Case: 3:18-cv-1626 As of: 07/27/2018 07:03 PM PDT 1 of 13
U.S. District Court Southern District of California (San Diego) CIVIL DOCKET FOR CASE #: 3:18−cv−01626−DMS−JLB

N.T.C. et al v. U.S. Immigration and Customs Enforcement et al Assigned to: Judge Dana M. Sabraw Referred to: Magistrate Judge Jill L. Burkhardt Case in other court: New York Southern, 1:18−cv−06428 Cause: 08:1101
Plaintiff

Date Filed: 07/19/2018 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

N.T.C. by and through his net friend Rev. Marie A. Tatro

represented by Charles D. Reiter Simpson Thacher & Bartlett LLP 1999 Avenue of the Stars Los Angeles, CA 90067 310−407−7500 Fax: 310−407−7502 Email: charles.reiter@stblaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Chet A Kronenberg Simpson Thacher and Bartlett LLP 1999 Avenue of the Stars 29th Floor Los Angeles, CA 90067−4607 (310)407−7557 Fax: (310)407−7502 Email: ckronenberg@stblaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Mary Rieser−Murphy The Legal Aid Society of New York 199 Water Street New York, NY 10038−3526 212−577−3000 Email: ERieser−Murphy@legal−aid.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Gregory Paul Copeland The Legal Aid Society of New York 199 Water Street New York, NY 10038−3526 212−577−3000 Email: GCopeland@legal−aid.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Harrison J. Frahn , IV Simpson Thacher & Bartlett LLP 2475 Hanover Street Palo Alto, CA 94304 650.251.5000 Fax: 650.251.5002 Email: hfrahn@stblaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer L. Levy

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The Legal Aid Society of New York 199 Water Street New York, NY 10038−3526 212−577−3000 Email: JLevy@legal−aid.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Judith Goldiner The Legal Aid Society of New York 199 Water Street New York, NY 10038−3526 212−577−3000 Email: JGoldiner@legal−aid.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Scott Alan Rosenberg The Legal Aid Society (Civil Div. NYC) 199 Water Street 3rd Floor New York, NY 10038 212−440−4226 Fax: 212−509−8753 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah Telo Gillman The Legal Aid Society 199 Water Street 3rd Floor New York, NY 11201 212−577−3356 Fax: 646−616−4356 Email: stgillman@legal−aid.org ATTORNEY TO BE NOTICED

Plaintiff
H.M.C. by and through her next friend Mallory Winter

represented by Charles D. Reiter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Chet A Kronenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Mary Rieser−Murphy (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Gregory Paul Copeland (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Harrison J. Frahn , IV (See above for address) LEAD ATTORNEY

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ATTORNEY TO BE NOTICED
Jennifer L. Levy (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Judith Goldiner (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Scott Alan Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
U.S. Immigration and Customs Enforcement ("ICE")

represented by August Edward Flentje U.S. Department of Justice 950 Pennsylvania Avenue, NW Room 3613 Washington, DC 20530 202−514−3309 Email: august.flentje@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Matthew Waterman United States Attorney's Office, SDNY 86 Chambers Street New York, NY 10007 (212)−637−2741 Email: brandon.waterman@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Fabian U.S. Department of Justice Office of Immigration Litigation P. O. Box 868 Ben Franklin Station Washington, DC 20044 202−532−4824 Email: sarah.b.fabian@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ann M. Welhaf U.S. Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, DC 20044 202−532−4090 Fax: 202−616−8460 Email: ann.welhaf@usdoj.gov ATTORNEY TO BE NOTICED
Michael James Byars U.S. Attorney's Office, SDNY (Chambers

Case: 3:18-cv-1626 As of: 07/27/2018 07:03 PM PDT 4 of 13

Street) 86 Chambers Street New York, NY 10007 (212) 637−2793 Fax: (212) 637−2717 Email: michael.byars@usdoj.gov ATTORNEY TO BE NOTICED

Defendant
U.S. Department of Homeland Security ("DHS")

represented by August Edward Flentje (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brandon Matthew Waterman United States Attorney's Office, SDNY 86 Chambers Street New York, NY 10007 (212)−637−2741 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Ann M. Welhaf (See above for address) ATTORNEY TO BE NOTICED

Michael James Byars (See above for address) ATTORNEY TO BE NOTICED

Defendant
U.S. Customs and Border Protection ("CBP")

represented by August Edward Flentje (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brandon Matthew Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Ann M. Welhaf (See above for address) ATTORNEY TO BE NOTICED

Michael James Byars U.S. Attorney's Office, SDNY (Chambers Street) 86 Chambers Street New York, NY 10007 (212) 637−2793 Fax: (212) 637−2717 ATTORNEY TO BE NOTICED

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Defendant U.S. Citizenship and Immigration Services ("USCIS")
Defendant U.S. Department of Health and Human Services ("HHS")
Defendant Office of Refugee Resettlement ("ORR")

represented by August Edward Flentje (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Matthew Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ann M. Welhaf (See above for address) ATTORNEY TO BE NOTICED
Michael James Byars (See above for address) ATTORNEY TO BE NOTICED
represented by August Edward Flentje (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Matthew Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ann M. Welhaf (See above for address) ATTORNEY TO BE NOTICED
Michael James Byars (See above for address) ATTORNEY TO BE NOTICED
represented by August Edward Flentje (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Matthew Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Fabian (See above for address) LEAD ATTORNEY

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ATTORNEY TO BE NOTICED

Ann M. Welhaf (See above for address) ATTORNEY TO BE NOTICED

Michael James Byars (See above for address) ATTORNEY TO BE NOTICED

Defendant
Ronald Vitiello Acting Director of ICE

represented by August Edward Flentje (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brandon Matthew Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Ann M. Welhaf (See above for address) ATTORNEY TO BE NOTICED

Michael James Byars (See above for address) ATTORNEY TO BE NOTICED

Defendant
Kirstjen Nielsen Secretary of DHS

represented by August Edward Flentje (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brandon Matthew Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Ann M. Welhaf (See above for address) ATTORNEY TO BE NOTICED

Michael James Byars (See above for address) ATTORNEY TO BE NOTICED

Defendant
Jefferson Beauregard Sessions III Attorney General of the United States

represented by August Edward Flentje (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Defendant L. Francis Cissna Director of USCIS
Defendant Kevin K. McAleenan Commissioner of CBP

Brandon Matthew Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ann M. Welhaf (See above for address) ATTORNEY TO BE NOTICED
Michael James Byars (See above for address) ATTORNEY TO BE NOTICED
represented by August Edward Flentje (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Matthew Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ann M. Welhaf (See above for address) ATTORNEY TO BE NOTICED
Michael James Byars (See above for address) ATTORNEY TO BE NOTICED
represented by August Edward Flentje (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Matthew Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ann M. Welhaf (See above for address) ATTORNEY TO BE NOTICED
Michael James Byars

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(See above for address) ATTORNEY TO BE NOTICED

Defendant
Alex Azar Secretary of the Department of Health and Human Services

represented by August Edward Flentje (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brandon Matthew Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Ann M. Welhaf (See above for address) ATTORNEY TO BE NOTICED

Michael James Byars (See above for address) ATTORNEY TO BE NOTICED

Defendant
Scott Lloyd Director of the Office of Refugee Resettlement

represented by August Edward Flentje (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brandon Matthew Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Ann M. Welhaf (See above for address) ATTORNEY TO BE NOTICED

Michael James Byars (See above for address) ATTORNEY TO BE NOTICED

Date Filed 07/16/2018

# Docket Text
1 COMPLAINT against Alex Azar, L. Francis Cissna, Scott Lloyd, Kevin K. McAleenan, Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson Beauregard Sessions III, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Health and Human Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Ronald Vitiello. (Filing Fee $ 400.00, Receipt Number 465401213888)Document filed by H.M.C., N.T.C..(pc) (jgo). [Transferred from New York Southern on 7/19/2018.] (Entered: 07/17/2018)

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2 CIVIL COVER SHEET filed. (pc) (jgo). [Transferred from New York Southern on 7/19/2018.] (Entered: 07/17/2018)
Magistrate Judge Debra C. Freeman is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: http://nysd.uscourts.gov/forms.php. (pc) [Transferred from New York Southern on 7/19/2018.] (Entered: 07/17/2018)
Case Designated ECF. (pc) [Transferred from New York Southern on 7/19/2018.] (Entered: 07/17/2018)
***NOTE TO ATTORNEY TO E−MAIL PDF. Note to Attorney Scott Alan Rosenberg for noncompliance with Section 14.2 of the S.D.N.Y. Electronic Case Filing Rules & Instructions. E−MAIL the PDF for Document 1 Complaint, 2 Civil Cover Sheet to: caseopenings@nysd.uscourts.gov. (pc) [Transferred from New York Southern on 7/19/2018.] (Entered: 07/17/2018)
Minute Entry for proceedings held before Judge Laura Taylor Swain: Temporary Restraining Order Hearing held on 7/17/2018. Court Reporter Michael McDaniel present. TRO HEARING held. Defendants are restrained from taking any action to remove minor children who are in ORR custody w/o providing 48 hrs advance notice. The injunction is in effect until 10am on Thursday, 7/19/2018. (Order to follow.) (lan) [Transferred from New York Southern on 7/19/2018.] (Entered: 07/17/2018)
3 NOTICE OF APPEARANCE by Brandon Matthew Waterman on behalf of Alex Azar, L. Francis Cissna, Scott Lloyd, Kevin K. McAleenan, Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson Beauregard Sessions III, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Health and Human Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Ronald Vitiello. (Waterman, Brandon) [Transferred from New York Southern on 7/19/2018.] (Entered: 07/17/2018)
4 ORDER: The parties shall appear for a conference with the Court TODAY, at 3:30 p.m., in Courtroom 1105 of the Thurgood Marshall Courthouse, 40 Centre Street, New York, NY 10007. All counsel who appeared last night before Judge Swain or will appear before this Court shall promptly enter a notice of appearance on ECF. SO ORDERED. (Signed by Judge Jesse M. Furman on 7/17/2018) (Text Only Order) (Furman, Jesse) [Transferred from New York Southern on 7/19/2018.] (Entered: 07/17/2018)
5 NOTICE OF APPEARANCE by Sarah Telo Gillman on behalf of N.T.C.. (Gillman, Sarah) [Transferred from New York Southern on 7/19/2018.] (Entered: 07/17/2018)
6 NOTICE OF APPEARANCE by Gregory Paul Copeland on behalf of H.M.C., N.T.C.. (Copeland, Gregory) [Transferred from New York Southern on 7/19/2018.] (Entered: 07/17/2018)
7 LETTER addressed to Judge Jesse M. Furman from Gregory P. Copeland dated July 17, 2018 re: Transcript of Order to Show Cause Hearing. Document filed by H.M.C., N.T.C.. (Attachments: # 1 Exhibit NTC v ICE OTSC 7.17.18 Transcript)(Copeland, Gregory) [Transferred from New York Southern on 7/19/2018.] (Entered: 07/17/2018)
8 NOTICE OF APPEARANCE by Jennifer L. Levy on behalf of H.M.C., N.T.C.. (Levy, Jennifer) [Transferred from New York Southern on 7/19/2018.] (Entered: 07/17/2018)
9 ORDER: ORDERED, that Defendants ARE HEREBY RESTRAINED from taking any action to remove minor children clients of the Legal Aid Society from New York State who are in ORR custody without providing forty−eight (48) hours' advance notice of such forthcoming action to children and their counsel (including, without limitation, the location to which the minor child client will be moved, the location where the child's parent or parents currently reside, and whether the movement is for the purpose of release, detention, and/or repatriation), in order to permit consultation among the child, the child's parent or other close family member(s), and counsel to protect the child's ability to make informed decisions about his or her legal rights and potential claims. It is further ORDERED, that the injunction set forth in the foregoing paragraph is in effect from the time of issuance of this order until 10:00 a.m. on Thursday, July 19, 2018, subject to extension, other modification or vacatur by further

