claim ‘arising under’ . . . —would have led it to a different legal conclusion”). The point in McNary was that Congress used language (“a determination respecting an application” for SAW status) that did not encompass the constitutional pattern and practice claims urged by the workers. As a consequence, their claims fell outside of the narrow channeling provisions of the statute.

9 Because this case turns on the interpretation of the statute, the district court’s reliance on cases involving different statutes is misplaced. See Proyecto San Pablo v. INS, 189 F.3d 1130 (9th Cir. 1999) (holding that the district court had jurisdiction to hear challenges to agency policies under a statute that read “[t]here shall be judicial review of a [denial of an application for adjustment of status by the agency] only in the judicial review of an order of deportation,” 8 U.S.C. § 1255a(f)(4)(A)); and Ortiz v. Meissner, 179 F.3d 718 (9th Cir. 1999) (holding that the district court had jurisdiction to hear policies and practices challenge under 8 U.S.C. §§ 1255a(f) and 1160(e), which provided that “[t]here shall be judicial review of such a denial only in the judicial review of an order of exclusion or deportation[.]”). Neither case involved the zipper clause of § 1252(b)(9) or the “arising from” language. Both Proyecto and Ortiz analyzed McNary only in the context of the Immigration Reform and Control Act.

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In providing two alternative formulations of channeling language, the Court more than foreshadowed what language would be “expansive” enough to remove district court jurisdiction. Thus, the Court’s note to Congress laid out the language necessary to limit “challenges to INS procedures and practices.” McNary, 498 U.S. at 494. McNary does not provide an avenue for litigants to circumvent an unambiguous statute.

We would be naive if we did not acknowledge that having an unrepresented minor in immigration proceedings poses an extremely difficult situation. But we are not convinced that agency removal proceedings raise the same concerns that were present in the SAW proceedings. Unlike the SAW program, removal hearings are recorded and transcribed and provide a basis for meaningful judicial review. Immigration judges are both trained and required to probe the record and to ask questions to elicit information about possible avenues of relief. See 8 U.S.C. § 1229a(b)(1) (detailing immigration judges’ obligation to “administer oaths, receive evidence, and interrogate, examine, and cross-examine the alien and any witnesses”). Immigration judges must “adequately explain the hearing procedures to the alien,” Agyeman v. INS, 296 F.3d 871, 877 (9th Cir. 2002), and where immigrants proceed pro se, the judges have a duty to “fully develop the record.” Id. (quoting Jacinto v. INS, 208 F.3d 725, 733–34 (9th Cir. 2000)). They are also required to inform immigrants of any ability to apply for relief from removal and the right to appeal removal orders. See United States v. UbaldoFigueroa, 364 F.3d 1042, 1050 (9th Cir. 2004).

Unrepresented minors receive additional special protections in removal proceedings. Unless the child is accompanied by “an attorney or legal representative, a near

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relative, legal guardian, or friend,” the immigration judge cannot accept the child’s admission of removability. 8 C.F.R. § 1240.10(c). Immigration judges also must ensure that any waiver of the right to counsel is knowing and voluntary; on review, we can “indulge every reasonable presumption against waiver,” United States v. Cisneros-Rodriguez, 813 F.3d 748, 756 (9th Cir. 2015) (citation omitted), and when the petitioner is a minor, we factor “the minor’s age, intelligence, education, information, information, and understanding and ability to comprehend” into our analysis. Jie Lin v. Ashcroft, 377 F.3d 1014, 1033 (9th Cir. 2004). Further, recognizing “a growing need for support systems the courts can use to effectively and efficiently manage the cases of unaccompanied minors,” in 2014, the Office of the Chief Immigration Judge provided guidelines for “The Friend of the Court Model for Unaccompanied Minors in Immigration Proceedings.” Although the friend of the court does not act as a representative, the friend’s assistance role can be critical in monitoring the proceedings. These protections distinguish removal proceedings from the SAW program, and the concerns highlighted by McNary are not in play.

At argument, counsel for the children claimed that it was essentially impossible to get the right-to-counsel claim before a federal court. This assertion is belied by the fact that the minors’ counsel has previously raised a right-to-counsel claim through the PFR process. See Guzman-Heredia v. Gonzales, No. 04-72769 (9th Cir.). In Guzman-Heredia, the petitioner was a fourteen-year-old boy who was placed in removal proceedings. He explained to the immigration judge “that he had been unable to find an attorney to represent him and requested that the Immigration Judge appoint an attorney for him.” The judge denied the request, stating that he could not “give people a free lawyer.” The immigration judge then

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ordered the petitioner removed, and the Board of Immigration Appeals affirmed. At this stage, the petitioner obtained pro bono counsel, who argued in a PFR that:

Petitioner’s Fifth Amendment right to due process was violated when the Immigration Judge refused to appoint an attorney to represent him in removal proceedings. Because Petitioner is an unaccompanied child of 14 years of age, he is of limited cognitive abilities and lacks understanding of legal process. Due to the seriousness of the proceedings against him and the importance of the interest at stake, namely immigration proceedings in which the government seeks to remove Petitioner from his family, home and school in the United States, the Constitution compels that Petitioner have been afforded the protection of appointed counsel at public expense.

Id. Although the case ultimately settled, Guzman-Heredia lays rest to the contention that right-to-counsel claims will never surface through the PFR process.

The reality is that current counsel for the minors are in a
unique position to bring multiple test cases on the counsel issue.10 The claim in this suit is that indigent minors are

10 Following discussion at oral argument, to facilitate a test case, through December 2016 the government is providing the children’s counsel with notice of any minor without counsel that the government is aware of ordered removed by an immigration judge following a merits hearing. To take the government at its word that it is willing to cooperate

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entitled to government-provided counsel as a matter of constitutional and statutory right. For accompanied minors, a parent could make the claim or, for unaccompanied minors, a next friend could help them do so.11 Even better, the IJ and the government could acknowledge that absent a knowing and voluntary waiver, a minor proceeding without counsel has de facto requested a right to court-appointed counsel.

Under any of these scenarios, a right-to-counsel claim is teed up for appellate review. It is true that at present neither the immigration judge nor the Board of Immigration Appeals has authority to order court-appointed counsel. But the question at hand is a legal one involving constitutional rights. Even if not raised in the proceedings below, the court of appeals has authority to consider the issue because it falls within the narrow exception for “constitutional challenges that are not within the competence of administrative agencies to decide” and for arguments that are “so entirely foreclosed . . . that no remedies [are] available as of right” from the agency.12 Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (first quotation); Alvarado v. Holder, 759 F.3d 1121,

with counsel, the government should continue such notice.
11 The Friend of the Court Model for Unaccompanied Minors can provide an avenue for counsel to play a role in individual proceedings. For example, one of the children’s counsel appeared as a friend in an individual immigration proceeding in July 2016 and stated that although he did not represent the child, “for whatever value it has in the record that [the minor] does I know want appointed counsel.” See Attachment to Government’s Letter to the Court, dated August 18, 2016.
12 Under the statute, immigrants in removal proceedings have “the privilege of being represented, at no expense to the Government, by counsel of the alien’s choosing.” 8 U.S.C. § 1229a(b)(4)(A). Agency regulations recognize the same privilege. 8 C.F.R. § 238.1(b)(2).

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1128 (9th Cir. 2014) (second quotation; quotation marks and citation omitted, first alteration in original); see also, e.g., Sola v. Holder, 720 F.3d 1134, 1135 (9th Cir. 2013) (per curiam) (recognizing exception to exhaustion requirement for constitutional challenges to agency procedures and the statute the agency administers).

We recognize that a class remedy arguably might be more efficient than requiring each applicant to file a PFR, but that is not a ground for ignoring the jurisdictional statute. Indeed, should a court determine that the statute barring payment for counsel does not mean what it says—a position taken by the minors—that statute would be “infirm across the circuit and in every case.” Naranjo-Aguilera v. INS, 30 F.3d 1106, 1114 (9th Cir. 1994). We also recognize that there are limited— and already more than stretched—pro bono resources available to help unaccompanied minors navigate the removal process. But these considerations cannot overcome a clear statutory prescription against district court review. Relief is through review in the court of appeals or executive or congressional action.

In sum, the minors’ claim that they are entitled to courtappointed counsel “arises from” their removal proceedings and §§ 1252(a)(5) and 1252(b)(9) provide petitions for review of a removal order as the exclusive avenue for judicial review. The district court lacks jurisdiction over the minors’ claims.13

13 Because the district court lacks jurisdiction, we do not reach the other issues the minors raise on cross-appeal.

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AFFIRMED as to the statutory claim; REVERSED as to the constitutional claim. The parties shall each bear their own costs on appeal.

McKEOWN, Circuit Judge, with whom M. SMITH, Circuit Judge, joins, specially concurring:
Jurisdictional rulings have an anodyne character that may suggest insensitivity to the plight of the parties, particularly in a case involving immigrant children whose treatment, according to former Attorney General Eric Holder, raises serious policy and moral questions.1 But we must heed the Supreme Court’s admonition that “[f]ederal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). We did not reach the merits here because we hewed to the statute channeling federal court jurisdiction. That said, I cannot let the occasion pass without highlighting the plight of unrepresented children who find themselves in immigration proceedings. While I do not take a position on the merits of the children’s constitutional and statutory claims, I write to underscore that the Executive and Congress have the power to address this crisis without judicial intervention. What is missing here? Money and resolve—political solutions that fall outside the purview of the courts.
1 Attorney General Eric Holder, Remarks at the Hispanic National Bar Association 39th Annual Convention (Sept. 12, 2014), available at https://www.justice.gov/opa/speech/remarks-attorney-general-eric-holderhispanic-national-bar-association-39th-annual.

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In fiscal year 2014, more than 60,000 unaccompanied minors made their way to the United States,2 prompting the Department of Homeland Security to declare a crisis at our southern border.3 Although the numbers dropped in fiscal year 2015, the surge has now reappeared. According to the Pew Research Center, “[t]he number of apprehensions of unaccompanied children shot up by 78%” during the first six months of fiscal year 2016.4 Indeed, earlier “some Members of Congress as well as the Administration characterized the issue as a humanitarian crisis.”5 The border crisis created what has been called a “perfect storm” in immigration courts, as children wend their way from border crossings to immigration proceedings.6 The storm has battered immigration “courtrooms crowded with young defendants but

2 William Kandel, Unaccompanied Alien Children: An Overview, Congressional Research Service, 1 (May 11, 2016), available at https://fas.org/sgp/crs/homesec/R43599.pdf.
3 Julia Preston, U.S. Setting Up Emergency Shelter in Texas as Youths Cross Border Alone, N.Y. Times, May 16, 2014, available at http://www.nytimes.com/2014/05/17/us/us-sets-up-crisis-shelter-aschildren-flow-across-border-alone.html?_r=0.
4 Jens Krogstad, U.S. Border Apprehensions of Families and Unaccompanied Children Jump Dramatically, Pew Research Center, May 4, 2016, available at http://www.pewresearch.org/fact-tank/2016/05/04/us-border-apprehensions-of-families-and-unaccompanied-children-jumpdramatically/.
5 See Kandel, supra note 2, at 1.
6 ABA Commission on Immigration, A Humanitarian Call to Action: Unaccompanied Children in Removal Proceedings Present a Critical Need for Legal Representation, 1 (June 3, 2015), available at http://www.americanbar.org/content/dam/aba/administrative/immigrati on/UACSstatement.authcheckdam.pdf (internal quotation marks omitted).

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lacking lawyers and judges to handle the sheer volume of cases.”7

The net result is that thousands of children8 are left to thread their way alone through the labyrinthine maze of immigration laws, which, without hyperbole, “have been termed second only to the Internal Revenue Code in complexity.” Castro-O’Ryan v. INS, 847 F.2d 1307, 1312 (9th Cir. 1987) (internal quotation marks omitted); see also Baltazar-Alcazar v. INS, 386 F.3d 940, 948 (9th Cir. 2004) (emphasizing the complexity of immigration laws and noting that lawyers may be the only ones capable of navigating through it). This reality prompted the Chief Immigration Judge to acknowledge that “[t]he demands placed on the [immigration] courts are increasing due to the unprecedented numbers of unaccompanied minors being placed in immigration proceedings. As a result there is a growing need for support systems the [immigration] courts can use to effectively and efficiently manage the cases of unaccompanied minors.”9

7 Liz Robbins, Immigration Crisis Shifts from Border to Courts, N.Y. Times, Aug. 23, 2015, available at http://www.nytimes.com/ 2015/08/24/nyregion/border-crisis-shifts-as-undocumented-childrenscases-overwhelm-courts.html.
8 According to the Transactional Records Access Clearinghouse at Syracuse University, between 2011 and 2014, the number of juvenile cases in immigration courts leaped from 6,425 in 2011 to 59,394 in 2014. As of September 2015, children in more than 32,700 pending immigration cases were unrepresented.
9 Memorandum from the Executive Office for Immigration Review, The Friend of the Court Model for Unaccompanied Minors in Immigration Proceedings (Sept. 10, 2014).

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Given the onslaught of cases involving unaccompanied minors, there is only so much even the most dedicated and judicious immigration judges (and, on appeal, members of the Board of Immigration Appeals) can do. See Amicus Curiae Brief of Former Federal Immigration Judges at 7. Immigration judges are constrained by “extremely limited time and resources.” Id. at 4. Indeed, those judges may sometimes hear as many as 50 to 70 petitions in a three-tofour hour period, id., leaving scant time to delve deeply into the particular circumstances of a child’s case.

In light of all this, it is no surprise that then-Attorney General Holder took the position in 2014 that “[t]hough these children may not have a Constitutional right to a lawyer, we have policy reasons and a moral obligation to ensure the presence of counsel.”10 But Congress has clearly—and repeatedly—indicated that these policy and moral concerns may not be addressed in the district court. Rather, these issues come initially within the Executive’s purview as part of the administrative removal process, with review available in the Courts of Appeals through the petition for review process.11 See Maj. Op. at 14–17.

To its credit, the Executive has taken some steps within this process to address the difficulties confronting unaccompanied and unrepresented minors. Through the

10 See supra note 1.
11 As discussed in the majority opinion, under the current statutory scheme, Congress has recognized the “privilege of being represented, at no expense to the Government, by counsel.” 8 U.S.C. § 1229a(b)(4)(A). Implementing regulations enacted by the Executive recognize the same limited privilege. See 8 C.F.R. § 238.1(b)(2).

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Justice AmeriCorps program, the government awarded $1.8 million to support living allowances for 100 legal fellows who will represent children in removal proceedings.12 The government has also partnered with the United States Conference of Catholic Bishops and the United States Committee for Refugees and Immigrants to provide legal representation to unaccompanied children.13 The Executive Office for Immigration Review offers legal orientations for custodians of unaccompanied children in removal proceedings and it launched a pilot program to provide legal services to unaccompanied minors.14

Yet these programs, while laudable, are a drop in the bucket in relation to the magnitude of the problem—tens of thousands of children will remain unrepresented. A meritorious application for asylum, refuge, withholding of removal or other relief may fall through the cracks, despite the best efforts of immigration agencies and the best interests of the child. Additional policy and funding initiatives aimed at securing representation for minors are important to ensure

12 See Press Release, Department of Justice, Justice Department and CNCS Announce $1.8 Million in Grants to Enhance Immigration Court Proceedings and Provide Assistance to Unaccompanied Children (Sept. 12, 2014), available at https://www.justice.gov/opa/pr/justice-departmentand-cncs-announce-18-million-grants-enhance-immigration-courtproceedings.
13 See Announcement of Award of Two Single-Source Program Expansion Supplement Grants To Support Legal Services to Refugees Under the Unaccompanied Alien Children’s Program, 79 Fed. Reg. 62,159–01 (Oct. 16, 2014).
14 See Press Release, Department of Justice, EOIR Expands Legal Orientation Program Sites (Oct. 22, 2014), available at https://www.justice.gov/eoir/pr/eoir-expands-legal-orientation-programs.

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the smooth functioning of our immigration system and the fair and proper application of our immigration laws.

Eventually, an appeal asserting a right to governmentfunded counsel will find its way from the immigration courts to a Court of Appeals through the petition for review process. It would be both inappropriate and premature to comment on the legal merits of such a claim. But, no matter the ultimate outcome of such an appeal, Congress and the Executive should not simply wait for a judicial determination before taking up the “policy reasons and . . . moral obligation” to respond to the dilemma of the thousands of children left to serve as their own advocates in the immigration courts in the meantime. The stakes are too high. To give meaning to “Equal Justice Under Law,” the tag line engraved on the U.S. Supreme Court building, to ensure the fair and effective administration of our immigration system, and to protect the interests of children who must struggle through that system, the problem demands action now.

KLEINFELD, Senior Circuit Judge, specially concurring:
I agree with my colleagues that a child (or for that matter, an adult) is unlikely to be able to protect all his rights in a deportation proceeding unless he has a lawyer. Many advocacy groups are deeply involved in immigration issues, including the ones who provided counsel in this one, and because the solution to the representation problem is a highly controversial political matter, I think our own advocacy of some particular reform measure is unnecessary and the matter is better left to the political process.

 
 Case 2:14-cv-01026-TSZ Document 280 Filed 05/12/16 Page 1 of 2

1

2

3

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

4

AT SEATTLE

5 F.L.B., et al.,

6

Plaintiffs,

7

v.

8 LORETTA E. LYNCH, et al.,

C14-1026 TSZ MINUTE ORDER

9

Defendants.

10

The following Minute Order is made by direction of the Court, the Honorable

11 Thomas S. Zilly, United States District Judge:

(1) Defendants’ motion for reconsideration, docket no. 268, is DENIED. In 12 stating that plaintiffs A.E.G.E., E.G.C., A.F.M.J., L.J.M., and M.R.J. were “paroled” into,
but have not “entered,” the United States, defendants ignore the text of statutes currently 13 in effect and rely on legislative language long extinguished from the United States Code.
Until 1996, § 101(a)(13) of the Immigration and Nationality Act (“INA”) defined “entry” 14 as “any coming of an alien into the United States, from a foreign port or place or from an
outlying possession, whether voluntarily or otherwise.” 8 U.S.C. § 1101(a)(13) (1996). 15 Defendants rely on this language to argue that plaintiffs A.E.G.E., E.G.C., A.F.M.J.,
L.J.M., and M.R.J. are “treated for constitutional purposes as if they were at the border 16 requesting entry.” Defs.’ Mot. at 1 (docket no. 268) (emphasis added). Defendants
continue to confuse “entry” and “admission.” See Order at 12 (docket no. 264). Twenty 17 years ago, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”), Pub. L. No. 104-208, Div. C, substantially amended the INA, replacing the 18 word “entry” in § 101(a)(13) with the statutory terms “admission” and “admitted,”
which mean “the lawful entry” of an alien into the United States “after inspection and 19 authorization by an immigration officer.” 8 U.S.C. § 1101(a)(13)(A). Thus, “entry” and
“admission” are not synonymous; rather, “admission” requires “lawful entry” and, under 20 the present statutory scheme, an alien seeks “admission,” not “entry.” IIRIRA also made
clear that “parole,” which the Attorney General may grant to certain aliens for “urgent 21 humanitarian reasons or significant public benefit,” 8 U.S.C. § 1182(d)(5)(A), is not the
equivalent of “admission” or being “admitted.” See 8 U.S.C. § 1101(a)(13)(B). To the 22 extent plaintiffs A.E.G.E., E.G.C., A.F.M.J., L.J.M., and M.R.J. were “paroled” into the

23

MINUTE ORDER - 1

Case 2:14-cv-01026-TSZ Document 280 Filed 05/12/16 Page 2 of 2

1 United States, meaning they have entered but have not been “admitted,” their rights in
removal proceedings might differ from the rights of aliens who have been “admitted.” 2 In the Order entered April 15, 2016, docket no. 264, the Court made no ruling on this
question; the Court merely rejected defendants’ apparent contention that Congress could, 3 if it wished, deprive aliens “paroled” into the United States of all due process rights in
connection with removal proceedings. To conclude as defendants suggest, namely that 4 “paroled” aliens have no constitutional (as opposed to statutory) due process rights, when
the Supreme Court has unequivocally recognized such rights (consisting, at a minimum, 5 of notice and an opportunity to be heard) for aliens who have “passed through our gates,
even illegally,” Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953) 6 (emphasis added); see also Yamataya v. Fisher, 189 U.S. 86 (1903), would simply invite
individuals to cross the border under cover of darkness. Defendants have not shown any 7 “manifest error” in the Court’s prior ruling or “new facts or legal authority” that could
not have been brought to the Court’s attention earlier “with reasonable diligence.” See 8 Local Civil Rule 7(h)(1).

9

(2) The Clerk is directed to send a copy of this Minute Order to all counsel of

record.

10 Dated this 12th day of May, 2016.

11 William M. McCool

12

Clerk

13

s/Karen Dews

Deputy Clerk

14

15

16

17

18

19

20

21

22

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MINUTE ORDER - 2

 
 !

2015 WL 12030113 Only the Westlaw citation is currently available.
United States District Court, W.D. Washington, at Seattle.
J.E.F.M., et al., Plaintiffs, v.
Loretta E. Lynch, et al., Defendants.
C14-1026 TSZ |
Signed 05/05/2015
Attorneys and Law Firms
Ahilan T. Arulanantham, Carmen G. Iguina, ACLU of Southern California, Kristen Jackson, Talia Inlender, Public Counsel, Los Angeles, CA, Cecillia Wang, Stephen B. Kang, ACLU Immigrants’ Rights Project, San Francisco, CA, Glenda Melinda Aldana Madrid, Matt Adams, Northwest Immigrant Rights Project, Theodore J. Angelis, Todd L. Nunn, Heidi Craig Garcia, K&L Gates LLP, La Rond Baker, Margaret Chen, American Civil Liberties Union of WA, Seattle, WA, Kristin MacLeod-Ball, Melissa Crow, Emily Creighton, American Immigration Council, Washington, DC, for Plaintiffs.
Christina B. Parascandola, Colin A. Kisor, Elianis N. Perez, Nicole N. Murley, Sarah S. Wilson, Vinita Andrapalliyal, Walter Manning Evans, William Charles Silvis, Yamileth G. Davila, Erez Reuveni, Leon Fresco, Joseph A. Darrow, Margaret Kuehne Taylor, US Department of Justice, Washington, DC, for Defendants.
MINUTE ORDER
Thomas S. Zilly, United States District Judge
*1 The following Minute Order is made by direction of the Court, the Honorable Thomas S. Zilly, United States District Judge:
(1) Pursuant to Federal Rule of Civil Procedure 25(d), Loretta E. Lynch, in her official capacity as Attorney General of the United States, is hereby SUBSTITUTED for Eric H. Holder as a defendant in this action.
!

(2) Plaintiffs’ motion for reconsideration, docket no. 129, is DENIED for the following reasons.
(a) In support of their contention that removal proceedings are pending as to A.E.G.E., plaintiffs have submitted a document indicating that the three-year old was directed to appear for a hearing on September 17, 2014. Ex. B to Inlender Decl. (docket nos. 130-1 & 131). Plaintiffs have offered no explanation for why this evidence could not have been brought to the Court’s attention earlier with reasonable diligence, see Local Civil Rule 7(h)(1), and this information appears to contradict the later allegations of the Second Amended Complaint, which states that A.E.G.E. “is awaiting an immigration court date.” 2d Am. Compl. ¶ 101 (docket no. 95). A.E.G.E.’s claims were dismissed without prejudice, and if A.E.G.E.’s circumstances change, plaintiffs may file a motion for leave to amend.
(b) G.J.C.P.’s claims were likewise dismissed without prejudice, and in the event that G.J.C.P.’s removal proceedings are reopened, plaintiffs may file a motion for leave to amend. Because G.J.C.P. has missed the 180-day window for presenting to an immigration judge a motion to reopen on the basis of “exceptional circumstances,” see 8 U.S.C. § 1229a(b)(5)(C)(i), any motion to reopen must be premised on either a lack of notice or confinement in federal or state custody, see id. at § 1229a(b)(5)(C)(ii). Thus, contrary to the argument plaintiffs make in their motion for reconsideration, any denial of counsel at government expense could not be used as a ground for reopening G.J.C.P.’s removal proceedings.
(c) Plaintiffs’ assertion that the striking of their request for classwide injunctive relief conflicts with Rodriguez v. Hayes, 591 F.3d 1105 (9th Cir. 2009), lacks merit. Rodriguez interprets the following statutory language:
Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter [i.e., 8 U.S.C. §§ 1221-1232], as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.
8 U.S.C. § 1252(f)(1)(emphasis added). Rodriguez drew a distinction, for purposes of § 1252(f)(1), between “the operation of the

!

immigration detention statutes” and conduct “not authorized by the statutes.” 591 F.3d at 1120. Plaintiffs’ statutory claim has been dismissed, and no motion has been made to reconsider such dismissal. In connection with their constitutional claim, plaintiffs do not allege that defendants are improperly interpreting, misapplying, or violating a statute. Cf. R.I.L–R v. Johnson, ___ F. Supp. 3d ____, 2015 WL 737117 at *12 (D.D.C. Feb. 20, 2015) (“Section 1252(f)(1) ‘prohibits only injunction of ‘the operation of’ the detention statutes, not injunction of a violation of the statutes.’ ” (emphasis in original)); Reid v. Donelan, 22 F. Supp. 3d 84, 90 (D. Mass. 2014) (“an injunction ‘will not prevent the law from operating in any way, but instead would simply force Defendants to comply with the statute” (emphasis in original)). Rather, plaintiffs’ constitutional claim challenges the validity of, and plaintiffs’ prayer for classwide injunctive relief seeks to “enjoin or restrain the operation of,” 8 U.S.C. § 1229a(b)(4)(A),1 which is a provision of part IV of subchapter II of the Immigration and Nationality Act.

(b) Defendants’ motion is also DENIED as to the deadlines for Rule 26(f) conference, initial disclosures, and combined Joint Status Report and Discovery Plan set forth in the Minute Order entered April 22, 2015, docket no. 127.
(c) Defendants’ motion to hold all deadlines in abeyance is otherwise DEFERRED, and remains noted for May 22, 2015. Any response and any reply shall be due in accordance with Local Civil Rule 7(d)(3). The Court will consider whether to stay this case after it rules on defendants’ motion, docket no. 132, to certify the Order entered April 13, 2015, docket no. 114, for interlocutory appeal under 28 U.S.C. § 1292(b).
(4) The Clerk is directed to send a copy of this Minute Order to all counsel of record.
Dated this 5th day of May, 2015.

*2 (3) Defendants’ motion to hold all deadlines in abeyance, docket no. 133, is DENIED in part and DEFERRED in part as follows.
(a) Defendants’ motion is DENIED as to the pending motion for class certification. Plaintiffs’ motion for class certification, docket no. 117, is RENOTED to May 22, 2015, and any response and any reply shall be due in accordance with Local Civil Rule 7(d)(3).

All Citations
Slip Copy, 2015 WL 12030113 !

Footnotes!

!

1!

8! U.S.C.! §! 1229a(b)(4)(A)! indicates! that,! in! removal! proceedings,! “the! alien! shall! have! the! privilege! of! being! represented,! at! no! expense! to! the!

!

Government,!by!counsel!of!the!alien’s!choosing!who!is!authorized!to!practice!in!such!proceedings.”!See#also!8!U.S.C.!§!1362.!

! !

!

!

 
 Case 2:14-cv-01026-TSZ Document 388 Filed 11/13/18 Page 1 of 20

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

J. E. F.M., a minor, by and through his Next Friend, Bob Ekblad; J. F.M., a minor, by and through his Next Friend Bob Ekblad; D. G. F.M., a minor, by and through her Next Friend, Bob Ekblad; F. L.B., a minor, by and through his Next Friend, Casey Trupin; G. D.S., a minor, by and through his mother and Next Friend, Ana Maria Ruvalcaba; M. A.M., a minor, by and through his mother and Next Friend, Rose Pedro; J. E. V.G.; A. E. G.E.; G. J. C.P.,
Plaintiffs-Appellees/ Cross-Appellants,
v.
MATTHEW WHITAKER, Acting Attorney General; JUAN P. OSUNA, Director, Executive Office for Immigration Review; JEH CHARLES JOHNSON, Secretary, Homeland Security; THOMAS S. WINKOWSKI, Principal Deputy Assistant Secretary, U.S. Immigration and Customs Enforcement; NATHALIE R. ASHER, Field Office Director, ICE ERO;

Nos. 15-35738 15-35739
D.C. No. 2:14-cv-01026-
TSZ
ORDER

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KENNETH HAMILTON, AAFOD, ERO; SYLVIA MATHEWS BURWELL, Secretary, Health and Human Services; ESKINDER NEGASH, Director, Office of Refugee Resettlement,
Defendants-Appellants Cross-Appellees.

Filed November 13, 2018
Before: Andrew J. Kleinfeld, M. Margaret McKeown, and Milan D. Smith, Jr., Circuit Judges.
Order; Dissent by Judge Berzon

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SUMMARY*

Immigration
In a case in which the panel concluded that the district court lacked jurisdiction to review claims brought by a class of children who claim a due process and statutory right to appointed counsel in removal proceedings, the panel filed an order denying a petition for panel rehearing and rehearing en banc.
Dissenting from the denial of rehearing en banc, Judge Berzon, joined by Judges Wardlaw, W. Fletcher, Paez, and Murguia, wrote that the case should have been reheard en banc to correct the panel’s errors in concluding that the relevant statutes do not allow the children to raise their rightto-counsel claim in an affirmative habeas action.
Judge Berzon wrote that the plain language of the statute, the circuit’s case law, and Supreme Court precedent all indicate that 8 U.S.C. § 1252(b)(9) bars district court review of a claim only where an order of removal has been entered and an individual seeks relief from that order. Because the immigration proceedings in this case have not reached that stage, Judge Berzon concluded that there is no statutory barrier to allowing this case to go forward. Judge Berzon also wrote that the panel’s expansive reading of § 1252(b)(9) severely hampers meaningful judicial review of the children’s right-to-counsel claims and, therefore, disregards the crucial rule of statutory interpretation that jurisdiction-
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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channeling provisions should not be interpreted to result in the practical equivalent of a total denial of judicial review of generic constitutional and statutory claims.

ORDER
The panel votes to deny the petition for rehearing.
The full court has been advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35.
The petition for panel rehearing and the petition for rehearing en banc are denied.

