APPEAL,CLASS ACTION,PROTO,SEALDC
U.S. District Court Southern District of California (San Diego) CIVIL DOCKET FOR CASE #: 3:18−cv−00428−DMS−MDD

Ms. L. v. U.S. Immigration and Customs Enforcement et al Assigned to: Judge Dana M. Sabraw Referred to: Magistrate Judge Mitchell D. Dembin Related Cases: 3:18−cv−01699−DMS−MDD
3:18−cv−01832−DMS−MDD
3:18−cv−01769−DMS−MDD
Case in other court: USCA, 18−56151 Cause: 08:1158 Immigration & Nationality Act, Section 208 (Asylum)
Petitioner

Date Filed: 02/26/2018 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Ms. L.

represented by Anand Venkata Balakrishnan ACLU Immigrants Rights Project 125 Broad Street 18th Floor New York, NY 10004 212−549−2618 Email: abalakrishnan@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Bardis Vakili ACLU Foundation of San Diego & Imperial Counties P.O. Box 87131 San Diego, CA 92138−7131 (619) 232−2121 Fax: (619) 232−0036 Email: bvakili@aclusandiego.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles D. Reiter Simpson Thacher & Bartlett LLP 1999 Avenue of the Stars Floor 29 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 TERMINATED: 07/20/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Harrison J. Frahn , IV

Petitioner Ms. C.

Simpson Thacher & Bartlett LLP 2475 Hanover Street Palo Alto, CA 94304 650.251.5000 Fax: 650.251.5002 Email: hfrahn@stblaw.com TERMINATED: 07/20/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Judy Rabinovitz ACLU Immigrants Right Project 125 Broad Street 18th Floor New York, NY 10004 212−549−2618 Email: JRabinovitz@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lee Gelernt ACLU Immigrants' Rights Project 125 Broad Street New York, NY 10004 242−549−2660 x2616 Fax: 212−549−2654 Email: lgelernt@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen B. Kang American Civil Liberties Union Found. of Northern California 39 Drumm Street San Francisco, CA 94111 415−343−0070 x0783 Fax: 415−395−0950 Email: skang@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Antonio Galindo American Civil Liberties Union 125 Broad Street 17th Floor New York, NY 10004 646−905−8907 Fax: 212−549−2654 Email: dgalindo@aclu.org ATTORNEY TO BE NOTICED
Spencer E. W. Amdur ACLU Immigants' Rights Project 39 Drumm Street San Francisco, CA 94111 415−343−1198 Fax: 415−395−0950 Email: samdur@aclu.org ATTORNEY TO BE NOTICED
represented by

Petitioner Dora

Charles D. Reiter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chet A Kronenberg (See above for address) TERMINATED: 07/20/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Harrison J. Frahn , IV (See above for address) TERMINATED: 07/20/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen B. Kang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Antonio Galindo (See above for address) ATTORNEY TO BE NOTICED
Lee Gelernt (See above for address) ATTORNEY TO BE NOTICED
represented by Carol T. McClarnon Eversheds Sutherland (US) LLP 700 6th Street NW Suite 700 Washington, DC 20001 202−383−0946 Fax: 202−637−3593 Email: carolmcclarnon@eversheds−sutherland.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Emily A. Bork Eversheds Sutherland (US) LLP 700 Sixth Street NW Suite 700 Washington, DC 20001−3980 202−383−0140 Fax: 202−637−3593 Email: emilybork@eversheds−sutherland.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
John H. Fleming Eversheds Sutherland (US) LLP 999 Peachtree Street NE Suite 2300 Atlanta, GA 30309 404−853−8000 Fax: 404−853−8806 Email: johnfleming@eversheds−sutherland.com LEAD ATTORNEY

PRO HAC VICE ATTORNEY TO BE NOTICED
Johnathan James Smith Muslim Advocates P. O. Box 34440 Washington, DC 20043 202−897−2622 Fax: 202−508−1007 Email: johnathan@muslimadvocates.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph Saei Muslim Advocates P.O. Box 34440 Washington, DC 20043 202−897−1550 Email: saeiyusuf@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Simon Yehuda Sandoval−Moshenberg Legal Aid Justice Center 6066 Leesburg Pike #520 Falls Church, VA 22041 703−720−5605 Email: simon@justice4all.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sirine Shebaya National Immigration Project of the National Lawyers' G 89 South St., Suite 603 Boston, MA 02111 202−656−4788 Email: sirine@nipnlg.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sophia Leticia Gregg Legal Aid Justice Center 6066 Leesburg Pike #520 Falls Church, VA 22041 703−720−5602 Email: sophia@justice4all.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Wilson G. Barmeyer Eversheds Sutherland (US) LLP 700 Sixth Street NW Suite 700 Washington, DC 20001−3980 202−383−0100 Fax: 202−637−3593 Email: wilsonbarmeyer@eversheds−sutherland.com LEAD ATTORNEY

Petitioner Alma

PRO HAC VICE ATTORNEY TO BE NOTICED
Aaron M. Olsen Haeggquist & Eck, LLP 225 Broadway Suite 2050 San Diego, CA 92101 (619) 342−8000 Fax: (619) 342−7878 Email: aarono@haelaw.com ATTORNEY TO BE NOTICED
Lee Gelernt (See above for address) ATTORNEY TO BE NOTICED
represented by Carol T. McClarnon (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Emily A. Bork (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
John H. Fleming (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph Saei (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Simon Yehuda Sandoval−Moshenberg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sirine Shebaya (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sophia Leticia Gregg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

V.
Respondent
U.S. Immigration and Customs Enforcement (ICE)

Wilson G. Barmeyer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Aaron M. Olsen (See above for address) ATTORNEY TO BE NOTICED
Lee Gelernt (See above for address) ATTORNEY TO BE NOTICED
represented by U S Attorney CV U S Attorneys Office Southern District of California Civil Division 880 Front Street Suite 6253 San Diego, CA 92101 (619)557−5662 Fax: (619)557−7122 Email: Efile.dkt.civ@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
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
Samuel William Bettwy U S Attorney's Office Southern District of California Civil Division 880 Front Street Room 6293 San Diego, CA 92101−8893 (619) 546−7125 Fax: (619) 546−7751 Email: Samuel.Bettwy@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

Respondent U.S. Department of Homeland Security (DHS)
Respondent U.S. Customs and Border Protection (CBP)

Nicole N. Murley U.S. Department of Justice P.O. Box 868 Ben Franklin Station Washington, DC 20044 202−616−0473 Fax: 202−305−7000 Email: Nicole.Murley@usdoj.gov ATTORNEY TO BE NOTICED
Scott Grant Stewart U. S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 202−307−6482 Email: scott.g.stewart@usdoj.gov ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
August Edward Flentje (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel William Bettwy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicole N. Murley (See above for address) ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
August Edward Flentje (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel William Bettwy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent U.S. Citizenship and Immigration Services (USCIS)
Respondent U.S. Department of Health and Human Services (HHS)

Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicole N. Murley (See above for address) ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
August Edward Flentje (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel William Bettwy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicole N. Murley (See above for address) ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
August Edward Flentje (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel William Bettwy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicole N. Murley

Respondent Office of Refugee Resettlement (ORR)
Respondent Thomas Homan Acting Director of ICE

(See above for address) ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
August Edward Flentje (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel William Bettwy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicole N. Murley (See above for address) ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
August Edward Flentje (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel William Bettwy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicole N. Murley (See above for address) ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) ATTORNEY TO BE NOTICED

Respondent Greg Archambeault San Diego Field Office Director, ICE
Respondent Joseph Greene San Diego Assistant Field Office Director, ICE
Respondent Kirstjen Nielsen Secretary of DHS

represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
August Edward Flentje (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel William Bettwy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicole N. Murley (See above for address) ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
August Edward Flentje (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel William Bettwy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicole N. Murley (See above for address) ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY

Respondent Jefferson Beauregard Sessions, III Attorney General of the United States
Respondent Kevin K. McAleenan Acting Commissioner of CBP

ATTORNEY TO BE NOTICED
August Edward Flentje (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel William Bettwy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicole N. Murley (See above for address) ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
August Edward Flentje (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel William Bettwy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicole N. Murley (See above for address) ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
August Edward Flentje (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent L. Francis Cissna Director of USCIS
Respondent Pete Flores San Diego Field Director, CBP

Samuel William Bettwy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicole N. Murley (See above for address) ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
August Edward Flentje (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel William Bettwy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicole N. Murley (See above for address) ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
August Edward Flentje (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel William Bettwy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent Fred Figueroa Warden, Otay Mesa Detention Center TERMINATED: 03/09/2018
Respondent Alex Azar Secretary of the Department of Health and Human Services

Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicole N. Murley (See above for address) ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
August Edward Flentje (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicole N. Murley (See above for address) ATTORNEY TO BE NOTICED
Sarah B. Fabian (See above for address) ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
August Edward Flentje (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel William Bettwy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicole N. Murley (See above for address) ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) ATTORNEY TO BE NOTICED

Respondent Scott Lloyd Director of the Office of Refugee Resettlement
Respondent Hector A. Mancha Jr. El Paso Field Director, CBP
Respondent Adrian P. Macias El Paso Field Director, ICE

represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
August Edward Flentje (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel William Bettwy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicole N. Murley (See above for address) ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) ATTORNEY TO BE NOTICED
represented by August Edward Flentje (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel William Bettwy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicole N. Murley (See above for address) ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) ATTORNEY TO BE NOTICED
represented by August Edward Flentje (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel William Bettwy (See above for address) LEAD ATTORNEY

Respondent Francis M. Jackson El Paso Assistant Field Office Director, ICE
Miscellaneous Party Lesbi Martinez−Martinez Objector
Miscellaneous Party

ATTORNEY TO BE NOTICED
Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicole N. Murley (See above for address) ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) ATTORNEY TO BE NOTICED
represented by August Edward Flentje (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel William Bettwy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicole N. Murley (See above for address) ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) ATTORNEY TO BE NOTICED
represented by Julia Elizabeth Romano King & Spalding LLP 633 W. 5th Street Suite 1600 Los Angeles, CA 90071 213−443−4365 Email: jromano@kslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Martin M. McNerney King & Spalding 1700 Pennsylvania Avenue NW Suite 200 Washington, DC 20006 202−626−5447 Fax: 202−626−3737 Email: mmcnerney@kslaw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Ms. M. D−L Objector
Amicus Michael Wishnie, et al., amici curiae
Amicus Children's Rights., Inc., et al., amici curiae
Amicus Scholars of Habeas Corpus and Constitutional Law

represented by Ashley Elizabeth Neglia Kirkland & Ellis LLP 333 S. Hope Street 29th Floor Los Angeles, CA 90071 213−680−8400 Fax: 213−680−8500 Email: ashley.neglia@kirkland.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina Briesacher Kirkland & Ellis LLP 300 N. LaSalle Chicago, IL 60654 312−862−7322 Email: christina.briesacher@kirkland.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Nicklin 300 N. LaSalle Chicago, IL 60654 312−862−7322 Email: emily.nicklin@kirkland.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Michael Shipley Kirkland & Ellis, LLP 333 South Hope Street Los Angeles, CA 90071 213−680−8222 Fax: 213−380−8500 Email: michael.shipley@kirkland.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Summer J Wynn Cooley Godward Kronish 4401 Eastgate Mall San Diego, CA 92121−9109 (858) 550−6030 Fax: (858) 550−6420 Email: swynn@cooley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Adriel I. Cepeda Derieux Wilmer Cutler Pickering Hale and Dorr LLP 7 World Trade Center 250 Greenwich Street New York City, NY 10007 212−295−6303 Email: Adriel.CepedaDerieux@wilmerhale.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher T Casamassima WilmerHale 350 South Grand Avenue Suite 2100 Los Angeles, CA 90071 (213) 443−5374 Fax: (213) 443−5400 Email: chris.casamassima@wilmerhale.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jamie Stephen Dycus Wilmer Cutler Pickering Hale and Dorr LLP 7 World Trade Center New York, NY 10007 212−937−7236 Email: Jamie.Dycus@wilmerhale.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Noah Adam Levine Wilmer Cutler Pickering Hale and Dorr LLP 7 World Trade Center 250 Greenwich Street New York City, NY 10007 212−230−8875 Fax: 212−230−8800 Email: Noah.Levine@wilmerhale.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 02/26/2018
02/26/2018 02/27/2018 02/27/2018 02/27/2018

# Docket Text
1 PETITION for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief against Greg Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas Homan, 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 ( Filing fee $ 400 receipt number 0974−10950244.), filed by Ms. L. (Attachments: # 1 Civil Cover Sheet)
The new case number is 3:18−cv−428−DMS−MDD. Judge Dana M. Sabraw and Magistrate Judge Mitchell D. Dembin are assigned to the case. (Vakili, Bardis)(tcf)(jrd) (Entered: 02/26/2018)
2 Summons Issued. Counsel receiving this notice electronically should print this summons and serve it in accordance with Rule 4, Fed.R.Civ.P and LR 4.1. (tcf)(jrd) (Entered: 02/26/2018)
3 MOTION to File Complaint Using Pseudonym (Vakili, Bardis). Modified on 2/28/2018 − No Proof of Service. QC Email sent to file Proof of Service (jah). Modified on 3/7/2018 − Corrected motion event (jah). (Entered: 02/27/2018)
4 SEALED LODGED Proposed Document re: 3 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (Vakili, Bardis). (jah). (Entered: 02/27/2018)
5 SUMMONS Returned Executed by Ms. L.. Greg Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas Homan, Scott Lloyd, Kevin K. McAleenan, Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson

02/27/2018 02/28/2018 02/28/2018 02/28/2018 02/28/2018 02/28/2018 02/28/2018 03/02/2018 03/02/2018 03/02/2018 03/02/2018
03/02/2018
03/02/2018 03/02/2018 03/02/2018 03/03/2018

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 served. (Vakili, Bardis) (aef). (Entered: 02/27/2018)
6 CERTIFICATE OF SERVICE by Ms. L. re 3 MOTION to File Documents Under Seal, 4 Sealed Lodged Proposed Document (Vakili, Bardis) (aef). (Entered: 02/27/2018)
7 Request to Appear Pro Hac Vice (Filing fee received: $ 206 receipt number 0974−10963954.)(Application to be reviewed by Clerk.) (Rabinovitz, Judy)(jrd) (Entered: 02/28/2018)
8 PRO HAC APPROVED: Judy Rabinovitz appearing for Petitioner Ms. L. (no document attached) (ajs) (Entered: 02/28/2018)
9 Request to Appear Pro Hac Vice, No payment Submitted. (Application to be reviewed by Clerk.) (Gelernt, Lee) (Entered: 02/28/2018)
10 PRO HAC APPROVED: Lee Gelernt appearing for Petitioner Ms. L. (no document attached) (jrd) (Entered: 02/28/2018)
11 Request to Appear Pro Hac Vice (Filing fee received: $ 206 receipt number 0974−10964160.)(Application to be reviewed by Clerk.) (Balakrishnan, Anand)(jrd) (Entered: 02/28/2018)
12 PRO HAC APPROVED: Anand Venkata Balakrishnan appearing for Petitioner Ms. L. (no document attached) (jrd) (Entered: 02/28/2018)
13 MOTION for Permanent Injunction by Ms. L.. (Attachments: # 1 Memo of Points and Authorities Memorandum in Support of Motion for Preliminary Injunction and Declarations)(Gelernt, Lee) (aef). (Entered: 03/02/2018)
14 MOTION to Expedite Preliminary Injunction Schedule by Ms. L.. (Attachments: # 1 Memo of Points and Authorities Memorandum in Support of Motion to Expedite)(Gelernt, Lee) (aef). (Entered: 03/02/2018)
15 MOTION to File Documents Under Seal (Gelernt, Lee). (jah). (Entered: 03/02/2018)
16 *** DOCKETED SEALED ON 3/5/19, ECF 371 *** SEALED LODGED Proposed Document re: 15 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (Gelernt, Lee). (jah). Modified on 3/5/2019 (dlg). (Entered: 03/02/2018)
17 MOTION for Leave to File Brief by Amicus Curiae in Support of Plaintiff's Habeas Corpus Petition and Complaint for Declaratory Injunctive Relief by Children's Rights, Inc.. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration of Linh Nguyen, # 3 Exhibit A to Declaration, # 4 Exhibit B to Declaration, # 5 Exhibit C to Declaration, # 6 Exhibit D to Declaration, # 7 Exhibit E to Declaration, # 8 Exhibit F to Declaration, # 9 Exhibit G to Declaration, # 10 Exhibit H to Declaration, # 11 Exhibit I to Declaration, # 12 Exhibit J to Declaration, # 13 Exhibit K to Declaration, # 14 Exhibit L to Declaration, # 15 Exhibit M to Declaration, # 16 Proof of Service)(Wynn, Summer)Attorney Summer J Wynn added to party Children's Rights, Inc.(pty:ip) (aef). (Entered: 03/02/2018)
18 CERTIFICATE OF SERVICE by Ms. L. re 13 MOTION for Permanent Injunction and Memorandum in Support of Preliminary Injunction (Gelernt, Lee) (aef). (Entered: 03/02/2018)
19 CERTIFICATE OF SERVICE by Ms. L. re 14 MOTION to Expedite Preliminary Injunction Schedule and Memorandum in Support of Motion (Gelernt, Lee) (aef). (Entered: 03/02/2018)
20 CERTIFICATE OF SERVICE by Ms. L. re 15 MOTION to File Documents Under Seal (Gelernt, Lee) (aef). (Entered: 03/02/2018)
21 Amended MOTION for Preliminary Injunction by Ms. L.. (Attachments: # 1 Memo of Points and Authorities Memorandum in Support of Motion for Preliminary Injunction and Corrected Exhibits)(Gelernt, Lee) (aef). (Entered: 03/03/2018)

03/03/2018 03/04/2018 03/05/2018 03/05/2018 03/06/2018 03/06/2018 03/07/2018
03/07/2018 03/08/2018 03/08/2018
03/09/2018
03/09/2018

22 CERTIFICATE OF SERVICE by Ms. L. re 21 Amended MOTION for Preliminary Injunction and Memorandum in Support of Preliminary Injunction (Gelernt, Lee) (aef). (Entered: 03/03/2018)
23 Amicus Curiae Appearance entered by Michael Shipley on behalf of Michael Wishnie, et al., amici curiae. (Attachments: # 1 Memo of Points and Authorities Brief of Scholars of Immigration Law and Constitutional Law as Amici Curiae in Support of Ms. L.'s Motion for a Preliminary Injunction, # 2 Proof of Service)(Shipley, Michael) (aef). (Entered: 03/04/2018)
24 NOTICE of Withdrawal of Documents by Ms. L. re 13 MOTION for Permanent Injunction (Vakili, Bardis) (aef). (Entered: 03/05/2018)
25 CERTIFICATE OF SERVICE by Ms. L. re 24 Notice (Other) of Withdrawal of Documents (Vakili, Bardis) (aef). (Entered: 03/05/2018)
26 ORDER granting Petitioner's 3 Motion to File Complaint Using Pseudonym. The Petitioner is granted leave to file the Complaint using only the Petitioner's initial. An unredacted copy of the Complaint will be received as a restricted document, only available to the parties in this litigation. The parties will not disclose the unredacted Complaint or Petitioner's true name to anyone other than parties to the litigation. Signed by Judge Dana M. Sabraw on 3/6/2018. (jah) (Entered: 03/07/2018)
27 Unredacted Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief by Ms. L. re 1 Petition. (jah) (Entered: 03/07/2018)
28 RESPONSE in Opposition re 14 MOTION to Expedite Preliminary Injunction Schedule filed by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, 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. (Attachments: # 1 Declaration, # 2 Proof of Service)(Bettwy, Samuel) (aef). (Entered: 03/07/2018)
29 NOTICE of Appearance by Spencer E. W. Amdur on behalf of Ms. L. (Amdur, Spencer)Attorney Spencer E. W. Amdur added to party Ms. L.(pty:pet) (aef). (Entered: 03/07/2018)
30 Minute Entry for proceedings held before Judge Dana M. Sabraw: Telephonic Status Conference held on 3/8/2018. Court to issue order. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt, Bardis Vakili). (Defendant Attorney Samuel Bettwy, Nicole Murley). (no document attached) (jak) (Entered: 03/08/2018)
31 ORDER (1) Granting in part and Denying in part 14 Motion to Expedite and (2) Setting Briefing Schedule and Hearing Date on Motion for Preliminary Injunction and Motions for Leave to File Amicus Brief. Respondents−Defendants shall provide the results of the DNA testing to Petitioner−Plaintiff's counsel and the Court on or before March 14, 2018. Respondents−Defendants shall file their responses to the motions for preliminary injunction and to file amicus briefs on or before March 16, 2018. Petitioner−Plaintiff and Amici shall file their reply briefs on or before March 23, 2018. Absent a finding by theCourt that oral argument is unnecessary pursuant to Civil Local Rule 7.1(d)(1), the motions will be heard on March 29, 2018, at 1:30 p.m. Signed by Judge Dana M. Sabraw on 3/8/2018. (aef) (Entered: 03/08/2018)
32 AMENDED COMPLAINT for Declaratory and Injunctive Relief with Class Action Allegations against Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, 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, Hector A. Mancha Jr., Adrian P. Macias, Francis M. Jackson, filed by Ms. L., Ms. C..New Summons Requested. (Gelernt, Lee) (aef). (Entered: 03/09/2018)
33 MOTION to File Documents Under Seal (Gelernt, Lee). (jah). (Entered: 03/09/2018)

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03/16/2018
03/16/2018

34 *** DOCKETED SEALED ON 3/5/19, ECF 373 *** SEALED LODGED Proposed Document re: 33 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (Gelernt, Lee). (jah). Modified on 3/5/2019 (dlg). (Entered: 03/09/2018)
35 ***DOCUMENT STRICKEN PER ECF 41 *** − MOTION to Certify Class by Ms. C., Ms. L.. (Attachments: # 1 Memo of Points and Authorities Memorandum in Support of Motion for Class Certification and Exhibits)(Gelernt, Lee) (Main Document 35 replaced on 3/9/2018) (aef). Modified on 3/9/2018 to strike document; motion termed (aef). (Entered: 03/09/2018)
36 MOTION to File Documents Under Seal (Gelernt, Lee). (jah). (Entered: 03/09/2018)
37 *** DOCKETED SEALED ON 3/5/19, ECF 375 *** SEALED LODGED Proposed Document re: 36 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (Gelernt, Lee). (jah). Modified on 3/5/2019 (dlg). (Entered: 03/09/2018)
38 CERTIFICATE OF SERVICE by Ms. C., Ms. L. re 33 MOTION to File Documents Under Seal, 34 Sealed Lodged Proposed Document (Gelernt, Lee) (aef). (Entered: 03/09/2018)
39 CERTIFICATE OF SERVICE by Ms. C., Ms. L. re 35 MOTION to Certify Class and Memorandum in Support of Motion (Gelernt, Lee) (aef). (Entered: 03/09/2018)
40 CERTIFICATE OF SERVICE by Ms. C., Ms. L. re 36 MOTION to File Documents Under Seal, 37 Sealed Lodged Proposed Document (Gelernt, Lee) (aef). (Entered: 03/09/2018)
41 Notice of Document Discrepancies and Order Thereon by Judge Dana M. Sabraw Rejecting re 35 Motion to Certify Class , from Petitioners Ms. C., Ms. L. Non−compliance with local rule(s), Civil Local Rule 7.1.b. Counsel must obtain a hearing date from chambers prior to filing motions. IT IS HEREBY ORDERED: The document is rejected. It is ordered that the Clerk STRIKE the document from the record, and serve a copy of this order on all parties. Signed by Judge Dana M. Sabraw on 3/9/2018.(aef) (Entered: 03/09/2018)
42 MOTION to Certify Class by Ms. C., Ms. L.. (Attachments: # 1 Memo of Points and Authorities Memorandum in Support of Motion for Class Certification and Exhibits)(Gelernt, Lee) (aef). (Entered: 03/09/2018)
43 Summons Issued re 32 Amended Complaint. Counsel receiving this notice electronically should print this summons and serve it in accordance with Rule 4, Fed.R.Civ.P and LR 4.1. (aef) (Entered: 03/12/2018)
44 NOTICE of DNA Results by Alex Azar, Scott Lloyd, Office of Refugee Resettlement, U.S. Department of Health and Human Services re 31 Order on Motion to Expedite, (Attachments: # 1 Proof of Service)(Bettwy, Samuel)Attorney Samuel William Bettwy added to party Alex Azar(pty:res), Attorney Samuel William Bettwy added to party Scott Lloyd(pty:res), Attorney Samuel William Bettwy added to party Office of Refugee Resettlement(pty:res), Attorney Samuel William Bettwy added to party U.S. Department of Health and Human Services(pty:res) (aef). (Entered: 03/12/2018)
45 NON Opposition re 17 MOTION for Leave to File Brief by Amicus Curiae in Support of Plaintiff's Habeas Corpus Petition and Complaint for Declaratory Injunctive Relief filed by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Attachments: # 1 Proof of Service)(Bettwy, Samuel) (aef). (Entered: 03/16/2018)
46 RESPONSE in Opposition re 21 Amended MOTION for Preliminary Injunction filed by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., Kevin K. McAleenan, Kirstjen Nielsen, Office of Refugee Resettlement,

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03/22/2018 03/23/2018 03/23/2018

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. (Attachments: # 1 Declaration Ortiz, # 2 Declaration Banzon, # 3 Proof of Service)(Bettwy, Samuel) (aef). (Entered: 03/16/2018)
47 MOTION to File Documents Under Seal (With attachments)(Bettwy, Samuel) QC mailer sent re missing proposed document (jjg). (Entered: 03/16/2018)
48 MOTION for Preliminary Injunction for Classwide Relief by Ms. C., Ms. L.. (Attachments: # 1 Memo of Points and Authorities in Support of Classwide Preliminary Injunction and Exhibits)(Gelernt, Lee) (aef). (Entered: 03/19/2018)
49 STATUS REPORT by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, 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. (Attachments: # 1 Proof of Service)(Bettwy, Samuel) (aef). (Entered: 03/19/2018)
50 *** DOCKETED SEALED ON 3/5/19, ECF 377 *** SEALED LODGED Proposed Document re: 47 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Bettwy, Samuel) (jjg). Modified on 3/5/2019 (dlg). (Entered: 03/19/2018)
51 Joint MOTION for Hearing (reset hearing date & set briefing schedule) by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, 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. (Attachments: # 1 Proof of Service)(Bettwy, Samuel) (aef). (Entered: 03/21/2018)
52 ORDER (1) Granting 51 Joint Motion to Reset Hearing Date and Set Briefing Schedule and (2) Denying as Moot 21 Motion for Preliminary Injunction and Vacating Hearing Date Thereon. Signed by Judge Dana M. Sabraw on 3/22/2018. (aef) (Entered: 03/22/2018)
53 ORDER Granting 17 , 23 Motions for Leave to File Amicus Briefs. Signed by Judge Dana M. Sabraw on 3/22/2018. (aef) (Entered: 03/23/2018)
54 NOTICE of Appearance by Sarah B. Fabian on behalf of Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, 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 (Fabian, Sarah)Attorney Sarah B. Fabian added to party Greg Archambeault(pty:res), Attorney Sarah B. Fabian added to party Alex Azar(pty:res), Attorney Sarah B. Fabian added to party L. Francis Cissna(pty:res), Attorney Sarah B. Fabian added to party Pete Flores(pty:res), Attorney Sarah B. Fabian added to party Joseph Greene(pty:res), Attorney Sarah B. Fabian added to party Thomas Homan(pty:res), Attorney Sarah B. Fabian added to party Scott Lloyd(pty:res), Attorney Sarah B. Fabian added to party Kevin K. McAleenan(pty:res), Attorney Sarah B. Fabian added to party Kirstjen Nielsen(pty:res), Attorney Sarah B. Fabian added to party Office of Refugee Resettlement(pty:res), Attorney Sarah B. Fabian added to party Jefferson Beauregard Sessions, III(pty:res), Attorney Sarah B. Fabian added to party U.S. Citizenship and Immigration Services(pty:res), Attorney Sarah B. Fabian added to party U.S. Customs and Border Protection(pty:res), Attorney Sarah B. Fabian added to party U.S. Department of Health and Human Services(pty:res), Attorney Sarah B. Fabian added to party U.S. Department of Homeland Security(pty:res), Attorney Sarah B. Fabian added to party U.S. Immigration and Customs Enforcement(pty:res) (jpp). (Entered: 03/23/2018)

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55 NOTICE of Appearance by Nicole N. Murley on behalf of Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, 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 (Murley, Nicole)Attorney Nicole N. Murley added to party Greg Archambeault(pty:res), Attorney Nicole N. Murley added to party Alex Azar(pty:res), Attorney Nicole N. Murley added to party L. Francis Cissna(pty:res), Attorney Nicole N. Murley added to party Pete Flores(pty:res), Attorney Nicole N. Murley added to party Joseph Greene(pty:res), Attorney Nicole N. Murley added to party Thomas Homan(pty:res), Attorney Nicole N. Murley added to party Scott Lloyd(pty:res), Attorney Nicole N. Murley added to party Kevin K. McAleenan(pty:res), Attorney Nicole N. Murley added to party Kirstjen Nielsen(pty:res), Attorney Nicole N. Murley added to party Office of Refugee Resettlement(pty:res), Attorney Nicole N. Murley added to party Jefferson Beauregard Sessions, III(pty:res), Attorney Nicole N. Murley added to party U.S. Citizenship and Immigration Services(pty:res), Attorney Nicole N. Murley added to party U.S. Customs and Border Protection(pty:res), Attorney Nicole N. Murley added to party U.S. Department of Health and Human Services(pty:res), Attorney Nicole N. Murley added to party U.S. Department of Homeland Security(pty:res), Attorney Nicole N. Murley added to party U.S. Immigration and Customs Enforcement(pty:res) (aef). (Entered: 03/27/2018)
56 MOTION to Dismiss for Lack of Jurisdiction and Lack of Venue, MOTION to Dismiss for Failure to State a Claim by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Attachments: # 1 Memo of Points and Authorities)(Fabian, Sarah)Attorney Sarah B. Fabian added to party Francis M. Jackson(pty:res), Attorney Sarah B. Fabian added to party Adrian P. Macias(pty:res), Attorney Sarah B. Fabian added to party Hector A. Mancha Jr.(pty:res) (aef). (Entered: 04/06/2018)
57 RESPONSE in Opposition re 48 MOTION for Preliminary Injunction for Classwide Relief filed by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Fabian, Sarah) (aef). (Entered: 04/20/2018)
58 RESPONSE in Opposition re 56 MOTION to Dismiss for Lack of Jurisdiction and Lack of Venue MOTION to Dismiss for Failure to State a Claim filed by Ms. C., Ms. L.. (Gelernt, Lee) (aef). (Entered: 04/20/2018)
59 RESPONSE in Opposition re 42 MOTION to Certify Class filed by Greg Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Murley, Nicole)(aef). (Entered: 04/20/2018)
60 ORDER Granting Motion to File Amended Complaint Using Pseudonym. It is ORDERED that the Petitioners−Plaintiffs are granted leave to file the Amended Complaint using only the Petitioner−Plaintiff's initial. Signed by Judge Dana M. Sabraw on 4/24/2018.(aef) (Entered: 04/26/2018)
61 REPLY to Response to Motion re 56 MOTION to Dismiss for Lack of Jurisdiction and Lack of Venue MOTION to Dismiss for Failure to State a Claim filed by Greg

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05/02/2018
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06/06/2018

Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Fabian, Sarah) (aef). (Entered: 04/27/2018)
62 REPLY to Response to Motion re 42 MOTION to Certify Class filed by Ms. C., Ms. L.. (Gelernt, Lee)(aef). (Entered: 04/27/2018)
63 REPLY to Response to Motion re 48 MOTION for Preliminary Injunction for Classwide Relief filed by Ms. C., Ms. L.. (Gelernt, Lee) (aef). (Entered: 04/27/2018)
64 MOTION to File Documents Under Seal (Gelernt, Lee) (aef). (Entered: 04/27/2018)
65 *** DOCKETED SEALED ON 3/5/19, ECF 379 *** SEALED LODGED Proposed Document re: 64 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (Gelernt, Lee)(aef). Modified on 3/5/2019 (dlg). (Entered: 04/27/2018)
66 CERTIFICATE OF SERVICE by Ms. C., Ms. L. re 64 MOTION to File Documents Under Seal, 65 Sealed Lodged Proposed Document (Gelernt, Lee) (aef). (Entered: 04/27/2018)
67 SUMMONS Returned Executed by Ms. L.. Greg Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas Homan, 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 served. (Gelernt, Lee)(aef). (Entered: 05/02/2018)
68 SUMMONS Returned Executed by Ms. L., Ms. C.. Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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 served. (Gelernt, Lee) (aef). (Entered: 05/02/2018)
69 Minute Entry for proceedings held before Judge Dana M. Sabraw: Motion Hearing held on 5/4/2018 re 42 MOTION to Certify Class filed by Ms. C., Ms. L., 48 MOTION for Preliminary Injunction for Classwide Relief filed by Ms. C., Ms. L. Court to issue order. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Anana Balakrishnan, Lee Gelernt, Bardis Vakili). (Defendant Attorney Sara Fabian, Nicole Murley). (no document attached) (jak) (Entered: 05/04/2018)
70 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Motion Hearing) held on 5/4/2018, before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 5/30/2018. Redacted Transcript Deadline set for 6/11/2018. Release of Transcript Restriction set for 8/7/2018. (akr) (Entered: 05/09/2018)
71 ORDER Granting in part and Denying in part 56 Defendants' Motion to Dismiss. The Court grants in part and denies in part Defendants' motion to dismiss. Specifically, the Court grants Defendants' motion to dismiss Plaintiffs' claims under the APA and the Asylum Statute, and denies Defendants' motion to dismiss Plaintiffs' due process claim. Although Plaintiffs did not request leave to amend in the event any portion of Defendants' motion was granted, the Court grants Plaintiffs leave to file a Second

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Amended Complaint that cures the pleading deficiencies set out above. If Plaintiffs wish to do so, they shall file their Second Amended Complaint on or before July 3, 2018. Signed by Judge Dana M. Sabraw on 6/6/2018. (aef) (Entered: 06/06/2018)
72 NOTICE of Appearance by Stephen B. Kang on behalf of Ms. C., Ms. L. (Kang, Stephen)Attorney Stephen B. Kang added to party Ms. C.(pty:pet), Attorney Stephen B. Kang added to party Ms. L.(pty:pet) (aef). (Entered: 06/08/2018)
73 ORDER Setting Status Conference. In light of the Executive Order issued today, June 20, 2018, entitled "Affording Congress an Opportunity to Address Family Separation," a telephonic status conference shall be held on June 22, 2018, at 12:00 p.m. Counsel for Defendants shall organize and initiate the call to the Court. Signed by Judge Dana M. Sabraw on 6/20/2018.(aef) (Entered: 06/20/2018)
74 NOTICE of Dial−In Information. For purposes of the telephonic status conference scheduled for June 22, 2018, at 12:00 p.m., the Court has set up a dial in number for counsel and any members of the news media that wish to attend. This number is for counsel and media only, 877−873−8018. (aef) (Entered: 06/22/2018)
75 Minute Entry for proceedings held before Judge Dana M. Sabraw: Telephonic Status Conference held on 6/22/2018. Plaintiff to file additional briefing by 6/25/2018. Defense to file response by 6/27/2018 4:30pm PST. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt, Vakili Bardis). (Defendant Attorney Sarah Fabian, Samuel Bettwy). (no document attached) (jak) (Entered: 06/22/2018)
76 ORDER Amending Briefing Schedule. In light of the urgent nature of the motions currently pending before the Court, the Court finds good cause to advance the deadline for Defendants' supplemental brief. Accordingly, Defendants shall file their supplemental brief on or before June 26, 2018, at 9:00 a.m. Pacific Time. Signed by Judge Dana M. Sabraw on 6/24/2018.(aef) (Entered: 06/25/2018)
77 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Telephonic Status Conference) held on 6/22/2018, before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 7/16/2018. Redacted Transcript Deadline set for 7/26/2018. Release of Transcript Restriction set for 9/24/2018. (akr) (Entered: 06/25/2018)
78 SUPPLEMENTAL BRIEFING by Petitioners Ms. C., Ms. L. re 48 MOTION for Preliminary Injunction for Classwide Relief and Additional Evidence. (Gelernt, Lee) (aef). (Entered: 06/25/2018)
79 RESPONSE in Opposition re 48 MOTION for Preliminary Injunction for Classwide Relief Supplemental Brief filed by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Attachments: # 1 Proof of Service)(Fabian, Sarah) (aef). (Entered: 06/26/2018)
80 DECLARATION re 79 Response in Opposition to Motion,, by Respondents Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Attachments: # 1 Declaration)(Fabian, Sarah) (aef). (Entered: 06/26/2018)

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81 REPLY − Other re 79 Response in Opposition to Motion,, filed by Ms. C., Ms. L.. (Gelernt, Lee) (aef). (Entered: 06/26/2018)
82 ORDER Granting In Part 42 Plaintiffs' Motion for Class Certification. Plaintiffs' motion for class certification is granted in part as to Plaintiffs' substantive due process claim. Plaintiffs are appointed as Class Representatives, and Counsel from the ACLU Immigrants' Rights Project and the ACLU of San Diego and Imperial Counties are appointed as counsel for this Class pursuant to Federal Rule of Civil Procedure 23(g). Signed by Judge Dana M. Sabraw on 6/26/2018. (aef) (Entered: 06/26/2018)
83 ORDER Granting 48 Plaintiffs' Motion for Classwide Preliminary Injunction. The Court hereby GRANTS Plaintiffs' motion for classwide preliminary injunction. A status conference will be held on July 6, 2018, at 12:00 noon. Signed by Judge Dana M. Sabraw on 6/26/2018. (aef) (Entered: 06/26/2018)
84 NOTICE of Dial−In Information. For purposes of the telephonic status conference scheduled for 7/6/2018 at 12:00 p.m., the Court has set up a dial in number for counsel and any members of the news media that wish to attend. (jdt) (Entered: 07/02/2018)
85 SECOND AMENDED COMPLAINT against Greg Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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, filed by Ms. L., Ms. C. (Gelernt, Lee) (aef). (Entered: 07/03/2018)
86 NOTICE Regarding Compliance by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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 (Attachments: # 1 Declaration, # 2 Exhibit, # 3 Exhibit)(Fabian, Sarah) (jpp). (Entered: 07/05/2018)
87 NOTICE of Appearance by Scott Grant Stewart on behalf of Greg Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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 (Stewart, Scott)Attorney Scott Grant Stewart added to party Greg Archambeault(pty:res), Attorney Scott Grant Stewart added to party Alex Azar(pty:res), Attorney Scott Grant Stewart added to party L. Francis Cissna(pty:res), Attorney Scott Grant Stewart added to party Fred Figueroa(pty:res), Attorney Scott Grant Stewart added to party Pete Flores(pty:res), Attorney Scott Grant Stewart added to party Joseph Greene(pty:res), Attorney Scott Grant Stewart added to party Thomas Homan(pty:res), Attorney Scott Grant Stewart added to party Francis M. Jackson(pty:res), Attorney Scott Grant Stewart added to party Scott Lloyd(pty:res), Attorney Scott Grant Stewart added to party Adrian P. Macias(pty:res), Attorney Scott Grant Stewart added to party Hector A. Mancha Jr.(pty:res), Attorney Scott Grant Stewart added to party Kevin K. McAleenan(pty:res), Attorney Scott Grant Stewart added to party Kirstjen Nielsen(pty:res), Attorney Scott Grant Stewart added to party Office of Refugee Resettlement(pty:res), Attorney Scott Grant Stewart added to party Jefferson Beauregard Sessions, III(pty:res), Attorney Scott Grant Stewart added to party U.S. Citizenship and Immigration Services(pty:res), Attorney Scott Grant Stewart added to party U.S. Customs and Border Protection(pty:res), Attorney Scott Grant Stewart added to party U.S. Department of Health and Human Services(pty:res), Attorney Scott Grant Stewart added to party U.S. Department of Homeland Security(pty:res), Attorney Scott Grant Stewart added to party U.S. Immigration and Customs Enforcement(pty:res) (aef). (Entered: 07/06/2018)

07/06/2018
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88 DECLARATION re 86 Notice (Other),, ICE Declaration by Respondents Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Fabian, Sarah) (aef). (Entered: 07/06/2018)
89 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 7/6/2018. Status Conference set for 7/9/2018 10:00 AM in Courtroom 13A before Judge Dana M. Sabraw. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt, Bardis Vakili, Anand Balakrishnan). (Defendant Attorney Sarah Fabian, Scott Stewart). (no document attached) (jak) (Entered: 07/06/2018)
91 ORDER Setting Further Status Conference. A Status Conference is set for 7/9/2018 at 10:00 AM before Judge Dana M. Sabraw. Signed by Judge Dana M. Sabraw on 7/6/2018.(aef) (Entered: 07/09/2018)
90 Joint MOTION for Protective Order by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Fabian, Sarah) (aef). (Entered: 07/08/2018)
92 PROTECTIVE ORDER. (ECF 90 ) Signed by Judge Dana M. Sabraw on 7/8/2018. (aef) (Entered: 07/09/2018)
93 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Status Conference) held on 7/6/2018, before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 7/30/2018. Redacted Transcript Deadline set for 8/9/2018. Release of Transcript Restriction set for 10/9/2018. (akr) (Entered: 07/09/2018)
94 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 7/9/2018. (Further Status Conference set for 7/10/2018 11:00 AM in Courtroom 13A before Judge Dana M. Sabraw.)(Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt). (Defendant Attorney Sarah Fabian). (no document attached) (jak) (Entered: 07/09/2018)
95 ORDER Following Status Conference. A Status Conference is set for 7/10/2018 at 11:00 AM before Judge Dana M. Sabraw. Signed by Judge Dana M. Sabraw on 7/9/2018.(aef) (Entered: 07/09/2018)
96 NOTICE Joint Notice of Parties Re Process for Release by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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 (Fabian, Sarah) (aef). (Entered: 07/09/2018)
97 NOTICE Joint Notice of Parties re Notice to Class Members by Ms. C., Ms. L. (Attachments: # 1 Exhibit Government's Version, # 2 Exhibit Plaintiffs' Version)(Gelernt, Lee) (aef). (Entered: 07/09/2018)
98 DECLARATION of Michelle Brane and Jennifer Podkul by Petitioners Ms. C., Ms. L.. (Gelernt, Lee) (aef). (Entered: 07/09/2018)

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99 NOTICE Joint Notice Re Compliance by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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 (Fabian, Sarah) (aef). (Entered: 07/10/2018)
100 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Hearing held on 7/10/2018. (Further Status Conference set for 7/13/2018 01:00 PM in Courtroom 13A before Judge Dana M. Sabraw.)(Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt, Bardis Vakili, Anand Balakrishnan, Stephen Kang). (Defendant Attorney Sarah Fabian, Scott Stewart). (no document attached) (jak) (Entered: 07/10/2018)
101 ORDER Following Status Conference. A follow−up status conference was held on July 10, 2018. Counsel shall submit a further joint status report to the Court on or before 3:00 p.m. on July 12, 2018. A further Status Conference shall be held at 1:00 p.m. on July 13, 2018. Signed by Judge Dana M. Sabraw on 7/10/2018.(aef) (Entered: 07/10/2018)
102 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Status Conference) held on 7/9/2018, before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 7/31/2018. Redacted Transcript Deadline set for 8/10/2018. Release of Transcript Restriction set for 10/9/2018. (akr) (Entered: 07/11/2018)
103 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Status Conference) held on 7/10/2018, before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 7/31/2018. Redacted Transcript Deadline set for 8/10/2018. Release of Transcript Restriction set for 10/9/2018. (akr) (Entered: 07/11/2018)
104 NOTICE Joint Status Report by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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 (Fabian, Sarah) (aef). (Entered: 07/12/2018)
105 Joint MOTION for Order on Compliance by Greg Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Attachments: # 1 Proposed Order)(Murley, Nicole)Attorney Nicole N. Murley added to party Fred Figueroa(pty:res), Attorney Nicole N. Murley added to party Francis M. Jackson(pty:res), Attorney Nicole N. Murley added to party Adrian P. Macias(pty:res), Attorney Nicole N. Murley added to party Hector A. Mancha Jr.(pty:res) Modified on 7/16/2018 QC mailer sent re proposed orders should not be attached. (aef). (Entered: 07/13/2018)