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07/17/2018
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order of the assigned judge. It is further ORDERED, that Plaintiffs' counsel shall deliver to Defendants' counsel a list of the names of the client children by 9:00 a.m. on Tuesday, July 17, 2018, and that, pending such delivery, Defendants shall assume that all minor children in New York in ORR custody who have been forcibly separated from their parents are clients of the Legal Aid Society. It is further ORDERED, that no bond is required. It is further ORDERED, that Plaintiffs shall file their Complaint in the office of the Clerk of Court by 9:30 a.m. on Tuesday July 17, 2018, and promptly inform Defendants' counsel of the name of the assigned judge. (Signed by Judge Laura Taylor Swain, Part 1, on 7/16/2018) (rro) [Transferred from New York Southern on 7/19/2018.] (Entered: 07/17/2018)
10 LETTER addressed to Judge Jesse M. Furman from Brandon M. Waterman dated July 17, 2018 re: Submission of electronic copies of the documents submitted at today's conference. Document filed by Alex Azar, L. Francis Cissna, Scott Lloyd, Kevin K. McAleenan, Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson Beauregard Sessions III, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Health and Human Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Ronald Vitiello. (Attachments: # 1 Ms. L. conference transcript 7−16−18, # 2 Ms. L plaintiffs' motion for a stay of removal and TRO, # 3 Ms. L. order granting TRO, # 4 Ms. L. status report concerning dueling Notices, # 5 Ms. L court−approved current Notice of Potential Rights (English), # 6 Ms. L court−approved current Notice of Potential Rights (Spanish))(Waterman, Brandon) [Transferred from New York Southern on 7/19/2018.] (Entered: 07/17/2018)
11 ORDER: In the letters to be filed tomorrow, the parties should also address the following questions: (1) whether there would be any impediment, legal or practical, to the Plaintiffs' intervening in the Ms. L litigation in the Southern District of California (and, in the Government's case, whether it would consent to Plaintiffs' intervention in the Ms. L litigation); (2) in the alternative, whether this case should be transferred to the Southern District of California to be consolidated with the Ms. L litigation; (3) whether there is any relief that Plaintiffs are seeking here that could not be obtained in the Ms. L litigation if intervention were granted; and (4) whether the order granting temporary relief should be extended (and, if so, for how long) to allow Plaintiffs' to seek intervention and relief in the Ms. L litigation. In addition, Plaintiffs' counsel shall confer with Plaintiffs' counsel in the Ms. L litigation and advise the Court of the latter's views on the questions of intervention or transfer as well. In light of these additional questions to address, the parties are granted until 3 p.m. to file the letters. SO ORDERED. (Signed by Judge Jesse M. Furman on 7/17/2018) (Text Only Order)(Furman, Jesse) [Transferred from New York Southern on 7/19/2018.] (Entered: 07/17/2018)
12 NOTICE OF APPEARANCE by Michael James Byars on behalf of Alex Azar, L. Francis Cissna, Scott Lloyd, Kevin K. McAleenan, Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson Beauregard Sessions III, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Health and Human Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Ronald Vitiello. (Byars, Michael) [Transferred from New York Southern on 7/19/2018.] (Entered: 07/18/2018)
13 ORDER: To ensure that the record in this case is complete, Plaintiffs shall, no later than July 19, 2018, file on ECF electronic versions of their application for emergency relief and supporting materials. SO ORDERED. (Signed by Judge Jesse M. Furman on 7/18/2018) (Text Only Order) (Furman, Jesse) [Transferred from New York Southern on 7/19/2018.] (Entered: 07/18/2018)
14 LETTER addressed to Judge Jesse M. Furman from Gregory P. Copeland dated July 18, 2018 re: ECF No. 11 Order. Document filed by H.M.C., N.T.C.. (Attachments: # 1 Exhibit Ex. A, Flores Settlement, # 2 Exhibit Ex. B, Commander White Transcript, # 3 Exhibit Ex. C, Ms. L Order re on Notice, # 4 Exhibit Ex. D, Ms L July 13 Order, # 5 Exhibit Ex. E, Separated Parent's Removal Form, # 6 Exhibit Ex. F, Ms. L Notice of Potential Rights, # 7 Exhibit Ex. G, Reunification Form)(Copeland, Gregory) [Transferred from New York Southern on 7/19/2018.] (Entered: 07/18/2018)
15 LETTER addressed to Judge Jesse M. Furman from Brandon M. Waterman dated July 18, 2018 re: The government's response to the Court's request for additional

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information. Document filed by Alex Azar, L. Francis Cissna, Scott Lloyd, Kevin K. McAleenan, Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson Beauregard Sessions III, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Health and Human Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Ronald Vitiello. (Attachments: # 1 7/17/18 Conference Transcript)(Waterman, Brandon) [Transferred from New York Southern on 7/19/2018.] (Entered: 07/18/2018)
16 LETTER addressed to Judge Jesse M. Furman from Brandon M. Waterman dated July 18, 2018 re: Corrected Government Letter. Document filed by Alex Azar, L. Francis Cissna, Scott Lloyd, Kevin K. McAleenan, Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson Beauregard Sessions III, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Health and Human Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Ronald Vitiello. (Attachments: # 1 Corrected Government Letter, # 2 Election Form (i.e., Notice of Potential Rights))(Waterman, Brandon) [Transferred from New York Southern on 7/19/2018.] (Entered: 07/18/2018)
17 LETTER addressed to Judge Jesse M. Furman from Sarah T. Gillman dated 07/18/2018 re: ECF 13 Order. Document filed by N.T.C..(Gillman, Sarah) [Transferred from New York Southern on 7/19/2018.] (Entered: 07/18/2018)
18 ORDER re: 17 Letter filed by N.T.C. Plaintiffs are granted leave to file redacted versions of the documents at issue. (Indeed, the redactions are mandated by Rule 5.2(a) of the Federal Rules of Civil Procedure.) SO ORDERED. (Signed by Judge Jesse M. Furman on 7/18/2018) (Furman, Jesse) (ab). [Transferred from New York Southern on 7/19/2018.] (Entered: 07/18/2018)
19 MEMORANDUM OF LAW re: 1 Complaint, . Document filed by N.T.C.. (Attachments: # 1 Exhibit Martinez Declaration, # 2 Exhibit Holtzman Declaration, # 3 Exhibit Murphy Declaration, # 4 Exhibit Krause Declaration, # 5 Exhibit Hoffman Declaration, # 6 Exhibit Zambrano Declaration, # 7 Exhibit Seperated Parent's Removal Form, # 8 Exhibit Fores Settlement)(Gillman, Sarah) [Transferred from New York Southern on 7/19/2018.] (Entered: 07/19/2018)
20 MEMORANDUM OPINION AND ORDER. Pursuant to Title 28, United States Code, Section 1404(a), the Court transfers this case to the Southern District of California. See, e.g., Contl Grain Co. v. The Barge FBL−585, 364 U.S. 19, 26 (1960) ("To permit a situation in which two cases involving precisely the same issues are simultaneously pending in different District Courts leads to the wastefulness of time, energy and money that § 1404(a) was designed to prevent."); Wyndham Assocs. v. Bintliff, 398 F.2d 614, 619 (2d Cir. 1968) (recognizing a "strong policy favoring the litigation of related claims in the same tribunal"); Stroud Prods. & Enters. v. Castle Rock Entm't, No. 07−CV−8638 (HB), 2009 WL 2391676, at *3 (S.D.N.Y. Aug. 4, 2009) ("[T]rial efficiency and the interests of justice weigh heavily in favor of litigating all related causes of action... in a single forum." (citation omitted)). Further, to preserve the status quo, the temporary relief granted by this Court on July 17, 2018, (Docket No. 9), is extended to give Judge Sabraw an opportunity to consider Plaintiffs request for broader emergency relief. The parties should promptly present those issues to Judge Sabraw so that he can decide whether to maintain, modify, or vacate the order granting temporary relief. The Clerk of Court is directed to transfer this action forthwith to the United States District Court for the Southern District of California, to be assigned to Judge Sabraw. The Clerk of Court is directed to effectuate the transfer immediately, notwithstanding Local Rule 83.1, and then to close the case in this Court. SO ORDERED. (Signed by Judge Jesse M. Furman on 7/19/2018) (rjm) [Transferred from New York Southern on 7/19/2018.] (Entered: 07/19/2018)
CASE TRANSFERRED OUT ELECTRONICALLY from the U.S.D.C. Southern District of New York to the United States District Court − District of Southern District of California (rjm) [Transferred from New York Southern on 7/19/2018.] (Entered: 07/19/2018)
21 Case transferred in from District of New York Southern; Case Number 1:18−cv−06428. Original file received electronically (Entered: 07/19/2018)

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22 Judge Dana M. Sabraw and Magistrate Judge Jill L. Burkhardt assigned to transfer case from Southern District of New York. (no document attached) (tel) Modified on 7/19/2018 to regenerate NEF, added attorneys email addresses & mailed NEF transfer to in−registered parties (dlg). (Entered: 07/19/2018)
23 NOTICE of Appearance by Harrison J. Frahn, IV on behalf of H.M.C., N.T.C. (Frahn, Harrison)Attorney Harrison J. Frahn, IV added to party H.M.C. (pty:pla), Attorney Harrison J. Frahn, IV added to party N.T.C. (pty:pla) (acc). (Entered: 07/20/2018)
24 NOTICE of Appearance by Chet A Kronenberg on behalf of H.M.C., N.T.C. (Kronenberg, Chet)Attorney Chet A Kronenberg added to party H.M.C. (pty:pla), Attorney Chet A Kronenberg added to party N.T.C. (pty:pla)(acc). (Entered: 07/20/2018)
25 NOTICE of Appearance by Charles D. Reiter on behalf of H.M.C., N.T.C. (Reiter, Charles)Attorney Charles D. Reiter added to party H.M.C. (pty:pla), Attorney Charles D. Reiter added to party N.T.C. (pty:pla) (acc). (Entered: 07/20/2018)
26 Request to Appear Pro Hac Vice, (Filing fee received: $ 206 receipt number 0974−11466679 − See 18cv0428−DMS−MDD, #127). (Application to be reviewed by Clerk.) (Rieser−Murphy, Elizabeth) Modified text on 7/23/2018 re filing fee info. (mdc) (Entered: 07/20/2018)
27 Request to Appear Pro Hac Vice, (Filing fee received: $ 206 receipt number 0974−11466944 − See 18cv0428−DMS−MDD, #130). (Application to be reviewed by Clerk.) (Copeland, Gregory) Modified text on 7/23/2018 re filing fee info. (mdc) (Entered: 07/20/2018)
28 Request to Appear Pro Hac Vice, (Filing fee received: $ 206 receipt number 0974−11466925 − See 18cv0428−DMS−MDD, #129). (Application to be reviewed by Clerk.) (Goldiner, Judith) Modified text on 7/23/2018 re filing fee info. (mdc) (Entered: 07/20/2018)
29 Request to Appear Pro Hac Vice, (Filing fee received: $ 206 receipt number 0974−11466899 − See 18cv0428−DMS−MDD, #128). (Application to be reviewed by Clerk.) (Levy, Jennifer) Modified text on 7/23/2018 re filing fee info. (mdc) (Entered: 07/20/2018)
30 NOTICE of Appearance by August Edward Flentje on behalf of Alex Azar, L. Francis Cissna, Scott Lloyd, Kevin K. McAleenan, Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson Beauregard Sessions III, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Health and Human Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Ronald Vitiello (Flentje, August)Attorney August Edward Flentje added to party Alex Azar(pty:dft), Attorney August Edward Flentje added to party L. Francis Cissna(pty:dft), Attorney August Edward Flentje added to party Scott Lloyd(pty:dft), Attorney August Edward Flentje added to party Kevin K. McAleenan(pty:dft), Attorney August Edward Flentje added to party Kirstjen Nielsen(pty:dft), Attorney August Edward Flentje added to party Office of Refugee Resettlement(pty:dft), Attorney August Edward Flentje added to party Jefferson Beauregard Sessions III(pty:dft), Attorney August Edward Flentje added to party U.S. Citizenship and Immigration Services(pty:dft), Attorney August Edward Flentje added to party U.S. Customs and Border Protection(pty:dft), Attorney August Edward Flentje added to party U.S. Department of Health and Human Services(pty:dft), Attorney August Edward Flentje added to party U.S. Department of Homeland Security(pty:dft), Attorney August Edward Flentje added to party U.S. Immigration and Customs Enforcement(pty:dft), Attorney August Edward Flentje added to party Ronald Vitiello(pty:dft) (acc). (Entered: 07/23/2018)
31 NOTICE of Appearance by Sarah B. Fabian on behalf of Alex Azar, L. Francis Cissna, Scott Lloyd, Kevin K. McAleenan, Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson Beauregard Sessions III, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Health and Human Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Ronald Vitiello (Fabian, Sarah)Attorney Sarah B. Fabian added to party Alex Azar(pty:dft), Attorney Sarah B. Fabian added to party L. Francis Cissna(pty:dft), Attorney Sarah B. Fabian added to party Scott Lloyd(pty:dft), Attorney Sarah B.