BERZON, Circuit Judge, with whom WARDLAW, W. FLETCHER, PAEZ, and MURGUIA, Circuit Judges, join, dissenting from the denial of rehearing en banc:
The plaintiffs in this case are a class of thousands of unrepresented children the United States seeks to expel from the country. Many arrived here after fleeing violence and persecution, and many could be eligible for asylum, Special Immigrant Juvenile Status (“SIJS”), or other protections. Some arrived accompanied by an adult; others did not. To obtain relief, they all will be required to represent themselves against trained government attorneys in adversarial proceedings involving the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., a code of law “second only to the Internal Revenue Code in complexity.” Castro-

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O’Ryan v. INS, 847 F.2d 1307, 1312 (9th Cir. 1987) (quoting E. Hull, Without Justice For All 107 (1985)).
The class of children in this case do not challenge any orders of removal or ask the district court to grant them relief from removal.1 Instead, they maintain that they have a due process and statutory right to appointed counsel in the removal proceedings they face.

1 The certified class of plaintiffs consists of:
All individuals under the age of eighteen (18) who:
(1) are in removal proceedings, as defined in 8 U.S.C. § 1229a, within the boundaries of the Ninth Judicial Circuit, on or after the date of entry of this Order;
(2) were not admitted to the United States and are alleged, in such removal proceedings, to be “inadmissible” under 8 U.S.C. § 1182;
(3) are without legal representation, meaning (a) an attorney, (b) a law student or law graduate directly supervised by an attorney or an accredited representative, or (c) an accredited representative, all as defined in 8 C.F.R. § 1292.1;
(4) are financially unable to obtain such legal representation; and
(5) are potentially eligible for asylum under 8 U.S.C. § 1158, withholding of removal under 8 U.S.C. § 1231(b)(3), or protection under the Convention Against Torture, or are potentially able to make a colorable claim of United States citizenship.

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The panel did not allow the merits of their right-tocounsel claim to be heard. Instead, it shut the courthouse doors on them, broadly proclaiming that 8 U.S.C. § 1252(b)(9) strips district courts of jurisdiction to hear “any issue—whether legal or factual—arising from any removalrelated activity.” J.E.F.M., 837 F.3d at 1031. According to the panel, the children’s right-to-counsel claims can be raised only in individual petitions for review of final orders of removal (“PFR”) to the appropriate circuit court. Id.2 The issue in this case then, is not the merits of the right-tocounsel claim. The issue is only how and where such a claim may be raised.
Contrary to the panel’s conclusion, the relevant statutes do allow the children to raise their right-to-counsel claim in an affirmative habeas action. That procedure, unlike appellate review of an individual removal order, provides the opportunity for full litigation of their claim, including: (1) litigation through a class action rather than by each child individually; (2) representation of the class for purposes of the right-to-counsel question by public interest organizations that lack the capacity to represent each class member individually; and (3) development of a record regarding the need for and value of attorneys that cannot be developed in individual removal proceedings. We should have reheard this case en banc to correct the panel’s errors and given these children—and others potentially affected by the panel’s rigid procedural ruling—their day in court.

2 This court will hear en banc a right-to-counsel claim brought by one minor through the PFR process in C.J.L.G. v. Sessions, 880 F.3d 1122 (9th Cir. 2018), reh’g en banc granted, 904 F.3d 642 (9th Cir. 2018). That minor proceeded pro se throughout his immigration proceedings and obtained counsel only to file his PFR with our court. 880 F.3d at 1127, 1130.

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I.
The plain language of the statute, our circuit’s case law, and Supreme Court precedent all indicate that 8 U.S.C. § 1252(b)(9) bars district court review of a claim only where an order of removal has been entered and an individual seeks relief from that order. Because the immigration proceedings involving the class of children here have not reached that stage, there is no statutory barrier to allowing this case to go forward.
A.
The panel’s opinion relies on 8 U.S.C. § 1252(b)(9), which provides:
Judicial 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 under this subchapter shall be available only in judicial review of a final order under this section. Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under section 2241 of Title 28 or any other habeas corpus provision, by section 1361 or 1651 of such title, or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact.

But the panel ignores that § 1252(b)(9) is a sub-provision of § 1252(b), which begins:

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(b) Requirements for review of orders of removal

With respect to review of an order of removal under subsection (a)(1), the following requirements apply: . . . .

Section 1252(b)(9) is one of the “requirements” listed under § 1252(b). In context and as a matter of plain language, it “appl[ies]” “[w]ith respect to review of an order of removal.” So § 1252(b)(9) does not apply before such an order has been entered, to a claim that does not seek review of such an order. “[W]hen deciding whether the language is plain, we must read the words in their context and with a view to their place in the overall statutory scheme.” King v. Burwell, 135 S. Ct. 2480, 2489 (2015) (quotation marks omitted). The panel opinion entirely ignores the introductory language in § 1252(b) and so errs in interpreting § 1252(b)(9) outside its statutory context.
The provisions surrounding § 1252(b)(9) confirm that the provision applies only to challenges to final orders of removal. Like § 1252(b)(9), every other sub-provision under § 1252(b) assumes that a final order of removal has been entered. For example, § 1252(b)(1) requires a PFR to be filed “no later than 30 days after the date of the final order of removal.” Section 1252(b)(2) establishes as the appropriate venue for review of a PFR the court of appeals “in which the immigration judge completed the proceedings.” See also, e.g., § 1252(b)(3) (specifying that service of a PFR must be on the officer in charge of the “district in which the final order of removal” was entered); § 1252(b)(4) (requiring review of a PFR to be “only on the administrative record on which the order of removal is based”).

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The Supreme Court has confirmed that the statute means exactly what it says. INS v. St. Cyr explained that § 1252(b)(9) “applies only ‘[w]ith respect to review of an order of removal under subsection (a)(1).’” 533 U.S. 289, 313 (2001) (quoting 8 U.S.C. § 1252(b)).
Congress could have written § 1252(b) to apply generally to all issues relating to actions or proceedings brought to remove an alien from the United States. Alternatively, it could have placed § 1252(b)(9) in a different part of the statute. But Congress chose instead to apply all the “requirements” specified under § 1252(b), including § 1252(b)(9), only to “review of an order of removal.”
In short, § 1252(b)(9) applies only when an order of removal has been entered and the petitioner seeks review of that order. The children in this case have not been ordered removed, so they cannot be, and are not, seeking review of a removal order. Section 1252(b)(9)’s channeling directive is simply inapplicable.
In coming to the opposite conclusion, the panel reasoned that when Congress enacted § 1252(b)(9) in 1996, it adopted the expansive jurisdiction-channeling language suggested in McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 494 (1991). J.E.F.M., 837 F.3d at 1036. But that conclusion once again ignores the introductory language in § 1252(b) and so elides the critical difference between the language suggested in McNary and § 1252(b)(9): In revising the statute, Congress located § 1252(b)(9) under § 1252(b), and thus limited its application to “review of an order of removal.” Cf. Mace v. Skinner, 34 F.3d 854, 857, 859 (9th Cir. 1994) (holding that a statute restricting jurisdiction to review “[a]ny order . . . issued by the Board” did not apply to a case

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that was “not based on the merits of [an] individual situation”).
Nor does the Supreme Court’s recent decision in Jennings v. Rodriguez, 138 S. Ct. 830 (2018), narrow the impact of the introductory language in § 1252(b) on § 1252(b)(9). Jennings held that § 1252(b)(9) did not bar district court review of a challenge to immigration detention. Three (of eight) justices acknowledged that the detention claims at issue in that case were not “challenging any part of the process by which their removability will be determined,” but they did not hold that § 1252(b)(9) would bar such a challenge if raised. Id. at 841 (opinion of Alito, J., joined by Roberts, C.J., and Kennedy, J.). Rather, they confined their analysis of § 1252(b)(9) to “present purposes,” and expressly disclaimed any “attempt to provide a comprehensive interpretation” of that provision. Id. at 840– 41. Three other justices concluded that § 1252(b)(9) did not bar the detention challenges at issue because the provision “applies only ‘[w]ith respect to review of an order of removal.’” Id. at 876 (Breyer, J., dissenting, joined by Ginsburg and Sotomayor, JJ.) (quoting § 1252(b)). That understanding, of course, is precisely the one that, in my view, governs here. So, although Jennings did not decide the court access question in this case, it did not adopt the panel’s out-of-statutory-context reading of § 1252(b)(9) either.
Finally, the panel concluded that 8 U.S.C. § 1252(a)(5), “taken together” with § 1252(b)(9), strips the district court of jurisdiction to review the children’s claims. J.E.F.M., 837 F.3d at 1031. Section 1252(a)(5) provides, in relevant part:
Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus

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provision, and sections 1361 and 1651 of such title, a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter, except as provided in subsection (e).

As is apparent, § 1252(a)(5) cannot bear the weight the panel placed on it. Like § 1252(b)(9), § 1252(a)(5) applies only to “judicial review of an order of removal entered or issued.” No such review is sought here.
B.
The panel’s holding that § 1252(b)(9) applies to “any issue . . . arising from any removal-related activity,” J.E.F.M., 837 F.3d at 1031, is irreconcilable not only with the statutory language and context, and with St. Cyr, but also with this court’s precedents. We have twice held that § 1252(b)(9) does not apply to claims that do not seek review of an order of removal.
Nadarajah v. Gonzales concluded that § 1252(b)(9) did not bar the district court’s review of a challenge to prolonged immigration detention before a final order of removal had issued. 443 F.3d 1069, 1075–76 (9th Cir. 2006). We explained the meaning of § 1252(b)(9) as follows:
The REAL ID Act amends the Immigration and Nationality Act by eliminating federal habeas corpus jurisdiction over final orders of removal in favor of petitions for review that raise “constitutional claims or questions of law.” 8 U.S.C. § 1252(b)(9) (as amended

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by REAL ID Act § 106(a)(2)). However, this provision only applies to federal habeas corpus jurisdiction over “final orders of removal.” Id. By its terms, the jurisdictionstripping provision does not apply to federal habeas corpus petitions that do not involve final orders of removal. Here, as we have noted, there is no final order of removal. To the contrary, Nadarajah has prevailed at every administrative level. Therefore, in cases that do not involve a final order of removal, federal habeas corpus jurisdiction remains in the district court, and on appeal to this Court, pursuant to 28 U.S.C. § 2241.

Id. (emphasis added, citation omitted). The panel misinterpreted Nadarajah by concluding that it “distinguished between claims that ‘arise from’ removal proceedings under § 1252(b)(9)—which must be channeled through the PFR process—and claims that are collateral to, or independent of, the removal process.” J.E.F.M., 837 F.3d at 1032. That is not what Nadarajah said. The words “arise from” never appear in the opinion; nor was our jurisdictional holding in that case limited to claims collateral to removal. Instead, Nadarajah unequivocally, and without qualification, held that § 1252(b)(9) does not apply to federal habeas corpus petitions that do not concern a final order of removal.3

3 See also Trinidad y Garcia v. Thomas, 683 F.3d 952, 958 (9th Cir. 2012) (en banc) (Thomas, J., concurring) (“The jurisdiction-stripping provisions of the REAL-ID Act removed federal habeas jurisdiction over final orders of removal, in favor of direct petitions for review. But the REAL-ID Act’s jurisdiction-stripping provisions do not remove federal

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One year later, we reaffirmed Nadarajah’s interpretation of § 1252(b)(9), holding that the provision did not bar a habeas petition challenging ineffective assistance of immigration counsel. Singh v. Gonzalez explained 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.” 499 F.3d 969, 978 (9th Cir. 2007). Singh acknowledged that § 1252(b)(9) covers “any action taken or proceeding brought to remove an alien,” but interpreted the phrase “simply [to] mean[] that if the alien fails to consolidate his claims as required under § 1252(b)(9), he may not later bring a separate habeas claim to raise ‘questions of law or fact’ that should have been brought as part of a challenge to his final order of removal.” 499 F.3d at 978, 978 n.11; see also id. at 978 (“In St. Cyr, the [Supreme] Court confirmed that § 1252(b)(9) ‘applies only with respect to review of an order of removal under [8 U.S.C. § 1252(a)(1).]’ . . . The language added by the REAL ID Act does nothing to change or undermine that analysis.” (quoting St. Cyr, 533 U.S. at 313)). On that basis, Singh held that because the ineffective assistance of counsel claim in that case “d[id] not require review of an order of removal,” the petitioner was not precluded from bringing his action in the district court. Id. at 972.
J.E.F.M. misstated Singh as being limited to the “unique situation” presented by its facts—an “ineffective-assistanceof-counsel claim that arose after his attorney failed to file a timely PFR.” 837 F.3d at 1032. That reading is not accurate.4

habeas jurisdiction over petitions that do not directly challenge a final order of removal.”) (second emphasis added, citation omitted).
4 Other courts of appeals have taken Singh at its word and interpreted it to mean exactly what it says. See Chehazeh v. Attorney Gen. of U.S.,

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Singh did not just recognize a narrow and fact-specific exception to the statute’s application. Rather, Singh analyzed and interpreted the general scope of § 1252(b)(9), recognizing that its interpretation of the statute was required by the Supreme Court’s analysis in St. Cyr and by the plain language of the statute. And it stated unequivocally that § 1252(b)(9) applies only with respect to review of an order of removal.5
While writing the holdings of Nadarajah and Singh out of existence, the panel purported to rely instead on Martinez v. Napolitano’s statement that “[w]hen a claim by an alien, however it is framed, challenges the procedure and substance of an agency determination that is ‘inextricably linked’ to the order of removal, it is prohibited by section 1252(a)(5).” 704 F.3d 620, 623 (9th Cir. 2012). But Martinez established a clear test for when a claim is “inextricably linked” to an order of removal: “[T]he distinction between an independent claim and indirect challenge will turn on the substance of the relief that a plaintiff is seeking.” Id. at 622 (quotation marks omitted). That is, a claim is barred by § 1252(a)(5) if “the substance

666 F.3d 118, 132 (3d Cir. 2012); Skurtu v. Mukasey, 552 F.3d 651, 657 (8th Cir. 2008); Ochieng v. Mukasey, 520 F.3d 1110, 1115 (10th Cir. 2008).
5 That the petitioner in Singh was not allowed “to raise a different ineffective assistance of counsel claim that arose before a final order of removal entered” is consistent with the understanding that § 1252(b)(9) does apply to review of a final order of removal. See J.E.F.M., 837 F.3d at 1032. In Singh, an order of removal against the petitioner had entered by the time he raised his claims. 499 F.3d at 973. Therefore, Singh’s second ineffective assistance of counsel claim amounted to seeking relief from his removal order.

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of the relief [the plaintiff] is seeking . . . would negate his order of removal.” Id. at 623 (emphasis added). Martinez therefore recognized that § 1252(a)(5), in general, applies only when there is an order of removal, not when none has been entered.6
In sum, our precedents, guided by the Supreme Court’s understanding in St. Cyr, have repeatedly held that § 1252(b)(9) strips district courts of habeas jurisdiction only in cases where a final order of removal has been entered and the claim seeks relief from that order. The panel’s conclusion to the contrary in J.E.F.M. ran roughshod over the statutory language and structure, as well as binding law.
II.
There is a second reason why the panel was wrong in holding that the district court did not have jurisdiction to hear the children’s claims. J.E.F.M. disregarded the crucial rule of statutory interpretation that jurisdiction-channeling provisions should not be interpreted to result in the “practical equivalent of a total denial of judicial review of generic constitutional and statutory claims.” McNary, 498 U.S. at 497. By requiring unrepresented children to present their right to counsel claims through the PFR process, the panel

6 Singh also adopted a remedy-based inquiry to determine when an individual seeks review of an order of removal, similar to the test in Martinez. See 499 F.3d at 979. Singh claimed that his attorney was ineffective because he missed the thirty-day deadline to file a PFR with the court of appeals. We explained that because the remedy for Singh’s ineffective assistance of counsel claim would not be to overturn an order of removal, but only to restart the thirty-day period for the filing of a PFR, his claim “cannot be construed as seeking judicial review of his final order of removal, notwithstanding his ultimate goal or desire to overturn that final order of removal.” Id. at 979.

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ensures that, for most litigants, meaningful judicial review of those claims will never occur.
A.
The Supreme Court has long recognized a “well-settled presumption favoring interpretations of statutes that allow judicial review of administrative action.” McNary, 498 U.S. at 496 (citing Bowen v. Michigan Acad. of Family Physicians, 476 U.S. 667, 670 (1986)). The Court has “consistently applied [this presumption] to legislation regarding immigration, and particularly to questions concerning the preservation of federal-court jurisdiction.” Kucana v. Holder, 558 U.S. 233, 251 (2010). So, when Congress enacts a jurisdiction-channeling provision, like § 1252(b)(9), we presume that it does not intend to preclude meaningful judicial review of otherwise cognizable claims.7
B.
J.E.F.M.’s expansive reading of § 1252(b)(9) severely hampers meaningful judicial review of the children’s rightto-counsel claims. Contrary to the panel’s overly sanguine holding, many unrepresented minors—especially those who are quite young or unaccompanied—will likely never make it to the court of appeals in the first place. And if they do, they will arrive there without the factual record necessary to demonstrate the importance of counsel. That is because, as a practical matter, the most important factor in ensuring

7 Three justices of the Supreme Court affirmed this presumption in Jennings v. Rodriguez. They concluded that § 1252(b)(9) could not be read to bar district court review of immigration detention challenges because doing so would “depriv[e] . . . detainee[s] of any meaningful chance for judicial review” of those claims. 138 S. Ct. at 840 (opinion of Alito, J., joined by Roberts, C.J., and Kennedy, J.).

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meaningful review of a right-to-counsel claim is having counsel.
Even if a tenacious child managed to file a timely appeal to the BIA and then a timely PFR in this court claiming a right to appointed counsel, we will often be unable to afford the claim meaningful judicial review. Judicial review of a PFR filed in our court is confined to the record made in administrative proceedings. See Dent v. Holder, 627 F.3d 365, 371 (9th Cir. 2010); 8 U.S.C. § 1252(b)(4)(A). Immigration Judges (“IJs”) and the Board of Immigration Appeals (“BIA”) have no reason to develop an adequate record related to the categorical right-to-counsel claim at issue in this case. In removal proceedings, the IJ’s and BIA’s concern is with the merits of the individual noncitizen’s case. They have no authority to document whether, in general, unrepresented children as a class are unfairly deprived of immigration relief. And critically, IJs and the BIA have no authority to determine the constitutionality of the procedures they administer. See Padilla-Padilla v. Gonzales, 463 F.3d 972, 977 (9th Cir. 2006). They therefore have no reason to inquire into the additional value that counsel would provide. Yet, due process analysis requires evaluating “the probable value, if any, of additional or substitute procedural safeguards.” Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
McNary emphasized that an inadequate record can prevent meaningful judicial review. The government argued in McNary that the district court lacked jurisdiction to consider a categorical constitutional challenge to INS procedures in hearings regarding eligibility for the Special Agricultural Worker program (“SAW”), a form of relief for noncitizens who would otherwise be subject to removal. McNary, 498 U.S. at 483, 487–88. The Court rejected that argument and held that meaningful judicial review of

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petitioners’ categorical challenge was not feasible where a court of appeals could review only the record of individual deportation proceedings. Id. at 497. As McNary noted, challenging the INS practices at issue required presenting evidence that “would have been irrelevant in the processing of a particular individual application.” Id. Thus, McNary concluded, “[n]ot only would a court of appeals reviewing an individual SAW determination therefore most likely not have an adequate record as to the pattern of [the Immigration and Naturalization Service’s] allegedly unconstitutional practices, but it also would lack the factfinding and recorddeveloping capabilities of a federal district court.” Id.
The J.E.F.M. panel dismissed the considerable obstacles to bringing a generic right-to-counsel claim through the PFR process by pointing to one case in which an unrepresented minor did so. 837 F.3d at 1037. But in McNary, the Court considered the impact of the government’s proposed jurisdictional rule on “most aliens denied SAW status.” 498 U.S. at 496 (emphasis added). It did not conclude, as the J.E.F.M. panel did, that meaningful judicial review was available so long as any exceptional individual might be able to obtain judicial review.
Since the panel issued its opinion in J.E.F.M., one other minor, unrepresented in his removal proceedings, acquired counsel and raised a right-to-counsel claim in a PFR before this court. After a panel of three judges rejected his claim, we took the case en banc; it is now pending rehearing before an en banc panel. See C.J.L.G. v. Sessions, 880 F.3d 1122 (9th Cir. 2018), reh’g en banc granted, 904 F.3d 642 (9th Cir. 2018). The record in C.J.L.G. consists almost exclusively of documents from the child’s individual removal proceedings. And, because the child was

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19

unrepresented during those proceedings, the record contains no specific explication of what an attorney could have done.
The en banc panel in C.J.L.G. will have the children’s right-to-counsel issue before it via the PFR route, as that has now become the only road to deciding this essential constitutional issue. But for all the reasons I have given, that narrow path has considerable drawbacks and is not what Congress intended.
III.
In one recent immigration case, lawyers representing a three-year-old child in removal proceedings recounted that during the middle of his hearing, the child began crawling on the table.8 Absurdly, the only thing atypical about that case was that the child had a lawyer. Thousands of children, some very young and many unaccompanied, continue to appear for their immigration proceedings without representation.9 They face trained government attorneys, convoluted procedures and paperwork, and hearings conducted using technical jargon in a language they often do not understand. The result is nearly preordained: deportation

8 See Christina Jewett & Shefali Luthra, Immigrant Toddlers Ordered to Appear in Court Alone, Texas Tribune (June 27, 2018), https://www.texastribune.org/2018/06/27/immigrant-toddlers-orderedappear-court-alone/.
9 See Children: Amid a Growing Court Backlog Many Still Unrepresented, Transactional Records Access Clearinghouse (TRAC) (August 2017), http://trac.syr.edu/immigration/reports/482/#f1.

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back to a country where they will face violence and persecution.10
The special concurrence in J.E.F.M. expressed sympathy for the children whom it has left “to thread their way alone through the labyrinthine maze of immigration laws,” yet it ultimately passes off responsibility for this crisis to “the Executive and Congress.” 837 F.3d at 1039–40 (McKeown, J., specially concurring). But our responsibility is to apply the law properly, not to contradict the plain language of the statute, Supreme Court precedent, our prior case law, and long-settled rules of statutory interpretation. These children present weighty constitutional issues that may determine their ability to remain in the United States or be returned to countries in which they face serious danger. The law requires that we at least hear them out.
Respectfully, I dissent from the denial of rehearing en banc.

10 Children with counsel are five times more likely to be successful in immigration court than children appearing pro se—73 percent versus 15 percent. See A Humanitarian Call to Action: Unaccompanied Children in Removal Proceedings Continue to Present a Critical Need for Legal Representation, ABA Commission on Immigration (June 3, 2015), https://www.americanbar.org/content/dam/aba/administrative/im migration/uacstatement.authcheckdam.pdf.

 
 Case 2:14-cv-01026-TSZ Document 394 Filed 05/02/19 Page 1 of 1

1

2

3

4

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

5

AT SEATTLE

6 F.L.B., et al.,

7

Plaintiffs,

8

v.

9 WILLIAM BARR,1 et al.,

C14-1026 TSZ MINUTE ORDER

10

Defendants.

11 The following Minute Order is made by direction of the Court, the Honorable
12 Thomas S. Zilly, United States District Judge:

13

(1) Having reviewed plaintiffs’ response, docket no. 393, to the Minute Order entered December 6, 2018, docket no. 390, indicating that plaintiffs have opted not to

14

seek a writ of certiorari from the United States Supreme Court, this matter is hereby DISMISSED without prejudice for lack of jurisdiction.

15

(2) The Clerk is DIRECTED to close this case and to send a copy of this

Minute Order to all counsel of record. 16

Dated this 2nd day of May, 2019.

17

18

William M. McCool

Clerk

19 s/Karen Dews

20

Deputy Clerk

21 1 United States Attorney General William Barr is hereby substituted for former Acting Attorney
22 General Matthew G. Whitaker. See Fed. R. Civ. P. 25(d). 23
MINUTE ORDER - 1

 
 FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

J. E. F.M., a minor, by and through his Next Friend, Bob Ekblad; J. F.M., a minor, by and through his Next Friend Bob Ekblad; D. G. F.M., a minor, by and through her Next Friend, Bob Ekblad; F. L.B., a minor, by and through his Next Friend, Casey Trupin; G. D.S., a minor, by and through his mother and Next Friend, Ana Maria Ruvalcaba; M. A.M., a minor, by and through his mother and Next Friend, Rose Pedro; J. E. V.G.; A. E. G.E.; G. J. C.P.,
Plaintiffs-Appellees/ Cross-Appellants,
v.
MATTHEW WHITAKER, Acting Attorney General; JUAN P. OSUNA, Director, Executive Office for Immigration Review; JEH CHARLES JOHNSON, Secretary, Homeland Security; THOMAS S. WINKOWSKI, Principal Deputy Assistant Secretary, U.S. Immigration and Customs Enforcement; NATHALIE R. ASHER, Field Office Director, ICE ERO;

Nos. 15-35738 15-35739
D.C. No. 2:14-cv-01026-
TSZ
ORDER

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J. E. F.M. V. WHITAKER

KENNETH HAMILTON, AAFOD, ERO; SYLVIA MATHEWS BURWELL, Secretary, Health and Human Services; ESKINDER NEGASH, Director, Office of Refugee Resettlement,
Defendants-Appellants Cross-Appellees.

Filed November 13, 2018
Before: Andrew J. Kleinfeld, M. Margaret McKeown, and Milan D. Smith, Jr., Circuit Judges.
Order; Dissent by Judge Berzon

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3

SUMMARY*

Immigration
In a case in which the panel concluded that the district court lacked jurisdiction to review claims brought by a class of children who claim a due process and statutory right to appointed counsel in removal proceedings, the panel filed an order denying a petition for panel rehearing and rehearing en banc.
Dissenting from the denial of rehearing en banc, Judge Berzon, joined by Judges Wardlaw, W. Fletcher, Paez, and Murguia, wrote that the case should have been reheard en banc to correct the panel’s errors in concluding that the relevant statutes do not allow the children to raise their rightto-counsel claim in an affirmative habeas action.
Judge Berzon wrote that the plain language of the statute, the circuit’s case law, and Supreme Court precedent all indicate that 8 U.S.C. § 1252(b)(9) bars district court review of a claim only where an order of removal has been entered and an individual seeks relief from that order. Because the immigration proceedings in this case have not reached that stage, Judge Berzon concluded that there is no statutory barrier to allowing this case to go forward. Judge Berzon also wrote that the panel’s expansive reading of § 1252(b)(9) severely hampers meaningful judicial review of the children’s right-to-counsel claims and, therefore, disregards the crucial rule of statutory interpretation that jurisdiction-
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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channeling provisions should not be interpreted to result in the practical equivalent of a total denial of judicial review of generic constitutional and statutory claims.

ORDER
The panel votes to deny the petition for rehearing.
The full court has been advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35.
The petition for panel rehearing and the petition for rehearing en banc are denied.

BERZON, Circuit Judge, with whom WARDLAW, W. FLETCHER, PAEZ, and MURGUIA, Circuit Judges, join, dissenting from the denial of rehearing en banc:
The plaintiffs in this case are a class of thousands of unrepresented children the United States seeks to expel from the country. Many arrived here after fleeing violence and persecution, and many could be eligible for asylum, Special Immigrant Juvenile Status (“SIJS”), or other protections. Some arrived accompanied by an adult; others did not. To obtain relief, they all will be required to represent themselves against trained government attorneys in adversarial proceedings involving the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., a code of law “second only to the Internal Revenue Code in complexity.” Castro-

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5

O’Ryan v. INS, 847 F.2d 1307, 1312 (9th Cir. 1987) (quoting E. Hull, Without Justice For All 107 (1985)).
The class of children in this case do not challenge any orders of removal or ask the district court to grant them relief from removal.1 Instead, they maintain that they have a due process and statutory right to appointed counsel in the removal proceedings they face.

1 The certified class of plaintiffs consists of:
All individuals under the age of eighteen (18) who:
(1) are in removal proceedings, as defined in 8 U.S.C. § 1229a, within the boundaries of the Ninth Judicial Circuit, on or after the date of entry of this Order;
(2) were not admitted to the United States and are alleged, in such removal proceedings, to be “inadmissible” under 8 U.S.C. § 1182;
(3) are without legal representation, meaning (a) an attorney, (b) a law student or law graduate directly supervised by an attorney or an accredited representative, or (c) an accredited representative, all as defined in 8 C.F.R. § 1292.1;
(4) are financially unable to obtain such legal representation; and
(5) are potentially eligible for asylum under 8 U.S.C. § 1158, withholding of removal under 8 U.S.C. § 1231(b)(3), or protection under the Convention Against Torture, or are potentially able to make a colorable claim of United States citizenship.

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The panel did not allow the merits of their right-tocounsel claim to be heard. Instead, it shut the courthouse doors on them, broadly proclaiming that 8 U.S.C. § 1252(b)(9) strips district courts of jurisdiction to hear “any issue—whether legal or factual—arising from any removalrelated activity.” J.E.F.M., 837 F.3d at 1031. According to the panel, the children’s right-to-counsel claims can be raised only in individual petitions for review of final orders of removal (“PFR”) to the appropriate circuit court. Id.2 The issue in this case then, is not the merits of the right-tocounsel claim. The issue is only how and where such a claim may be raised.
Contrary to the panel’s conclusion, the relevant statutes do allow the children to raise their right-to-counsel claim in an affirmative habeas action. That procedure, unlike appellate review of an individual removal order, provides the opportunity for full litigation of their claim, including: (1) litigation through a class action rather than by each child individually; (2) representation of the class for purposes of the right-to-counsel question by public interest organizations that lack the capacity to represent each class member individually; and (3) development of a record regarding the need for and value of attorneys that cannot be developed in individual removal proceedings. We should have reheard this case en banc to correct the panel’s errors and given these children—and others potentially affected by the panel’s rigid procedural ruling—their day in court.

2 This court will hear en banc a right-to-counsel claim brought by one minor through the PFR process in C.J.L.G. v. Sessions, 880 F.3d 1122 (9th Cir. 2018), reh’g en banc granted, 904 F.3d 642 (9th Cir. 2018). That minor proceeded pro se throughout his immigration proceedings and obtained counsel only to file his PFR with our court. 880 F.3d at 1127, 1130.

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7

I.
The plain language of the statute, our circuit’s case law, and Supreme Court precedent all indicate that 8 U.S.C. § 1252(b)(9) bars district court review of a claim only where an order of removal has been entered and an individual seeks relief from that order. Because the immigration proceedings involving the class of children here have not reached that stage, there is no statutory barrier to allowing this case to go forward.
A.
The panel’s opinion relies on 8 U.S.C. § 1252(b)(9), which provides:
Judicial 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 under this subchapter shall be available only in judicial review of a final order under this section. Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under section 2241 of Title 28 or any other habeas corpus provision, by section 1361 or 1651 of such title, or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact.