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106 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 7/13/2018. Further Status Conference set for 7/16/2018 at 9:30 AM before Judge Dana M. Sabraw. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt, Bardis Vakili, Spencer Amdur). (Defendant Attorney Sarah Fabian). (no document attached) (jak) (Entered: 07/13/2018)
107 STATUS REPORT by Greg Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Attachments: # 1 Declaration)(Murley, Nicole) (aef). (Entered: 07/13/2018)
108 ORDER Following Status Conference signed by Judge Dana M. Sabraw on 07/13/2018. A further Status Conference will be held on July 16, 2018 at 9:30 a.m.(jpm) (Entered: 07/13/2018)
109 NOTICE by Greg Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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 (Attachments: # 1 Exhibit)(Fabian, Sarah)Attorney Sarah B. Fabian added to party Fred Figueroa(pty:res) (aef). (Entered: 07/15/2018)
110 MOTION to Stay Removal and Emergency TRO Pending Ruling on the Stay Motion by Ms. C., Ms. L.. (Gelernt, Lee) Added MOTION for Temporary Restraining Order on 7/16/2018 (aef). (Entered: 07/16/2018)
111 Amicus Curiae Appearance entered by Christopher T Casamassima on behalf of SCHOLARS OF HABEAS CORPUS AND CONSTITUTIONAL LAW. (Attachments: # 1 Memo of Points and Authorities Amicus Curiae Brief in support of Plaintiffs' Motion for Stay of Removal and Emergency TRO Pending Ruling on the Stay Motion)(Casamassima, Christopher) (aef). (Entered: 07/16/2018)
112 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Status Conference) held on 7/13/2018, before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 8/6/2018. Redacted Transcript Deadline set for 8/16/2018. Release of Transcript Restriction set for 10/15/2018. (akr) (Entered: 07/16/2018)
113 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Telephonic Status Conference) held on 7/13/2018, before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 8/6/2018. Redacted Transcript Deadline set for 8/16/2018. Release of Transcript Restriction set for 10/15/2018. (akr) (Entered: 07/16/2018)
114 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 7/16/2018. Motion (110) to Stay Removal and Emergency TRO − Stay is Granted. Defense to respond to Motion for TRO by 7/23/2018 9:00 AM. The motion will be heard at the Status Conference set for 7/24/2018 4:00 PM. Witness, Cmdr

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Jonathan White C/S/T. Court to issue order.(Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt, Spencer Amdur). (Defendant Attorney Sarah Fabian, Scott Stewart, Brian Stimson). (no document attached) (jak) (Entered: 07/16/2018)
115 Status Hearing Witness List. (jak) (Entered: 07/16/2018)
116 ORDER (1) Granting 110 Plaintiffs' Motion for Emergency TRO pending Ruling on Motion to Stay and (2) Amending July 13, 2018 Order Following Status Conference. IT IS HEREBY ORDERED Plaintiffs' motion for an emergency TRO pending a ruling on their motion to stay is granted. Defendants shall file their opposition brief on or before July 23, 2018, at 9:00 a.m., Pacific Time. Signed by Judge Dana M. Sabraw on 7/16/2018. (aef) (Entered: 07/16/2018)
117 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Status Conference) held on 7/16/2018, before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 8/6/2018. Redacted Transcript Deadline set for 8/16/2018. Release of Transcript Restriction set for 10/15/2018. (akr) (Entered: 07/17/2018)
118 Joint MOTION for Extension of Time to File Answer by Greg Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Murley, Nicole). QC Mail − Proposed order attached (jdt). (Entered: 07/17/2018)
119 Request to Appear Pro Hac Vice (Filing fee received: $ 206 receipt number 0974−11455523.)(Application to be reviewed by Clerk.)(Levine, Noah)(jrd) (Entered: 07/18/2018)
120 Request to Appear Pro Hac Vice (Filing fee received: $ 206 receipt number 0974−11455537.)(Application to be reviewed by Clerk.)(Dycus, Jamie)(jrd) (Entered: 07/18/2018)
121 ***DOCUMENT WITHDRAWN PER ECF 219 *** − Request to Appear Pro Hac Vice (Filing fee received: $ 206 receipt number 0974−11455571.)(Application to be reviewed by Clerk.)(Cepeda Derieux, Adriel)(jrd) Modified on 9/11/2018 to withdraw document (aef). (Entered: 07/18/2018)
122 ORDER granting 118 Motion for Extension of Time to Answer Plaintiff's Second Amended Complaint. Respondent−Defendants answer to Plaintiffs' second amended complaint shall be due 8/16/2018. Signed by Judge Dana M. Sabraw on 7/18/2018. (jdt) (Entered: 07/18/2018)
123 NOTICE of Appearance by August Edward Flentje on behalf of Greg Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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 (Flentje, August)Attorney August Edward Flentje added to party Greg Archambeault(pty:res), Attorney August Edward Flentje added to party Alex Azar(pty:res), Attorney August Edward Flentje added to party L. Francis Cissna(pty:res), Attorney August Edward Flentje added to party Fred Figueroa(pty:res), Attorney August Edward Flentje added to party Pete Flores(pty:res), Attorney August Edward Flentje added to party Joseph Greene(pty:res), Attorney August Edward Flentje added to party Thomas Homan(pty:res), Attorney August Edward Flentje added to party Francis M. Jackson(pty:res), Attorney August Edward

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Flentje added to party Scott Lloyd(pty:res), Attorney August Edward Flentje added to party Adrian P. Macias(pty:res), Attorney August Edward Flentje added to party Hector A. Mancha Jr.(pty:res), Attorney August Edward Flentje added to party Kevin K. McAleenan(pty:res), Attorney August Edward Flentje added to party Kirstjen Nielsen(pty:res), Attorney August Edward Flentje added to party Office of Refugee Resettlement(pty:res), Attorney August Edward Flentje added to party Jefferson Beauregard Sessions, III(pty:res), Attorney August Edward Flentje added to party U.S. Citizenship and Immigration Services(pty:res), Attorney August Edward Flentje added to party U.S. Customs and Border Protection(pty:res), Attorney August Edward Flentje added to party U.S. Department of Health and Human Services(pty:res), Attorney August Edward Flentje added to party U.S. Department of Homeland Security(pty:res), Attorney August Edward Flentje added to party U.S. Immigration and Customs Enforcement(pty:res) (jdt). (Entered: 07/19/2018)
124 STATUS REPORT Joint filing by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Fabian, Sarah) (jdt). (Entered: 07/19/2018)
125 ***WITHDRAWN PER NOTICE 137 ***NOTICE of Appearance by Chet A Kronenberg on behalf of Ms. C., Ms. L. (Kronenberg, Chet)Attorney Chet A Kronenberg added to party Ms. C.(pty:pet), Attorney Chet A Kronenberg added to party Ms. L.(pty:pet) (jdt). Modified on 7/23/2018 (acc). (Entered: 07/19/2018)
126 ***WITHDRAWN PER NOTICE 136 ***NOTICE of Appearance by Harrison J. Frahn, IV on behalf of Ms. C., Ms. L. (Frahn, Harrison)Attorney Harrison J. Frahn, IV added to party Ms. C.(pty:pet), Attorney Harrison J. Frahn, IV added to party Ms. L.(pty:pet) (jdt). Modified on 7/23/2018 (acc). (Entered: 07/19/2018)
127 *** WITHDRAWN PER 139 *** − Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974−11466679.) (Application to be reviewed by Clerk.) (Rieser−Murphy, Elizabeth) (mdc) Modified text on 7/23/2018 re withdrawn status. (mdc) (Entered: 07/20/2018)
128 *** WITHDRAWN PER 142 *** − Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974−11466899.) (Application to be reviewed by Clerk.) (Levy, Jennifer) (mdc) Modified text on 7/23/2018 re withdrawn status. (mdc) (Entered: 07/20/2018)
129 *** WITHDRAWN PER 141 *** − Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974−11466925.) (Application to be reviewed by Clerk.) (Goldiner, Judith) (mdc) Modified text on 7/23/2018 re withdrawn status. (mdc) (Entered: 07/20/2018)
130 *** WITHDRAWN PER 140 *** − Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974−11466944.) (Application to be reviewed by Clerk.) (Copeland, Gregory) (mdc) Modified text on 7/23/2018 re withdrawn status. (mdc) (Entered: 07/20/2018)
131 ***WITHDRAWN PER NOTICE 138 ***NOTICE of Appearance by Charles D. Reiter on behalf of Ms. C., Ms. L. (Reiter, Charles)Attorney Charles D. Reiter added to party Ms. C.(pty:pet), Attorney Charles D. Reiter added to party Ms. L.(pty:pet) (acc). Modified on 7/23/2018 (acc). (Entered: 07/20/2018)
132 ORDER Approving the Pro Hac Vice Application of Adriel I. Cepeda Derieux, re 121 Request to Appear Pro Hac Vice. Signed by Judge Dana M. Sabraw on 7/19/2018. (mdc) (Entered: 07/20/2018)
133 ORDER Approving the Pro Hac Vice Application of Jamie S. Dycus, re 120 Request to Appear Pro Hac Vice. Signed by Judge Dana M. Sabraw on 7/19/2018. (mdc) (Entered: 07/20/2018)
134 ORDER Approving the Pro Hac Vice Application of Noah Levine, re 119 Request to Appear Pro Hac Vice. Signed by Judge Dana M. Sabraw on 7/19/2018. (mdc)

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(Entered: 07/20/2018)
135 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 7/20/2018. Future deadlines and hearings confirmed. Status Conference previously set for 7/24/2018 will be heard at 3:00 PM in Courtroom 13A before Judge Dana M. Sabraw.(Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt (telephonically), Stephen Kang, Spencer Amdur). (Defendant Attorney Sarah Fabian, August Flentje). (no document attached) (jak) (Entered: 07/20/2018)
136 NOTICE OF WITHDRAWAL OF DOCUMENT by Ms. C., Ms. L. re 126 Notice of Appearance filed by Ms. C., Ms. L. . (Frahn, Harrison)(acc). (Entered: 07/20/2018)
137 NOTICE OF WITHDRAWAL OF DOCUMENT by Ms. C., Ms. L. re 125 Notice of Appearance filed by Ms. C., Ms. L. . (Kronenberg, Chet) (acc). (Entered: 07/20/2018)
138 NOTICE OF WITHDRAWAL OF DOCUMENT by Ms. C., Ms. L. re 131 Notice of Appearance filed by Ms. C., Ms. L. . (Reiter, Charles) (acc). (Entered: 07/20/2018)
139 NOTICE OF WITHDRAWAL OF DOCUMENT by Ms. C., Ms. L. re 127 Request to Appear Pro Hac Vice by Elizabeth Rieser−Murphy. (Kronenberg, Chet) (acc). (Entered: 07/20/2018)
140 NOTICE OF WITHDRAWAL OF DOCUMENT by Ms. C., Ms. L. re 130 Request to Appear Pro Hac Vice by Gregory Copeland. (Kronenberg, Chet) (acc). (Entered: 07/20/2018)
141 NOTICE OF WITHDRAWAL OF DOCUMENT by Ms. C., Ms. L. re 129 Request to Appear Pro Hac Vice by Judith Goldiner. (Kronenberg, Chet) (acc). (Entered: 07/20/2018)
142 NOTICE OF WITHDRAWAL OF DOCUMENT by Ms. C., Ms. L. re 128 Request to Appear Pro Hac Vice by Jennifer Levy. (Kronenberg, Chet) (acc). (Entered: 07/20/2018)
143 Joint MOTION for Extension of Time to File Response/Reply as to 110 MOTION to Stay Removal and Emergency TRO Pending Ruling on the Stay Motion MOTION for Temporary Restraining Order by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Attachments: # 1 Exhibit Proposed Order)(Fabian, Sarah) (acc). (Entered: 07/22/2018)
144 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Status Conference) held on 7/20/2018, before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 8/13/2018. Redacted Transcript Deadline set for 8/23/2018. Release of Transcript Restriction set for 10/22/2018. (akr) (Entered: 07/23/2018)
145 ORDER Re: Status Conference. Signed by Judge Dana M. Sabraw on 7/23/2018.(acc) (Entered: 07/23/2018)
146 STATUS REPORT Joint Status Report by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Fabian, Sarah)(acc). (Entered: 07/23/2018)

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147 ORDER granting 143 Consent Motion for Extension of Response Deadline re 110 MOTION for Stay of Removal. Defendant response due by 9am PST on 7/24/2018. Signed by Judge Dana M. Sabraw on 7/23/2018. (acc) (Entered: 07/23/2018)
148 RESPONSE in Opposition re 110 MOTION to Stay Removal and Emergency TRO Pending Ruling on the Stay Motion MOTION for Temporary Restraining Order filed by Greg Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Attachments: # 1 Declaration Declaration of David Jennings, # 2 Exhibit Notice and Election Form)(Flentje, August) (aef). (Entered: 07/24/2018)
149 NOTICE OF RELATED CASE(S) by Greg Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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 of case(s) 18−1626 . (Attachments: # 1 Exhibit SDNY Habeas Petition, # 2 Exhibit NTC TRO, # 3 Exhibit NTC Transfer Order)(Flentje, August) Modified on 7/25/2018−Low number order not prepared (aef). (Entered: 07/24/2018)
150 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Hearing held on 7/24/2018. Court to issue order. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt, Spencer Amdur, Bardis Vakili). (Defendant Attorney Sarah Fabian, Scott Stewart). (no document attached) (jak) (Entered: 07/24/2018)
151 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Hearing held on 7/24/2018 re related case that will be transferred from New York. Parties to meet and confer. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Judith Goldiner, SarahGillman, Beth Kraus, Gregory Copeland, Harrison (Buzz) Frahn). (Defendant Attorney Sarah Fabian, Scott Stewart). (no document attached) (jak) (Entered: 07/24/2018)
152 MOTION for Leave to File Excess Pages by Ms. C., Ms. L.. (Gelernt, Lee) (aef). (Entered: 07/25/2018)
153 REPLY to Response to Motion re 110 MOTION to Stay Removal and Emergency TRO Pending Ruling on the Stay Motion MOTION for Temporary Restraining Order filed by Ms. C., Ms. L.. (Gelernt, Lee) (aef). (Entered: 07/25/2018)
154 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Status Conference) held on 7/24/2018, before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 8/15/2018. Redacted Transcript Deadline set for 8/27/2018. Release of Transcript Restriction set for 10/23/2018. (akr) (Entered: 07/25/2018)
155 MOTION to File Documents Under Seal (Gelernt, Lee) (aef). (Entered: 07/25/2018)
156 *** DOCKETED SEALED ON 3/5/19, ECF 381 *** SEALED LODGED Proposed Document re: 155 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (Gelernt, Lee) (aef). Modified on 3/5/2019 (dlg). (Entered: 07/25/2018)
157 CERTIFICATE OF SERVICE by Ms. C., Ms. L. re 155 MOTION to File Documents Under Seal, 156 Sealed Lodged Proposed Document (Gelernt, Lee) (aef). (Entered: 07/25/2018)

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158 ORDER Following Status Conference. A status conference was held on July 24, 2018. On or before July 25, 2018, at noon, Defendants shall provide to Plaintiffs (1) a list of all Class Members that have been removed and (2) a list of all Class Members that have been released to the interior. On or before July 25, 2018, at noon, Plaintiffs shall file their reply brief on the motion to stay. The Court will hear argument on the motion at the July 27, 2018 status conference. Signed by Judge Dana M. Sabraw on 7/25/2018.(aef) (Entered: 07/26/2018)
159 STATUS REPORT Joint Report by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Fabian, Sarah) (aef). (Entered: 07/26/2018)
160 NOTICE by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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 (Attachments: # 1 Declaration)(Fabian, Sarah) (aef). (Entered: 07/27/2018)
161 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 7/27/2018. Court to issue order. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt, Stephen Kang, Bardis Vakili). (Defendant Attorney Sarah Fabian (telephonically), Scott Stewart). (no document attached) (jak) (Entered: 07/27/2018)
162 ORDER Following Status Conference. A status conference was held on July 27, 2018. The parties shall submit a further status report on or before 3:00 p.m. on August 2, 2018. A further telephonic status conference shall be held on August 3, 2018, at 1:00 p.m. Signed by Judge Dana M. Sabraw on 7/27/2018.(sjt) (Entered: 07/27/2018)
163 NOTICE Regarding Motion for Stay of Removal by Ms. C., Ms. L. (Attachments: # 1 Declaration of Laila Arand, # 2 Declaration of Stephen Manning)(Gelernt, Lee) (jpp). (Entered: 07/28/2018)
164 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Status Conference) held on 7/27/2018, before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 8/20/2018. Redacted Transcript Deadline set for 8/30/2018. Release of Transcript Restriction set for 10/29/2018. (akr) (Entered: 07/30/2018)
165 Minute Entry for proceedings held before Judge Dana M. Sabraw: Telephonic Status Conference held on 7/30/2018, re process of locating in−country and removed parents. Court to issue order. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt). (Defendant Attorney Scott Stewart, Sarah Fabian, August Flentje). (no document attached) (jak) (Entered: 07/30/2018)
166 NOTICE OF RELATED CASE(S) by Greg Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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 of case(s) 18−1759 (D.D.C.) . (Attachments: # 1 Exhibit M.M.M. Complaint, # 2 Exhibit M.M.M. TRO/PI Motion, # 3 Exhibit M.M.M. TRO/PI Memo of Law, # 4 Exhibit M.M.M. Proposed

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Order)(Flentje, August). Modified on 7/30/2018 to reflect, no proposed PLO prepared. (jpp). (Entered: 07/30/2018)
167 ORDER following status conference. Signed by Judge Dana M. Sabraw on 7/30/2018.(jpp) (Entered: 07/30/2018)
168 SUPPLEMENTAL DOCUMENT by Ms. C., Ms. L. . (Gelernt, Lee) (jpp). (Entered: 07/30/2018)
169 SUPPLEMENTAL BRIEFING by Respondents Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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 re 168 Supplemental Document . (Fabian, Sarah) (jpp). (Entered: 07/30/2018)
170 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Telephonic Status Conference) held on 7/30/2018, before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 8/22/2018. Redacted Transcript Deadline set for 9/4/2018. Release of Transcript Restriction set for 10/30/2018. (akr) (Entered: 08/01/2018)
171 STATUS REPORT Joint Report by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Fabian, Sarah) (jpp). (Entered: 08/02/2018)
172 NOTICE Regarding Exhibit Attachment by Ms. C., Ms. L. re 171 Status Report,, (Attachments: # 1 Declaration, # 2 Declaration)(Gelernt, Lee) (jpp). (Entered: 08/02/2018)
173 STATUS REPORT Supplement by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Fabian, Sarah) (jpp). (Entered: 08/02/2018)
174 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 8/3/2018. All counsel appeared telephonically. Court to issue order. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt, Charles Reiter). (Defendant Attorney Scott Stewart, August Flentje, Sarah Fabian). (Jennifer Levy for plaintiffs in related case).(no document attached) (jak) (Entered: 08/03/2018)
175 ORDER following Status Conference. Further Telephonic Status Conference set for 8/10/2018 01:00 PM in Courtroom 13A before Judge Dana M. Sabraw. Signed by Judge Dana M. Sabraw on 8/03/2018.(jpp) (Entered: 08/03/2018)
176 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Telephonic Status Conference) held on 8/3/2018, before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following

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deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 8/24/2018. Redacted Transcript Deadline set for 9/4/2018. Release of Transcript Restriction set for 11/1/2018. (akr) (Entered: 08/06/2018)
177 ORDER Setting Hearing. The motion for a temporary restraining that is pending in M.M.M. shall be heard on August 8, 2018, at 11:00 a.m. Pacific Time. Signed by Judge Dana M. Sabraw on 8/6/2018.(aef) (Entered: 08/06/2018)
178 Minute Order by Judge Dana M. Sabraw: (Time Change Only). Motion Hearing set for 8/8/2018 is reset to be heard at 1:00 PM in Courtroom 13A before Judge Dana M. Sabraw.(no document attached) (jak) (Entered: 08/07/2018)
179 Minute Entry for proceedings held before Judge Dana M. Sabraw: Motion Hearing held on 8/8/2018 re 110 MOTION to Stay Removal and Emergency TRO Pending Ruling on the Stay Motion MOTION for Temporary Restraining Order filed by Ms. C., Ms. L. All counsel appearing telephonically. The stay will remain in place pending further order of the Court. Court to issue order. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt). (Defendant Attorney Scott Stewart, Sarah Fabian). (Zachary Best and Justin Bernick for plaintiffs in 18cv1832−DMS (M.M.M.), Jennifer Levy and Charles Reiter for plaintiffs in 18cv1626−DMS (N.T.C.)).(no document attached) (jak) Modified on 8/8/2018 to reflect telephonic appearances(jak). (Entered: 08/08/2018)
180 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Telephonic Motion Hearing) held on 8/8/2018, before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 8/29/2018. Redacted Transcript Deadline set for 9/10/2018. Release of Transcript Restriction set for 11/6/2018. (Transcript filed in case numbers 3:18−cv−00428−DMS−MDD, 3:18−cv−01626−DMS−JLB, and 3:18−cv−01832−DMS−MDD.) (akr) (Entered: 08/09/2018)
181 STATUS REPORT Joint Report by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Fabian, Sarah) (aef). (Entered: 08/09/2018)
182 Joint Status Report filed as − AMENDED DOCUMENT by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. Amendment to 181 Status Report, Joint Report. (Fabian, Sarah) (aef). (Entered: 08/09/2018)
183 STATUS REPORT Attachment − Reunification Plan by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Attachments: # 1 Exhibit)(Fabian, Sarah) (aef). (Entered: 08/09/2018)
184 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 8/10/2018. All parties appeared telephonically. Court to issue order. (Further Status Conference set for 8/17/2018 01:00 PM in Courtroom 13A before Judge Dana M. Sabraw.)(Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt).

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(Defendant Attorney Sarah Fabian, Scott Stewart). (Zachary Best and Justin Bernick for plaintiffs in 18cv1832−DMS (M.M.M.), Charles Reiter, Jennifer Levy and Gregory Coipeland for plaintiffs in 18cv1626−DMS (N.T.C.)).(no document attached) (jak) (Entered: 08/10/2018)
185 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Telephonic Status Conference) held on 8/10/2018, before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 9/4/2018. Redacted Transcript Deadline set for 9/13/2018. Release of Transcript Restriction set for 11/12/2018. (Transcript filed in case numbers 3:18−cv−00428−DMS−MDD, 3:18−cv−01626−DMS−JLB, and 3:18−cv−01832−DMS−MDD.) (akr) (Entered: 08/13/2018)
186 Joint MOTION for Extension of Time to File Answer re 85 Amended Complaint,, by Greg Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Murley, Nicole)(aef). (Entered: 08/14/2018)
187 ORDER Granting 186 Joint Stipulated Extension of Time for Defendants to Answer Plaintiffs' Second Amended Complaint. IT IS HEREBY ORDERED that Respondent−Defendants answer to Plaintiffs' second amended complaint shall be due Thursday, September 17, 2018. Signed by Judge Dana M. Sabraw on 8/15/2018. (aef) (Entered: 08/15/2018)
188 ORDER Following Status Conference. Pursuant to the status conference held on August 10, 2018, the parties shall submit a further Joint Status Report on or before 3:00 p.m. on August 16, 2018. A further telephonic status conference shall be held on August 17, 2018, at 1:00 p.m. Signed by Judge Dana M. Sabraw on 8/15/2018.(aef) (Entered: 08/15/2018)
189 NOTICE Revised Reunification Plan by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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 (Attachments: # 1 Exhibit Reunification Plan)(Fabian, Sarah)(aef). (Entered: 08/16/2018)
190 NOTICE Regarding Plan for Reunifying Removed Parents by Ms. C., Ms. L. re 189 Notice (Other),, (Gelernt, Lee)(aef). (Entered: 08/16/2018)
191 STATUS REPORT Joint Report by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Fabian, Sarah) (aef). (Entered: 08/16/2018)
192 ORDER Granting 105 Joint Motion Regarding Scope of the Court's Preliminary Injunction. Signed by Judge Dana M. Sabraw on 8/16/2018. (aef) (Entered: 08/16/2018)
193 NOTICE Re Karnes by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., Kevin K. McAleenan, Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson Beauregard Sessions, III, U.S. Citizenship and Immigration

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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 (Fabian, Sarah) (aef). (Entered: 08/16/2018)
194 ORDER Denying 110 Motion to Stay as Moot. In light of the order granting the plaintiffs' motion for temporary restraining order in M.M.M. v. Sessions, Case No. 18cv1832 DMS (MDD), ECF No. 55, the Court denies as moot Plaintiffs' motion to stay. Signed by Judge Dana M. Sabraw on 8/16/2018. (aef) (Entered: 08/17/2018)
195 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 8/17/2018. All counsel appeared telephonically. Court to issue order. Status Conference set for 8/24/2018 1:00 PM before Judge Dana M. Sabraw. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt). (Defendant Attorney Sarah Fabian, Scott Stewart, August Flentje). (Justin Bernick and Zachary Best, plaintiffs' counsel in 18cv1832−DMS).(no document attached) (jak) Modified on 8/17/2018 (jak). (Entered: 08/17/2018)
196 ORDER Following Status Conference. A telephonic status conference was held on August 17, 2018. A Joint Status Report shall be filed on or before 3:00 p.m. on August 23, 2018. A further telephonic status conference shall be held on August 24, 2018, at 1:00 p.m. Signed by Judge Dana M. Sabraw on 4/17/2018.(aef) (Entered: 08/17/2018)
197 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Telephonic Status Conference) held on 8/17/2018 before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 9/7/2018. Redacted Transcript Deadline set for 9/17/2018. Release of Transcript Restriction set for 11/15/2018. (Transcript filed in case numbers 3:18−cv−00428−DMS−MDD, 3:18−cv−01626−DMS−JLB, and 3:18−cv−01832−DMS−MDD.) (akr) (Entered: 08/20/2018)
198 MOTION to Lift Stay of Removal by Ms. C., Ms. L.. (Attachments: # 1 Stricken Document)(Gelernt, Lee)(aef). Modified on 3/5/2019 Document 198−1 stricken per ECF 368 (aef). (Entered: 08/20/2018)
199 MOTION to File Documents Under Seal (Gelernt, Lee) (dlg). (Entered: 08/20/2018)
200 *** DOCKETED SEALED ON 3/5/19, ECF 369 *** SEALED LODGED Proposed Document re: 199 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Gelernt, Lee) (dlg). Modified on 3/5/2019 (dlg). (Entered: 08/20/2018)
201 MOTION to Strike Document 198 MOTION to Lift Stay of Removal by Ms. C., Ms. L.. (Gelernt, Lee) (aef). (Entered: 08/20/2018)
202 ORDER Granting 198 Plaintiff's Unopposed Motion to Lift Stay of Removal. Signed by Judge Dana M. Sabraw on 8/20/2018. (aef) (Entered: 08/20/2018)
203 NOTICE Regarding Exhibit Attachment by Ms. C., Ms. L. re 198 MOTION to Lift Stay of Removal (Gelernt, Lee) (aef). (Entered: 08/20/2018)
204 STATUS REPORT Joint Report by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Fabian, Sarah) (aef). (Entered: 08/23/2018)
205 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 8/24/2018. All counsel appeared telephonically. (Further Status Conference set for 8/31/2018 01:00 PM in Courtroom 13A before Judge Dana M. Sabraw.)(Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt, Stephen Kang). (Defendant Attorney Scott Stewart, Sarah Fabian). (For Plaintiffs in 18cv1626−DMS

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NTC − Jennifer Levy, Harrison (Buzz) Frahn. For Plaintiffs in 18cv1832−DMS MMM − Zachary Best, Justin Bernick).(no document attached) (jak) (Entered: 08/24/2018)
206 NOTICE OF APPEAL to the 9th Circuit as to 83 Order Granting Plaintiffs' Motion for Classwide Preliminary Injunction, by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. Fee Waived. (Notice of Appeal electronically transmitted to US Court of Appeals.) (Fabian, Sarah). (Modified on 8/24/2018: Edited docket text re linked Order.) (akr). (Entered: 08/24/2018)
207 ORDER Following Status Conference. A further Joint Status Report on the reunification efforts in Ms. L. and N.T.C. shall be filed by 3:00 p.m. on August 30, 2018. A further telephonic status conference shall be held on August 31, 2018, at 1:00 p.m. Signed by Judge Dana M. Sabraw on 8/24/2018.(aef) (Entered: 08/24/2018)
208 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Telephonic Status Conference) held on 8/24/2018, before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 9/17/2018. Redacted Transcript Deadline set for 9/27/2018. Release of Transcript Restriction set for 11/26/2018. (Transcript filed in case numbers 3:18−cv−00428−DMS−MDD, 3:18−cv−01626−DMS−JLB, and 3:18−cv−01832−DMS−MDD.) (akr) (Entered: 08/27/2018)
209 USCA Case Number 18−56151 for 206 Notice of Appeal to the 9th Circuit, filed by Jefferson Beauregard Sessions, III, L. Francis Cissna, U.S. Department of Health and Human Services, Hector A. Mancha Jr., U.S. Immigration and Customs Enforcement, Joseph Greene, U.S. Citizenship and Immigration Services, Pete Flores, Greg Archambeault, Kirstjen Nielsen, Scott Lloyd, U.S. Department of Homeland Security, U.S. Customs and Border Protection, Thomas Homan, Alex Azar, Office of Refugee Resettlement, Kevin K. McAleenan, Adrian P. Macias, Francis M. Jackson. (akr) (Entered: 08/27/2018)
210 STATUS REPORT Joint Report by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Fabian, Sarah) (aef). (Entered: 08/30/2018)
211 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 8/31/2018. All counsel appeared telephonically. (Further Status Conference set for 9/7/2018 01:00 PM in Courtroom 13A before Judge Dana M. Sabraw.)(Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt). (Defendant Attorney Scott Stewart, Sarah Fabian). (For Plaintiffs in 18cv1626−DMS NTC − Jennifer Levy. For Plaintiffs in 18cv1832−DMS MMM − Justin Bernick, T. Weymouth).(no document attached) (lrf) (Entered: 08/31/2018)
212 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Telephonic Status Conference) held on 8/31/2018, before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 9/21/2018. Redacted Transcript Deadline

09/06/2018 09/06/2018 09/07/2018 09/07/2018
09/10/2018 09/10/2018 09/10/2018 09/12/2018
09/13/2018 09/13/2018

set for 10/1/2018. Release of Transcript Restriction set for 11/29/2018. (Transcript filed in case numbers 3:18−cv−00428−DMS−MDD, 3:18−cv−01626−DMS−JLB, and 3:18−cv−01832−DMS−MDD.) (akr) (Entered: 08/31/2018)
213 STATUS REPORT Joint Report by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Fabian, Sarah) (aef). (Entered: 09/06/2018)
214 ORDER Providing Dial−In Information for Status Conference. Signed by Judge Dana M. Sabraw on 9/6/2018.(aef) (Entered: 09/06/2018)
215 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Hearing held on 9/7/2018. All parties appeared telephonically. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt). (Defendant Attorney Scott Stewart, Sarah Fabian). (Jennifer Levy for plaintiffs in 18cv1626−DMS, Zachary Best and Justin Bernick for plaintiffs in 18cv0428−DMS).(no document attached) (jak) (Entered: 09/07/2018)
216 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Telephonic Status Conference) held on 9/7/2018, before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 9/28/2018. Redacted Transcript Deadline set for 10/9/2018. Release of Transcript Restriction set for 12/6/2018. (Transcript filed in case numbers 3:18−cv−00428−DMS−MDD, 3:18−cv−01626−DMS−JLB, and 3:18−cv−01832−DMS−MDD.) (akr) (Entered: 09/10/2018)
217 ORDER Setting Further Status Conference. A status conference was held on 9/7/2018. Counsel shall file a further status report on or before 9/13/2018. A further Status Conference is set for 9/14/2018 at 01:00 PM before Judge Dana M. Sabraw. Signed by Judge Dana M. Sabraw on 9/10/2018.(aef) (Entered: 09/10/2018)
218 ORDER of USCA as to 206 Notice of Appeal to 9th Circuit. Appellants' unopposed motion to stay appellate proceedings is granted. The previously established briefing schedule is vacated. Appellate proceedings are stayed until November 9, 2018. On or before November 9, 2018, appellants may file a status report and motion for further relief. Failure to file a status report and motion will terminate the stay of appellate proceedings and the briefing schedule will be reset. (akr) (Entered: 09/10/2018)
219 NOTICE OF WITHDRAWAL OF DOCUMENT by Scholars of Habeas Corpus and Constitutional Law re 121 Request to Appear Pro Hac Vice (Notice of Withdrawal of Counsel Adriel I. Cepeda Derieux). (Casamassima, Christopher) (aef). (Entered: 09/10/2018)
220 NOTICE LODGING AGREEMENT FOR COURT'S APPROVAL by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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 (Attachments: # 1 Exhibit)(Fabian, Sarah) (aef). (Entered: 09/12/2018)
221 SUPPLEMENTAL BRIEFING by Petitioners Ms. C., Ms. L. Regarding Reunification of Two Parents. (Gelernt, Lee) (aef). (Entered: 09/13/2018)
222 STATUS REPORT Joint Report by Greg Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., Kevin K. McAleenan, Kirstjen

09/13/2018
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09/14/2018

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. (Fabian, Sarah) (aef). (Entered: 09/13/2018)
223 SUPPLEMENTAL BRIEFING by Respondents Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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 Regarding Criminal History Excusions of Ms Q and Mr C. (Attachments: # 1 Exhibit A−Ms Q, # 2 Exhibit B−Mr C)(Fabian, Sarah)(jsp)(jrd) (aef). Modified on 9/17/2018 Exhibits A and B withdrawn per ECF 229 (aef). (Entered: 09/13/2018)
224 MOTION to File Documents Under Seal (Gelernt, Lee) (aef). (Entered: 09/13/2018)
225 *** DOCKETED SEALED ON 9/19/19, ECF 475 *** SEALED LODGED Proposed Document re: 224 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (Gelernt, Lee) (aef). Modified on 9/19/2019 (dlg). (Entered: 09/13/2018)
226 CERTIFICATE OF SERVICE by Ms. C., Ms. L. re 225 Sealed Lodged Proposed Document (Gelernt, Lee) (aef). (Entered: 09/13/2018)
227 DECLARATION re 222 Status Report,, Declaration of Jonathan White by Respondents Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Fabian, Sarah) (aef). (Entered: 09/13/2018)
228 NOTICE re: Rule 23(e) Requirements by Catholic Charities Community Services of the Archdiocese of New York re 220 Notice (Other),, (Glynn, Katie)Attorney Katie Rose Glynn added to party Catholic Charities Community Services of the Archdiocese of New York(pty:ip) (aef). (Entered: 09/14/2018)
229 NOTICE of Withdrawal of Exhibits by Greg Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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 re 223 Supplemental Briefing,, (Murley, Nicole) (aef). (Entered: 09/14/2018)
230 Exhibit List by Greg Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Murley, Nicole) (aef). (Entered: 09/14/2018)
231 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 9/14/2018. All parties appeared telephonically. (Further Status Conference set for 9/21/2018 01:00 PM in Courtroom 13A before Judge Dana M. Sabraw.) Court to issue order. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt). (Defendant Attorney Sarah Fabian, Scott Stewart). (For Plaintiffs in 18cv1626−DMS NTC: Jennifer Levy. For Plaintiffs in 18cv1832−DMS MMM − Zachary Best, Justin Bernick. For Plaintiffs in 18cv1769−DMS RGH − Rex Chen, Adam Siegler, Jack McBride, Caroline Heller, Guillermo Stampur. For Plaintiffs in Dora − Sirine

09/14/2018
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09/21/2018

Shebaya, Wilson Barmeyer.)(no document attached) (jak) (Entered: 09/14/2018)
232 STATUS REPORT by Greg Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Murley, Nicole) (aef). (Entered: 09/14/2018)
233 NOTICE of Supplemental Declaration by Ms. C., Ms. L. re 221 Supplemental Briefing (Attachments: # 1 Declaration of Robert Carey)(Gelernt, Lee) (sjm). (Entered: 09/17/2018)
234 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Telephonic Status Conference) held on 9/14/2018, before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 10/9/2018. Redacted Transcript Deadline set for 10/19/2018. Release of Transcript Restriction set for 12/17/2018. (Transcript filed in case numbers 3:18−cv−00428−DMS−MDD, 3:18−cv−01626−DMS−JLB, and 3:18−cv−01832−DMS−MDD.) (akr) (Entered: 09/18/2018)
235 ORDER Setting Further Status Conference. A status conference was held on September 14, 2018. Counsel shall file a further status report on or before September 20, 2018. A further status conference shall be held on September 21, 2018, at 1:00 p.m. Signed by Judge Dana M. Sabraw on 9/19/2018.(aef) (Entered: 09/19/2018)
236 ORDER on Reunification of Ms. Q and Mr. C. Signed by Judge Dana M. Sabraw on 9/19/2018.(aef) (Entered: 09/19/2018)
237 NOTICE of Appearance by Daniel Antonio Galindo on behalf of Ms. C., Ms. L. (Galindo, Daniel)Attorney Daniel Antonio Galindo added to party Ms. C.(pty:pet), Attorney Daniel Antonio Galindo added to party Ms. L.(pty:pet) (anh). (Entered: 09/20/2018)
238 STATUS REPORT Joint Report by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Fabian, Sarah) (anh). (Entered: 09/20/2018)
239 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 9/21/2018. All parties appeared telephonically. Court to issue order. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Anand Balakrishnan, Stephen Kang). (Defendant Attorney Scott Stewart, Sarah Fabian). (For Plaintiffs in 18cv1626−DMS NTC: Jennifer Levy, for Plaintiffs in 18cv1832−DMS MMM: Justin Bernick, for Plaintiffs in 18cv1769−DMS RGH: Rex Chen, Caroline Heller, Jack McBride, for Plaintiffs in Dora case: Sirine Shebaya, Wilson Barmeyer).(no document attached) (jak) (Entered: 09/21/2018)
240 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Telephonic Status Conference) held on 9/21/2018, before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 10/12/2018. Redacted Transcript

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10/09/2018
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Deadline set for 10/22/2018. Release of Transcript Restriction set for 12/20/2018. (Transcript filed in case numbers 3:18−cv−00428−DMS−MDD, 3:18−cv−01626−DMS−JLB, and 3:18−cv−01832−DMS−MDD.) (akr) (Entered: 09/24/2018)
241 ORDER Granting 232 Joint Stipulated Extension of Time for Defendants to Answer Plaintiffs' Second Amended Complaint. IT IS HEREBY ORDERED that Respondent−Defendants answer to Plaintiffs' second amended complaint shall be due Wednesday, October 17, 2018. Signed by Judge Dana M. Sabraw on 9/21/2108. (aef) (Entered: 09/24/2018)
242 ORDER Setting Further Status Conference. A status conference was held on September 21, 2018. A further status conference shall be held on October 9, 2018, at 1:00 p.m. Signed by Judge Dana M. Sabraw on 9/25/2018.(aef) (Entered: 09/25/2018)
243 STATUS REPORT Joint Report by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Fabian, Sarah) (aef). (Entered: 09/27/2018)
244 MOTION to Amend/Correct 85 Amended Complaint, by Ms. C., Ms. L.. (Attachments: # 1 Exhibit Third Amended Complaint, # 2 Exhibit, # 3 Exhibit)(Gelernt, Lee)(aef). (Entered: 10/05/2018)
245 MOTION to File Documents Under Seal (Gelernt, Lee) (dlg). (Entered: 10/05/2018)
246 ***FILED AS SEALED DOCUMENT ON 10/9/2018*** − SEALED LODGED Proposed Document re: 245 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (Gelernt, Lee) (dlg). Modified on 10/9/2018 to add file date of lodgment (aef). (Entered: 10/05/2018)
247 MOTION for Settlement , Preliminary Certification of Settlement Classes, and Approval of Class Notice by Ms. C., Ms. L.. (Attachments: # 1 Notice Proposed Class Notice)(Gelernt, Lee) (aef). (Entered: 10/05/2018)
248 ORDER Granting 244 Joint Motion for Leave to File Third Amended Class Action Complaint and to File Under Pseudonym. Plaintiffs are hereby granted leave to file a Third Amended Complaint in the form attached to the Motion. The Third Amended Complaint shall be filed under pseudonym, and Exhibit C to the parties' Joint Motion shall be maintained under seal. Signed by Judge Dana M. Sabraw on 10/9/2018. (aef) (Entered: 10/09/2018)
250 THIRD AMENDED COMPLAINT against Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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, filed by Alma, Ms. L., Dora, Ms. C. (aef) (Entered: 10/09/2018)
251 NOTICE of Appearance by Aaron M. Olsen on behalf of Alma, Dora (Olsen, Aaron)Attorney Aaron M. Olsen added to party Alma(pty:pet), Attorney Aaron M. Olsen added to party Dora(pty:pet) (aef). (Entered: 10/09/2018)
252 NOTICE of Appearance of Alreen Haeggquist by Aaron M. Olsen on behalf of Alma, Dora (Olsen, Aaron) Modified on 10/9/2018−QC mailer sent re wrong s/ (aef). (Entered: 10/09/2018)
253 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974−11767213.) (Application to be reviewed by Clerk.) (Barmeyer, Wilson) (mdc) (Entered: 10/09/2018)
254 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974−11767464.) (Application to be reviewed by Clerk.) (Fleming, John) 10/10/2018

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− Missing a signature. (mdc) (Entered: 10/09/2018)
255 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 10/9/2018. All parties appeared telephonically. Amended complaint to be filed. The Court will enter the order granting preliminary approval following entry of the amended complaint. (Further Status Conference set for 10/16/2018 01:00 PM in Courtroom 13A before Judge Dana M. Sabraw, Final Approval Hearing set for 11/15/2018 10:30 AM in Courtroom 13A before Judge Dana M. Sabraw.)(Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt). (Defendant Attorney Sarah Fabian, Scott Stewart). (Jennifer Levy for Plaintiffs in 18cv1626 N.T.C., Zachary Best and Justin Bernick for Plaintiffs in 18cv1832 M.M.M., Caroline Heller for Plaintiffs in 18cv1769 R.G.H., Sirine Shebaya, Wilson Barmeyer and Carol McClarnos for Plaintiffs in Dora case.).(no document attached) (jak) (Entered: 10/09/2018)
256 ORDER Granting 247 Preliminary Approval of Proposed Settlement; Preliminarily Certifying the Settlement Classes; and Approving Class Notice. Signed by Judge Dana M. Sabraw on 10/9/2018. (aef) (Entered: 10/09/2018)
257 ORDER Setting Further Status Conference. A status conference was held on October 9, 2018. Counsel in both this case and the New York cases shall file a further status report on or before October 15, 2018. A further status conference shall be held on October 16, 2018, at 1:00 p.m. Signed by Judge Dana M. Sabraw on 10/9/2018.(aef) (Entered: 10/09/2018)
258 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974−11768538.) (Application to be reviewed by Clerk.) (Shebaya, Sirine) 10/10/2018 − Missing a signature. (mdc) 10/11/2018 − Refiled as 264 . (mdc) (Entered: 10/09/2018)
259 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Telephonic Status Conference) held on 10/9/2018 before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 10/30/2018. Redacted Transcript Deadline set for 11/9/2018. Release of Transcript Restriction set for 1/7/2019. (Transcript filed in case numbers 3:18−cv−00428−DMS−MDD, 3:18−cv−01626−DMS−JLB, and 3:18−cv−01832−DMS−MDD.) (akr) (Entered: 10/10/2018)
260 PRO HAC APPROVED re 253 : Wilson G. Barmeyer appearing for Petitioners Alma, Dora. (no document attached) (Local counsel Aaron M. Olsen confirmed that the pro hac vice request was intended only for these two parties.) (mdc) (Entered: 10/10/2018)
261 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974−11771442.) (Application to be reviewed by Clerk.) (Sandoval−Moshenberg, Simon) (mdc) (Entered: 10/10/2018)
262 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974−11772796.) (Application to be reviewed by Clerk.) (Weiss, Catherine) 10/11/2018 − Atty to refile. (mdc) (Entered: 10/10/2018)
263 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974−11772990.) (Application to be reviewed by Clerk.) (Smith, Johnathan) 10/11/2018 − Missing a signature. (mdc) (Entered: 10/10/2018)
264 Request to Appear Pro Hac Vice, (Filing fee received: $ 206 receipt number 0974−11768538 − See 258 ). (Application to be reviewed by Clerk.) (Shebaya, Sirine) (mdc) (Entered: 10/10/2018)
265 Emergency MOTION for Order Requiring Implementation of Settlement Agreement by Alma, Dora. (Attachments: # 1 Memo of Points and Authorities, # 2 Proposed Order)(Barmeyer, Wilson) (aef). (Entered: 10/10/2018)