Case: 3:18-cv-1626 As of: 07/27/2018 07:03 PM PDT 13 of 13

07/23/2018 07/23/2018 07/23/2018 07/23/2018 07/24/2018
07/24/2018 07/27/2018

Fabian added to party Kevin K. McAleenan(pty:dft), Attorney Sarah B. Fabian added to party Kirstjen Nielsen(pty:dft), Attorney Sarah B. Fabian added to party Office of Refugee Resettlement(pty:dft), Attorney Sarah B. Fabian added to party Jefferson Beauregard Sessions III(pty:dft), Attorney Sarah B. Fabian added to party U.S. Citizenship and Immigration Services(pty:dft), Attorney Sarah B. Fabian added to party U.S. Customs and Border Protection(pty:dft), Attorney Sarah B. Fabian added to party U.S. Department of Health and Human Services(pty:dft), Attorney Sarah B. Fabian added to party U.S. Department of Homeland Security(pty:dft), Attorney Sarah B. Fabian added to party U.S. Immigration and Customs Enforcement(pty:dft), Attorney Sarah B. Fabian added to party Ronald Vitiello(pty:dft) (acc). (Entered: 07/23/2018)
32 ORDER Approving the Pro Hac Vice Application of Gregory Copeland, re 27 Request to Appear Pro Hac Vice. Signed by Judge Dana M. Sabraw on 7/23/2018. (mdc) (Entered: 07/24/2018)
33 ORDER Approving the Pro Hac Vice Application of Judith Goldiner, re 28 Request to Appear Pro Hac Vice. Signed by Judge Dana M. Sabraw on 7/23/2018. (mdc) (Entered: 07/24/2018)
34 ORDER Approving the Pro Hac Vice Application of Jennifer Levy, re 29 Request to Appear Pro Hac Vice. Signed by Judge Dana M. Sabraw on 7/23/2018. (mdc) (Entered: 07/24/2018)
35 ORDER Approving the Pro Hac Vice Application of Elizabeth Rieser−Murphy, re 26 Request to Appear Pro Hac Vice. Signed by Judge Dana M. Sabraw on 7/23/2018. (mdc) (Entered: 07/24/2018)
36 NOTICE of Appearance Ann M. Welhaf by Ann M. Welhaf on behalf of Alex Azar, L. Francis Cissna, Scott Lloyd, Kevin K. McAleenan, Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson Beauregard Sessions III, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Health and Human Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Ronald Vitiello (Welhaf, Ann)Attorney Ann M. Welhaf added to party Alex Azar(pty:dft), Attorney Ann M. Welhaf added to party L. Francis Cissna(pty:dft), Attorney Ann M. Welhaf added to party Scott Lloyd(pty:dft), Attorney Ann M. Welhaf added to party Kevin K. McAleenan(pty:dft), Attorney Ann M. Welhaf added to party Kirstjen Nielsen(pty:dft), Attorney Ann M. Welhaf added to party Office of Refugee Resettlement(pty:dft), Attorney Ann M. Welhaf added to party Jefferson Beauregard Sessions III(pty:dft), Attorney Ann M. Welhaf added to party U.S. Citizenship and Immigration Services(pty:dft), Attorney Ann M. Welhaf added to party U.S. Customs and Border Protection(pty:dft), Attorney Ann M. Welhaf added to party U.S. Department of Health and Human Services(pty:dft), Attorney Ann M. Welhaf added to party U.S. Department of Homeland Security(pty:dft), Attorney Ann M. Welhaf added to party U.S. Immigration and Customs Enforcement(pty:dft), Attorney Ann M. Welhaf added to party Ronald Vitiello(pty:dft) (aef). (Entered: 07/24/2018)
37 NOTICE OF RELATED CASE(S) by Alex Azar, L. Francis Cissna, Scott Lloyd, Kevin K. McAleenan, Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson Beauregard Sessions III, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Health and Human Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Ronald Vitiello of case(s) 18−428 . (Attachments: # 1 Exhibit SDNY Habeas Petition)(Flentje, August)(aef). (Entered: 07/24/2018)
38 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Hearing held on 7/27/2018 re 18cv1626, 18cv1699 and new case not yet received from the District of New York. For the newest case, parties are to exchange the names of the nine children, and work on a stipulation to provide that they not be removed from New York.(Court Reporter/ECR N/A). (Plaintiff Attorneys appearing telephonically: Beth Kraus, Gregory Copeland, Jennifer Levy, Sarah Gillman, Harrison Frahn, Caroline Heller, D. Stanford, Rex Chen). (Defendant Attorney Scott Stewart). (no document attached) (jak) (Entered: 07/27/2018)

 
 Case 3:18-cv-01626-DMS-JLB Document 1 Filed 07/16/18 PageID.1 Page 1 of 32

i

UJti!TED STATES DISTRICT COURT

SOVTifERN DISTRICT OF NEW YORK

hfs N.T.C., by and through
A. Tatro, and H.M.C., byl
friend Mallory Winter,

next friend Rev. Marie and through her next

I

I,

Plaintiffs, CLASS ACTION COMPLAINT

v.

i

Civil Action No. _ _ _ _ _ __

(U".ISC.EI"m),mUig.Sra. tDioenpaarntdmeCnu~;sotofmHsoEmnefloarncdemSeencut rity

("DHS"), U.S. Customs and Border Protection

("CBP"), U.S. Citizenshih and Immigration

Services ("US CIS"), and Human Services

U.S\ Department ("HHS"), Office

of Health of Refugee

Resettlement ("ORR"), Ronald Vitiello, Acting

Director ofiCE; KirsijenlNielsen, Secretary of

GDeHnSe;raJlefofferthsoenUBneitaeudreSgta~!erds;SLes.sFiorannscIiIsI,CAiststonran, ey

Director ofUSCIS; Kev~~ K. McAleenan,

Commissioner ofCBP; Al!ex Azar, Secretary of

the Department of Health and Human Services;

Scott Lloyd, Director oft 1e Office of Refugee

Resettlement,

t8CV6428

Defendants.

INTRODUCTION

~eliberately 1,

This is an aLi on to enforce the law. Plaintiffs are minor children who, for

no legitimate reason, were

separated from their parents at the hands of the

r~unification United States government. fAtter tearing them from their parents' anns, the government is

now conditioning family

on the parents waiving their children's rights.

These rights are as fundambntal as the right to be free from indefinite and coercive

detention, the right to appl{ for asylum and other forms of immigration relief, and the

right to receive a fair process prior to repatriation. \Vhat the plaintiffs seek is simple, and

~Irocess: in perfect accord with due

the right to be given advance meaningful notice of the

I

Case 3:18-cv-01626-DMS-JLB Document 1 Filed 07/16/18 PageID.2 Page 2 of 32

location to which they are being moved-whether that means deportation, family

detention or release, the right to know what rights have purpmiedly been waived on their behalves, and the right to assert claims for relief based on accurate information.

2.

This is not an action to challenge, or to otherwise re-!itigate, the

constitutionality of the United States govenunent's family separation policy. That policy is flagrantly unconstitutional and indefensible. This is not an action to block or stall

reunifications between parents and children who have been separated at the Southwest

border. Those reunifications should proceed with all possible speed for children who desire to be reunified with their parents. It is an action to ensure that the government does not benefit from its illegitimate acts by using the children's separation to force them (or

their parents) to give up their rights.

3.

Without any credible claims of abuse, neglect, or parental unfitness, and

with no process of any kind, the government detained these minor children, alone and frightened, in facilities often thousands of miles from their parents. Now, in an effort to

solve a problem of its own 'creation, the govermnent seeks to detain the children in

facilities that do not meet legal standards, or repatriate them along with their parents, thereby depriving each chil'd of his or her ability to pursue their individual asylum and

other child immigrant claims here in the United States. In order to accomplish its goals,

the government has resorted to moving children in the middle of the night from one

facility to another (often ae:ross state lines) without waming the child or anyone else, including the child's legal counsel; depriving the child of access to counsel; and effecting

a coercive waiver of the child's due process, asylum, and child immigrant rights.

2

Case 3:18-cv-01626-DMS-JLB Document 1 Filed 07/16/18 PageID.3 Page 3 of 32
4. The defendants are now embarking on a plan to effectuate mass reunifications of parents with their separated children in family detention facilities ncar the southern border with the purpose of either long-term detention as a family unit or depmiation. Their attorneys have received no official notice of these plans and thus cannot adequately advise their clients as they are ethically bound to do. See Krause Dec.
~18.
5. The Due Process Clause of the Fifth Amendment prohibits the government from denying any person the processes provided by law for seeking asylum or other child immigrant protections. T~e protections provided by law include the right to pursue a claim for relief under the W' illiam \Vilberforce Trafficking Victims Protection Reauthorization Act of20Q8 ("TVPRA"), 8 U.S.C. § 1232, and under the Immigration and Nationality Act Sectiop !Oi(a)(27)(J) ("INA§ JOI(a)(27)(J)"), 8 U.S.C. § !10l(a)(27)(J). Defendants' conduct in depriving children of their access to counsel further violates the protect~ons to which they are entitled under the TVPRA. See 8 U.S. C. §§ !232(a)(5)(D)(iii), (c)(5). Repatriation absent a voluntary, intelligent, and knowing waiver of asylum:and other child immigrant rights by the individual protectionseeker is therefore a violati~n of due process both procedurally and substantively.
6. Moreover, repatriation against the wishes of an individual seeking asylum, without a determination that the individual is not entitled to those protections, violates the federal statutory guarantee rf a meaningful right to seek asylum to "[a]ny alien who is physically present in the U':lited States or who arrives in the United States." 8 U.S.C. § 1158(a)(I) (emphasis adqed). Such conduct violates the Administrative Procedure Act, as final agency action withOut adequate opportunity for review that is ''arbitrary,
3

Case 3:18-cv-01626-DMS-JLB Document 1 Filed 07/16/18 PageID.4 Page 4 of 32

capricious, an abuse of discretion, or otherwise not in accordance with law," or

"unsupported by substantial evidence." 5 U.S.C. §§ 706(2)(A), (E).