But the panel ignores that § 1252(b)(9) is a sub-provision of § 1252(b), which begins:

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J. E. F.M. V. WHITAKER

(b) Requirements for review of orders of removal

With respect to review of an order of removal under subsection (a)(1), the following requirements apply: . . . .

Section 1252(b)(9) is one of the “requirements” listed under § 1252(b). In context and as a matter of plain language, it “appl[ies]” “[w]ith respect to review of an order of removal.” So § 1252(b)(9) does not apply before such an order has been entered, to a claim that does not seek review of such an order. “[W]hen deciding whether the language is plain, we must read the words in their context and with a view to their place in the overall statutory scheme.” King v. Burwell, 135 S. Ct. 2480, 2489 (2015) (quotation marks omitted). The panel opinion entirely ignores the introductory language in § 1252(b) and so errs in interpreting § 1252(b)(9) outside its statutory context.
The provisions surrounding § 1252(b)(9) confirm that the provision applies only to challenges to final orders of removal. Like § 1252(b)(9), every other sub-provision under § 1252(b) assumes that a final order of removal has been entered. For example, § 1252(b)(1) requires a PFR to be filed “no later than 30 days after the date of the final order of removal.” Section 1252(b)(2) establishes as the appropriate venue for review of a PFR the court of appeals “in which the immigration judge completed the proceedings.” See also, e.g., § 1252(b)(3) (specifying that service of a PFR must be on the officer in charge of the “district in which the final order of removal” was entered); § 1252(b)(4) (requiring review of a PFR to be “only on the administrative record on which the order of removal is based”).

J. E. F.M. V. WHITAKER

9

The Supreme Court has confirmed that the statute means exactly what it says. INS v. St. Cyr explained that § 1252(b)(9) “applies only ‘[w]ith respect to review of an order of removal under subsection (a)(1).’” 533 U.S. 289, 313 (2001) (quoting 8 U.S.C. § 1252(b)).
Congress could have written § 1252(b) to apply generally to all issues relating to actions or proceedings brought to remove an alien from the United States. Alternatively, it could have placed § 1252(b)(9) in a different part of the statute. But Congress chose instead to apply all the “requirements” specified under § 1252(b), including § 1252(b)(9), only to “review of an order of removal.”

In short, § 1252(b)(9) applies only when an order of removal has been entered and the petitioner seeks review of that order. The children in this case have not been ordered removed, so they cannot be, and are not, seeking review of a removal order. Section 1252(b)(9)’s channeling directive is simply inapplicable.

In coming to the opposite conclusion, the panel reasoned that when Congress enacted § 1252(b)(9) in 1996, it adopted the expansive jurisdiction-channeling language suggested in McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 494 (1991). J.E.F.M., 837 F.3d at 1036. But that conclusion once again ignores the introductory language in § 1252(b) and so elides the critical difference between the language suggested in McNary and § 1252(b)(9): In revising the statute, Congress located § 1252(b)(9) under § 1252(b), and thus limited its application to “review of an order of removal.” Cf. Mace v. Skinner, 34 F.3d 854, 857, 859 (9th Cir. 1994) (holding that a statute restricting jurisdiction to review “[a]ny order . . . issued by the Board” did not apply to a case

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that was “not based on the merits of [an] individual situation”).

Nor does the Supreme Court’s recent decision in Jennings v. Rodriguez, 138 S. Ct. 830 (2018), narrow the impact of the introductory language in § 1252(b) on § 1252(b)(9). Jennings held that § 1252(b)(9) did not bar district court review of a challenge to immigration detention. Three (of eight) justices acknowledged that the detention claims at issue in that case were not “challenging any part of the process by which their removability will be determined,” but they did not hold that § 1252(b)(9) would bar such a challenge if raised. Id. at 841 (opinion of Alito, J., joined by Roberts, C.J., and Kennedy, J.). Rather, they confined their analysis of § 1252(b)(9) to “present purposes,” and expressly disclaimed any “attempt to provide a comprehensive interpretation” of that provision. Id. at 840– 41. Three other justices concluded that § 1252(b)(9) did not bar the detention challenges at issue because the provision “applies only ‘[w]ith respect to review of an order of removal.’” Id. at 876 (Breyer, J., dissenting, joined by Ginsburg and Sotomayor, JJ.) (quoting § 1252(b)). That understanding, of course, is precisely the one that, in my view, governs here. So, although Jennings did not decide the court access question in this case, it did not adopt the panel’s out-of-statutory-context reading of § 1252(b)(9) either.

Finally, the panel concluded that 8 U.S.C. § 1252(a)(5), “taken together” with § 1252(b)(9), strips the district court of jurisdiction to review the children’s claims. J.E.F.M., 837 F.3d at 1031. Section 1252(a)(5) provides, in relevant part:

Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus

J. E. F.M. V. WHITAKER

11

provision, and sections 1361 and 1651 of such title, a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter, except as provided in subsection (e).

As is apparent, § 1252(a)(5) cannot bear the weight the panel placed on it. Like § 1252(b)(9), § 1252(a)(5) applies only to “judicial review of an order of removal entered or issued.” No such review is sought here.

B.
The panel’s holding that § 1252(b)(9) applies to “any issue . . . arising from any removal-related activity,” J.E.F.M., 837 F.3d at 1031, is irreconcilable not only with the statutory language and context, and with St. Cyr, but also with this court’s precedents. We have twice held that § 1252(b)(9) does not apply to claims that do not seek review of an order of removal.
Nadarajah v. Gonzales concluded that § 1252(b)(9) did not bar the district court’s review of a challenge to prolonged immigration detention before a final order of removal had issued. 443 F.3d 1069, 1075–76 (9th Cir. 2006). We explained the meaning of § 1252(b)(9) as follows:
The REAL ID Act amends the Immigration and Nationality Act by eliminating federal habeas corpus jurisdiction over final orders of removal in favor of petitions for review that raise “constitutional claims or questions of law.” 8 U.S.C. § 1252(b)(9) (as amended

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by REAL ID Act § 106(a)(2)). However, this provision only applies to federal habeas corpus jurisdiction over “final orders of removal.” Id. By its terms, the jurisdictionstripping provision does not apply to federal habeas corpus petitions that do not involve final orders of removal. Here, as we have noted, there is no final order of removal. To the contrary, Nadarajah has prevailed at every administrative level. Therefore, in cases that do not involve a final order of removal, federal habeas corpus jurisdiction remains in the district court, and on appeal to this Court, pursuant to 28 U.S.C. § 2241.

Id. (emphasis added, citation omitted). The panel misinterpreted Nadarajah by concluding that it “distinguished between claims that ‘arise from’ removal proceedings under § 1252(b)(9)—which must be channeled through the PFR process—and claims that are collateral to, or independent of, the removal process.” J.E.F.M., 837 F.3d at 1032. That is not what Nadarajah said. The words “arise from” never appear in the opinion; nor was our jurisdictional holding in that case limited to claims collateral to removal. Instead, Nadarajah unequivocally, and without qualification, held that § 1252(b)(9) does not apply to federal habeas corpus petitions that do not concern a final order of removal.3

3 See also Trinidad y Garcia v. Thomas, 683 F.3d 952, 958 (9th Cir. 2012) (en banc) (Thomas, J., concurring) (“The jurisdiction-stripping provisions of the REAL-ID Act removed federal habeas jurisdiction over final orders of removal, in favor of direct petitions for review. But the REAL-ID Act’s jurisdiction-stripping provisions do not remove federal

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13

One year later, we reaffirmed Nadarajah’s interpretation of § 1252(b)(9), holding that the provision did not bar a habeas petition challenging ineffective assistance of immigration counsel. Singh v. Gonzalez explained 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.” 499 F.3d 969, 978 (9th Cir. 2007). Singh acknowledged that § 1252(b)(9) covers “any action taken or proceeding brought to remove an alien,” but interpreted the phrase “simply [to] mean[] that if the alien fails to consolidate his claims as required under § 1252(b)(9), he may not later bring a separate habeas claim to raise ‘questions of law or fact’ that should have been brought as part of a challenge to his final order of removal.” 499 F.3d at 978, 978 n.11; see also id. at 978 (“In St. Cyr, the [Supreme] Court confirmed that § 1252(b)(9) ‘applies only with respect to review of an order of removal under [8 U.S.C. § 1252(a)(1).]’ . . . The language added by the REAL ID Act does nothing to change or undermine that analysis.” (quoting St. Cyr, 533 U.S. at 313)). On that basis, Singh held that because the ineffective assistance of counsel claim in that case “d[id] not require review of an order of removal,” the petitioner was not precluded from bringing his action in the district court. Id. at 972.
J.E.F.M. misstated Singh as being limited to the “unique situation” presented by its facts—an “ineffective-assistanceof-counsel claim that arose after his attorney failed to file a timely PFR.” 837 F.3d at 1032. That reading is not accurate.4

habeas jurisdiction over petitions that do not directly challenge a final order of removal.”) (second emphasis added, citation omitted).
4 Other courts of appeals have taken Singh at its word and interpreted it to mean exactly what it says. See Chehazeh v. Attorney Gen. of U.S.,

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Singh did not just recognize a narrow and fact-specific exception to the statute’s application. Rather, Singh analyzed and interpreted the general scope of § 1252(b)(9), recognizing that its interpretation of the statute was required by the Supreme Court’s analysis in St. Cyr and by the plain language of the statute. And it stated unequivocally that § 1252(b)(9) applies only with respect to review of an order of removal.5
While writing the holdings of Nadarajah and Singh out of existence, the panel purported to rely instead on Martinez v. Napolitano’s statement that “[w]hen a claim by an alien, however it is framed, challenges the procedure and substance of an agency determination that is ‘inextricably linked’ to the order of removal, it is prohibited by section 1252(a)(5).” 704 F.3d 620, 623 (9th Cir. 2012). But Martinez established a clear test for when a claim is “inextricably linked” to an order of removal: “[T]he distinction between an independent claim and indirect challenge will turn on the substance of the relief that a plaintiff is seeking.” Id. at 622 (quotation marks omitted). That is, a claim is barred by § 1252(a)(5) if “the substance

666 F.3d 118, 132 (3d Cir. 2012); Skurtu v. Mukasey, 552 F.3d 651, 657 (8th Cir. 2008); Ochieng v. Mukasey, 520 F.3d 1110, 1115 (10th Cir. 2008).
5 That the petitioner in Singh was not allowed “to raise a different ineffective assistance of counsel claim that arose before a final order of removal entered” is consistent with the understanding that § 1252(b)(9) does apply to review of a final order of removal. See J.E.F.M., 837 F.3d at 1032. In Singh, an order of removal against the petitioner had entered by the time he raised his claims. 499 F.3d at 973. Therefore, Singh’s second ineffective assistance of counsel claim amounted to seeking relief from his removal order.

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15

of the relief [the plaintiff] is seeking . . . would negate his order of removal.” Id. at 623 (emphasis added). Martinez therefore recognized that § 1252(a)(5), in general, applies only when there is an order of removal, not when none has been entered.6
In sum, our precedents, guided by the Supreme Court’s understanding in St. Cyr, have repeatedly held that § 1252(b)(9) strips district courts of habeas jurisdiction only in cases where a final order of removal has been entered and the claim seeks relief from that order. The panel’s conclusion to the contrary in J.E.F.M. ran roughshod over the statutory language and structure, as well as binding law.
II.
There is a second reason why the panel was wrong in holding that the district court did not have jurisdiction to hear the children’s claims. J.E.F.M. disregarded the crucial rule of statutory interpretation that jurisdiction-channeling provisions should not be interpreted to result in the “practical equivalent of a total denial of judicial review of generic constitutional and statutory claims.” McNary, 498 U.S. at 497. By requiring unrepresented children to present their right to counsel claims through the PFR process, the panel

6 Singh also adopted a remedy-based inquiry to determine when an individual seeks review of an order of removal, similar to the test in Martinez. See 499 F.3d at 979. Singh claimed that his attorney was ineffective because he missed the thirty-day deadline to file a PFR with the court of appeals. We explained that because the remedy for Singh’s ineffective assistance of counsel claim would not be to overturn an order of removal, but only to restart the thirty-day period for the filing of a PFR, his claim “cannot be construed as seeking judicial review of his final order of removal, notwithstanding his ultimate goal or desire to overturn that final order of removal.” Id. at 979.

16

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ensures that, for most litigants, meaningful judicial review of those claims will never occur.
A.
The Supreme Court has long recognized a “well-settled presumption favoring interpretations of statutes that allow judicial review of administrative action.” McNary, 498 U.S. at 496 (citing Bowen v. Michigan Acad. of Family Physicians, 476 U.S. 667, 670 (1986)). The Court has “consistently applied [this presumption] to legislation regarding immigration, and particularly to questions concerning the preservation of federal-court jurisdiction.” Kucana v. Holder, 558 U.S. 233, 251 (2010). So, when Congress enacts a jurisdiction-channeling provision, like § 1252(b)(9), we presume that it does not intend to preclude meaningful judicial review of otherwise cognizable claims.7
B.
J.E.F.M.’s expansive reading of § 1252(b)(9) severely hampers meaningful judicial review of the children’s rightto-counsel claims. Contrary to the panel’s overly sanguine holding, many unrepresented minors—especially those who are quite young or unaccompanied—will likely never make it to the court of appeals in the first place. And if they do, they will arrive there without the factual record necessary to demonstrate the importance of counsel. That is because, as a practical matter, the most important factor in ensuring

7 Three justices of the Supreme Court affirmed this presumption in Jennings v. Rodriguez. They concluded that § 1252(b)(9) could not be read to bar district court review of immigration detention challenges because doing so would “depriv[e] . . . detainee[s] of any meaningful chance for judicial review” of those claims. 138 S. Ct. at 840 (opinion of Alito, J., joined by Roberts, C.J., and Kennedy, J.).

J. E. F.M. V. WHITAKER

17

meaningful review of a right-to-counsel claim is having counsel.

Even if a tenacious child managed to file a timely appeal to the BIA and then a timely PFR in this court claiming a right to appointed counsel, we will often be unable to afford the claim meaningful judicial review. Judicial review of a PFR filed in our court is confined to the record made in administrative proceedings. See Dent v. Holder, 627 F.3d 365, 371 (9th Cir. 2010); 8 U.S.C. § 1252(b)(4)(A). Immigration Judges (“IJs”) and the Board of Immigration Appeals (“BIA”) have no reason to develop an adequate record related to the categorical right-to-counsel claim at issue in this case. In removal proceedings, the IJ’s and BIA’s concern is with the merits of the individual noncitizen’s case. They have no authority to document whether, in general, unrepresented children as a class are unfairly deprived of immigration relief. And critically, IJs and the BIA have no authority to determine the constitutionality of the procedures they administer. See Padilla-Padilla v. Gonzales, 463 F.3d 972, 977 (9th Cir. 2006). They therefore have no reason to inquire into the additional value that counsel would provide. Yet, due process analysis requires evaluating “the probable value, if any, of additional or substitute procedural safeguards.” Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

McNary emphasized that an inadequate record can prevent meaningful judicial review. The government argued in McNary that the district court lacked jurisdiction to consider a categorical constitutional challenge to INS procedures in hearings regarding eligibility for the Special Agricultural Worker program (“SAW”), a form of relief for noncitizens who would otherwise be subject to removal. McNary, 498 U.S. at 483, 487–88. The Court rejected that argument and held that meaningful judicial review of

18

J. E. F.M. V. WHITAKER

petitioners’ categorical challenge was not feasible where a court of appeals could review only the record of individual deportation proceedings. Id. at 497. As McNary noted, challenging the INS practices at issue required presenting evidence that “would have been irrelevant in the processing of a particular individual application.” Id. Thus, McNary concluded, “[n]ot only would a court of appeals reviewing an individual SAW determination therefore most likely not have an adequate record as to the pattern of [the Immigration and Naturalization Service’s] allegedly unconstitutional practices, but it also would lack the factfinding and recorddeveloping capabilities of a federal district court.” Id.
The J.E.F.M. panel dismissed the considerable obstacles to bringing a generic right-to-counsel claim through the PFR process by pointing to one case in which an unrepresented minor did so. 837 F.3d at 1037. But in McNary, the Court considered the impact of the government’s proposed jurisdictional rule on “most aliens denied SAW status.” 498 U.S. at 496 (emphasis added). It did not conclude, as the J.E.F.M. panel did, that meaningful judicial review was available so long as any exceptional individual might be able to obtain judicial review.

Since the panel issued its opinion in J.E.F.M., one other minor, unrepresented in his removal proceedings, acquired counsel and raised a right-to-counsel claim in a PFR before this court. After a panel of three judges rejected his claim, we took the case en banc; it is now pending rehearing before an en banc panel. See C.J.L.G. v. Sessions, 880 F.3d 1122 (9th Cir. 2018), reh’g en banc granted, 904 F.3d 642 (9th Cir. 2018). The record in C.J.L.G. consists almost exclusively of documents from the child’s individual removal proceedings. And, because the child was

J. E. F.M. V. WHITAKER

19

unrepresented during those proceedings, the record contains no specific explication of what an attorney could have done.
The en banc panel in C.J.L.G. will have the children’s right-to-counsel issue before it via the PFR route, as that has now become the only road to deciding this essential constitutional issue. But for all the reasons I have given, that narrow path has considerable drawbacks and is not what Congress intended.
III.
In one recent immigration case, lawyers representing a three-year-old child in removal proceedings recounted that during the middle of his hearing, the child began crawling on the table.8 Absurdly, the only thing atypical about that case was that the child had a lawyer. Thousands of children, some very young and many unaccompanied, continue to appear for their immigration proceedings without representation.9 They face trained government attorneys, convoluted procedures and paperwork, and hearings conducted using technical jargon in a language they often do not understand. The result is nearly preordained: deportation

8 See Christina Jewett & Shefali Luthra, Immigrant Toddlers Ordered to Appear in Court Alone, Texas Tribune (June 27, 2018), https://www.texastribune.org/2018/06/27/immigrant-toddlers-orderedappear-court-alone/.
9 See Children: Amid a Growing Court Backlog Many Still Unrepresented, Transactional Records Access Clearinghouse (TRAC) (August 2017), http://trac.syr.edu/immigration/reports/482/#f1.

20

J. E. F.M. V. WHITAKER

back to a country where they will face violence and persecution.10
The special concurrence in J.E.F.M. expressed sympathy for the children whom it has left “to thread their way alone through the labyrinthine maze of immigration laws,” yet it ultimately passes off responsibility for this crisis to “the Executive and Congress.” 837 F.3d at 1039–40 (McKeown, J., specially concurring). But our responsibility is to apply the law properly, not to contradict the plain language of the statute, Supreme Court precedent, our prior case law, and long-settled rules of statutory interpretation. These children present weighty constitutional issues that may determine their ability to remain in the United States or be returned to countries in which they face serious danger. The law requires that we at least hear them out.
Respectfully, I dissent from the denial of rehearing en banc.

10 Children with counsel are five times more likely to be successful in immigration court than children appearing pro se—73 percent versus 15 percent. See A Humanitarian Call to Action: Unaccompanied Children in Removal Proceedings Continue to Present a Critical Need for Legal Representation, ABA Commission on Immigration (June 3, 2015), https://www.americanbar.org/content/dam/aba/administrative/im migration/uacstatement.authcheckdam.pdf.

 
 U.S. District Court United States District Court for the Western District of Washington (Seattle)
CIVIL DOCKET FOR CASE #: 2:14-cv-01026-TSZ

F LB et al v. Holder et al Assigned to: Judge Thomas S. Zilly Cause: 28:1331 Federal Question: Other Civil Rights

Date Filed: 07/09/2014 Date Terminated: 05/02/2019 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Plaintiff
J E FM a minor, by and through his Next Friend, Bob Ekblad TERMINATED: 08/27/2015

represented by Ahilan T Arulanantham ACLU OF SOUTHERN CALIFORNIA 1313 W. 8TH STREET LOS ANGELES, CA 90017 213-977-5211 Email: aarulanantham@aclusocal.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Beth Werlin AMERICAN IMMIGRATION COUNCIL 1331 G STREET NW WASHINGTON, DC 20002 202-507-7516 Fax: 202-742-5619 Email: bwerlin@immcouncil.org TERMINATED: 04/24/2015 LEAD ATTORNEY PRO HAC VICE

Cecillia Wang ACLU IMMIGRANTS' RIGHTS PROJECT 39 DRUMM STREET SAN FRANCISCO, CA 94111 415-343-0770 Email: cwang@aclu.org

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Glenda Melinda Aldana Madrid NORTHWEST IMMIGRANT RIGHTS PROJECT (SEA) 615 2ND AVE STE 400 SEATTLE, WA 98104 206-957-8646 Email: glenda@nwirp.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristen Jackson PUBLIC COUNSEL 610 S. ARDMORE AVE. LOS ANGELES, CA 90005 213-385-2977 Email: kjackson@publiccounsel.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kristin Macleod-Ball AMERICAN IMMIGRATION COUNCIL 1318 BEACON STREET STE 18 BOSTON, MA 02446 857-305-3722 Email: kmacleodball@immcouncil.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matt Adams NORTHWEST IMMIGRANT RIGHTS PROJECT (SEA) 615 2ND AVE STE 400 SEATTLE, WA 98104 206-957-8611 Email: matt@nwirp.org LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Sarah A Dunne ACLU OF WASHINGTON 901 FIFTH AVENUE SUITE 630 PO BOX 2728 SEATTLE, WA 98111 206-624-2184 Email: sarahadunne@yahoo.com TERMINATED: 04/16/2015 LEAD ATTORNEY
Stephen B Kang ACLU IMMIGRANTS' RIGHTS PROJECT 39 DRUMM STREET SAN FRANCISCO, CA 94111 415-343-0763 Email: skang@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Talia Inlender PUBLIC COUNSEL 610 S. ARDMORE AVE LOS ANGELES, CA 90005 213-385-2977 Email: tinlender@publiccounsel.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Theodore J Angelis K&L GATES LLP (SEATTLE) 925 FOURTH AVE STE 2900 SEATTLE, WA 98104-1158 206-623-7580 Fax: 206-623-7022 Email: theo.angelis@klgates.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd L Nunn K&L GATES LLP (SEATTLE)

925 FOURTH AVE STE 2900 SEATTLE, WA 98104-1158 206-623-7580 Fax: 206-623-7022 Email: todd.nunn@klgates.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carmen G Iguina Gonzalez ACLU OF SOUTHERN CALIFORNIA 1313 WEST 8TH STREET LOS ANGELES, CA 90017 213-977-5284 Email: carmen.iguina@nyu.edu TERMINATED: 02/09/2018 PRO HAC VICE
Emily Creighton AMERICAN IMMIGRATION COUNCIL 1331 G STREET NW, SUITE 200 WASHINGTON, DC 20005 202-507-7516 Email: ecreighton@immcouncil.org TERMINATED: 02/02/2016 PRO HAC VICE
Heidi Craig Garcia K&L GATES LLP (SEATTLE) 925 FOURTH AVENUE STE 2900 SEATTLE, WA 98104-1158 206-623-7580 Email: heidi.craig@klgates.com TERMINATED: 02/09/2018
La Rond Baker KING COUNTY DPD 710 SECOND AVE STE 200 SEATTLE, WA 98104 206-263-6884 Email: lbaker@kingcounty.gov TERMINATED: 10/16/2015

Plaintiff
J FM a minor, by and through his Next Friend Bob Ekblad TERMINATED: 08/27/2015

Margaret Chen AMERICAN CIVIL LIBERTIES UNION OF WA 901 5TH AVENUE STE 630 SEATTLE, WA 98164 206-624-2184 Email: margaret.chen@gmail.com TERMINATED: 02/23/2017
Melissa Crow AMERICAN IMMIGRATION COUNCIL 1331 G STREET NW STE 200 WASHINGTON, DC 20005 202-507-7523 Email: mcrow@immcouncil.org TERMINATED: 02/05/2018 PRO HAC VICE
represented by Ahilan T Arulanantham (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Beth Werlin (See above for address) TERMINATED: 04/24/2015 LEAD ATTORNEY PRO HAC VICE
Cecillia Wang (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Glenda Melinda Aldana Madrid (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristen Jackson

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kristin Macleod-Ball (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matt Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah A Dunne (See above for address) TERMINATED: 04/16/2015 LEAD ATTORNEY
Stephen B Kang (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Talia Inlender (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Theodore J Angelis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd L Nunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carmen G Iguina Gonzalez (See above for address) TERMINATED: 02/09/2018

Plaintiff
D G FM a minor, by and through her Next Friend, Bob Ekblad TERMINATED: 08/27/2015

PRO HAC VICE
Emily Creighton (See above for address) TERMINATED: 02/02/2016 PRO HAC VICE
Heidi Craig Garcia (See above for address) TERMINATED: 02/09/2018
La Rond Baker (See above for address) TERMINATED: 10/16/2015
Margaret Chen (See above for address) TERMINATED: 02/23/2017
Melissa Crow (See above for address) TERMINATED: 02/05/2018 PRO HAC VICE
represented by Ahilan T Arulanantham (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Beth Werlin (See above for address) TERMINATED: 04/24/2015 LEAD ATTORNEY PRO HAC VICE
Cecillia Wang (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Glenda Melinda Aldana Madrid (See above for address) LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Kristen Jackson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kristin Macleod-Ball (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matt Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah A Dunne (See above for address) TERMINATED: 04/16/2015 LEAD ATTORNEY
Stephen B Kang (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Talia Inlender (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Theodore J Angelis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd L Nunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
F LB a minor, by and through his Next Friend, Casey Trupin

Carmen G Iguina Gonzalez (See above for address) TERMINATED: 02/09/2018 PRO HAC VICE
Emily Creighton (See above for address) TERMINATED: 02/02/2016 PRO HAC VICE
Heidi Craig Garcia (See above for address) TERMINATED: 02/09/2018
La Rond Baker (See above for address) TERMINATED: 10/16/2015
Margaret Chen (See above for address) TERMINATED: 02/23/2017
Melissa Crow (See above for address) TERMINATED: 02/05/2018 PRO HAC VICE
represented by Ahilan T Arulanantham (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Beth Werlin (See above for address) TERMINATED: 04/24/2015 LEAD ATTORNEY PRO HAC VICE
Cecillia Wang (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Glenda Melinda Aldana Madrid (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristen Jackson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kristin Macleod-Ball (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matt Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah A Dunne (See above for address) TERMINATED: 04/16/2015 LEAD ATTORNEY
Stephen B Kang (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Talia Inlender (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Theodore J Angelis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd L Nunn (See above for address)

Plaintiff
GDS a minor, by and through his mother and Next Friend, Ana Maria Ruvalcaba TERMINATED: 04/13/2015

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carmen G Iguina Gonzalez (See above for address) TERMINATED: 02/09/2018 PRO HAC VICE
Emily Chiang ACLU OF WASHINGTON 901 FIFTH AVENUE SUITE 630 SEATTLE, WA 98164 206-624-2184 Email: echiang@aclu-wa.org ATTORNEY TO BE NOTICED
Emily Creighton (See above for address) TERMINATED: 02/02/2016 PRO HAC VICE
Heidi Craig Garcia (See above for address) TERMINATED: 02/09/2018
La Rond Baker (See above for address) TERMINATED: 10/16/2015
Margaret Chen (See above for address) TERMINATED: 02/23/2017
Melissa Crow (See above for address) TERMINATED: 02/05/2018 PRO HAC VICE
represented by Ahilan T Arulanantham (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Beth Werlin (See above for address) TERMINATED: 04/24/2015 LEAD ATTORNEY PRO HAC VICE
Cecillia Wang (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Glenda Melinda Aldana Madrid (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristen Jackson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kristin Macleod-Ball (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matt Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah A Dunne (See above for address) TERMINATED: 04/16/2015 LEAD ATTORNEY
Stephen B Kang (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Talia Inlender

Plaintiff Marvin Alexis Aguilar Mendoza

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Theodore J Angelis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd L Nunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carmen G Iguina Gonzalez (See above for address) TERMINATED: 02/09/2018 PRO HAC VICE
Emily Creighton (See above for address) TERMINATED: 02/02/2016 PRO HAC VICE
Heidi Craig Garcia (See above for address) TERMINATED: 02/09/2018
La Rond Baker (See above for address) TERMINATED: 10/16/2015
Margaret Chen (See above for address) TERMINATED: 02/23/2017
Melissa Crow (See above for address) TERMINATED: 02/05/2018 PRO HAC VICE
represented by Ahilan T Arulanantham (See above for address) LEAD ATTORNEY

PRO HAC VICE ATTORNEY TO BE NOTICED
Cecillia Wang (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Glenda Melinda Aldana Madrid (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristen Jackson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kristin Macleod-Ball (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matt Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen B Kang (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Talia Inlender (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Theodore J Angelis (See above for address) LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Todd L Nunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Beth Werlin (See above for address) TERMINATED: 04/24/2015 PRO HAC VICE
Carmen G Iguina Gonzalez (See above for address) TERMINATED: 02/09/2018 PRO HAC VICE
Emily Chiang (See above for address) ATTORNEY TO BE NOTICED
Emily Creighton (See above for address) TERMINATED: 02/02/2016 PRO HAC VICE
Heidi Craig Garcia (See above for address) TERMINATED: 02/09/2018
La Rond Baker (See above for address) TERMINATED: 10/16/2015
Margaret Chen (See above for address) TERMINATED: 02/23/2017
Melissa Crow (See above for address) TERMINATED: 02/05/2018 PRO HAC VICE
Sarah A Dunne (See above for address) TERMINATED: 04/16/2015

Plaintiff
S R IC a minor, by and through his father and Next Friend, Hector Rolando Ixcoy TERMINATED: 02/10/2015

represented by Ahilan T Arulanantham (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Beth Werlin (See above for address) TERMINATED: 04/24/2015 LEAD ATTORNEY PRO HAC VICE
Cecillia Wang (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Glenda Melinda Aldana Madrid (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristen Jackson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kristin Macleod-Ball (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matt Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah A Dunne (See above for address) TERMINATED: 04/16/2015 LEAD ATTORNEY

Stephen B Kang (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Talia Inlender (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Theodore J Angelis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd L Nunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carmen G Iguina Gonzalez (See above for address) TERMINATED: 02/09/2018 PRO HAC VICE
Emily Creighton (See above for address) TERMINATED: 02/02/2016 PRO HAC VICE
Heidi Craig Garcia (See above for address) TERMINATED: 02/09/2018
La Rond Baker (See above for address) TERMINATED: 10/16/2015
Margaret Chen (See above for address) TERMINATED: 02/23/2017
Melissa Crow (See above for address)

Plaintiff
G M GC a minor, by and through her father and Next Friend, Juan Guerrero Diaz; on behalf of themselves as individuals and on behalf of others similarly situated TERMINATED: 02/10/2015