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266 NOTICE of Appearance by Katie Rose Glynn on behalf of Catholic Charities Community Services of the Archdiocese of New York (Glynn, Katie) (aef). (Entered: 10/11/2018)
267 Request to Appear Pro Hac Vice, (Filing fee received: $ 206 receipt number 0974−11767464 − See 254 ). (Application to be reviewed by Clerk.) (Fleming, John) Modified text on 10/12/2018 to include filing fee info. (mdc) (Entered: 10/11/2018)
268 PRO HAC APPROVED re 261 : Simon Yehuda Sandoval−Moshenberg appearing for Petitioners Alma, Dora. (no document attached) (mdc) (Entered: 10/11/2018)
269 PRO HAC APPROVED re 264 : Sirine Shebaya appearing for Petitioners Alma, Dora. (no document attached) (mdc) (Entered: 10/11/2018)
270 PRO HAC APPROVED re 267 : John H. Fleming appearing for Petitioners Alma, Dora. (no document attached) (mdc) (Entered: 10/11/2018)
271 ORDER Requesting Response. (Re ECF 265 ) The Court is in receipt of the emergency motion to require implementation of the settlement agreement filed by Plaintiffs in the above−captioned cases. Defendants shall file a response to the motion on or before October 15, 2018. Unless otherwise. Signed by Judge Dana M. Sabraw on 10/11/2018.(aef) (Entered: 10/11/2018)
272 Request to Appear Pro Hac Vice, (Filing fee received: $ 206 receipt number 0974−11772990 − See 263 ). (Application to be reviewed by Clerk.) (Smith, Johnathan) Modified text on 10/12/2018 to include filing fee info. (mdc) (Entered: 10/12/2018)
273 PRO HAC APPROVED re 272 : Johnathan James Smith appearing for Petitioners Alma, Dora. (no document attached) (mdc) (Entered: 10/12/2018)
274 Request to Appear Pro Hac Vice, (Filing fee received: $ 206 receipt number 0974−11772796 − See 262 ). (Application to be reviewed by Clerk.) (Weiss, Catherine) Modified text on 10/15/2018 to include filing info info. (mdc) (Entered: 10/12/2018)
275 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974−11785922.) (Application to be reviewed by Clerk.) (Gregg, Sophia) 10/15/2018 − Confirmed by phone that Atty Gregg is requesting appearance for parties Dora and Alma only. (mdc) (Entered: 10/15/2018)
276 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974−11787179.) (Application to be reviewed by Clerk.) (McClarnon, Carol) (mdc) (Entered: 10/15/2018)
277 PRO HAC APPROVED re 275 : Sophia Leticia Gregg appearing for Petitioners Alma, Dora. (no document attached) (mdc) (Entered: 10/15/2018)
278 PRO HAC APPROVED re 276 : Carol T. McClarnon appearing for Petitioners Alma, Dora. (no document attached) (mdc) (Entered: 10/15/2018)
279 STATUS REPORT Defendants' Report by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Fabian, Sarah) (aef). (Entered: 10/15/2018)
280 RESPONSE in Opposition re 265 Emergency MOTION for Order Requiring Implementation of Settlement Agreement filed by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Fabian, Sarah) (aef). (Entered: 10/15/2018)

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281 STATUS REPORT Joint Report by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Fabian, Sarah) (aef). (Entered: 10/15/2018)
282 OBJECTION to the October 5, 2018 Settlement Agreement by Lesbi Martinez−Martinez. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(aef) (Entered: 10/16/2018)
283 ORDER Approving the Pro Hac Vice Application of Catherine Weiss (Re: Doc. No. 262 Request to Appear Pro Hac Vice). Signed by Judge Dana M. Sabraw on 10/15/2018.(jrd) (Entered: 10/16/2018)
284 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 10/16/2018. All parties appeared telephonically. Further Status Conference set for 11/9/2018 at 1:00 PM before Judge Dana M. Sabraw. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt, Anand Balakrishnan, (Dora) Sirine Shebaya, Wilson Barmeyer). (Defendant Attorney Sarah Fabian, Scott Stewart). (Jennifer Levy and Beth Kraus for plaintiffs in 18cv1626−DMS N.T.C., Zachary Best and Justin Bernick for plaintiffs in 18cv1832−DMS M.M.M.).(no document attached) (jak) (Entered: 10/16/2018)
285 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Telephonic Status Conference) held on 10/16/2018, before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 11/6/2018. Redacted Transcript Deadline set for 11/16/2018. Release of Transcript Restriction set for 1/14/2019. (Transcript filed in case numbers 3:18−cv−00428−DMS−MDD, 3:18−cv−01626−DMS−JLB, and 3:18−cv−01832−DMS−MDD.) (akr) (Entered: 10/17/2018)
286 ORDER Setting Further Status Conference. A status conference was held on October 16, 2018. Counsel in both this case and the New York cases shall file further status reports on or before October 25, 2018, and on or before 3:00 p.m. on November 8, 2018. A further status conference shall be held on November 9, 2018, at 1:00 p.m. Signed by Judge Dana M. Sabraw on 10/16/2018.(aef) (Entered: 10/17/2018)
287 ORDER on 265 Plaintiffs' Emergency Motion to Require Implementation of Settlement Agreement. The Court grants Plaintiffs' motion to require implementation of the parties' settlement agreement. Specifically, the Court orders Defendants to begin the asylum process provided for in the agreement to those class members that are in detention and have executed an election form. Signed by Judge Dana M. Sabraw on 10/18/2018. (aef) (Entered: 10/18/2018)
288 Joint MOTION for Extension of Time to File Answer re 250 Amended Complaint,, by Greg Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Murley, Nicole) (aef). (Entered: 10/22/2018)
289 OBJECTION to the October 5, 2018 Settlement Agreement by Egla Arely Velasquez Molina. (Attachments: # 1 Table of Contents, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E)(aef) (Entered: 10/23/2018)
290 ORDER Granting 288 Joint Stipulated Extension of Time for Defendants to Answer Plaintiff's Third Amended Complaint. IT IS HEREBY ORDERED that Respondent−Defendants answer to Petitioner−Plaintiffs' third amended complaint shall

10/25/2018
11/02/2018
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11/06/2018

be due Friday, November 23, 2018. Signed by Judge Dana M. Sabraw on 10/23/2018. (aef) (Entered: 10/24/2018)
291 STATUS REPORT Joint Report by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Fabian, Sarah) (aef). (Entered: 10/25/2018)
292 OBJECTION by Catholic Charities Community Services of the Archdiocese of New York to the Proposed Settlement of October 5, 2018. (Attachments: # 1 Declaration of Anthony Enriquez, # 2 Declaration Alexandra Rizio, # 3 Declaration Kaavya Viswanathan, # 4 Proof of Service Cert of Service)(Weiss, Catherine) (aef). (Entered: 11/02/2018)
293 NOTICE of Appearance by Ashley Elizabeth Neglia on behalf of M. D−L (Neglia, Ashley)Attorney Ashley Elizabeth Neglia added to party M. D−L(pty:obj) (aef). (Entered: 11/02/2018)
294 OBJECTION by M. D−L to the October 5, 2018 Settlement Agreement. (Attachments: # 1 Table of Contents, # 2 Exhibit 1, # 3 Exhibit 2)(Neglia, Ashley)(aef). (Entered: 11/02/2018)
295 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974−11865007.) (Application to be reviewed by Clerk.) (Nicklin, Emily) (mdc) (Entered: 11/02/2018)
296 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974−11865023.) (Application to be reviewed by Clerk.) (Briesacher, Christina) (mdc) (Entered: 11/02/2018)
297 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974−11869155.) (Application to be reviewed by Clerk.) (McNerney, Martin) (mdc) (Entered: 11/05/2018)
298 ORDER Approving the Pro Hac Vice Application of Emily Nicklin, re 295 Request to Appear Pro Hac Vice. Signed by Judge Dana M. Sabraw on 11/5/2018. (mdc) (Entered: 11/05/2018)
299 ORDER Approving the Pro Hac Vice Application of Christina Briesacher, re 296 Request to Appear Pro Hac Vice. Signed by Judge Dana M. Sabraw on 11/5/2018. (mdc) (Entered: 11/05/2018)
300 ORDER Approving the Pro Hac Vice Application of Martin M. McNerney, re 297 Request to Appear Pro Hac Vice. Signed by Judge Dana M. Sabraw on 11/6/2018. (mdc) (Entered: 11/06/2018)
301 Notice of Document Discrepancies and Order Thereon by Judge Dana M. Sabraw Accepting Document: Notice re Settlement Agreement, from Objector Emma Elizabeth Gonzalez Barrientos. Non−compliance with local rule(s), Civ. L. Rule 5.3: Document illegible or submitted on thermal facsimile paper. Nunc Pro Tunc 11/2/2018. Signed by Judge Dana M. Sabraw on 11/6/2018.(aef) (Entered: 11/07/2018)
302 NOTICE Re Settlement Agreement by Emma Elizabeth Gonzalez Barrientos. Nunc Pro Tunc 11/2/2018. (aef) (Entered: 11/07/2018)
303 Notice of Document Discrepancies and Order Thereon by Judge Dana M. Sabraw Accepting Document: Notice re Settlement Agreement, from Objector Leyder Moises Hernandez Gonzalez. Non−compliance with local rule(s), Civ. L. Rule 5.3: Document illegible or submitted on thermal facsimile paper. Nunc Pro Tunc 11/2/2018. Signed by Judge Dana M. Sabraw on 11/6/2018.(aef) (Entered: 11/07/2018)
304 NOTICE Re Settlement Agreement by Leyder Moises Hernandez Gonzalez. Nunc Pro Tunc 11/2/2018. (aef) (Entered: 11/07/2018)

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11/09/2018 11/09/2018

305 Notice of Document Discrepancies and Order Thereon by Judge Dana M. Sabraw Accepting Document: Objection of proposed settlement, from Objector Christine Bateup. Non−compliance with local rule(s), Civ. L. Rule 7.1: Date noticed for hearing not in compliance with rules/documents are not timely. Nunc Pro Tunc 11/5/2018. Signed by Judge Dana M. Sabraw on 11/6/2018.(aef) (Entered: 11/07/2018)
306 OBJECTION of Proposed Settlement by Christine Bateup. Nunc Pro Tunc 11/5/2018. (aef) (Entered: 11/07/2018)
307 Notice of Document Discrepancies and Order Thereon by Judge Dana M. Sabraw Accepting Document: Notice regarding settlement agreement, from Objector Iris Viviana Azurdia Estrada. Non−compliance with local rule(s), OTHER: OTHER: Improper format. Nunc Pro Tunc 11/5/2018. Signed by Judge Dana M. Sabraw on 11/7/2018.(aef) (Entered: 11/07/2018)
308 NOTICE Re Settlement Agreement by Iris Viviana Azurdia Estrada. Nunc Pro Tunc 11/5/2018. (aef) (Entered: 11/07/2018)
309 NOTICE Re Settlement Agreement by Brad Joselino Monterroso Azurdia. Nunc Pro Tunc 11/5/2018. (aef) (Entered: 11/07/2018)
310 ORDER Requesting Response. In anticipation of the hearing on final approval of the settlement in these cases, the Court requests written responses from the parties to the objections. The parties' responses shall be filed on or before 12:00 noon on November 14, 2018. Signed by Judge Dana M. Sabraw on 11/8/2018.(aef) (Entered: 11/08/2018)
311 STATUS REPORT Joint Report by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Fabian, Sarah) (aef). (Entered: 11/08/2018)
312 SUPPLEMENTAL DOCUMENT by Lesbi Martinez−Martinez re 282 Objection to October 9, 2018 Settlement Agreement. (Attachments: # 1 Exhibit 1)(Romano, Julia) (aef). (Entered: 11/08/2018)
313 SUPPLEMENTAL DOCUMENT by Egla Arely Velasquez Molina re 289 Objection to the October 9, 2018 Settlement Agreement. (Attachments: # 1 Exhibit 1)(Romano, Julia) (aef). (Entered: 11/08/2018)
314 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 11/9/2018. All parties appeared telephonically. Further Status Hearing set for 11/30/2018 1:00 PM before Judge Dana M. Sabraw. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt, Stephen Kang, Anan Balakrishnan. For Dora Sirine Shebaya, Wilson Barmeyer, Aaron Olson). (Defendant Attorney Sarah Fabian, Scott Stewart). (Steve Herzog, Steering Committee). (Jennifer Levy for plaintiffs in 18cv1626 NTC, Zachary Best, Justin Bernick for Plaintiffs in 18cv1832 MMM).(no document attached) (jak) (Entered: 11/09/2018)
315 MOTION for Settlement for Final Approval of Class Action Settlement by Alma, Dora. (Attachments: # 1 Memo of Points and Authorities in Support of Motion for Final Approval of Class Action Settlement, # 2 Exhibit In support, # 3 Exhibit Proposed Order)(Barmeyer, Wilson) (aef). (Entered: 11/09/2018)
316 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Telephonic Status Conference) held on 11/9/2018 before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 11/30/2018. Redacted Transcript Deadline set for 12/10/2018. Release of Transcript Restriction set for 2/7/2019. (Transcript filed in case numbers 3:18−cv−00428−DMS−MDD, 3:18−cv−01626−DMS−JLB, and 3:18−cv−01832−DMS−MDD.) (akr) (Entered:

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11/09/2018)
317 ORDER Setting Further Status Conference. A status conference was held on November 9, 2018. Counsel in both this case and the New York cases shall file further status reports on or before 3:00 p.m. on November 29, 2018. A further status conference shall be held on November 30, 2018, at 1:00 p.m. Signed by Judge Dana M. Sabraw on 11/13/2018.(aef) (Entered: 11/13/2018)
318 RESPONSE re 282 Objection, 292 Objection, 294 Objection, 289 Objection, 306 Objection − Joint Response to Objections to Class Action Settlement filed by Alma, Dora. (Attachments: # 1 Exhibit Withdrawal of Objection, # 2 Exhibit Copy of Objection)(Barmeyer, Wilson) (aef). (Entered: 11/14/2018)
319 NOTICE of Supplemental Authority in Support of Objections to Settlement Agreement by Lesbi Martinez−Martinez (Attachments: # 1 Exhibit 1)(McNerney, Martin) (aef). (Entered: 11/15/2018)
320 Minute Entry for proceedings held before Judge Dana M. Sabraw: Approval Hearing held on 11/15/2018. Court to file order. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt and Anan Balakrishnan (telephonically), Stephen Kang; for Dora plaintiffs Sirine Shebaya, Wilson Barmeyer, Aaron Olson). (Defendant Attorney Sarah Fabian, Scott Stewart). (Jennifer Levy (telephonically)for plaintiffs in 18cv1626 NTC, Zachary Best and Justin Bernick for plaintiffs in 18cv1832 MMM). (Other counsel: Martin McNerney, Ashley Neglia, Catherine Weiss, Emily Nicklin (telephonically). (no document attached) (jak) (Entered: 11/15/2018)
321 ORDER Certifying the Settlement Classes and Granting Final Approval of Class Action Settlement. (ECF 315 ) Signed by Judge Dana M. Sabraw on 11/15/2018. (aef) (Entered: 11/15/2018)
322 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Final Approval Hearing) held on 11/15/2018 before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 12/6/2018. Redacted Transcript Deadline set for 12/17/2018. Release of Transcript Restriction set for 2/13/2019. (Transcript filed in case numbers 3:18−cv−00428−DMS−MDD, 3:18−cv−01626−DMS−JLB, and 3:18−cv−01832−DMS−MDD.) (akr) (Entered: 11/15/2018)
323 Joint MOTION for Extension of Time to File Answer re 250 Amended Complaint,, by Greg Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Murley, Nicole) (aef). (Entered: 11/21/2018)
324 ORDER Granting 323 Joint Stipulated Extension of Time for Defendants to Answer Plaintiffs' Third Amended Complaint. IT IS HEREBY ORDERED that Respondent−Defendants Answer to Petitioner−Plaintiffs' Third Amended Complaint shall be due Monday, January 7, 2019. Signed by Judge Dana M. Sabraw on 11/26/2018. (aef) (Entered: 11/26/2018)
325 Joint MOTION Approval of Stipulation for Notice Costs for Class Action Settlement by Alma, Dora. (Attachments: # 1 Proposed Order)(Barmeyer, Wilson) Modified on 11/27/2018−QC mailer sent re proposed order (aef). (Entered: 11/27/2018)
326 ORDER. (ECF 325 ) It is ORDERED that Defendants agree to pay for costs to provide notice to non−detained class members for an amount up to $16,500.00, and ORDERED, that Plaintiffs will provide Defendants with a detailed accounting of all costs. If Defendants believe that Plaintiffs are improvidently using the money provided by Defendants, Defendants reserve the right to raise such concerns and any related

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disputes to the Court for resolution, and further, ORDERED, that if Plaintiffs determine that they need more than $16,500.00 to provide notice to non−detained class members, Plaintiffs will notify Defendants and will provide a detailed estimate of the additional amount requested, and the parties will meet and confer regarding the request and, if the parties reach agreement, present to the Court a joint proposed order to authorize the payment of further notice−related costs. Should the parties fail to resolve the matter, the parties will present the dispute to the Court for resolution. Signed by Judge Dana M. Sabraw on 11/27/2018. (aef) (Entered: 11/27/2018)
327 ORDER of USCA as to 206 Notice of Appeal to 9th Circuit. Appellants' unopposed motion to stay appellate proceedings is granted. Appellate proceedings are stayed until January 8, 2019. On or before January 8, 2019, appellants may file a status report and motion for further relief. Failure to file a status report and motion will terminate the stay of appellate proceedings and the briefing schedule will be reset. (akr) (Entered: 11/27/2018)
328 STATUS REPORT of Objectors by Lesbi Martinez−Martinez, Egla Arely Velasquez Molina. (McNerney, Martin) (aef). (Entered: 11/29/2018)
329 STATUS REPORT Joint Report by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Fabian, Sarah) (aef). (Entered: 11/29/2018)
330 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Hearing held on 11/30/2018. All parties appeared telephonically. Court to issue order. (Status Conference set for 12/14/2018 01:00 PM in Courtroom 13A before Judge Dana M. Sabraw.)(Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt, Anan Balakrishnan, Sirine Shebaya). (Defendant Attorney Scott Stewart, Sarah Fabian). (Jennifer Levy for Plaintiffs in 18cv1626−DMS NTC, Zachary Best, Justin Bernick for Plaintiffs in 18cv1832−DMS MMM, Steven Herzog for Steering Committee, Joshua Tull for objectors).(no document attached) (jak) (Entered: 11/30/2018)
331 ORDER Setting Further Status Conference. A status conference was held on November 30, 2018. The Court sets the following briefing schedule: Plaintiffs shall file their opening brief on or before December 14, 2018. Defendants shall file their responsive brief on or before December 28, 2018. Plaintiffs shall file their reply brief on or before January 4, 2019. Counsel shall file further status reports on or before December 12, 2018. A further status conference shall be held on December 14, 2018, at 1:00 p.m. Signed by Judge Dana M. Sabraw on 12/3/2018.(aef) (Entered: 12/04/2018)
332 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Telephonic Status Conference) held on 11/30/2018 before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 12/26/2018. Redacted Transcript Deadline set for 1/4/2019. Release of Transcript Restriction set for 3/4/2019. (Transcript filed in case numbers 3:18−cv−00428−DMS−MDD, 3:18−cv−01626−DMS−JLB, and 3:18−cv−01832−DMS−MDD.) (akr) (Entered: 12/04/2018)
333 STATUS REPORT by Lesbi Martinez−Martinez, Egla Arely Velasquez Molina. (McNerney, Martin) (aef). (Entered: 12/05/2018)
334 STATUS REPORT by Greg Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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.

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Department of Health and Human Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Murley, Nicole) (aef). (Entered: 12/12/2018)
335 MOTION to Clarify Scope of the Ms. L Class by Ms. C., Ms. L.. (Attachments: # 1 Memorandum of Law in Support of Motion to Clarify Scope of the Ms. L Class)(Gelernt, Lee) (anh). (Entered: 12/14/2018)
336 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 12/14/2018. All parties appeared telephonically. (Status Conference set for 1/4/2019 01:00 PM in Courtroom 13A before Judge Dana M. Sabraw.)(Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt, Anan Balakrishnan). (Defendant Attorney Scott Stewart, Nicole Murley). (Sirine Shebaya, Wilson Barmeyer for Dora plaintiffs, Zachary Best for 18cv1832 MMM plaintiffs. Steven Herzog for Steering Committee. Katherine Weiss for objectors).(no document attached) (jak) (Entered: 12/14/2018)
337 ORDER Setting Further Status Conference: Status Hearing set for 1/4/2019 01:00 PM before Judge Dana M. Sabraw. Signed by Judge Dana M. Sabraw on 12/14/2018.(anh) (Entered: 12/17/2018)
338 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Telephonic Status Conference) held on 12/14/2018 before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 1/8/2019. Redacted Transcript Deadline set for 1/18/2019. Release of Transcript Restriction set for 3/18/2019. (Transcript filed in case numbers 3:18−cv−00428−DMS−MDD, 3:18−cv−01626−DMS−JLB, and 3:18−cv−01832−DMS−MDD.) (akr) (Entered: 12/18/2018)
339 MOTION to Stay All Case Deadlines Due To Lapse in Appropriations by Greg Archambeault, Alex Azar, L. Francis Cissna, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Fabian, Sarah)(sjm). (Entered: 12/26/2018)
340 ORDER granting 339 Motion to Stay of Case Deadlines until further order of this Court. Defendants will notify the Court as soon as Congress has appropriated funds for the Department. Signed by Judge Dana M. Sabraw on 12/27/2018. (sjm) (Entered: 12/27/2018)
341 NOTICE of Vacated Hearing: 1/4/2019 Status Conference vacated. (no document attached) (jak) (Entered: 01/03/2019)
342 MOTION to Enforce Settlement Agreement for Class Members Who Have Not Submitted Executed Waiver Forms by Alma, Dora. (Attachments: # 1 Memo of Points and Authorities, # 2 Exhibit In support, # 3 Proposed Order)(Barmeyer, Wilson) (aef). (Entered: 01/10/2019)
343 ORDER of USCA as to 206 Notice of Appeal to 9th Circuit. Respondents' unopposed motion to stay appellate proceedings is granted. Respondents shall file a motion for further relief within 7 days of the restoration of funding. (akr) (Entered: 01/11/2019)
344 MOTION to Require Response to Inspector General Report by Ms. C., Ms. L.. (Attachments: # 1 Exhibit A, # 2 Supplement Proposed Order)(Gelernt, Lee) (aef). (Entered: 01/25/2019)
345 ORDER Lifting Stay and Setting Dates. On Plaintiffs' motion to clarify the scope of the class, Defendants shall file their responsive brief on or before February 6, 2019, and Plaintiffs shall file their reply brief on or before February 13, 2019. Plaintiffs'

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02/06/2019
02/08/2019 02/08/2019 02/11/2019

motion to enforce the settlement agreement, (ECF No. 342), Defendants shall file their responsive brief on or before February 6, 2019, and Plaintiffs shall file their reply brief on or before February 13, 2019. The motions referred to in Paragraphs 3 and 4 above shall be heard on February 22, 2019, at 1:00 p.m. Plaintiffs motion to require a response to the Inspector General's January 17, 2019 Report is granted. Defendants shall file a response to that Report on or before February 1, 2019. Counsel shall file further status reports on or before 12:00 noon on February 6, 2019. Signed by Judge Dana M. Sabraw on 1/25/2019. (aef) (Entered: 01/28/2019)
346 NOTICE of Withdrawal of Counsel by Alma, Dora (Smith, Johnathan) (aef). (Entered: 02/01/2019)
347 RESPONSE re 345 Order on Motion for Miscellaneous (Other 1),,, filed by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Attachments: # 1 Declaration J. White, # 2 Exhibit 1)(Fabian, Sarah) (aef). (Entered: 02/01/2019)
348 Minute Order by Judge Dana M. Sabraw: Motion Hearing set for 2/22/2019 is vacated and reset for 2/21/2019 03:00 PM in Courtroom 13A before Judge Dana M. Sabraw.(no document attached) (jak) (Entered: 02/04/2019)
349 STATUS REPORT by Greg Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Attachments: # 1 Exhibit)(Fabian, Sarah) (aef). (Entered: 02/06/2019)
350 RESPONSE in Opposition re 342 MOTION to Enforce Settlement Agreement for Class Members Who Have Not Submitted Executed Waiver Forms filed by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Fabian, Sarah) (aef). (Entered: 02/06/2019)
351 RESPONSE in Opposition re 335 MOTION to Clarify Scope of the Ms. L Class filed by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Attachments: # 1 Declaration)(Fabian, Sarah)(aef). (Entered: 02/06/2019)
352 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 2/8/2019. All parties appeared telephonically. Further Status Conference confirmed for 2/21/2019 at 3:00 PM. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt, Anan Balakrishnan). (Defendant Attorney Sarah Fabian, Scott Stewart). (for Dora Plaintiffs: Sirine Shebaya, Wilson Barmeyer. For objectors: Catherine Weiss. For Steering Committee: Steven Herzog. For plaintiffs in 18cv1832 MMM Zachary Best).(no document attached) (jak) (Entered: 02/08/2019)
353 ORDER on Further Clarifications to Settlement Agreement of November 15, 2018. Signed by Judge Dana M. Sabraw on 2/8/2019.(aef) (Entered: 02/08/2019)
354 ORORDER Setting Further Status Conference. A Joint Status Report shall be filed on or before 3:00 p.m. PST on February 20, 2019. A further status conference shall be

02/11/2019
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02/22/2019
02/22/2019

held in conjunction with the hearing on the pending motions on February 21, 2019, at 3:00 p.m. Signed by Judge Dana M. Sabraw on 2/11/2019.(aef) (Entered: 02/11/2019)
355 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Telephonic Status Conference) held on 2/8/2019 before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 3/4/2019. Redacted Transcript Deadline set for 3/14/2019. Release of Transcript Restriction set for 5/13/2019. (Transcript filed in case numbers 3:18−cv−00428−DMS−MDD and 3:18−cv−01832−DMS−MDD.) (akr) (Entered: 02/12/2019)
356 REPLY to Response to Motion re 342 MOTION to Enforce Settlement Agreement for Class Members Who Have Not Submitted Executed Waiver Forms filed by Alma, Dora. (Barmeyer, Wilson) (ag). (Entered: 02/13/2019)
357 REPLY to Response to Motion re 335 MOTION to Clarify Scope of the Ms. L Class filed by Ms. C., Ms. L.. (Attachments: # 1 Declaration Child Advocates)(Gelernt, Lee)(ag). (Entered: 02/13/2019)
358 NOTICE of Appearance by Joseph Saei on behalf of Alma, Dora (Saei, Joseph)Attorney Joseph Saei added to party Alma(pty:pet), Attorney Joseph Saei added to party Dora(pty:pet) (aef). (Entered: 02/14/2019)
359 REPLY − Other re 347 Response − Other, filed by Ms. C., Ms. L.. (Gelernt, Lee) (aef). (Entered: 02/15/2019)
360 STATUS REPORT Joint Report by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Fabian, Sarah) (aef). (Entered: 02/20/2019)
361 Minute Entry for proceedings held before Judge Dana M. Sabraw: Motion Hearing held on 2/21/2019 re 335 MOTION to Clarify Scope of the Ms. L Class filed by Ms. C., Ms. L., 342 MOTION to Enforce Settlement Agreement for Class Members Who Have Not Submitted Executed Waiver Forms filed by Dora, Alma. Court to issue order. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt, Stephen Kang, Anan Balakrishnan(teleph), Dora plaintiffs: Sirine Shebaya(teleph), Wilson Barmeyer(teleph).). (Defendant Attorney Sarah Fabian, Scott Stewart). (Steven Herzog(teleph) for steering committee, Catherine Weiss(teleph) for objectors, Linda Dakin−Grimm for disputed class member. Zachary Best(teleph) for plaintiffs in 18cv1832 MMM).(no document attached) (jak) (Entered: 02/21/2019)
362 ORDER on Plaintiffs' Motion to Enforce Settlement Conference Agreement for Class Members who have not submitted executed waiver forms. It is hereby ordered on or before February 28, 2019, defense counsel shall provide to ClassCounsel the list of persons subject to removal. Counsel shall meet and confer on the best way to cull that list down to persons with expedited removal orders. Defense counsel shall advise Immigration and Customs Enforcementthat class members subject to the settlement agreement in this case may not beremoved without first providing them with notice of the settlement and an opportunity to decide whether they wish to take advantage of the settlement procedures or waive those procedures. Counsel shall provide the Court with an update on these issues in the next Joint Status Report. Signed by Judge Dana M. Sabraw on 2/22/2019.(aef) (Entered: 02/22/2019)
363 ORDER Setting Further Status Conference. The next Joint Status Report shall be filed on or before 3:00 p.m. PST on March 6, 2019. A further status conference shall be held on March 7, 2019, at 3:00 p.m. PST. Signed by Judge Dana M. Sabraw on 2/22/2019.(aef) (Entered: 02/22/2019)

02/25/2019
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03/07/2019

364 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Motion Hearing) held on 2/21/2019 before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 3/18/2019. Redacted Transcript Deadline set for 3/28/2019. Release of Transcript Restriction set for 5/28/2019. (Transcript filed in case numbers 3:18−cv−00428−DMS−MDD and 3:18−cv−01832−DMS−MDD.) (akr) (Entered: 02/25/2019)
365 Joint MOTION for Extension of Time to File Answer re 250 Amended Complaint,, by Greg Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Murley, Nicole) (aef). (Entered: 03/01/2019)
366 ORDER Granting 365 Joint Motion for Extension of Time to Answer or Respond to Third Amended Complaint. IT IS HEREBY ORDERED that Respondent−Defendants Answer to Petitioner−Plaintiffs' Third Amended Complaint shall be due Monday, April 29, 2019. Signed by Judge Dana M. Sabraw on 3/1/2019. (aef) (Entered: 03/01/2019)
367 ORDER Granting 152 Plaintiffs' Motion to File Overlength Reply Brief. Upon consideration of the Plaintiffs' Motion to File Overlength Reply Brief, the motion is hereby GRANTED. Signed by Judge Dana M. Sabraw on 3/5/2019. (aef) (Entered: 03/05/2019)
368 ORDER Granting 199 Motion to File Restricted Declaration; and Granting 201 Motion to Strike. Signed by Judge Dana M. Sabraw on 3/5/19. (dlg) (Entered: 03/05/2019)
370 ORDER Granting 15 Motion to File Documents Declaration of Elizabeth Lopez Under Seal. Signed by Judge Dana M. Sabraw on 3/5/19. (dlg) (Entered: 03/05/2019)
372 ORDER granting 33 Motion to File Complaint Using Pseudonym. Signed by Judge Dana M. Sabraw on 3/5/19. (dlg) (Entered: 03/05/2019)
374 ORDER granting 36 Motion to File Documents Under Seal Declaration of Mc. C. Signed by Judge Dana M. Sabraw on 3/5/19. (dlg) (Entered: 03/05/2019)
376 ORDER granting 47 Motion to File Exhibits Under Seal. Signed by Judge Dana M. Sabraw on 3/5/19. (dlg) (Entered: 03/05/2019)
378 ORDER granting 64 Motion to File Declarations Under Seal. Signed by Judge Dana M. Sabraw on 3/5/19. (dlg) (Entered: 03/05/2019)
380 ORDER granting 155 Motion to File Documents Under Seal Declarations. Signed by Judge Dana M. Sabraw on 3/5/19. (dlg) (Entered: 03/05/2019)
382 STATUS REPORT Joint Report by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Fabian, Sarah) (aef). (Entered: 03/06/2019)
383 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 3/7/2019. All counsel appeared telephonically.(Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt, Dora plaintiffs: Sirine Shebaya, Wilson Barmeyer). (Defendant Attorney Sarah Fabian, Scott Stewart). (Zachary Best for plaintiffs in 18cv1832 MMM, Steven Herzog with the Steering Committee, Catherine Weiss for objectors).(no document attached) (jak) (Entered: 03/07/2019)

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03/27/2019 03/28/2019
03/28/2019
03/28/2019
03/29/2019 04/05/2019

384 Request to Appear Pro Hac Vice (Filing fee received: $ 206 receipt number 0974−12279719.)(Application to be reviewed by Clerk.)(Bork, Emily)(jrd) (Entered: 03/08/2019)
385 PRO HAC APPROVED: Emily A. Bork appearing for Petitioners Alma, Dora. (no document attached) (jrd) (Entered: 03/08/2019)
386 ORDER granting 335 Plaintiff's Motion to Modify Class Definition. Signed by Judge Dana M. Sabraw on 3/8/2019. (sjt) (Entered: 03/08/2019)
387 ORDER Setting Further Status Conference. The next Joint Status Report shall be filed on or before 3:00 p.m. PST on March 27, 2019. A further status conference shall be held on March 28, 2019, at 1:00 p.m. PST. Signed by Judge Dana M. Sabraw on 3/8/2019.(sjt) (Entered: 03/08/2019)
388 STATUS REPORT Joint Report by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Fabian, Sarah) (aef). (Entered: 03/27/2019)
389 Joint MOTION to Amend/Correct Protective Order by Alma, Dora. (Attachments: # 1 Proposed Order)(Barmeyer, Wilson) Modified on 3/28/2019 QC email re proposed orders should not be attached (aef). (Entered: 03/27/2019)
390 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 3/28/2019. All parties appeared telephonically. (Court Reporter/ECR Lee Ann Pence). Plaintiff Attorney Lee Gelernt. For Dora plaintiffs − Sirine Shebaya, Wilson Barmeyer, Emily Bork). (Defendant Attorney Scott Stewart, Sarah Fabian). (for 18cv1832 MMM plaintiffs, Zachary Best. For Steering Committee, Steven Herzog. For objectors, Catherine Weiss).(no document attached) (jak) (Entered: 03/28/2019)
391 ORDER Setting Further Status Conference. A status conference was held on March 28, 2019. Defendants shall submit their proposal on the next steps for the new class members on or before 3:00 p.m. on April 5, 2019. The next Joint Status Report shall be filed on or before 3:00 p.m. on April 12, 2019. A further status conference shall be held on April 16, 2019, at 1:00 p.m. Signed by Judge Dana M. Sabraw on 3/28/2019.(aef) (Entered: 03/28/2019)
392 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Status Hearing) held on 3/28/2019 before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 4/18/2019. Redacted Transcript Deadline set for 4/29/2019. Release of Transcript Restriction set for 6/26/2019. (Transcript filed in case numbers 3:18−cv−00428−DMS−MDD and 3:18−cv−01832−DMS−MDD.) (akr) (Entered: 03/28/2019)
393 ORDER Granting 389 Joint Motion to Amend July 8, 2018 Protective Order. Signed by Judge Dana M. Sabraw on 3/28/2019. (aef) (Entered: 03/29/2019)
394 NOTICE PROPOSED EXPANDED MS. L CLASS IDENTIFICATION PLAN SUMMARY by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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 (Attachments: # 1 Exhibit, # 2 Declaration J. White, # 3 Declaration B. Graubard)(Fabian, Sarah) (aef). (Entered: 04/05/2019)

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04/25/2019

395 ORDER of USCA as to 206 Notice of Appeal to the 9th Circuit. Appellants' unopposed motion to continue the stay of appellate proceedings is granted. Appellate proceedings are stayed until May 28, 2019. On or before May 28, 2019, appellants may file a status report and motion for further relief. Failure to file a status report and motion will terminate the stay of appellate proceedings and the briefing schedule will be reset. (akr) (Entered: 04/08/2019)
396 STATUS REPORT Joint Report by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Fabian, Sarah)(aef). (Entered: 04/12/2019)
397 REPLY − Other re 394 Notice (Other), Re Proposed Identification Plan filed by Ms. C., Ms. L.. (Attachments: # 1 Declaration, # 2 Declaration)(Gelernt, Lee) (aef). (Entered: 04/15/2019)
398 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 4/16/2019. All parties appeared telephonically. (Further Status Conference set for 4/24/2019 01:00 PM in Courtroom 13A before Judge Dana M. Sabraw.)(Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt, Daniel Galindo. For Dora plaintiffs: Sirine Shebaya, Wilson Barmeyer). (Defendant Attorney Scott Stewart, Sarah Fabian). (For Steering Committee: Steven Herzog. For objectors: Catherine Weiss. For 18cv1832 MMM plaintiffs: Zachary Best).(no document attached) (jak) (Entered: 04/16/2019)
399 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Status Conference) held on 4/16/2019 before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 5/8/2019. Redacted Transcript Deadline set for 5/20/2019. Release of Transcript Restriction set for 7/16/2019. (Transcript filed in case numbers 3:18−cv−00428−DMS−MDD and 3:18−cv−01832−DMS−MDD.) (akr) (Entered: 04/17/2019)
400 ORDER Setting Further Status Conference. The next Joint Status Report shall be filed on or before 5:00 p.m. on April 23, 2019. A further status conference on these issues shall be held on April 24, 2019, at 1:00 p.m. On the previously defined class and the M.M.M. case, the next Joint Status Report shall be filed on or before 3:00 p.m. on May 7, 2019. A further status conference on the previously defined class and the M.M.M. case shall be held on May 8, 2019, at 1:00 p.m. Signed by Judge Dana M. Sabraw on 4/17/2019. (tcf)(jrd) (Entered: 04/17/2019)
401 ORDER Resetting Status Conference. The status conference currently scheduled for April 24, 2019, is continued to April 25, 2019, at 1:00 p.m. before Judge Dana M. Sabraw. Signed by Judge Dana M. Sabraw on 4/19/2019. (tcf) (Entered: 04/19/2019)
402 STATUS REPORT Re Proposed Identification Plan by Ms. C., Ms. L.. (Gelernt, Lee) (aef). (Entered: 04/25/2019)
403 STATUS REPORT by Greg Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Attachments: # 1 Declaration, # 2 Declaration)(Fabian, Sarah) (aef). (Entered: 04/25/2019)
404 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Hearing Hearing held on 4/25/2019. Commander Jonathan White HHS, called, sworn, testified.

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Court to issue order. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt, Daniel Galindo, Stephen Kang). (Defendant Attorneys Scott Stewart, Sarah Fabian. Brian Stimson HHS OGC, Jean−Michel Voltaire HHS OGC). (Steven Herzog for the Steering Committee, Cmdr Jonathan White HHS, Jay Visconti CBP).(no document attached) (jak) (Entered: 04/25/2019)
405 ORDER Following Status Conference. A status conference was held on April 25, 2019. As indicated during the conference, the Court orders that the Plan be completed in six months, or by October 25, 2019. A further status conference shall be held on May 17, 2019, at 1:00 p.m., with a Joint Status Report to be filed on or before 3:00 p.m. on May 16, 2019. Signed by Judge Dana M. Sabraw on 4/25/2019.(aef) (Entered: 04/25/2019)
406 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Status Conference) held on 4/25/2019 before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 5/20/2019. Redacted Transcript Deadline set for 5/30/2019. Release of Transcript Restriction set for 7/29/2019. (akr) (Entered: 04/29/2019)
407 STATUS REPORT Joint Report by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Fabian, Sarah) (aef). (Entered: 05/07/2019)
408 Joint MOTION for Extension of Time to File Answer by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Fabian, Sarah) (aef). (Entered: 05/07/2019)
409 ORDER Granting 408 Joint Motion for an Extension of Time for Respondents−Defendants to Answer or Otherwise Respond to Plaintiffs' Third Amended Complaint. IT IS HEREBY ORDERED that Respondent−Defendants' Answer to Petitioner−Plaintiffs' Third Amended Complaint shall be due Friday, June 28, 2019. Signed by Judge Dana M. Sabraw on 5/8/2019. (aef) (Entered: 05/08/2019)
410 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 5/8/2019. All counsel appeared telephonically. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt, Daniel Galindo. For Dora plaintiffs − Wilson Barmeyer). (Defendant Attorney Sarah Fabian). (Steven Herzog for Steering Committee. For plaintiffs in 18cv1832 MMM − Zachary Best).(no document attached) (jak) (Entered: 05/08/2019)
411 ORDER Setting Further Status Conference. A status conference was held on May 8, 2019. The next Joint Status Report shall be filed on or before 3:00 p.m. on June 6, 2019. A further status conference shall be held on June 7, 2019, at 1:00 p.m. Signed by Judge Dana M. Sabraw on 5/8/2019.(aef) (Entered: 05/08/2019)
412 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Status Conference) held on 5/8/2019 before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following

05/16/2019
05/17/2019
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deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 5/29/2019. Redacted Transcript Deadline set for 6/10/2019. Release of Transcript Restriction set for 8/6/2019. (Transcript filed in case numbers 3:18−cv−00428−DMS−MDD and 3:18−cv−01832−DMS−MDD.) (akr) (Entered: 05/09/2019)
413 STATUS REPORT by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Fabian, Sarah) (aef). (Entered: 05/16/2019)
414 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 5/17/2019. All parties appeared telephonically. The next hearing will be on 6/7/2019 at 1:00 PM. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt, Anan Balakrishnan). (Defendant Attorney Scott Stewart, Sarah Fabian, Jean−Michel Voltaire HHS OGC). (Cdr Jonathan White, Steven Herzog from Steering Committee. Zachary Best for plaintiffs in 18cv1832 MMM).(no document attached) (jak) (Entered: 05/17/2019)
415 ORDER Setting Further Status Conference. A status conference was held on May 17, 2019. The next Joint Status Report shall be filed on or before 3:00 p.m. on June 6, 2019. A further status conference shall be held on June 7, 2019, at 1:00 p.m. Signed by Judge Dana M. Sabraw on 5/17/2019.(aef) (Entered: 05/17/2019)
416 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Status Hearing) held on 5/17/2019 before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 6/7/2019. Redacted Transcript Deadline set for 6/17/2019. Release of Transcript Restriction set for 8/15/2019. (akr) (Entered: 05/17/2019)
417 ORDER of USCA as to 206 Notice of Appeal to the 9th Circuit. Appellants' unopposed motion to continue the stay of appellate proceedings is granted. Appellate proceedings are stayed until July 29, 2019. On or before July 29, 2019, appellants may file a status report and motion for further relief. Failure to file a status report and motion will terminate the stay of appellate proceedings and the briefing schedule will be reset. (akr) (Entered: 06/04/2019)
418 MOTION to Allow Parents Deported Without Their Children to Travel to the United States by Ms. C., Ms. L.. (Attachments: # 1 Memo of Points and Authorities in Support of Motion to Allow Parents Deported Without Their Children to Travel to the United States, # 2 Declaration, # 3 Declaration, # 4 Declaration)(Gelernt, Lee) (aef). (Entered: 06/06/2019)
419 MOTION to File Documents Under Seal (Gelernt, Lee) (rmc). (Entered: 06/06/2019)
420 ***FILED AS SEALED DOCUMENT ON 7/1/2019*** − SEALED LODGED Proposed Document re: 419 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Gelernt, Lee) (rmc). Modified on 7/1/2019 to add file date of lodgment (aef). (Entered: 06/06/2019)
421 CERTIFICATE OF SERVICE by Ms. C., Ms. L. re 419 MOTION to File Documents Under Seal, 420 Sealed Lodged Proposed Document (Gelernt, Lee) (aef). (Entered: 06/06/2019)
422 STATUS REPORT Joint Report by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., Kevin K. McAleenan, Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson Beauregard Sessions, III, U.S. Citizenship and

06/07/2019 06/07/2019 06/10/2019 06/28/2019 06/28/2019 06/28/2019

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. (Fabian, Sarah) (aef). (Entered: 06/06/2019)
423 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 6/7/2019. All parties appeared telephonically. Motion Hearing/Status Conference set for 7/12/2019 1:00 PM before Judge Dana M. Sabraw.(Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt, Daniel Galindo. Wilson Barmeyer for Dora plaintiffs). (Defendant Attorney Scott Stewart, Sarah Fabian). (Zachary Best for MMM (18cv1832) plaintiffs. Cdr Jonathan White HHS. Jean−Michel Voltaire of HHS. Dawn Helland of ICE. ICE counsel: Julie Laughlin, Hilary Rainone. Chief Jay Visconti of CBP. CBP counsel: Caroline Jackson. Steven Herzog from the Steering Committee. Catherine Weiss for objectors.).(no document attached) (jak) (Entered: 06/07/2019)
424 ORDER Setting Further Status Conference. A status conference was held on June 7, 2019. On or before June 14, 2019, Defendants shall deliver to Plaintiffs' counsel the first packet of information concerning children of the expanded Ms. L. class members. On Plaintiffs' motion to allow parents deported without their children to travel to the United States, Defendants shall file their opposition on or before June 28, 2019, and Plaintiffs shall file their reply on or before July 5, 2019. The motion will be heard on July 12, 2019, at 1:00 p.m. The next Joint Status Report shall be filed on or before 3:00 p.m. on July 11, 2019. A further status conference shall be held in conjunction with the hearing on Plaintiffs' motion on July 12, 2019, at 1:00 p.m. Signed by Judge Dana M. Sabraw on 6/7/2019.(aef) (Entered: 06/07/2019)
425 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Status Conference) held on 6/7/2019 before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 7/1/2019. Redacted Transcript Deadline set for 7/11/2019. Release of Transcript Restriction set for 9/9/2019. (akr) (Entered: 06/10/2019)
426 Joint MOTION for Extension of Time to File Answer re 250 Amended Complaint,, by Greg Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Murley, Nicole) (aef). (Entered: 06/28/2019)
427 ORDER Granting 426 Joint Motion for Extension of Time For Defendants to Answer Plaintiff's Third Amended Complaint as to Greg Archambeault; Alex Azar; L. Francis Cissna; Pete Flores; Joseph Greene; Thomas Homan; Francis M. Jackson ; Scott Lloyd; Adrian P. Macias; Hector A. Mancha Jr.; 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; and U.S. Immigration and Customs Enforcement.Answer by Respondent−Defendant's due 8/12/2019. Signed by Judge Dana M. Sabraw on 06/28/2019. (mme) (Entered: 06/28/2019)
428 RESPONSE in Opposition re 418 MOTION to Allow Parents Deported Without Their Children to Travel to the United States filed by Greg Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Attachments: # 1 Exhibit, # 2 Exhibit, #

07/01/2019 07/05/2019 07/11/2019
07/12/2019
07/15/2019
07/15/2019 07/22/2019 07/29/2019 07/30/2019 07/30/2019 07/31/2019