7.

Finally, a cOurt-approved settlement agreement reached in 1997 in Flores

v. Lynch (the ''Flores Agreement") established a "imtionwide policy for the detention,

release, and treatment of minors in the custody of the fNS." See Flores Agreement,-; 9.

The Flores Agreement "cr~eates a presumption in favor of releasing minors and requires

placement of those not released in licensed, non-secure facilities that meet certain

standards." Flores v. Lynch, 828 F.3d 898, 901 (9111 Cir. 2016). The government is

violating the Plaintiffs' rights under the Flores agreement by sending Plaintiffs to

unlicensed facilities after c>btaining coerced waivers from their parents.

8.

In order to protect class members' ability to make informed decisions

about their individuallega\ rights and asylum and other statutory claims, Plaintiffs seek

an order from this Court pieliminarily and permanently enjoining Defendants from taking

any action to remove children from New York State without providing (i) forty-eight (48)

hours' notice of such forthComing action to children and their counsel in order to pcnnit

consultation among the ch~ld, his or her closest available family member(s), and counsel,

and (ii) an opportunity for hhildren to consult with their closest available family

member(s) and counsel at the same time before a relocation is effectuated in order to

protect the child's ability tO make infonned decisions about his or her legal rights and

potential claims. Plaintiffs further seek a meaningful opportunity to assert their claims to

immigration relief and to the relief available under the Flores agreement.

. ,JURISDICTION AND VENUE

9. This Court has subject-matter jurisdiction pursuant to 28 U.S.C. § 1331

because this action arises under the Constitution and laws of the United States, including 4

Case 3:18-cv-01626-DMS-JLB Document 1 Filed 07/16/18 PageID.5 Page 5 of 32
the Fifth Amendment to the United States Constitution and the federal asylum statute, the federal Declaratory Judgment Act (28 U.S.C.§§ 2201-2202), 28 U.S.C. § 1346 (United States as defendant), the Administrative Procedures Act (5 U.S.C. § 704), ~ 24(8) of the Flores settlement agreemeht, and pursuant to 28 U.S .C. § I361 because this action seeks to "compel an officer or employee ofihe United States or any agency thereof to perform a duty owed to[] p1aintit11s]."
10. Venue is proper under 28 U.S.C. § 1391(e) because N.T.C., and H.M.C., reside in this District as ofthe date of the filing of this Complaint, Defendants reside in this District, and a substantial portion of the relevant facts occurred within this District, including Defendants' continued separation ofN.T.C. and I-LM.C. from their parents.
PARTIES Plaintiff N.T.C. Fled Honduras 11. PlaintiffN.T.C. is a citizen of Honduras. He is the twelve (12) year-old son of Ms. J.M.C.A., to whom he has not spoken since they were separated, but who, upon infotmation and belief, is in ICE custody. N.T.C. brings this lawsuit through a next friend as a result of his inc~pacity due to his minor status and his unfamiliarity with U.S. law. 12. PlaintiffN.T.C. and his mother Ms. J.M.C.A. are one of the many families that have sought asylum and other immigration protections in the United States and that
'
recently have been separated by the government. 13. PlaintiffN.T.C. currently resides at Abbott House in New York State,
likely thousands of miles ffom where his mother is located, although N.T.C. does not know for sure as he has been unable to speak with his mother since they were separated.
5

Case 3:18-cv-01626-DMS-JLB Document 1 Filed 07/16/18 PageID.6 Page 6 of 32
14. PlaintiffN.T.C. seeks asylum and other child immigrant protections in the United States on his own behalf.
15. Ms. J.M.C.A. is currently in ICE custody at an unknow·n location. Upon information and belief, M$. J.M.C.A. may have been coerced by Defendants into agreeing to repatriation in exchange for reunification with N.T.C., thereby waiving her own and N.T.C.'s asylum and child immigrant protection rights.
16. PlaintiffN.T.C. has expressed clearly that he would like to be reunified with his mother but that, if his mother were to be repatriated to Honduras, then he would want to remain in the United States. P!aintiffN.T.C.'s cousin lives in the United States, and N.T.C. would like to go live with his cousin rather than be repatriated.
17. PlaintiffN.T.C. wishes to remain in the United States in order to pursue his individual asylum and other statutory immigration protection claims.
18. PlaintiffN.T.C. is cmTently represented by counsel from The Legal Aid Society.
19. Reverend Marie A. Tatro served as a Priest at the Trinity Episcopal Church in the South Bronx1 New York. In addition to her role as a Priest, Reverend Tatro assists in the provision of legal support and social service refcn-als. Reverend Tatro is also a member of numerouS conununity based organization aimed at assisting immigrant populations, including the New Sanctuary Coalition of New York City. Previously, Reverend Tatro advocated for indigent and at risk populations for close to two decades as an attorney in various capaCities. Reverend Tatro brings this suit as next friend on behalf ofN.T.C. in order to protect N.T.C. 's rights.
6

Case 3:18-cv-01626-DMS-JLB Document 1 Filed 07/16/18 PageID.7 Page 7 of 32
Plaintiff 1-I.M.C. fled Guatemala 20. I--LM.C., is a 13 year old Q'eqchi girl from Guatemala. Her father, a monolingual Q'cqchi speaker, has only had the opportunity to speak with his daughter two times. H.M.C. and her'. father entered the United States on or about the beginning of June 2018. He has not seen a judge during that time and has not had the opportunity to speak to anyone in his OWI1ianguage, other than his daughter, until July 15, 2018 when he spoke with an attomey from Public Counsel. Upon information and belief, H.M.C.'s father was extremely overwhelmed by his current situation as no one spoke to him in his first language to explain the situation to him until yesterday. It is unclear if he nnderstands the posture of his case at the moment. 1-I.M.C. herself is unclear whether she wants to be reunified as she has not been able to determine the circumstances of reunification. She does not: want to be placed in family detention that does not meet minimum standards. 21. Mallory Wihter is a Licensed Master Social Worker. Since August 2016, Ms. Winter has worked as a Staff Psychotherapist at the Brooklyn Center for Psychotherapy in Brooklyn, New York providing individual psychotherapy to adults and children age 5 and up. Sh~ previously served as the New York & Connecticut Branch Director/Adoption Coordiriator, and oversees counselors in providing support to children and families. Ms. Winter has extensive experience providing counseling and support to vulnerable children populations. Ms. Winter brings this suit as next friend on behalf of H.M.C. in order to protect H.M.C.'s rights.
The Government Defendants 22. Defendant U.S. Department ofi-Iomeland Security ("DHS") is responsible for enforcing the immigralion laws of the United States.
7

Case 3:18-cv-01626-DMS-JLB Document 1 Filed 07/16/18 PageID.8 Page 8 of 32
23. Defendant U.S. Immigration and Customs Enforcement ("ICE") is the sub-agency of DI-IS that is responsible for canying out removal orders and overseeing immigration detention.
24. Defendant U.S. Customs and Border Protection ("CBP") is the subwagency ofDI-IS that is responsible for the initial processing and detention of noncitizens who are apprehended near the United States' border.
25. Defendant U.S. Citizenship and Immigration Services ("USCIS") is the subwagency ofDHS that, through its asylum officers, conducts interviews of certain individuals apprehended at the border to determine whether those individuals have a credible fear of persecution and should be pcm1itted to apply for asylum.
26. Defendant O.s. Department of Health and Human Services ("HHS") is a
department of the executive branch of the U.S. government that has authority over "unaccompanied" noncitizen children, including custody of "unaccompanied" noncitizen children.
27. Defendant Qffice of Refugee Resettlement ("ORR") is a program of the Administration for Childreh and Families, an office of I-II-IS, that provides care of and placement for "unaccompanied" noncitizen children.
28. Defendant Ronald Vitiello is sued in his official capacity as the Acting Director of ICE.
29. Defendant Kirstjen Nielsen, is sued in her official capacity as the Secretary of the Department of Homeland Security. In this capacity, she directs each of the sub-agencies within DHS: ICE, USCIS, and CBP. As a result, Defendant Nielsen has
8

Case 3:18-cv-01626-DMS-JLB Document 1 Filed 07/16/18 PageID.9 Page 9 of 32

responsibility for the administration of the itlli11igration laws pursuant to 8 U.S.C. § 1103, and is empowered to grant asylum or other relief.

30. Defendant Jefferson Beauregard Sessions III is sued in his official capacity as the Attomey General of the United States. In this capacity, he has responsibility for the administration of the immigration laws pursuant to 8 U.S.C. § 1103, oversees the Executive Office oflmmigration Review, and is empowered to grant asylum or other relief.

31. ofUSCIS.

Defendant L. Francis Cissna is sued in his official capacity as the Director

32. Defendant Kevin K. McAleenan is sued in his official capacity as the Commissioner of CBP.

33. Defendant Alex Azar is sued in his official capacity as the Secretary of
I-II-IS and is a legal custodi';m of one or more Plaintiffs.
'
34. Defendant Scott Lloyd is sued in his official capacity as the Director of
ORR and is a legal custodian of one or more Plaintiffs.

FACTS 35. Over the past year, the government has separated thousands of children fleeing persecution from family members after they were apprehended together at the U.S. border. Although there have been no allegations that the Plaintiffs' parents are unfit or abusing their children ir1 any way, the government has forcibly separated each of these children from his or her pat'·ents and detained each child, often far away, in government funded facilities for "unaccompanied" minors.
i

9

Case 3:18-cv-01626-DMS-JLB Document 1 Filed 07/16/18 PageID.10 Page 10 of 32
36. On April 6, 2018, Attomey General Sessions formally announced a "'zerotolerance" policy pursuant to which DHS would refer all illegal southwest border crossings to the Department of Justice for prosecution. 1
37. On May 7, 2018, Attomey General Sessions publicized that, pursuant to the "zero tolerance" policy, any child crossing the southwest border of the United States would be automatically separated from his or her parents or other adults with whom the child was traveling? The ptated goal of this policy was to serve as a deterrent for migrant parents who enter the United States without authorization accompanied by their children. 3 Attorney General Sessions's statements make clear that family separation is not a collateral consequence of regular law enforcement under this policy. It is an explicitly intentional goal.
38. Pursuant to'this new federal law-enforcement policy, thousands of children apprehended with~ their parents at the border were automatically and forcibly separated from their parents and transfen·ed to the custody of ORR for placement elsewhere in the United St~tes. This policy was imposed on all families, regardless of the age of the child or childre'l. Upon information and belief, Defendants have applied this policy to forcibly separate children, including those who were not yet a year old from their parent or parents and to place each child in ORR custody, often thousands of miles away from the child's parent or parents. Defendants have thus created thousands of
1 See Press Release, Office of Pub. Affairs, U.S. Dcp't of Justice, Attorney General Announces Zero-Tolerance Policy for Criminal Illegal Entry (April 6, 20 18), https://www.justice.gov/opa/pr/attomeygeneral-announces-zero-tolerance-po!icy-criminal-illcgal-entry.
2 See Press Release, Office of Pub. Affairs, U.S. Dep't of Justice, Attorney General Sessions Delivers Remarks Discussing the Immigration Enforcement Actions of the Trump Administration (May 7, 20 I8), https://www.j ustice.govIopa/speech/attomcy-genera!-sessions-de Iivers-rcmarks-d iscuss ingirn rn igration-en fo rcement-actions.
3 See id. ("If you are smuggling a child, then we will prosecute you and that child will be separated fi·om you as required by law.").
10