TERMINATED: 02/05/2018 PRO HAC VICE
represented by Ahilan T Arulanantham (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Beth Werlin (See above for address) TERMINATED: 04/24/2015 LEAD ATTORNEY PRO HAC VICE
Cecillia Wang (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Glenda Melinda Aldana Madrid (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristen Jackson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kristin Macleod-Ball (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matt Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah A Dunne (See above for address)

TERMINATED: 04/16/2015 LEAD ATTORNEY
Stephen B Kang (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Talia Inlender (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Theodore J Angelis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd L Nunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carmen G Iguina Gonzalez (See above for address) TERMINATED: 02/09/2018 PRO HAC VICE
Emily Creighton (See above for address) TERMINATED: 02/02/2016 PRO HAC VICE
Heidi Craig Garcia (See above for address) TERMINATED: 02/09/2018
La Rond Baker (See above for address) TERMINATED: 10/16/2015
Margaret Chen (See above for address) TERMINATED: 02/23/2017

Plaintiff J.E.V.G. a minor, by and through his sister and Next Friend, Santos Angela Vasquez TERMINATED: 04/15/2016
Plaintiff A.E.G.E. a minor, by and through his Next Friend, Ana Deutsch

Melissa Crow (See above for address) TERMINATED: 02/05/2018 PRO HAC VICE
represented by Kristin Macleod-Ball (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ahilan T Arulanantham (See above for address) ATTORNEY TO BE NOTICED
Emily Creighton (See above for address) TERMINATED: 02/02/2016 PRO HAC VICE
La Rond Baker (See above for address) TERMINATED: 10/16/2015
Margaret Chen (See above for address) TERMINATED: 02/23/2017
Glenda Melinda Aldana Madrid (See above for address) ATTORNEY TO BE NOTICED
Matt Adams (See above for address) ATTORNEY TO BE NOTICED
represented by Kristin Macleod-Ball (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
G.J.C.P. a minor, by and through her grandmother and Next Friend, Blanca Griselda Zelaya

Ahilan T Arulanantham (See above for address) ATTORNEY TO BE NOTICED
Emily Chiang (See above for address) ATTORNEY TO BE NOTICED
Emily Creighton (See above for address) TERMINATED: 02/02/2016 PRO HAC VICE
La Rond Baker (See above for address) TERMINATED: 10/16/2015
Margaret Chen (See above for address) TERMINATED: 02/23/2017
Glenda Melinda Aldana Madrid (See above for address) ATTORNEY TO BE NOTICED
Matt Adams (See above for address) ATTORNEY TO BE NOTICED
represented by Kristin Macleod-Ball (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ahilan T Arulanantham (See above for address) ATTORNEY TO BE NOTICED
Emily Chiang (See above for address) ATTORNEY TO BE NOTICED
Emily Creighton (See above for address)

Plaintiff MRJ a minor, by and through his mother and Next Friend, Maria Jimenez
Plaintiff JRAP a minor by and through his Next Friend, Ingrid Perez
Plaintiff KNSM a minor, by and through her Next Friend, Eloisa Sarahi Mejia Sevilla, on behalf of themselves as individuals and on behalf of others similarly situated

TERMINATED: 02/02/2016 PRO HAC VICE
La Rond Baker (See above for address) TERMINATED: 10/16/2015
Margaret Chen (See above for address) TERMINATED: 02/23/2017
Glenda Melinda Aldana Madrid (See above for address) ATTORNEY TO BE NOTICED
Matt Adams (See above for address) ATTORNEY TO BE NOTICED
represented by Emily Chiang (See above for address) ATTORNEY TO BE NOTICED
Glenda Melinda Aldana Madrid (See above for address) ATTORNEY TO BE NOTICED
represented by Emily Chiang (See above for address) ATTORNEY TO BE NOTICED
Glenda Melinda Aldana Madrid (See above for address) ATTORNEY TO BE NOTICED
represented by Emily Chiang (See above for address) ATTORNEY TO BE NOTICED
Glenda Melinda Aldana Madrid (See above for address) ATTORNEY TO BE NOTICED

Plaintiff LJM a minor, by and through his mother and Next Friend, Maria Jimenez
Plaintiff EGC a minor, by and through his Next Friend, Sonia McLeod
Plaintiff AFMJ by and through her mother and Next Friend, Maria Jimenez

represented by Emily Chiang (See above for address) ATTORNEY TO BE NOTICED
Glenda Melinda Aldana Madrid (See above for address) ATTORNEY TO BE NOTICED
represented by Emily Chiang (See above for address) ATTORNEY TO BE NOTICED
Glenda Melinda Aldana Madrid (See above for address) ATTORNEY TO BE NOTICED
represented by Emily Chiang (See above for address) ATTORNEY TO BE NOTICED
Glenda Melinda Aldana Madrid (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Loretta Lynch Attorney General of the United States TERMINATED: 05/02/2019

represented by Christina B Parascandola US DEPARTMENT OF JUSTICE (BOX 23986) PO BOX 23986 WASHINGTON, DC 20026-3986 202-514-3097 Email: christina.parascandola@usdoj.gov ATTORNEY TO BE NOTICED
Colin A Kisor US DEPARTMENT OF JUSTICE (BOX 868) PO BOX 868

BEN FRANKLIN STATION WASHINGTON, DC 20044 202-532-4331 Email: colin.kisor@usdoj.gov ATTORNEY TO BE NOTICED
Elianis N Perez US DEPARTMENT OF JUSTICE (BOX 868) PO BOX 868 BEN FRANKLIN STATION WASHINGTON, DC 20044 202-616-9124 Email: elianis.perez@usdoj.gov ATTORNEY TO BE NOTICED
Erez Reuveni DEPARTMENT OF JUSTICE CIVIL DIVISION 450 5TH STREET NW WASHINGTON, DC 20549 202-307-4293 Email: erez.r.reuveni@usdoj.gov ATTORNEY TO BE NOTICED
Joseph A. Darrow US DEPARTMENT OF JUSTICE (BOX 868) PO BOX 868 BEN FRANKLIN STATION WASHINGTON, DC 20044 202-598-2445 Email: joseph.darrow@usdoj.gov ATTORNEY TO BE NOTICED
Leon Fresco DEPARTMENT OF JUSTICE 950 PENNSYLVANIA AVENUE NW, ROOM 3129 WASHINGTON, DC 20530 202-307-6482 Email: leon.fresco@usdoj.gov ATTORNEY TO BE NOTICED
Margaret Kuehne Taylor US DEPARTMENT OF JUSTICE

(BOX 868) PO BOX 868 BEN FRANKLIN STATION WASHINGTON, DC 20044 202-616-9323 Email: margaret.k.taylor@usdoj.gov ATTORNEY TO BE NOTICED
Nicole N. Murley US DEPARTMENT OF JUSTICE (BOX 878) PO BOX 878 BEN FRANKLIN STATION WASHINGTON, DC 20044 202-616-0473 Email: nicole.murley@usdoj.gov ATTORNEY TO BE NOTICED
Sarah S. Wilson US DEPARTMENT OF JUSTICE (BOX 868) PO BOX 868 BEN FRANKLIN STATION WASHINGTON, DC 20044 205-244-2140 Email: Sarah.Wilson2@usdoj.gov ATTORNEY TO BE NOTICED
Vinita Andrapalliyal US DEPARTMENT OF JUSTICE (BOX 868) PO BOX 868 BEN FRANKLIN STATION WASHINGTON, DC 20044 202-598-8085 Email: vinita.b.andrapalliyal@usdoj.gov ATTORNEY TO BE NOTICED
Walter Manning Evans US DEPARTMENT OF JUSTICE (BOX 878) PO BOX 878 BEN FRANKLIN STATION WASHINGTON, DC 20044 202-616-2186

Defendant
Juan P. Osuna Director, Executive Office for Immigration Review

Fax: 202-616-4923 Email: Manning.Evans@usdoj.gov ATTORNEY TO BE NOTICED
William Charles Silvis US DEPARTMENT OF JUSTICE (BOX 868) PO BOX 868 BEN FRANKLIN STATION WASHINGTON, DC 20044 202-307-4693 Email: william.silvis@usdoj.gov ATTORNEY TO BE NOTICED
Yamileth G Davila US DEPARTMENT OF JUSTICE (BOX 878) PO BOX 878 BEN FRANKLIN STATION WASHINGTON, DC 20044 202-305-0137 Email: yamileth.g.davila@usdoj.gov ATTORNEY TO BE NOTICED
represented by Christina B Parascandola (See above for address) ATTORNEY TO BE NOTICED
Colin A Kisor (See above for address) ATTORNEY TO BE NOTICED
Elianis N Perez (See above for address) ATTORNEY TO BE NOTICED
Erez Reuveni (See above for address) ATTORNEY TO BE NOTICED
Joseph A. Darrow (See above for address) ATTORNEY TO BE NOTICED
Leon Fresco

Defendant
Jeh C Johnson Secretary, Homeland Security

(See above for address) ATTORNEY TO BE NOTICED
Margaret Kuehne Taylor (See above for address) ATTORNEY TO BE NOTICED
Nicole N. Murley (See above for address) ATTORNEY TO BE NOTICED
Sarah S. Wilson (See above for address) ATTORNEY TO BE NOTICED
Vinita Andrapalliyal (See above for address) ATTORNEY TO BE NOTICED
Walter Manning Evans (See above for address) ATTORNEY TO BE NOTICED
William Charles Silvis (See above for address) ATTORNEY TO BE NOTICED
Yamileth G Davila (See above for address) ATTORNEY TO BE NOTICED
represented by Christina B Parascandola (See above for address) ATTORNEY TO BE NOTICED
Colin A Kisor (See above for address) ATTORNEY TO BE NOTICED
Elianis N Perez (See above for address) ATTORNEY TO BE NOTICED
Erez Reuveni (See above for address)

Defendant
Thomas S Winkowski Principal Deputy Assistant Secretary, U.S. Immigration and Customs Enforcement TERMINATED: 12/04/2015

ATTORNEY TO BE NOTICED
Joseph A. Darrow (See above for address) ATTORNEY TO BE NOTICED
Leon Fresco (See above for address) ATTORNEY TO BE NOTICED
Margaret Kuehne Taylor (See above for address) ATTORNEY TO BE NOTICED
Nicole N. Murley (See above for address) ATTORNEY TO BE NOTICED
Sarah S. Wilson (See above for address) ATTORNEY TO BE NOTICED
Vinita Andrapalliyal (See above for address) ATTORNEY TO BE NOTICED
Walter Manning Evans (See above for address) ATTORNEY TO BE NOTICED
William Charles Silvis (See above for address) ATTORNEY TO BE NOTICED
Yamileth G Davila (See above for address) ATTORNEY TO BE NOTICED
represented by Christina B Parascandola (See above for address) ATTORNEY TO BE NOTICED
Colin A Kisor (See above for address) ATTORNEY TO BE NOTICED

Defendant

Elianis N Perez (See above for address) ATTORNEY TO BE NOTICED
Erez Reuveni (See above for address) ATTORNEY TO BE NOTICED
Joseph A. Darrow (See above for address) ATTORNEY TO BE NOTICED
Leon Fresco (See above for address) ATTORNEY TO BE NOTICED
Margaret Kuehne Taylor (See above for address) ATTORNEY TO BE NOTICED
Nicole N. Murley (See above for address) ATTORNEY TO BE NOTICED
Sarah S. Wilson (See above for address) ATTORNEY TO BE NOTICED
Vinita Andrapalliyal (See above for address) ATTORNEY TO BE NOTICED
Walter Manning Evans (See above for address) ATTORNEY TO BE NOTICED
William Charles Silvis (See above for address) ATTORNEY TO BE NOTICED
Yamileth G Davila (See above for address) ATTORNEY TO BE NOTICED

Sylvia M Burwell Secretary, Health and Human Services

represented by Christina B Parascandola (See above for address) ATTORNEY TO BE NOTICED
Colin A Kisor (See above for address) ATTORNEY TO BE NOTICED
Elianis N Perez (See above for address) ATTORNEY TO BE NOTICED
Erez Reuveni (See above for address) ATTORNEY TO BE NOTICED
Joseph A. Darrow (See above for address) ATTORNEY TO BE NOTICED
Leon Fresco (See above for address) ATTORNEY TO BE NOTICED
Margaret Kuehne Taylor (See above for address) ATTORNEY TO BE NOTICED
Nicole N. Murley (See above for address) ATTORNEY TO BE NOTICED
Sarah S. Wilson (See above for address) ATTORNEY TO BE NOTICED
Vinita Andrapalliyal (See above for address) ATTORNEY TO BE NOTICED
Walter Manning Evans (See above for address) ATTORNEY TO BE NOTICED
William Charles Silvis (See above for address)

Defendant Sarah R Saldana Director, U.S. Immigration and Customs Enforcement
Defendant Leon Rodriguez Director, U.S. Citizenship and Immigration Services TERMINATED: 04/15/2016
Defendant Lisa McDaniel Field Office Director, ICE ERO

ATTORNEY TO BE NOTICED
Yamileth G Davila (See above for address) ATTORNEY TO BE NOTICED
represented by Vinita Andrapalliyal (See above for address) ATTORNEY TO BE NOTICED
Walter Manning Evans (See above for address) ATTORNEY TO BE NOTICED
William Charles Silvis (See above for address) ATTORNEY TO BE NOTICED
represented by Vinita Andrapalliyal (See above for address) ATTORNEY TO BE NOTICED
Walter Manning Evans (See above for address) ATTORNEY TO BE NOTICED
William Charles Silvis (See above for address) ATTORNEY TO BE NOTICED
represented by Christina B Parascandola (See above for address) ATTORNEY TO BE NOTICED
Colin A Kisor (See above for address) ATTORNEY TO BE NOTICED
Elianis N Perez (See above for address) ATTORNEY TO BE NOTICED

Defendant
Bryan Wilcox AFOD, ERO

Erez Reuveni (See above for address) ATTORNEY TO BE NOTICED
Joseph A. Darrow (See above for address) ATTORNEY TO BE NOTICED
Leon Fresco (See above for address) ATTORNEY TO BE NOTICED
Margaret Kuehne Taylor (See above for address) ATTORNEY TO BE NOTICED
Nicole N. Murley (See above for address) ATTORNEY TO BE NOTICED
Sarah S. Wilson (See above for address) ATTORNEY TO BE NOTICED
Vinita Andrapalliyal (See above for address) ATTORNEY TO BE NOTICED
Walter Manning Evans (See above for address) ATTORNEY TO BE NOTICED
William Charles Silvis (See above for address) ATTORNEY TO BE NOTICED
Yamileth G Davila (See above for address) ATTORNEY TO BE NOTICED
represented by Christina B Parascandola (See above for address) ATTORNEY TO BE NOTICED
Colin A Kisor

(See above for address) ATTORNEY TO BE NOTICED
Elianis N Perez (See above for address) ATTORNEY TO BE NOTICED
Erez Reuveni (See above for address) ATTORNEY TO BE NOTICED
Joseph A. Darrow (See above for address) ATTORNEY TO BE NOTICED
Leon Fresco (See above for address) ATTORNEY TO BE NOTICED
Margaret Kuehne Taylor (See above for address) ATTORNEY TO BE NOTICED
Nicole N. Murley (See above for address) ATTORNEY TO BE NOTICED
Sarah S. Wilson (See above for address) ATTORNEY TO BE NOTICED
Vinita Andrapalliyal (See above for address) ATTORNEY TO BE NOTICED
Walter Manning Evans (See above for address) ATTORNEY TO BE NOTICED
William Charles Silvis (See above for address) ATTORNEY TO BE NOTICED
Yamileth G Davila (See above for address) ATTORNEY TO BE NOTICED

Defendant
Robert Carey Director, Office of Refugee Resettlement

represented by Christina B Parascandola (See above for address) ATTORNEY TO BE NOTICED
Colin A Kisor (See above for address) ATTORNEY TO BE NOTICED
Elianis N Perez (See above for address) ATTORNEY TO BE NOTICED
Erez Reuveni (See above for address) ATTORNEY TO BE NOTICED
Joseph A. Darrow (See above for address) ATTORNEY TO BE NOTICED
Leon Fresco (See above for address) ATTORNEY TO BE NOTICED
Margaret Kuehne Taylor (See above for address) ATTORNEY TO BE NOTICED
Nicole N. Murley (See above for address) ATTORNEY TO BE NOTICED
Sarah S. Wilson (See above for address) ATTORNEY TO BE NOTICED
Vinita Andrapalliyal (See above for address) ATTORNEY TO BE NOTICED
Walter Manning Evans (See above for address) ATTORNEY TO BE NOTICED
William Charles Silvis

Defendant
William Barr Untied States Attorney General

(See above for address) ATTORNEY TO BE NOTICED
Yamileth G Davila (See above for address) ATTORNEY TO BE NOTICED
represented by Christina B Parascandola (See above for address) ATTORNEY TO BE NOTICED
Elianis N Perez (See above for address) ATTORNEY TO BE NOTICED
Erez Reuveni (See above for address) ATTORNEY TO BE NOTICED
Joseph A. Darrow (See above for address) ATTORNEY TO BE NOTICED
Leon Fresco (See above for address) ATTORNEY TO BE NOTICED
Margaret Kuehne Taylor (See above for address) ATTORNEY TO BE NOTICED
Nicole N. Murley (See above for address) ATTORNEY TO BE NOTICED
Sarah S. Wilson (See above for address) ATTORNEY TO BE NOTICED
Vinita Andrapalliyal (See above for address) ATTORNEY TO BE NOTICED
Walter Manning Evans (See above for address)

Amicus State of Washington

ATTORNEY TO BE NOTICED
William Charles Silvis (See above for address) ATTORNEY TO BE NOTICED
Yamileth G Davila (See above for address) ATTORNEY TO BE NOTICED
represented by Rebecca Ripoli Glasgow WASHINGTON STATE ATTORNEY GENERAL'S OFFICE PO BOX 40124 OLYMPIA, WA 98504 360-586-6494 Email: RebeccaG@atg.wa.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 07/09/2014 07/09/2014
07/09/2014 07/09/2014

# Docket Text
1 COMPLAINT against defendant(s) All Defendants (Receipt # 09813664259), filed by J FM, GDS, J E FM, MAM, G M GC, S R IC, D G FM, F LB. (Attachments: # 1 Exhibit Exhibit A, # 2 Civil Cover Sheet, # 3 Civil Cover Sheet)(Adams, Matt) (Entered: 07/09/2014)
2 MOTION to Certify Class by Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM. Oral Argument Requested. (Attachments: # 1 Exhibit Exhs. A-Q, # 2 Proposed Order, # 3 corporate disclosure statment) Noting Date 8/1/2014, (Adams, Matt) (Entered: 07/09/2014)
3 APPLICATION OF ATTORNEY Ahilan Arulanantham FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM (Fee Paid) Receipt No. 09813664747. (Adams, Matt) (Entered: 07/09/2014)
4 ORDER re 3 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Ahilan T Arulanantham for D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, and for MAM, by William M. McCool. (NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court,

07/09/2014 07/09/2014 07/09/2014 07/09/2014
07/09/2014 07/09/2014 07/09/2014 07/09/2014

pursuant to LCR 83.1(d))(No document associated with this docket entry, text only.)(DS) (Entered: 07/09/2014)
5 APPLICATION OF ATTORNEY Melissa Crow FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM (Fee Paid) Receipt No. 0981-3664872. (Adams, Matt) (Entered: 07/09/2014)
Judge Thomas S. Zilly added. (PM) (Entered: 07/09/2014)
6 APPLICATION OF ATTORNEY Carmen Iguina FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM (Fee Paid) Receipt No. 0981-3664893. (Adams, Matt) (Entered: 07/09/2014)
7 NOTICE REGARDING LACK OF PROPER SIGNATURE. The 1 Complaint filed on 7/9/2014 was improperly signed by Glenda Melinda Aldana Madrid, Theodore Angelis, Sarah Dunne and Todd L. Nunn. Pursuant to FRCP Rule 11 and LCR 83.2(a), signatures must comply with Section III(L) of the Electronic Filing Procedures, which states, "An electronically filed pleading or other document which requires an attorney's signature must have the signors' names printed or typed on the line and under all signature lines." Do not re-file this document;please be sure all future documents are properly signed. Thank you. (PM) (Entered: 07/09/2014)
8 APPLICATION OF ATTORNEY Talia Inlender FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM (Fee Paid) Receipt No. 0981-3664905. (Adams, Matt) (Entered: 07/09/2014)
9 APPLICATION OF ATTORNEY Kristen Jackson FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM (Fee Paid) Receipt No. 0981-3664924. (Adams, Matt) (Entered: 07/09/2014)
10 APPLICATION OF ATTORNEY Stephen Kang FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM (Fee Paid) Receipt No. 0981-3664931. (Adams, Matt) (Entered: 07/09/2014)
11 APPLICATION OF ATTORNEY Cecillia Wang FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM (Fee Paid) Receipt No. 0981-3664939. (Adams, Matt) (Entered: 07/09/2014)

07/09/2014 07/09/2014 07/09/2014 07/09/2014 07/09/2014 07/09/2014

12 APPLICATION OF ATTORNEY Beth Werlin FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM (Fee Paid) Receipt No. 0981-3664965. (Adams, Matt) (Entered: 07/09/2014)
13 ORDER re 5 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Melissa Crow for D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, and for MAM, by William M. McCool.(NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d)). (No document associated with this docket entry, text only.)(DS) Added language regarding Local Counsel on 7/9/2014 (DS). (Entered: 07/09/2014)
14 ORDER re 6 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Carmen G Iguina for D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, and for MAM, by William M. McCool. (NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d)).(No document associated with this docket entry, text only.)(DS) (Entered: 07/09/2014)
15 ORDER re 8 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Talia Inlender for D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, and for MAM, by William M. McCool. (NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d)).(No document associated with this docket entry, text only.)(DS) (Entered: 07/09/2014)
16 ORDER re 9 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Kristen Jackson for D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, and for MAM, by William M. McCool. (NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d)).(No document associated with this docket entry, text only.)(DS) (Entered: 07/09/2014)
17 ORDER re 10 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Stephen B Kang for D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, and for MAM, by William M. McCool. (NOTE TO COUNSEL: Local counsel agrees to sign all filings and to

07/09/2014
07/09/2014
07/10/2014 07/11/2014 07/18/2014 07/31/2014 07/31/2014

be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d)).(No document associated with this docket entry, text only.)(DS) (Entered: 07/09/2014)
18 ORDER re 11 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Cecillia Wang for D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, and for MAM, by William M. McCool. (NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d)).(No document associated with this docket entry, text only.)(DS) (Entered: 07/09/2014)
19 ORDER re 12 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Beth Werlin for D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, and for MAM, by William M. McCool. (NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d)). (No document associated with this docket entry, text only.)(DS) Added language regarding Local Counsel on 7/9/2014 (DS). (Entered: 07/09/2014)
20 PRAECIPE TO ISSUE SUMMONS re 1 Complaint by Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM. (Attachments: # 1 Summons - Asher, # 2 Summons - Burwell, # 3 Summons - Hamilton, # 4 Summons - Holder, # 5 Summons Johnson, # 6 Summons - Negash, # 7 Summons - Osuna, # 8 Summons - Winkowski)(Arulanantham, Ahilan) (Entered: 07/10/2014)
21 Summons Issued by clerk and mailed to pltf for service as to defendant(s) Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Eric H. Holder, Jeh Johnson, Eskinder Negash, Juan P. Osuna, Thomas S Winkowski. (TM) (Entered: 07/11/2014)
22 Summons electronically Issued. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons, # 7 Summons)(LMK) (Entered: 07/18/2014)
23 NOTICE of Appearance by attorney William Charles Silvis on behalf of Defendants Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Eric H. Holder, Jeh Johnson, Eskinder Negash, Juan P. Osuna, Thomas S Winkowski. (Silvis, William) (Entered: 07/31/2014)
24 MOTION for Preliminary Injunction by Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM. Oral Argument Requested.

07/31/2014 07/31/2014 07/31/2014 07/31/2014 07/31/2014 07/31/2014 07/31/2014 07/31/2014 07/31/2014 07/31/2014 07/31/2014

(Attachments: # 1 Proposed Order) Noting Date 8/22/2014, (Adams, Matt) (Entered: 07/31/2014)
25 EXHIBIT Declaration re 24 MOTION for Preliminary Injunction by Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB. (Attachments: # 1 Exhibit)(Adams, Matt) (Entered: 07/31/2014)
26 EXHIBIT re 24 MOTION for Preliminary Injunction by Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM. (Adams, Matt) (Entered: 07/31/2014)
27 EXHIBIT Declaration re 24 MOTION for Preliminary Injunction by Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM. (Adams, Matt) (Entered: 07/31/2014)
28 SEALED DOCUMENT EXHIBIT Declaration re 24 MOTION for Preliminary Injunction by Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM. (Adams, Matt) (PS). (Entered: 07/31/2014)
29 EXHIBIT Declaration re 24 MOTION for Preliminary Injunction by Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM. (Adams, Matt) (Entered: 07/31/2014)
30 EXHIBIT Declaration re 24 MOTION for Preliminary Injunction by Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM. (Adams, Matt) (Entered: 07/31/2014)
31 EXHIBIT Declaration re 24 MOTION for Preliminary Injunction by Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM. (Adams, Matt) (Entered: 07/31/2014)
32 EXHIBIT Declaration re 24 MOTION for Preliminary Injunction by Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM. (Adams, Matt) (Entered: 07/31/2014)
33 EXHIBIT Declaration re 24 MOTION for Preliminary Injunction by Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM. (Adams, Matt) (Entered: 07/31/2014)
34 EXHIBIT Declaration re 24 MOTION for Preliminary Injunction by Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM. (Adams, Matt) (Entered: 07/31/2014)
35 EXHIBIT Declaration re 24 MOTION for Preliminary Injunction by Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM. (Adams, Matt) (Entered: 07/31/2014)

07/31/2014 07/31/2014 08/01/2014 08/01/2014 08/01/2014 08/01/2014 08/05/2014 08/07/2014 08/07/2014 08/07/2014

36 Unopposed MOTION to Seal by Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM. (Attachments: # 1 Proposed Order) Noting Date 8/1/2014, (Adams, Matt) (Entered: 08/01/2014)
NOTICE of Docket Text Modification Sealed document due to unredacted document being filed in error, per counsel. (PS) (Entered: 08/01/2014)
37 EXHIBIT Declaration re 36 Unopposed MOTION to Seal by Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM. (Adams, Matt) (Entered: 08/01/2014)
38 SEALED DOCUMENT Exhibits A-F, Aldana Madrid Declaration by Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM re 36 Unopposed MOTION to Seal (Adams, Matt) (Entered: 08/01/2014)
39 NOTICE that the following is RE-NOTED: 2 MOTION to Certify Class . Filed by Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM. Noting Date 8/22/2014, (Adams, Matt) (Entered: 08/01/2014)
40 EXHIBIT Declaration of S.R.I.C. re 28 Exhibit by Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM. (Adams, Matt) (Entered: 08/01/2014)
Set/Reset Hearings: Telephone Conference set for 8/7/2014 at 10:00 AM before Judge Thomas S. Zilly. (CH) (Entered: 08/05/2014)
41 NOTICE of Appearance by attorney Elianis N Perez on behalf of Defendants Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Eric H. Holder, Jeh Johnson, Eskinder Negash, Juan P. Osuna, Thomas S Winkowski. (Perez, Elianis) (Entered: 08/07/2014)
42 NOTICE of Association of Attorney by Heidi Craig Garcia on behalf of Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM. (Garcia, Heidi) (Entered: 08/07/2014)
44 MINUTE ENTRY for proceedings held before Hon. Judge Thomas S. Zilly- Dep Clerk: Gail Glass; Pla Counsel: Matt Adams, Ahilan Arulanantham,Theodore Angelis, Hedi Craig Garcia and Stephen Kang; Def Counsel: William Silvin, Colin Kisor, Nichole Sardone, Elianis Perez, Yamileth Davila; CR: Nancy Bauer; Courtroom: Chambers;Telephone Conference held on 8/7/2014. Oral argument on the pending motions, docket nos. 2 and 24 , is set for Wednesday, September 3, 2014, at 9:00 a.m. Defendants' responses to the pending motions are due on August 18, 2014, and plaintiffs' replies

08/08/2014 08/12/2014 08/14/2014 08/15/2014
08/15/2014 08/15/2014 08/18/2014
08/18/2014

are due on Monday, August 25, 2014. Defendants may file a surreply, not to exceed twelve (12) pages in length, as to the jurisdictional issues only, on or before August 28, 2014. Motion Hearing set for 9/3/2014 at 09:00 AM in Courtroom 15206 before Judge Thomas S. Zilly. (GG) (Entered: 08/11/2014)
43 NOTICE of Appearance by attorney Colin A Kisor on behalf of Defendants Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Eric H. Holder, Jeh Johnson, Eskinder Negash, Juan P. Osuna, Thomas S Winkowski. (Kisor, Colin) (Entered: 08/08/2014)
45 MINUTE ORDER Granting Plaintiffs' Unopposed 36 Motion to Seal by Judge Thomas S. Zilly. (LMK) (Entered: 08/12/2014)
46 MOTION for Leave to File Brief of Amicus Curiae State of Washington by Amicus Rebecca R Glasgow. (Attachments: # 1 amicus curiae, # 2 Proposed Order) Noting Date 8/29/2014, (Glasgow, Rebecca) (Entered: 08/14/2014)
47 NOTICE of Appearance by attorney Yamileth G Davila on behalf of Defendants Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Eric H. Holder, Jeh Johnson, Eskinder Negash, Juan P. Osuna, Thomas S Winkowski. (Attachments: # 1 Certificate of Service)(Davila, Yamileth) (Entered: 08/15/2014)
48 CERTIFICATE OF SERVICE by Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM (Attachments: # 1 USPS Domestic Return Receipts)(Arulanantham, Ahilan) (Entered: 08/15/2014)
49 AFFIDAVIT of Service of Summons and Complaint on all defendants on 7/21/2014, filed by Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM. (Angelis, Theodore) (Entered: 08/15/2014)
50 NOTICE of Appearance by attorney Margaret Kuehne Taylor on behalf of Defendants Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Eric H. Holder, Jeh Johnson, Eskinder Negash, Juan P. Osuna, Thomas S Winkowski. (Taylor, Margaret) (Entered: 08/18/2014)
51 RESPONSE, by Defendants Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Eric H. Holder, Jeh Johnson, Eskinder Negash, Juan P. Osuna, Thomas S Winkowski, to 24 MOTION for Preliminary Injunction . (Attachments: # 1 Exhibit Order in Gonzalez Machado v. Ashcroft, No. 02 0066 (E.D. Wash.))(Silvis, William) (Entered: 08/18/2014)