3 Exhibit, # 4 Exhibit)(Fabian, Sarah) (aef). (Entered: 06/28/2019)
429 ORDER Granting 419 Plaintiffs' Motion to File Exhibits Under Seal. Signed by Judge Dana M. Sabraw on 7/1/2019. (aef) (Entered: 07/01/2019)
431 REPLY to Response to Motion re 418 MOTION to Allow Parents Deported Without Their Children to Travel to the United States filed by Ms. C., Ms. L.. (Gelernt, Lee)(aef). (Entered: 07/05/2019)
432 STATUS REPORT Joint Report by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Fabian, Sarah) (aef). (Entered: 07/11/2019)
433 Minute Order. for proceedings held before Judge Dana M. Sabraw: Status Conference and Motion Hearing held on 7/12/2019. 342 MOTION to Enforce Settlement Agreement for Class Members Who Have Not Submitted Executed Waiver Forms filed by Dora, Alma, − Withdrawn by Dora plaintiffs. Court to issue order. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt, Anan Balakrishnan, Sirine Shebaya (tel) for Dora plaintiffs).(Defendant Attorney Scott Stewart (tel), Sarah Fabian (tel)).(Commander Jonathan White HHS (tel), Steven Herzog (tel) from Steering Committee, Zachary Best (tel) for plaintiffs in 18cv1832 MMM, Catherine Weiss (tel), Linda Dakin−Grimm). (no document attached) (jak) (Entered: 07/12/2019)
434 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Motion Hearing) held on 7/12/2019 before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 8/5/2019. Redacted Transcript Deadline set for 8/15/2019. Release of Transcript Restriction set for 10/15/2019. (akr) (Entered: 07/15/2019)
435 ORDER Following Status Conference. A status conference was held on July 12, 2019. The Dora Plaintiffs' request to withdraw their pending motion at Docket No. 342 is granted. The next Joint Status Report shall be filed on or before 3:00 p.m. on August 14, 2019. A further status conference shall be held on August 16, 2019, at 1:00 p.m. Signed by Judge Dana M. Sabraw on 7/15/2019.(aef) (Entered: 07/15/2019)
436 NOTICE of Withdrawal of Counsel by Alma, Dora (Saei, Joseph) (mme). (Entered: 07/22/2019)
437 ORDER Requesting Supplemental Briefing. Defendants shall produce to Plaintiffs any and all evidence relevant to the issues set out above on or before August 6, 2019. The parties shall file their supplemental briefs on these issues along with all necessary and relevant evidence on or before August 14, 2019. Signed by Judge Dana M. Sabraw on 7/29/2019.(aef) (Entered: 07/30/2019)
438 MOTION Request for Overlength Brief by Ms. C., Ms. L.. (Gelernt, Lee) (aef). (Entered: 07/30/2019)
439 MOTION to Enforce Preliminary Injunction by Ms. C., Ms. L.. (Attachments: # 1 Memo of Points and Authorities)(Gelernt, Lee) (aef). (Entered: 07/30/2019)
440 ORDER Re: 439 Motion to Enforce Preliminary Injunction. Defendants shall file their opposition to Plaintiffs' motion to enforce the preliminary injunction on or before August 30, 2019, and Plaintiffs shall file their reply on or before September 9, 2019. Counsel should also be prepared to engage in a preliminary discussion of the motion at the August 16, 2019 status conference. Signed by Judge Dana M. Sabraw on 7/31/2019.(aef) (Entered: 07/31/2019)

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08/14/2019
08/14/2019 08/14/2019 08/14/2019 08/16/2019 08/16/2019
08/16/2019

441 ORDER of USCA as to 206 Notice of Appeal to the 9th Circuit. Appellants' unopposed motion to continue the stay of appellate proceedings is granted. Appellate proceedings are stayed until September 27, 2019. On or before September 27, 2019, appellants may file a status report and motion for further relief. Failure to file a status report and motion will terminate the stay of appellate proceedings and the briefing schedule will be reset. (akr) (Entered: 08/07/2019)
442 Joint MOTION for Extension of Time to File Answer re 250 Amended Complaint,, by Greg Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Murley, Nicole) (jrm). (Entered: 08/13/2019)
443 ORDER granting 442 Joint Stipulated Extension of Time for Defendants to Answer Plaintiffs' Third Amended Complaint. Respondent−Defendants Answer to Petitioner−Plaintiffs' Third Amended Complaint shall be due 10/11/2019. Signed by Judge Dana M. Sabraw on 8/13/2019. (jrm) (jao). (Entered: 08/13/2019)
444 STATUS REPORT Joint Report by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Fabian, Sarah) (jrm). (Entered: 08/14/2019)
445 SUPPLEMENTAL BRIEFING by Respondents Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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 re 437 Order, . (Fabian, Sarah) (jrm). (Entered: 08/14/2019)
446 SUPPLEMENTAL BRIEFING by Petitioners Ms. C., Ms. L. re 437 Order, . (Attachments: # 1 Declaration of Manoj Govindaiah)(Gelernt, Lee) (jrm). (Entered: 08/14/2019)
447 MOTION to File Documents Under Seal (Gelernt, Lee) (Entered: 08/14/2019)
448 *** DOCKETED SEALED ON 9/6/19, ECF 459 *** SEALED LODGED Proposed Document re: 447 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Gelernt, Lee) Modified on 9/6/2019 (dlg). (Entered: 08/14/2019)
449 NOTICE of Change of Address by Sirine Shebaya (Shebaya, Sirine) Modified on 8/19/2019 QC email sent re improper form (aef). (Entered: 08/16/2019)
450 ORDER Following Status Conference. Commander White shall file a short declaration on or before 8/30/2109. Defendants shall produce any and all government protocols, standards, checklists, etc. concerning the separation of families at the border and/or standards applicable to family detention centers on or before 8/30/2019. The next Joint Status Report shall be filed on or before 3:00 p.m. on September 11, 2019. A further status conference shall be held on 9/13/2019, at 1:00 p.m. Signed by Judge Dana M. Sabraw on 8/16/2019.(jrm) (jao). (Entered: 08/16/2019)
451 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 8/16/2019. All appearances were telephonic. Further Status Conference set for 9/13/2019 1:00 PM before Judge Dana M. Sabraw. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt, Anan Balakrishnan, Wilson Barmeyer). (Defendant Attorney Sarah Fabian, Scott Stewart). (Zachary Best for MMM plaintiffs, Stever Herzog for Steering Committee, Catherine Weiss for objectors).(no document attached) (jak) Modified on 8/19/2019 (jak). (Entered: 08/19/2019)

08/19/2019
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09/06/2019 09/06/2019 09/06/2019

452 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Telephonic Status Conference) held on 8/16/2019 before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 9/9/2019. Redacted Transcript Deadline set for 9/19/2019. Release of Transcript Restriction set for 11/18/2019. (akr) (Entered: 08/19/2019)
453 Joint MOTION for Extension of Time to File Response/Reply as to 439 MOTION to Enforce Preliminary Injunction by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Fabian, Sarah) (aef). (Entered: 08/28/2019)
454 ORDER Granting 453 Joint Motion to Extend Briefing Schedule for Plaintiffs' Motion to Enforce Preliminary Injunction. IT IS HEREBY ORDERED that that the briefing deadline for this motion should be extended as follows: Defendants' opposition brief is due by 9/6/2019. Plaintiffs' reply brief is due by 9/16/2019. Oral Argument and Joint Status Conference are set for 9/20/2019 at 01:00 PM. Signed by Judge Dana M. Sabraw on 8/29/2019. (aef) (Entered: 08/29/2019)
455 NOTICE attaching Declarations by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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 (Attachments: # 1 Declaration, # 2 Declaration, # 3 Declaration)(Fabian, Sarah) (aef). (Entered: 08/30/2019)
456 ORDER Granting in part and Denying in part 418 Plaintiffs' Motion to Allow Parents Deported without their Children to Travel to the United States. Signed by Judge Dana M. Sabraw on 9/4/2019. (aef) (Entered: 09/04/2019)
457 Joint MOTION for Extension of Time to File Response/Reply as to 439 MOTION to Enforce Preliminary Injunction by Greg Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Murley, Nicole) (aef). (Entered: 09/06/2019)
458 ORDER Granting 447 Motion to File Documents Under Seal. Signed by Judge Dana M. Sabraw on 9/6/19. (dlg) (Entered: 09/06/2019)
460 ORDER Granting 457 Joint Motion to Extend Briefing Schedule for Plaintiffs' Motion to Enforce Preliminary Injunction. Defendants' opposition brief due on 9/10/2019. Plaintiffs' reply brief due on 9/18/2019. Oral argument and joint status conference set for 9/20/2019. Signed by Judge Dana M. Sabraw on 9/6/2019. (aef) (Entered: 09/06/2019)
461 MOTION to Exclude by Greg Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Attachments: # 1 Exhibit)(Murley,

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Nicole)(aef). (Entered: 09/06/2019)
462 Minute Order by Judge Dana M. Sabraw: Status Conference set for 9/13/2019 is vacated, and has been reset for 9/20/2019 01:00 PM in Courtroom 13A before Judge Dana M. Sabraw.(no document attached) (jak) (Entered: 09/10/2019)
463 MOTION for Leave to File Excess Pages by Greg Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Murley, Nicole) (aef). (Entered: 09/10/2019)
464 RESPONSE in Opposition re 439 MOTION to Enforce Preliminary Injunction filed by Greg Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 ***DOCKETED SEALED ON 9/19/19, ECF 473 *** Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9)(Fabian, Sarah) (aef). Modified on 9/19/2019 (dlg). (Entered: 09/10/2019)
465 STATUS REPORT by Greg Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Fabian, Sarah) (aef). (Entered: 09/11/2019)
466 RESPONSE in Opposition re 461 MOTION to Exclude filed by Ms. C., Ms. L.. (Gelernt, Lee) (aef). (Entered: 09/16/2019)
467 Joint MOTION to Seal a Previously Filed Document Exhibit 6, ECF No. 464−6 by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Fabian, Sarah) (aef). (Entered: 09/18/2019)
468 MOTION for Leave to File Excess Pages by Greg Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Murley, Nicole) (aef). (Entered: 09/18/2019)
469 REPLY to Response to Motion re 461 MOTION to Exclude filed by Greg Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Murley, Nicole) (aef). (Entered: 09/18/2019)

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09/20/2019
09/20/2019 09/23/2019
10/07/2019 10/10/2019
10/11/2019

470 MOTION for Leave to File Excess Pages by Alma, Ms. C., Ms. L.. (Gelernt, Lee) (aef). (Entered: 09/18/2019)
471 REPLY to Response to Motion re 439 MOTION to Enforce Preliminary Injunction filed by Alma, Ms. C., Ms. L.. (Gelernt, Lee) (aef). (Entered: 09/18/2019)
472 ORDER Granting 467 Motion to Seal Exhibit 464−6. Signed by Judge Dana M. Sabraw on 9/18/19. (dlg) (Entered: 09/19/2019)
474 ORDER Granting 224 Motion to File Documents Under Seal. Signed by Judge Dana M. Sabraw on 9/19/19. (dlg) (Entered: 09/19/2019)
476 NOTICE of Corrected Exhibit by Greg Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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 re 464 Response in Opposition to Motion, (Attachments: # 1 Exhibit)(Murley, Nicole) (aef). (Entered: 09/20/2019)
477 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference and Motion Hearing held on 9/20/2019 re 439 MOTION to Enforce Preliminary Injunction. Court to issue order. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt, Stephen Kang, Daniel Galindo). (Defendant Attorney Sarah Fabian, Scott Stewart). (All telephonically: Sirine Shebaya for Dora plaintiffs, Zachary Best for plaintiffs in 18cv1832 MMM, Cmdr Jonathan White HHS, Victor Suh HHS counsel, Steven Herzog for Steering Committee, Catherine Weiss, Linda Dakin−Grimm).(no document attached) (jak) (Entered: 09/20/2019)
479 ORDER Following Status Conference. A status conference was held on September 20, 2019. On or before September 30, 2019, Defendants shall produce to Plaintiffs and the Court all governing documents memorializing standardized procedures, guidelines and guidance for separating parents and children at the border. A further status conference shall be held on October 18, 2019, at 1:00 p.m. Signed by Judge Dana M. Sabraw on 9/20/2019.(aef) (Entered: 09/23/2019)
478 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Motion Hearing) held on 9/20/2019 before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 10/15/2019. Redacted Transcript Deadline set for 10/24/2019. Release of Transcript Restriction set for 12/23/2019. (akr) (Entered: 09/23/2019)
480 RESPONSE in Opposition re 439 MOTION to Enforce Preliminary Injunction filed by Alma, Dora. (Shebaya, Sirine) Modified on 10/8/2019 QC email sent re improper format (aef). (Entered: 10/07/2019)
481 Joint MOTION for Extension of Time to File Answer re 250 Amended Complaint,, by Greg Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Murley, Nicole) (aef). (Entered: 10/10/2019)
482 ORDER Granting 481 Joint Motion Stipulated Extension of Time for Defendants to Answer Plaintiff's Third Amended Complaint. IT IS HEREBY ORDERED that Respondent−Defendants Answer to Petitioner−Plaintiffs' Third Amended Complaint shall be due Tuesday, December 10, 2019. Signed by Judge Dana M. Sabraw on 10/11/2019. (aef) (Entered: 10/11/2019)

10/11/2019 10/16/2019
10/16/2019
10/17/2019 10/18/2019 10/18/2019 10/18/2019
10/22/2019 10/23/2019 10/31/2019

483 ORDER of USCA as to 206 Notice of Appeal to the 9th Circuit. Appellants' unopposed motion to continue the stay of appellate proceedings is granted. Appellate proceedings are stayed until November 26, 2019. On or before November 26, 2019, appellants may file a status report and motion for further relief. Failure to file a status report and motion will terminate the stay of appellate proceedings and the briefing schedule will be reset. (akr) (Entered: 10/11/2019)
484 STATUS REPORT by Greg Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Murley, Nicole) (aef). (Entered: 10/16/2019)
485 REPLY − Other re 480 Response in Opposition to Motion filed by Greg Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Murley, Nicole) (aef). (Entered: 10/16/2019)
489 NOTICE of Lodgment (Disc: Documents in Response to ECF 479 : Order Following Status Conference October 16, 2019). (no document attached) (aef) (Entered: 10/22/2019)
486 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 10/18/2019. All parties appeared telephonically. Court to issue order. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt, Wilson Barmeyer). (Defendant Attorney Sarah Fabian, Scott Stewart). (Zachary Best for MMM plaintiffs, Steven Herzog for Steering Committee, Cdr Jonathan White, Victor Suh for HHS, Catherine Weiss for objectors).(no document attached) (jak) (Entered: 10/18/2019)
487 ORDER Following Status Conference. A status conference was held on October 18, 2019. On or before October 23, 2019, Plaintiffs may file a supplemental brief in support of their motion to enforce the preliminary injunction addressing Defendants' separation protocols. The next Joint Status Report shall be filed on or before 3:00 p.m. on November 6, 2019. A further status conference shall be held on November 8, 2019, at 1:00 p.m. Signed by Judge Dana M. Sabraw on 10/18/2019.(aef) (Entered: 10/18/2019)
488 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Status Conference) held on 10/18/2019 before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 11/8/2019. Redacted Transcript Deadline set for 11/18/2019. Release of Transcript Restriction set for 1/16/2020. (akr) (Entered: 10/21/2019)
490 NOTICE of Lodgment (Disc: Documents in Response to ECF 479 : Order Following Status Conference October 21, 2019). (no document attached) (aef) (Entered: 10/22/2019)
491 SUPPLEMENTAL BRIEFING re 439 MOTION to Enforce Preliminary Injunction by Petitioners Ms. C., Ms. L. . (Gelernt, Lee) (aef). (Entered: 10/23/2019)
492 RESPONSE in Opposition re 439 MOTION to Enforce Preliminary Injunction Response to Plaintiffs' Supplemental Brief filed by Greg Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., Kevin K.

11/05/2019 11/06/2019 11/06/2019
11/07/2019 11/07/2019 11/08/2019
11/12/2019
11/12/2019 12/03/2019 12/04/2019

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. (Murley, Nicole) (aef). (Entered: 10/31/2019)
493 NOTICE of Change of Hearing: (Time Change Only). On the Court's own motion, Status Conference is reset for 11/8/2019 02:00 PM in Courtroom 13A before Judge Dana M. Sabraw. (no document attached) (jak) (Entered: 11/05/2019)
494 ***DOCUMENT WITHDRAWN PER ECF 496 )*** − STATUS REPORT Legal Service Providers' Submission to Joint Status Report by Catholic Charities Community Services of the Archdiocese of New York. (Weiss, Catherine) QC email sent re missing signature. (dsn) Modified on 11/8/2019 to withdraw document (aef). (Entered: 11/06/2019)
495 STATUS REPORT by Greg Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Murley, Nicole) (dsn) (Entered: 11/06/2019)
496 NOTICE OF WITHDRAWAL OF DOCUMENT by Catholic Charities Community Services of the Archdiocese of New York re 494 Status Report filed by Catholic Charities Community Services of the Archdiocese of New York . (Weiss, Catherine) (aef). (Entered: 11/07/2019)
497 STATUS REPORT Legal Service Providers' Submission to Joint Status Report by Catholic Charities Community Services of the Archdiocese of New York. (Weiss, Catherine)(aef). (Entered: 11/07/2019)
498 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 11/8/2019. All parties appeared telephonically. Court to issue order.(Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt, Anand Balakrishnan, Daniel Galindo, Sirine Shebaya). (Defendant Attorney Scott Stewart, Nicole Murley). (Zachary Best for plaintiffs in 18cv1832 MMM, Steven Herzog for Steering Committee, Cdr Jonathan White and Victor Suh for HHS, Catherine Weiss for legal service providers).(no document attached) (jak) (Entered: 11/08/2019)
499 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Status Hearing) held on 11/8/2019 before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 12/3/2019. Redacted Transcript Deadline set for 12/13/2019. Release of Transcript Restriction set for 2/10/2020. (akr) (Entered: 11/12/2019)
500 ORDER Following Status Conference. A status conference was held on November 8, 2019. The next Joint Status Report shall be filed on or before 3:00 p.m. on December 4, 2019. A further status conference shall be held on December 6, 2019, at 1:00 p.m. Signed by Judge Dana M. Sabraw on 11/12/2019.(aef) (Entered: 11/12/2019)
501 Minute Order. by Judge Dana M. Sabraw: Status Conference reset for 12/6/2019 02:15 PM in Courtroom 13A before Judge Dana M. Sabraw. (no document attached) (jak) (Entered: 12/03/2019)
502 STATUS REPORT by Greg Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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.

12/06/2019 12/09/2019
12/09/2019
12/10/2019 12/10/2019 01/09/2020 01/13/2020 01/15/2020 01/15/2020

Department of Health and Human Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Murley, Nicole) (aef). (Entered: 12/04/2019)
503 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 12/6/2019. All parties appeared telephonically. Further Status Conference set for 1/17/2020 01:00 PM in Courtroom 13A before Judge Dana M. Sabraw. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt, Stephen Kang, Emily Bork (Dora)). (Defendant Attorney Scott Stewart, Nicole Murley). (Steven Herzog for Steering Committee, Catherine Weiss for objectors, Zachary Best for plaintiffs in 18cv1832).(no document attached) (jak) (Entered: 12/06/2019)
504 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Status Conference) held on 12/6/2019 before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 12/30/2019. Redacted Transcript Deadline set for 1/9/2020. Release of Transcript Restriction set for 3/9/2020. (akr) (Entered: 12/09/2019)
505 Joint MOTION for Extension of Time to File Answer re 250 Amended Complaint,, by Greg Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Murley, Nicole) (aef). (Entered: 12/09/2019)
506 ORDER Following Status Conference. A status conference was held on December 6, 2019. The next Joint Status Report shall be filed on or before 3:00 p.m. on January 15, 2020. A further status conference shall be held on January 17, 2020, at 1:00 p.m. Signed by Judge Dana M. Sabraw on 12/10/2019.(aef) (Entered: 12/10/2019)
507 ORDER Granting 505 Joint Stipulated Extension of Time for Defendants to Answer Plaintiffs' Third Amended Complaint. IT IS HEREBY ORDERED that Respondent−Defendants Answer to Petitioner−Plaintiffs' Third Amended Complaint shall be due Monday, February 10, 2020. Signed by Judge Dana M. Sabraw on 12/10/2019. (aef) (Entered: 12/10/2019)
508 ORDER of USCA as to 206 Notice of Appeal to the 9th Circuit. Appellants' unopposed motion to continue the stay of appellate proceedings is granted. Appellate proceedings are stayed until January 27, 2020. On or before January 27, 2020, appellants may file a status report and motion for further relief. Failure to file a status report and motion will terminate the stay of appellate proceedings and the briefing schedule will be reset. (akr) (Entered: 01/09/2020)
509 ORDER Granting in part and Denying in part 439 Plaintiffs' Motion to Enforce Preliminary Injunction. Signed by Judge Dana M. Sabraw on 1/13/2020. (aef) (Entered: 01/13/2020)
510 STATUS REPORT of 1−15−20 by Catholic Charities Community Services of the Archdiocese of New York. (Attachments: # 1 Exhibit Survey Questions)(Weiss, Catherine) (aef). (Entered: 01/15/2020)
511 STATUS REPORT by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Murley, Nicole) (aef). (Entered: 01/15/2020)

01/17/2020
01/21/2020 01/21/2020
01/30/2020 02/07/2020
02/07/2020 02/21/2020 03/04/2020 03/06/2020

512 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 1/17/2020. All parties appeared telephonically. Status Conference set for 3/6/2020 at 1:00 PM before Judge Dana M. Sabraw.(Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt, Daniel Galindo, Stephen Kang. For Dora plaintiffs − Emily Bork). (Defendant Attorney Nicole Murley). (HHS: Jean−Michel Voltaire, Victor Suh, Commander Jonathan White. for Steering Committe − Steven Herzog. For plaintiffs in 18cv1832 MMM − Zachary Best).(no document attached) (jak) (Entered: 01/17/2020)
513 ORDER FOLLOWING STATUS CONFERENCE: A further status conference shall be held on March 6, 2020, at 1:00 p.m.. Signed by Judge Dana M. Sabraw on 1/21/2020.(sjm) (Entered: 01/21/2020)
514 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Status Conference) held on 1/17/2020 before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 2/11/2020. Redacted Transcript Deadline set for 2/21/2020. Release of Transcript Restriction set for 4/20/2020. (akr) (Entered: 01/21/2020)
515 ORDER of USCA as to 206 Notice of Appeal to the 9th Circuit. Appellants' unopposed motion to continue the stay of appellate proceedings is granted. Appellate proceedings are stayed until March 27, 2020. On or before March 27, 2020, appellants may file a status report and motion for further relief. Failure to file a status report and motion will terminate the stay of appellate proceedings and the briefing schedule will be reset. (akr) (Entered: 01/30/2020)
516 Joint MOTION for Extension of Time to File Answer re 250 Amended Complaint,, by Greg Archambeault, Alex Azar, L. Francis Cissna, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Fabian, Sarah) (aef). (Entered: 02/07/2020)
517 ORDER Granting 516 Joint Stipulated Extension of Time for Defendants to Answer Plaintiffs' Third Amended Complaint. IT IS HEREBY ORDERED that Respondent−Defendants Answer to Petitioner−Plaintiffs' Third Amended Complaint shall be due Friday, April 10, 2020. Signed by Judge Dana M. Sabraw on 2/7/2020. (aef) (Entered: 02/10/2020)
518 Minute Order by Judge Dana M. Sabraw: Granting 438 Motion Request for Overlength Brief filed by Ms. C., Ms. L.. (no document attached) (jak) (Entered: 02/21/2020)
519 STATUS REPORT Joint Report by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., 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. (Fabian, Sarah) (aef). (Entered: 03/04/2020)
520 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Hearing held on 3/6/2020. All parties appeared telephonically. Court to issue order. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt, Daniel Galindo. For Dora plaintiffs: Sirine Shebaya, Emily Bork). (Defendant Attorney Sarah Fabian). (Steven Herzog for Steering Committee, Catherine Weiss for objectors, Haley Costello−Essig and Katherine Nelson for plaintiffs in 18cv1832 MMM).(no document attached) (jak) (Entered: 03/06/2020)

 
 Case 3:18-cv-00428-DMS-MDD Document 1 Filed 02/26/18 PageID.1 Page 1 of 12

1

Lee Gelernt* Judy Rabinovitz*

Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN

2

Anand Balakrishnan* AMERICAN CIVIL LIBERTIES

DIEGO & IMPERIAL COUNTIES

3

UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT

P.O. Box 87131 San Diego, CA 92138-7131

4

125 Broad St., 18th Floor New York, NY 10004

T: (619) 398-4485 F: (619) 232-0036

5

T: (212) 549-2660 F: (212) 549-2654

bvakili@aclusandiego.org

6

lgelernt@aclu.org jrabinovitz@aclu.org

7 abalakrishnan@aclu.org

8 Attorneys for Petitioner-Plaintiff Additional counsel on next page

*Application for admission pro hac vice forthcoming

9

UNITED STATES DISTRICT COURT

10

SOUTHERN DISTRICT OF CALIFORNIA

11

12 Ms. L.,

Case No. _'1_8_C_V_0_4_2_8_D_M__S_M__D_D

13

Petitioner-Plaintiff,

v.

14

U.S. Immigration and Customs Enforcement

15 (“ICE”); U.S. Department of Homeland Security

(“DHS”); U.S. Customs and Border Protection

16 (“CBP”); U.S. Citizenship and Immigration

Services (“USCIS”); U.S. Department of Health

17 and Human Services (“HHS”); Office of

Refugee Resettlement (“ORR”); Thomas

18 Homan, Acting Director of ICE; Greg

Archambeault, San Diego Field Office Director,

19 ICE; Joseph Greene, San Diego Assistant Field

Office Director, ICE, Otay Detention Facility;

20 Kirstjen Nielsen, Secretary of DHS; Jefferson

Beauregard Sessions III, Attorney General of the

21 United States; Kevin K. McAleenan, Acting

Commissioner of CBP; L. Francis Cissna,

22 Director of USCIS; Pete Flores, San Diego Field

Director, CBP; Fred Figueroa, Warden, Otay

23 Mesa Detention Center; Alex Azar, Secretary of

the Department of Health and Human Services;

24 Scott Lloyd, Director of the Office of Refugee

Resettlement,

25

26

Respondents-Defendants.

27

PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT FOR

28

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:18-cv-00428-DMS-MDD Document 1 Filed 02/26/18 PageID.2 Page 2 of 12

1

Spencer E. Amdur (SBN 320069) AMERICAN CIVIL LIBERTIES UNION FOUNDATION

2

IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street

3

San Francisco, CA 94111 T: (415) 343-1198

4

F: (415) 395-0950 samdur@aclu.org

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

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Case 3:18-cv-00428-DMS-MDD Document 1 Filed 02/26/18 PageID.3 Page 3 of 12

1

INTRODUCTION

2

1. This is an immigration case involving the United States government’s

3 forcible separation of plaintiff from her seven (7) year-old-daughter, S.S.

4

2. Plaintiff, Ms. L., is S.S.’s mother and a native of the Democratic

5 Republic of Congo. Fearing near certain death in the Congo, Ms. L. escaped with

6 S.S.

7

3. Upon arriving at a United States Port of Entry near San Diego on

8 November 1, 2017, they presented themselves to border agents. Although their

9 native language is Lingala, they were able to explain to the border guards, in the

10 little bit of Spanish they knew, that they sought asylum.

11

4. Based on her expression of a fear of returning to Congo, Ms. L. was

12 given an initial screening interview before an asylum officer. The initial interview

13 requires the asylum officer to determine whether the applicant has a significant

14 possibility of ultimately receiving asylum. The officer determined that Ms. L. did

15 have a significant possibility of ultimately receiving asylum and therefore allowed

16 her to move on to the next stage of the long asylum process.

17

5. Since their arrival on November 1, Ms. L. and S.S. have been detained.

18

6. For the first 4 days upon arriving, Ms. L. and S.S. were detained

19 together, in what Ms. L. understood to be some sort of motel.

20

7. Ms. L. was then sent to the Otay Mesa Detention Center in the San

21 Diego area, where she remains today, nearly four months later. But her daughter

22 S.S. was taken from her.

23

8. Although S.S. is only 7 years old, she was sent half way across the

24 country to a facility in Chicago without her mother, or anyone else she knows.

25

9. When the officers separated them, Ms. L. could hear her daughter in

26 the next room frantically screaming that she wanted to remain with her mother.

27

28

1

Case 3:18-cv-00428-DMS-MDD Document 1 Filed 02/26/18 PageID.4 Page 4 of 12

1

10. No one explained to Ms. L. why they were taking her daughter away

2 from her or where her daughter was going or even when she would next see her

3 daughter.

4

11. Ms. L. did not get to speak to her daughter until approximately four

5 days later, and then only on the phone. In the nearly four months they have been

6 separated, Ms. L. has only spoken to her daughter approximately 6 times, and then

7 only by phone, and never by video hookup where they can see each other.

8

12. On the phone, S.S. cries and is fearful of what will happen to her and

9 her mother. She also worries constantly about how her mother is doing in “prison”

10 and whether she is eating and sleeping properly.

11

13. Ms. L. tries to remain positive during these calls and comfort her

12 daughter, but feels hopeless under the circumstances, and does not herself fully

13 understand much of what is happening. It was only after Ms. L. was detained more

14 than 3 months that she finally obtained legal counsel in her immigration

15 proceeding.

16

14. The reason why Ms. L. and S.S. were separated was not a finding (or

17 even any accusation) that Ms. L. was abusing or neglecting S.S., or that she is an

18 unfit parent.

19

15. Ms. L. and her daughter have been separated now for nearly 4 months.

20 Seven-year-old S.S. sits all alone in a Chicago facility, frightened and traumatized,

21 crying for her mother and not knowing when she will see her again.

22

16. Ms. L. brings this action to reunite with her daughter. There are

23 shelters that house African asylum-seekers and their children while they await the

24 final adjudication of their asylum cases. If, however, the government feels

25 compelled to continue detaining Ms. L. and S.S., it must at a minimum detain

26 them together in one of its immigration family detention centers.

27

28

2

Case 3:18-cv-00428-DMS-MDD Document 1 Filed 02/26/18 PageID.5 Page 5 of 12

1

17. The Due Process Clause of the Fifth Amendment does not permit the

2 government to forcibly take a 7-year-old child from her mother, without

3 justification or even a hearing.

4

JURISDICTION

5

18. This case arises under the Fifth Amendment to the United States

6 Constitution, federal asylum statutes, and the Administrative Procedure Act. The

7 court has jurisdiction under 28 U.S.C. § 1331 (federal question jurisdiction); 28

8 U.S.C. § 2241 (habeas jurisdiction); and Art. I., § 9, Cl. 2 of the United States

9 Constitution (“Suspension Clause”). Plaintiff and her daughter are in custody for

10 purposes of habeas jurisdiction.

11

VENUE

12

19. Venue is proper under 28 U.S.C. § 1391 because Ms. L. is detained

13 within this District and a substantial portion of the relevant facts occurred within

14 this District.

15

PARTIES

16

20. Petitioner Ms. L. is a 39-year-old citizen of the Democratic Republic

17 of the Congo (the “Congo” or “DRC”). She is the mother of S.S.

18

21. Respondent U.S. Immigration and Customs Enforcement (“ICE”) is

19 the sub-agency of DHS that is responsible for carrying out removal orders and

20 operates and oversees the Otay Mesa detention facility.

21

22. Respondent U.S. Department of Homeland Security (“DHS”) has

22 responsibility for enforcing the immigration laws of the United States.

23

23. Respondent U.S. Customs and Border Protection (“CBP”) is the sub-

24 agency of DHS that is responsible for the initial processing and detention of

25 noncitizens who are apprehended near the U.S. border.

26

24. Respondent U.S. Citizenship and Immigration Services (“USCIS”) is

27 the sub-agency of DHS that, through its Asylum Officers, conducts interviews of

28

3

Case 3:18-cv-00428-DMS-MDD Document 1 Filed 02/26/18 PageID.6 Page 6 of 12

1 certain individuals apprehended at the border to determine whether they have a

2 credible fear of persecution and should be permitted to apply for asylum.

3

25. Respondent U.S. Department of Health and Human Services (HHS) is

4 a department of the executive branch of the U.S. government.

5

26. Respondent Office of Refugee Resettlement (“ORR”) is a component

6 of HHS which provides care of and placement for unaccompanied noncitizen

7 children.

8

27. Respondent Thomas Homan is sued in his official capacity as the

9 Director of ICE, and is a legal custodian of Petitioner.

10

28. Respondent Greg Archambeault is sued in his official capacity as the

11 ICE San Diego Field Office Director, and is a legal custodian of Petitioner.

12

29. Respondent Joseph Greene is sued in his official capacity as the ICE

13 San Diego Assistant Field Office Director for the Otay Mesa Detention Center, and

14 is a legal custodian of Petitioner.

15

30. Respondent Kirstjen Nielsen, is sued in her official capacity as the

16 Secretary of the Department of Homeland Security. In this capacity, she directs

17 each of the component agencies within DHS: ICE, USCIS, and CBP. As a result,

18 Respondent Nielsen has responsibility for the administration of the immigration

19 laws pursuant to 8 U.S.C. § 1103, is empowered to grant asylum or other relief, and

20 is a legal custodian of the Petitioner.

21

31. Respondent Jefferson Beauregard Sessions III is sued in his official

22 capacity as the Attorney General of the United States. In this capacity, he has

23 responsibility for the administration of the immigration laws pursuant to 8 U.S.C. §

24 1103, oversees the Executive Office of Immigration Review, is empowered to grant

25 asylum or other relief, and is a legal custodian of the Petitioner.

26

32. Respondent L. Francis Cissna is sued in his official capacity as the

27 Director of USCIS.

28

4

Case 3:18-cv-00428-DMS-MDD Document 1 Filed 02/26/18 PageID.7 Page 7 of 12

1

33. Respondent Kevin K. McAleenan is sued in his official capacity as the

2 Acting Commissioner of CBP.

3

34. Respondent Pete Flores is sued in his official capacity as the San

4 Diego Field Director of CBP.

5

35. Respondent Fred Figueroa is sued in his official capacity as the

6 Warden of the Otay Mesa Detention Center, and is a legal custodian of Petitioner.

7

36. Respondent Alex Azar is sued in his official capacity as the Secretary

8 of the Department of Health and Human Services.

9

37. Respondent Scott Lloyd is sued in his official capacity as the Director

10 of the Office of Refugee Resettlement.

11

FACTS

12

38. Ms. L. and her daughter S.S. are seeking asylum in the United States.

13

39. Ms. L. is Catholic and sought shelter in a church until she was able to

14 escape the Congo with S.S.

15

40. Upon reaching the United States, Ms. L. and S.S. presented themselves

16 at the San Ysidro, California Port of Entry on November 1, 2017. Although their

17 native language is Lingala, they were able to communicate to the border guards that

18 they sought asylum.

19

41. Based on her expression of a fear of returning to the Congo, Ms. L.

20 was referred for an initial screening before an asylum officer, called a “credible fear

21 interview.” She passed the credible fear screening but has been detained for nearly

22 4 months in the Otay Mesa Detention Center in the San Diego area.

23

42. On or about November 5, immigration officials separated 7-year-old

24 S.S. from her mother and sent S.S. to Chicago, to be housed in a facility under the

25 auspices of the Office of Refugee Resettlement (ORR).

26

43. When S.S. was taken away from her mother, she was screaming and

27 crying, pleading with guards not to take her away from her mother.

28

5

Case 3:18-cv-00428-DMS-MDD Document 1 Filed 02/26/18 PageID.8 Page 8 of 12

1

44. Ms. L. and her daughter have been separated now for nearly four

2 months. Seven-year-old S.S. is alone in a facility in Chicago.

3

45. Ms. L. has spoken to her daughter approximately 6 times by phone and

4 is terrified she will never see her daughter again.

5

46. S.S. is scared and misses her mother, and wants to be reunited with her

6 as soon as possible. Each time S.S. is able to speak with her mother on the phone,

7 she is crying. In December, S.S. turned 7 and spent her birthday without her

8 mother.

9

47. There is overwhelming medical evidence that the separation of a

10 young child from her parent will have a devastating negative impact on the child’s

11 well-being, especially where there are other traumatic factors at work, and that this

12 damage can be permanent.

13

48. The American Association of Pediatrics has recently denounced the

14 Administration’s practice of separating immigrant children from their parents,

15 noting that: “The psychological distress, anxiety, and depression associated with

16 separation from a parent would follow the children well after the immediate period

17 of separation—even after the eventual reunification with a parent or other family.”

18

49. Every day that S.S. is separated from her mother causes her greater

19 emotional and psychological harm and could potentially lead to permanent

20 emotional trauma.

21

50. Ms. L. is distraught and depressed because of the separation from her

22 daughter. She is not eating, has lost weight, is not sleeping due to worry and

23 nightmares.

24

51. The government has no legitimate interest in separating Ms. L. and her

25 child.

26

52. There has been no evidence, or even accusation, that S.S. was abused

27 or neglected by Ms. L.

28

6

Case 3:18-cv-00428-DMS-MDD Document 1 Filed 02/26/18 PageID.9 Page 9 of 12

1

53. There is no evidence that Ms. L. is an unfit parent or that she is not

2 acting in the best interests of her child.

3

54. Because she passed her credible fear interview, Ms. L. is eligible for

4 release from detention on parole, which would enable her to be reunited with her

5 daughter. However, the San Diego Field Office has a policy and practice of

6 refusing to grant parole to detained asylum seekers such as Ms. L., notwithstanding

7 an ICE Parole Directive that specifically favors their release.

8

55. Under current DHS practice, numerous other asylum-seeking parents

9 and their young children are being separated upon arrival in the United States.

10

56. Prior Administrations detained families, but they did not have a

11 practice of forcibly separating fit parents from their young children.

12

57. According to reports, the government may soon adopt a formal

13 national policy of separating parents from their children.

14

58. If S.S. and her mother are both released from detention, there are non-

15 governmental shelters that specialize in housing and caring for African asylum

16 seekers.

17

59. If the government refuses to release them, there are government-

18 operated family detention centers where S.S. and her mother can be housed

19 together.

20

CAUSES OF ACTION

21

COUNT I

22

(Violation of Due Process)

23

60. All of the foregoing allegations are repeated and realleged as though

24 fully set forth herein.

25

61. The Due Process Clause of the Fifth Amendment applies to all

26 “persons” on United States soil and thus applies to Ms. L. and her daughter.

27

62. S.S. and her mother have a liberty interest under the Due Process

28 Clause in remaining together as a family.

7

Case 3:18-cv-00428-DMS-MDD Document 1 Filed 02/26/18 PageID.10 Page 10 of 12

1

63. The separation of S.S. and her mother violates substantive due process

2 because it furthers no legitimate purpose, not to mention a compelling

3 governmental interest.

4

64. The separation of S.S. and her mother also violates procedural due

5 process because it was undertaken without any hearing.

6

COUNT II

7

(Violation of Asylum Statute)

8

65. All of the foregoing allegations are repeated and realleged as though

9 fully set forth herein.

10

66. Under United States law, noncitizens with a well-founded fear of

11 persecution shall have the opportunity to obtain asylum in the United States. 8

12 U.S.C. § 1158.

13

67. Defendants’ separation of Ms. L. from her daughter violates federal

14 asylum law because it impedes their ability to pursue their asylum claims.

15

COUNT III

16

(Administrative Procedure Act—Arbitrary and Capricious Practice)

17

68. All of the foregoing allegations are repeated and realleged as though

18 fully set forth herein.

19

69. The APA prohibits agency action that is arbitrary and capricious.

20

70. Defendants’ separation of Ms. L. from her daughter without a

21 legitimate justification is arbitrary and capricious and accordingly violates the APA.

22 5 U.S.C. § 706.

23

COUNT IV

24

(Administrative Procedure Act—Failure to Follow

and Unlawful Rescission of the ICE Parole Directive)

25 71. All of the foregoing allegations are repeated and realleged as though

26 fully set forth herein.

27 72. Defendants have detained Ms. L. without considering her for release

28 on parole as required by ICE’s own Parole Directive

8

Case 3:18-cv-00428-DMS-MDD Document 1 Filed 02/26/18 PageID.11 Page 11 of 12

1

73. The San Diego Field Office has de facto rescinded the Parole Directive

2 at the Otay Mesa Detention Facility without providing any reasoned justification—

3 or, indeed, any justification at all—for such rescission.

4

74. If Ms. L. were paroled, her daughter could be released to her.

5

75. Defendants’ actions, which have prevented Ms. L. from reuniting with

6 her daughter, are arbitrary and capricious and contrary to law, in violation of the

7 APA. 5 U.S.C. § 706.

8

9

PRAYER FOR RELIEF

10

Petitioner-Plaintiff requests that the Court enter a judgment against

11 Defendants and award the following:

12

A. Declare the separation of Ms. L. and her daughter unlawful;

13

B. Preliminarily and permanently enjoin defendants from continuing to

14 separate Ms. L. and her daughter;

15

C. Order defendants either to release Ms. L. and her daughter, or to detain

16 them together;

17

D. Enjoin defendants from removing Ms. L. from the country until she is

18 reunited with her daughter, in the event that Ms. L. is not granted asylum and

19 permitted to remain in the United States;

20

E. Require defendants to pay reasonable attorneys’ fees and costs;

21

F. Order all other relief that is just and proper.

22

23

24

25

26

27

28

9

Case 3:18-cv-00428-DMS-MDD Document 1 Filed 02/26/18 PageID.12 Page 12 of 12

1 Dated: February 26, 2018

Respectfully Submitted,

2 Lee Gelernt*

/s/Bardis Vakili Bardis Vakili (SBN 247783)

3

Judy Rabinovitz* Anand Balakrishnan*

ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES

4

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

P.O. Box 87131 San Diego, CA 92138-7131

5

IMMIGRANTS’ RIGHTS PROJECT 125 Broad St., 18th Floor

T: (619) 398-4485 F: (619) 232-0036

6

New York, NY 10004 T: (212) 549-2660

bvakili@aclusandiego.org

7

F: (212) 549-2654 lgelernt@aclu.org

8

jrabinovitz@aclu.org abalakrishnan@aclu.org

9 Spencer E. Amdur (SBN 320069)

10

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

11

IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street

12

San Francisco, CA 94111 T: (415) 343-1198

13

F: (415) 395-0950 samdur@aclu.org

14

15

16

17

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23

24

25

26

27

28

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 Case 3:18-cv-00428-DMS-MDD Document 32 Filed 03/09/18 PageID.616 Page 1 of 15

1

Lee Gelernt* Judy Rabinovitz*

Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN

2

Anand Balakrishnan* AMERICAN CIVIL LIBERTIES

DIEGO & IMPERIAL COUNTIES P.O. Box 87131

3

UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT

San Diego, CA 92138-7131 T: (619) 398-4485

4

125 Broad St., 18th Floor New York, NY 10004

F: (619) 232-0036 bvakili@aclusandiego.org

5

T: (212) 549-2660 F: (212) 549-2654

6

lgelernt@aclu.org jrabinovitz@aclu.org

7 abalakrishnan@aclu.org

8 Attorneys for Petitioners-Plaintiffs

*Admitted Pro Hac Vice

Additional counsel on next page

9

UNITED STATES DISTRICT COURT

10

SOUTHERN DISTRICT OF CALIFORNIA

11

12 Ms. L. and Ms. C.,

Case No. 18-cv-00428-DMS-MDD

13 v.

Petitioners-Plaintiffs,

14 U.S. Immigration and Customs Enforcement

Date Filed: March 9, 2018

15

(“ICE”); U.S. Department of Homeland Security (“DHS”); U.S. Customs and Border Protection

16

(“CBP”); U.S. Citizenship and Immigration Services (“USCIS”); U.S. Department of Health

AMENDED COMPLAINT FOR DECLARATORY AND

17

and Human Services (“HHS”); Office of Refugee Resettlement (“ORR”); Thomas

INJUNCTIVE RELIEF WITH CLASS ACTION

18

Homan, Acting Director of ICE; Greg Archambeault, San Diego Field Office Director,

ALLEGATIONS

19

ICE; Joseph Greene, San Diego Assistant Field Office Director, ICE; Adrian P. Macias, El Paso

CLASS ACTION

20

Field Director, ICE; Frances M. Jackson, El Paso Assistant Field Office Director, ICE; Kirstjen

21

Nielsen, Secretary of DHS; Jefferson Beauregard Sessions III, Attorney General of the United

22

States; L. Francis Cissna, Director of USCIS; Kevin K. McAleenan, Acting Commissioner of

23

CBP; Pete Flores, San Diego Field Director, CBP; Hector A. Mancha Jr., El Paso Field

24

Director, CBP; Alex Azar, Secretary of the Department of Health and Human Services;

25

Scott Lloyd, Director of the Office of Refugee Resettlement,

26

27

Respondents-Defendants.

28

Case 3:18-cv-00428-DMS-MDD Document 32 Filed 03/09/18 PageID.617 Page 2 of 15

1 Spencer E. Amdur (SBN 320069)

2

AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT

3

39 Drumm Street San Francisco, CA 94111

4

T: (415) 343-1198 F: (415) 395-0950

5 samdur@aclu.org

6

7

8

9

10

11

12

13

14

15

16

17

18

19

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25

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27

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Case 3:18-cv-00428-DMS-MDD Document 32 Filed 03/09/18 PageID.618 Page 3 of 15

1

INTRODUCTION

2

1. This case challenges the United States government’s forcible

3 separation of parents from their young children for no legitimate reason and

4 notwithstanding the threat of irreparable psychological damage that separation has

5 been universally recognized to cause young children.