Case 3:18-cv-01626-DMS-JLB Document 1 Filed 07/16/18 PageID.11 Page 11 of 32
purportedly "unaccompanied" children-those who entered the country with a parent but were, pursuant to the "zero tolerance" policy, forcibly separated from their parent or parents by ICE or CBP immediately thereafter.
39. Plaintiffs and proposed class members were transfened to facilities in New York State, often hundreds or thousands of miles from their initial apprehension and from their parents. Upon information and belief, at !east 300 migrant children separated from their parents at the southwest U.S. border have been transfeiTed to New York State. 4
40. The parents of each of these children, including Plaintiffs' parents, have likewise been transferred tO detention facilities across the country to await their civil immigration proceedings. ·ror instance, PlaintiffN.T.C.'s mother was transfetTed to an unknown location. See e.g Krause Dec., Martinez Dec., and Rieser- Murphy Dec.
41. There is overwhelming medical evidence that the separation of a child from his or her parent will have a devastating and toxic impact on the child's well-being, especially where there are Other traumatic factors at work, and that this damage can be permanent. The American Academy of Pediatrics has repeatedly denounced any policy or practice of separating migrant children from their parents, noting in a January 20181etter signed with more than 200 ()ther organizations that "[f]orced separation disrupts the parent-child relationship and puts children at increased risk for both physical and mental illness.... [T]he psychological distress, anxiety, and depression associated with
4 See Letter From Governors Brown, Cuomo, lnslee, Malloy, Murphy and Wolfto Secretaries Azar and Nielsen (July 6, 20 18),' https://www.governor. ny.gov/sites/governer.ny. govlfi les/atoms/fi les/F IN AL_ Dem_ Gov_ Letter_on_Family_ Reunification_7.6. pdf.
II

Case 3:18-cv-01626-DMS-JLB Document 1 Filed 07/16/18 PageID.12 Page 12 of 32
separation from a parent would follow the children well after the immediate period of separation-even after eventual reunification with a parent or other family."5
42. On June 20o 2018, President Donald J. Trump issued an Executive Order ("EO") addressing the pollcy and practice of family separation. EO 13841, "Affording Congress an Opportunity to Address Family Separation," 83 Fed. Reg. 29,435, § 1 (June 20, 20 18). The EO announces that it is the "policy of this Administration to maintain family unity, including by·detaining alien families together where appropriate and consistent with law and available resources." Id. (emphasis added)
43. The EO further calls for the Secretary ofDHS to "maintain custody of alien families during the pendency of any criminal improper entry or immigration proceedings involving their members." Id. § 3(e).
44. The EO, however, does not prohibit the separation of families during the pendency of immigration proceedings. It only expresses a preference against separation where "consistent with law and available resources." Jd. § l. Upon information and belief, resources to detain families together arc highly limited. Neither does the EO make any provision for reunifyir!g the thousands of families who were separated prior to its Issuance.
5 Letter from Am. Academy of Pediatrics eta!. to Kirstjen M. Nielsen, Secretary of U.S. Dep't of Homeland Sec. (Jan. 16, 2018),' https ://static 1.sq uarespace.com/Static/597ab5 f3 bebafb0a625aa f4 5/ll5a5 e55cffid92 97 a44bbb8dJe/15l6131791958/2018_0 l_l6+Child+Welfare+Juvenilc+Justice +Opposition+to+Parent+Child+Separation+Plan.pdf. ; see also J.S.R. v. Sessions et al, No. 18-cv-0 II 06VJ\8, Ruling and Order on Motion for Preliminary Injunction (D. Conn. July 13, 20! 8) ("family separation policy has caused irreparable harm to parents partly because of pain innicted on their children, and noting that "parents, however, arc not the only ones suffering from the separations," and that "there is ample evidence that separating children from their mothers or fathers leads to serious, negative consequences to children's health and development," including higher rates of anxiety, depression, PTSD, and more)"
12

Case 3:18-cv-01626-DMS-JLB Document 1 Filed 07/16/18 PageID.13 Page 13 of 32
45. On June 23,2018, DIIS released a Fact Sheet titled "Zero¥Tolerance Prosecution and Family Reunification" that set forth a process for family reunification established by DHS and HHS "to ensure that those adults who are subject to removal are reunited with their children far !he purposes ofremova/."6 The Fact Sheet further stated that "a parent who is ordered removed from the U.S. may request that his or her minor child accompany them.,. 7
46. On June 24,2018, a DHS official tweeted that parents separated from their children "were quickly given the option to sign paperwork leading to their deportation. Many chose to do so."8 T~at same day, a senior administrative official, speaking on the condition of anonymity, c~nfirmed that Defendants did not plan to reunite families until after a parent had lost his or her deportation case, effectively punishing parents who might otherwise pursue an•asylum claim or other relief and creating tremendous pressure to abandon such claims so that a parent might be reunited with his or her children.9
47. On or aboutJuly 2, 2018, ICE began providing parents subject to final orders of removal with a Separated Parent's Removal Porm that offers two choices: (1) reunification with minor children "for the purpose of repatriation to" the parent's
6 Press Release, U.S. Dep'! of Homeland Security, fact Sheet: Zero-Tolerance Prosecution and Family Reunification (June 23, 20 18), https://www.dhs.gov/ncws/20 18/06/23/fact¥sheet-zero-tolerance¥ prosecution¥and-family-rcunific_ation. (emphasis added).
7 Ex. A.
a See @jacobsoboroff,Twitter (June 24, 2018, 5:29AM),
https: I I twi tter.com I ja co bsoboroffI status110 10862394-1 033 28 771.
9 See Maria Sacchetti, Michael Miller & Robert Moore, Sen. Warren visits detention center, says no children being returned to parents there, Wash. Post (June 24, 2018), https:l/www.washi ngtonpost,comllocalf immigrationldesperate-to-get-children-back-migrants-are-willing-to-give-up-asylum-claimslawyers-say120 18/06f24lc7f'flb87c-77e2-11c8-80be-6d32e 182a3bc_story.htmL
13

Case 3:18-cv-01626-DMS-JLB Document 1 Filed 07/16/18 PageID.14 Page 14 of 32
country of citizenship, or (2) repatriation without reunification. 10 Under the first option, a parent's consent to repatriation of themselves and their children effectuates a waiver of the children's independent asylum and other statutory immigration protection rights, as repatriated children are not able to pursue asylum and other statutory immigration protection claims. Because the only opportunity for family reunification presented by the Separated Parent's Remo~.al Fonn requires consent to repatriation and the resulting abandonment of asylum and other child immigrant rights, the government's use of the fonn risks coercing PlaintifT parents into waiving their children's rights as well as their
own. See Zambrano Dec. 48. The Separated Parent's Removal Fonn provides no mechanism for
preventing the coercive repatriation of a minor child who wishes to remain in the United States to pursue his or her independent asylum and other child immigrant claims if the parent of that child requests reunification for purposes of removal. !d.
49. Although the DHS Fact Sheet and the Separated Parent's Removal Fonn apply by their terms only tb those parents who are subject to removal orders, upon information and belief, Defendants have used similar coercive tactics to pressure parents with pending asylum clai~'s to abandon those claims and to agree to repatriation of
10 Ex. B. See also Jeremy Stahl, ICE Deportation Form: Trump Is Making Parents Choose Between Losing Theli· Children and Deportation, Slate (July 3, 2018), https:f/slate.com/news-andpoIiticsf20 18/07/ice-depOJtation~form-trump- is-making-parents-choose-between-thcir-chi ldren-anddeportation.html. This form wa~ verified to multiple media sources by an ICE spokesperson. See, e.g., Jeremy Raff, ICE is Pressuring {)eparated Parents lo Choose Deportmion, The Atlantic (July 6, 20 18), https ://www.theatlantic. com/po1)\ics/archive/20 l 8/07I how-ice-pressures-separated-parents-to-choosedeportation/564461/; Chantal da Silva, Is ICE Forcing Separated Parents to Choose Between Deportation or ReunifYing with Children?, Newsweek (July 4, 20 I 8), http://www.newsweek.com/ice-forcing-separatedparents-choose-between-deport<ition-or-reunifying-l 008478; Nick Valencia and Tal Kopan, The options parents facing deportation have after they've been separatedfrom Iheir kid1·, CNN (July 3, 20 18), https://www.cnn .com/20 l 8/07/03/po litics/dcpOJtation-parents-separatcd-from- kids/index. htm1.
14

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themselves and their children in exchange for reunification. 11 Numerous parents have
been told by CBP and ICE agents that they will see their children again sooner if the
parent withdraws his or her asylum application and accepts earlier deportation. 12 And, an
additional cause for concern is the fact that language barriers complicate communication
and put the voluntminess of the waivers into doubt. See Hoffman Dec.
50. On February 26, 2018, the American Civil Liberties Union (ACLU) of
San Diego filed a petition 'for a writ of habeas corpus and complaint for declaratory and
'
injunctive relief on behalfpf a mother and child who were forcibly separated without a
detennination ofunfitness·regarding the mother. Af.s. L. v. ICE, Case 3:18-cv-00428-
DMS-MDD. On March 9, 2018, the ACLU filed a motion for class certification for
similarly situated individuals. Later that month the ACLU filed a memorandum in
support of a preliminary injunction which the court granted in part. On June 26, 2017, a federal court judge ordere<,'i the reunification of thousands of separated children with their
families. On July 13, 2018~ the ACLU and the government filed a joint motion regarding
the scope of the court's pr~liminary injunction. Pursuant to this joint motion, the Ms. L
I
11 See, e.g., Angelina Chapin, ICE Officials are Pressuring Separated Parents Ia Sign Deporlation
3; Forms, Huffington Post (Ju!y 201 8), https://www.huffingtonpost.com/entry/immigration-officials-
apgreesnstusrhea-sveeptaorladtepda-rpeanrtesntths-edyepd0q'rntaottiohna-vfoe mth1e- oups-ti5obn3tco0b6o0tehe4sebe0k9ea4sya8lubm28:6:m5d6ebe(rreepuonrittiendg).immigration
12 This practice has been widely reported. See, e.g, Julia Ainsley & Jacob Soboroff, New Trump Admin Order for Separated Pm:ents: Leave U.S. With Kids or Without Them, NBC News (July 3, 20 IS), https://www.nbcnews.com/politics/immigration/new-trump-admin-order-separated-parents-leave-u-s-kidsn88863! (reporting that HHS workers were instructed to reunite families "only if the parents agreed to drop
their own asylum claims as wed as the claim of their child and be deported"); Dara Lind, Trump will
reunite separaledfamilies- bza;on~v if they agree ta deportation, Vox (June 25, 2018),
https ://w ww.vox.com/20 18/6/25/1 7484042/chi ldren-parents-separate-reunitc-pJan-trump (reporting that parents are being given the choice lo fight for asylum without reunification or to be reunified upon repatriation); Jay Root & ShannOn Najmabadi, Kid~ in Exchange for Deportation: Detained Migrams SaJ' They Were Told They Could Gef Kids Back on Way Out of U.S., Texas Tribune (June 24, 20! 8), https ://www.lexastribune.org/20 I8/06/24/kids-cxchange-deportation-migrants-c Ia! rn-they-were-pro rn !sedthey-could/ (reporting on parenfu who signed voluntary deportation orders "out of desperation" after being offered reunification in exchange for deportation).
15