08/18/2014 08/20/2014 08/21/2014 08/21/2014 08/22/2014
08/25/2014 08/25/2014

52 Image has been Restricted per the Request of filer; Document to be Re-filed. RESPONSE, by Defendants Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Eric H. Holder, Jeh Johnson, Eskinder Negash, Juan P. Osuna, Thomas S Winkowski, to 2 MOTION to Certify Class . (Attachments: # 1 Exhibit Exhibits A-I, # 2 Proposed Order)(Davila, Yamileth) Modified on 8/21/2014; Defendants' will refile redacted version of this document. (LMK). (Entered: 08/18/2014)
53 Unopposed MOTION for Leave to File Excess Pages -Plaintiffs' Unopposed Motion for Leave to File Over-Length Replies by Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM. (Attachments: # 1 Proposed Order) Noting Date 8/20/2014, (Angelis, Theodore) (Entered: 08/20/2014)
Plaintiffs' unopposed motion to exceed page limits, docket no. 53 , is GRANTED. Plaintiffs may include an additional six (6) pages in their replies, to be allocated between the two briefs as plaintiffs wish. (KK) (Entered: 08/21/2014)
Image in re to 52 Response has been Restricted per the Request of filer; Redacted Version of Document to be Re-filed by Defendant. (LMK) (Entered: 08/21/2014)
54 Stipulated MOTION to replace Defendants' Certification Opposition and Withdraw Docket Entry No. 52 by Defendants Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Eric H. Holder, Jeh Johnson, Eskinder Negash, Juan P. Osuna, Thomas S Winkowski. (Attachments: # 1 Proposed Order Proposed Order Granting Stipulation To Replace and Withdraw Defendants' Certification Opposition, # 2 Exhibit Defendants' Replacement Certification Opposition, # 3 Exhibit Defendants' Replacement Exhibits to Certification Opposition, # 4 Exhibit Defendants' Replacement Proposed Order Denying Certification) Noting Date 8/22/2014, (Davila, Yamileth) (Entered: 08/22/2014)
55 DISREGARD THIS FILING. FILED IN ERROR PER COUNSEL. CORRECTLY FILED AS 61 DECLARATION of Jojo Annobil, Esq. filed by Plaintiffs D G FM, J FM, J E FM, G M GC, GDS re 24 MOTION for Preliminary Injunction , 2 MOTION to Certify Class (Arulanantham, Ahilan) (PS). (Entered: 08/25/2014)
56 DISREGARD THIS FILING. FILED IN ERROR PER COUNSEL. CORRECTLY FILED AS 62 DECLARATION of Erin Apte filed by Plaintiffs D G FM, J FM, J E FM, G M GC, GDS re 24 MOTION for Preliminary Injunction , 2 MOTION to Certify Class (Arulanantham, Ahilan) (PS). (Entered: 08/25/2014)

08/25/2014 08/25/2014 08/25/2014 08/25/2014 08/25/2014 08/25/2014 08/25/2014 08/25/2014 08/25/2014 08/25/2014

57 DECLARATION of William O. Holston, Jr., Esq. filed by Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM re 24 MOTION for Preliminary Injunction , 2 MOTION to Certify Class (Arulanantham, Ahilan) (Entered: 08/25/2014)
58 DECLARATION of Cheryl Pollman filed by Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM re 24 MOTION for Preliminary Injunction , 2 MOTION to Certify Class (Arulanantham, Ahilan) (Entered: 08/25/2014)
59 DECLARATION of David B. Thronson filed by Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM re 24 MOTION for Preliminary Injunction , 2 MOTION to Certify Class (Arulanantham, Ahilan) (Entered: 08/25/2014)
60 DECLARATION of Scott Bratton, Esq. filed by Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM re 24 MOTION for Preliminary Injunction , 2 MOTION to Certify Class (Arulanantham, Ahilan) (Entered: 08/25/2014)
61 DECLARATION of Jojo Annobil, Esq. filed by Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM re 24 MOTION for Preliminary Injunction , 2 MOTION to Certify Class (Arulanantham, Ahilan) (Entered: 08/25/2014)
62 DECLARATION of Erin Apte filed by Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM re 24 MOTION for Preliminary Injunction , 2 MOTION to Certify Class (Arulanantham, Ahilan) (Entered: 08/25/2014)
63 DECLARATION of Tin Than Nguyen, Esq. filed by Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM re 24 MOTION for Preliminary Injunction , 2 MOTION to Certify Class (Arulanantham, Ahilan) (Entered: 08/25/2014)
64 DECLARATION of Sonia Gutierrez filed by Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM re 24 MOTION for Preliminary Injunction , 2 MOTION to Certify Class (Arulanantham, Ahilan) (Entered: 08/25/2014)
NOTICE of Docket Text Modification re 55 Declaration, : DISREGARD THIS FILING. FILED IN ERROR PER COUNSEL. CORRECTLY FILED AS #61 (PS) (Entered: 08/25/2014)
NOTICE of Docket Text Modification re 56 Declaration, : DISREGARD THIS FILING. FILED IN ERROR PER COUNSEL. CORRECTLY FILED AS #62 (PS) (Entered: 08/25/2014)

08/25/2014 08/25/2014 08/26/2014 08/27/2014 08/28/2014
08/28/2014 08/30/2014

65 REPLY, filed by Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM, TO RESPONSE to 2 MOTION to Certify Class (Adams, Matt) (Entered: 08/25/2014)
66 REPLY, filed by Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM, TO RESPONSE to 24 MOTION for Preliminary Injunction (Arulanantham, Ahilan) (Entered: 08/25/2014)
67 SUPPLEMENT re 59 Declaration by Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM (Attachments: # 1 Curriculum Vitae of David B. Thronson)(Arulanantham, Ahilan) (Entered: 08/26/2014)
68 NOTICE of Appearance by attorney Leon Fresco on behalf of Defendants Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Eric H. Holder, Jeh Johnson, Eskinder Negash, Juan P. Osuna, Thomas S Winkowski. (Fresco, Leon) (Entered: 08/27/2014)
69 NOTICE of Request for Video Recording of Motion Hearing on 9/3/2014, at 9:00 a.m. before Thomas S. Zilly. Parties must submit PARTY RESPONSE TO REQUEST FOR VIDEO RECORDING before Tuesday, 9/2/2014, by 1:00 p.m. Please Note: This form must not be filed electronically with the Court. (GG) (Entered: 08/28/2014)
70 SURREPLY filed by Defendants Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Eric H. Holder, Jeh Johnson, Eskinder Negash, Juan P. Osuna, Thomas S Winkowski re 24 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit)(Silvis, William) (Entered: 08/28/2014)
At the hearing scheduled for September 3, 2014, the Court intends to hear argument in the following sequence. First, the Court will hear argument on the jurisdictional issues, with each side having 30 minutes. With regard to the effect of 8 U.S.C. § 1252(b)(9), in addition to the authorities cited in their briefs, counsel shall be prepared to discuss the following cases: McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479 (1991); Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43 (1993); City of Rialto v. W. Coast Loading Corp., 581 F.3d 865 (9th Cir. 2009); Proyecto San Pablo v. INS, 189 F.3d 1130 (9th Cir. 1999); and Ortiz v. Meissner, 179 F.3d 718 (9th Cir. 1999). With regard to the relief sought by plaintiffs, counsel shall also be prepared to discuss the effect of 8 U.S.C. § 1252(f). Second, the Court will hear argument on the merits of the motion for preliminary injunction, with each side having 20 minutes. Finally, the Court will hear argument on the motion for class certification, with each side having 15 minutes. (KK) (Entered: 08/30/2014)

09/02/2014 09/02/2014 09/03/2014 09/03/2014
09/04/2014 09/05/2014

71 NOTIFICATION REGARDING PROPOSED VIDEO RECORDING. All parties have consented to the video recording of the Motion Hearing on 9/3/2014 at 9:00 a.m.. Unless otherwise ordered by the presiding judge, the proceeding will be video recorded as part of the CAMERAS Pilot Project. (ELS) (Entered: 09/02/2014)
72 MINUTE ORDER by Judge Thomas S. Zilly. The State of Washingtons unopposed motion for leave to participate as amicus curiae, docket no. 46 is GRANTED. The State of Washington will not be permitted to present oral argument at the hearing scheduled for September 3, 2014. The parties stipulated motion to replace defendants response to plaintiffs motion for class certification, docket no. 54 is GRANTED. Defendants original brief and supporting materials, docket no. 52, shall remain under seal.(LMK) (Entered: 09/02/2014)
73 AMENDED COMPLAINT against defendant(s) Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Eric H. Holder, Jeh Johnson, Eskinder Negash, Juan P. Osuna, Thomas S Winkowski, filed by J FM, GDS, J E FM, G M GC, D G FM.(Angelis, Theodore) (Entered: 09/03/2014)
76 MINUTE ENTRY for proceedings held before Hon. Judge Thomas S. Zilly- Dep Clerk: Gail Glass ; Pla Counsel: Ahilan Arulanantham, Matt Adams, Stephan Kang and Kristen Jackson; Def Counsel: Leon Fresco, William Silvis, Jeff Rosenblum and Brea Burgie; CR: Kari McGrath; Time of Hearing: 9:00a.m.; Courtroom: 15206;Motion Hearing held on 9/3/2014. The Court hears oral argument concerning plaintiffs' motion for class certification, docket no. 2 , and plaintiffs' motion for preliminary injunction, docket no. 24 . The Court takes both motions under advisement. Plaintiffs are granted leave to file an amended complaint, and they are directed to electronically file their amended complaint as soon as possible. (GG) (Entered: 09/08/2014)
74 PRAECIPE to attach document Corrected re 73 Amended Complaint by Plaintiffs D G FM, J FM, J E FM, G M GC, GDS (Attachments: # 1 Errata Amended Complaint-Class Action)(Angelis, Theodore) (Entered: 09/04/2014)
75 NOTICE of Immigration Proceedings re 24 MOTION for Preliminary Injunction ; filed by Defendants Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Eric H. Holder, Jeh Johnson, Eskinder Negash, Juan P. Osuna, Thomas S Winkowski. (Attachments: # 1 Exhibit JEFM Continuance, # 2 Exhibit JFM Continuance, # 3 Exhibit DGFM Continuance)(Silvis, William) (Entered: 09/05/2014)

09/09/2014 09/09/2014 09/17/2014 09/19/2014
09/29/2014
10/10/2014
10/10/2014 10/20/2014 10/21/2014

77 RESPONSE by Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM re 75 Notice-Other, (Adams, Matt) (Entered: 09/09/2014)
78 DECLARATION of Glenda M. Aldana Madrid re 77 Response (non motion) by Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM (Adams, Matt) (Entered: 09/09/2014)
79 NOTICE of Appearance by attorney Erez Reuveni on behalf of Defendants Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Eric H. Holder, Jeh Johnson, Eskinder Negash, Juan P. Osuna, Thomas S Winkowski. (Reuveni, Erez) (Entered: 09/17/2014)
80 MOTION to Dismiss For Lack of Subject Matter Jurisdiction and Failure to State a Claim by Defendants Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Eric H. Holder, Jeh Johnson, Eskinder Negash, Juan P. Osuna, Thomas S Winkowski. (Attachments: # 1 Proposed Order) Noting Date 10/17/2014, (Reuveni, Erez) (Entered: 09/19/2014)
81 ORDER by Judge Thomas S. Zilly. Plaintiffs 24 Motion for a preliminary injunction is DENIED. Plaintiffs 2 Motion for Class Certification is DEFERRED, and will be considered after the Court rules on defendants recently filed motion to dismiss, and only upon a finding that the Court has jurisdiction to consider the underlying claims. (LMK) (Entered: 09/29/2014)
82 NOTICE that the following is RE-NOTED: 80 MOTION to Dismiss For Lack of Subject Matter Jurisdiction and Failure to State a Claim. Filed by Defendants Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Eric H. Holder, Jeh Johnson, Eskinder Negash, Juan P. Osuna, Thomas S Winkowski. Noting Date 10/31/2014, (Silvis, William) (Entered: 10/10/2014)
83 STIPULATION AND PROPOSED ORDER re briefing schedule for the motion to dismiss the amended complaint by parties (Silvis, William) (Entered: 10/10/2014)
84 STIPULATION AND ORDER re 83 Stipulation filed re briefing schedule for the motion to dismiss the amended complaint by parties by Judge Thomas S. Zilly. (LMK) (Entered: 10/20/2014)
85 RESPONSE, by Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM, to 80 MOTION to Dismiss For Lack of Subject Matter Jurisdiction and Failure to State a Claim. (Arulanantham, Ahilan) (Entered: 10/21/2014)

10/21/2014 10/28/2014
10/29/2014 10/29/2014
11/10/2014 11/12/2014 11/14/2014 11/14/2014

86 MOTION for Leave to File Second Amended Complaint by Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM. (Attachments: # 1 Exhibit A_Proposed Second Amended Complaint, # 2 Proposed Order) Noting Date 11/7/2014, (Arulanantham, Ahilan) (Entered: 10/21/2014)
87 MOTION for Extension of Time to file opposition to motion to file a second amended complaint and to file a reply in support of the motion to dismiss or, in the alternative, request for a status conference by Defendants Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Eric H. Holder, Jeh Johnson, Eskinder Negash, Juan P. Osuna, Thomas S Winkowski. (Attachments: # 1 Proposed Order) Noting Date 11/7/2014, (Silvis, William) (Entered: 10/28/2014)
88 RESPONSE, by Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM, to 87 MOTION for Extension of Time to file opposition to motion to file a second amended complaint and to file a reply in support of the motion to dismiss or, in the alternative, request for a status conference. (Adams, Matt) (Entered: 10/29/2014)
Defendants' motion for extension, docket no. 87 , is GRANTED. Plaintiffs' motion for leave to amend, docket no. 86 , is RENOTED to November 14, 2014, and the noting date for defendants' motion to dismiss, docket no. 80 , is STRICKEN. The noting date for defendants' motion to dismiss will be reset after the Court rules on plaintiffs' motion for leave to amend. Counsel (Matt Adams, Ahilan Arulanantham, and Stephen Kang for plaintiffs, and Leon Fresco, Erez Reuveni, and William Silvis for defendants) were advised of this ruling via telephonic conference call. (KK) (Entered: 10/29/2014)
89 RESPONSE, by Defendants Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Eric H. Holder, Jeh Johnson, Eskinder Negash, Juan P. Osuna, Thomas S Winkowski, to 86 MOTION for Leave to File Second Amended Complaint. (Attachments: # 1 Exhibit Kang letter)(Silvis, William) (Entered: 11/10/2014)
90 Stipulated MOTION and Order Regarding Leave to File Over-Length Reply in Support of Plaintiffs' Motion for Leave to File Second Amended Complaint by Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM. Noting Date 11/12/2014, (Garcia, Heidi) (Entered: 11/12/2014)
91 MINUTE ORDER Granting 90 Stipulated Motion by Judge Thomas S. Zilly.(LMK) (Entered: 11/14/2014)
92 REPLY, filed by Plaintiffs D G FM, J FM, J E FM, G M GC, GDS, S R IC, F LB, MAM, TO RESPONSE to 86 MOTION for Leave to

File Second Amended Complaint (Angelis, Theodore) (Entered: 11/14/2014)

11/24/2014

93 STIPULATION AND PROPOSED ORDER Regarding Filing of Documents Containing Confidential Information by parties (Garcia, Heidi) (Entered: 11/24/2014)

11/26/2014

94 MINUTE ORDER by Judge Thomas S. Zilly. Plaintiffs' 86 Motion for Leave to Amend is Granted, Plaintiffs are Directed to electronically file their second amended complaint within 7 days of this Minute Order. Defendants' 80 MOTION to Dismiss is Renoted to 1/30/2015. Plaintiffs' 2 Motion to Certify Class is Stricken without prejudice. (LMK) (Entered: 11/26/2014)

12/01/2014

95 Second AMENDED COMPLAINT --Class Action, against defendant(s) All Defendants Attorney Matt Adams added to party A.E.G.E. (pty:pla), Attorney Matt Adams added to party G.J.C.P.(pty:pla), Attorney Matt Adams added to party J.E.V.G.(pty:pla), filed by J FM, GDS, J E FM, MAM, G M GC, S R IC, D G FM, F LB, J.E.V.G., A.E.G.E., G.J.C.P.. (Attachments: # 1 Exhibit)(Adams, Matt) (Entered: 12/01/2014)

12/19/2014

96 STIPULATED ORDER Regarding Filing of Documents Containing Confidential Information by Judge Thomas S. Zilly re 93 Stipulation. (LMK) (Entered: 12/19/2014)

01/08/2015

97 MEMORANDUM filed by Defendants Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Eric H. Holder, Jeh Johnson, Eskinder Negash, Juan P. Osuna, Thomas S Winkowski re 80 MOTION to Dismiss For Lack of Subject Matter Jurisdiction and Failure to State a Claim Supplemental Brief in Support of Motion to Dismiss (Silvis, William) (Entered: 01/08/2015)

01/26/2015

98 RESPONSE, by Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM, to 80 MOTION to Dismiss For Lack of Subject Matter Jurisdiction and Failure to State a Claim. (Adams, Matt) (Entered: 01/26/2015)

01/26/2015

99 DECLARATION of Sarah Dubale in support of Plaintiffs' Brief Supplementing Their Opposition to Defendants' Motion to Dismiss filed by Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM re 80 MOTION to Dismiss For Lack of Subject Matter Jurisdiction and Failure to State a Claim (Adams, Matt) (Entered: 01/26/2015)

01/26/2015 100 DECLARATION of Rachel Flores in support of Plaintiffs' Brief Supplementing Their Opposition to Defendants' Motion to Dismiss

filed by Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM re 80 MOTION to Dismiss For Lack of Subject Matter Jurisdiction and Failure to State a Claim (Adams, Matt) (Entered: 01/26/2015)

01/26/2015

101 DECLARATION of Joanna Marie Gaughan in support of Plaintiffs' Brief Supplementing Their Opposition to Defendants' Motion to Dismiss filed by Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM re 80 MOTION to Dismiss For Lack of Subject Matter Jurisdiction and Failure to State a Claim (Adams, Matt) (Entered: 01/26/2015)

01/26/2015

102 DECLARATION of Cheryl Pollman in support of Plaintiffs' Brief Supplementing Their Opposition to Defendants' Motion to Dismiss filed by Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM re 80 MOTION to Dismiss For Lack of Subject Matter Jurisdiction and Failure to State a Claim (Adams, Matt) (Entered: 01/26/2015)

01/26/2015

103 DECLARATION of Rebecca Scholtz in support of Plaintiffs' Brief Supplementing Their Opposition to Defendants' Motion to Dismiss filed by Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM re 80 MOTION to Dismiss For Lack of Subject Matter Jurisdiction and Failure to State a Claim (Adams, Matt) (Entered: 01/26/2015)

01/30/2015

104 REPLY, filed by Defendants Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Eric H. Holder, Jeh Johnson, Eskinder Negash, Juan P. Osuna, Thomas S Winkowski, TO RESPONSE to 80 MOTION to Dismiss For Lack of Subject Matter Jurisdiction and Failure to State a Claim (Silvis, William) (Entered: 01/30/2015)

02/04/2015

105 MINUTE ORDER by Judge Thomas S. Zilly re 80 MOTION to Dismiss For Lack of Subject Matter Jurisdiction and Failure to State a Claim. Oral Argument on Defendant's 80 Motion to Dismiss is scheduled 3/6/2015 at 10:00 AM before Judge Thomas S. Zilly.(LMK) (Entered: 02/04/2015)

02/06/2015

106 NOTICE of Request for Video Recording of Motion to Dismiss on 3/6/2015 at 10:00 a.m., before Hon. Thomas S. Zilly. Parties must submit PARTY RESPONSE TO REQUEST FOR VIDEO RECORDING before 2/13/2015. Please Note: This form must not be filed electronically with the Court. (GG) (Entered: 02/06/2015)

02/10/2015

107 NOTICE of Voluntary Dismissal as to party(s) G M GC (a minor, by and through her father and Next Friend, Juan Guerrero Diaz, on behalf of themselves as individuals and on behalf of others similarly situated)

and S R IC (a minor, by and through his father and Next Friend, Hector Rolando Ixcoy), filed by Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM. (Arulanantham, Ahilan) (Entered: 02/10/2015)

02/12/2015

108 NOTIFICATION REGARDING PROPOSED VIDEO RECORDING. At least one party or the presiding judge has opposed the request to video record, or a party has failed to respond. The Motion to Dismiss on 3/6/2015 at 10:00 a.m. will not be video recorded. (GG) (Entered: 02/12/2015)

03/06/2015

109 MINUTE ENTRY for proceedings held before Hon. Judge Thomas S. Zilly- Dep Clerk: Gail Glass; Pla Counsel: Ahilan Arulanantham, Matt Adams, Stephan Kang, Heidi Garcia, Talia Inlender, Glenda Alana and Theodore "Theo" Angelis; Def Counsel: Leon Fresco, William Silvis and Daniel Cicchini; CR: Nancy Bauer; Time of Hearing: 11:00 a.m.; Courtroom: 15206; Motion Hearing held on 3/6/2015. The Court hears oral argument concerning defendants' motion to dismiss for lack of subject matter jurisdiction and failure to state a claim, docket no. 80 . The Court takes the matter under advisement.(GG) (Entered: 03/12/2015)

03/23/2015 110 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of motion to dismiss held on 3/6/2015 before Judge Thomas S. Zilly.

Parties have ten (10) 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.

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. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.

To purchase a copy of the transcript, contact court reporter Nancy Bauer, nancy_bauer@wawd.uscourts.gov, 206-370-8506.

Release of Transcript Restriction set for 6/22/2015, (NB) (Main Document 110 replaced on 4/14/2015) (SG). (Entered: 03/23/2015)

03/27/2015

111 APPLICATION OF ATTORNEY Emily Creighton FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM (Fee

Paid) Receipt No. 0981-3958927 (Aldana Madrid, Glenda) (Entered: 03/27/2015)

03/27/2015

112 ORDER re 111 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Emily Creighton for A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, and for MAM, by Clerk William M McCool. No document associated with this docket entry, text only.

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 03/27/2015)

04/06/2015

113 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion Hearing held on 9/3/2014 before Judge Thomas S. Zilly.<p>Parties have ten (10) 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.<p>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. Information regarding the policy can be found on the court's website at <a href= http://www.wawd.uscourts.gov target=_blank>www.wawd.uscourts.gov</a>.<p>To purchase a copy of the transcript, contact court reporter Kari McGrath, kari.mcgrath@yahoo.com, 206-387-5762. Release of Transcript Restriction set for 7/6/2015, (KM) (Entered: 04/06/2015)

04/13/2015 114 ORDER Granting in Part and Denying in Part Defendants' 80 Motion to Dismiss by Judge Thomas S. Zilly. (LMK) (Entered: 04/13/2015)

04/16/2015

115 NOTICE of Appearance by attorney La Rond Baker on behalf of Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM. (Baker, La Rond) (Entered: 04/16/2015)

04/16/2015

116 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Sarah A Dunne for Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM. (Baker, La Rond) (Entered: 04/16/2015)

04/16/2015

117 MOTION to Certify Class by Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM. Oral Argument Requested. (Attachments: # 1 Exhibit, # 2 Proposed Order,

# 3 Supplement) Noting Date 5/8/2015, (Adams, Matt) (Entered: 04/16/2015)

04/16/2015

118 DECLARATION of Glenda M. Aldana Madrid filed by Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM re 117 MOTION to Certify Class (Adams, Matt) (Entered: 04/16/2015)

04/16/2015

119 DECLARATION of Eve Stotland filed by Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM re 117 MOTION to Certify Class (Adams, Matt) (Entered: 04/16/2015)

04/16/2015

120 DECLARATION of Ana Herrera filed by Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM re 117 MOTION to Certify Class (Adams, Matt) (Entered: 04/16/2015)

04/16/2015

121 DECLARATION of Daniel J. Sharp filed by Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM re 117 MOTION to Certify Class (Adams, Matt) (Entered: 04/16/2015)

04/16/2015

122 DECLARATION of Mirta Laura Contreras filed by Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM re 117 MOTION to Certify Class (Adams, Matt) (Entered: 04/16/2015)

04/16/2015

123 DECLARATION of Matt Adams filed by Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM re 117 MOTION to Certify Class (Adams, Matt) (Entered: 04/16/2015)

04/16/2015

124 DECLARATION of Ahilan Arulanantham filed by Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM re 117 MOTION to Certify Class (Adams, Matt) (Entered: 04/16/2015)

04/16/2015

125 DECLARATION of Melissa Crow filed by Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM re 117 MOTION to Certify Class (Adams, Matt) (Entered: 04/16/2015)

04/16/2015

126 DECLARATION of Kristen Jackson filed by Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM re 117 MOTION to Certify Class (Adams, Matt) (Entered: 04/16/2015)

04/22/2015

127 MINUTE ORDER by Judge Thomas S. Zilly. The Court sets the following deadlines; FRCP 26f Conference Deadline is 5/15/2015, Initial Disclosure Deadline is 5/29/2015, Combined Joint Status Report and Discovery Plan due by 5/29/2015. (LMK) (Entered: 04/22/2015)

04/24/2015

128 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Beth Werlin for Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM. (Werlin, Beth) (Entered: 04/24/2015)

04/27/2015

129 MOTION for Reconsideration re 114 Order on Motion to Dismiss by Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM. (Attachments: # 1 Proposed Order) Noting Date 4/27/2015, (Arulanantham, Ahilan) (Entered: 04/27/2015)

04/27/2015

130 DECLARATION of Talia Inlender in Support of Plaintiff's Motion for Partial Reconsideration filed by Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM re 129 MOTION for Reconsideration re 114 Order on Motion to Dismiss (Attachments: # 1 Exhibits, # 2 Certificate of Service)(Arulanantham, Ahilan) (Main Document 130 replaced on 4/28/2015) (LMK). (Entered: 04/27/2015)

04/28/2015

131 NOTICE of Corrected Image/Document re 130 Declaration (only Declaration). (Service of corrected image is attached). Initial filing of Declaration was not viewable, corrected image replaced. (LMK) (Entered: 04/28/2015)

05/01/2015

132 MOTION to Certify issue for appeal pursuant to 8 U.S.C. § 1292(b) by Defendants Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Eric H. Holder, Jeh Johnson, Eskinder Negash, Juan P. Osuna. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 5/22/2015, (Reuveni, Erez) (Entered: 05/01/2015)

05/01/2015

133 MOTION hold all deadlines in abeyance pending resolution of ECF 132 motion to certify an appeal and stay proceedings re 132 MOTION to Certify issue for appeal pursuant to 8 U.S.C. § 1292(b) by Defendants Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Eric H. Holder, Jeh Johnson, Eskinder Negash, Juan P. Osuna, Thomas S Winkowski. (Attachments: # 1 Proposed Order) Noting Date 5/22/2015, (Reuveni, Erez) (Entered: 05/01/2015)

05/04/2015

134 NOTICE of Appearance by attorney Sarah S. Wilson on behalf of Defendants Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Eric H. Holder, Jeh Johnson, Eskinder Negash, Juan P. Osuna, Thomas S Winkowski. (Wilson, Sarah) (Entered: 05/04/2015)

05/04/2015

135 RESPONSE, by Defendants Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Eric H. Holder, Jeh Johnson, Eskinder Negash, Juan P. Osuna, Thomas S Winkowski, to 117 MOTION to Certify Class . Oral Argument Requested. (Wilson, Sarah) (Entered: 05/04/2015)

05/05/2015

136 MINUTE ORDER by Judge Thomas S. Zilly. Plaintiffs' 129 Motion for Reconsideration is Denied; Defendants' 133 Motion to Hold all Deadlines in Abeyance is Denied in Part and Deferred in Part; Plaintiffs' 117 Motion for Class Certification is Renoted to 5/22/2015; Defendants' motion to hold all deadlines in abeyance is otherwise DEFERRED, and remains noted for May 22, 2015. Loretta E. Lynch, in her official capacity as Attorney General of the United States, is hereby SUBSTITUTED for Eric H. Holder as a defendant in this action. SEE ORDER FOR FURTHER DETAILS.(LMK) (Entered: 05/05/2015)

05/12/2015

137 APPLICATION OF ATTORNEY Kristin Macleod-Ball FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM (Fee Paid) Receipt No. 0981-4013258 (Attachments: # 1 Certificate of Service)(Aldana Madrid, Glenda) (Entered: 05/12/2015)

05/12/2015

138 ORDER re 137 Application for Leave to Appear Pro Hac Vice,. The Court ADMITS Attorney Kristin Macleod-Ball for A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, and for MAM, by Clerk William M McCool. No document associated with this docket entry, text only.