6

2. Plaintiff Ms. L. is the mother of a seven (7) year-old daughter, who

7 was ripped away from her, and then sent halfway across the country to be detained

8 alone. Plaintiff Ms. C. is the mother of a fourteen (14) year-old son, who was also

9 forcibly separated from his mother and detained more than a thousand miles away.

10

3. Ms. L. and Ms. C. bring this action to have the government reunite

11 them with their young children, from whom they have been separated now for more

12 than four and five months respectively.

13

4. They also bring this action on behalf of the hundreds of other parents

14 whom the government has forcibly separated from their children and continues to

15 separate. Like Ms. L. and Ms. C., almost all of these individuals have fled

16 persecution and are seeking asylum in the United States. Without any assertions of

17 abuse, neglect, or parental unfitness, and with no hearings of any kind, the

18 government is detaining these young children, alone and frightened, in facilities

19 often thousands of miles from their parents.

20

5. Forced separation from parents causes severe trauma to young

21 children, especially those who are already traumatized and are fleeing persecution

22 in their home countries. The resulting cognitive and emotional damage can be

23 permanent.

24

6. Defendants have ample ways to keep Plaintiffs together with their

25 children. There are shelters that house families (including asylum-seekers) while

26 they await the final adjudication of their immigration cases. If, however, the

27 government feels compelled to continue detaining these parents and young children,

28

1

Case 3:18-cv-00428-DMS-MDD Document 32 Filed 03/09/18 PageID.619 Page 4 of 15

1 it must at a minimum detain them together in one of its immigration family

2 detention centers.

3

7. The Due Process Clause of the Fifth Amendment does not permit the

4 government to forcibly take young children from their parents, without justification

5 or even a hearing. That separation also violates the asylum statutes, which

6 guarantee a meaningful right to apply for asylum, and the Administrative Procedure

7 Act (APA), which prohibits arbitrary government action.

8

JURISDICTION

9

8. This case arises under the Fifth Amendment to the United States

10 Constitution, federal asylum statutes, and the APA. The court has jurisdiction

11 under 28 U.S.C. § 1331 (federal question jurisdiction); 28 U.S.C. § 2241 (habeas

12 jurisdiction); and Art. I., § 9, cl. 2 of the United States Constitution (“Suspension

13 Clause”). Plaintiffs are in custody for purposes of habeas jurisdiction.

14

VENUE

15

9. Venue is proper under 28 U.S.C. § 1391 because Ms. L. was detained

16 within this District when this action commenced and a substantial portion of the

17 relevant facts occurred within this District, including the separation of Ms. L. and

18 her daughter.

19

PARTIES

20

10. Plaintiff Ms. L. is a citizen of the Democratic Republic of the Congo

21 (the “Congo” or “DRC”). She is the mother of 7 year-old S.S.

22

11. Plaintiff Ms. C. is a citizen of Brazil. She is the mother of 14 year-old

23 J.

24

12. Defendant U.S. Immigration and Customs Enforcement (“ICE”) is the

25 sub-agency of DHS that is responsible for carrying out removal orders and

26 overseeing immigration detention.

27

13. Defendants U.S. Department of Homeland Security (“DHS”) has

28 responsibility for enforcing the immigration laws of the United States.

2

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1

14. Defendant U.S. Customs and Border Protection (“CBP”) is the sub-

2 agency of DHS that is responsible for the initial processing and detention of

3 noncitizens who are apprehended near the U.S. border.

4

15. Defendant U.S. Citizenship and Immigration Services (“USCIS”) is

5 the sub-agency of DHS that, through its Asylum Officers, conducts interviews of

6 certain individuals apprehended at the border to determine whether they have a

7 credible fear of persecution and should be permitted to apply for asylum.

8

16. Defendant U.S. Department of Health and Human Services (HHS) is a

9 department of the executive branch of the U.S. government which has been

10 delegated with authority over “unaccompanied” noncitizen children.

11

17. Defendant Office of Refugee Resettlement (“ORR”) is the component

12 of HHS which provides care of and placement for “unaccompanied” noncitizen

13 children.

14

18. Defendant Thomas Homan is sued in his official capacity as the

15 Director of ICE, and is a legal custodian of Plaintiffs.

16

19. Defendant Greg Archambeault is sued in his official capacity as the

17 ICE San Diego Field Office Director, and is a legal custodian of Plaintiff L.

18

20. Defendant Joseph Greene is sued in his official capacity as the ICE

19 San Diego Assistant Field Office Director for the Otay Mesa Detention Center, and

20 is a legal custodian of Plaintiff L.

21

21. Defendant Adrian P. Macias is sued in his official capacity as the ICE

22 El Paso Field Office Director, and is a legal custodian of Plaintiff C.

23

22. Defendant Frances M. Jackson is sued in his official capacity as the

24 ICE El Paso Assistant Field Office Director for the West Texas Detention Facility,

25 and is a legal custodian of Plaintiff C.

26

23. Defendant Kirstjen Nielsen, is sued in her official capacity as the

27 Secretary of the Department of Homeland Security. In this capacity, she directs

28 each of the component agencies within DHS: ICE, USCIS, and CBP. As a result,

3

Case 3:18-cv-00428-DMS-MDD Document 32 Filed 03/09/18 PageID.621 Page 6 of 15

1 Respondent Nielsen has responsibility for the administration of the immigration

2 laws pursuant to 8 U.S.C. § 1103, is empowered to grant asylum or other relief, and

3 is a legal custodian of the Plaintiffs.

4

24. Defendant Jefferson Beauregard Sessions III is sued in his official

5 capacity as the Attorney General of the United States. In this capacity, he has

6 responsibility for the administration of the immigration laws pursuant to 8 U.S.C. §

7 1103, oversees the Executive Office of Immigration Review, is empowered to grant

8 asylum or other relief, and is a legal custodian of the Plaintiffs.

9

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

10 Director of USCIS.

11

26. Defendant Kevin K. McAleenan is sued in his official capacity as the

12 Acting Commissioner of CBP.

13

27. Defendant Pete Flores is sued in his official capacity as the San Diego

14 Field Director of CBP.

15

28. Defendant Hector A. Mancha Jr. is sued in his official capacity as the

16 El Paso Field Director of CBP.

17

29. Defendant Alex Azar is sued in his official capacity as the Secretary of

18 the Department of Health and Human Services.

19

30. Defendant Scott Lloyd is sued in his official capacity as the Director of

20 the Office of Refugee Resettlement.

21

FACTS

22

31. Over the past year, the government has separated hundreds of migrant

23 families for no legitimate purpose.

24

32. Almost all of these migrant families fled persecution and are seeking

25 asylum. Although there are no allegations that the parents are unfit or abusing their

26 children in any way, the government has forcibly separated them from their young

27 children and detained the children, often far away, in facilities for “unaccompanied”

28 minors.

4

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1

33. There is overwhelming medical evidence that the separation of a

2 young child from his or her parent will have a devastating negative impact on the

3 child’s well-being, especially where there are other traumatic factors at work, and

4 that this damage can be permanent.

5

34. The American Association of Pediatrics has recently denounced the

6 Administration’s practice of separating migrant children from their parents, noting

7 that: “The psychological distress, anxiety, and depression associated with

8 separation from a parent would follow the children well after the immediate period

9 of separation—even after the eventual reunification with a parent or other family.”

10

33. Prior Administrations detained migrant families, but did not have a

11 practice of forcibly separating fit parents from their young children.

12

34. According to reports, the government may soon adopt a formal

13 national policy of separating migrant families, and placing the children in

14 government facilities for unaccompanied minors.

15

35. There are non-governmental shelters that specialize in housing and

16 caring for families—including asylum seeking families—while their immigration

17 applications are adjudicated.

18

36. There are also government-operated family detention centers where

19 parents can be housed together with their children, should the government decide

20 not to release them.

21

37. Ms. L. and her daughter S.S. are one of the many families that have

22 recently been separated by the government.

23

38. Ms. L. and her daughter are seeking asylum in the United States.

24

39. Ms. L. is Catholic and sought shelter in a church until she was able to

25 escape the Congo with S.S.

26

40. Upon reaching the United States, Ms. L. and S.S. presented themselves

27 at the San Ysidro, California Port of Entry on November 1, 2017. Although their

28

5

Case 3:18-cv-00428-DMS-MDD Document 32 Filed 03/09/18 PageID.623 Page 8 of 15

1 native language is Lingala, they were able to communicate to the border guards that

2 they sought asylum.

3

41. Based on her expression of a fear of returning to the Congo, Ms. L.

4 was referred for an initial screening before an asylum officer, called a “credible fear

5 interview.” She subsequently passed the credible fear screening but, until March 6,

6 2018, remained detained in the Otay Mesa Detention Center in the San Diego area.

7

42. On or about November 5, immigration officials forcibly separated 7-

8 year-old S.S. from her mother and sent S.S. to Chicago. There she was housed in a

9 detention facility for “unaccompanied” minors run by the Office of Refugee

10 Resettlement (ORR).

11

43. When S.S. was taken away from her mother, she was screaming and

12 crying, pleading with guards not to take her away from her mother. That was the

13 last time Ms. L. saw her daughter. During the few times Ms. L. was able to speak

14 to her daughter on the phone, her daughter was crying and scared. Although her

15 daughter was terrified for herself, she was also frightened for her mother, always

16 asking how her mother was doing in “prison.”

17

44. Ms. L. and her daughter have been separated now for more than four

18 months. Seven-year-old S.S. is alone in a facility in Chicago.

19

45. While detained, Ms. L. spoke to her daughter approximately 6 times

20 by phone, never by video. For months she has been terrified that she would never

21 see her daughter again.

22

46. S.S. is scared and misses her mother, and wants to be reunited with her

23 as soon as possible. In December, S.S. turned 7 and spent her birthday in the

24 Chicago facility, without her mother.

25

47. Every day that S.S. is separated from her mother causes her greater

26 emotional and psychological harm and could potentially lead to permanent

27 emotional trauma.

28

6

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1

48. Ms. L. is distraught and depressed because of the separation from her

2 daughter. In detention, she did not eat properly, lost weight, and was not sleeping

3 due to worry and nightmares.

4

49. In one moment of extreme despair and confusion, Ms. L. told an

5 immigration judge that she wanted to withdraw her application for asylum,

6 realizing her mistake only a few days later. Her application to reopen her asylum

7 case is pending before the immigration judge.

8

50. The government has no legitimate interest in separating Ms. L. and her

9 child.

10

51. There has been no evidence, or even accusation, that S.S. was abused

11 or neglected by Ms. L.

12

52. There is no evidence that Ms. L. is an unfit parent or that she is not

13 acting in the best interests of her child.

14

53. After Ms. L. filed this lawsuit and moved for a preliminary injunction,

15 Defendants abruptly released her from custody on March 6, 2018. Defendants

16 informed her that she would be released mere hours in advance, with no

17 arrangements for where she would stay. They have not reunited her with her

18 daughter, who remains detained at an ORR facility halfway across the country.

19

54. Ms. C. and her 14 year-old son, J., are another one of the families who

20 have been separated by the government. Like Ms. L. and her daughter, Ms. C. and

21 her son are seeking asylum in the United States.

22

55. Ms. C. and J. fled Brazil and came to the United States to seek asylum.

23 A few feet after Ms. C. entered the United States, a border guard approached her,

24 and she explained that she was seeking asylum. Ms. C. subsequently passed a

25 credible fear interview, and was put in removal proceedings, where she is applying

26 for asylum.

27

28

7

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1

56. Despite having communicated her fear of persecution to border guards,

2 the government prosecuted Ms. C. for entering the country illegally, took her son J.

3 away from her, and sent him to a facility for “unaccompanied” children in Chicago.

4

57. The government continued to separate Ms. C. from her son even after

5 she completed serving her 25-day criminal misdemeanor sentence on September 22,

6 2017, and was sent to an immigration detention facility, the El Paso Processing

7 Center. In early January 2018, she was transferred again, to another immigration

8 facility, the West Texas Detention Facility (also known as Sierra Blanca), but still

9 not reunited with her son.

10

58. Ms. C. has not seen her son since he was taken from her in the more

11 than 5 months since she was placed into an immigration detention facility. She is

12 desperate to be reunited with him. She worries about him constantly and does not

13 know when she will be able to see him. They have only spoken on the phone a

14 handful of times since they were forcibly separated by Defendants.

15

59. J. has been having a difficult time emotionally since being separated

16 from his mother.

17

60. Every day that J. is separated from his mother causes him greater

18 emotional and psychological harm and could potentially lead to permanent

19 emotional trauma.

20

61. The government has no legitimate interest in separating Ms. C. and her

21 child.

22

62. There has been no evidence, or even accusation, that J. was abused or

23 neglected by Ms. C.

24

63. There is no evidence that Ms. C. is an unfit parent or that she is not

25 acting in the best interests of her child.

26

27

28

8

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1

CLASS ALLEGATIONS

2

64. Plaintiffs bring this action under Federal Rule of Civil Procedure

3 23(b)(2) on behalf of themselves and a nationwide class of all other persons

4 similarly situated.

5

65. Plaintiffs seek to represent the following nationwide class:

6

All adult parents nationwide who (1) are or will be detained in immigration

7

custody by the Department of Homeland Security, and (2) have a minor child

who is or will be separated from them by DHS and detained in ORR custody,

8

absent a demonstration in a hearing that the parent is unfit or presents a

9

danger to the child.

10

66. Plaintiffs Ms. L. and Ms. C. are each adequate representatives of the

11 proposed class.

12

67. The proposed class satisfies the requirements of Rule 23(a)(1) because

13 the class is so numerous that joinder of all members is impracticable.

14

68. There are hundreds of parents that fit within the class and many more

15 that will become separated from their young children.

16

69. The class meets the commonality requirements of Federal Rule of

17 Civil Procedure 23(a)(2). The members of the class are subject to a common

18 practice: forcibly separating detained parents from their minor children. By

19 definition, all class members have experienced that practice, and none has been

20 given an adequate hearing regarding the separation. The lawsuit raises numerous

21 questions of law common to members of the proposed class, including: whether

22 Defendants’ family separation practice violates class members’ substantive due

23 process right to family integrity; whether the practice violates class members’

24 procedural due process rights; whether the practice violates the federal asylum

25 statute; and whether these separations are arbitrary and capricious under the APA.

26

70. The proposed class meets the typicality requirements of Federal Rule

27 of Civil Procedure 23(a)(3), because the claims of the representative Plaintiffs are

28 typical of the claims of the class. Ms. L., Ms. C., and the proposed class members

9

Case 3:18-cv-00428-DMS-MDD Document 32 Filed 03/09/18 PageID.627 Page 12 of 15

1 are all individuals who have had or will have their children forcibly taken away

2 from them despite there being no proven allegations of abuse, neglect, or any other

3 danger or unfitness. Plaintiffs and the proposed class also share the same legal

4 claims, which assert the same substantive and procedural rights under the Due

5 Process Clause, the asylum statute, and the APA.

6

71. The proposed class meets the adequacy requirements of Federal Rule

7 of Civil Procedure 23(a)(4). The representative Plaintiffs seek the same relief as

8 the other members of the class—namely, an order that they be reunified with their

9 children, whether through release or in family detention facilities. In defending

10 their own rights, Ms. L. and Ms. C. will defend the rights of all proposed class

11 members fairly and adequately.

12

72. The proposed class is represented by counsel from the American Civil

13 Liberties Union Immigrants’ Rights Project and the American Civil Liberties Union

14 of San Diego and Imperial Counties. Counsel have extensive experience litigating

15 class action lawsuits and other complex cases in federal court, including civil rights

16 lawsuits on behalf of noncitizens.

17

73. The members of the class are readily ascertainable through

18 Defendants’ records.

19

74. The proposed class also satisfies Federal Rule of Civil Procedure

20 23(b)(2). Defendants have acted on grounds generally applicable to the class by

21 unlawfully separating parents from their young children. Injunctive and declaratory

22 relief is thus appropriate with respect to the class as a whole.

23

24

25

26

27

28

10

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1

CAUSES OF ACTION

2

COUNT I

3

(Violation of Due Process)

4

75. All of the foregoing allegations are repeated and realleged as though

5 fully set forth herein.

6

76. The Due Process Clause of the Fifth Amendment applies to all

7 “persons” on United States soil and thus applies to Ms. L. and her daughter, Ms. C.

8 and her son, and all proposed class members.

9

77. Ms. L., Ms. C., their children, and all class members have a liberty

10 interest under the Due Process Clause in remaining together as a family.

11

78. The separation of the class members from their children violates

12 substantive due process because it furthers no legitimate purpose, not to mention a

13 compelling governmental interest.

14

79. The separation of the class members from their children also violates

15 procedural due process because it was undertaken without any hearing.

16

COUNT II

17

(Administrative Procedure Act—Arbitrary and Capricious Practice)

18

80. All of the foregoing allegations are repeated and re-alleged as though

19 fully set forth herein.

20

81. The APA prohibits agency action that is arbitrary and capricious.

21

82. Defendants’ separation of Ms. L., Ms. C., and the other class members

22 from their children without a legitimate justification is arbitrary and capricious and

23 accordingly violates the APA. 5 U.S.C. § 706.

24

COUNT III

25

(Violation of Asylum Statute)

26

83. All of the foregoing allegations are repeated and re-alleged as though

27 fully set forth herein.

28

11

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1

84. Under United States law, noncitizens with a well-founded fear of

2 persecution shall have the opportunity to obtain asylum in the United States. 8

3 U.S.C. § 1158.

4

85. Defendants’ separation of Ms. L., Ms. C., and the other asylum-

5 seeking class members from their children violates federal asylum law, because it

6 impedes their ability to pursue their asylum claims.

7

PRAYER FOR RELIEF

8

Petitioners-Plaintiffs request that the Court enter a judgment against

9 Respondents-Defendants and award the following relief:

10

A. Certify a class of all adult parents nationwide who (1) are or will be

11

detained in immigration custody by the Department of Homeland

12

Security, and (2) have a minor child who is or will be separated from

13

them by DHS and detained in ORR custody, absent a demonstration in a

14

hearing that the parent is unfit or presents a danger to the child.

15

B. Name Ms. L. and Ms. C. as representatives of the class, and appoint

16

Petitioners’ counsel as class counsel;

17

C. Declare the separation of Ms. L., Ms. C., and the other class members

18

from their children unlawful;

19

D. Preliminarily and permanently enjoin Defendants from continuing to

20

separate Ms. L., Ms. C., and the other class members from their children;

21

E. Order defendants either to release class members along with their

22

children, or to detain them together in the same facility;

23

F. Enjoin defendants from removing Ms. L., Ms. C., and the other class

24

members from the country until they are reunited with their children, in

25

the event that they are not permitted to remain in the United States;

26

G. Require Defendants to pay reasonable attorneys’ fees and costs;

27

H. Order all other relief that is just and proper.

28

12

Case 3:18-cv-00428-DMS-MDD Document 32 Filed 03/09/18 PageID.630 Page 15 of 15

1 Dated: March 9, 2018

Respectfully Submitted,

2 Bardis Vakili (SBN 247783)

/s/Lee Gelernt Lee Gelernt*

3

ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES

Judy Rabinovitz* Anand Balakrishnan*

4

P.O. Box 87131 San Diego, CA 92138-7131

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

5

T: (619) 398-4485 F: (619) 232-0036

IMMIGRANTS’ RIGHTS PROJECT 125 Broad St., 18th Floor

6 bvakili@aclusandiego.org

New York, NY 10004 T: (212) 549-2616

7

Spencer E. Amdur (SBN 320069) AMERICAN CIVIL LIBERTIES

F: (212) 549-2654 lgelernt@aclu.org

8

UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT

jrabinovitz@aclu.org abalakrishnan@aclu.org

9

39 Drumm Street San Francisco, CA 94111

10

T: (415) 343-1198 F: (415) 395-0950

11 samdur@aclu.org

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 Ms. L.; et al.,

Case No.: 18cv0428 DMS (MDD)

12

Petitioners-Plaintiffs,

13 v.

14 U.S Immigration and Customs
15 Enforcement (“ICE”); et al., Respondents-Defendants.
16

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS

17

18

This case involves the Government’s alleged practice of separating migrant parents

19 and children held in immigration detention without a showing that the parent is unfit or

20 presents a danger to the minor child. According to Plaintiffs, prior administrations detained

21 migrant families, but did not have a practice of forcibly separating fit parents from their

22 young children. Plaintiffs allege there are reports the Government may soon adopt a formal

23 national policy of separating migrant families, and placing the children in government

24 facilities for “unaccompanied minors” to deter others from coming to the United States.

25 The Government denies it has a family separation policy and concedes such a policy would

26 be “antithetical to the child welfare values” imposed on government actors responsible for

27 the care and custody of migrant children who are separated from their parents as a result of

28 the Government’s enforcement of criminal and immigration law. Instead, the Government

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1 asserts it considers each case on the facts available at the time a placement decision is

2 made, and that when separation occurs, it is the result of the Government taking lawful

3 immigration enforcement and detention actions.

4

Plaintiffs Ms. L. and Ms. C. allege immigration officials separated them from their

5 minor children without determining they were unfit or presented a danger to their children,

6 and that hundreds of other migrant families have been subjected to the same treatment.

7 Plaintiffs, on behalf of themselves and putative class members, allege the conduct at issue

8 violates their due process rights under the Fifth Amendment to the United States

9 Constitution, the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, and the Asylum

10 Statute, 8 U.S.C. § 1158.

11

The Government’s alleged practice has garnered the attention of numerous groups

12 interested in child advocacy and welfare, immigration law and constitutional law, as

13 evidenced by the amicus briefs filed in this case. Whether there is such a practice, and if

14 so, whether that practice is lawful, is not presently before the Court. The only issues

15 presently before the Court are whether this Court has jurisdiction to hear the case, whether

16 this Court is the proper venue for the case, and whether Plaintiffs Ms. L. and Ms. C. have

17 alleged sufficient facts and a sufficient legal basis to state a “plausible claim for relief.”

18 Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). As explained below, the Court finds it has

19 jurisdiction over the case and venue is proper in this Court. The Court also finds Plaintiffs

20 have set forth sufficient facts and a sufficient legal basis to state a claim that separation

21 from their children while they are contesting their removal and without a determination

22 they are unfit or present a danger to their children violates due process. The Court further

23 finds that Plaintiffs have failed to state a claim under the APA or the Asylum Statute.

24

I.

25

FACTUAL BACKGROUND

26

Plaintiff Ms. L. is a citizen of the Democratic Republic of the Congo. She is

27 Catholic. On November 1, 2017, she and her then 6-year-old daughter S.S. arrived at the

28 San Ysidro Port of Entry seeking asylum based on religious persecution. Ms. L. and her

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1 daughter were detained by immigration officials at the border, and housed together until

2 November 5, 2017, at which time immigration officials “forcibly separated” S.S. from her

3 mother and sent S.S. to Chicago—over a thousand miles away—where “she was housed in

4 a detention facility for ‘unaccompanied’ minors run by the Office of Refugee Resettlement

5 [ORR].” (Am. Compl. ¶ 42.) “When S.S. was taken away from her mother, she was

6 screaming and crying, pleading with guards not to take her away from her mother.” (Id. ¶

7 43.) During their detention and while they were separated, Ms. L. was able to speak with

8 her daughter only “approximately 6 times by phone, never by video.” (Id. ¶ 44.) Each

9 time they spoke, S.S. “was crying and scared.” (Id. ¶ 43.) Ms. L. was “terrified that she

10 would never see her daughter again.” (Id. ¶ 45.)

11

After being separated from her daughter for nearly four months, Ms. L. filed the

12 present case against numerous governmental entities and individual actors.1 Five days after

13 filing the original Complaint, Ms. L. filed a motion for preliminary injunction and motion

14 to expedite hearing of the motion. Three days later, Ms. L. was “paroled,” i.e., released,

15 from ICE detention. (See infra n.3 (discussing removal proceedings, asylum and parole)).

16 In response to Ms. L.’s motion to expedite hearing of her motion for preliminary injunction,

17 the Government stated it was attempting to “expeditiously resolve current doubts about

18 whether [Ms. L.] is the mother of S.S. to the satisfaction of [ORR].” (Opp’n to Mot. to

19 Expedite at 1.) That effort involved ORR taking a DNA saliva sample (or swab) from S.S.,

20 which it did on March 7, 2018. On March 8, 2018, the Court held a telephonic status

21

22

23 1 Defendants include the U.S. Immigration and Customs Enforcement (“ICE”), U.S. Department of Homeland Security (“DHS”), U.S. Customs and Border Protection
24 (“CBP”), U.S. Citizenship and Immigration Services (“USCIS”), U.S. Department of
25 Health and Human Services (“HHS”), a non-law enforcement agency, ORR, a sub-agency of HHS, and a host of individuals, including the Attorney General of the United States.
26 The Attorney General is named in his official capacity as he has responsibility for the
27 administration of the immigration laws pursuant to 8 U.S.C. § 1103, oversees the Executive Office of Immigration Review, is empowered to grant asylum or other relief, and is a legal
28 custodian of Plaintiffs. (Id. ¶ 24.)

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1 conference with counsel, and thereafter ordered the parties to collect a DNA sample from

2 Ms. L. and to complete the DNA testing by March 14, 2018. The testing was completed

3 on March 12, 2018, and established maternity. Four days later, and more than four months

4 after they were separated, S.S. was released to her mother after ORR determined Ms. L.

5 was capable of providing for S.S.’s physical and mental well-being. (See infra n.2

6 (discussing child welfare provisions relating to immigrant children)).

7

While the DNA testing was underway, Ms. L. filed an Amended Complaint that

8 realleges the claims in the original Petition/Complaint with minor modifications, and adds

9 a new Plaintiff, Ms. C. Ms. C. is a citizen of Brazil, and unlike Ms. L., she crossed into

10 the United States with her 14-year-old son J. “between ports of entry[.]” (Mem. of P. &

11 A. in Supp. of Mot. to Dismiss at 5.) Ms. C. and her son were apprehended by U.S. Border

12 Patrol, and Ms. C. explained to the agent they were seeking asylum. (Am. Compl. ¶ 55.)

13 Ms. C. was prosecuted for entering the country illegally, and J. was taken away from her

14 and sent to an ORR facility in Chicago—hundreds of miles away—for “unaccompanied”

15 children. (Id. ¶ 56.) Ms. C. was convicted of misdemeanor illegal entry and served 25

16 days in federal custody. (Id. ¶ 57.) She completed her sentence on September 22, 2017,

17 and was then taken into ICE detention for removal proceedings and consideration of her

18 asylum claim. She was first held at the El Paso Processing Center before being transferred

19 to the West Texas Detention Center. (Id.) Ms. C. was released on bond from ICE detention

20 on April 9, 2018, after the Amended Complaint was filed, but she has yet to be reunited

21 with her son. During the five months she was detained, Ms. C. did not see her son, and

22 they spoke on the phone only “a handful of times[.]” (Id. ¶ 58.) Ms. C. “is desperate” to

23 be reunited with her son, “worries about him constantly and does not know when she will

24 be able to see him.” (Id.) “J. has been having a difficult time emotionally since being

25 separated from his mother.” (Id. ¶ 59.) Indeed, “[e]very day that J. is separated from his

26 mother causes him greater emotional and psychological harm and could potentially lead to

27 permanent emotional trauma.” (Id. ¶ 60.) Plaintiffs allege “[t]he government has no

28 legitimate interest in separating Ms. C. and her child[,]” there has been “no evidence, or

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1 even accusation, that J. was abused or neglected by Ms. C.[,]” and “[t]here is no evidence

2 that Ms. C. is an unfit parent or that she is not acting in the best interests of her child.” (Id.

3 ¶¶ 61-63.)

4

Together, Ms. L. and Ms. C. seek to represent the following nationwide class on all

5 of their claims for relief:

6

All adult parents nationwide who (1) are or will be detained in immigration

7

custody by the Department of Homeland Security, and (2) have a minor child who is or will be separated from them by DHS and detained in ORR custody,

8

absent a demonstration in a hearing that the parent is unfit or presents a danger

9

to the child.

10 (Id. ¶ 65.) In their Amended Complaint, Plaintiffs seek, among other things, a preliminary

11 and permanent injunction preventing Defendants from continuing to separate them and the

12 other class members from their children, and an order requiring Defendants to either

13 “release class members along with their children, or to detain them together in the same

14 facility[.]” (Id. at 12.)

15

Three motions are pending before the Court: Defendants’ motion to dismiss, and

16 Plaintiffs’ motion for class certification and motion for classwide preliminary injunction.

17 These motions came on for hearing on May 4, 2018. Lee Gelernt, Anand Balakrishnan

18 and Bardis Vakili appeared for Plaintiffs, and Sarah Fabian and Nicole Murley appeared

19 for Defendants. This Order addresses Defendants’ motion to dismiss. Plaintiffs’ motions

20 for class certification and preliminary injunction will be addressed in separate orders.

21

II.

22

DISCUSSION

23

Defendants raise a number of arguments in their motion to dismiss. First, they argue

24 Ms. L.’s claims are moot because she has been released from ICE detention and reunited

25 with her daughter. Second, Defendants assert the Court lacks jurisdiction over Ms. C.’s

26 habeas claim and that venue is improper for Ms. C.’s other claims. Third, Defendants claim

27 the Court lacks jurisdiction to review ICE’s decision to detain rather than parole Plaintiffs,

28 and also lacks jurisdiction to review ICE’s decision about where to detain Plaintiffs or to

5 18cv0428 DMS (MDD)

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1 order ICE to detain Plaintiffs in a particular facility. Fourth, Defendants contend separation

2 of Plaintiffs from their children does not violate the Fifth Amendment. Fifth, Defendants

3 argue Plaintiffs have failed to state a claim under the APA. And finally, Defendants assert

4 Plaintiffs have failed to state a claim under the Asylum Act.

5 A. Mootness

6

Defendants’ first argument in support of their motion to dismiss is that Ms. L.’s

7 claims are moot in light of her release from detention and reunification with her daughter.

8 Plaintiffs disagree that either of these events renders Ms. L.’s claims moot.

9

“A case becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for

10 purposes of Article III—‘when the issues presented are no longer live or the parties lack a

11 legally cognizable interest in the outcome.’” Already, LLC v. Nike, Inc., 568 U.S. 85, 91

12 (2013) (quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982)) (internal quotation marks

13 omitted). The mootness doctrine is subject to certain exceptions, however. In this case,

14 Plaintiffs invoke the voluntary cessation exception, which provides,

15

that a defendant cannot automatically moot a case simply by ending its

16

unlawful conduct once sued. City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1982). Otherwise, a defendant

17

could engage in unlawful conduct, stop when sued to have the case declared

18

moot, then pick up where he left off, repeating this cycle until he achieves all his unlawful ends.

19

20 Id.

21

Defendants argue the voluntary cessation exception does not apply because Ms. L.

22 was released from detention and reunited with her daughter for reasons other than this

23 litigation. Specifically, they assert Ms. L.’s release and reunification with her daughter

24 “occurred through the operation of the applicable laws governing her detention and the

25 custody of S.S.[,]” (Reply in Supp. of Mot. to Dismiss at 1), namely Ms. L.’s parole from

26 / / /

27 / / /

28 / / /

6 18cv0428 DMS (MDD)

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1 ICE detention and the release of S.S. in accordance with ORR procedures and the

2 Trafficking Victims Protection and Reauthorization Act (“TVPRA”).2 (Id. at 2.)

3

The Ninth Circuit has held that in order for the voluntary cessation exception to

4 apply, “the voluntary cessation ‘must have arisen because of the litigation.’” Sze v. I.N.S.,

5 153 F.3d 1005, 1008 (9th Cir. 1998) (quoting Public Utilities Comm’n of State of Cal. v.

6 Fed. Energy Regulatory Comm’n, 100 F.3d 1451, 1460 (9th Cir. 1996)). See also ACLU

7 of Mass. v. United States Conf. of Catholic Bishops, 705 F.3d 44, 55 (1st Cir. 2013)

8 (quoting M. Redish, Moore’s Fed. Practice, § 101.99[2]) (“‘The voluntary cessation

9 doctrine does not apply when the voluntary cessation of the challenged activity occurs

10 because of reasons unrelated to the litigation.’”). Here, both sides offer competing

11 explanations for Ms. L.’s parole from detention and reunification with her daughter, with

12 Plaintiffs asserting these actions were the result of “Defendants’ own decision to end” Ms.

13 L.’s separation from her daughter “before this Court could rule[,]” (Opp’n to Mot. to

14 Dismiss at 5), and Defendants arguing to the contrary.

15

Neither party has presented any evidence, however, as to the reason for Ms. L.’s

16 parole from detention and reunification with her daughter. The timing of Ms. L.’s release

17 and reunification with her daughter, both of which occurred after this case was filed and

18

19

20 2 The TVPRA, Pub. L. No. 110-457 (Dec. 23, 2008), provides that “the care and custody
21 of all unaccompanied alien children, including responsibility for their detention, where appropriate, shall be the responsibility of” HHS and its sub-agency, ORR. 8 U.S.C. §
22 1232(b)(1). An “unaccompanied alien child” (“UAC”) is a child under 18 years of age
23 with no lawful immigration status in the United States who has neither a parent or legal guardian in the United States nor a parent or legal guardian in the United States “available”
24 to care for them. 6 U.S.C § 279(g)(2). According to the TVPRA, a UAC “may not be
25 placed with a person or entity unless the Secretary of Health and Human Services makes a determination that the proposed custodian is capable of providing for the child’s physical
26 and mental well-being. Such determination shall, at a minimum, include verification of
27 the custodian’s identity and relationship to the child, if any, as well as an independent finding that the individual has not engaged in any activity that would indicate a potential
28 risk to the child.” 8 U.S.C. § 1232(c)(3)(A).

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1 after the Court ordered an expedited DNA test, support Plaintiffs’ assertion. Defendants,

2 meanwhile, have failed to present any evidence to support their assertion that they were

3 simply complying with the statutes, and would have paroled Ms. L. and reunited her with

4 her daughter pursuant to the TVPRA absent this litigation, such as declarations from

5 individuals involved in those decisions who could attest that the decisions were in process

6 prior to this litigation. See ACLU of Mass., 705 F.3d at 55 (finding voluntary cessation

7 exception did not apply where contract at issue “expired according to its terms. HHS did

8 nothing to hasten its expiration, much less do so to terminate litigation; ... Moreover, the

9 expiration date, options, and task order extension were all built into the contract’s terms

10 before this litigation began.”). Defendants also have failed to offer any evidence to explain

11 why DNA testing of Ms. L. and S.S. was not completed during the four months that Ms.

12 L. and S.S. were detained and during which time Ms. L. consistently maintained parentage,

13 but occurred only after the Court ordered it.

14

Because Defendants have not shown that Ms. L. was released from detention and

15 reunited with her daughter for reasons other than this litigation, the Court finds the

16 voluntary cessation exception applies to this case. Applying that exception, Ms. L.’s claims

17 are not moot.

18 B. Habeas Jurisdiction

19

Defendants’ second argument in support of dismissal is that the Court lacks

20 jurisdiction over Ms. C.’s habeas claim because she did not name the warden of the

21 institution in which she was detained. “[L]ongstanding practice confirms that in habeas

22 challenges to present physical confinement—‘core challenges’—the default rule is that the

23 proper respondent is the warden of the facility where the prisoner is being held, not the

24 Attorney General or some other remote supervisory official.” Rumsfeld v. Padilla, 542

25 U.S. 426, 435 (2004). Here, Ms. C. is not raising a “core challenge.” This is especially so

26 now that she has been released on bond. Rather, her habeas claim, like her other claims, is

27 directed to the continued separation from her child. (See Am. Compl. at 12) (asking the

28 Court to “[o]rder defendants either to release class members along with their children, or

8 18cv0428 DMS (MDD)

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1 to detain them together in the same facility[.]”). Since Ms. C. is not raising a “core

2 challenge,” she is not subject to the default rule set out above. Absent this showing, the

3 Court has jurisdiction over Ms. C.’s habeas claim.

4 C. Venue

5

Defendants’ third argument in support of dismissal is that this Court is the improper

6 venue for adjudication of Ms. C.’s claims because Ms. C. does not reside in this district nor

7 did the events giving rise to her claim occur in this district. Plaintiffs respond that

8 regardless of Ms. C.’s claims, this is the proper venue for Ms. L.’s claims, and that is

9 sufficient in this putative class case against the Government. Plaintiffs rely on 28 U.S.C.

10 § 1391(e)(1) for the proposition that if any plaintiff resides in the district in which an action

11 is brought against government entities, venue is proper in that district. Section 1391(e)(1)

12 states:

13

A civil action in which a defendant is an officer or employee of the United

14

States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, or the United States, may,

15

except as otherwise provided by law, be brought in any judicial district in

16

which (A) a defendant in the action resides, (B) a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property

17

that is the subject of the action is situated, or (C) the plaintiff resides if no real

18

property is involved in the action.

19 28 U.S.C. § 1391(e)(1). In Sidney Coal Co. v. Soc. Security Admin., 427 F.3d 336 (6th Cir.

20 2005), the court was asked to decide whether the term “the plaintiff” in subsection (C) of

21 this statute referred to only one plaintiff or all plaintiffs. Id. at 344. After reviewing the

22 “plethora of case law interpreting the statute,” the court refused to interpret the statute to

23 require all plaintiffs to reside in the relevant district, finding the statute “contains no

24 requirement that all plaintiffs must reside in the same district.” Id. The court found that to

25 hold otherwise “would substantially limit the statute’s breadth[.]” Id. It also found “[e]ach

26 court faced with the same issue has interpreted ‘the plaintiff’ to mean ‘any plaintiff,’

27 finding that Congress intended to broaden the number of districts in which suits could be

28 brought against government entities.” Id. at 344-45. Ultimately, the court held “that the

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1 residency requirement of [28 U.S.C. § 1391(e)(1)(C)] is satisfied if at least one plaintiff

2 resides in the district in which the action has been brought.” Id. at 345-46. This reasoning

3 is persuasive.

4

There is no dispute Ms. L. was resident in this district when the original Complaint

5 was filed. Thus, venue in this Court is proper under 28 U.S.C. § 1391(e)(1)(C).

6 D. Jurisdiction to Review “Discretionary” Decisions

7

Defendants’ fourth argument in support of dismissal is that this Court lacks

8 jurisdiction to review the Government’s decision to either detain or parole Plaintiffs, and

9 also lacks jurisdiction to review where Plaintiffs will be detained or to order ICE to detain

10 Plaintiffs in a particular facility. Plaintiffs dispute that the Court lacks jurisdiction to

11 review these decisions.

12

As to Defendants’ first argument about the decision to detain or parole, Plaintiffs are

13 not challenging that particular decision. (See Opp’n to Mot. to Dismiss at 12) (stating

14 Amended Complaint “does not seek an injunction ordering Defendants to grant parole;

15 rather, it seeks an injunction to reunite Plaintiffs with their children, ‘either’ by ‘detain[ing]

16 them together in the same facility,’ or by ‘releas[ing] class members along with their

17 children.’”).3 Rather, Plaintiffs are challenging the Government’s practice of separating

18

19

20 3 There are sound reasons for not challenging this decision. Individuals in the expedited
21 removal process who have not been found to have a “credible fear of persecution” for asylum purposes are subject to mandatory detention. 8 U.S.C. § 1225(b)(1)(B)(iii)(IV).
22 These individuals may be released only if they are granted parole, i.e., released under
23 narrowly prescribed circumstances, such as “urgent humanitarian reasons or significant public benefit[,]” 8 U.S.C. § 1182(d)(5)(A), medical emergency or a “legitimate law
24 enforcement objective.” 8 C.F.R. § 235.3(b)(2)(iii). Furthermore, an alien who is subject
25 to expedited removal and who is seeking to establish that he or she has a credible fear of persecution, is not eligible for release on bond. 8 C.F.R. §§ 235.3(c), 1003.19(h)(2)(i)(B).
26 If the asylum officer or Immigration Judge (“IJ”) determines that the alien has a credible
27 fear of persecution, expedited removal proceedings are vacated and the alien is referred for removal proceedings before an IJ under 8 U.S.C. § 1229a. 8 C.F.R. § 208.30(f). These
28 aliens may be released from detention through a grant of parole under narrowly prescribed

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1 minor children from their parents without legitimate reason, irrespective of the

2 Government’s general authority to detain or release. Defendants’ argument, therefore,

3 does not warrant dismissal of Plaintiffs’ claims.

4

Next, Defendants argue the Court lacks jurisdiction to review where Plaintiffs will

5 be detained or to order ICE to detain Plaintiffs in a particular facility. In support of this

6 argument, Defendants rely on 8 U.S.C. § 1252(a)(2)(B)(ii) and 8 U.S.C. § 1231(g)(1).

7 Section 1252(a)(2)(B)(ii) precludes courts from reviewing decisions of the Attorney

8 General or Secretary of DHS if the conduct at issue is specified in the particular statute to

9 be in their discretion. It states:

10

Notwithstanding any other provision of law (statutory or nonstatutory),

11

including section 2241 of title 28, United States Code, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as

12

provided in subparagraph (D), and regardless of whether the judgment,

13

decision, or action is made in removal proceedings, no court shall have jurisdiction to review— ...

14

15

(ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this title to be in

16

the discretion of the Attorney General or the Secretary of Homeland Security,

17

other than the granting of relief under section 208(a).

18 8 U.S.C. § 1252(a)(2)(B)(ii) (emphasis added). Defendants assert the Attorney General’s

19 decisions about where aliens will be detained falls within this statute. Specifically, they

20 assert that 8 U.S.C. § 1231(g)(1), which provides, “The Attorney General shall arrange for

21 appropriate places of detention for aliens detained pending removal or a decision on

22 removal[,]” id., grants the Attorney General discretion to make those decisions, and under

23 § 1252(a)(2)(B)(ii), those decisions are not subject to review by the courts.

24

This is not the first time the Government has raised this argument. See Aguilar v.

25 United States Immig. & Customs Enf’t Div. of the Dep’t of Homeland Sec., 510 F.3d 1 (1st

26

27 circumstances, such as an “urgent humanitarian reason or significant public benefit.” 8
28 U.S.C. § 1182(b)(5); 8 C.F.R. § 212.5(b).

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1 Cir. 2007). In Aguilar, the court rejected the Government’s “sprawling construction of

2 section 1252(a)(2)(B)(ii)[,]” stating “so broad a reading is not evident from the statute’s

3 text.” Id. at 20. Instead, the court found “section 1231(g)(1) fails to ‘specify’ that

4 individualized transfer decisions are in the Attorney General’s discretion.” Id. The court

5 contrasted the language of section 1231(g)(1) with “other sections of the [Immigration and

6 Nationality Act (“INA”)]” in which that discretion is explicitly provided, specifically 8

7 U.S.C. §§ 1157(c)(1), 1181(a)(9)(B)(v), 1184(c)(6)(F) and 1229b(b)(2)(D). Id. The court

8 also cited to Alaka v. Att’y Gen., 456 F.3d 88 (3d Cir. 2006), which states “there are no less

9 than thirty-two additional provisions in the very subchapter of the INA referenced by 8

10 U.S.C. § 1252(a)(2)(B)(ii) that make explicit the grant of ‘discretion’ to the Attorney

11 General or the Secretary of Homeland Security[.]” Id. at 97. In light of this authority, the

12 Aguilar court held, “[i]f a statute does not explicitly specify a particular authority as

13 discretionary, section 1252(a)(2)(B)(ii) does not bar judicial review of an ensuing agency

14 action.” 510 F.3d at 20; see also Spencer Enters., Inc. v. United States, 345 F.3d 683, 691

15 (9th Cir. 2003) (stating “the plain language of § 1252(a)(2)(B)(ii) requires that

16 discretionary authority be specified by statute[.]”). Ultimately, the Aguilar court held

17 “section 1252(a)(2)(B)(ii) does not strip the district courts of jurisdiction over substantive

18 due process claims that are collateral to removal proceedings when those claims challenge

19 decisions about the detention and transfer of aliens on family integrity grounds.” 510 F.3d

20 at 21.

21

Defendants do not explain why this reasoning should not apply here. Instead, they

22 rely on a decision from the Ninth Circuit finding the Attorney General has broad discretion

23 in deciding where to house deportable aliens. See Comm. of Cent. Am. Refugees v. I.N.S.,

24 795 F.2d 1434 (9th Cir. 1986). That decision, however, predates 8 U.S.C. §

25 1252(a)(2)(B)(ii), which is the starting point for Defendants’ jurisdiction-stripping

26 argument. Moreover, in Comm. of Cent. Am. Refugees, the Ninth Circuit addressed the

27 / / /

28 / / /

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1 merits of the plaintiffs’ claim, which assumes jurisdiction. 795 F.2d at 1437-41.4 Aguilar,

2 by contrast, addresses 8 U.S.C. § 1252(a)(2)(B)(ii), the leading Supreme Court case

3 interpreting that statute, Kucana v. Holder, 558 U.S. 233 (2010), and the other statute

4 forming the basis for Defendants’ argument, 8 U.S.C. § 1231(g)(1). The Aguilar court’s

5 analysis of these statutes is faithful to statutory text and persuasive. This Court, therefore,

6 concludes it has jurisdiction to review the Government’s conduct at issue.5

7 E. Due Process

8

Next, Defendants argue Plaintiffs have failed to state a claim for violation of their

9 due process rights. In reviewing this argument, the Court is bound to accept all well-

10 pleaded factual allegations in the Amended Complaint as true, construe those allegations

11 “in the light most favorable to the nonmoving party,” Silvas v. E*Trade Mortg. Corp., 514

12 F.3d 1001, 1003 (9th Cir. 2008) (citation omitted), and “then determine whether they

13 plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.