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class members were left with a choice between: l) waiving their right to family integrity by consenting to the separation of their children or 2) \Vaiving their children's Flores Settlement rights including "the rights with regard to placement in the least restrictive setting appropriate to the minor's age and special needs, and the right to release or placement in a 'licensed program'." In the case where a class member chooses neither option, there is a presumption that they have temporarily waived their children's Flores rights until a vo!tmtary, knowing waiver could be obtained. Upon infom1ation and belief, Defendants will be moving immigrant children into non~Flores compliant adult detention facilities imminently.
51. Upon information and belief, Defendants are employing these tactics with increasing frequency and intensity to coerce as many parents as possible to abandon claims on behalf ofthemselves and their children in anticipation of the Court-ordered July 26, 2018 deadline for the reunification of children separated from their families. See Ms. L. v. ICE, No. 18cv04;28 DMS (MDD), 2018 WL 3129486 (S.D. Cal. June 26, 2018). Without access to counsel :and the opportunity to consult with counsel and parents or other close family members, the ability of class members to make infotmed decisions about their legal rights and potential claims is significantly impaired.
52. Upon information and belief, Defendants have also resorted to moving children from one facility to another, often from one state to another, in the middle of the night, without warning to the child or anyone else.
53. The Legal Aid Society heard through non~governmental sources that the government planned to move the class members to undisclosed locations outside of New York. On July 14,2018, the Legal Aid Society submitted a Demand Notice to Defendants
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demanding at !east forty~eight (48) hours advance notice of any proposed relocation of our clients; specific details regarding proposed relocation, including location, purpose, and anticipated duration; and an opportunity to speak with each of our clients and their parentis before any relocation was effected. See Krause Dec.
54. Late in on July 14, 2018, stafT from Abbott House, an ORR contracted child care facility, contact~d the Legal Aid Society to inform Legal Aid that the FFS told
Abbott House to submit releases for separated children. Legal Aid was not provided with
specific details regarding the releases, the travel plans, and it appears that the children may be moved in less than 48 hours. !d.
55. On July 14,2018, the Legal Aid Society sent a demand for notice of transfer of any Legal Aid ~lients detained at Abbott House, an ORR sub~contracted detention center for children. This demand was sent to ORR Federal Field Specialists Karla Mansilla, & Jill Volovar, ICE Juvenile Coordinator Linda Hyde, as well as Assistant United States Attorneys for the Southern District of New York. On July 15, 2018, Federal Field Specialist Karla Mansilla informed the Legal Aid Society that two Legal Aid clients were being transferred to the Port Isabel Detention Center (PIDC), an adult (ICE) detention center, imminently. On July 16, 2018, ORR informed Legal Aid that a total of eleven (II) child clients would be transferred to PIDC between July 16 and July 17, 2018. The Legal Aid Society has not been provided any further details about the method of transfer or the purpose of transfer. Port Isabel Detention Center is a detention center for adults in ICE cuStody in Southeastern Texas. It is not Flores compliant and is known for having signific&nt human rights violations in the past. During 2009-2010, detainees housed at PIDC went on a hunger strike to protest the inhumane conditions of
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detention there. l3 Allegations against PIDC included physical and sexual abuse detainees, as well as lack of adequate medical care among other deplorable conditions. 14 These inhumane conditions are not appropriate for anyone, however, the vulnerable nature of children put them at increased risk.
LEGAL FRAMEWORK Statutmy Framework and Jurisprudence Regarding the Treatmenf ofChildren 56. In 1985, several children in INS custody initiated a class action in the Central District of California challenging INS policies regarding the detention of alien children. That litigation wOund its way through the federal court system-including the Supreme Court, see Reno V. Flores, 507 U.S. 292 (1993). !d. 57. In 1997, th~ parties entered into a court-approved settlement agreement in
!
(the "Flores Agreement").: See Ex. 9 ISO Motion for a Preliminary Injunction. The Flores Agreement established a "nationwide policy for the detention, release, and treatment of
' '
minors in the custody oftlw INS." See Flores Agreement~ 9. The Flores Agreement "creates a presumption in favor of releasing minors and requires placement of those not released in licensed, non-secure facilities that meet certain standards." See flares v. Lynch, 828 F.3d 898 (91h dir. 2016). The Flores Agreement is binding on all successor agencies to the INS, inclu9ing ORR and DHS.
!
58. The Flores ~greement spells out a general policy favoring !css restrictive placements of alien children (rather than more restrictive ones) and their release (rather
11 Aguilar, Julian, Starving/or Reform, Texas Tribune (March 9, 20 I0). Also see, Tony Hefner, Between the Fences: Before Guantanamo, there was the Port Isabel Service Processing Center (Seven Stories Press 2011). 14 U.S. Dcp't of Justice, Detention Officer Sentenced for Repeated Sexual Abuse of Detainees, Apr. 7, 2010, avai 1ab 1e at https://www .justice .gov/opa/pr/detent ion-officer-sentenced-repeatcd-sexua1-abuse-detai necs
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than detention). The Agreement contemplates that, unless detention is necessary to ensure a child's safety or his appearance in immigration court, he must be released "without unnecessary delay," preferably to a parent or legal guardian. See Flores Agreement~ 14.
59. In 2002, Congress passed the HSA, dissolving the INS, and entrusting the "the care and custody of all unaccompanied [alien] children, including responsibility for their detention, where appropriate," to the HI-IS, which in tum delegated authority to ORR. See 8 U.S.C. § l232(b)(l); 6 U.S.C. § 279. Senator Kennedy noted was the change was intended to provide "comprehensive services to address the special needs of newcomer children ... tailored to address the[ir] cultural, linguistic, legal, and developmental needs." Flores v. Sessions, 862 f'.3d 863, 880 (9th Cir. 2017). It was also intended to ensure that the· federal agency charged with caring for UACs had no stake or say in any related immigration proceedings. See 6 U.S.C. § 279(c); !53 Cong. Rec. S300 I, S3004 (daily ed. Mar. 12, 2007) (statement of Sen. Feinstein) ("This change finally resolved the conflidt of interest inherent in the former system that pitted the enforcement side of the [INS] against the benefits side of that same agency in the care of unaccompanied alien child;ren.").
60. After assuming custody of the UAC, HHS/ORR must "promptly" place the UAC "in the least restrictive setting that is in the best interest of the child." 8 U.S.C. §
'
1232(c)(2)(A). 61. In 2016, the 9tJ1 Circuit Court of Appeals held that the Flores Agreement
"unambiguously applies bqth to accompanied and unaccompanied minors, but does not create affirmative release rights for parents." See Flores v. Lynch, 828 F.3d 898 (9111 Cir. 2016).
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62. Paragraph 24(B) of the Flores Settlement sets forth a minor's right to challenge a determination to place the minor in a particular facility when in government custody. The minor may s~ekjudicial review in "any United States District Court with jurisdiction and venue over the matter to challenge the placement determination." See Flores Settlement at~ 24(B).
63. Moreover, the Flores Settlement requires INS to "place each detained minor in the least restrictive setting appropriate to the minor's age and special needs, provided that such setting is consistent with its interests to ensure the minor's timely appearance before the INS• and the immigration courts and to protect the minor's wellbeing and that of others." See Flores Settlement at~ 11 (emphasis added),
64. In 2008, Copgress recognized the vulnerability of unaccompanied children and created special statuto~y protections for these children through the William Wilberforce Trafficking Victims Protection Reauthorization Act of2008 ("TVPRA"), Pub. L. No. llOA57, 122 Stat 5044. The TVPRA provided impoliant protections for unaccompanied children. 15 ~The TVPRA protects unaccompanied children from noncontiguous countries from being subject to expedited removal and places unaccompanied in 240 proceedings before an immigration judge. See TVPRA § 235(a)(5)(D). The TVPRA also gave USCIS initial jurisdiction of unaccompanied children's asylum cases which allows unaccompanied children to pursue their asylum claims in a non-adversarial, mare child-friendly setting. See TVPRA § 235(d)(7)(B). It also exempts unaccompanied
15 For an overview of these changes, see Deborah Lee, Manoj Govindaiah, Angela Morrison & David Thronson, Practice Advisory, Update on Legal Relief Options for Unaccompanied Alien Children Following the Enactment of the William Wilberforce Trafficking Victims Protection Reauthorization Act of2008 (Feb. 19, 2009), available at https :1/www. i lrc.org/sites/de fau lt!fi lcs/reso urccs/23 5_ tvpra_practice_advisory. in fonet pdf.
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children from the one-year asylum filing deadline to unaccompanied children. TVPRA §
235(d)(7)(A). The TVPRA also codified portions of the Flores Agreement (e.g. 8 U.S.C. § 1232(c)(2)(A) an unaccompanied alien child "shall be promptly placed in the least restrictive setting that is in the best interest of the child").
CLASS ALLEGATIONS 65. Plaintiffs bring this action under Federal Rule of Civil Procedure 23(b)(2) on behalf of themselves ana a New York State-wide class of all other persons similarly situated. 66. Plaintiffs seek to represent the following New York State class:
All minor children within New York State who enter the United Statb at or between designated ports of entry who have been or will be separated from a parent or parents absent a detennination that the parent is unfit or presents a danger to the child who are and detained in ORR custody, ORR foster care, or DHS custody. Plaintiffs are each adequate representatives of the proposed class. 67. The proposed class satisfies the requirements of Rule 23(a)(l) because the class is so numerous that jdinder of all members is impracticable. The exact size of the
!
proposed class is unknown~ but, upon information and belief, there are at least one hundred and seventy~five (175) children presently in custody in New York alone.
68. The propos~d class meets the commonality requirements of Federal Rule of Civil Procedure 23(a)(2). Each member of the class is subject to a common threat:
compulsory repatriation without a voluntary, intelligent, and knowing waiver of his or her asylum and other child immigrant rights and/or the threat that their rights to minimum standards in detention have been waived. By definition, all class members are subject to these threats and none has ?een asked to provide a waiver of his or her individual rights. This Complaint raises questions of law common to members of the proposed class,
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including: whether Defendants' coercive practice of conditioning reunification of children with their parents upon the parents' waivers of their children's rights violates class members' constitutional Due Process rights, statutory rights, and rights under the Flores Consent Decree.
69. The proposed class meets the typicality requirements of Federal Rule of Civil Procedure 23(a)(3) because the claims of the representative Plaintiffs are typical of the claims of the class, anQ each of the proposed class members are individuals who have been or will be subject to the threat of coercive repatriation or relocation without meaningful notice. Plaintiffs and the proposed class also share the same legal claims, which asseti the same substantive and procedural rights under the Due Process Clause, the asylum statute, and the Flores Consent Decree.
70. The proposed class meets the adequacy requirements of Federal Rule of Civil Procedure 23(a)(4). The representative Plaintiffs seek the same relief as each of the other members of the class.__namely, an order directing that Plaintiffs be given meaningful notice prior to their relocation and the opportunity to assert their rights.
71. Prohibiting Defendants from compelling the repatriation of any minor child against the child's wishes, without affording each child an opportunity to pursue asylum and other child immigrant protections in the United States or, alternatively, having obtained the child's voluntary, intelligent, and knowing waiver of his or her asylum and other child immigrant claims, after consultation with both the class member's parent or close family men1ber(s) and counseL In defending their own rights, Plaintiffs will defend the rights of all proposed class members fairly and adequately.
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72. The proposed class is represented by counsel from The Legal Aid Society. Counsel have extensive experience litigating class action lawsuits and other complex cases in federal court, including civil rights lawsuits on behalf of noncitizens.
73. The members of the class are readily ascertainable through Defendants' records.
74. The propos~d class also satisfies Federal Rule of Civil Procedure 23(b)(2). Defendants have acted on grounds generally applicable to the class by unlawfully subjecting minor children to the threat of forced repatriation without voluntary, intelligent, and knowing waivers by each of those children of each of their asylum and other child immigrant rights. Injunctive and declaratory relief is thus appropriate with respect to the class as a whole.
CAUSES OF ACTION COUNT!
(Violation of Due Process) (Against All Defendants) 75. All of the foregoing allegations are repeated andre-alleged as though fully set forth herein. 76. The Due Process Clause of the Fifth Amendment applies to all "persons" on United States soil and thus applies to Plaintiffs and all proposed class members. 77. Plaintiffs and each class member have an interest under the Due Process Clause in not being barred ·from pursuing their individual asylum and other child immigrant claims through coercive relocation and repatriation by Defendants. 78. Defendants' coercive practice of conditioning reunification of children \vith their parents upon the' parents' waiver of their children's right to minimum standards
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for detention, asylum, right to libe1ty and humane treatment, or other statutory immigration protections violates both Plaintiffs' procedural and substantive due process rights.
79. Defendants' coercive relocation and repatriation of class members against their wishes violates substantive due process because it denies each class member the right to pursue his or her asylum and other child immigrant claims and claims under the Flores Agreement.
80. Defendants' coercive repatriation of class members against that class member's wishes also violates procedural due process because it denies each class member the opportunity td pursue his or her asylum and other child immigrant rights without any hearing or cor).sultation, much less a voluntary, intelligent, and knowing waiver by the class member of his or her asylum and other child immigrant claims.
81. Defendants' coercion of Plaintiffs' parents into giving up their children's rights in order to be reunited with their children fmiher violates the due process rights of class members by depriving each class member of the derivative asylum protections to which he or she is entitled ·under his or her parents' asylun1 claims.
82. Defendants' obstruction of class members' access to counsel further violates federal law that provides protections for unaccompanied alien children pursuing asylum and other protections fi·mn removal. 8 U.S.C. §§ l232(a)(5)(D), (c)(5). Deprivation of access to counsel impairs the ability of class members to pursue their individual asylum and othcir child immigrant claims.
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COUNT II (Violation of a Child's Right to Seck Protection Under the Asylum Statute, 8 U.S.C.
§ Il58) (Against All Defendants) 83. All of the foregoing allegations are repeated andre-alleged as though fully set forth herein. 84. Under United States law, noncitizens with a well-founded fear of persecution shall have the opportunity to obtain asylum in the United States. 8 U.S.C. § 1158(a). In addition, noncitizens have a mandatory statutory entitlement to withholding of removal where the noncitizen would face a probability of persecution if removed to his or her country of nationality, 8 U.S.C. § 1231 (b)(3 ). Noncitizens have a further mandatory statutory entitlciment to withholding or deferral of removal where they would face a probability oftortur¢. Foreign Affairs Refonn and Restructuring Act ("FARRA"), Pub. L. No. I05-277, Div. G., Tille XXII, § 2242, 112 Stat. 2681-822 (Oct. 21, 1998) (codified as Note to 8 U.S.C. § 1231). 85. Class members have a private right of action to challenge violations of their right to apply for asylum under 8 U.S.C. § 1!58(a). That right is not barred by 8 U.S.C. § 1158(d)(7), which applies only to certain procedural requirements set out in Section II 58(d). 86. Defendants' coercive repatriation of class members against their wishes violates federal law that prOvides for asylum and other protections from removal. Repatriation precludes class members from pursuing their individual asylum and other statutory immigration protection claims.
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87. Defendants' coercion of Plaintiffs' parents into giving up their asylum and other immigration protection claims in order to be reunited with their children also violates federal law by depriving each class member of the derivative asylum protections to which he or she is entitled under his or her parents' asylum claims.
COUNT Ill (Violation of a Child's Right to Liberty & Rights Under the Flores Settlement)
(Against All Defendants) 88. All ofthe foregoing allegations are repeated and re-alleged as though fully set forth herein. 89. Immigrant children have a statutory, common law, and constitutional right
' '
to liberty and to be free fi·om coercive detention settings. 90. In pmticular, under the Flores Agreement, there is a preswnption that a
child should be released, and if detained, should be held in the least restrictive setting and in a licensed child-care faCility.
91. Paragraph 24(B) of the Flores Settlement sets forth a minor's right to challenge a determination to place the minor in a pa1ticular facility when in government custody. The minor may s~ekjudicial review in "any United States District Court with jurisdiction and venue over the matter to challenge the placement determination." See Flores Settlement at ~ 24(13).
92. Moreover, the Flores Settlement requires fNS to "place each detained minor in the least restrictive setting appropriate to the minor's age and special needs, provided that such setting is consistent with its interests to ensure the minor's timely appearance before the INS .and the immigration courts and to protect the minor's well-
being and that of others." See Flores Settlement at,! 11 (emphasis added).
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COUNT IV (Violation of the Administrative Procedures Act, 5 U.S.C. § 704)
(Against All Defendants) 93. All of the foregoing allegations are repeated andre-alleged as though fully set forth herein. 94. Under the Administrative Procedures Act, a "final agency action for which there is no other adequate remedy in a court [is] subject to judicial review." 5 U.S.C. § 704. The reviewing court ''shall ... hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," or "unsupported by substantial evidence." 5 U.S.C. §§ 706(2)(A), (E). 95. The Supreme Court explained in Bowen v. Massachusetts that judicial review of administrative actions "should not be construed to defeat the central purpose of providing a broad spectrunJ ofjudicial review of agency action" and that any alternative remedy advanced by the agency will not be adequate under § 704 where the remedy offers only "doubttul and limited relief." 487 U.S. 879,901 (1988). 96. Plaintiffs asserts that separation, and efforts to reunify as a pretext for removal is a "final agency action" reviewable by the Comi, and that this violation of numerous liberty interests ~n the absence of any pre-deprivation notice or opportunity to be heard, in violation of the APA, the Due Process Clause of the Fifth Amendment, and the INA, the TVPRA and the Flores Settlement. 97. Courts reviewing final agency actions "shall ... hold unlawful and set aside agency actions, findings, and conclusions found to be-(A) arbitrary, capricious, an
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abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. §§ 706(2) (A) (emphasis added).
98. Defendants' forcible repatriation of class members against class members' wishes also violates procedural due process because it denies each class member the opportunity to pursue his or her asylum rights without any hearing or consultation, much less a voiuntmy, intelligent, and knowing waiver by the class member of his or her asylum claims.
99. Defendants' coercion of Plaintiffs' parents into giving up their asylum and protection claims in order to be reunited with their children further violates the due process rights of class members by depriving each class member of the derivative asylum protections to which he or she is entitled under his or her parents' asylum claims.
100. Under United States law, noncitizens with a well-founded fear of persecution shall have the Opportunity to obtain asylum in the United States. 8 U.S.C. § 1158(a). In addition, noncitizens have a mandatory statutory entitlement to withholding of removal where the noncitizen would face a probability of persecution if removed to his or her country of nationality, 8 U.S.C. § 1231 (b)(J). [Noncitizens have a further mandatory statutory entitlement to withholding or deferraJ of removal where they would face a probability of torture. Foreign Affairs Reform and Restructuring Act ("FARRA"), Pub. L. No. 105-277, Div. G., Title XXII,§ 2242, !12 Stat. 2681-822 (Oct. 21, 1998) (codified as Note to 8 U.S.C. § !231).]
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COUNTY (Petition for a Writ of Mandamus, 28 U.S.C. § 1361)
{Against Individual Defendants) I0 I. Ail of the foregoing allegations are repeated and re-alleged as though fully set forth herein. 102. Under United States law, federal district courts have the authority to issue a writ of mandamus "to compel an officer or employee of the United States or any agency thereof to perfonn a duty owed to" class members. 28 U.S.C. § 1361. 103. Class members have a clear right to pursue asylum and other child immigrant protections in the United States and, prior to being finally denied such protections, to be protected from involuntary repatriation, i.e., repatriation in the absence of a voluntary, intelligent and knowing waiver by the class member of his or her asylum
I
and other child immigrant *ights. I04. The individual Defendants each have a duty not to interfere with class
members' pursuit of asylum and other child immigrant protections in the United States. 105. The individ~'al Defendants also each have a duty to provide access to
counsel to each ofPlaintiffclass members. See 8 U.S. C.§§ l232(a)(5)(D)(iii), (c)(5). I06. As a writ ofmandamus may properly issue where there is no other
adequate relief available, COunt III is pleaded in the alternative to Counts I and II above. PRAYER FOR RELIEF
Plaintiffs request that the Court enter a judgment against Defendants and award the following relief:
A. Certify a class of all minor children within New York State who enter the United States at or between designated ports of entry who have been or will be separated
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from a parent or parents absent a detennination that the parent is unfit or presents a danger to the child who are and detained in ORR custody, ORR foster care, or DHS custody.