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 05/12/2015)

05/12/2015

139 NOTICE REGARDING REPRESENTATION STATUS OF PLAINTIFF J.E.V.G. ; filed by Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., GDS, J.E.V.G., F LB, MAM. (Arulanantham, Ahilan) (Entered: 05/12/2015)

05/15/2015

140 RESPONSE by Defendants Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Jeh Johnson, Loretta E. Lynch, Eskinder Negash, Juan P. Osuna, Thomas S Winkowski re 139 Notice-Other to Notice Regarding Representation Status of Plaintiff J.E.V.G. (Silvis, William) (Entered: 05/15/2015)

05/18/2015

141 RESPONSE, by Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM, to 132 MOTION to Certify issue for appeal pursuant to 8 U.S.C. § 1292(b). (Arulanantham, Ahilan) (Entered: 05/18/2015)

05/18/2015

142 RESPONSE, by Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, S R IC, J.E.V.G., F LB, MAM, to 133 MOTION hold all deadlines in abeyance pending resolution of ECF 132 motion to certify an appeal and stay proceedings re 132 MOTION to Certify issue for appeal pursuant to 8 U.S.C. § 1292(b) . (Arulanantham, Ahilan) (Entered: 05/18/2015)

05/18/2015

143 DECLARATION of Stephen Kang of May 18, 2015 re 142 Response to Motion, by Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM (Attachments: # 1 Exhibits A-H, # 2 Certificate of Service)(Arulanantham, Ahilan) (Entered: 05/18/2015)

05/19/2015

144 MINUTE ORDER by Judge Thomas S. Zilly. Plaintiff's 117 MOTION for Class Certification is Renoted to 5/29/2015. Plaintiffs' reply is due on the new noting date. (LMK) (Entered: 05/19/2015)

05/20/2015

145 NOTICE that the following is RE-NOTED: 132 MOTION to Certify issue for appeal pursuant to 8 U.S.C. § 1292(b). Filed by Defendants Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Jeh Johnson, Loretta E. Lynch, Eskinder Negash, Juan P. Osuna, Thomas S Winkowski. Noting Date 5/29/2015, (Silvis, William) (Entered: 05/20/2015)

05/20/2015

146 NOTICE that the following is RE-NOTED: 133 MOTION hold all deadlines in abeyance pending resolution of ECF 132 motion to certify an appeal and stay proceedings re 132 MOTION to Certify issue for appeal pursuant to 8 U.S.C. § 1292(b) . Filed by Defendants Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Jeh Johnson, Loretta E. Lynch, Eskinder Negash, Juan P. Osuna, Thomas S Winkowski. Noting Date 5/29/2015, (Silvis, William) (Entered: 05/20/2015)

05/20/2015

147 Unopposed MOTION for Leave to File Excess Pages by Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM. (Attachments: # 1 Proposed Order) Noting Date 5/20/2015, (Adams, Matt) (Entered: 05/20/2015)

05/21/2015

148 MINUTE ORDER by Judge Thomas S. Zilly. Defendants have improperly renoted their motions to certify this matter for interlocutory appeal, docket no. 132, and to hold all deadlines in abeyance, docket no. 133. A moving party may not renote its pending motion after a response to the motion has been filed, and thereby extend the deadline for filing a reply. Defendants' motions remain noted for May 22, 2015, and replies are due May 22, 2015. Plaintiffs' 147 Unopposed Motion for Leave to File an Overlength Reply is Granted. (LMK) (Entered: 05/21/2015)

05/21/2015

149 STIPULATION Re-Noting Motion to Certify a Legal Question for Appeal by parties re 132 MOTION to Certify issue for appeal pursuant to 8 U.S.C. § 1292(b) (Silvis, William) (Entered: 05/21/2015)

05/21/2015

150 STIPULATION Re-Noting Motion to Hold All Deadlines in Abeyance by parties re 133 MOTION hold all deadlines in abeyance pending resolution of ECF 132 motion to certify an appeal and stay proceedings re 132 MOTION to Certify issue for appeal pursuant to 8 U.S.C. § 1292(b) (Silvis, William) (Entered: 05/21/2015)

05/21/2015

Per Parties' Stipulation (Dkt. 149 and 150) and Chambers; Noting Date Reset re 132 MOTION to Certify and 133 MOTION hold all deadlines in abeyance. Noting Date for both Motions has been reset for 5/29/2015. (LMK) (Entered: 05/21/2015)

05/22/2015

151 ANSWER to 95 Amended Complaint, by Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Jeh Johnson, Loretta E. Lynch, Eskinder Negash, Juan P. Osuna, Thomas S Winkowski.(Silvis, William) (Entered: 05/22/2015)

05/27/2015

152 REPLY, filed by Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM, TO RESPONSE to 117 MOTION to Certify Class (Adams, Matt) (Entered: 05/27/2015)

05/29/2015

153 REPLY, filed by Defendants Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Jeh Johnson, Loretta E. Lynch, Eskinder Negash, Juan P. Osuna, Thomas S Winkowski, TO RESPONSE to 132 MOTION to Certify issue for appeal pursuant to 8 U.S.C. § 1292(b) (Wilson, Sarah) (Entered: 05/29/2015)

05/29/2015

154 REPLY, filed by Defendants Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Jeh Johnson, Loretta E. Lynch, Eskinder Negash, Juan P. Osuna, Thomas S Winkowski, TO RESPONSE to 133 MOTION hold all deadlines in abeyance pending resolution of ECF 132 motion to certify an appeal and stay proceedings re 132 MOTION to Certify issue for appeal pursuant to 8 U.S.C. § 1292(b) (Attachments: # 1 Exhibit Status of Named Plaintiffs)(Silvis, William) (Entered: 05/29/2015)

05/29/2015 155 JOINT STATUS REPORT signed by all parties estimated Trial Days: undetermined. (Silvis, William) (Entered: 05/29/2015)

06/03/2015

156 MOTION for Leave to File Surreply by Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM. (Attachments: # 1 Proposed Order) Noting Date 6/19/2015, (Adams, Matt) (Entered: 06/03/2015)

06/03/2015

157 DECLARATION of Glenda M. Aldana Madrid filed by Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM re 156 MOTION for Leave to File Surreply (Attachments: # 1 Exhibit)(Aldana Madrid, Glenda) (Entered: 06/03/2015)

06/05/2015

158 RESPONSE, by Defendants Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Jeh Johnson, Loretta E. Lynch, Eskinder Negash, Juan P. Osuna, Thomas S Winkowski, to 156 MOTION for Leave to File Surreply. (Wilson, Sarah) (Entered: 06/05/2015)

06/17/2015

159 NOTICE of proposed action by the Department of Health and Human Services concerning new funding for representation of unaccompanied alien children re 133 MOTION hold all deadlines in abeyance pending resolution of ECF 132 motion to certify an appeal and stay proceedings re 132 MOTION to Certify issue for appeal pursuant to 8 U.S.C. § 1292(b) , 132 MOTION to Certify issue for appeal pursuant to 8 U.S.C. § 1292(b) ; filed by Defendants Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Jeh Johnson, Loretta E. Lynch, Eskinder Negash, Juan P. Osuna, Thomas S Winkowski. (Reuveni, Erez) (Entered: 06/17/2015)

06/19/2015

160 MINUTE ORDER denying pltfs' 117 Motion to Certify Class, the court will further address pltfs' motion for class certification in a subsequent order; granting dfts' 132 Motion to certify the order entered 4/13/15 for interlocutory appeal; denying dfts' 133 Motion to hold all deadlines in abeyance; parties shall comply with the initial disclosure requirements within 28 days, court to issue separate order; granting pltfs' 156 Motion for leave to file surreply by Judge Thomas S. Zilly.(RS) (Entered: 06/19/2015)

06/25/2015

161 NOTICE of Appearance by attorney Nicole N. Murley on behalf of Defendants Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Jeh Johnson, Loretta E. Lynch, Eskinder Negash, Juan P. Osuna, Thomas S Winkowski. (Murley, Nicole) (Entered: 06/25/2015)

06/29/2015

162 MOTION to Dismiss as moot the cases of J.E.F.M., J.F.M., D.G.F.M., M.A.M., and J.E.V.G. by Defendants Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Jeh Johnson, Loretta E. Lynch, Eskinder Negash, Juan P. Osuna, Thomas S Winkowski. (Attachments: # 1 Proposed Order) Noting Date 7/10/2015, (Murley, Nicole) (Entered: 06/29/2015)

06/30/2015

163 MOTION Motion for Clarification and Entry of a Protective Order re 160 Order on Motion to Certify Class,,,,,, Order on Motion for Miscellaneous Relief,,, Order on Motion for Leave to File,, by Defendants Eskinder Negash, Juan P. Osuna, Thomas S Winkowski.

(Attachments: # 1 Exhibit Plaintiff F.L.B.s Initial Discovery Requests, # 2 Proposed Order) Noting Date 7/10/2015, (Murley, Nicole) (Entered: 06/30/2015)

07/01/2015

164 NOTICE of Renote re 162 MOTION to Dismiss as moot the cases of J.E.F.M., J.F.M., D.G.F.M., M.A.M., and J.E.V.G. ; filed by Defendants Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Jeh Johnson, Loretta E. Lynch, Eskinder Negash, Juan P. Osuna, Thomas S Winkowski. (Murley, Nicole) (Entered: 07/01/2015)

07/08/2015

165 NOTICE OF PETITION FOR PERMISSION TO APPEAL FILED, case number 15-80116. Filed by Ninth Circuit Court of Appeals.(SG) (Entered: 07/08/2015)

07/08/2015

166 RESPONSE, by Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM, to 163 MOTION Motion for Clarification and Entry of a Protective Order re 160 Order on Motion to Certify Class,,,,,, Order on Motion for Miscellaneous Relief,,, Order on Motion for Leave to File,, . (Arulanantham, Ahilan) (Entered: 07/08/2015)

07/10/2015

167 REPLY, filed by Defendants Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Jeh Johnson, Loretta E. Lynch, Eskinder Negash, Juan P. Osuna, Thomas S Winkowski, TO RESPONSE to 163 MOTION Motion for Clarification and Entry of a Protective Order re 160 Order on Motion to Certify Class,,,,,, Order on Motion for Miscellaneous Relief,,, Order on Motion for Leave to File,, (Attachments: # 1 Exhibit)(Murley, Nicole) (Entered: 07/10/2015)

07/20/2015

168 RESPONSE, by Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM, to 162 MOTION to Dismiss as moot the cases of J.E.F.M., J.F.M., D.G.F.M., M.A.M., and J.E.V.G.. (Attachments: # 1 Exhibit A)(Angelis, Theodore) (Entered: 07/20/2015)

07/20/2015

169 DECLARATION of Angie Junck filed by Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM re 162 MOTION to Dismiss as moot the cases of J.E.F.M., J.F.M., D.G.F.M., M.A.M., and J.E.V.G. (Angelis, Theodore) (Entered: 07/20/2015)

07/20/2015

170 DECLARATION of Helen Lawrence filed by Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM re 162 MOTION to Dismiss as moot the cases of J.E.F.M., J.F.M., D.G.F.M., M.A.M., and J.E.V.G. (Angelis, Theodore) (Entered: 07/20/2015)

07/22/2015

171 PRAECIPE to attach document (Declaration) re 169 Declaration, by Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM (Attachments: # 1 Errata Declaration of Angie Junck in Support of Plaintiffs' Opposition to Defendants' Motion to Dismiss as Moot)(Angelis, Theodore) (Entered: 07/22/2015)

07/24/2015

172 REPLY, filed by Defendants Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Jeh Johnson, Loretta E. Lynch, Eskinder Negash, Juan P. Osuna, Thomas S Winkowski, TO RESPONSE to 162 MOTION to Dismiss as moot the cases of J.E.F.M., J.F.M., D.G.F.M., M.A.M., and J.E.V.G. (Murley, Nicole) (Entered: 07/24/2015)

08/26/2015

173 MOTION for Protective Order by Defendants Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Jeh Johnson, Loretta Lynch, Eskinder Negash, Juan P. Osuna, Thomas S Winkowski. (Attachments: # 1 Exhibit, # 2 Proposed Order) Noting Date 9/11/2015, (Murley, Nicole) (Entered: 08/26/2015)

08/27/2015

174 ORDER granting in part and denying in part dfts' 162 Motion to Dismiss; denying dfts' 163 Motion for clarification and for a protective order; Bench Trial is set for 5/2/2016 before Judge Thomas S. Zilly; scheduling order to be issued by Judge Thomas S. Zilly.(RS) (Entered: 08/27/2015)

08/27/2015

175 MINUTE ORDER dfts' 173 MOTION for Protective Order is granted in part and deferred in part; pltf's Rule 30(b)(6) deposition is stayed; dfts' motion for protective order is deferred and renoted to 9/4/15 by Judge Thomas S. Zilly. (RS) (Entered: 08/27/2015)

08/28/2015

176 MINUTE ORDER SETTING TRIAL DATE AND RELATED DATES; Length of Trial: *3-5 days*. Bench Trial is set for 5/2/2016 at 09:00 AM in Courtroom 15206 before Judge Thomas S. Zilly. Joinder of Parties due by 10/16/2015, Amended Pleadings due by 10/16/2015, Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 11/2/2015, Motions due by 11/25/2015, Discovery completed by 12/18/2015, Dispositive motions due by 1/28/2016, Motions in Limine due by 3/31/2016, Pretrial Order due by 4/18/2016, Trial briefs to be submitted by 4/18/2016, Pretrial Conference set for 4/22/2016 at 03:30 PM in Courtroom 15206 before Judge Thomas S. Zilly. Proposed Findings of Fact and Conclusions of Law to be submitted by 4/18/2016, by Judge Thomas S. Zilly. (KD) (Entered: 08/28/2015)

09/02/2015

177 RESPONSE, by Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM, to 173 MOTION for Protective Order . (Arulanantham, Ahilan) (Entered: 09/02/2015)

09/02/2015

178 EXHIBIT re 177 Response to Motion by Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., GDS, J.E.V.G., F LB, MAM (Arulanantham, Ahilan) (Entered: 09/02/2015)

09/04/2015

179 REPLY, filed by Defendants Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Jeh Johnson, Loretta Lynch, Eskinder Negash, Juan P. Osuna, Thomas S Winkowski, TO RESPONSE to 173 MOTION for Protective Order (Murley, Nicole) (Entered: 09/04/2015)

09/08/2015

180 MINUTE ORDER by Judge Thomas S. Zilly. The deferred portion of defendants' motion for protective order, 173 , is STRICKEN as moot. The stay of plaintiff F.L.B.'s Rule 30(b)(6) deposition notice imposed by Minute Order entered August 27, 2015, docket no. 175, shall expire on October 8, 2015. (PM) (Entered: 09/08/2015)

09/17/2015

181 NOTICE OF APPEAL to Ninth Circuit (15-35739) by Plaintiff J E FM, et al: In case no. 15-80113 on 9-16-2015: The petition for permission to appeal pursuant to 28 U.S.C. § 1292(b) is GRANTED. Respondents cross-petition for permission to appeal is granted without prejudice to petitioners renewal of their opposition to the cross-petition before the merits panel. See Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681, 688 (9th Cir. 2011) (merits panel has independent duty to confirm that jurisdiction over an interlocutory appeal is proper); see also id. at 689 (exercising discretion to reach only the particular controlling question certified for interlocutory appeal by the district court, and not other issues included within the district court order on review). Petitioners motion for a stay of district court proceedings pending the interlocutory appeal is denied. See Hilton v. Braunskill, 481 U.S. 770, 776 (1987). All other pending motions are denied as moot. Within 14 days after the date of this order, petitioner and respondent shall perfect the appeal and cross-appeal, respectively, in accordance with Federal Rule of Appellate Procedure 5(d). After the appeal and cross-appeal are perfected, the Clerk shall establish a briefing schedule governing the appeal and cross-appeal. (docket text copied from Ninth Circuit) Entered for clerical purposes only. (SG) Modified on 9/18/2015 ADD CCA#(SG). (Entered: 09/18/2015)

09/17/2015

183 NOTICE OF CROSS-APPEAL to Ninth Circuit (15-35738) by Defendant Loretta Lynch: The petition for permission to appeal pursuant to 28 U.S.C. § 1292(b) is GRANTED. Respondents crosspetition for permission to appeal is granted without prejudice to petitioners renewal of their opposition to the cross-petition before the merits panel. See Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681, 688 (9th Cir. 2011) (merits panel has independent duty to confirm that jurisdiction over an interlocutory appeal is proper); see also id. at 689 (exercising discretion to reach only the particular controlling question

certified for interlocutory appeal by the district court, and not other issues included within the district court order on review). Petitioners motion for a stay of district court proceedings pending the interlocutory appeal is denied. See Hilton v. Braunskill, 481 U.S. 770, 776 (1987). All other pending motions are denied as moot. Within 14 days after the date of this order, petitioner and respondent shall perfect the appeal and cross-appeal, respectively, in accordance with Federal Rule of Appellate Procedure 5(d). After the appeal and cross-appeal are perfected, the Clerk shall establish a briefing schedule governing the appeal and cross-appeal. (Docket text copied from Ninth Circuit Court of Appeals for clerical purposes) (SG) Modified on 9/18/2015 ADD CCA#(SG). (Entered: 09/18/2015)

09/18/2015

182 TIME SCHEDULE ORDER (15-35738) as to dkt# 183 Notice of Appeal, filed by Loretta E. Lynch: (SG) Modified on 9/18/2015 (SG). (Entered: 09/18/2015)

09/18/2015

184 TIME SCHEDULE ORDER (15-35738, 15-35739) as to dkt# 181 Notice of Appeal, filed by J E FM, dkt# 183 Notice of Cross-Appeal, filed by Loretta Lynch: (SG) (Entered: 09/18/2015)

09/18/2015

Appeal Fees Received: fee in the amount of $ 505 (receipt # SEA 073474) re 181 Notice of AppeaL filed by J E FM, et al. (RE) (Entered: 09/18/2015)

10/02/2015 185 STIPULATION (DRAFT STIPULATED PROTECTIVE ORDER) by parties (Arulanantham, Ahilan) (Entered: 10/02/2015)

10/09/2015 186 STIPULATED PROTECTIVE ORDER by Judge Thomas S. Zilly. (PM) (Entered: 10/09/2015)

10/14/2015

187 STIPULATION AND PROPOSED ORDER TO EXTEND CASE MANAGEMENT DEADLINES by parties (Arulanantham, Ahilan) (Entered: 10/14/2015)

10/16/2015

188 NOTICE of Appearance by attorney Margaret Chen on behalf of Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM. (Chen, Margaret) (Entered: 10/16/2015)

10/16/2015

189 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney La Rond Baker for Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM. (Chen, Margaret) (Entered: 10/16/2015)

10/16/2015 190 MOTION for Leave to File Third Amended Complaint by Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC,

J.E.V.G., F LB, MAM. (Attachments: # 1 Exhibit A, # 2 Proposed Order) Noting Date 11/6/2015, (Garcia, Heidi) (Entered: 10/16/2015)

10/16/2015

191 Third MOTION to Certify Class by Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, J.E.V.G., F LB, MAM. Oral Argument Requested. (Attachments: # 1 Exhibit Exhibits A-I, # 2 Proposed Order Proposed Order) Noting Date 11/13/2015, (Adams, Matt) (Entered: 10/16/2015)

10/16/2015

192 MINUTE ORDER extending dates and deadlines: Discovery completed by 1/22/2016, Dispositive motions due by 2/11/2016, Expert Witness Testimony due by 12/2/2015, Motions due by 12/23/2015, by Judge Thomas S. Zilly. (RS) (Entered: 10/19/2015)

10/29/2015

193 MOTION to Compel Discovery by Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 11/13/2015, (Arulanantham, Ahilan) (Entered: 10/29/2015)

10/29/2015

194 Third DECLARATION of Stephen Kang in Support of Plaintiffs' Motion to Compel Discovery filed by Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM re 193 MOTION to Compel Discovery (Attachments: # 1 Exhibits AE)(Arulanantham, Ahilan) (Entered: 10/29/2015)

10/30/2015

195 NOTICE of Appearance by attorney Joseph A. Darrow on behalf of Defendants Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Jeh Johnson, Loretta Lynch, Eskinder Negash, Juan P. Osuna, Thomas S Winkowski. (Darrow, Joseph) (Entered: 10/30/2015)

11/02/2015

196 RESPONSE, by Defendants Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Jeh Johnson, Loretta Lynch, Eskinder Negash, Juan P. Osuna, to 190 MOTION for Leave to File Third Amended Complaint. (Darrow, Joseph) (Entered: 11/02/2015)

11/09/2015

197 RESPONSE, by Defendants Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Jeh Johnson, Loretta Lynch, Eskinder Negash, Juan P. Osuna, Thomas S Winkowski, to 191 Third MOTION to Certify Class . Oral Argument Requested. (Wilson, Sarah) (Entered: 11/09/2015)

11/09/2015

198 RESPONSE, by Defendants Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Jeh Johnson, Loretta Lynch, Eskinder Negash, Juan P. Osuna, Thomas S Winkowski, to 193 MOTION to Compel Discovery. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit)(Murley, Nicole) (Entered: 11/09/2015)

11/13/2015

199 REPLY, filed by Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM, TO RESPONSE to 193 MOTION to Compel Discovery (Attachments: # 1 Proposed Order)(Angelis, Theodore) (Entered: 11/13/2015)

11/13/2015

200 Unopposed MOTION for Leave to File Excess Pages by Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM. (Attachments: # 1 Proposed Order) Noting Date 11/13/2015, (Aldana Madrid, Glenda) (Entered: 11/13/2015)

11/13/2015

201 REPLY, filed by Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM, TO RESPONSE to 191 Third MOTION to Certify Class (Aldana Madrid, Glenda) (Entered: 11/13/2015)

11/13/2015

202 DECLARATION of Glenda M. Aldana Madrid filed by Plaintiffs A.E.G.E., D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., F LB, MAM re 191 Third MOTION to Certify Class (Attachments: # 1 Exhibit)(Aldana Madrid, Glenda) (Entered: 11/13/2015)

11/24/2015

203 NOTICE of Appearance by attorney Christina B Parascandola on behalf of Defendants Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Jeh Johnson, Loretta Lynch, Eskinder Negash, Juan P. Osuna, Thomas S Winkowski. (Parascandola, Christina) (Entered: 11/24/2015)

12/01/2015

204 MINUTE ORDER by Judge Thomas S. Zilly granting plaintiffs' unopposed 190 Motion for leave to amend. Plaintiffs to file their 3rd Amended Complaint within 7 days. Any motion or responsive pleading due by 2/25/2016. Plaintiffs' unopposed 200 Motion for leave to file over-length reply brief is granted. Plaintiffs' 191 Motion for class certification is RENOTED to 2/26/2016. Plaintiffs' 193 Motion to Compel is granted in part and denied in part. (PM) (Entered: 12/01/2015)

12/01/2015

205 MOTION for Extension of Time to Complete Discovery by Defendants Nathalie R. Asher, Sylvia M Burwell, Kenneth Hamilton, Jeh Johnson, Loretta Lynch, Eskinder Negash, Juan P. Osuna, Thomas S Winkowski. (Attachments: # 1 Proposed Order) Noting Date 12/11/2015, (Silvis, William) (Entered: 12/01/2015)

12/02/2015

206 MINUTE ORDER extending the deadline for disclosure of expert testimony; Expert Witness Disclosure/Reports under FRCP 26(a)(2) extended to 12/15/2015, by Judge Thomas S. Zilly. (AD) (Entered: 12/02/2015)

12/04/2015

207 Third AMENDED COMPLAINT --CLASS ACTION against defendant(s) Sylvia M Burwell, Jeh Johnson, Loretta Lynch, Juan P. Osuna, Sarah R Saldana, Leon Rodriguez, Lisa McDaniel, Bryan Wilcox, Robert Carey Attorney Glenda Melinda Aldana Madrid added to party A.E.G.E. (pty:pla), Attorney Glenda Melinda Aldana Madrid added to party G.J.C.P.(pty:pla), Attorney Glenda Melinda Aldana Madrid added to party J.E.V.G.(pty:pla), Attorney Glenda Melinda Aldana Madrid added to party EGC(pty:pla), Attorney Glenda Melinda Aldana Madrid added to party AFMJ(pty:pla), Attorney Glenda Melinda Aldana Madrid added to party LJM(pty:pla), Attorney Glenda Melinda Aldana Madrid added to party MRJ(pty:pla), Attorney Glenda Melinda Aldana Madrid added to party JRAP(pty:pla), Attorney Glenda Melinda Aldana Madrid added to party KNSM(pty:pla), filed by J FM, G.J.C.P., J E FM, MAM, J.E.V.G., D G FM, F LB, A.E.G.E., MRJ, JRAP, KNSM, LJM, EGC, AFMJ. (Attachments: # 1 Exhibit)(Aldana Madrid, Glenda) (Entered: 12/04/2015)

12/09/2015

208 RESPONSE, by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ, to 205 MOTION for Extension of Time to Complete Discovery . (Arulanantham, Ahilan) (Entered: 12/09/2015)

12/09/2015

209 DECLARATION of Stephen Kang in Support of Plaintiffs' Opposition to Defendants' Motion to Extend Case Management Deadlines filed by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ re 205 MOTION for Extension of Time to Complete Discovery (Attachments: # 1 Exhibits A-E)(Arulanantham, Ahilan) (Entered: 12/09/2015)

12/11/2015

210 REPLY, filed by Defendants Nathalie R. Asher, Sylvia M Burwell, Robert Carey, Kenneth Hamilton, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Eskinder Negash, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, Thomas S Winkowski, TO RESPONSE to 205 MOTION for Extension of Time to Complete Discovery (Attachments: # 1 Exhibit A - Defendants Produced Data)(Silvis, William) (Entered: 12/11/2015)

12/15/2015

211 Stipulated MOTION TO EXTEND CASE MANAGEMENT DEADLINE by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ. (Attachments: # 1 Proposed Order) Noting Date 12/15/2015, (Aldana Madrid, Glenda) (Entered: 12/15/2015)

12/23/2015 212 NOTICE OF DISCLOSURE OF EXPERT REPORTS ; filed by Plaintiffs A.E.G.E., AFMJ, EGC, G.J.C.P., J.E.V.G., JRAP, KNSM, F

LB, LJM, MAM, MRJ. (Attachments: # 1 Exhibits 1-3)(Arulanantham, Ahilan) (Entered: 12/23/2015)

12/23/2015

213 MOTION to Compel ON REQUEST FOR PRODUCTION CONCERING A FILES by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ. (Attachments: # 1 Proposed Order) Noting Date 1/8/2016, (Adams, Matt) (Entered: 12/23/2015)

12/23/2015

214 MOTION to Compel Discovery on Second Set of Requests For Production by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ. (Attachments: # 1 Proposed Order) Noting Date 1/8/2016, (Adams, Matt) (Entered: 12/23/2015)

12/23/2015

215 Sixth DECLARATION of Stephen Kang filed by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ re 214 MOTION to Compel Discovery on Second Set of Requests For Production, 213 MOTION to Compel ON REQUEST FOR PRODUCTION CONCERING A FILES (Attachments: # 1 Exhibit Exh. A Second Set of RFPs to DHS, # 2 Exhibit Exh. B DHS response, # 3 Exhibit Exh. C ICE privilege log, # 4 Exhibit Exh. D Plaintiff's letter to Defs, # 5 Exhibit Exh. E. Third Set of RFPs to DHS, # 6 Exhibit Exh. E Second Set of RFPs to DOJ, # 7 Exhibit Exh. E Third Set of RFPs to ORR)(Adams, Matt) (Entered: 12/23/2015)

12/28/2015

216 MINUTE ORDER by Judge Thomas S. Zilly; A telephonic conference concerning defendants' 205 motion to extend deadlines, and plaintiffs' 213 , 214 motions to compel discovery, is SCHEDULED for Thursday, 1/14/2016, at 10:00 a.m. Seattle time. The parties shall initiate the conference call and then contact the Court at (206) 3708830. The deadline for disclosure of expert testimony is EXTENDED to 1/15/2016, subject to further order of the Court. The parties' 211 stipulated motion to extend the expert disclosure deadline, is STRICKEN as moot. (AD) (Entered: 12/28/2015)

01/06/2016

217 NOTICE that the following is RE-NOTED: 214 MOTION to Compel Discovery on Second Set of Requests For Production, 213 MOTION to Compel ON REQUEST FOR PRODUCTION CONCERING A FILES. Filed by Plaintiffs A.E.G.E., AFMJ, EGC, G.J.C.P., J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ. Noting Date 1/15/2016, (Adams, Matt) (Entered: 01/06/2016)

01/07/2016

218 MINUTE ORDER by Judge Thomas S. Zilly. Plaintiffs' motions to compel discovery, docket nos. 213 and 214 , are RENOTED to 1/14/2016. Any responses shall be filed by Monday, 1/11/2016, and any

replies shall be filed by Wednesday, 1/13/2016. Counsel shall be prepared to address the merits of both motions during the telephonic conference scheduled for Thursday, 1/14/2016, at 10:00 a.m. (AD) (Entered: 01/07/2016)

01/11/2016

219 RESPONSE, by Defendants Nathalie R. Asher, Sylvia M Burwell, Robert Carey, Kenneth Hamilton, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Eskinder Negash, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, Thomas S Winkowski, to 213 MOTION to Compel ON REQUEST FOR PRODUCTION CONCERING A FILES. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F)(Darrow, Joseph) (Entered: 01/11/2016)

01/11/2016

220 RESPONSE, by Defendants Nathalie R. Asher, Sylvia M Burwell, Robert Carey, Kenneth Hamilton, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Eskinder Negash, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, Thomas S Winkowski, to 214 MOTION to Compel Discovery on Second Set of Requests For Production. (Murley, Nicole) (Entered: 01/11/2016)

01/13/2016

221 NOTICE to Withdraw Pending Motion re 214 MOTION to Compel Discovery on Second Set of Requests For Production ; by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ. (Adams, Matt) (Entered: 01/13/2016)

01/13/2016

222 REPLY, filed by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ, TO RESPONSE to 213 MOTION to Compel ON REQUEST FOR PRODUCTION CONCERING A FILES (Attachments: # 1 Exhibit)(Adams, Matt) (Entered: 01/13/2016)

01/14/2016

223 NOTICE of Appearance by attorney Vinita Andrapalliyal on behalf of Defendants Nathalie R. Asher, Sylvia M Burwell, Robert Carey, Kenneth Hamilton, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Eskinder Negash, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, Thomas S Winkowski. (Andrapalliyal, Vinita) (Entered: 01/14/2016)

01/14/2016

224 MINUTE ORDER by Judge Thomas S. Zilly re the telephonic hearing conducted 1/14/2016 (Court Reporter: Nancy Bauer); plaintiffs' 213 motion to compel is DENIED; three claims which have been realleged in the Third Amended Complaint are DISMISSED; plaintiffs' 191 third motion to certify a class is DENIED without prejudice; Court will issue separate order explaining its reasons; any renewed motion to certify a class, which will be plaintiffs' last

opportunity to seek class certification, shall be filed by 2/4/2016, and noted for 2/26/2016; deadline for defendants to file, in response to the Third Amended Complaint, a motion to dismiss or an answer, is EXPEDITED to 2/4/2016. Oral argument on defendants' anticipated motion to dismiss and plaintiffs' anticipated fourth motion to certify a class is SCHEDULED for 3/24/2016, at 9:00 a.m.; defendants' 205 motion to continue trial and extend deadlines is GRANTED as follows. Bench trial CONTINUED to 9/12/2016 before Judge Thomas S. Zilly; Except as indicated in this Minute Order, all remaining related pretrial deadlines are STRICKEN and will be reset after Court rules on anticipated motions; defendants shall serve and file their rebuttal expert reports by 2/16/2016. (AD) (Entered: 01/14/2016)

01/21/2016

225 ORDER by Judge Thomas S. Zilly. Plaintiff's 191 third motion for class certification is DENIED without prejudice. Any renewed motion to certify a class shall be filed by 2/4/2016, and noted for 2/26/2016. See Minute Order (docket no. 224 ). (AD) (Entered: 01/21/2016)

01/27/2016

226 TRANSCRIPT REQUEST by Plaintiff J FM for proceedings held on 01/14/2016, Requesting Attorney: Theodore J Angelis. (Angelis, Theodore) (Entered: 01/27/2016)

01/29/2016 227 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of the telephonic hearing held on 1/14/2016 before Judge Thomas S. Zilly.

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.

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. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.

To purchase a copy of the transcript, contact court reporter Nancy Bauer, nancy_bauer@wawd.uscourts.gov, 206-370-8506.