14

The parties do not dispute the following bedrock principles. The Constitution

15 protects everyone within the territory of the United States, regardless of citizenship. (Br.

16 of Scholars of Immig. and Const. Law as Amici Curiae at 3, ECF No. 23-1) (citing Yick

17 Wo v. Hopkins, 118 U.S. 356, 368-69(1886)). “Repeatedly and consistently, the Supreme

18 Court and the Ninth Circuit have held that non-citizens physically on U.S. soil have

19 constitutional rights, including the right to due process of law.” (Id. at 4) (citing, among

20

21 4 In Comm. of Cent. Am. Refugees, the Ninth Circuit held that the government’s policy of
22 transferring unrepresented aliens to remote detention facilities “did not violate the due
23 process clause or any statutory privilege[,]” and “prudential considerations precluded interference with the Attorney General’s [exercise of] discretion” in selecting the detention
24 facilities where aliens are to be detained. 795 F.2d at 1439-40.
25 5 Even if § 1252(a)(2)(B)(ii) acted as a statutory bar to Plaintiffs’ claims, the Ninth Circuit has held “decisions that violate the Constitution cannot be ‘discretionary,’ so claims of
26 constitutional violations are not barred by § 1252(a)(2)(B).” Wong v. United States, 373
27 F.3d 952, 963 (9th Cir. 2004). Plaintiffs have clearly alleged separation from their children violated their due process rights. Thus, this rule would apply, and would allow for judicial
28 review.

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1 other cases, Matthews v. Diaz, 426 U.S. 67, 77 (1976) (stating “there ‘are literally millions

2 of aliens within the jurisdiction of the United States’” and “‘the Fifth Amendment . . .

3 protects every one of these persons[.]’”)). “Aliens,” therefore, have substantive due

4 process rights under the Constitution. Id. (collecting cases).6

5

Further, it has long been settled that the liberty interest identified in the Fifth

6 Amendment provides a right to family integrity or to familial association. See U.S. Const.

7 amend. V (stating no person shall “be deprived of life, liberty, or property, without due

8 process of law.”); Quilloin v. Walcott, 434 U.S. 246, 255 (1978) (stating “the relationship

9 between parent and child is constitutionally protected.”). Indeed, “[t]he liberty interest at

10 issue in this case–the interest of parents in the care, custody, and control of their children–

11 is perhaps the oldest of the fundamental liberty interests recognized by” the Court. Troxel

12 v. Granville, 530 U.S. 57, 65 (2000); see also Rosenbaum v. Washoe Cty., 663 F.3d 1071,

13 1079 (9th Cir. 2011) (“The substantive due process right to family integrity or to familial

14 association is well established.”). In sum, there is no dispute the constitutional right to

15 family integrity applies to aliens like Ms. L. and Ms. C.

16

Rather, the dispute here is twofold: (1) whether the substantive due process right to

17 family integrity applies not to Plaintiffs, generally, but in the particular circumstances

18 alleged; and (2) if so, whether the conduct attributed to the Government violates that right.

19 It bears repeating that at this stage of the case, Plaintiffs need not prove either of these

20 questions should be resolved in their favor. The only issue here is whether Plaintiffs have

21 alleged sufficient facts and a cognizable legal theory giving rise to a “plausible claim for

22 relief.” Iqbal, 556 U.S. at 679. In this context, the Court addresses these two issues in

23 turn.

24

25

26 6 At oral argument, Government counsel conceded the point, “The Court: So you would
27 agree that because these individuals [Ms. L. and Ms. C.] are present in the United States that substantive due process attaches[?] . . . [Gov’t counsel]: That’s correct[.]” (Rep.’s
28 Tr. at 4-5, May 9, 2018, ECF No. 70.)

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1

1. Does the Constitutional Right to Family Integrity Apply in the Circumstances

2

Alleged?

3

The constitutional right to family integrity “is entirely judge-made: it does not appear

4 in the text of the Constitution itself.” Keates v. Koile, 883 F.3d 1228, 1235 (9th Cir. 2018).

5 Furthermore, the “right to family integrity has been recognized in only a narrow subset of

6 circumstances.” Aguilar, 510 F.3d at 23 (stating alien “petitioners have not demonstrated

7 that this guarantee of substantive due process [the liberty interest in family integrity]

8 encompasses their assertions.”); see also Washington v. Glucksberg, 521 U.S. 702, 720

9 (1997) (quoting Collins v. Harker Heights, 503 U.S. 115, 125 (1992)) (noting courts must

10 be “‘reluctant to expand the concept of substantive due process.’”). Plaintiffs, therefore,

11 must show that their generally held constitutional right to family integrity applies in the

12 particular circumstances alleged here.

13

In determining whether the right to family integrity encompasses the circumstances

14 alleged here, it is important to note what Plaintiffs do not challenge. They do not challenge

15 the Government’s initial separation of parent and child when the parent is arrested for

16 violating the nation’s criminal laws. Nor do Plaintiffs challenge the Government’s decision

17 to separate families when there are legitimate questions regarding parentage, fitness, or

18 danger to the child. Nor do they challenge the Government’s powers to deport or detain

19 aliens. What Plaintiffs challenge is the Government’s separation of migrant parents and

20 their minor children when both are held in immigration detention and when there has been

21 no showing the parent is unfit or poses a danger to the child. Plaintiffs assert separation of

22 parents and minor children under such circumstances violates their due process rights.

23

Defendants argue the contours of the right to family integrity are different depending

24 on the circumstances, and that under the circumstances of this case, which involve the

25 Government’s enforcement of criminal and immigration laws, there is no constitutional

26 violation. Specifically, the Government argues that when a parent is detained for removal

27 or criminal prosecution, the minor child becomes “unaccompanied” and must be placed in

28 the “care and custody” of ORR. Separation of the family unit, therefore, is simply a

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1 consequence of the lawful detention of the parent. In support of this argument, Defendants

2 rely on a number of cases dealing with immigration detainees and convicts who have been

3 separated from their families without constitutional implication, but those cases are

4 distinguishable from this case. See, e.g., Milan-Rodriguez v. Sessions, No. 1:16-cv-01578-

5 AWI-SAB-HC, 2018 WL 400317, at *10 (E.D. Cal. Jan. 12, 2018) (stating transfer of

6 petitioner convicted of crime to remote facility is “ordinary incident of immigration

7 detention” and does not violate right to familial association); Gordon v. Mule, 153 Fed.

8 Appx. 39 (2d Cir. 2005) (stating right to family unity not violated when petitioner ordered

9 removed after conviction of crime). Plaintiffs argue those cases involve challenges to a

10 parent’s detention and transfer away from children who were not themselves initially

11 detained with their parents. According to Plaintiffs, the practice alleged here “is not a

12 necessary incident of detention; it is the result of an unnecessary governmental action

13 intended to separate family units who were arrested together[.]” (Opp’n to Mot. to Dismiss

14 at 21.)

15

The Government also cites cases that subordinate the right to family integrity of

16 citizen children when their non-citizen parents are deported. See, e.g., Gallanosa by

17 Gallanosa v. United States, 785 F.2d 116 (4th Cir. 1986) (parents ordered deported after

18 overstaying visa causing family separation). But Plaintiffs are not contesting the grounds

19 for their potential removal—only their treatment by the Government during their

20 immigration proceedings.

21

The Government also cites cases where interference with the right to family integrity

22 was upheld in furtherance of identified safety or other penological interests. See, e.g.,

23 Overton v. Bazetta, 539 U.S. 126, 133 (2003) (upholding restrictions on family visitation

24 of sentenced prisoners for security reasons and “to protect[ ] child visitors from exposure

25 to sexual or other misconduct[.]”). However, Plaintiffs argue the Government is acting

26 without determining parentage, fitness or danger to the child (or any other legitimate

27 reason), let alone for a stated security reason.

28

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1

The case that provides the most support for Defendants’ argument that Plaintiffs’

2 constitutional right to familial association is not implicated here is Aguilar. But it, too, is

3 factually distinguishable. In that case, ICE agents conducted a raid of the plaintiffs’

4 workplace as part of an investigation into the employment practices of a government

5 contractor “suspected of employing large numbers of illegal aliens.” Aguilar, 510 F.3d at

6 6. As part of the raid, ICE agents “took more than 300 rank-and-file employees into

7 custody for civil immigration infractions.” Id. In the days following the raid,

8 approximately 200 of those employees were transferred from a holding facility in

9 Massachusetts, where the raid took place, to detention centers in Texas for removal. Id.

10 Because of the surprise nature of the raid, “a substantial number of the detainees’ minor

11 children were left for varying periods of time without adult supervision.” Id. As a result,

12 the plaintiffs filed a complaint in district court alleging “in essence that their immediate

13 detention and swift transfer to distant [detention and removal operations centers] wreaked

14 havoc with their right to make decisions about the care, custody, and control of their minor

15 children, leaving many minors unattended.” Id. at 22. The court in Aguilar looked to the

16 nature of the right at issue, and expressed concern for expanding that right to the facts of

17 the case, and concluded plaintiffs had not demonstrated that the right to family integrity

18 “encompasse[d]” their claims. Id. at 23-24.

19

However, unlike Plaintiffs in this case, none of the plaintiffs in Aguilar were

20 detained with their children. Instead, the plaintiffs in Aguilar appear to have been detained

21 at the worksite while their children were elsewhere in the community.7 Because the context

22

23

24 7 The court in Aguilar noted, “ICE attempted to coordinate with social services agencies
25 to assure the adequate care of dependent children[,] … took affirmative steps before and after the raid to attend to family needs[,] …[and] immediately released thirty-five persons
26 who had been apprehended due to ‘pressing humanitarian needs’ (such as being the sole
27 caregiver of one or more minor children).” 510 F.3d at 22 n.5 (citing findings of the district court). In light of the differences with Aguilar, Plaintiffs have disavowed that the class
28 alleged in the Amended Complaint would include parents like those in Aguilar, suggesting

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1 and details of the present case are different from those presented in Aguilar, that court’s

2 analysis of the plaintiffs’ substantive due process rights has limited application here. See

3 id. at 22 (quoting DePoutot v. Raffaelly, 424 F.3d 112, 119 (1st Cir. 2005)) (noting “the

4 jurisprudence of substantive due process is an exercise that is ‘highly dependent on context

5 and detail.’”).

6

Here, the Court is faced with Plaintiffs who present different circumstances, but each

7 Plaintiff has demonstrated that the right to family integrity encompasses her particular

8 situation. According to the allegations in the Amended Complaint, Ms. L. did everything

9 right. She and her child presented at the port of entry and requested asylum. She passed a

10 credible fear screening interview, was taken out of expedited removal proceedings, and

11 placed in removal proceedings before an IJ to pursue her asylum claim. Ms. C., by contrast,

12 did not do everything right. She committed a crime by entering the United States illegally,

13 and was prosecuted and imprisoned for her transgression: 25 days in custody for

14 misdemeanor violation of 8 U.S.C. § 1325 (illegal entry). However, having served her

15 sentence, Ms. C. was then returned to ICE detention to pursue her asylum claim, as she too

16 had passed a credible fear screening. Ms. C., therefore, is on equal footing with Ms. L. for

17 purposes of pursuing her due process claim. Ms. L.’s claim is based on the initial

18 separation from her child, while Ms. C.’s claim is based on the continued separation from

19 her child. Both claims focus on government conduct in separating families during removal

20 proceedings.

21

Although Plaintiffs do not limit this case to asylum seekers, that each of the named

22 Plaintiffs is seeking asylum is important to the due process analysis. “U.S. asylum law

23 arises largely out of international agreements that have been incorporated into immigration

24 law.” Kevin R. Johnson, Understanding Immigration Law, 2d. Ed. (2015), at 353. Those

25 international agreements came about after World War II displaced millions of people and

26

27 that the facts in Aguilar are “more analogous to a pretrial criminal case.” (Rep.’s Tr. at 35,
28 May 9, 2018, ECF No. 70.)

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1 created the need for international collaboration to address the refugee crisis. See id. In the

2 early 1950s, the United Nations Convention Relating to Status of Refugees (“Convention”)

3 attempted to provide a uniform protocol for refugee policy, and the United States is now a

4 signatory to that Convention. See id. According to the Convention, a “refugee” is someone

5 who (1) is outside his or her country of nationality, (2) has fled that country and cannot

6 return home because he or she faces the reality or the risk of persecution, and (3) faces

7 persecution due to his or her political opinion, race, religion, nationality, or membership in

8 a particular social group. See id. at 353-54. These concepts have been incorporated into

9 U.S. law, specifically the INA. See, e.g., INA § 101(a)(42) (adopting definition of

10 refugee); 8 U.S.C. § 1101(a)(42).

11

Asylum “has been a formal part of U.S. domestic law for 38 years.” Deborah Anker,

12 Law of Asylum, in the United States § 1.1 (2018). The Refugee Act, PL 96-212, 94 Stat.

13 102 (1980), in particular, “codified provisions for persons to apply for asylum status[.]”

14 Id. According to its provisions, “a person who applies for asylum protection must be

15 physically present or ‘arriving’ in the United States.” Id. at § 1.6 (citing 8 U.S.C. § 1158).

16 The act of seeking sanctuary from persecution in accordance with our country’s own

17 asylum laws is significant given that due process is particularly concerned with “ordered

18 liberty” and “fundamental fairness.” Lassiter v. Dep’t of Soc. Servs. of Durham Cty., N.C.,

19 452 U.S. 18, 24 (1981). Arriving on United States soil with one’s minor child to pursue

20 relief extended by U.S. law—as well as international law to which the United States has

21 acceded—calls out for careful assessment of how governmental actors treat such people

22 and whether constitutional protections should apply.

23

In this case, both Ms. L. and Ms. C. allege they are seeking asylum in the United

24 States, and that they were separated from their children upon arriving at our nation’s border

25 without any determination they were unfit or presented a danger to their children. They

26 allege they are victims of a wide-spread government practice to separate migrant families

27 “for no legitimate reason and notwithstanding the threat of irreparable psychological

28 damage that separation has been universally recognized to cause young children.” (Am.

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1 Compl. ¶ 1.) They allege this practice may soon become “formal national policy” for

2 purposes of deterring others from coming to the United States. (Id. ¶ 34b;8 see also Opp’n

3 to Mot. to Dismiss at 2 & 16 n.12) (citations omitted)).

4

Notably, Plaintiffs’ allegations are similar to those pointed out by the court in

5 Aguilar as being sufficient to demonstrate that the guarantee of substantive due process

6 encompasses their assertions: “Were a substantial number of young children knowingly

7 placed in harm’s way, it is easy to imagine how viable [due process] claims might lie.”

8 510 F.3d at 22. The allegations here present that “narrow subset of circumstances[,]” id.,

9 at 23, where the right to family integrity ought to apply. The Court finds it does.

10

2. Does the Alleged Governmental Conduct “Shock the Conscience” and Violate

11

the Right to Family Integrity?

12

Where substantive due process applies to the particular circumstances alleged, as

13 here, the “threshold question is whether the behavior of the governmental officer is so

14 egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.”

15 Cty. of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998). Plaintiffs dispute that the

16 “shock the conscience” test applies, (see Opp’n to Mot. to Dismiss at 22), but they fail to

17 explain what test should apply. Plaintiffs appear to argue they have “[s]tated a substantive

18 due process claim” simply by alleging facts that show the government is separating

19 children from their parents “absent a clear demonstration that the parent is unfit or is

20 otherwise endangering the child.” (Id. at 15-16.) In support, Plaintiffs cite Quilloin for the

21 settled principle that “the Due Process Clause would be offended ‘[i]f a State were to

22 attempt to force the breakup of a natural family . . . without some showing of unfitness[.]”

23 434 U.S. at 255 (quoting Smith v. Organization of Foster Families, 431 U.S. 816, 862-63

24 (1977)). But the Supreme Court has also made clear that “the substantive component of

25 the Due Process Clause is violated by executive action only when it ‘can properly be

26

27 8 The Amended Complaint lists Paragraphs 33 and 34 twice. The Court refers to the second
28 paragraphs as Paragraphs 33b and 34b.

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1 characterized as arbitrary, or conscience shocking, in a constitutional sense.’” Lewis, 523

2 U.S. at 847 (quoting Collins, 503 U.S. at 128). See also Aguilar, 510 F.3d at 21 (applying

3 “shock the conscience” standard to determine whether plaintiffs stated substantive due

4 process claim based on government’s separation of parents from minor children).

5 Defendant has relied on that standard in arguing Plaintiffs have failed to state a substantive

6 due process claim, and Plaintiffs have briefed why the alleged government conduct meets

7 the standard (though they dispute the standard applies at all). On the present motion, the

8 Court applies the “shocks the conscience” standard to determine whether Plaintiffs have

9 alleged sufficient facts to state a plausible claim for violation of their substantive due

10 process rights.9

11

The “touchstone of due process is protection of the individual against arbitrary action

12 of government,” Wolf v. McDonnell, 418 U.S. 539, 558 (1974), and the “exercise of power

13 without any reasonable justification in the service of a legitimate governmental

14 objective[.]” Lewis, 523 U.S. at 846. The due process guarantee bars certain offensive

15 government actions “regardless of the fairness of the procedures used to implement them.”

16 Daniels v. Williams, 474 U.S. 327, 331 (1986)). It targets governmental conduct that

17 violates the “decencies of civilized conduct[,]” Rochin v. California, 342 U.S. 165, 173

18 (1952), interferes with rights “‘implicit in the concept of ordered liberty[,]’” id. at 169

19 (quoting Palko v. State of Conn., 302 U.S. 319, 325 (1937)), and is so “‘brutal’ and

20 ‘offensive’ that it [does] not comport with traditional ideas of fair play and decency[.]”

21 Breithaupt v. Abram, 352 U.S. 432, 435 (1957). Thus, substantive due process protects

22 against government power arbitrarily and oppressively exercised. Daniels, 474 U.S. at

23 331. “Historically, this guarantee of due process has been applied to deliberate decisions

24

25

26 9 The Court reserves on whether a different test might apply as the case develops and the
27 issues are more clearly framed through discovery and other substantive motions. See, e.g., Halet v. Wend Inv. Co., 672 F.2d 1305, 1310-11 (9th Cir. 1982) (policy precluding renting
28 to families with children analyzed under strict scrutiny test).

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1 of government officials to deprive a person of life, liberty, or property.” Id. Accordingly,

2 “the ‘shock the conscience’ standard erects a high hurdle for would-be claimants.” Aguilar,

3 510 F.3d at 21. Plaintiffs have set forth sufficient facts to satisfy this requirement and to

4 survive the present motion.

5

Plaintiffs allege they both suffered wrenching separation from their children for “no

6 legitimate purpose” and in furtherance of a wide-spread government practice that soon may

7 become “national policy.” (Am. Compl. ¶¶ 31, 34b.) A policy of family separation to

8 serve “ulterior law enforcement goals” admittedly would be “antithetical to the child

9 welfare values” imposed on government actors by the TVPRA. (Opp’n to Mot. for Prelim.

10 Inj. at 3, ECF No. 46.) Yet, Plaintiffs allege that practice is being implemented in full view

11 of the “devastating negative impact” that separation has on a “child’s well-being, especially

12 where there are other traumatic factors at work, and that this damage can be permanent.”

13 (Am. Compl. ¶ 33.) (See also Br. by Amici Curiae in Supp. of Pl.’s Habeas Corpus Pet.

14 and Compl. at 2-3, ECF No. 17-3 (describing psychological and emotional trauma that is

15 visited upon young children when they are separated from their parents)). As for their own

16 children, Plaintiffs allege S.S. was screaming, crying, and “pleading with guards not to take

17 her away from her mother[,]” (Am. Compl. ¶ 43), and J. is struggling emotionally. (Id. ¶

18 59.) Plaintiffs also allege they, themselves, are consumed by feelings of desperation and

19 worry. (Id. ¶¶ 48, 58.)

20

These allegations call sharply into question the separations of Plaintiffs from their

21 minor children. This is especially so because Plaintiffs allegedly came to the United States

22 seeking shelter from persecution in their home countries, and are seeking asylum here. For

23 Plaintiffs, the government actors responsible for the “care and custody” of migrant children

24 have, in fact, become their persecutors. This is even more problematic given Plaintiffs’

25 allegations and assertions that there is a government practice, and possibly a forthcoming

26 policy, to separate parents from their minor children in an effort to deter others from

27 coming to the United States. This alleged practice is being implemented even when parents

28 like Ms. L. and Ms. C. have passed credible fear interviews, and therefore, are positioned

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1 to present asylum claims meriting consideration by an IJ in their removal proceedings.

2 These allegations sufficiently describe government conduct that arbitrarily tears at the

3 sacred bond between parent and child, and is emblematic of the “exercise of power without

4 any reasonable justification in the service of an otherwise legitimate governmental

5 objective[.]” Lewis, 523 U.S. at 846. Such conduct, if true, as it is assumed to be on the

6 present motion, is brutal, offensive, and fails to comport with traditional notions of fair

7 play and decency. At a minimum, the facts alleged are sufficient to show the government

8 conduct at issue “shocks the conscience” and violates Plaintiffs’ constitutional right to

9 family integrity. Accordingly, Defendants’ motion to dismiss Plaintiffs’ due process claim

10 is denied.10

11 F. The APA

12

Next, Defendants argue Plaintiffs have not stated a claim under the APA.

13 Defendants assert the APA does not provide for judicial review of discretionary decisions.

14 Defendants also contend their decisions to separate Plaintiffs from their minor children was

15 not arbitrary or capricious, those decisions do not constitute “final agency actions,” and

16 there are other adequate remedies available.

17

Under the APA, “[a]gency action made reviewable by statute and final agency action

18 for which there is no other adequate remedy in a court are subject to judicial review.” 5

19

20

21 10 The above discussion is focused on whether Plaintiffs have stated a claim for violation

22

of their substantive due process rights. Plaintiffs also allege a claim for violation of their procedural due process rights in light of the Government’s practice of “separating families

23 without any process to determine whether the separation is justified by parental abuse,

24

unfitness, or any other reason.” (Opp’n to Mot. to Dismiss at 23.) Defendants move to dismiss on the ground there is no substantive due process right to familial association under

25 these circumstances, and assert Plaintiffs’ procedural due process argument “is really [a]

26

‘substantive due process argument recast in procedural terms.’” (Mem. of P. & A. in Supp. of Mot. to Dismiss at 18) (quoting Reno v. Flores, 507 U.S. 292, 293 (1993)) (internal

27 quotation marks omitted). In light of the above discussion, the Court declines to address

28 further Plaintiffs’ procedural due process claim.

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1 U.S.C. § 704. The conduct at issue in this case, separation of parents from their minor

2 children when both are in immigration detention and when there is no showing the parent

3 is unfit or presents a danger to the child, is not reviewable by statute. Thus, the issue is

4 whether this conduct is a “final agency action for which there is no other adequate remedy

5 in a court.” There are two conditions that:

6

must be satisfied for agency action to be “final” under the APA. “First, the

7

action must mark the consummation of the agency’s decisionmaking process - it must not be of a merely tentative or interlocutory nature. And second, the

8

action must be one by which rights or obligations have been determined, or

9

from which legal consequences will flow.”

10 United States Army Corps of Engineers v. Hawkes Co., ___ U.S. ___, 136 S.Ct. 1807, 1813

11 (2016) (quoting Bennett v. Spear, 520 U.S. 154, 177-78 (1997)). Here, Plaintiffs have not

12 alleged separation from their children satisfies either of these requirements. Nor did they

13 address these requirements in their opposition brief. Furthermore, since the filing of the

14 Complaint Ms. L. has been reunited with her daughter, and the Government claims in its

15 briefing that it is in the process of deciding whether to reunify Ms. C. and her son pursuant

16 to the TVPRA. Under these circumstances, Plaintiffs have failed to allege facts sufficient

17 to show “final agency action” subject to review under the APA. Based on this failure, the

18 Court grants Defendants’ motion to dismiss this claim.

19 G. The Asylum Act

20

Finally, Defendants argue Plaintiffs have failed to state a claim under the Asylum

21 Act. Defendants assert Plaintiffs lack standing to bring a claim under the Act, and have

22 failed to allege sufficient facts to state a claim under the Act.

23

Initially, it is unclear what portion of the Asylum Statute Plaintiffs are relying on as

24 the basis for this claim. They cite 8 U.S.C. § 1158 in their Amended Complaint, and allege

25 separation from their children violates the statute “because it impedes their ability to pursue

26 their asylum claims.” (Am. Compl. ¶ 85.) However, 8 U.S.C. § 1158(d), which sets out

27 the procedure for applying for asylum, states: “Nothing in this subsection shall be

28 construed to create any substantive or procedural right or benefit that is legally enforceable

24 18cv0428 DMS (MDD)

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1 by any party against the United States or its agencies or officers or any other person.” 8

2 U.S.C. § 1158(d)(7). Although no party addressed this subsection of the statute on the

3 present motion, it is unclear to the Court whether Plaintiffs have a private right of action

4 under the Asylum Statute in the first instance. Absent any authority that a private right of

5 action exists, the Court grants Defendants’ motion to dismiss this claim.

6

III.

7

CONCLUSION AND ORDER

8

For the reasons set out above, the Court grants in part and denies in part Defendants’

9 motion to dismiss. Specifically, the Court grants Defendants’ motion to dismiss Plaintiffs’

10 claims under the APA and the Asylum Statute, and denies Defendants’ motion to dismiss

11 Plaintiffs’ due process claim. Although Plaintiffs did not request leave to amend in the

12 event any portion of Defendants’ motion was granted, the Court grants Plaintiffs leave to

13 file a Second Amended Complaint that cures the pleading deficiencies set out above. If

14 Plaintiffs wish to do so, they shall file their Second Amended Complaint on or before July

15 3, 2018.

16

IT IS SO ORDERED.

17 Dated: June 6, 2018

18

19

20

21

22

23

24

25

26

27

28

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1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 Ms. L.; et al.,

Case No.: 18cv0428 DMS (MDD)

12

Petitioners-Plaintiffs,

13 v.

14 U.S Immigration and Customs
15 Enforcement (“ICE”); et al., Respondents-Defendants.
16

ORDER GRANTING IN PART PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

17

18

Pending before the Court is Plaintiffs’ motion for class certification. Plaintiffs, on

19 behalf of themselves and putative class members, allege the Government has a widespread

20 practice or policy of separating migrant families, and placing the children in facilities for

21 “unaccompanied minors.” Recent developments validate Plaintiffs’ allegations. Plaintiffs

22 seek to certify a class of similarly situated individuals for whom injunctive relief can be

23 entered prohibiting separation of migrant parents from their minor children without first

24 determining they are unfit parents or otherwise present a risk of danger to their children, as

25 well as an injunction requiring reunification of migrant parents who are returned to

26 immigration custody upon completion of any criminal proceedings, absent a determination

27 that the parent is unfit or presents a danger to the child.

28

1 18cv0428 DMS (MDD)

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1

On June 6, 2018, the Court entered an order finding Plaintiffs had stated a claim for

2 violation of their substantive due process rights to family integrity under the Fifth

3 Amendment to the United States Constitution based on claims that the Government had

4 separated them from their minor children while Plaintiffs were held in immigration

5 detention without a showing that they were unfit parents or otherwise presented a danger

6 to their children. Ms. L. v. U.S. Immigration & Customs Enf’t, 302 F. Supp. 3d 1149, 2018

7 WL 2725736, at *9-12 (S.D. Cal. June 6, 2018). Since the issuance of that Order, the

8 practice of family separation has intensified and become a matter of intense national

9 debate.

10

The Attorney General of the United States announced a “zero tolerance” policy.1

11 Under that policy, all adults entering the United States illegally would be subject to

12 criminal prosecution, and if accompanied by a minor child, the child would be separated

13 from the parent. Over the ensuing weeks, hundreds of migrant children were separated

14 from their parents, further stoking the flames of nationwide protest. On June 20, 2018, the

15 President of the United States signed an Executive Order (“EO”) to “maintain family unity”

16 by keeping migrant families together during criminal and immigration proceedings to the

17 extent permitted by law, while maintaining “rigorous[]” enforcement of immigration laws.

18 See Executive Order, Affording Congress an Opportunity to Address Family Separation §

19 1, 2018 WL 3046068 (June 20, 2018). On Saturday, June 23, 2018, the Department of

20 Homeland Security (“DHS”) issued a “Fact Sheet” outlining the Government’s efforts to

21 “ensure that those adults who are subject to removal are reunited with their children for the

22 purposes of removal.”2

23

24

25 1 See U.S. Att’y Gen., Attorney General Sessions Delivers Remarks Discussing the

Immigration Enforcement Actions of the Trump Administration (May 7, 2018), 26 https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-

27 discussing-immigration-enforcement-actions.

2 See U.S. Dep’t of Homeland Sec., Fact Sheet: Federal Regulations Protecting the

28 Confidentiality

of

Asylum

Applicants

(June

23,

2018),

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1

Following issuance of the EO, a status conference was held on June 22, 2018, at

2 which time Lee Gelernt and Bardis Vakili appeared for Plaintiffs, and Sarah Fabian and

3 Samuel Bettwy appeared for Defendants. After hearing from counsel and considering the

4 parties’ supplemental briefing, Plaintiffs’ motion for class certification is granted in part

5 for the reasons set forth below.

6

I.

7

DISCUSSION3

8

Plaintiff Ms. L. and her minor child S.S. arrived lawfully at one of our nation’s ports

9 of entry seeking asylum. Ms. L. and her child were detained together for several days, and

10 later “forcibly separated” by immigration officials without a determination that Ms. L. was

11 unfit or presented a danger to her child. S.S., then six years old, was placed in a government

12 facility for “unaccompanied minors” over a thousand miles away from Ms. L. Ms. L. and

13 S.S. were separated for nearly five months.

14

Plaintiff Ms. C. and her minor child J. entered the United States illegally between

15 ports of entry. Upon apprehension by a Border Patrol agent, Ms. C. made a claim for

16 asylum. She was arrested, charged with misdemeanor illegal entry under 8 U.S.C. §

17 1325(a) (“criminal improper entry” under EO § 1), and served 25 days in custody. After

18 serving her criminal sentence, Ms. C. was returned to immigration detention to contest

19 removal and pursue her asylum claim. Ms. C.’s minor son was also placed in a government

20 facility for “unaccompanied minors,” hundreds of miles away from his mother.

21 Undisputed news reports reflect the two were reunited earlier this month, after being

22

23

24

25 https://www.dhs.gov/news/2018/06/23/fact-sheet-zero-tolerance-prosecution-and-familyreunification.
26 3 The factual background set out herein is abbreviated. A full discussion of the facts
27 relevant to this lawsuit is set out in the Order granting Plaintiffs’ motion for classwide preliminary injunction filed concurrently herewith and Order granting in part and denying
28 in part Defendants’ motion to dismiss. Ms. L., 2018 WL 2725736, at *1-3.

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1 separated for over eight months.4 Plaintiffs allege Defendants failed to reunite Ms. C. and

2 her son during this period of time even though Ms. C.’s fitness as a parent was never

3 questioned by government officials. Plaintiffs do not challenge the initial separation of

4 Ms. C. from her child, as the separation resulted from prosecution for illegal entry and

5 placement in criminal custody.5 Rather, Ms. C. challenges the Government’s failure to

6 reunify her with her son after she completed her 25-day criminal sentence and was returned

7 to immigration detention.

8

Ms. L.’s claim is based on the initial separation from her child while in immigration

9 detention; Ms. C.’s claim is based on the failure to reunite her with her child after serving

10 her criminal sentence and being returned to immigration detention. Both claims focus on

11 government conduct separating parents from minor children while the parent is detained

12 pending immigration proceedings without a showing the parent is unfit or presents a danger

13 to the child. Plaintiffs allege separation from their children under these circumstances

14

15 4 See Tom Llamas et al., Brazilian Mother Reunites with 14-year-old son 8 Months After
16 Separation at U.S. Border, ABC NEWS (June 5, 2018, 6:50 PM),
17 https://abcnews.go.com/US/brazilian-mother-reunites-14-year-son-monthsseparation/story?id=55666724.
18 5 In their Supplemental Briefing, Plaintiffs point out that when a parent is prosecuted for
19 illegal entry, separation is not required. “If the parent is being prosecuted but is nonetheless being held in a DHS facility, then there is no need to separate the family, because DHS can
20 house families.” (Pls.’ Suppl. Br. at 8.) The EO in fact provides for “family unity” by
21 directing DHS “to maintain custody of alien families during the pendency of any criminal improper entry or immigration proceedings[,]” to the extent permitted by law. EO § 3.
22 This is a new development. Plaintiffs argue the confusion is the result of the “government’s
23 shifting practice regarding the detention of parents facing criminal prosecution.” (Pls.’ Suppl. Br. at 8.) For purposes of defining the class, however, the Court will carve out
24 parents who fall within the EO. EO § 2(a) (defining “Alien family”). The EO provides for
25 “family unity” and detaining “family units” together, id. §§ 1, 3, so further relief may be unnecessary. The EO also employs its own standard for determining detention of alien
26 families. Id. § 3(b). To avoid potential conflict with the standard employed by the EO and
27 that used by the Court, the class definition will not include such individuals. (See Defs.’ Suppl. Br. at 3.) The Court reserves on other issues that might arise given these recent
28 developments.

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1 violates their right to family integrity under the Due Process Clause of the Fifth

2 Amendment to the United States Constitution. In the Complaint, Plaintiffs alleged that

3 hundreds of other migrant families had been subjected to the same treatment and that this

4 had become a widespread practice of the current Administration. They cited numerous

5 reports that the Government would soon adopt a formal national policy of separating

6 migrant families and placing the children in government facilities for “unaccompanied

7 minors.” The Government initially denied it had such a practice or policy, but has since

8 distanced itself from that position in light of recent developments—including the zero

9 tolerance policy which touted family separation.

10

Plaintiffs, on behalf of themselves and putative class members, request certification

11 of the following class:

12

All adult parents nationwide who (1) are or will be detained in immigration

13

custody by the Department of Homeland Security, and (2) have a minor child who is or will be separated from them by DHS and detained in ORR custody,

14

absent a demonstration in a hearing that the parent is unfit or presents a danger

15

to the child.

16 (Am. Compl. ¶ 65; Mem. in Supp. of Mot. at 1.) Plaintiffs argue this proposed class meets

17 the requirements of Federal Rule of Civil Procedure 23(a) and (b)(2). Defendants dispute

18 these requirements are met. The only claim currently at issue and subject to certification

19 is Plaintiffs’ due process claim.6 Plaintiffs’ pending motion for classwide preliminary

20 injunction is addressed in a separate order.

21 A. Legal Standard

22

“The class action is ‘an exception to the usual rule that litigation is conducted by and

23 on behalf of the individual named parties only.’” Wal-Mart Stores, Inc. v. Dukes, 564 U.S.

24

25

26 6 The Court expresses no opinion on whether Plaintiffs are entitled to certification on any
27 other claim that may be asserted in Plaintiffs’ Second Amended Complaint. At the hearing on June 22, 2018, Plaintiffs’ counsel indicated an amended pleading would be forthcoming,
28 but requested the Court to rule on the presently pending motions.

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1 338, 348 (2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979)). To qualify

2 for the exception to individual litigation, the party seeking class certification must provide

3 facts sufficient to satisfy the requirements of Federal Rule of Civil Procedure 23(a) and (b).

4 Doninger v. Pacific Northwest Bell, Inc., 564 F.2d 1304, 1308-09 (9th Cir. 1977). “The

5 Rule ‘does not set forth a mere pleading standard.’” Comcast Corp. v. Behrend, 569 U.S.

6 27, 33 (2013) (quoting Dukes, 564 U.S. at 350). “Rather, a party must not only ‘be prepared

7 to provide that there are in fact sufficiently numerous parties, common questions of law or

8 fact,’ typicality of claims of defenses, and adequacy of representation, as required by Rule

9 23(a). The party must also satisfy through evidentiary proof at least one of the provisions

10 of Rule 23(b)[.]” Id. (quoting Dukes, 564 U.S. at 350) (internal citation omitted).

11

Federal Rule of Civil Procedure 23(a) sets out four requirements for class

12 certification—numerosity, commonality, typicality, and adequacy of representation. A

13 showing that these requirements are met, however, does not warrant class certification.

14 The plaintiff also must show that one of the requirements of Rule 23(b) is met. Here,

15 Plaintiffs assert they meet the requirements of Rule 23(b)(2).

16

Rule 23(b)(2) allows class treatment when “the party opposing the class has acted or

17 refused to act on grounds that apply generally to the class, so that final injunctive relief or

18 corresponding declaratory relief is appropriate respecting the class as a whole[.]” Fed. R.

19 Civ. P. 23(b)(2). Because the relief requested in a (b)(2) class is prophylactic, enures to

20 the benefit of each class member, and is based on accused conduct that applies uniformly

21 to the class, notice to absent class members and an opportunity to opt out of the class is not

22 required. See Dukes, 564 U.S. at 361-62 (noting relief sought in a (b)(2) class “perforce

23 affect[s] the entire class at once” and thus, the class is “mandatory” with no opportunity to

24 opt out).

25

The district court must conduct a rigorous analysis to determine whether the

26 prerequisites of Rule 23 have been met. Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982).

27 It is a well-recognized precept that “the class determination generally involves

28 considerations that are ‘enmeshed in the factual and legal issues comprising the plaintiff’s

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1 cause of action.”’ Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 (1978) (quoting

2 Mercantile Nat’l Bank v. Langdeau, 371 U.S. 555, 558 (1963)). However, “[a]lthough

3 some inquiry into the substance of a case may be necessary to ascertain satisfaction of the

4 commonality and typicality requirements of Rule 23(a), it is improper to advance a decision

5 on the merits to the class certification stage.” Moore v. Hughes Helicopters, Inc., 708 F.2d

6 475, 480 (9th Cir. 1983) (citation omitted); see also Nelson v. United States Steel Corp.,

7 709 F.2d 675, 680 (11th Cir. 1983) (plaintiff’s burden “entails more than the simple

8 assertion of [commonality and typicality] but less than a prima facie showing of liability”)

9 (citation omitted). Rather, the court’s review of the merits should be limited to those

10 aspects relevant to making the certification decision on an informed basis. See Fed. R. Civ.

11 P. 23 advisory committee notes. If a court is not fully satisfied that the requirements of

12 Rule 23(a) and (b) have been met, certification should be refused. Falcon, 457 U.S. at 161.

13 B. Rule 23(a)

14

Rule 23(a) and its prerequisites for class certification—numerosity, commonality,

15 typicality, and adequacy of representation—are addressed in turn.

16

1. Numerosity

17

Rule 23(a)(1) requires the class to be “so numerous that joinder of all members is

18 impracticable.” Fed. R. Civ. P. 23(a)(1); Staton v. Boeing Co., 327 F.3d 938, 953 (9th Cir.

19 2003). The plaintiff need not state the exact number of potential class members; nor is a

20 specific minimum number required. Arnold v. United Artists Theatre Circuit, Inc., 158

21 F.R.D. 439, 448 (N.D. Cal. 1994). Rather, whether joinder is impracticable depends on

22 the facts and circumstances of each case. Id.

23

Here, Plaintiffs asserted in their motion that there were as many as 700 families that

24 fell within the proposed class. In support of this assertion, Plaintiffs presented declarations

25 from a number of attorneys that provide legal services to immigrant families in border

26 States. (See Mem. in Supp. of Mot., Exs. 13-15.) Those attorneys declared they had seen

27 hundreds of situations of children separated from their parents after being apprehended by

28 DHS officials. (See id., Ex. 13 ¶ 4; Ex. 14 ¶¶ 3-5; Ex. 15 ¶ 2.) One of those attorneys also

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1 stated separations were occurring even when there was no “substantiated reason to suspect

2 that the adult and child are not in fact related, or reason to suspect that the child is in

3 imminent physical danger from the adult[.]” (Id., Ex. 14 ¶ 6;) (see also id., Ex. 15 ¶ 3)

4 (stating “parents have been forcibly separated from their children and placed in detention

5 for extended periods of time without any information regarding their whereabouts, safety,

6 or wellbeing.”). This evidence is sufficient to show the numerosity requirement is met

7 here. Accordingly, Plaintiffs have satisfied the first requirement of Rule 23(a).7

8

2. Commonality

9

The second element of Rule 23(a) requires the existence of “questions of law or fact

10 common to the class[.]” Fed. R. Civ. P. 23(a)(2). This element has “‘been construed

11 permissively,’ and ‘[a]ll questions of fact and law need not be common to satisfy the rule.’”

12 Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011) (quoting Hanlon v.

13 Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998)). “However, it is insufficient to

14 merely allege any common question[.]” Id. Instead, the plaintiff must allege the existence

15 of a “common contention” that is of “such a nature that it is capable of classwide

16 resolution[.]” Dukes, 564 U.S. at 350. As summarized by the Supreme Court:

17

What matters to class certification ... is not the raising of common

18

‘questions’—even in droves—but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the

19

litigation. Dissimilarities within the proposed class are what have the

20

potential to impede the generation of commons answers.

21

22 7 Notably, Defendants do not challenge whether the numerosity requirement is met, and at
23 the May 4, 2018 hearing on this motion, they did not dispute Plaintiffs’ approximation of the number of families that had been separated. Since the hearing, DHS has stated that
24 “1,995 minors were separated from their ‘alleged adult guardians’ at the southern border
25 in just over a month long period.” See Brian Naylor, DHS: Nearly 2,000 Children Separated from Adults at Border in 6 Weeks, NPR (June 16, 2018, 7:01 AM),
26 https://www.npr.org/2018/06/16/620451012/dhs-nearly-2-000-children-separated-from-
27 adults-at-border-in-six-weeks. On June 23, 2018, DHS indicated in its Fact Sheet that as of June 20 it had 2,053 separated minors in HHS funded facilities. U.S. Dep’t of Homeland
28 Sec., supra note 2.

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1 Id. (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84

2 N.Y.U. L. Rev. 97, 132 (2009)).

3

In this case, Plaintiffs assert there are a number of questions common to the class.

4 First, they assert they are alleging the same legal claim, namely whether Defendants’

5 practice of separating putative class members from their minor children and continued

6 separation without a hearing and determination that they are unfit parents or present a

7 danger to their children violates their right to family integrity under the Due Process

8 Clause. Second, Plaintiffs contend the facts underlying their claims are the same: each

9 was detained with their child by government actors, who then separated them from their

10 children, or failed to reunite them, without a showing they were unfit or presented a danger

11 to the child. Third, Plaintiffs assert they suffered the same injury, namely separation from

12 their children in violation of their constitutional rights. Fourth, Plaintiffs contend they are

13 challenging the same government practice regarding separation of parents and children or

14 the refusal to reunite parents and children absent a showing the parent is unfit or presents

15 a danger to the child. Finally, Plaintiffs claim they are seeking the same relief: a

16 declaration that the conduct at issue is unlawful, and injunctions (1) preventing the

17 separation of such parents and children without a showing the parent is unfit or presents a

18 danger to the child, and (2) requiring reunification of the families already separated absent

19 similar findings.

20

Defendants argue these questions cannot be answered on a classwide basis because

21 the circumstances surrounding each separation of parent and child are different. In support

22 of this argument, Defendants point to the circumstances giving rise to the separations of

23 Plaintiffs and their children in this case, which are indisputably different. Ms. L. was

24 separated from her daughter because the Government allegedly could not confirm

25 parentage (though a DNA test taken several months after Ms. L. was separated from her

26 child confirmed the relationship), while Ms. C. was separated from her son when she was

27 apprehended near the border, charged with illegal entry, and placed in custody pending

28 resolution of her criminal case.

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1

In addition, at oral argument Government counsel set forth another scenario that

2 could result in family separation, namely parents with criminal history that prevents them

3 from being released into the community along with their child or housed together in a

4 detention center with other families.8 Obviously, these parents would be situated

5 differently from Ms. L. and Ms. C., neither of whom presented this situation. Unlike with

6 Ms. L. and Ms. C., the Government would have a legitimate interest in continuing detention

7 of individuals who posed a flight risk or danger to the community or others in a family

8 detention facility because of that person’s criminal history. A parent with some kind of

9 communicable disease could also raise legitimate safety concerns.

10

Plaintiffs concede a parent with a communicable disease might be separately

11 detained, but disagree that criminal history can serve as a generalized exception to the

12 Government’s new policy of “family unity.” Criminal history comes in all gradations,

13 from minor misdemeanors to violent felony offenses. Some types of criminal history

14 would clearly justify separate detention of the parent, while other criminal history might

15 not—and the exercise of governmental discretion to separately detain that individual might

16 be challenged. Whether separate detention of such parents violates substantive due process

17 could raise individualized inquiries.