B. Name PlairHiffs as representatives of the class, and appoint their counsel as class counsel;

C. Declare that the coercive relocation and/or repatriation of Plaintiffs and of each of the other class merl.1bers against his or her wishes, in the absence of a voluntary, intelligent, and knowing waiver by the class member of his or her individual asylum and other child immigrant rights, is unla\vful;
D. Preliminarily and pennanently enjoin Defendants ifom compelling the relocation and/or repatriation of class members without affording each child an opportunity to pursue claims under the Flores agreement, asylum and other child immigrant claims in the Uriited States or, alternatively, obtaining a voluntary, intelligent and knowing waiver by the class member of his or her asylum and other statutory immigration protection rights, including after both consultation with the class member's parent or close closest fam~ly member(s) and consultation with counsel;
E. Alternatively, issue a writ of mandamus requiring Defendants to afford each class member an opportunity to pursue Flores and/or asylum and other child immigrant claims in the Un~ted States in the absence of a voluntary, intelligent and knowing waiver, given after both consultation with the class member's parent or close family mcmber(s) and consultation with counsel, by the class member of his or her asylum and other child imrrJigrant rights;

F.

To protect class members' ability to pursue individual Flores and/or

30

Case 3:18-cv-01626-DMS-JLB Document 1 Filed 07/16/18 PageID.31 Page 31 of 32

asylum and other child immigrant claims, preliminarily and permanently further enjoin Defendants from depriving class members of representation by counsel and from depriving class members represented by counsel from access to and continued representation by their current counsel;

G. To protect class members' ability to pursue individual Flores and/or asylum and other child immigrant claims, preliminarily and permanently further enjoin Defendants and Defendant~' agents from communicating with class members outside the presence of that class member's counsel;

H. To protect Class members' ability to make informed decisions about their individual legal rights and asylum and other child immigrant claims, preliminarily and permanently enjoin Defenc1-ants from taking any action to remove children from New York State without providil1g (i) forty-eight (48) hours' notice of such forthcoming action to children and their counsel (including, without limitation, the location to which the Plaintiff class member will be moved, the location where the Plaintiff class member's parent or parents currently reside, and whether the movement is for the purpose of release, detention, and/or r(fpatriation), in order to permit consultation among the child, the child's parent or other close family member(s), and counsel to protect the child's ability to make informed d~cisions about his or her legal rights and potential claims, and (ii) an opportunity for Plaintiff class member to consult with his or her parent or close family member(s) and counsel at the same time before an relocation is effectuated in order to ensure that the child's ability to make infmmed decisions about his or her legal rights and potential claims is protected;

I.

Require Defendants to pay reasonable attorneys' fees and costs;

31

Case 3:18-cv-01626-DMS-JLB Document 1 Filed 07/16/18 PageID.32 Page 32 of 32

].

Order all other relief that is just and proper.