Release of Transcript Restriction set for 4/28/2016, (NB) (Entered: 01/29/2016)

02/02/2016

228 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Emily Creighton for Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ. (Creighton, Emily) (Entered: 02/02/2016)

02/04/2016

229 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM In Part and For Improper Venue by Defendants Nathalie R. Asher, Sylvia M Burwell, Robert Carey, Kenneth Hamilton, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Eskinder Negash, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, Thomas S Winkowski. (Attachments: # 1 Exhibit A, # 2 SEALED Exhibit B, # 3 Proposed Order Proposed Order) Noting Date 2/26/2016, (Darrow, Joseph) Modified on 4/15/2016 to seal exhibit containing personal identifiers (AD). (Entered: 02/04/2016)

02/04/2016

230 Fourth MOTION to Certify Class by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 2/26/2016, (Arulanantham, Ahilan) (Entered: 02/04/2016)

02/04/2016

231 DECLARATION of Glenda M. Aldana Madrid in Support of Plaintiffs' Fourth Motion for Class Certification filed by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ re 230 Fourth MOTION to Certify Class (Arulanantham, Ahilan) (Entered: 02/04/2016)

02/04/2016

232 DECLARATION of Dalia Castillo-Granados in Support of Plaintiffs' Fourth Motion for Class Certification filed by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ re 230 Fourth MOTION to Certify Class (Arulanantham, Ahilan) (Entered: 02/04/2016)

02/04/2016

233 DECLARATION of Rebekah L. Fletcher in Support of Plaintiffs' Fourth Motion for Class Certification filed by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ re 230 Fourth MOTION to Certify Class (Arulanantham, Ahilan) (Entered: 02/04/2016)

02/04/2016

234 DECLARATION of Daniel J. Sharp in Support of Plaintiffs' Fourth Motion for Class Certification filed by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ re 230 Fourth MOTION to Certify Class (Arulanantham, Ahilan) (Entered: 02/04/2016)

02/04/2016

235 DECLARATION of David B. Thronson in Support of Plaintiffs' Fourth Motion for Class Certification filed by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC,

J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ re 230 Fourth MOTION to Certify Class (Arulanantham, Ahilan) (Entered: 02/04/2016)

02/04/2016

236 DECLARATION of Jennifer Lissette Anzardo in Support of Plaintiffs' Fourth Motion for Class Certification filed by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ re 230 Fourth MOTION to Certify Class (Arulanantham, Ahilan) (Entered: 02/04/2016)

02/05/2016

Set/Reset Oral Argument on 229 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM In Part and For Improper Venue, 230 Fourth MOTION to Certify Class: Motion Hearing set for 3/24/2016 at 09:00 AM before Judge Thomas S. Zilly, per the Minute Order of 01/14/2016, dkt. 224 . (AD) (Entered: 02/05/2016)

02/16/2016

237 DISCLOSURE OF EXPERT WITNESSES Filed by Defendants Nathalie R. Asher, Sylvia M Burwell, Robert Carey, Kenneth Hamilton, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Eskinder Negash, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, Thomas S Winkowski. (Attachments: # 1 Expert rebuttal report by Avram H. Mack, M.D., # 2 Expert rebuttal report by Qing Pan, Ph.D.)(Parascandola, Christina) (Entered: 02/16/2016)

02/22/2016

238 RESPONSE, by Defendants Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, to 230 Fourth MOTION to Certify Class . Oral Argument Requested. (Attachments: # 1 Sealed Exhibit A (EOIR Mem. 07-01), # 2 Sealed Exhibit B (OCIJ Docketing Guidance), # 3 Sealed Exhibit C (OCIJ Friend of Court Guidance), # 4 Sealed Exhibit D (EOIR LOPC), # 5 Sealed Exhibit E (AEGE Record), # 6 Sealed Exhibit F (EGC Record), # 7 Sealed Exhibit G (JRAP Record), # 8 Sealed Exhibit H (Counsel Correspondence), # 9 Sealed Exhibit I (Weil Deposition), # 10 Sealed Exhibit J (Lang Deposition), # 11 Sealed Exhibit K (Holston Deposition))(Wilson, Sarah) Modified on 4/14/2016 to seal attachments, counsel to file redacted versions (AD). (Entered: 02/22/2016)

02/22/2016

239 RESPONSE, by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ, to 229 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM In Part and For Improper Venue. Oral Argument Requested. (Aldana Madrid, Glenda) (Entered: 02/22/2016)

02/26/2016

240 REPLY, filed by Defendants Nathalie R. Asher, Sylvia M Burwell, Robert Carey, Kenneth Hamilton, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Eskinder Negash, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, Thomas S Winkowski, TO RESPONSE to 229 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM In Part and For Improper Venue (Darrow, Joseph) (Entered: 02/26/2016)

02/26/2016

241 REPLY, filed by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ, TO RESPONSE to 230 Fourth MOTION to Certify Class (Arulanantham, Ahilan) (Entered: 02/26/2016)

02/26/2016

242 Supplemental DECLARATION of PROFESSOR LAURENCE STEINBERG IN SUPPORT OF PLAINTIFFS FOURTH MOTION FOR CLASS CERTIFICATION filed by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ re 230 Fourth MOTION to Certify Class (Arulanantham, Ahilan) Modified on 3/16/2016 Declaration STRICKEN per 248 Minute Order (AD). (Entered: 02/26/2016)

02/26/2016

243 ORDER of USCA (15-35738, 15-35739) as to 181 Notice of Appeal, filed by J E FM, 183 Notice of Appeal, filed by Loretta Lynch. (RE) (Entered: 02/29/2016)

03/03/2016

244 MOTION to Compel Discovery by Defendants Nathalie R. Asher, Sylvia M Burwell, Robert Carey, Kenneth Hamilton, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Eskinder Negash, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, Thomas S Winkowski. (Attachments: # 1 Proposed Order, # 2 Exhibit A, # 3 Exhibit B, # 4 Sealed Exhibit C, # 5 Sealed Exhibit D, # 6 Sealed Exhibit E, # 7 Exhibit F, # 8 Sealed Exhibit G, # 9 Sealed Exhibit H, # 10 Sealed Exhibit I, # 11 Sealed Exhibit J, # 12 Sealed Exhibit K, # 13 Sealed Exhibit L, # 14 Sealed Exhibit M, # 15 Sealed Exhibit N, # 16 Sealed Exhibit O, # 17 Sealed Exhibit P, # 18 Sealed Exhibit Q, # 19 Sealed Exhibit R, # 20 Sealed Exhibit S, # 21 Sealed Exhibit T, # 22 Sealed Exhibit U, # 23 Sealed Exhibit V, # 24 Sealed Exhibit W, # 25 Sealed Exhibit X, # 26 Sealed Exhibit Y, # 27 Sealed Exhibit Z, # 28 Sealed Exhibit AA, # 29 Sealed Exhibit BB, # 30 Sealed Exhibit CC, # 31 Sealed Exhibit DD, # 32 Sealed Exhibit EE, # 33 Sealed Exhibit FF, # 34 Sealed Exhibit GG) Noting Date 3/25/2016, (Andrapalliyal, Vinita) Modified on 3/4/2016 to seal Exhibits containing the names of minors. Counsel will file redacted versions of the sealed exhibits(ELS). (Entered: 03/03/2016)

03/04/2016

NOTICE of Docket Text and Document Security Modification re 244 MOTION to Compel Discovery : amended text to reflect that exhibits C-E and G-GG have been sealed. Counsel will refile redacted versions of the exhibits which do not include the names of minor parties. (ELS) (Entered: 03/04/2016)

03/04/2016

245 NOTICE OF INTENT TO FILE SURREPLY ; filed by Defendants Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox. (Attachments: # 1 Exhibit)(Silvis, William) (Entered: 03/04/2016)

03/04/2016

246 SURREPLY filed by Defendants Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox re 230 Fourth MOTION to Certify Class (Wilson, Sarah) (Entered: 03/04/2016)

03/08/2016

247 REDACTION to 244 MOTION to Compel Discovery by Defendants Nathalie R. Asher, Sylvia M Burwell, Robert Carey, Kenneth Hamilton, Loretta Lynch, Lisa McDaniel, Eskinder Negash, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, Thomas S Winkowski (Attachments: # 1 SEALED Exhibit C, # 2 SEALED Exhibit D, # 3 Exhibit E, # 4 SEALED Exhibit G, # 5 SEALED Exhibit H, # 6 Exhibit I, # 7 SEALED Exhibit J, # 8 Exhibit K, # 9 Exhibit L, # 10 SEALED Exhibit M, # 11 SEALED Exhibit N, # 12 Exhibit O, # 13 Exhibit P, # 14 Exhibit Q, # 15 Exhibit R, # 16 SEALED Exhibit S, # 17 SEALED Exhibit T, # 18 Exhibit U, # 19 Exhibit V, # 20 Exhibit W, # 21 Exhibit X, # 22 SEALED Exhibit Y, # 23 Exhibit Z, # 24 Exhibit AA, # 25 Exhibit BB, # 26 Exhibit CC, # 27 Exhibit DD, # 28 Exhibit EE, # 29 Exhibit FF, # 30 Exhibit GG)(Andrapalliyal, Vinita) Modified on 4/15/2016 to seal exhibits containing personal identifiers (AD). (Entered: 03/08/2016)

03/10/2016

248 MINUTE ORDER by Judge Thomas S. Zilly. With regard to plaintiffs' 230 fourth motion to certify class, the parties are DIRECTED to file, on or before 3/12/2016, supplemental briefs, not to exceed 10 pages in length, regarding whether a class along the lines contained in the order, rather than the class and subclasses proposed by plaintiffs, should be certified. Within 7 days of the date of this Minute Order, plaintiffs shall file the entire transcript of the deposition of Jack Weil. Defendants' 244 motion to compel discovery is RENOTED to 3/23/2016. Any response shall be filed by 8:00 a.m., Seattle time, on 3/21/2016. Any reply shall be filed by noon, Seattle time, on 3/23/2016. The parties shall be prepared to address the motion at the hearing scheduled for 3/24/2016. At the hearing scheduled for 3/24/2016, the

Court will first hear oral argument regarding defendants' 229 motion to dismiss, and then will hear from counsel about plaintiffs' 230 fourth motion to certify class, before turning to defendants' 244 motion to compel discovery. Defendants' 246 motion to strike the 242 Supplemental Declaration of Professor Laurence Steinberg, is GRANTED. (AD) (Entered: 03/10/2016)

03/16/2016

249 NOTICE of Request for Video Recording of Motion Hearing on 3/24/2016 at 9:00 a.m. before Thomas S. Zilly. Parties must submit PARTY RESPONSE TO REQUEST FOR VIDEO RECORDING before 3/21/2016. Please Note: This form must not be filed electronically with the Court. (ELS) (Entered: 03/16/2016)

03/17/2016

250 RESPONSE by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ re 248 Order to Re-Note Motion,,,, (Attachments: # 1 Deposition Transcript of Judge Jack H. Weil)(Arulanantham, Ahilan) (Entered: 03/17/2016)

03/21/2016

251 RESPONSE, by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ, to 244 MOTION to Compel Discovery. Oral Argument Requested. (Attachments: # 1 Exhibit A)(Arulanantham, Ahilan) (Entered: 03/21/2016)

03/21/2016

252 NOTIFICATION REGARDING PROPOSED VIDEO RECORDING. All parties have consented to the video recording of the Motion Hearing on 3/24/2016 at 9:00 a.m.. Unless otherwise ordered by the presiding judge, the proceeding will be video recorded as part of the CAMERAS Pilot Project. (ELS) (Entered: 03/21/2016)

03/21/2016

253 MEMORANDUM filed by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ re 230 Fourth MOTION to Certify Class (Adams, Matt) (Entered: 03/21/2016)

03/21/2016

254 MEMORANDUM filed by Defendants Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox re 230 Fourth MOTION to Certify Class (Wilson, Sarah) (Entered: 03/21/2016)

03/23/2016

255 REPLY, filed by Defendants Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, Thomas S Winkowski, TO RESPONSE to 244 MOTION to Compel Discovery (Andrapalliyal, Vinita) (Entered: 03/23/2016)

03/24/2016

257 MINUTE ENTRY for proceedings held before Hon. Judge Thomas S. Zilly- Dep Clerk: Gail Glass; Pla Counsel: Ahilan Arulanantham, Matt Adams, Stephan Kang, Glenda Aldana Madrid, Talia Inlender, Theodore Angelis; Def Counsel: Leon Fresco, Joseph Darrow, Daniel Cicchini, Sarah Wilson, Nicole Murley; CR: Debbie Zurn; Time of Hearing: 9:00 a.m.; Courtroom: 15206;Motion Hearing held on 3/24/2016. The Court hears oral argument on the pending motions, docket nos. 229 , 230 , and 244 . The Court takes defendants motion to dismiss and plaintiffs motion to certify class, docket nos. 229 and 230 , under advisement. For the reasons stated on the record, defendants motion to compel discovery, docket no. 244 , is DENIED in part as to Interrogatories Nos. 7, 15, 16, and 20, DENIED in part as moot as to Interrogatory No. 12, and DEFERRED in part as to discovery requests propounded to plaintiffs other than F.L.B. (GG) (Entered: 03/30/2016)

03/25/2016

256 MINUTE ORDER by Judge Thomas S. Zilly. With regard to defendants' motion to dismiss, on the basis of improper venue, the constitutional right-to-counsel claim asserted by plaintiff J.R.A.P., the parties are DIRECTED to file supplemental briefs, not to exceed five (5) pages in length, on or before 4/1/2016, concerning the effect, if any, of the last sentence of 28 U.S.C. § 1391(e)(1), which reads: "Additional persons may be joined as parties to any such action in accordance with the Federal Rules of Civil Procedure and with such other venue requirements as would be applicable if the United States or one of its officers, employees, or agencies were not a party." Defendants' 229 motion to dismiss is RENOTED to 4/1/2016. (AD) (Entered: 03/25/2016)

04/01/2016

258 SUPPLEMENT re 256 Order to Re-Note Motion,,, Plaintiffs' Supplemental Brief on Venue by Plaintiffs A.E.G.E., AFMJ, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ (Arulanantham, Ahilan) (Entered: 04/01/2016)

04/01/2016

259 MEMORANDUM filed by Defendants Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, Thomas S Winkowski re 229 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM In Part and For Improper Venue Concerning 28 USC 1391(e)(1) (Attachments: # 1 Exhibit A, # 2 SEALED Exhibit B)(Darrow, Joseph) Modified on 4/4/2016 to seal Exhibit B per call from counsel (AD). (Entered: 04/01/2016)

04/04/2016

NOTICE of Docket Text Modification re 259 Memorandum: Exhibit B sealed, counsel to file redacted version of Exhibit B. (AD) (Entered: 04/04/2016)

04/04/2016

260 SEALED REDACTION to 259 Memorandum, Exhibit B by Defendants Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, Thomas S Winkowski (Darrow, Joseph) Modified on 4/11/2016 to seal per call from counsel - a fully redacted version will be filed (AD). (Entered: 04/04/2016)

04/04/2016

261 NOTICE OF FILING OF OFFICIAL TRANSCRIPT **SEALED TRANSCRIPT - DO NOT RELEASE. REDACTED TRANSCRIPT FILED TO REPLACE THIS SEALED TRANSCRIPT. SEE DOCKET 267 FOR REDACTED TRANSCRIPT** of Motion Hearing held on 3/24/2016 before Judge Thomas S. Zilly.

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.

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. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.

To purchase a copy of the transcript, contact court reporter Debbie Zurn, debbie_zurn@wawd.uscourts.gov, 206-370-8504.

Release of Transcript Restriction set for 7/5/2016, (DZ) Modified on 4/28/2016 (SG). (Entered: 04/04/2016)

04/07/2016 262 NOTICE of Intent to Request Redaction by Theodore J Angelis of 261 Electronic Transcript (Angelis, Theodore) (Entered: 04/07/2016)

04/11/2016

NOTICE of Docket Text Modification re 260 Redacted Document: redacted document sealed, counsel to file a fully redacted version. (AD) (Entered: 04/11/2016)

04/11/2016

263 REDACTION to 259 Memorandum, Exhibit B by Defendants Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, Thomas S Winkowski (Darrow, Joseph) (Entered: 04/11/2016)

04/14/2016

NOTICE of Docket Text Modification re 238 Response to Motion: attachments to response sealed per call from counsel; redacted exhibits to be filed. (AD) (Entered: 04/14/2016)

04/15/2016

NOTICE of Docket Text Modification re 229 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM In Part and For Improper Venue: exhibit B sealed per call from counsel as exhibit contains personal identifiers. (AD) (Entered: 04/15/2016)

04/15/2016

NOTICE of Docket Text Modification re 247 Redacted Document: exhibits C, D, G, H, J, M, N, S, T, and Y sealed per call from counsel as they contain personal identifiers. (AD) (Entered: 04/15/2016)

04/15/2016

264 ORDER by Judge Thomas S. Zilly. Defendants' 229 partial motion to dismiss, is GRANTED in part, DEFERRED in part, and DENIED in part. Plaintiffs' claims against USCIS Director Leon Rodrguez are DISMISSED. Plaintiff J.E.V.G.'s right-to-counsel claim is DISMISSED as moot. Defendants' motion is DEFERRED with respect to plaintiff M.A.M.'s right-to-counsel claim, and the parties are DIRECTED to file, by May 6, 2016, a Joint Status Report concerning the status of M.A.M.'s removal proceedings. Defendants' partial motion to dismiss is otherwise DENIED. Defendants shall file their answer to the Third Amended Complaint by May 16, 2016. See Fed. R. Civ. P. 12(a)(4) (upon the denial of a Rule 12 motion, the Court may set a time for a responsive pleading to be filed). (AD) (Entered: 04/15/2016)

04/18/2016

265 MINUTE ORDER by Judge Thomas S. Zilly. The deferred portion of defendants' 244 motion to compel discovery is STRICKEN without prejudice. Counsel shall confer and attempt to reach agreement concerning outstanding discovery requests relating to named plaintiffs other than F.L.B. Having ruled on defendants' partial motion to dismiss, the Court SETS the following dates and deadlines: Bench Trial *3-5 days* is set for 9/12/2016 before Judge Thomas S. Zilly. Discovery completed by 6/3/2016, Dispositive motions due by 7/7/2016, Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 5/9/2016, Discovery Motions due by 5/12/2016, Motions in Limine due by 7/7/2016, Pretrial Order due by 8/19/2016, Proposed Findings of Fact and Conclusions of Law to be submitted by 8/19/2016, Trial briefs to be submitted by 8/19/2016, Pretrial Conference set for 8/26/2016 at 09:00 AM before Judge Thomas S. Zilly. (AD) (Entered: 04/18/2016)

04/18/2016

266 MINUTE ORDER by Judge Thomas S. Zilly. Plaintiffs' 230 fourth motion to certify class is RENOTED to 5/20/2016. The Court tentatively certifies the class and subclasses as stated in the order. The parties are DIRECTED to file, on or before 5/6/2016, supplemental briefs, not to exceed 12 pages in length, regarding whether the Tentative Class and the Tentative Subclasses would satisfy the criteria of Federal Rules of Civil Procedure 23(a) & (b)(2). The parties shall also address how notice should be provided to class members if the Tentative Class is certified. See Fed. R. Civ. P. 23(c)(2)(A). Any

responses to the supplemental briefs, which likewise shall not exceed 12 pages in length, shall be filed by 5/20/2016. (AD) (Entered: 04/18/2016)

04/22/2016 267 Redaction re of 261 Transcript. Release of Transcript Restriction set for 7/5/2016, (SG) (Entered: 04/27/2016)

04/29/2016

268 MOTION for Reconsideration re 264 Order on Motion to Dismiss for Failure to State a Claim,,,, Add and Terminate Parties,,,, Set Deadlines,,, by Defendants Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, Thomas S Winkowski. (Attachments: # 1 Proposed Order) Noting Date 4/29/2016, (Darrow, Joseph) (Entered: 04/29/2016)

04/29/2016

269 MOTION for Extension of Time to Complete Discovery by Defendants Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, Thomas S Winkowski. (Attachments: # 1 Exhibit, # 2 Proposed Order) Noting Date 5/13/2016, (Murley, Nicole) (Entered: 04/29/2016)

05/06/2016 270 JOINT STATUS REPORT signed by all parties (Attachments: # 1 Exhibits A-E)(Arulanantham, Ahilan) (Entered: 05/06/2016)

05/06/2016

271 MEMORANDUM filed by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ re 230 Fourth MOTION to Certify Class and Court's Proposed Class and Subclasses (Attachments: # 1 Exhibit)(Aldana Madrid, Glenda) (Entered: 05/06/2016)

05/06/2016

272 Seventh DECLARATION of Stephen B. Kang filed by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ re 230 Fourth MOTION to Certify Class (Attachments: # 1 Exhibit)(Aldana Madrid, Glenda) (Entered: 05/06/2016)

05/06/2016

273 Supplemental DECLARATION of Dr. Susan B. Long filed by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ re 230 Fourth MOTION to Certify Class (Aldana Madrid, Glenda) (Entered: 05/06/2016)

05/06/2016

274 DECLARATION of Daniel J. Sharp filed by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ re 230 Fourth

MOTION to Certify Class (Aldana Madrid, Glenda) (Entered: 05/06/2016)

05/06/2016

275 MEMORANDUM filed by Defendants Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Juan P. Osuna, Sarah R Saldana, Bryan Wilcox re 230 Fourth MOTION to Certify Class (Wilson, Sarah) (Entered: 05/06/2016)

05/09/2016

276 NOTICE OF DISCLOSURE OF SUPPLEMENTAL EXPERT REPORTS ; filed by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Arulanantham, Ahilan) (Entered: 05/09/2016)

05/10/2016

277 NOTICE of Filing of Transcript of Removal Proceedings of Plaintiffs AMJ, LJM, and MRJ ; filed by Defendants Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, Thomas S Winkowski. (Attachments: # 1 Exhibit)(Silvis, William) (Entered: 05/10/2016)

05/11/2016

278 RESPONSE by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ re 277 Notice-Other, (Adams, Matt) (Entered: 05/11/2016)

05/11/2016

279 RESPONSE, by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ, to 269 MOTION for Extension of Time to Complete Discovery . (Attachments: # 1 Exhibit Exhs. A&B, email messages)(Adams, Matt) (Entered: 05/11/2016)

05/12/2016 280 MINUTE ORDER denying defendants' 268 Motion for Reconsideration by Judge Thomas S. Zilly.(RS) (Entered: 05/12/2016)

05/12/2016

281 Second MOTION to Compel by Defendants Sylvia M Burwell, Robert Carey. (Attachments: # 1 Proposed Order, # 2 Exhibit, # 3 Exhibit) Noting Date 5/27/2016, (Andrapalliyal, Vinita) (Entered: 05/12/2016)

05/12/2016

282 PRAECIPE to attach document (Corrected Response) re 279 Response to Motion, by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ (Attachments: # 1 Corrected Response, # 2 Notice of Errata)(Adams, Matt) (Entered: 05/12/2016)

05/12/2016 283 MOTION leave to take twenty additional depositions by Defendants Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Lisa

McDaniel, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, Thomas S Winkowski. (Attachments: # 1 Exhibit Ex. A Cover of William O. Holston Deposition Transcript 1-14-2016, # 2 Exhibit Ex. B Email from Ahilan Arulanantham 2-17-2016, # 3 Exhibit Ex. C Email from Carmen Iguina to William C.Silvis 3-3-2016, # 4 Exhibit Ex. D Email from Ahilan Arulanantham 3-15-2016, # 5 Exhibit Ex. E Cover of Tin Thanh Nguyen Deposition Transcript 3-16-2016, # 6 Exhibit Ex. F Covers of Jojo Annobil and Eve Stotland Deposition Transcripts 3-18 and 3-21-2016, # 7 Exhibit Ex. G Email from William C. Silvis to Stephen Kang attaching six deposition notices, # 8 Exhibit Ex. H Excerpts of FLB v. Lynch Discovery Meet and Confer Letter - 56-2016, # 9 Exhibit Ex. I ACLU response 5-11-2016) Noting Date 5/27/2016, (Parascandola, Christina) (Entered: 05/12/2016)

05/13/2016

284 REPLY, filed by Defendants Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, Thomas S Winkowski, TO RESPONSE to 269 MOTION for Extension of Time to Complete Discovery (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Murley, Nicole) (Entered: 05/13/2016)

05/16/2016

285 ANSWER to 207 Amended Complaint,,, by Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, Thomas S Winkowski.(Silvis, William) (Entered: 05/16/2016)

05/17/2016

286 PRAECIPE to attach document (Exhibit) re 270 Joint Status Report by Defendants Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Juan P. Osuna, Sarah R Saldana (Attachments: # 1 Exhibit Exhibit F to the Joint Status Report, ECF No. 270)(Silvis, William) (Entered: 05/17/2016)

05/17/2016

287 NOTICE of Appearance by attorney Walter Manning Evans on behalf of Defendants Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, Thomas S Winkowski. (Evans, Walter) (Entered: 05/17/2016)

05/20/2016

288 SUPPLEMENT re 230 Fourth MOTION to Certify Class by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ (Arulanantham, Ahilan) (Entered: 05/20/2016)

05/20/2016

289 RESPONSE, by Defendants Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, Thomas S Winkowski,

to 230 Fourth MOTION to Certify Class . (Attachments: # 1 Exhibit A)(Andrapalliyal, Vinita) (Entered: 05/20/2016)

05/23/2016

290 PRAECIPE to attach document (Motion) Corrected Motion and Exhibit That Was Inadvertently Omitted re 283 MOTION leave to take twenty additional depositions by Defendants Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, Thomas S Winkowski (Attachments: # 1 Supplement Amended motion for leave to take twenty additional depositions, # 2 Exhibit Ex. A Cover of William O. Holston Deposition Transcript 1-14-2016, # 3 Exhibit Ex. B Email from Ahilan Arulanantham 2-17-2016, # 4 Exhibit Ex. C Email from Carmen Iguina to William C.Silvis 3-3-2016, # 5 Exhibit Ex. D Email from Ahilan Arulanantham 3-15-2016, # 6 Exhibit Ex. E Cover of Tin Thanh Nguyen Deposition Transcript 3-16-2016, # 7 Exhibit Ex. F Covers of Jojo Annobil and Eve Stotland Deposition Transcripts 3-18 and 3-21-2016, # 8 Exhibit Ex. G Email from William C. Silvis to Stephen Kang attaching six deposition notices, # 9 Exhibit Ex. H Excerpts of FLB v. Lynch Discovery Meet and Confer Letter - 5-62016, # 10 Exhibit Ex. I ACLU response 5-11-2016, # 11 Exhibit Ex. J Email from email from Ahilan Arulanantham to William C. Silvis 5-122016 at 3:34pm Pacific Standard Time)(Parascandola, Christina) (Entered: 05/23/2016)

05/23/2016

291 RESPONSE, by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ, to 283 MOTION leave to take twenty additional depositions . (Angelis, Theodore) (Entered: 05/23/2016)

05/23/2016

292 RESPONSE, by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ, to 281 Second MOTION to Compel . (Angelis, Theodore) (Entered: 05/23/2016)

05/27/2016

293 REPLY, filed by Defendants Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, Thomas S Winkowski, TO RESPONSE to 281 Second MOTION to Compel (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Andrapalliyal, Vinita) (Entered: 05/27/2016)

05/27/2016

294 REPLY, filed by Defendants Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, Thomas S Winkowski, TO RESPONSE to 283 MOTION leave to take twenty additional depositions (Attachments: # 1 Exhibit Ex. A Cover page of 5-18-2016

deposition transcript and notices of depositions to take place on 5-20 523 and 5-27 2016, # 2 Exhibit Ex. B Notice of Deposition of Rosa Pedro on 5-24-2016, # 3 Exhibit Ex. C Email from Stephen Kang 5-192016, # 4 Exhibit Ex. D Email from Ahilan Arulanantham 5-24-2016, # 5 Exhibit Ex. E Notice of Deposition of David Thronson on 6-3-2016, # 6 Exhibit Ex. F Excerpts of Plaintiff MAM's responses to interrogatories and requests for production, # 7 Exhibit Ex. G Plaintiffs' Supplemental Disclosure of 5-20-2016)(Parascandola, Christina) (Entered: 05/27/2016)

06/02/2016

295 MOTION to Compel by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 6/17/2016, (Iguina, Carmen) (Entered: 06/02/2016)

06/02/2016

296 DECLARATION of Carmen Iguina in Support of Motion to Compel filed by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ re 295 MOTION to Compel (Attachments: # 1 EXHIBITS A-K)(Iguina, Carmen) (Entered: 06/02/2016)

06/03/2016

297 MOTION strike "supplemental" expert reports of Susan B. Long and Laurence Steinberg re 276 Notice-Other, by Defendants Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, Thomas S Winkowski. (Attachments: # 1 Exhibit A Excerpts of 1-142016 telephonic hearing transcript) Noting Date 6/17/2016, (Parascandola, Christina) (Entered: 06/03/2016)

06/09/2016

298 MOTION for Preliminary Injunction by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 7/1/2016, (Aldana Madrid, Glenda) (Entered: 06/09/2016)

06/09/2016

299 DECLARATION of Glenda M. Aldana Madrid filed by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ re 298 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit)(Aldana Madrid, Glenda) (Entered: 06/09/2016)

06/09/2016

300 DECLARATION of Blaine Bookey filed by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ re 298 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit)(Aldana Madrid, Glenda) (Entered: 06/09/2016)

06/10/2016

301 MINUTE ORDER by Judge Thomas S. Zilly. Defendants' 281 Motion to Compel Discovery is GRANTED in part and DENIED in part; Defendants' 283 Motion for leave to take 20 additional depositions is GRANTED in part and DENIED in part; Defendants' motion to strike plaintiffs' disclosure of supplemental expert reports and attachments thereto, docket nos. 276 , 276-1, and 276-2, is DENIED; Except as to the deadlines set forth in Paragraphs 1, 2, and 3, the Court does not, at this time, continue the deadline for completing discovery or rule on defendants' 269 motion to extend case management deadlines; Oral argument is set for 7/8/2016 at 09:00 AM before Judge Thomas S. Zilly on plaintiffs' 298 motion for preliminary injunction, and defendants' 269 motion to extend case management deadlines. (AD) (Entered: 06/10/2016)

06/10/2016

302 MOTION TO REMOVE ROSA PEDRO AS NEXT FRIEND TO M.A.M. by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ. (Attachments: # 1 Proposed Order) Noting Date 7/1/2016, (Angelis, Theodore) (Entered: 06/10/2016)

06/13/2016

303 RESPONSE, by Defendants Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, Thomas S Winkowski, to 295 MOTION to Compel . (Attachments: # 1 Exhibit)(Silvis, William) (Entered: 06/13/2016)

06/16/2016

304 MOTION for Extension of Time --Motion to Extend Deadline for Filing of Dispositive Motions and Motions In Limine by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ. (Attachments: # 1 Proposed Order) Noting Date 6/24/2016, (Angelis, Theodore) (Entered: 06/16/2016)