18

In addition, Plaintiffs’ proposed class definition could include migrant families

19 apprehended in the interior of the country. The number of such families is presently

20 unknown and not part of the record before the Court. This group could include families

21 present in the country for quite some time, with established family roots and connections.

22 These parents also might have both citizen and alien children. The application of

23

24
25 8 At oral argument on May 4, 2018, Government counsel pointed out that one of the declarations submitted by a putative class member involved a “mother who had a
26 significant criminal history, so ICE [Immigration and Customs Enforcement] was unable 27 to place her in the family residential center because … [such] centers are a very open
setting. There is [sic] sort of pods. Families are housed together…. There is free 28 movement. It is not a dententive setting.” (ECF No. 70, at 21-22.)

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1 substantive due process to this potential group has not been briefed, and presents issues

2 that Plaintiffs have indicated they are prepared to address at a later time.

3

The focus of the present litigation has always been on migrant families entering the

4 United States at or between designated ports of entry. Most of these families are seeking

5 asylum but not all. (See Am. Compl. ¶ 4) (“[A]lmost all of these individuals have fled

6 persecution and are seeking asylum in the United States.”). Thus, although Plaintiffs’

7 proposed class does not exclude parents with criminal history or communicable disease, or

8 those in the interior of the country, the Court finds it appropriate to carve them out of the

9 proposed class. See Wang v. Chinese Daily News, Inc., 737 F.3d 538, 546 (9th Cir. 2013)

10 (stating Federal Rule of Civil Procedure 23 “provides district courts with broad authority

11 at various stages in the litigation … to redefine … classes as appropriate.”) (citation

12 omitted). Accordingly, the Court excepts from the class definition—without prejudice to

13 redefining the class on a more fulsome record—parents with criminal history or

14 communicable disease, or those apprehended in the interior of the country.9

15

As discussed, the focus of this litigation is on the Government’s practice of

16 separating migrant parents and children without any showing the parent is unfit or presents

17 a danger to the child, and the continued separation of migrant families without any showing

18 the parent is unfit or presents a danger to the child even after the parents have completed

19 their criminal proceedings and are returned to immigration detention. Those circumstances

20

21 9 At oral argument on May 4, 2018, Government counsel also argued that lack of “bed
22 space” could cause family separation. At that time, the “total capacity in residential centers
23 [was] less than 2,700[,]” according to counsel. (ECF No. 70, at 9.) And there was only one such center for migrant fathers and children, which has “84 or 86 beds.” (Id. at 43-
24 44.) Recent events, however, have overtaken that argument. The Government is actively
25 constructing or converting facilities, even military facilities, to manage the growing population of migrant families. The EO directs federal agencies to marshal resources to
26 support family custody. See EO § 3(c) (“The Secretary of Defense shall take all legally
27 available measure to provide to the Secretary [of Homeland Security], upon request, any existing facilities available for the housing and care of alien families, and shall construct
28 such facilities if necessary and consistent with law.”).

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1 are present in the cases of Ms. L. and Ms. C. Ms. L. lawfully arrived at a port of entry and

2 was separated from her daughter for nearly five months without any showing she was unfit

3 or presented a danger to her, and Ms. C.’s separation from her son continued even after she

4 was returned to immigration custody and despite any showing she was unfit or presented a

5 danger to him. The circumstances of Plaintiffs and their children in this case and the

6 situations described in the declarations submitted in support of this motion are evidence

7 there is a common practice at issue here, namely separating migrant parents and children

8 and failing to reunite them without a showing the parent is unfit or presents a danger to the

9 child. (See Mem. in Supp. of Mot., Exs. 12-15; Reply in Supp. of Mot., Exs. 21-26) (five

10 declarations of parents arriving at designated point of entry, and one declaration of a parent

11 apprehended between ports of entry). Whether that practice violates substantive due

12 process is a question common to the class, and the answer to that question is “apt to drive

13 the resolution of the litigation.” Dukes, 564 U.S. at 350 (quoting Nagareda, supra, at 132).

14

“[C]ommonality only requires a single significant question of law or fact[,]” Mazza

15 v. Am. Honda Motor Co., Inc., 666 F.3d 581, 589 (9th Cir. 2012) (citing Dukes, 564 U.S.

16 at 359), and that is particularly so where a suit “challenges a system-wide practice or policy

17 that affects all of the putative class members.” Armstrong v. Davis, 275 F.3d 849, 868 (9th

18 Cir. 2001). The Ninth Circuit’s decision in Parsons v. Ryan, 754 F.3d 657 (9th Cir. 2014),

19 is instructive. In that case, the court was faced with a commonality question similar to the

20 one presented here. That case involved a claim that certain policies and practices of the

21 Arizona Department of Corrections (“ADC”) violated the Eighth Amendment’s

22 proscription against cruel and unusual punishment. Id. at 662-63. The defendants in

23 Parsons, similar to Defendants here, argued the commonality requirement was not met

24 because the plaintiffs’ claims were simply “‘a collection of individual constitutional

25 violations,’ each of which hinges on ‘the particular facts and circumstances of each case.’”

26 Id. at 675 (quoting Defs.’ Reply Br. at 9-10). The Ninth Circuit disagreed. It found the

27 defendants’ argument “rest[ed] upon a misunderstanding of the plaintiffs’ allegations.” Id.

28 at 676. Contrary to the defendants’ interpretation of the claim, the court stated, “The

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1 Complaint does not allege that the care provided on any particular occasion to any

2 particular inmate (or group of inmates) was insufficient, but rather that ADC policies and

3 practices of statewide and systemic application expose all inmates in ADC custody to a

4 substantial risk of serious harm.” Id. (internal citation omitted). The court then went on to

5 state:

6

These policies and practices are the “glue” that holds together the putative

7

class …; either each of the policies and practices is unlawful as to every inmate or it is not. That inquiry does not require us to determine the effect of

8

those policies and practices upon any individual class member (or class

9

members) or to undertake any other kind of individualized determination.

10 Id. at 678.

11

Here, as in Parsons, Plaintiffs’ claims do not rest on the individual circumstances of

12 each separation of parent and child. Rather, Plaintiffs are challenging the Government’s

13 practice of separating migrant parents and children and keeping them separate without a

14 showing the parent is unfit or presents a danger to the child. Under these circumstances,

15 the reasoning of Parsons applies here, and that reasoning compels the same conclusion,

16 namely that the commonality requirement is met.

17

3. Typicality

18

The next requirement of Rule 23(a) is typicality, which focuses on the relationship

19 of facts and issues between the class and its representatives. “[R]epresentative claims are

20 ‘typical’ if they are reasonably co-extensive with those of absent class members; they need

21 not be substantially identical.” Hanlon, 150 F.3d at 1020. “The test of typicality is whether

22 other members have the same or similar injury, whether the action is based on conduct

23 which is not unique to the named plaintiffs, and whether other class members have been

24 injured by the same course of conduct.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508

25 (9th Cir. 1992) (citation and internal quotation marks omitted). The typicality requirement

26 will occasionally merge with the commonality requirement, Parsons, 754 F.3d at 687,

27 because “[b]oth serve as guideposts for determining whether under the particular

28 circumstances maintenance of a class action is economical and whether the named

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1 plaintiff’s claim and the class claims are so interrelated that the interests of the class

2 members will be fairly and adequately protected in their absence.” Dukes, 564 U.S. at 349

3 n.5.

4

Here, Plaintiffs rely on the arguments raised on commonality to support a showing

5 of typicality, and Defendants rely on the arguments raised in response thereto to show the

6 typicality requirement is also not met. For the reasons set out above, however, the Court

7 finds Plaintiffs’ claims are typical of the claims of absent class members.

8

Both Plaintiffs were separated or remained separated from their children without any

9 showing they were unfit or presented a danger to their child. By definition, each member

10 of the proposed class will have been subject to this same practice. Furthermore, Plaintiffs’

11 claims are the same as those raised by absent class members, namely the Government’s

12 practice of separating parents and children under the circumstances set out above violates

13 their right to due process. Finally, the injuries suffered by the named Plaintiffs are the

14 same as those suffered by members of the proposed class: separation from their children.

15 See Parsons, 754 F.3d at 685 (finding typicality requirement met where named plaintiffs

16 “allege ‘the same or [a] similar injury’ as the rest of the putative class; they allege that this

17 injury is a result of a course of conduct that is not unique to any of them; and they allege

18 that the injury follows from the course of conduct at the center of the class claims.”).

19 Certainly, the claims of the named Plaintiffs and the claims of class members “are so

20 interrelated that the interests of the class members will be fairly and adequately protected

21 in their absence.” Dukes, 564 U.S. at 349 n.5. The typicality requirement is therefore met.

22

4. Adequacy of Representation

23

The final requirement of Rule 23(a) is adequacy. Rule 23(a)(4) requires a showing

24 that “the representative parties will fairly and adequately protect the interests of the class.”

25 Fed. R. Civ. P. 23(a)(4). This requirement is grounded in constitutional due process

26 concerns; “absent class members must be afforded adequate representation before entry of

27 a judgment which binds them.” Hanlon, 150 F.3d at 1020 (citing Hansberry v. Lee, 311

28 U.S. 32, 42-43 (1940)). In reviewing this issue, courts must resolve two questions: “(1) do

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1 the named plaintiffs and their counsel have any conflicts of interest with other class

2 members and (2) will the named plaintiffs and their counsel prosecute the action vigorously

3 on behalf of the class?” Id. (citing Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507,

4 512 (9th Cir. 1978)). The named plaintiffs and their counsel must have sufficient “zeal and

5 competence” to protect the interests of the rest of the class. Fendler v. Westgate-California

6 Corp., 527 F.2d 1168, 1170 (9th Cir. 1975).

7

As to the named Plaintiffs, Defendants argue they are not adequate representatives

8 of the proposed class because both Plaintiffs’ claims are moot and the Court lacks venue

9 over Ms. C.’s claims. For the reasons set out in the Court’s Order on Defendants’ motion

10 to dismiss, the Court rejects these arguments as a basis for finding Plaintiffs to be

11 inadequate representatives. Rather, Plaintiffs have shown they do not have any conflicts

12 of interest with other class members and that they will protect the interests of the class.

13 Accordingly, Plaintiffs are adequate representatives for the class.

14

Plaintiffs have also demonstrated their counsel are adequate. There is no conflict

15 between Plaintiffs’ counsel and the members of the proposed class, and counsel have

16 demonstrated they will prosecute the case vigorously on behalf of the class. Accordingly,

17 the requirement of Rule 23(a)(4) is met.

18 C. Rule 23(b)

19

Having satisfied the requirements of Rule 23(a), the next issue is whether Plaintiffs

20 have shown that at least one of the requirements of Rule 23(b) is met. Amchem Products,

21 Inc. v. Windsor, 521 U.S. 591, 614-15 (1997). Here, Plaintiffs assert they have met the

22 prerequisites of certification for a class under Rule 23(b)(2).

23

Under Rule 23(b)(2), class certification may be appropriate where a defendant acted

24 or refused to act in a manner applicable to the class generally, rendering injunctive and

25 declaratory relief appropriate to the class as a whole. Fed. R. Civ. P. 23(b)(2). The parties

26 agree:

27

The key to the (b)(2) class is “the indivisible nature of the injunctive or

28

declaratory remedy warranted—the notion that the conduct is such that it can

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1

be enjoined or declared unlawful only as to all of the class members or as to

2

none of them.” [citation omitted] In other words, Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each

3

member of the class. It does not authorize class certification when each

4

individual class member would be entitled to a different injunction or declaratory judgment against the defendant.

5

6 Dukes, 564 U.S. at 360.

7

Plaintiffs here argue this case is particularly suited for certification under Rule

8 23(b)(2) because they are presenting a civil rights challenge to a practice that applies to all

9 members of the proposed class, and that practice can be declared lawful or unlawful as to

10 the class as a whole. See Walters v. Reno, 145 F.3d 1032, 1046-47 (9th Cir. 1998) (stating

11 Rule 23(b)(2) “was adopted in order to permit the prosecution of civil rights actions[,]” and

12 is satisfied “if class members complain of a pattern or practice that is generally applicable

13 to the class as a whole.”); see also Parsons, 754 F.3d at 686 (same).

14

Defendants assert individual inquiries would be necessary to determine who falls

15 within the class definition, which precludes certification under Rule 23(b)(2). Defendants

16 point out the proposed class only includes the time period “‘while a parent is in immigration

17 custody, and not the period of separation while the parent is in jail for criminal

18 conviction.’” (Opp’n to Mot. at 14) (quoting ECF No. 35-1, at 11.) Defendants argue the

19 problem with Plaintiffs’ proposed class definition is found in the case of Ms. C.: “It is

20 unclear at what point Ms. C. would become a member of Plaintiffs’ proposed class—

21 whether at the point she was referred for prosecution by CBP [Customs and Border

22 Protection], or later when she was released from criminal custody and detained by ICE in

23 an immigration detention facility.” (Id.)

24

However, the problem posed, namely, when someone becomes a member of the

25 class, is easily resolved. As Plaintiffs explain, a person becomes a member of the class

26 when they are held in immigration detention without their children. (Reply Br. at 7.)

27 Defendants are correct that this determination may involve some individualized inquiries,

28

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1 but those inquiries do not detract from the “indivisible” nature of the claim alleged and the

2 relief sought in this case. Dukes, 564 U.S. at 360.

3

Contrary to Defendants’ argument, Plaintiffs have demonstrated that certification

4 under Rule 23(b)(2) is appropriate here. As stated above, the crux of this case is the

5 Government’s practice of separating migrant parents from their minor children and

6 continuing to separate them without any showing the parent is unfit or presents a danger to

7 the child. Based on the record before the Court, the Government has “acted ... in a manner

8 applicable to the class generally, rendering injunctive and declaratory relief appropriate to

9 the class as a whole[.]” Fed. R. Civ. P. 23(b)(2). A determination regarding whether the

10 practice of family separation and failure to reunify such families violates due process and

11 warrants injunctive relief would apply to each class member and drive resolution of the

12 litigation. Accordingly, Rule 23(b)(2) is satisfied.

13

II.

14

CONCLUSION AND ORDER

15

For these reasons, Plaintiffs’ motion for class certification is granted in part as to

16 Plaintiffs’ substantive due process claim. Specifically, the Court certifies the following

17 class under Federal Rule of Civil Procedure 23(b)(2), with the exceptions noted above and

18 as modified:

19

All adult parents who enter the United States at or between designated ports

20

of entry who (1) have been, are, or will be detained in immigration custody by the DHS, and (2) have a minor child who is or will be separated from them

21

by DHS and detained in ORR custody, ORR foster care, or DHS custody,

22

absent a determination that the parent is unfit or presents a danger to the child.10

23

24

25

26
27 10 As discussed in text, infra, the class does not include migrant parents with criminal history or communicable disease, or those who are in the interior of the United States or
28 subject to the EO.

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1 Plaintiffs are appointed as Class Representatives, and Counsel from the ACLU

2 Immigrants’ Rights Project and the ACLU of San Diego and Imperial Counties are

3 appointed as counsel for this Class pursuant to Federal Rule of Civil Procedure 23(g).

4

IT IS SO ORDERED.

5 Dated: June 26, 2018

6

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14

15

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1

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5

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8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 Ms. L.; et al.,

Case No.: 18cv0428 DMS (MDD)

12

Petitioners-Plaintiffs,

13 v.

14 U.S Immigration and Customs
15 Enforcement (“ICE”); et al., Respondents-Defendants.
16

ORDER GRANTING PLAINTIFFS’ MOTION FOR CLASSWIDE PRELIMINARY INJUNCTION

17

18

Eleven weeks ago, Plaintiffs leveled the serious accusation that our Government was

19 engaged in a widespread practice of separating migrant families, and placing minor

20 children who were separated from their parents in government facilities for

21 “unaccompanied minors.” According to Plaintiffs, the practice was applied

22 indiscriminately, and separated even those families with small children and infants—many

23 of whom were seeking asylum. Plaintiffs noted reports that the practice would become

24 national policy. Recent events confirm these allegations. Extraordinary relief is requested,

25 and is warranted under the circumstances.

26

On May 7, 2018, the Attorney General of the United States announced a “zero

27 tolerance policy,” under which all adults entering the United States illegally would be

28 subject to criminal prosecution, and if accompanied by a minor child, the child would be

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1 separated from the parent.1 Over the ensuing weeks, hundreds of migrant children were

2 separated from their parents, sparking international condemnation of the practice. Six days

3 ago on June 20, 2018, the President of the United States signed an Executive Order (“EO”)

4 to address the situation and to require preservation of the “family unit” by keeping migrant

5 families together during criminal and immigration proceedings to the extent permitted by

6 law, while also maintaining “rigorous[]” enforcement of immigration laws. See Executive

7 Order, Affording Congress an Opportunity to Address Family Separation § 1, 2018 WL

8 3046068 (June 20, 2018). The EO did not address reunification of the burgeoning

9 population of over 2,000 children separated from their parents. Public outrage remained

10 at a fever pitch. Three days ago on Saturday, June 23, 2018, the Department of Homeland

11 Security (“DHS”) issued a “Fact Sheet” outlining the government’s efforts to “ensure that

12 those adults who are subject to removal are reunited with their children for the purposes of

13 removal.”2

14

Plaintiffs assert the EO does not eliminate the need for the requested injunction, and

15 the Fact Sheet does not address the circumstances of this case. Defendants disagree with

16 those assertions, but there is no genuine dispute that the Government was not prepared to

17 accommodate the mass influx of separated children. Measures were not in place to provide

18 for communication between governmental agencies responsible for detaining parents and

19 those responsible for housing children, or to provide for ready communication between

20 separated parents and children. There was no reunification plan in place, and families have

21 been separated for months. Some parents were deported at separate times and from

22

23 1 See U.S. Att’y. Gen., Attorney General Sessions Delivers Remarks Discussing the
24 Immigration Enforcement Actions of the Trump Administration (May 7, 2018),

25 https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-

discussing-immigration-enforcement-actions. 26 2 See U.S. Dep’t of Homeland Sec., Fact Sheet: Federal Regulations Protecting the

27 Confidentiality

of

Asylum

Applicants

(June

23,

2018),

https://www.dhs.gov/news/2018/06/23/fact-sheet-zero-tolerance-prosecution-and-family28 reunification.

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1 different locations than their children. Migrant families that lawfully entered the United

2 States at a port of entry seeking asylum were separated. And families that were separated

3 due to entering the United States illegally between ports of entry have not been reunited

4 following the parent’s completion of criminal proceedings and return to immigration

5 detention.

6

This Court previously entered an order finding Plaintiffs had stated a legally

7 cognizable claim for violation of their substantive due process rights to family integrity

8 under the Fifth Amendment to the United States Constitution based on their allegations the

9 Government had separated Plaintiffs from their minor children while Plaintiffs were held

10 in immigration detention and without a showing that they were unfit parents or otherwise

11 presented a danger to their children. See Ms. L. v. U.S. Immigration & Customs Enf’t, 302

12 F. Supp. 3d 1149, 2018 WL 2725736, at *7-12 (S.D. Cal. June 6, 2018). A class action

13 has been certified to include similarly situated migrant parents. Plaintiffs now request

14 classwide injunctive relief to prohibit separation of class members from their children in

15 the future absent a finding the parent is unfit or presents a danger to the child, and to require

16 reunification of these families once the parent is returned to immigration custody unless

17 the parent is determined to be unfit or presents a danger to the child.

18

Plaintiffs have demonstrated a likelihood of success on the merits, irreparable harm,

19 and that the balance of equities and the public interest weigh in their favor, thus warranting

20 issuance of a preliminary injunction. This Order does not implicate the Government’s

21 discretionary authority to enforce immigration or other criminal laws, including its

22 decisions to release or detain class members. Rather, the Order addresses only the

23 circumstances under which the Government may separate class members from their

24 children, as well as the reunification of class members who are returned to immigration

25 custody upon completion of any criminal proceedings.

26 / / /

27 / / /

28 / / /

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1

I.

2

BACKGROUND

3

This case started with the filing of a Complaint by Ms. L., a Catholic citizen of the

4 Democratic Republic of the Congo fleeing persecution from her home country because of

5 her religious beliefs. The specific facts of Ms. L.’s case are set out in the Complaint and

6 this Court’s June 6, 2018 Order on Defendants’ motion to dismiss. See Ms. L., 2018 WL

7 2725736, at *1-3. In brief, Ms. L. and her then-six-year-old daughter S.S., lawfully

8 presented themselves at the San Ysidro Port of Entry seeking asylum based on religious

9 persecution. They were initially detained together, but after a few days S.S. was “forcibly

10 separated” from her mother. When S.S. was taken away from her mother, “she was

11 screaming and crying, pleading with guards not to take her away from her mother.” (Am.

12 Compl. ¶ 43.) Immigration officials claimed they had concerns whether Ms. L. was S.S.’s

13 mother, despite Ms. L.’s protestations to the contrary and S.S.’s behavior. So Ms. L. was

14 placed in immigration custody and scheduled for expedited removal, thus rendering S.S.

15 an “unaccompanied minor” under the Trafficking Victims Protection and Reauthorization

16 Act (“TVPRA”), Pub. L. No. 110-457 (Dec. 23, 2008), and subjecting her to the “care and

17 custody” of the Office of Refugee Resettlement (“ORR”).3 S.S. was placed in a facility in

18

19

20 3 The TVPRA provides that “the care and custody of all unaccompanied alien children,
21 including responsibility for their detention, where appropriate, shall be the responsibility of” HHS and its sub-agency, ORR. 8 U.S.C. § 1232(b)(1). An “unaccompanied alien
22 child” (“UAC”) is a child under 18 years of age with no lawful immigration status in the
23 United States who has neither a parent nor legal guardian in the United States nor a parent nor legal guardian in the United States “available” to care for them. 6 U.S.C § 279(g)(2).
24 According to the TVPRA, a UAC “may not be placed with a person or entity unless the
25 Secretary of Health and Human Services makes a determination that the proposed custodian is capable of providing for the child’s physical and mental well-being. Such
26 determination shall, at a minimum, include verification of the custodian’s identity and
27 relationship to the child, if any, as well as an independent finding that the individual has not engaged in any activity that would indicate a potential risk to the child.” 8 U.S.C. §
28 1232(c)(3)(A).

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1 Chicago over a thousand miles away from her mother. Immigration officials later

2 determined Ms. L. had a credible fear of persecution and placed her in removal

3 proceedings, where she could pursue her asylum claim. During this period, Ms. L. was

4 able to speak with her daughter only “approximately 6 times by phone, never by video.”

5 (Am. Compl. ¶ 45.) Each time they spoke, S.S. “was crying and scared.” (Id. ¶ 43.) Ms.

6 L. was “terrified that she would never see her daughter again.” (Id. ¶ 45.) After the present

7 lawsuit was filed, Ms. L. was released from ICE detention into the community. The Court

8 ordered the Government to take a DNA saliva sample (or swab), which confirmed that Ms.

9 L. was the mother of S.S. Four days later, Ms. L. and S.S. were reunited after being

10 separated for nearly five months.

11

In an Amended Complaint filed on March 9, 2018, this case was expanded to include

12 another Plaintiff, Ms. C. She is a citizen of Brazil, and unlike Ms. L., she did not present

13 at a port of entry. Instead, she and her 14-year-old son J. crossed into the United States

14 “between ports of entry,” after which they were apprehended by U.S. Border Patrol. Ms.

15 C. explained to the agent that she and her son were seeking asylum, but the Government,

16 as was its right under federal law, charged Ms. C. with entering the country illegally and

17 placed her in criminal custody. This rendered J. an “unaccompanied minor” and he, like

18 S.S., was transferred to the custody of ORR, where he, too, was housed in a facility in

19 Chicago several hundred miles away from his mother. Ms. C. was thereafter convicted of

20 misdemeanor illegal entry and served 25 days in criminal custody. After completing that

21 sentence, Ms. C. was transferred to immigration detention for removal proceedings and

22 consideration of her asylum claim, as she too had passed a credible fear screening. Despite

23 being returned to immigration custody, Ms. C. was not reunited with J. During the five

24 months she was detained, Ms. C. did not see her son, and they spoke on the phone only “a

25 handful of times[.]” (Id. ¶ 58.) Ms. C. was “desperate” to be reunited with her son, worried

26 about him constantly and did not know when she would be able to see him. (Id.) J. had a

27 difficult time emotionally during the period of separation from his mother. (Id. ¶ 59.) Ms.

28 C. was eventually released from immigration detention on bond, and only recently reunited

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1 with J. Their separation lasted more than eight months despite the lack of any allegations

2 or evidence that Ms. C. was unfit or otherwise presented a danger to her son.4

3

Ms. L. and Ms. C. are not the only migrant parents who have been separated from

4 their children at the border. Hundreds of others, who have both lawfully presented at ports

5 of entry (like Ms. L.) and unlawfully crossed into the country (like Ms. C.), have also been

6 separated. Because this practice is affecting large numbers of people, Plaintiffs sought

7 certification of a class consisting of similarly situated individuals. The Court certified that

8 class with minor modifications,5 and now turns to the important question of whether

9 Plaintiffs are entitled to a classwide preliminary injunction that (1) halts the separation of

10 class members from their children absent a determination that the parent is unfit or presents

11 a danger to the child, and (2) reunites class members who are returned to immigration

12 custody upon completion of any criminal proceedings absent a determination that the

13 parent is unfit or presents a danger to the child.

14

Since the present motion was filed, several important developments occurred, as

15 previously noted. First, on May 7, 2018, the Government announced its zero tolerance

16 policy for all adult persons crossing the border illegally, which resulted in the separation

17 of hundreds of children who had crossed with their parents. This is what happened with

18 Ms. C., though she crossed prior to the public announcement of the zero tolerance policy.

19

20

21 4 As stated in the Court’s Order on Defendants’ motion to dismiss, Plaintiffs do not challenge Ms. C.’s initial separation from J. as a result of the criminal charge filed against
22 her. Plaintiffs’ only complaint with regard to Ms. C. concerns the Government’s failure to
23 reunite her with J. after she was returned to immigration custody. 5 The class is defined to include: “All adult parents who enter the United States at or
24 between designated ports of entry who (1) have been, are, or will be detained in
25 immigration custody by the [DHS], and (2) have a minor child who is or will be separated from them by DHS and detained in ORR custody, ORR foster care, or DHS custody absent
26 a determination that the parent is unfit or presents a danger to the child.” (See Order
27 Granting in Part Mot. for Class Cert. at 17.) The class does not include parents with criminal history or communicable disease, or those apprehended in the interior of the
28 country or subject to the EO. (See id. at 4 n.5.)

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1 She is not alone. There are hundreds of similarly situated parents, and there are more than

2 2,000 children that have now been separated from their parents.

3

When a parent is charged with a criminal offense, the law ordinarily requires

4 separation of the family. This separation generally occurs regardless of whether the parent

5 is charged with a state or federal offense. The repercussions on the children, however, can

6 vary greatly depending on status. For citizens, there is an established system of social

7 service agencies ready to provide for the care and well-being of the children, if necessary,

8 including child protective services and the foster care system. This is in addition to any

9 family members that may be available to provide shelter for these minor children.

10 Grandparents and siblings are frequently called upon. Non-citizens may not have this kind

11 of support system, such as other family members who can provide shelter for their children

12 in the event the parent is detained at the border. This results in immigrant children going

13 into the custody of the federal government, which is presently not well equipped to handle

14 that important task.

15

For children placed in federal custody, there are two options. One of those options

16 is ORR, but it was established to address a different problem, namely minor children who

17 were apprehended at the border without their parents, i.e., true “unaccompanied alien

18 children.” It was not initially designed to address the problem of migrant children detained

19 with their parents at the border and who were thereafter separated from their parents. The

20 second option is family detention facilities, but the options there are limited. Indeed, at the

21 time of oral argument on this motion, Government counsel represented to the Court that

22 the “total capacity in [family] residential centers” was “less than 2,700.” (Rep. Tr. at 9,

23 May 9, 2018, ECF No. 70.) For male heads of households, i.e., fathers traveling with their

24 children, there was only one facility with “86 beds.” (Id. at 43.)

25

The recently issued EO confirms the government is inundated by the influx of

26 children essentially orphaned as a result of family separation. The EO now directs “[h]eads

27 of executive departments and agencies” to make available “any facilities … appropriate”

28 for the housing and care of alien families. EO § 3(d). The EO also calls upon the military

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1 by directing the Secretary of Defense to make available “any existing” facility and to

2 “construct such facilities[,]” if necessary, id. § 3(c), which is an extraordinary measure.

3 Meanwhile, “tent cities” and other make-shift facilities are springing up. That was the

4 situation into which Plaintiffs, and hundreds of other families that were separated at the

5 border in the past several months, were placed.

6

This situation has reached a crisis level. The news media is saturated with stories of

7 immigrant families being separated at the border. People are protesting. Elected officials

8 are weighing in. Congress is threatening action. Seventeen states have now filed a

9 complaint against the Federal Government challenging the family separation practice. See

10 State of Washington v. United States, Case No. 18cv0939, United States District Court for

11 the Western District of Washington. And the President has taken action.

12

Specifically, on June 20, 2018, the President signed the EO referenced above. The

13 EO states it is the Administration’s policy “to maintain family unity, including by detaining

14 alien families together where appropriate and consistent with law and available resources.”

15 Id. § 1.6 In furtherance of that policy, the EO indicates that parents and children who are

16 apprehended together at the border will be detained together “during the pendency of any

17 criminal improper entry or immigration proceedings” to the extent permitted by law. Id. §

18 3. The language of the EO is not absolute, however, as it states that family unity shall be

19 maintained “where appropriate and consistent with law and available resources[,]” id. § 1,

20 and “to the extent permitted by law and subject to the availability of appropriations[.]” Id.

21 § 3. The EO also indicates rigorous enforcement of illegal border crossers will continue.

22 Id. § 1 (“It is the policy of this Administration to rigorously enforce our immigration

23 laws.”). And finally, although the Order speaks to a policy of “maintain[ing] family unity,”

24

25

26 6 The Order defines “alien family” as “any person not a citizen or national of the United
27 States who has not been admitted into, or is not authorized to enter or remain in, the United States, who entered this country with an alien child or alien children at or between
28 designated ports of entry and who was detained[.]” Id. § 2(a)(i).

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1 it is silent on the issue of reuniting families that have already been separated or will be

2 separated in the future.” Id.

3

In light of these recent developments, and in particular the EO, the Court held a

4 telephonic status conference with counsel on June 22, 2018. During that conference, the

5 Court inquired about communication between ORR and DHS, and ORR and the

6 Department of Justice (“DOJ”), including the Bureau of Prisons (“BOP”), as it relates to

7 these separated families. Reunification procedures were also discussed, specifically

8 whether there was any affirmative reunification procedure for parents and children after

9 parents were returned to immigration detention following completion of criminal

10 proceedings. Government counsel explained the communication procedures that were in

11 place, and represented, consistent with her earlier representation to the Court, that there

12 was no procedure in place for the reunification of these families.7

13

The day after the status conference, Saturday, June 23, DHS issued the Fact Sheet

14 referenced above. This document focuses on several issues addressed during the status

15 conference, e.g., processes for enhanced communication between separated parents and

16 children, but only “for the purposes of removal.” It also addresses coordination between

17 and among three agencies, CBP, ICE, and HHS agency ORR, but again for the purpose of

18 removal. The Fact Sheet does not address reunification for other purposes, such as

19 immigration or asylum proceedings, which can take months. It also does not mention other

20 vital agencies frequently involved during criminal proceedings: DOJ and BOP.

21

At the conclusion of the recent status conference, the Court requested supplemental

22 briefing from the parties. Those briefs have now been submitted. After thoroughly

23

24
25 7 The Court: “Is there currently any affirmative reunification process that the government has in place once parent and child are separated? Government counsel: I would say …
26 when a parent is released from criminal custody and taken into ICE custody is the practice 27 to reunite them in family detention[?] And at that [previous hearing] I said no, that that
was not the practice. I think my answer on that narrow question would be the same.” (Rep. 28 Tr. at 29-30, June 22, 2018, ECF No. 77.)

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1 considering all of the parties’ briefs and the record in this case, and after hearing argument

2 from counsel on these important issues, the Court grants Plaintiffs’ motion for a classwide

3 preliminary injunction.

4

II.

5

DISCUSSION

6

Plaintiffs seek classwide preliminary relief that (1) enjoins Defendants’ practice of

7 separating class members from their children absent a determination that the parent is unfit

8 or presents a danger to their child, and (2) orders the government to reunite class members

9 with their children when the parent is returned to immigration custody after their criminal

10 proceedings conclude, absent a determination that the parent is unfit or presents a danger

11 to the child. Injunctive relief is “an extraordinary remedy that may only be awarded upon

12 a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def.

13 Council, Inc., 555 U.S. 7, 22 (2008). To meet that showing, Plaintiffs must demonstrate

14 “‘[they are] likely to succeed on the merits, that [they are] likely to suffer irreparable harm

15 in the absence of preliminary relief, that the balance of equities tips in [their] favor, and

16 that an injunction is in the public interest.’” Am. Trucking Ass'ns v. City of Los Angeles,

17 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter, 555 U.S. at 20).8

18

19

20 8 The Ninth Circuit applies separate standards for injunctions depending on whether they
21 are prohibitory, i.e., whether they prevent future conduct, or mandatory, i.e., “they go beyond ‘maintaining the status quo[.]’” Hernandez v. Sessions, 872 F.3d 976, 997 (9th
22 Cir. 2017). The standard set out above applies to prohibitory injunctions, which is what
23 Plaintiffs seek here. To the extent Plaintiffs are also requesting mandatory relief, that request is “subject to a higher standard than prohibitory injunctions,” namely that relief
24 will issue only “when ‘extreme or very serious damage will result’ that is not capable of
25 compensation in damages,’ and the merits of the case are not ‘doubtful.’” Id. at 999 (quoting Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879
26 (9th Cir. 2009)). The Ninth Circuit recognizes that application of these different standards
27 “is controversial[,]” and that other Circuits have questioned this approach. Id. at 997-98. This Court need not, and does not, address that discrepancy here. Suffice it to say that to
28 the extent some portion of Plaintiffs’ requested relief is subject to a standard higher than

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1

Before turning to these factors, the Court addresses directly Defendants’ argument

2 that an injunction is not necessary here in light of the EO and the recently released Fact

3 Sheet. Although these documents reflect some attempts by the Government to address

4 some of the issues in this case, neither obviates the need for injunctive relief here. As

5 indicated throughout this Order, the EO is subject to various qualifications. For instance,

6 Plaintiffs correctly assert the EO allows the government to separate a migrant parent from

7 his or her child “where there is a concern that detention of an alien child with the child’s

8 alien parent would pose a risk to the child’s welfare.” EO § 3(b) (emphasis added).

9 Objective standards are necessary, not subjective ones, particularly in light of the history

10 of this case. Furthermore, the Fact Sheet focuses on reunification “at time of removal[,]”

11 U.S. Dep’t of Homeland Sec., supra, note 2, stating that the parent slated for removal will

12 be matched up with their child at a location in Texas and then removed. It says nothing

13 about reunification during the intervening time between return from criminal proceedings

14 to ICE detention or the time in ICE detention prior to actual removal, which can take

15 months. Indeed, it is undisputed “ICE has no plans or procedures in place to reunify the

16 parent with the child other than arranging for them to be deported together after the parent’s

17 immigration case is concluded.” (Pls.’ Supp. Mem. in Supp. of Classwide Prelim. Inj., Ex.

18 31 ¶ 11.) Thus, neither of these directives eliminates the need for an injunction in this case.

19 With this finding, the Court now turns to the Winter factors.

20 A. Likelihood of Success

21

“The first factor under Winter is the most important—likely success on the merits.”

22 Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015). While Plaintiffs carry the burden

23 of demonstrating likelihood of success, they are not required to prove their case in full at

24 the preliminary injunction stage but only such portions that enable them to obtain the

25 injunctive relief they seek. See Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981).

26

27 the traditional standard for injunctive relief, Plaintiffs have met their burden for the reasons
28 set out below.

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1

Here, the only claim currently at issue is Plaintiffs’ due process claim.9 Specifically,

2 Plaintiffs contend the Government’s practice of separating class members from their

3 children, and failing to reunite those parents who have been separated, without a

4 determination that the parent is unfit or presents a danger to the child violates the parents’

5 substantive due process rights to family integrity under the Fifth Amendment to the United

6 States Constitution. To prevail on this claim, Plaintiffs must show that the Government

7 practice “shocks the conscience.” In the Order on Defendants’ motion to dismiss, the Court

8 found Plaintiffs had set forth sufficient facts to support that claim. Ms. L., 2018 WL

9 2725736, at *7-12. The evidence submitted since that time supports that finding, and

10 demonstrates Plaintiffs are likely to succeed on this claim.

11

As explained in the Court’s Order on Defendants’ motion to dismiss, the “shocks the

12 conscience” standard is not subject to a rigid list of established elements. See County of

13 Sacramento v. Lewis, 523 U.S. 833, 850 (1998) (stating “[r]ules of due process are not …

14 subject to mechanical application in unfamiliar territory.”) On the contrary, “an

15 investigation into substantive due process involves an appraisal of the totality of the

16 circumstances rather than a formalistic examination of fixed elements[.]” Armstrong v.

17 Squadrito, 152 F.3d 564, 570 (7th Cir. 1998).

18

Here, each Plaintiff presents different circumstances, but both were subjected to the

19 same government practice of family separation without a determination that the parent was

20 unfit or presented a danger to the child. Ms. L. was separated from her child without a

21 determination she was unfit or presented a danger to her child, and Ms. C. was not reunited

22 with her child despite the absence of any finding that she was unfit or presented a danger

23

24

25 9 In their supplemental brief, Defendants assert Plaintiffs are raising new claims based on events that transpired after the Complaints were filed, e.g., the announcement of the zero
26 tolerance policy and the EO. The Court disagrees. Plaintiffs’ claims are not based on these
27 events, but are based on the practice of separating class members from their children. The subsequent events are relevant to Plaintiffs’ claim, but they have not changed the claim
28 itself, which remains focused on the practice of separation.

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1 to her child. Outside of the context of this case, namely an international border, Plaintiffs

2 would have a high likelihood of success on a claim premised on such a practice. See D.B.

3 v. Cardall, 826 F.3d 721, 741 (4th Cir. 2016) (citing cases finding due process violation

4 where state action interfered with rights of fit parents); Heartland Academy Community

5 Church v. Waddle, 595 F.3d 798, 808-811 (8th Cir. 2010) (finding removal of children

6 from religious school absent evidence the students were “at immediate risk of child abuse

7 or neglect” was violation of clearly established constitutional right); Brokaw v. Mercer

8 County, 235 F.3d 1000, 1019 (7th Cir. 2000) (citing Croft v. Westmoreland County

9 Children and Youth Services, 103 F.3d 1123, 1126 (3d Cir. 1997) (“courts have recognized

10 that a state has no interest in protecting children from their parents unless it has some

11 definite and articulable evidence giving rise to a reasonable suspicion that a child has been

12 abused or is in imminent danger of abuse.”)

13

The context of this case is different. The Executive Branch, which is tasked with

14 enforcement of the country’s criminal and immigration laws, is acting within its powers to

15 detain individuals lawfully entering the United States and to apprehend individuals illegally

16 entering the country. However, as the Court explained in its Order on Defendants’ motion

17 to dismiss, the right to family integrity still applies here. The context of the family

18 separation practice at issue here, namely an international border, does not render the

19 practice constitutional, nor does it shield the practice from judicial review.

20

On the contrary, the context and circumstances in which this practice of family

21 separation were being implemented support a finding that Plaintiffs have a likelihood of

22 success on their due process claim. First, although parents and children may lawfully be

23 separated when the parent is placed in criminal custody, the same general rule does not

24 apply when a parent and child present together lawfully at a port of entry seeking asylum.

25 In that situation, the parent has committed no crime, and absent a finding the parent is unfit

26 or presents a danger to the child, it is unclear why separation of Ms. L. or similarly situated

27 class members would be necessary. Here, many of the family separations have been the

28 result of the Executive Branch’s zero tolerance policy, but the record also reflects that the

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1 practice of family separation was occurring before the zero tolerance policy was

2 announced, and that practice has resulted in the casual, if not deliberate, separation of

3 families that lawfully present at the port of entry, not just those who cross into the country

4 illegally. Ms. L. is an example of this family separation practice expanding beyond its

5 lawful reach, and she is not alone. (See, e.g., Pls.’ Reply Br. in Supp. of Mot. for Class

6 Cert., Exs. 22-23, 25-26) (declarations from parents attesting to separation at border after

7 lawfully presenting at port of entry and requesting asylum); Pls.’ Supp. Mem. in Supp. of

8 Classwide Prelim. Inj., Ex. 32 ¶¶ 9, 10b, 11a (listing parents who were separated from

9 children after presenting at ports of entry)).

10

As set out in the Court’s prior Order, asylum seekers like Ms. L. and many other

11 class members may be fleeing persecution and are entitled to careful consideration by

12 government officials. Particularly so if they have a credible fear of persecution. We are a

13 country of laws, and of compassion. We have plainly stated our intent to treat refugees

14 with an ordered process, and benevolence, by codifying principles of asylum. See, e.g.,

15 The Refugee Act, PL 96-212, 94 Stat. 102 (1980). The Government’s treatment of Ms. L.

16 and other similarly situated class members does not meet this standard, and it is unlikely

17 to pass constitutional muster.

18

Second, the practice of separating these families was implemented without any

19 effective system or procedure for (1) tracking the children after they were separated from

20 their parents, (2) enabling communication between the parents and their children after

21 separation, and (3) reuniting the parents and children after the parents are returned to

22 immigration custody following completion of their criminal sentence. This is a startling

23 reality. The government readily keeps track of personal property of detainees in criminal

24 and immigration proceedings. Money, important documents, and automobiles, to name a

25 few, are routinely catalogued, stored, tracked and produced upon a detainees’ release, at

26 all levels—state and federal, citizen and alien. Yet, the government has no system in place

27 to keep track of, provide effective communication with, and promptly produce alien

28 children. The unfortunate reality is that under the present system migrant children are not

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1 accounted for with the same efficiency and accuracy as property. Certainly, that cannot

2 satisfy the requirements of due process. See Santosky v. Kramer, 455 U.S. 745, 758-59

3 (1982) (quoting Lassiter v. Dept. of Soc. Services of Durham County, N.C., 452 U.S. 18,

4 (1981)) (stating it is “‘plain beyond the need for multiple citation’ that a natural parent’s

5 ‘desire for and right to the companionship, care, custody, and management of his or her

6 children’ is an interest far more precious than any property right.”) (internal quotation

7 marks omitted).

8

The lack of effective methods for communication between parents and children who

9 have been separated has also had a profoundly negative effect on the parents’ criminal and

10 immigration proceedings, as well as the childrens’ immigration proceedings. See United

11 States v. Dominguez-Portillo, No:EP-17-MJ-4409-MAT, 2018 WL 315759, at *1-2 (W.D.

12 Tex. Jan. 5, 2018) (explaining that criminally charged defendants “had not received any

13 paperwork or information concerning the whereabouts or well-being of” their children). In

14 effect, these parents have been left “in a vacuum, without knowledge of the well-being and

15 location of their children, to say nothing of the immigration proceedings in which those

16 minor children find themselves.” Id. at *14. This situation may result in a number of

17 different scenarios, all of which are negative – some profoundly so. For example, “[i]f

18 parent and child are asserting or intending to assert an asylum claim, that child may be

19 navigating those legal waters without the benefit of communication with and assistance

20 from her parent; that defendant, too, must make a decision on his criminal case with total

21 uncertainty about this issue.” Id. Furthermore, “ a defendant facing certain deportation

22 would be unlikely to know whether he might be deported before, simultaneous to, or after

23 their child, or whether they would have the opportunity to even discuss their

24 deportations[.]” Id. Indeed, some parents have already been deported without their

25 children, who remain in government facilities in the United States.10

26

27 10 See, e.g., Pls.’ Supp. Mem. in Supp. of Classwide Prelim. Inj., Ex. 32 ¶ 16k, Ex. 36 ¶ 7a;
28 Nelson Renteria, El Salvador demands U.S. return child taken from deported father,

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1

The absence of established procedures for dealing with families that have been

2 separated at the border, and the effects of that void on the families involved, is borne out

3 in the cases of Plaintiffs here. Ms. L. was separated from her child when immigration

4 officials claimed they could not verify she was S.S.’s mother, and detained her for

5 expedited removal proceedings. That rendered S.S. “unaccompanied” under the TVPRA

6 and subject to immediate transfer to ORR, which accepted responsibility for S.S. There

7 was no further communication between the agencies, ICE and ORR. The filing of the

8 present lawsuit prompted release and reunification of Ms. L. and her daughter, a process

9 that took close to five months and court involvement. Ms. C. completed her criminal

10 sentence in 25 days, but it took nearly eight months to be reunited with her son. She, too,

11 had to file suit to regain custody of her son from ORR.