Dated this 16th day of July, 2018. New York, New York
Respectfully submitted,

~By-: -G=reg-o-ry-C-o-pe-la,nd~(~GC/s19/3~1)~~---­

Scott Rosenberg, General Counsel Adriene Holder, Attorney-in-Charge, Civil Practice Judith Goldiner, Attorney-in-Charge, Law Refonn Unit
Hasan Shafiqullah, Attorney-in-Charge, Immigration Law Unit ("ILU") Jennifer Williams, Deputy Attorney-in-Charge, ILU Gregory Copeland, Supervising Attomey, ILU Sarah Gillman, Supervising Attorney, ILU Beth Krause, Supervising Attorney, ILU Jennifer Levy, Supervising Attorney, Law Reform Unit (JL 1681)
Elizabeth Rieser-Murphy, Of Counsel, ILU The Legal Aid Society 199 Water Street- 3rd Floor New York, NY 10038
Tel: 212-577-3698
Fax:646-365-9369
gcopelandr&)legal-aid.org

32

 
 Case 3:18-cv-01626-DMS-JLB Document 20 Filed 07/19/18 PageID.502 Page 1 of 5

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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

:

N.T.C. et al.,

:

:

Plaintiffs,

:

:

-v-

:

:

U.S. IMMIGRATION AND CUSTOMS

:

ENFORCEMENT et al.,

:

:

Defendants.

:

:

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

07/19/2018
18-CV-6428 (JMF) MEMORANDUM OPINION
AND ORDER

JESSE M. FURMAN, United States District Judge: This case, which was filed on the evening of July 16, 2018, arises out of the
Government’s much-criticized decision earlier this year to separate immigrant parents who enter the United States from their children. The policy has been the subject of intense political debate and litigation, most prominently in a class action brought on behalf of immigrant parents in the Southern District of California captioned Ms. L. v. U.S. Immigration and Customs Enforcement, No. 18-CV-0428 (S.D. Cal.). On June 6, 2018, the Honorable Dana M. Sabraw, who is ably presiding over that litigation, concluded that the plaintiffs stated a legally cognizable claim for violation of their substantive due process rights to family integrity, and on June 26, 2018, he granted a class-wide preliminary injunction requiring the Government to reunite parents with their minor children by July 26, 2018. Since that time, Judge Sabraw has closely supervised the reunification process and related matters. Most relevant for present purposes, on July 16, 2018, he temporarily imposed a seven-day waiting period before members of reunified families could be removed from the country, relief that had been sought by the plaintiffs to ensure that parents

Case 3:18-cv-01626-DMS-JLB Document 20 Filed 07/19/18 PageID.503 Page 2 of 5

could consult with their children and counsel about legal options prior to removal. This case differs from Ms. L. in at least one significant respect: It is brought on behalf of
children who were separated from their parents and are now being held in New York State. Plaintiffs in this case argue that the Government plans to detain them in facilities that do not meet applicable legal standards or to repatriate them as a family unit with their parents, “thereby depriving each child of his or her ability to pursue [his or her own] individual asylum and other child immigrant claims.” (Docket No. 1 (“Compl.”), ¶ 3). Plaintiffs further claim that the Government has taken to moving children across state lines without warning to counsel and coercing parents into signing insufficiently informative waivers of their children’s due process, asylum, and child immigrant rights. (Id.). Plaintiffs ultimately seek to ensure that each class member has a meaningful opportunity to pursue asylum or other claims or, in the alternative, that each class member has the opportunity to voluntarily, intelligently, and knowingly waive those claims; they also seek to preserve class members’ ability to consult with their parents, close family, and counsel about these decisions. More immediately, they seek injunctive relief barring Defendants from removing any Plaintiff from New York State without providing (1) forty-eight hours’ notice of the pending transfer and certain related information to the Plaintiff and his or her counsel; and (2) an opportunity for the Plaintiff class member to consult with a parent or close family member and counsel in order to protect the child’s ability to make informed decisions about his or her legal rights and potential claims.1

1

On the evening of July 16, 2018, Judge Laura Taylor Swain, sitting in Part I, held a

hearing on Plaintiffs’ application for emergency relief and granted the application in part,

prohibiting the Government from removing putative class members represented by Legal Aid

from New York State without providing forty-eight hours’ notice of the forthcoming removal to

Plaintiffs and their counsel. The temporary restraining order expires today at 10 a.m. absent

2

Case 3:18-cv-01626-DMS-JLB Document 20 Filed 07/19/18 PageID.504 Page 3 of 5

These are substantial claims, but the question right now is not whether they have merit. Instead, the question is whether they should considered in this forum or by Judge Sabraw in the Southern District of California. Having considered the parties’ arguments — made during a hearing held on the record on July 17, 2018, and in letters submitted the next day, (Docket Nos. 14-16; see also Docket No. 11) — and (with the parties’ consent) having consulted with Judge Sabraw, the Court concludes for several reasons that Plaintiffs’ claims should be transferred to the Southern District of California to be considered in conjunction with the claims in Ms. L. First, the classes in the two cases concern the same families: Plaintiffs in this case seek relief on behalf of children whose parents are class members in Ms. L. (Compare Order, Ms. L., ECF No. 82, at 17, with Compl., ¶ 66). Second, the relief Plaintiffs seek in this case is, at bottom, directly related to the reunification process being supervised by Judge Sabraw. In essence, Plaintiffs here contend that they have rights and interests distinct from the rights and interests of their parents and that the reunification process, and Judge Sabraw’s own orders, do not adequately take their distinct rights and interests into account.2 That may or may not be the case, but Judge Sabraw is in a better position than this Court to decide those questions and to modify his own orders if appropriate. And third, in the absence of a single judge presiding over both cases, there is a real

extension, modification, or vacatur by the undersigned.

2

For example, Plaintiffs claim that the mere act of reunification mandated by Judge

Sabraw’s orders may deprive them of access to protections set forth in the William Wilberforce

Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 110-457, 122 Stat.

5044, as those protections apply only to unaccompanied minors (which they are now) and not to

accompanied minors (which they would become upon reunification). (See Docket No. 14

(“Pls.’ Letter”), at 3-4). Further, Plaintiffs contend that they “have independent rights . . . that

are being extinguished, through apparent waivers” being signed by their parents — waivers that

may have been approved by the Ms. L. Court. (Id. at 7-8).

3

Case 3:18-cv-01626-DMS-JLB Document 20 Filed 07/19/18 PageID.505 Page 4 of 5
risk of inconsistent decisions and conflicting orders — a particularly intolerable risk given the gravity and urgency of the issues in these cases (and the prospect of similar litigation being filed in other states where children separated from their parents are being held).
The Court is, of course, mindful of the deference that is owed to a plaintiff’s choice of forum. See, e.g., D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 106-07 (2d Cir. 2006). The Court is also aware that transferring this case will cause some inconvenience to Plaintiffs and Plaintiffs’ counsel, who are located in New York. (See Pls.’ Letter 9). Nevertheless, the Court is confident that Judge Sabraw can and will take steps to mitigate that inconvenience. And in any event, the inconvenience to Plaintiffs and Plaintiffs’ counsel is vastly outweighed by the interests of justice, fairness, efficiency, and avoidance of conflict advanced by having a single judge presiding over both cases. Accordingly, pursuant to Title 28, United States Code, Section 1404(a), the Court transfers this case to the Southern District of California. See, e.g., Cont’l Grain Co. v. The Barge FBL-585, 364 U.S. 19, 26 (1960) (“To permit a situation in which two cases involving precisely the same issues are simultaneously pending in different District Courts leads to the wastefulness of time, energy and money that § 1404(a) was designed to prevent.”); Wyndham Assocs. v. Bintliff, 398 F.2d 614, 619 (2d Cir. 1968) (recognizing a “strong policy favoring the litigation of related claims in the same tribunal”); Stroud Prods. & Enters. v. Castle Rock Entm’t, No. 07-CV-8638 (HB), 2009 WL 2391676, at *3 (S.D.N.Y. Aug. 4, 2009) (“[T]rial efficiency and the interests of justice weigh heavily in favor of litigating all related causes of action . . . in a single forum.” (citation omitted)). Further, to preserve the status quo, the temporary relief granted by this Court on July 17, 2018, (Docket No. 9), is extended to give Judge Sabraw an opportunity to consider Plaintiffs’ request for broader emergency relief. The
4

Case 3:18-cv-01626-DMS-JLB Document 20 Filed 07/19/18 PageID.506 Page 5 of 5

parties should promptly present those issues to Judge Sabraw so that he can decide whether to maintain, modify, or vacate the order granting temporary relief.
The Clerk of Court is directed to transfer this action forthwith to the United States District Court for the Southern District of California, to be assigned to Judge Sabraw. The Clerk of Court is directed to effectuate the transfer immediately, notwithstanding Local Rule 83.1, and then to close the case in this Court.

SO ORDERED.
Dated: July 19, 2018 New York, New York

__________________________________ JESSE M. FURMAN
United States District Judge

5

 
 Case 3:18-cv-01626-DMS-JLB Document 9
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------x
N.T.C. et~

Filed 07/17/18 PageID.66 Page 1 of 2
·- -·--====:::;:::=-=====~

• i, LSDC SONY

.

joocUMENT

: 1 ELECTRONICALLY FILED .

I

.

DOC#:
1 • :r· 1·:: ED: --~-1-.~11---1013

Plaintiffs,

-v-

US Immigration and Customs Enforcement et al.,

Defendants.

-------------------------------------------------------x

ORDER

This case, in which the Complaint was filed in Chambers of the undersigned this evening, came before the Court on Plaintiffs' application for an order to show cause as to why injunctive relief ought not to be entered, with an application for a temporary restraining order. The Court reviewed the complaint, Plaintiffs' memorandum of law, declarations and exhibits and proposed order to show cause, and heard representations and arguments from counsel for Plaintiffs and counsel for the government Defendants. The Court having determined that limited injunctive relief is warranted based on Plaintiffs' representations that minor children who have been forcibly separated from their parents, are in New York in the custody of the federal Office of Refugee Resettlement ("ORR") and have been referred for representation by the Legal Aid Society have been, and are expected to be, removed from New York without notice to their counsel and thereby deprived of the ability to receive legal advice and consult with counsel regarding their rights to make applications for asylum and enforce other substantive rights, and prosecute such claims and applications on their own behalf, and that parents are being solicited to consent on behalf of such children to removal without due process, and in order to afford the parties time to make further factual and legal investigations and to afford the judge to whom this case will be assigned tomorrow time to hold necessary proceedings, it is hereby

ORDERED, that Defendants ARE HEREBY RESTRAINED from taking any action to remove minor children clients of the Legal Aid Society from New York State who are in ORR custody without providing forty-eight (48) hours' advance notice of such forthcoming action to children and their counsel (including, without limitation, the location to which the minor child client will be moved, the location where the child's parent or parents currently reside, and whether the movement is for the purpose of release, detention, and/or repatriation), in order to permit consultation among the child, the child's parent or other close family member(s), and counsel to protect the child's ability to make informed decisions about his or her legal rights and potential claims. It is further

NTC v ICETRO

JULY 16, 2018

Case 3:18-cv-01626-DMS-JLB Document 9 Filed 07/17/18 PageID.67 Page 2 of 2

ORDERED, that the injunction set forth in the foregoing paragraph is in effect from the time of issuance of this order until 10:00 a.m. on Thursday, July 19, 2018, subject to extension, other modification or vacatur by further order of the assigned judge. It is further

ORDERED, that Plaintiffs' counsel shall deliver to Defendants' counsel a list of the names of the client children by 9:00 a.m. on Tuesday, July 17, 2018, and that, pending such delivery, Defendants shall assume that all minor children in New York in ORR custody who have been forcibly separated from their parents are clients of the Legal Aid Society. It is further

ORDERED, that no bond is required. It is further

ORDERED, that Plaintiffs shall file their Complaint in the office of the Clerk of Court by 9:30 a.m. on Tuesday July 17, 2018, and promptly inform Defendants' counsel of the name of the assigned judge.

SO ORDERED.

Dated:

New York, New York July 16, 2018 Issued: 9: 15 p.m.

L~
United States District Judge Part I

2

NTCv ICETRO

JULY 16.2018