06/17/2016

305 RESPONSE, by Defendants Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, Thomas S Winkowski, to 304 MOTION for Extension of Time --Motion to Extend Deadline for Filing of Dispositive Motions and Motions In Limine. (Attachments: # 1 Exhibit A)(Andrapalliyal, Vinita) (Entered: 06/17/2016)

06/17/2016

306 REPLY, filed by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ, TO RESPONSE to 295 MOTION to Compel (Attachments: # 1 Exhibit A)(Iguina, Carmen) (Entered: 06/17/2016)

06/17/2016

307 DECLARATION of ELINOR JORDAN IN SUPPORT OF PLAINTIFFS' MOTION TO COMPEL filed by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ re 295 MOTION to Compel (Attachments: # 1 Exhibit A)(Iguina, Carmen) (Entered: 06/17/2016)

06/20/2016

308 REPLY, filed by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ, TO RESPONSE to 304 MOTION for Extension of Time --Motion to Extend Deadline for Filing of Dispositive Motions and Motions In Limine (Attachments: # 1 Exhibits A-B)(Arulanantham, Ahilan) (Entered: 06/20/2016)

06/24/2016

309 ORDER granting in part and denying in part plaintiffs' Fourth 230 Motion to Certify Class by Judge Thomas S. Zilly.(RS) (Entered: 06/24/2016)

06/24/2016

310 MINUTE ORDER by Judge Thomas S. Zilly directing plaintiffs to file materials concerning the appointment of class counsel pursuant to F.R.C.P. 23(g) on or before 7/7/2016. Defendants may file a response by 7/15/2016. (PM) (Entered: 06/24/2016)

06/24/2016

311 MINUTE ORDER by Judge Thomas S. Zilly granting in part and deferring in part plaintiffs' 304 MOTION to extend certain deadlines. Dispositive motions and motions in limine deadlines are continued to 7/21/2016. Plaintiffs' motion is otherwise deferred and counsel shall be prepared to address the motion at the hearing scheduled for July 8, 2016. Each side to file a status report by 7/1/2016. Plaintiffs' 295 MOTION to Compel is denied in part and deferred in part. Counsel shall also be prepared to address at the hearing scheduled for July 8, 2016, plaintiffs' motion to remove Rosa Pedro as next friend to M.A.M., docket no. 302 . (PM) (Entered: 06/24/2016)

06/27/2016

312 RESPONSE, by Defendants Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, Thomas S Winkowski, to 298 MOTION for Preliminary Injunction . (Attachments: # 1 SEALED Exhibit A, # 2 Exhibit B, # 3 SEALED Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Darrow, Joseph) Modified on 6/29/2016 Exhibits A and C sealed as they contain personal identifiers (AD). (Entered: 06/27/2016)

06/28/2016

313 NOTICE of Request for Video Recording of Motion Hearing on Friday, 7/8/2016, at 9:00 a.m. before Hon. Thomas S. Zilly. Parties must submit PARTY RESPONSE TO REQUEST FOR VIDEO RECORDING before Wednesday, 7/6/2016. Please Note: This form

must not be filed electronically with the Court. (GG) (Entered: 06/28/2016)

06/29/2016

NOTICE of Docket Text Modification re 312 Response to Motion: Exhibits A (Dkt. 312-1) and C (Dkt. 312-3) are sealed as they contain personal identifiers. Counsel to file redacted exhibits. (AD) (Entered: 06/29/2016)

06/29/2016

314 REDACTION to 312 Response to Motion,, Exhibit A by Defendants Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, Thomas S Winkowski (Darrow, Joseph) (Entered: 06/29/2016)

06/29/2016

315 REDACTION to 312 Response to Motion,, Exhibit C by Defendants Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, Thomas S Winkowski (Darrow, Joseph) (Entered: 06/29/2016)

07/01/2016

316 STATUS REPORT Regarding Discovery by Defendants Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Juan P. Osuna, Sarah R Saldana, Bryan Wilcox (Murley, Nicole) (Entered: 07/01/2016)

07/01/2016

317 STATUS REPORT AS TO REMAINING DISCOVERY AND TRIAL PREPARATION by Plaintiffs A.E.G.E., AFMJ, EGC, G.J.C.P., JRAP, KNSM, F LB, LJM, MAM, MRJ (Attachments: # 1 Exhibits AC)(Arulanantham, Ahilan) (Entered: 07/01/2016)

07/01/2016

318 REPLY, filed by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ, TO RESPONSE to 298 MOTION for Preliminary Injunction (Aldana Madrid, Glenda) (Entered: 07/01/2016)

07/02/2016

319 Second DECLARATION of Glenda M. Aldana Madrid filed by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ re 298 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit)(Aldana Madrid, Glenda) (Entered: 07/02/2016)

07/02/2016

320 NOTICE of Supplemental Authority re 298 MOTION for Preliminary Injunction by Defendants Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox (Attachments: # 1 Exhibit Ex. A, U.S. v. Bryant)(Reuveni, Erez) (Entered: 07/02/2016)

07/06/2016 321 NOTIFICATION REGARDING PROPOSED VIDEO RECORDING. All parties have consented to the video recording of the Injunction

Hearing on 7/8/2016, at 9:00 a.m. before the Honorable Thomas S. Zilly. Unless otherwise ordered by the presiding judge, the proceeding will be video recorded as part of the CAMERAS Pilot Project. (GG) (Entered: 07/06/2016)

07/06/2016

322 MINUTE ORDER by Judge Thomas S. Zilly. Plaintiffs' 302 unopposed motion to remove Rosa Pedro as "next friend" to plaintiff M.A.M., who has reached the age of majority, is GRANTED; plaintiffs are DIRECTED to file, within 7 days of the date of this Minute Order, a declaration indicating the identity of M.A.M. or showing cause why M.A.M.'s identity should not be disclosed; upon the filing of such declaration, the Clerk is DIRECTED to modify the docket accordingly; the previously deferred portion of the defendants' 229 partial motion to dismiss is DENIED without prejudice; defendants' 312 motion to strike the 300 declaration of Blaine Bookey is GRANTED in part and DENIED in part. (AD) (Entered: 07/06/2016)

07/06/2016

323 NOTICE of Plaintiffs' Response re 320 Notice of Supplemental Authority, ; filed by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ. (Aldana Madrid, Glenda) (Entered: 07/06/2016)

07/07/2016

324 STATEMENT of Plaintiffs AND MATERIALS RELATING TO ADEQUACY OF CLASS COUNSEL PURSUANT TO FED. R. CIV. PROC. 23(g) by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ (Angelis, Theodore) (Entered: 07/07/2016)

07/07/2016

325 DECLARATION of Matt Adams re 324 Statement, by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ (Attachments: # 1 Certificate of Service)(Angelis, Theodore) (Entered: 07/07/2016)

07/07/2016

326 DECLARATION of AHILAN ARULANANTHAM re 324 Statement, by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ (Attachments: # 1 Certificate of Service)(Angelis, Theodore) (Entered: 07/07/2016)

07/07/2016

327 DECLARATION of MELISSA CROW re 324 Statement, by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ (Attachments: # 1 Certificate of Service)(Angelis, Theodore) (Entered: 07/07/2016)

07/07/2016

328 DECLARATION of KRISTEN JACKSON re 324 Statement, by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ (Attachments: # 1 Certificate of Service)(Angelis, Theodore) (Entered: 07/07/2016)

07/08/2016

329 MINUTE ENTRY for proceedings held before Hon. Judge Thomas S. Zilly- Dep Clerk: Gail Glass; Pla Counsel: Ahilan Arulanantham, Matt Adams, Stephen Kang, Glenda Aldana Madrid and Kristen Jackson; Def Counsel: Erez Reuveni and Vinita Andrapalliyal; CR: Nancy Bauer; Time of Hearing: 9:00 a.m.; Courtroom: 15206; Motion Hearing held on 7/8/2016. The Court hears oral argument on the pending motions, docket nos. 269 , 295 , 298 and 304 . For the reasons stated on the record, plaintiff F.L.B.'s motion for a preliminary injunction, docket no. 298 , is DENIED. The deferred portion of plaintiffs' motion to compel, docket no. 295 , is GRANTED as follows: Plaintiffs may take a three-hour Rule 30(b)(6) on Topics 11-17 relating to U.S. Immigration and Customs Enforcement policies and training, as set forth in their Notice of Deposition, docket no. [296-1], within thirty (30) days; defendants may invoke any applicable privilege. Defendants' motion to continue trial and related deadlines, docket no. 269 , and plaintiffs' motion to extend certain deadlines, docket no. 304 , are each GRANTED in part and DENIED in part. The trial date is continued from September 12, 2016, to November 7, 2016. The Court indicated that the parties should be prepared to start trial as early as November 1, 2016. The Court will issue a separate scheduling order. The parties estimate that trial will require between 9 and 12 days. Plaintiffs indicate that they do not intend to call as witnesses at trial, or submit in connection with dispositive motions or responses thereto any declarations from, Mirta Laura Contreras, Ann Herrera, or Jennifer Lissette Anzardo. Plaintiffs, however, wish to call as witnesses Blaine Bookey, Rebekah L. Fletcher, and Daniel J. Sharp. As to each of these three individuals, defendants may take a three-hour deposition. Defendants may also propound ten (10) additional written discovery requests, including all subparts, in any combination of requests for admissions, requests for production, or interrogatories, within ten (10) days. Defendants may depose either M.A.M. or Rosa Pedro, but not both individuals. Discovery shall be completed by August 8, 2016. The parties shall confer and provide a joint status report prior to the pretrial conference concerning the parties' views about whether experts may provide direct testimony via declaration and offer live testimony at trial only through cross-examination and redirect. (GG) (Entered: 07/13/2016)

07/13/2016 330 DECLARATION Regarding the Identity of Named Plaintiff M.A.M. of Kristen Jackson by Plaintiffs A.E.G.E., AFMJ, EGC, D G FM, J FM, J

E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MAM, MRJ (Angelis, Theodore) (Entered: 07/13/2016)

07/14/2016

331 MOTION for Protective Order by Defendants Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, Thomas S Winkowski. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Proposed Order) Noting Date 7/22/2016, (Andrapalliyal, Vinita) (Entered: 07/14/2016)

07/20/2016

332 MOTION Remove Katherine Peguero as Next Friend to J.R.A.P. and Appoint Ingrid Perez as Next Friend to J.R.A.P. by Plaintiffs A.E.G.E., AFMJ, Marvin Alexis Aguilar Mendoza, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MRJ. (Attachments: # 1 Exhibit, # 2 Proposed Order) Noting Date 8/5/2016, (Crow, Melissa) (Entered: 07/20/2016)

07/20/2016

333 DECLARATION of Kristin Macleod-Ball filed by Plaintiffs A.E.G.E., AFMJ, Marvin Alexis Aguilar Mendoza, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MRJ re 332 MOTION Remove Katherine Peguero as Next Friend to J.R.A.P. and Appoint Ingrid Perez as Next Friend to J.R.A.P. (Crow, Melissa) (Entered: 07/20/2016)

07/20/2016

334 RESPONSE, by Plaintiffs A.E.G.E., AFMJ, Marvin Alexis Aguilar Mendoza, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MRJ, to 331 MOTION for Protective Order . (Attachments: # 1 Exhibit Exhibit A)(Arulanantham, Ahilan) (Entered: 07/20/2016)

07/22/2016

335 REPLY, filed by Defendants Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Juan P. Osuna, Sarah R Saldana, Bryan Wilcox, TO RESPONSE to 331 MOTION for Protective Order (Attachments: # 1 Exhibit Notice of Deposition, # 2 Exhibit E-mail between counsel)(Silvis, William) (Entered: 07/22/2016)

07/28/2016 336 MINUTE ORDER granting defendants' 331 Motion for Protective Order by Judge Thomas S. Zilly.(RS) (Entered: 07/28/2016)

07/29/2016

337 MINUTE ORDER by Judge Thomas S. Zilly. BENCH TRIAL 11/7/2016 9:00 AM (9-12 days), Pretrial Conference set for 10/28/2016 at 09:00 AM before Judge Thomas S. Zilly. Discovery completed by 8/8/2016, Dispositive motions due by 8/11/2016, Motions in Limine due by 9/8/2016, Pretrial Order due by 10/20/2016, Proposed Findings of Fact and Conclusions of Law to be submitted by

10/20/2016, Trial briefs to be submitted by 10/20/2016, Deposition testimony designations due by 10/20/16. (CDA) (Entered: 07/29/2016)
08/04/2016 338 ORDER of USCA (15-35738) as to 183 Notice of Appeal, filed by Loretta Lynch. (RE) (Entered: 08/04/2016)

08/05/2016 339 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion Hearing held on 7/8/2016 before Judge Thomas S. Zilly.

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.

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. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.

To purchase a copy of the transcript, contact court reporter Nancy Bauer, nancy_bauer@wawd.uscourts.gov, 206-370-8506.

Release of Transcript Restriction set for 11/3/2016, (NB) (Entered: 08/05/2016)

08/08/2016

340 REQUEST (JOINT REQUEST) by Plaintiffs A.E.G.E., AFMJ, Marvin Alexis Aguilar Mendoza, EGC, G.J.C.P., JRAP, KNSM, F LB, LJM, MRJ for ENLARGEMENT OF PAGE LIMIT FOR PARTIES' MOTIONS FOR SUMMARY JUDGMENT (Attachments: # 1 Proposed Order)(Arulanantham, Ahilan) (Entered: 08/08/2016)

08/10/2016 341 MINUTE ORDER granting parties' 340 Joint Request for leave to file overlength briefs by Judge Thomas S. Zilly. (RS) (Entered: 08/10/2016)

08/11/2016

342 MOTION for Summary Judgment by Plaintiffs A.E.G.E., AFMJ, Marvin Alexis Aguilar Mendoza, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MRJ. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 9/2/2016, (Aldana Madrid, Glenda) (Entered: 08/11/2016)

08/11/2016

343 Eighth DECLARATION of Stephen Kang filed by Plaintiffs A.E.G.E., AFMJ, Marvin Alexis Aguilar Mendoza, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MRJ re 342 MOTION for Summary Judgment (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit,

# 6 Exhibit, # 7 Exhibit)(Aldana Madrid, Glenda) (Entered: 08/11/2016)

08/11/2016

344 Unopposed MOTION to Seal by Plaintiffs A.E.G.E., AFMJ, Marvin Alexis Aguilar Mendoza, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MRJ. (Attachments: # 1 Proposed Order) Noting Date 8/19/2016, (Aldana Madrid, Glenda) (Entered: 08/11/2016)

08/11/2016

345 SEALED DOCUMENT (Exhibits DD, II, JJ, and OO of Dkt. 343) by Plaintiffs A.E.G.E., AFMJ, Marvin Alexis Aguilar Mendoza, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MRJ re 344 Unopposed MOTION to Seal (Aldana Madrid, Glenda) (Entered: 08/11/2016)

08/11/2016

346 SEALED MOTION for Summary Judgment by Defendants Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, Thomas S Winkowski. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Proposed Order) Noting Date 9/2/2016, (Darrow, Joseph) Modified on 8/23/2016 to seal motion (note: attachments are not sealed), counsel to file redacted version (AD). (Entered: 08/11/2016)

08/11/2016

347 Unopposed MOTION to Seal Exhibits by Defendants Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, Thomas S Winkowski. (Attachments: # 1 Proposed Order) Noting Date 8/19/2016, (Andrapalliyal, Vinita) (Entered: 08/11/2016)

08/12/2016

348 SEALED DOCUMENT (Exhibits A-H re: Motion for Summary Judgment) by Defendants Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, Thomas S Winkowski re 347 Unopposed MOTION to Seal Exhibits, 346 MOTION for Summary Judgment (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Andrapalliyal, Vinita) (Entered: 08/12/2016)

08/22/2016

349 MINUTE ORDER by Judge Thomas S. Zilly. Plaintiffs' 332 unopposed motion to substitute the "next friend" for plaintiff J.R.A.P. is GRANTED. Katherine Peguero is removed and Ingrid Perez is appointed as "next friend" for J.R.A.P. Clerk DIRECTED to update the docket accordingly; Plaintiffs' 344 unopposed motion to seal is GRANTED. Exhibits DD, JJ, and OO, as well as Attachment B of

Exhibit II, to the Declaration of Stephen Kang, docket no. 345 , shall remain under seal. Defendants' 347 unopposed motion to seal is GRANTED. Exhibits A-H, docket no. 348 , to defendants' motion for summary judgment shall remain under seal. (AD) (Entered: 08/22/2016)

08/23/2016

NOTICE of Docket Text Modification re 346 MOTION for Summary Judgment: motion sealed, counsel to file redacted version. (AD) (Entered: 08/23/2016)

08/25/2016

350 Stipulated MOTION to Seal And File Redacted Motion for Summary Judgment by Defendants Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, Thomas S Winkowski. (Attachments: # 1 Exhibit Redacted Motion for Summary Judgment, # 2 Proposed Order) Noting Date 8/25/2016, (Darrow, Joseph) (Entered: 08/25/2016)

08/26/2016

351 MINUTE ORDER granting defendants' 350 Motion to seal unredacted motion for summary judgment by Judge Thomas S. Zilly.(RS) (Entered: 08/26/2016)

08/29/2016

352 RESPONSE, by Plaintiffs A.E.G.E., AFMJ, Marvin Alexis Aguilar Mendoza, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MRJ, to 350 Stipulated MOTION to Seal And File Redacted Motion for Summary Judgment, 346 MOTION for Summary Judgment . (Arulanantham, Ahilan) (Entered: 08/29/2016)

08/29/2016

353 DECLARATION of Stephen B. Kang in Support of Plaintiffs' Opposition to Defendant's Motion for Summary Judgement filed by Plaintiffs A.E.G.E., AFMJ, Marvin Alexis Aguilar Mendoza, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MRJ re 350 Stipulated MOTION to Seal And File Redacted Motion for Summary Judgment, 346 MOTION for Summary Judgment (Attachments: # 1 Exhibits AAA-GGG, # 2 Exhibits HHH-KKK (LLL Filed Under Seal), # 3 Exhibits MMMNNN, # 4 Exhibits OOO-RRR, # 5 Exhibits SS,SSS, TT, TTT, UU, UUU, # 6 Exhibits VV-ZZ)(Arulanantham, Ahilan) (Entered: 08/29/2016)

08/29/2016

354 MOTION to Seal by Plaintiffs A.E.G.E., AFMJ, Marvin Alexis Aguilar Mendoza, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MRJ. (Attachments: # 1 Proposed Order) Noting Date 9/9/2016, (Arulanantham, Ahilan) (Entered: 08/29/2016)

08/29/2016

355 UNREDACTED SEALED Exhibit LLL to 346 MOTION for Summary Judgment , by Plaintiffs A.E.G.E., AFMJ, Marvin Alexis Aguilar Mendoza, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MRJ (Arulanantham, Ahilan) Modified on 8/30/2016 to clarify document filed (AD). (Entered: 08/29/2016)

08/29/2016

356 MOTION to Seal Exhibits to Opposition to Plaintiffs' Motion for Summary Judgment by Defendants Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, Thomas S Winkowski. (Attachments: # 1 Proposed Order) Noting Date 8/29/2016, (Darrow, Joseph) (Entered: 08/29/2016)

08/29/2016

357 RESPONSE, by Defendants Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, Thomas S Winkowski, to 342 MOTION for Summary Judgment . (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U)(Andrapalliyal, Vinita) (Entered: 08/29/2016)

08/29/2016

358 SEALED DOCUMENT (Exhibits C, E, and F) by Defendants Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, Thomas S Winkowski re 356 MOTION to Seal Exhibits to Opposition to Plaintiffs' Motion for Summary Judgment, 357 Response to Motion,, (Attachments: # 1 Exhibit C, # 2 Exhibit E, # 3 Exhibit F)(Darrow, Joseph) (Entered: 08/29/2016)

09/02/2016

359 REPLY, filed by Defendants Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, Thomas S Winkowski, TO RESPONSE to 346 MOTION for Summary Judgment (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Darrow, Joseph) (Entered: 09/02/2016)

09/02/2016

360 REPLY, filed by Plaintiffs A.E.G.E., AFMJ, Marvin Alexis Aguilar Mendoza, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MRJ, TO RESPONSE to 342 MOTION for Summary Judgment (Arulanantham, Ahilan) (Entered: 09/02/2016)

09/02/2016

361 DECLARATION of Stephen Kang in Support of Plaintiffs' Motion for Summary Judgement filed by Plaintiffs A.E.G.E., AFMJ, Marvin Alexis Aguilar Mendoza, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MRJ re 342 MOTION for Summary Judgment (Attachments: # 1 Exhibits XXX-ZZZ, # 2 Exhibits AAAA-FFFF, # 3 Exhibits GGGG-IIII, # 4 Exhibits JJJJ-LLLL)(Arulanantham, Ahilan) (Entered: 09/02/2016)

09/02/2016

362 Supplemental DECLARATION of DR. SUSAN B. LONG IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT filed by Plaintiffs A.E.G.E., AFMJ, Marvin Alexis Aguilar Mendoza, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MRJ re 342 MOTION for Summary Judgment (Arulanantham, Ahilan) (Entered: 09/02/2016)

09/06/2016

363 MINUTE ORDER granting plaintiffs' 354 Motion to Seal; granting defendants' 356 Motion to Seal by Judge Thomas S. Zilly.(RS) (Entered: 09/06/2016)

09/08/2016

364 Redacted MOTIONS IN LIMINE by Plaintiffs A.E.G.E., AFMJ, Marvin Alexis Aguilar Mendoza, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MRJ. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 9/23/2016, (Aldana Madrid, Glenda) (Entered: 09/08/2016)

09/08/2016

365 DECLARATION of Stephen B. Kang filed by Plaintiffs A.E.G.E., AFMJ, Marvin Alexis Aguilar Mendoza, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MRJ re 364 Redacted MOTIONS IN LIMINE (Attachments: # 1 Exhibit)(Aldana Madrid, Glenda) (Entered: 09/08/2016)

09/08/2016

366 Unopposed MOTION to Seal by Plaintiffs A.E.G.E., AFMJ, Marvin Alexis Aguilar Mendoza, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MRJ. (Attachments: # 1 Proposed Order) Noting Date 9/16/2016, (Aldana Madrid, Glenda) (Entered: 09/08/2016)

09/08/2016

367 SEALED MOTION to in Limine; re 366 Unopposed MOTION to Seal , 364 Redacted MOTIONS IN LIMINE ; by Plaintiffs A.E.G.E., AFMJ, Marvin Alexis Aguilar Mendoza, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MRJ. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 9/23/2016, (Aldana Madrid, Glenda) (Entered: 09/08/2016)

09/08/2016

368 UNREDACTED SEALED 365 Declaration,, by Plaintiffs A.E.G.E., AFMJ, Marvin Alexis Aguilar Mendoza, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MRJ (Aldana Madrid, Glenda) (Entered: 09/08/2016)

09/08/2016

369 MOTIONS IN LIMINE by Defendants Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, Thomas S Winkowski. Oral Argument Requested. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Proposed Order) Noting Date 9/23/2016, (Parascandola, Christina) (Entered: 09/08/2016)

09/15/2016

370 NOTICE of Change of Address/Change of Name of Attorney Kristin a Macleod-Ball. Filed by Plaintiffs A.E.G.E., AFMJ, Marvin Alexis Aguilar Mendoza, EGC, G.J.C.P., JRAP, KNSM, F LB, LJM, MRJ. (Macleod-Ball, Kristin) Modified Address on 9/15/2016 (DS). (Entered: 09/15/2016)

09/15/2016

371 MOTION to Stay Trial Pending Interlocutory Appeal by Defendants Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Juan P. Osuna, Sarah R Saldana, Bryan Wilcox. (Attachments: # 1 Proposed Order) Noting Date 9/23/2016, (Silvis, William) (Entered: 09/15/2016)

09/19/2016

372 RESPONSE, by Plaintiffs A.E.G.E., AFMJ, Marvin Alexis Aguilar Mendoza, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MRJ, to 369 MOTIONS IN LIMINE . (Angelis, Theodore) (Entered: 09/19/2016)

09/19/2016

373 DECLARATION of Stephen B. Kang re 372 RESPONSE, by Plaintiffs A.E.G.E., AFMJ, Marvin Alexis Aguilar Mendoza, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MRJ, to 369 MOTIONS IN LIMINE . (Angelis, Theodore) Modified on 9/20/2016 to edit text to reflect document filed (AD). (Entered: 09/19/2016)

09/19/2016 374 MINUTE ORDER granting plaintiffs' 366 Motion to Seal by Judge Thomas S. Zilly.(RS) (Entered: 09/19/2016)

09/19/2016

375 RESPONSE, by Defendants Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, Thomas S Winkowski, to 367 SEALED MOTION to in Limine; re 366 Unopposed MOTION to Seal , 364 Redacted MOTIONS IN LIMINE ;. Oral Argument Requested. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Parascandola, Christina) (Entered: 09/19/2016)

09/19/2016

376 Unopposed MOTION to Seal Defendants' Response to Plaintiffs' Motion in Limine by Defendants Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, Thomas S Winkowski. Noting Date 9/30/2016, (Parascandola, Christina) (Entered: 09/19/2016)

09/19/2016

377 UNREDACTED SEALED 375 Response to Motion,, by Defendants Sylvia M Burwell, Robert Carey, Jeh C Johnson, Loretta Lynch, Lisa McDaniel, Juan P. Osuna, Leon Rodriguez, Sarah R Saldana, Bryan Wilcox, Thomas S Winkowski (Parascandola, Christina) (Entered: 09/19/2016)

09/20/2016

378 OPINION of USCA (NOT THE MANDATE 15-35738, 15-35739) as to 181 Notice of Appeal, filed by J E FM, 183 Notice of Appeal, filed by Loretta Lynch. AFFIRMED as to the statutory claim; REVERSED as to the constitutional claim. The parties shall each bear their own costs on appeal. (RE) (Entered: 09/20/2016)

09/20/2016

NOTICE of Docket Text Modification re 373 Response to Motion Declaration: wrong event used, docket text modified accordingly. (AD) (Entered: 09/20/2016)

09/20/2016

379 ORDER of USCA (15-35738, 15-35739) as to 181 Notice of Appeal, filed by J E FM, 183 Notice of Appeal, filed by Loretta Lynch. (RE) (Entered: 09/20/2016)

09/20/2016

380 MINUTE ORDER by Judge Thomas S. Zilly. Defendants' 376 unopposed motion to seal is GRANTED as follows. Defendants' 377 unredacted response to plaintiffs' motions in limine shall remain under seal. In light of the opinion of the United States Court of Appeals for the Ninth Circuit issued earlier today, the trial date and all remaining related deadlines in this matter are STRICKEN. The pending cross-motions for summary judgment, docket nos. 342 and 346 , and the pending motions in limine, docket nos. 364 , 367 , and 369 , are STRICKEN without prejudice to reactivating them in the event that the Ninth Circuit's decision is vacated, reversed, or modified before mandate issues. Defendants' motion to stay trial pending interlocutory appeal, docket no. 371 , is STRICKEN as moot. (AD) (Entered: 09/20/2016)

10/24/2016

381 ORDER of USCA (15-35738, 15-35739) as to 183 Notice of Appeal, filed by Loretta Lynch. (RE) Modified on 12/7/2016 to add CCA#. (Entered: 10/25/2016)

12/06/2016

382 ORDER of USCA (15-35738, 15-35739) as to 181 Notice of Appeal, filed by J E FM, 183 Notice of Appeal, filed by Loretta Lynch. (RE) (Entered: 12/07/2016)

02/23/2017

383 NOTICE of Appearance by attorney Emily Chiang on behalf of Plaintiffs A.E.G.E., AFMJ, Marvin Alexis Aguilar Mendoza, EGC, G.J.C.P., JRAP, KNSM, F LB, LJM, MRJ. (Chiang, Emily) (Entered: 02/23/2017)

02/23/2017

384 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Margaret Chen for Plaintiffs A.E.G.E., AFMJ, Marvin Alexis Aguilar Mendoza, EGC, G.J.C.P., JRAP, KNSM, F LB, LJM, MRJ. (Chiang, Emily) (Entered: 02/23/2017)

02/05/2018

385 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Melissa Crow for Plaintiffs A.E.G.E., AFMJ, Marvin Alexis Aguilar Mendoza, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MRJ. (Crow, Melissa) (Entered: 02/05/2018)

02/09/2018

386 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Carmen G Iguina for Plaintiffs A.E.G.E., AFMJ, Marvin Alexis Aguilar Mendoza, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MRJ. (Arulanantham, Ahilan) (Entered: 02/09/2018)

02/09/2018

387 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Heidi Craig Garcia for Plaintiffs A.E.G.E., AFMJ, Marvin Alexis Aguilar Mendoza, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MRJ. (Angelis, Theodore) (Entered: 02/09/2018)

11/13/2018

388 ORDER of USCA (15-35738, 15-35739) as to 181 Notice of Appeal,filed by J E FM, 183 Notice of Cross Appeal, filed by Loretta Lynch (CDA) (Entered: 11/13/2018)

11/27/2018

389 MANDATE of USCA (15-35738, 15-35739) as to 181 Notice of Appeal, filed by J E FM, 183 Notice of Appeal, filed by Loretta Lynch. The judgment of this Court, entered September 20, 2016, takes effect this date. This constitutes the formal mandate of this Court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure. The parties shall each bear their own costs on appeal. AFFIRMED as to the statutory claim; REVERSED as to the constitutional claim. (CDA)cc Case Admins (Entered: 11/28/2018)

12/06/2018 390 MINUTE ORDER TO SHOW CAUSE on or before 12/20/2018, why this matter should not be dismissed without prejudice for lack of

jurisdiction. Authorized by Judge Thomas S. Zilly. (SWT) (Entered: 12/06/2018)

12/20/2018

391 RESPONSE TO ORDER TO SHOW CAUSE by Plaintiffs A.E.G.E., AFMJ, Marvin Alexis Aguilar Mendoza, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MRJ (Adams, Matt) (Entered: 12/20/2018)

03/04/2019

392 NOTICE re 390 Order to Show Cause ; filed by Plaintiffs A.E.G.E., AFMJ, Marvin Alexis Aguilar Mendoza, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MRJ. (Adams, Matt) (Entered: 03/04/2019)

05/01/2019

393 RESPONSE TO ORDER TO SHOW CAUSE by Plaintiffs A.E.G.E., AFMJ, Marvin Alexis Aguilar Mendoza, EGC, D G FM, J FM, J E FM, G.J.C.P., G M GC, GDS, S R IC, J.E.V.G., JRAP, KNSM, F LB, LJM, MRJ (Adams, Matt) (Entered: 05/01/2019)

05/02/2019

394 MINUTE ORDER dismissing this matter without prejudice for lack of jurisdiction. Authorized by Judge Thomas S. Zilly. (SWT)(William Barr added. Loretta Lynch terminated.) (Entered: 05/02/2019)