12

These situations confirm what the Government has already stated: it is not

13 affirmatively reuniting parents like Plaintiffs and their fellow class members for purposes

14 other than removal. Outside of deportation, the onus is on the parents, who, for the most

15 part, are themselves in either criminal or immigration proceedings, to contact ORR or

16 otherwise search for their children and make application for reunification under the

17 TVPRA. However, this reunification procedure was not designed to deal with the present

18 circumstances. (See Pls.’ Supp. Mem. in Supp. of Classwide Prelim. Inj., Ex. 33 ¶¶ 6-9.)

19 Rather, “ORR’s reunification process was designed to address the situation of children who

20 come to the border or are apprehended outside the company of a parent or legal guardian.”

21 (Id. ¶ 6.) Placing the burden on the parents to find and request reunification with their

22 children under the circumstances presented here is backwards. When children are

23

24

25 REUTERS (June 21, 2018, 4:03 PM), https://www.reuters.com/article/us-usa-immigration-
26 el-salvador/el-salvador-demands-us-return-child-taken-from-deported-father-
27 idUSKBN1JH3ER; Miriam Jordan, ‘I Can’t Go Without My Son’: A Deported Mother’s Plea, N.Y. TIMES (June 17, 2018), https://www.nytimes.com/2018/06/17/us/immigration-
28 deported-parents.html.

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1 separated from their parents under these circumstances, the Government has an affirmative

2 obligation to track and promptly reunify these family members.

3

This practice of separating class members from their minor children, and failing to

4 reunify class members with those children, without any showing the parent is unfit or

5 presents a danger to the child is sufficient to find Plaintiffs have a likelihood of success on

6 their due process claim. When combined with the manner in which that practice is being

7 implemented, e.g., the lack of any effective procedures or protocols for notifying the

8 parents about their childrens’ whereabouts or ensuring communication between the parents

9 and children, and the use of the children as tools in the parents’ criminal and immigration

10 proceedings, (see Pls.’ Supp. Mem. in Supp. of Classwide Prelim. Inj., Ex. 29 ¶¶ 8, 14), a

11 finding of likelihood of success is assured. A practice of this sort implemented in this way

12 is likely to be “so egregious, so outrageous, that it may fairly be said to shock the

13 contemporary conscience,” Lewis, 523 U.S. at 847 n.8, interferes with rights “‘implicit in

14 the concept of ordered liberty[,]’” Rochin v. Cal., 342 U.S. 165, 169 (1952) (quoting Palko

15 v. State of Conn., 302 U.S. 319, 325 (1937)), and is so “‘brutal’ and ‘offensive’ that it

16 [does] not comport with traditional ideas of fair play and decency.” Breithaupt v. Abram,

17 352 U.S. 432, 435 (1957).

18

For all of these reasons, the Court finds there is a likelihood of success on Plaintiffs’

19 due process claim.

20 B. Irreparable Injury

21

Turning to the next factor, Plaintiffs must show they are “‘likely to suffer irreparable

22 harm in the absence of preliminary relief.’” Hernandez v. Sessions, 872 F.3d 976, 994 (9th

23 Cir. 2017) (quoting Winter, 555 U.S. at 20). “‘It is well established that the deprivation of

24 constitutional rights unquestionably constitutes irreparable injury.’” Id. (quoting

25 Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (internal quotation marks

26 omitted). As explained, Plaintiffs have demonstrated the likelihood of a deprivation of

27 their constitutional rights, and thus they have satisfied this factor.

28

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1

The injury in this case, however, deserves special mention. That injury is the

2 separation of a parent from his or her child, which the Ninth Circuit has repeatedly found

3 constitutes irreparable harm. See Leiva–Perez v. Holder, 640 F.3d 962, 969–70 (9th Cir.

4 2011); Washington v. Trump, 847 F.3d 1151, 1169 (9th Cir. 2017) (identifying “separated

5 families” as an irreparable harm).

6

Furthermore, the record in this case reflects that the separations at issue have been

7 agonizing for the parents who have endured them. One of those parents, Mr. U., an asylum

8 seeker from Kyrgyzstan, submitted a declaration in this case in which he stated that after

9 he was told he was going to be separated from his son he “felt as though [he] was having

10 a heart attack.” (Reply in Supp. of Mot. for Class Cert., Ex. 21 ¶ 4.) Another asylum-

11 seeking parent from El Salvador who was separated from her two sons writes,

12

The separation from my sons has been incredibly hard, because I have never

13

been away from them before. I do not want my children to think that I abandoned them. [My children] are so attached to me. [One of my children]

14

used to sleep in bed with me every night while [my other child] slept in his

15

own bed in the same room.… It hurts me to think how anxious and distressed they must be without me.

16

17 (Reply in Supp. of Mot. for Class Cert., Ex. 24 ¶ 9.) And another asylum-seeking parent

18 from Honduras described having to place her crying 18-month old son in a car seat in a

19 government vehicle, not being able to comfort him, and her crying as the officers “took

20 [her] son away.” (Reply in Supp. of Mot. for Class Cert., Ex. 25 ¶ 7.) There has even been

21 a report that one father committed suicide in custody after being separated from his wife

22 and three-year-old child. See Molly Hennessy-Fiske, Honduran Migrant Who Was

23 Separated From Family is Found Dead in Texas Jail in an Apparent Suicide, L.A. TIMES

24 (June 9, 2018, 5:35 PM), http://www.latimes.com/nation/la-na-border-patrol-suicide-

25 20180609-story.html.

26

The parents, however, are not the only ones suffering from the separations. One of

27 the amici in this case, Children’s Defense Fund, states,

28

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1

there is ample evidence that separating children from their mothers or fathers

2

leads to serious, negative consequences to children’s health and development. Forced separation disrupts the parent-child relationship and puts children at

3

increased risk for both physical and mental illness.... And the psychological

4

distress, anxiety, and depression associated with separation from a parent would follow the children well after the immediate period of separation—

5

even after eventual reunification with a parent or other family.

6

7 (ECF No. 17-11 at 3.) Other evidence before the Court reflects that “separating children

8 from parents is a highly destabilizing, traumatic experience that has long term

9 consequences on child well-being, safety, and development.” (ECF No. 17-13 at 2.) That

10 evidence reflects:

11

Separation from family leaves children more vulnerable to exploitation and

12

abuse, no matter what the care setting. In addition, traumatic separation from parents creates toxic stress in children and adolescents that can profoundly

13

impact their development. Strong scientific evidence shows that toxic stress

14

disrupts the development of brain architecture and other organ systems, and increases the risk for stress-related disease and cognitive impairment well into

15

adult years. Studies have shown that children who experience such traumatic

16

events can suffer from symptoms of anxiety and post-traumatic stress disorder, have poorer behavioral and educational outcomes, and experience

17

higher rates of poverty and food insecurity.

18

19 (ECF No. 17-13 at 2.) And Martin Guggenheim, the Fiorello LaGuardia Professor of

20 Clinical Law at New York University School of Law and Founding Member of the Center

21 for Family Representation, states:

22

Children are at risk of suffering great emotional harm when they are removed

23

from their loved ones. And children who have traveled from afar and made their way to this country to seek asylum are especially at risk of suffering

24

irreversible psychological harm when wrested from the custody of the parent

25

or caregiver with whom they traveled to the United States.

26 (Mem. in Supp. of Classwide Prelim. Inj., Ex. 17 ¶ 16.) All of this evidence, combined

27 with the constitutional violation alleged here, conclusively shows that Plaintiffs and the

28

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1 class members are likely to suffer irreparable injury if a preliminary injunction does not

2 issue.

3 C. Balance of Equities

4

Turning to the next factor, “[t]o obtain a preliminary injunction, a plaintiff must also

5 demonstrate that ‘the balance of equities tips in his favor.’” Hernandez, 872 F.3d at 995

6 (quoting Winter, 555 U.S. at 20). As with irreparable injury, when a plaintiff establishes

7 “a likelihood that Defendants’ policy violates the U.S. Constitution, Plaintiffs have also

8 established that both the public interest and the balance of the equities favor a preliminary

9 injunction.” Arizona Dream Act Coalition v. Brewer, 757 F.3d 1053, 1069 (9th Cir. 2014).

10

Plaintiffs here assert the balance of equities weighs in favor of an injunction in this

11 case. Specifically, Plaintiffs argue Defendants would not suffer any hardship if the

12 preliminary injunction is issued because the Government “cannot suffer harm from an

13 injunction that merely ends an unlawful practice[.]” Rodriguez v. Robbins, 715 F.3d 1127,

14 1145 (9th Cir. 2013); see also Arizona Dream Act Coalition, 757 F.3d at 1069 (quoting

15 Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)) (stating balance of equities favors

16 “‘prevent[ing] the violation of a party’s constitutional rights.’”). When the absence of harm

17 to the Government is weighed against the harms to Plaintiffs set out above, Plaintiffs argue

18 this factor weighs in their favor. The Court agrees.

19

The primary harm Defendants assert here is the possibility that an injunction would

20 have a negative impact on their ability to enforce the criminal and immigration laws.

21 However, the injunction here—preventing the separation of parents from their children and

22 ordering the reunification of parents and children that have been separated—would do

23 nothing of the sort. The Government would remain free to enforce its criminal and

24 immigration laws, and to exercise its discretion in matters of release and detention

25 consistent with law. See EO §§ 1, 3(a) & (e) (discussing Flores v. Sessions, CV 85-4544);

26 see also Comm. of Cent. Am. Refugees v. I.N.S., 795 F.2d 1434, 1439-40 (9th Cir. 1986)

27 (stating “prudential considerations preclude[] interference with the Attorney General’s

28 [exercise of] discretion” in selecting the detention facilities where aliens are to be

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1 detained). It would just have to do so in a way that preserves the class members’

2 constitutional rights to family association and integrity. See Rodriguez, 715 F.3d at 1146

3 (“While ICE is entitled to carry out its duty to enforce the mandates of Congress, it must

4 do so in a manner consistent with our constitutional values.”) Thus, this factor also weighs

5 in favor of issuing the injunction.

6 D. Public Interest

7

The final factor for consideration is the public interest. See Hernandez, 872 F.3d at

8 996 (quoting Stormans, Inc. v. Selecky, 586 F.3d 1109, 1139 (9th Cir. 2009)) (“When, as

9 here, ‘the impact of an injunction reaches beyond the parties, carrying with it a potential

10 for public consequences, the public interest will be relevant to whether the district court

11 grants the preliminary injunction.’”) To obtain the requested relief, “Plaintiffs must

12 demonstrate that the public interest favors granting the injunction ‘in light of [its] likely

13 consequences,’ i.e., ‘consequences [that are not] too remote, insubstantial, or speculative

14 and [are] supported by evidence.’” Id. (quoting Stormans, 586 F.3d at 1139). “‘Generally,

15 public interest concerns are implicated when a constitutional right has been violated,

16 because all citizens have a stake in upholding the Constitution.’” Id. (quoting Preminger

17 v. Principi, 422 F.3d 815, 826 (9th Cir. 2005)).

18

This case involves two important public interests: the interest in enforcing the

19 country’s criminal and immigration laws and the constitutional liberty interest “of parents

20 in the care, custody, and control of their children[,]” which “is perhaps the oldest of the

21 fundamental liberty interests recognized by” the Supreme Court. Troxel v. Granville, 530

22 U.S. 57, 65 (2000). Both of these interests are valid and important, and both can be served

23 by the issuance of an injunction in this case.

24

As stated, the public’s interest in enforcing the criminal and immigration laws of this

25 country would be unaffected by issuance of the requested injunction. The Executive

26 Branch is free to prosecute illegal border crossers and institute immigration proceedings

27 against aliens, and would remain free to do so if an injunction were issued. Plaintiffs do

28 not seek to enjoin the Executive Branch from carrying out its duties in that regard.

21 18cv0428 DMS (MDD)

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1

What Plaintiffs do seek by way of the requested injunction is to uphold their rights

2 to family integrity and association while their immigration proceedings are underway. This

3 right, specifically, the relationship between parent and child, is “constitutionally

4 protected,” Quilloin v. Walcott, 434 U.S. 246, 255 (1978), and “well established.”

5 Rosenbaum v. Washoe Cty., 663 F.3d 1071, 1079 (9th Cir. 2011). The public interest in

6 upholding and protecting that right in the circumstances presented here would be served

7 by issuance of the requested injunction. See Arizona Dream Act Coalition, 757 F.3d at

8 1069 (quoting Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1029 (9th Cir. 2013) (“‘[I]t is

9 clear that it would not be equitable or in the public’s interest to allow the state … to violate

10 the requirements of federal law, especially when there are no adequate remedies

11 available.’”) Accordingly, this factor, too, weighs in favor of issuing the injunction.

12

III.

13

CONCLUSION

14

The unfolding events—the zero tolerance policy, EO and DHS Fact Sheet—serve to

15 corroborate Plaintiffs’ allegations. The facts set forth before the Court portray reactive

16 governance—responses to address a chaotic circumstance of the Government’s own

17 making. They belie measured and ordered governance, which is central to the concept of

18 due process enshrined in our Constitution. This is particularly so in the treatment of

19 migrants, many of whom are asylum seekers and small children. The extraordinary remedy

20 of classwide preliminary injunction is warranted based on the evidence before the Court.

21 For the reasons set out above, the Court hereby GRANTS Plaintiffs’ motion for classwide

22 preliminary injunction, and finds and orders as follows:

23 (1) Defendants, and their officers, agents, servants, employees, attorneys, and all those

24

who are in active concert or participation with them, are preliminarily enjoined from

25

detaining Class Members in DHS custody without and apart from their minor

26

children, absent a determination that the parent is unfit or presents a danger to the

27

28

22 18cv0428 DMS (MDD)

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1

child, unless the parent affirmatively, knowingly, and voluntarily declines to be

2

reunited with the child in DHS custody.11

3 (2) If Defendants choose to release Class Members from DHS custody, Defendants, and

4

their officers, agents, servants, employees and attorneys, and all those who are in

5

active concert or participation with them, are preliminary enjoined from continuing

6

to detain the minor children of the Class Members and must release the minor child

7

to the custody of the Class Member, unless there is a determination that the parent

8

is unfit or presents a danger to the child, or the parent affirmatively, knowingly, and

9

voluntarily declines to be reunited with the child.

10 (3) Unless there is a determination that the parent is unfit or presents a danger to the

11

child, or the parent affirmatively, knowingly, and voluntarily declines to be reunited

12

with the child:

13

(a) Defendants must reunify all Class Members with their minor children who are

14

under the age of five (5) within fourteen (14) days of the entry of this Order; and

15

(b) Defendants must reunify all Class Members with their minor children age five

16

(5) and over within thirty (30) days of the entry of this Order.

17 (4) Defendants must immediately take all steps necessary to facilitate regular

18

communication between Class Members and their children who remain in ORR

19

custody, ORR foster care, or DHS custody. Within ten (10) days, Defendants must

20

provide parents telephonic contact with their children if the parent is not already in

21

contact with his or her child.

22

23

24

25 11 “Fitness” is an important factor in determining whether to separate parent from child. In the context of this case, and enforcement of criminal and immigration laws at the border,
26 “fitness” could include a class member’s mental health, or potential criminal involvement
27 in matters other than “improper entry” under 8 U.S.C. § 1325(a), (see EO § 1), among other matters. Fitness factors ordinarily would be objective and clinical, and would allow for the
28 proper exercise of discretion by government officials.

23 18cv0428 DMS (MDD)

Case 3:18-cv-00428-DMS-MDD Document 83 Filed 06/26/18 PageID.1747 Page 24 of 24

1 (5) Defendants must immediately take all steps necessary to facilitate regular

2

communication between and among all executive agencies responsible for the

3

custody, detention or shelter of Class Members and the custody and care of their

4

children, including at least ICE, CBP, BOP, and ORR, regarding the location and

5

well-being of the Class Members’ children.

6 (6) Defendants, and their officers, agents, servants, employees, attorneys, and all those

7

who are in active concert or participation with them, are preliminarily enjoined from

8

removing any Class Members without their child, unless the Class Member

9

affirmatively, knowingly, and voluntarily declines to be reunited with the child prior

10

to the Class Member’s deportation, or there is a determination that the parent is unfit

11

or presents a danger to the child.

12 (7) This Court retains jurisdiction to entertain such further proceedings and to enter such

13

further orders as may be necessary or appropriate to implement and enforce the

14

provisions of this Order and Preliminary Injunction.

15

A status conference will be held on July 6, 2018, at 12:00 noon, to discuss all

16 necessary matters. A notice of teleconference information sheet will be provided in a

17 separate order.

18

IT IS SO ORDERED.

19 Dated: June 26, 2018

20

21

22

23

24

25

26

27

28

24 18cv0428 DMS (MDD)

 
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1

Lee Gelernt* Judy Rabinovitz*

Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN

2

Anand Balakrishnan* AMERICAN CIVIL LIBERTIES

DIEGO & IMPERIAL COUNTIES P.O. Box 87131

3

UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT

San Diego, CA 92138-7131 T: (619) 398-4485

4

125 Broad St., 18th Floor New York, NY 10004

F: (619) 232-0036 bvakili@aclusandiego.org

5

T: (212) 549-2660 F: (212) 549-2654

6

lgelernt@aclu.org jrabinovitz@aclu.org

7 abalakrishnan@aclu.org

8 Attorneys for Petitioner-Plaintiff

*Admitted Pro Hac Vice

Additional counsel on next page

9

UNITED STATES DISTRICT COURT

10

SOUTHERN DISTRICT OF CALIFORNIA

11

12 Ms. L. and Ms. C.,

Case No. 18-cv-00428-DMS-MDD

13 v.

Petitioner-Plaintiff,

14 U.S. Immigration and Customs Enforcement

Date Filed: July 3, 2018

15

(“ICE”); U.S. Department of Homeland Security (“DHS”); U.S. Customs and Border Protection

16

(“CBP”); U.S. Citizenship and Immigration Services (“USCIS”); U.S. Department of Health

SECOND AMENDED COMPLAINT

17

and Human Services (“HHS”); Office of Refugee Resettlement (“ORR”); Thomas

FOR DECLARATORY AND INJUNCTIVE RELIEF

18

Homan, Acting Director of ICE; Greg Archambeault, San Diego Field Office Director,

CLASS ACTION

19

ICE; Joseph Greene, San Diego Assistant Field Office Director, ICE; Adrian P. Macias, El Paso

20

Field Director, ICE; Frances M. Jackson, El Paso Assistant Field Office Director, ICE; Kirstjen

21

Nielsen, Secretary of DHS; Jefferson Beauregard Sessions III, Attorney General of the United

22

States; L. Francis Cissna, Director of USCIS; Kevin K. McAleenan, Acting Commissioner of

23

CBP; Pete Flores, San Diego Field Director, CBP; Hector A. Mancha Jr., El Paso Field

24

Director, CBP; Alex Azar, Secretary of the Department of Health and Human Services;

25

Scott Lloyd, Director of the Office of Refugee Resettlement,

26

27

Respondents-Defendants.

28

Case 3:18-cv-00428-DMS-MDD Document 85 Filed 07/03/18 PageID.1750 Page 2 of 19

1 Stephen B. Kang (SBN 292280)

2

Spencer E. Amdur (SBN 320069) AMERICAN CIVIL LIBERTIES UNION FOUNDATION

3

IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street

4

San Francisco, CA 94111 T: (415) 343-1198

5

F: (415) 395-0950 skang@aclu.org

6 samdur@aclu.org

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

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Case 3:18-cv-00428-DMS-MDD Document 85 Filed 07/03/18 PageID.1751 Page 3 of 19

1

2

INTRODUCTION

3

1. This case challenges the United States government’s forcible

4 separation of parents from their young children for no legitimate reason and

5 notwithstanding the threat of irreparable damage that separation has been

6 universally recognized to cause young children.

7

2. Plaintiff Ms. L. is the mother of a seven (7) year-old daughter, who

8 was ripped away from her, and then sent halfway across the country to be detained

9 alone. Plaintiff Ms. C. is the mother of a fourteen (14) year-old son, who was also

10 forcibly separated from his mother and detained more than a thousand miles away.

11

3. Ms. L. and Ms. C. bring this action on behalf of themselves and

12 thousands of other parents whom the government has forcibly separated from their

13 children. Like Ms. L. and Ms. C., many of these individuals have fled persecution

14 and are seeking asylum in the United States. Without any allegations of abuse,

15 neglect, or parental unfitness, and with no hearings of any kind, the government is

16 separating these families and detaining their young children, alone and frightened,

17 in facilities often thousands of miles from their parents.

18

4. Forced separation from parents causes severe trauma to young

19 children, especially those who are already traumatized and are fleeing persecution

20 in their home countries. The resulting cognitive and emotional damage can be

21 permanent.

22

5. Defendants have ample ways to keep Plaintiffs together with their

23 children, as they have done for decades prior to their current practice. There are

24 shelters that house families (including asylum-seekers) while they await the final

25 adjudication of their immigration cases. If, however, the government lawfully

26 continues detaining these parents and young children, it must at a minimum detain

27 them together in one of its immigration family detention centers.

28

1

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1

6. The Due Process Clause of the Fifth Amendment does not permit the

2 government to forcibly take young children from their parents, without justification

3 or even a hearing. That separation also violates the asylum statutes, which

4 guarantee a meaningful right to apply for asylum, and the Administrative Procedure

5 Act (APA), which prohibits unlawful and arbitrary government action.

6

JURISDICTION

7

7. This case arises under the Fifth Amendment to the United States

8 Constitution, federal asylum statutes, and the APA. The court has jurisdiction under

9 28 U.S.C. § 1331 (federal question jurisdiction); 28 U.S.C. § 2241 (habeas

10 jurisdiction); and Art. I., § 9, cl. 2 of the United States Constitution (“Suspension

11 Clause”). Plaintiffs are in custody for purposes of habeas jurisdiction.

12

VENUE

13

8. Venue is proper under 28 U.S.C. § 1391(e) because Ms. L. was

14 detained in this District when this action commenced, Defendants reside in this

15 District, and a substantial portion of the relevant facts occurred within this District,

16 including the Defendants’ implementation of their practice of separating immigrant

17 parents from their children for no legitimate reason.

18

PARTIES

19

9. Plaintiff Ms. L. is a citizen of the Democratic Republic of the Congo

20 (the “Congo” or “DRC”). She is the mother of 7 year-old S.S.

21

10. Plaintiff Ms. C. is a citizen of Brazil. She is the mother of 14 year-old

22 J.

23

11. Defendants U.S. Department of Homeland Security (“DHS”) has

24 responsibility for enforcing the immigration laws of the United States.

25

12. Defendant U.S. Immigration and Customs Enforcement (“ICE”) is the

26 sub-agency of DHS that is responsible for carrying out removal orders and

27 overseeing immigration detention.

28

2

Case 3:18-cv-00428-DMS-MDD Document 85 Filed 07/03/18 PageID.1753 Page 5 of 19

1

13. Defendant U.S. Customs and Border Protection (“CBP”) is the sub-

2 agency of DHS that is responsible for the initial processing and detention of

3 noncitizens who are apprehended near the U.S. border.

4

14. Defendant U.S. Department of Health and Human Services (HHS) is a

5 department of the executive branch of the U.S. government which has been

6 delegated authority over “unaccompanied” noncitizen children.

7

15. Defendant Office of Refugee Resettlement (“ORR”) is the component

8 of HHS which provides care of and placement for “unaccompanied” noncitizen

9 children.

10

16. Defendant Thomas Homan is sued in his official capacity as the

11 Director of ICE, and is a legal custodian of Plaintiffs.

12

17. Defendant Greg Archambeault is sued in his official capacity as the

13 ICE San Diego Field Office Director, and is a legal custodian of Plaintiff Ms. L.

14

18. Defendant Joseph Greene is sued in his official capacity as the ICE

15 San Diego Assistant Field Office Director for the Otay Mesa Detention Center, and

16 is a legal custodian of Plaintiff Ms. L.

17

19. Defendant Adrian P. Macias is sued in his official capacity as the ICE

18 El Paso Field Office Director, and is a legal custodian of Plaintiff Ms. C.

19

20. Defendant Frances M. Jackson is sued in his official capacity as the

20 ICE El Paso Assistant Field Office Director for the West Texas Detention Facility,

21 and is a legal custodian of Plaintiff Ms. C.

22

21. Defendant Kirstjen Nielsen, is sued in her official capacity as the

23 Secretary of the Department of Homeland Security. In this capacity, she directs

24 each of the component agencies within DHS: ICE, USCIS, and CBP. As a result,

25 Respondent Nielsen has responsibility for the administration of the immigration

26 laws pursuant to 8 U.S.C. § 1103, is empowered to grant asylum or other relief, and

27 is a legal custodian of the Plaintiffs.

28

3

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1

22. Defendant Jefferson Beauregard Sessions III is sued in his official

2 capacity as the Attorney General of the United States. In this capacity, he has

3 responsibility for the administration of the immigration laws pursuant to 8 U.S.C. §

4 1103, oversees the Executive Office of Immigration Review, is empowered to grant

5 asylum or other relief, and is a legal custodian of the Plaintiffs.

6

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

7 Director of USCIS.

8

24. Defendant Kevin K. McAleenan is sued in his official capacity as the

9 Acting Commissioner of CBP.

10

25. Defendant Pete Flores is sued in his official capacity as the San Diego

11 Field Director of CBP.

12

26. Defendant Hector A. Mancha Jr. is sued in his official capacity as the

13 El Paso Field Director of CBP.

14

27. Defendant Alex Azar is sued in his official capacity as the Secretary of

15 the Department of Health and Human Services.

16

28. Defendant Scott Lloyd is sued in his official capacity as the Director of

17 the Office of Refugee Resettlement.

18

FACTS

19

29. Over the past year, the government has separated thousands of migrant

20 families for no legitimate purpose. The government’s true purpose in separating

21 these families was to deter future families from seeking refuge in the United States.

22

30. Many of these migrant families fled persecution and are seeking

23 asylum. Although there are no allegations that the parents are unfit or abusing their

24 children in any way, the government has forcibly separated them from their young

25 children and detained the children, often far away, in facilities for “unaccompanied”

26 minors.

27

31. There is overwhelming medical evidence that the separation of a

28 young child from his or her parent will have a devastating negative impact on the

4

Case 3:18-cv-00428-DMS-MDD Document 85 Filed 07/03/18 PageID.1755 Page 7 of 19

1 child’s well-being, especially where there are other traumatic factors at work, and

2 that this damage can be permanent.

3

32. The American Association of Pediatrics has denounced the

4 Administration’s practice of separating migrant children from their parents, noting

5 that: “The psychological distress, anxiety, and depression associated with

6 separation from a parent would follow the children well after the immediate period

7 of separation—even after the eventual reunification with a parent or other family.”

8

33. Prior Administrations detained migrant families, but did not have a

9 practice of forcibly separating fit parents from their young children.

10

34. There are non-governmental shelters that specialize in housing and

11 caring for families—including asylum seeking families—while their immigration

12 applications are adjudicated.

13

35. There are also government-operated family detention centers where

14 parents can be housed together with their children, should the government lawfully

15 decide not to release them. The government previously detained, and continues to

16 detain, numerous family units at those facilities.

17

36. In April 2018, the New York Times reported that more than “700

18 children have been taken from adults claiming to be their parents since October [of

19 2016], including more than 100 children under the age of 4.” Caitlin Dickerson,

20 Hundreds of Children Have Been Taken from Parents at U.S. Border, N.Y. Times,

21 Apr. 20, 2018.

22

37. On May 7, 2018, Defendant Sessions announced “a new initiative” to

23 refer “100 percent” of immigrants who cross the Southwest border for criminal

24 immigration prosecutions, also known as the “zero-tolerance policy.” Defendant

25 Sessions stated that as part of that prosecution, all parents who are prosecuted

26 would be separated from their children. U.S. Dep’t of Justice, Attorney General

27 Sessions Delivers Remarks to the Association of State Criminal Investigative

28 Agencies 2018 Spring Conference (May 7, 2018). The purpose of this new policy

5

Case 3:18-cv-00428-DMS-MDD Document 85 Filed 07/03/18 PageID.1756 Page 8 of 19

1 was to separate families in the hope that it would deter other families from seeking

2 refuge in the United States.

3

38. At a Senate Judiciary Committee hearing in May, a deputy chief of

4 Defendant U.S. Customs and Border Protection testified that between May 6 and

5 May 19 alone, a total of 658 children were separated from their family members

6 pursuant to this policy. The Washington Post reported that in the city of McAllen,

7 Texas, 415 children were taken from their parents during a two week period.1 And

8 in June 2018, the Department of Homeland Security reported that in the six weeks

9 between April 19 and May 31, the administration took almost 2,000 children away

10 from their parents.2

11

39. Defendant Sessions and other government officials, including

12 Defendant Nielsen, have repeatedly defended the separation of children from their

13 parents in speeches and interviews with various media outlets. Among other

14 justifications for the practice, they have stated that separating families would be a

15 way to “discourage parents from bringing their children here illegally,”3 and that it

16 would help “deter more movement” to the United States by asylum seekers and

17 other migrants.4 Administration officials told the New York Times in May, “[t]he

18 president and his aides in the White House had been pushing a family separation

19 policy for weeks as a way of deterring families from trying to cross the border

20 illegally.”5

21 22 1 https://www.washingtonpost.com/world/national-security/trumps-zero-tolerance-
at-the-border-is-causing-child-shelters-to-fill-up-fast/2018/05/29/7aab0ae4-636b23 11e8-a69c-b944de66d9e7_story.html?utm_term=.d52d94c37d05.
24 2 https://ca.reuters.com/article/topNews/idCAKBN1JB2SF-OCATP.
25 3 http://transcripts.cnn.com/TRANSCRIPTS/1801/16/cnr.04.html.
26 4 https://www.cnn.com/2017/03/06/politics/john-kelly-separating-children-from27 parents-immigration-border/
5 https://www.nytimes.com/2018/05/10/us/politics/trump-homeland-security28 secretary-resign.html

6

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1

40. Even if the separated child is released from custody and placed in a

2 community setting or foster care, the trauma of the ongoing separation continues.

3

41. By taking away their children, Defendants are coercing class members

4 into giving up their claims for asylum and other legal protection. Numerous class

5 members have been told by CBP and ICE agents that they will see their children

6 again sooner if they withdraw their asylum applications and accept earlier 7 deportation.6

8

42. Many class members have given up their asylum claims and stipulated

9 to removal as a way to be reunited with their children faster.

10

43. For class members who have not been coerced into giving up their

11 asylum claims, separation from their children has made those applications much

12 more difficult. Separation prevents parents from helping their children apply for

13 asylum and navigate removal proceedings. Separation also makes it harder for

14 parents to present facts involving their children which support their own asylum

15 claims.

16

44. The trauma of separation also renders asylum-seeking class members

17 too distraught to effectively pursue their asylum applications. See, e.g., Angelina

18 Chapin, Separated Parents Are Failing Asylum Screenings Because They’re So 19 Heartbroken, Huffington Post (June 30, 2018).7

20

21 6 This practice has been widely reported. See, e.g., Dara Lind, Trump Will Reunite

22 Separated Families—But Only if They Agree to Deportation, Vox.com (June 25,

23

2018), https://www.vox.com/2018/6/25/17484042/children-parents-separatereunite-plan-trump; Jay Root & Shannon Najmabadi, Kids in Exchange for

24 Deportation: Detained Migrants Say They Were Told They Could Get Kids Back on

25

Way Out of U.S., Texas Tribune (June 24, 2018), https://www.texastribune.org/2018/06/24/kids-exchange-deportation-migrants-

26 claim-they-were-promised-they-could/?utm_campaign=trib-

27 social&utm_medium=social&utm_source=twitter&utm_content=1529859032. 7 https://www.huffingtonpost.com/entry/separated-parents-too-grief-stricken-to-
28 seek-asylum-experts-say_us_5b379974e4b08c3a8f6ad5d9.

7

Case 3:18-cv-00428-DMS-MDD Document 85 Filed 07/03/18 PageID.1758 Page 10 of 19

1

45. Defendants have deported class members without their separated

2 children. Their children are now stranded in the United States alone. Many of these

3 parents are now struggling to make contact with their children, who are being

4 detained thousands of miles away across multiple international borders. See Miriam

5 Jordan, “I Can’t Go Without My Son,” a Mother Pleaded as She Was Deported to

6 Guatemala, N.Y. Times (June 17, 2018).8

7

46. On June 20, 2018, President Trump signed an Executive Order (“EO”)

8 purporting to end certain family separations going forward.9 The EO directs DHS to

9 “maintain custody of alien families during the pendency of any criminal improper

10 entry or immigration proceedings.”

11

47. The EO directs DHS to separate families any time DHS determines

12 that separation would protect “the child’s welfare.” It does not, however, set forth

13 how that standard will be applied. In prior cases the government has applied that

14 standard in a manner that is inconsistent with the child’s best interest, including in

15 Ms. L’s case.

16

48. The EO makes no provision for reunifying the thousands of families

17 who were separated prior to its issuance.

18

49. The EO makes no provision for returning separated children to parents

19 who have been already been deported without their children.

20

NAMED PLAINTIFFS

21

50. Ms. L. and her daughter S.S. are one of the many families that have

22 recently been separated by the government.

23

24 8 https://www.nytimes.com/2018/06/17/us/immigration-deported-parents.html. See

25

also Nelson Renteria, El Salvador Demands U.S. Return Child Taken from Deported Father, Reuters (June 21, 2018), https://www.reuters.com/article/us-usa-

26 immigration-el-salvador/el-salvador-demands-us-return-child-taken-from-deported-

27 father-idUSKBN1JH3ER. 9 https://www.whitehouse.gov/presidential-actions/affording-congress-opportunity-
28 address-family-separation/.

8

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1

51. Ms. L. and her daughter are seeking asylum in the United States.

2

52. Ms. L. is Catholic and sought shelter in a church until she was able to

3 escape the Congo with S.S.

4

53. Upon reaching the United States, Ms. L. and S.S. presented themselves

5 at the San Ysidro, California Port of Entry on November 1, 2017. Although their

6 native language is Lingala, they were able to communicate to the border guards that

7 they sought asylum.

8

54. Based on her expression of a fear of returning to the Congo, Ms. L.

9 was referred for an initial screening before an asylum officer, called a “credible fear

10 interview.” She subsequently passed the credible fear screening but, until March 6,

11 2018, remained detained in the Otay Mesa Detention Center in the San Diego area.

12

55. On or about November 5, immigration officials forcibly separated

13 then-6 year-old S.S. from her mother and sent S.S. to Chicago. There she was

14 housed in a detention facility for “unaccompanied” minors run by the Office of

15 Refugee Resettlement (ORR).

16

56. When S.S. was taken away from her mother, she was screaming and

17 crying, pleading with guards not to take her away from her mother. While detained,

18 Ms. L. spoke to her daughter approximately 6 times by phone, never by video. For

19 months she was terrified that she would never see her daughter again. The few

20 times Ms. L. was able to speak to her daughter on the phone, her daughter was

21 crying and scared.

22

57. In December, S.S. turned 7 and spent her birthday in the Chicago

23 facility, without her mother.

24

58. In detention, Ms. L. was distraught and depressed because of her

25 separation from her daughter. As a result, she did not eat properly, lost weight, and

26 was not sleeping due to worry and nightmares.

27

59. In one moment of extreme despair and confusion, Ms. L. told an

28 immigration judge that she wanted to withdraw her application for asylum,

9

Case 3:18-cv-00428-DMS-MDD Document 85 Filed 07/03/18 PageID.1760 Page 12 of 19

1 realizing her mistake only a few days later. She is seeking to reopen her case before

2 the Board of Immigration Appeals.

3

60. The government had no legitimate interest in separating Ms. L. and her

4 child.

5

61. There has been no evidence, or even accusation, that S.S. was abused

6 or neglected by Ms. L.

7

62. There is no evidence that Ms. L. is an unfit parent or that she is not

8 acting in the best interests of her child.

9

63. After Ms. L. filed this lawsuit and moved for a preliminary injunction,

10 Defendants abruptly released her from custody on March 6, 2018, due to the filing

11 of the lawsuit. Defendants informed her that she would be released mere hours in

12 advance, with no arrangements for where she would stay. S.S. was released to Ms.

13 L.’s custody several days later. Both are now pursuing their claims for legal

14 protection.

15

64. Ms. C. and her 14 year-old son, J., are another one of the families who

16 have been separated by the government. Like Ms. L. and her daughter, Ms. C. and

17 her son are seeking asylum in the United States.

18

65. Ms. C. and J. fled Brazil and came to the United States to seek asylum.

19 A few feet after Ms. C. entered the United States, a border guard approached her,

20 and she explained that she was seeking asylum. Ms. C. subsequently passed a

21 credible fear interview, and was put in removal proceedings, where she is applying

22 for asylum.

23

66. Despite having communicated her fear of persecution to border guards,

24 the government prosecuted Ms. C. for entering the country illegally, took her son J.

25 away from her, and sent him to a facility for “unaccompanied” children in Chicago.

26

67. The government continued to separate Ms. C. from her son even after

27 she completed serving her criminal misdemeanor sentence on September 22, 2017,

28 and was sent to an immigration detention facility, the El Paso Processing Center. In

10

Case 3:18-cv-00428-DMS-MDD Document 85 Filed 07/03/18 PageID.1761 Page 13 of 19

1 early January 2018, she was transferred again, to another immigration facility, the

2 West Texas Detention Facility (also known as Sierra Blanca), but still was not

3 reunited with her son. Even after Ms. C was released from immigration detention

4 on April 5, 2018, the government did not reunify her with her son for another two

5 months, until June 9.

6

68. While separated from J., Ms. C. was desperate to be reunited with him.

7 She worried about him constantly and did not know when she would be able to see

8 him. They spoke on the phone only a handful of times while they were separated by

9 Defendants.

10

69. J. had a difficult time emotionally during the months he was separated

11 from his mother.

12

70. The government had no legitimate interest for the separation of Ms. C.

13 and her child.

14

71. There is no evidence, or even accusation, that J. was abused or

15 neglected by Ms. C.

16

72. There is no evidence that Ms. C. is an unfit parent or that she is not

17 acting in the best interests of her child.

18

CLASS ALLEGATIONS

19

73. Plaintiffs bring this action under Federal Rule of Civil Procedure

20 23(b)(2) on behalf of themselves and a nationwide class of all other persons

21 similarly situated.

22

74. Plaintiffs seek to represent the following class:

23

All adult parents who enter the United States at or between designated ports

24

of entry who (1) have been, are, or will be detained in immigration custody

25

by the DHS, and (2) have a minor child who is or will be separated from them by DHS and detained in ORR custody, ORR foster care, or DHS

26

custody, absent a determination that the parent is unfit or presents a danger to

27

the child.

28

11

Case 3:18-cv-00428-DMS-MDD Document 85 Filed 07/03/18 PageID.1762 Page 14 of 19

1

75. Ms. L. and Ms. C. are each adequate representatives of the proposed

2 class.

3

76. The proposed class satisfies the requirements of Rule 23(a)(1) because

4 the class is so numerous that joinder of all members is impracticable. There are at a

5 minimum hundreds of parents who fit within the class.

6

77. The class meets the commonality requirements of Federal Rule of

7 Civil Procedure 23(a)(2). The members of the class are subject to a common

8 practice: forcibly separating detained parents from their minor children absent any

9 determination that the parent is unfit or presents a danger to the child. By definition,

10 all class members have experienced that practice, and none has been given an

11 adequate hearing regarding the separation. The lawsuit raises numerous questions

12 of law common to members of the proposed class, including: whether Defendants’

13 family separation practice violates class members’ substantive due process right to

14 family integrity; whether the practice violates class members’ procedural due

15 process rights; whether the practice violates the federal asylum statute; and whether

16 these separations are unlawful or arbitrary and capricious under the APA.

17

78. The proposed class meets the typicality requirements of Federal Rule

18 of Civil Procedure 23(a)(3), because the claims of the representative Plaintiffs are

19 typical of the claims of the class. Ms. L., Ms. C., and the proposed class members

20 are all individuals who have had or will have their children forcibly taken away

21 from them despite there being no proven allegations of abuse, neglect, or any other

22 danger or unfitness. Plaintiffs and the proposed class also share the same legal

23 claims, which assert the same substantive and procedural rights under the Due

24 Process Clause, the asylum statute, and the APA.

25

79. The proposed class meets the adequacy requirements of Federal Rule

26 of Civil Procedure 23(a)(4). The representative Plaintiffs seek the same relief as the

27 other members of the class—namely, an order that they be reunified with their

28 children, whether through release or in family detention facilities. In defending their

12

Case 3:18-cv-00428-DMS-MDD Document 85 Filed 07/03/18 PageID.1763 Page 15 of 19

1 own rights, Ms. L. and Ms. C. will defend the rights of all proposed class members

2 fairly and adequately.

3

80. The proposed class is represented by counsel from the American Civil

4 Liberties Union Immigrants’ Rights Project and the ACLU of San Diego and

5 Imperial Counties. Counsel have extensive experience litigating class action

6 lawsuits and other complex cases in federal court, including civil rights lawsuits on

7 behalf of noncitizens.

8

81. The members of the class are readily ascertainable through

9 Defendants’ records.

10

82. The proposed class also satisfies Federal Rule of Civil Procedure

11 23(b)(2). Defendants have acted on grounds generally applicable to the class by

12 unlawfully separating parents from their young children. Injunctive and declaratory

13 relief is thus appropriate with respect to the class as a whole.

14

CAUSES OF ACTION

15

COUNT I

16

(Violation of Due Process: Right to Family Integrity)

17

83. All of the foregoing allegations are repeated and realleged as though

18 fully set forth herein.

19

84. The Due Process Clause of the Fifth Amendment applies to all

20 “persons” on United States soil and thus applies to Ms. L., Ms. C., their children

21 S.S. and J., and all proposed class members.

22

85. Plaintiffs, their children, and all class members have liberty interests

23 under the Due Process Clause in remaining together as families.

24

86. The separation of the class members from their children violates

25 substantive due process because it furthers no legitimate purpose and was designed

26 to deter.

27

87. The separation of the class members from their children also violates

28 procedural due process because it was undertaken without any hearing.

13

Case 3:18-cv-00428-DMS-MDD Document 85 Filed 07/03/18 PageID.1764 Page 16 of 19

1

COUNT II

2

(Administrative Procedure Act: Arbitrary and Capricious Practice)

3

88. All of the foregoing allegations are repeated and realleged as though

4 fully set forth herein.

5

89. The APA prohibits agency action that is arbitrary and capricious or

6 violates a person’s legal or constitutional rights.

7

90. Defendants’ separation practice is final agency action for which there

8 is no other adequate remedy in a court. Defendants’ decision to separate parents is

9 not tentative or interlocutory, because Defendants have already separated thousands

10 of families and continue to do so, and the policy was announced by high-level

11 officials. And Defendants’ decision to separate gravely impacts class members’

12 rights to remain together as families.

13

91. Defendants’ separation of Ms. L., Ms. C., and the other class members

14 from their children without any explanation or legitimate justification is arbitrary

15 and capricious and accordingly violates the APA. 5 U.S.C. § 706.

16

92. Among other things, Defendants failed to offer adequate reasons for

17 adopting their unprecedented new separation practice; they failed to explain why

18 they were not using alternatives to separation, including supervised release and

19 family detention; and for parents like Ms. L., Defendants have never explained why

20 they cannot verify parentage before imposing traumatic separation on both parent

21 and child.

22

COUNT III

23 (Violation of Right to Seek Protection Under the Asylum and Withholding of

24

Removal Statutes, and the Convention Against Torture)

25

93. All of the foregoing allegations are repeated and realleged as though

26 fully set forth herein.

27

94. Under United States law, noncitizens with a well-founded fear of

28 persecution shall have the opportunity to apply for asylum in the United States. 8

14

Case 3:18-cv-00428-DMS-MDD Document 85 Filed 07/03/18 PageID.1765 Page 17 of 19

1 U.S.C. § 1158(a). In addition, noncitizens have a mandatory statutory entitlement to

2 withholding of removal where they would face a probability of persecution if

3 removed to their country of nationality, 8 U.S.C. § 1231(b)(3), or withholding or

4 deferral of removal where they would face a probability of torture. Foreign Affairs

5 Reform and Restructuring Act (“FARRA”), Pub. L. No. 105-277, Div. G.,

6 Title XXII, § 2242, 112 Stat. 2681-822 (Oct. 21, 1998) (codified as Note to 8

7 U.S.C.§ 1231).

8

95. Class members have a private right of action to challenge violations of

9 their right to apply for asylum under § 1158(a). That right is not barred by 8 U.S.C.

10 § 1158(d)(7), which applies to only certain procedural requirements set out in

11 Section 1158(d).

12

96. Defendants’ separation of families violates federal law that provides

13 for asylum and other protection from removal, as well as their due process right to

14 seek such relief. Separation severely impedes their ability to pursue their asylum

15 and other protection claims in a number of ways, including by denying them the

16 ability to coordinate their applications with their children, present facts related to

17 their children, and creating trauma that hinders their ability to navigate the complex

18 process.

19

97. The government is also using the trauma of separation to coerce

20 parents into giving up their asylum and protection claims in order to be reunited

21 with their children.

22

PRAYER FOR RELIEF

23

Plaintiffs request that the Court enter a judgment against Defendants and

24 award the following relief:

25

A. Certify a class of all adult parents nationwide who enter the United States

26 at or between designated ports of entry who (1) have been, are, or will be detained

27 in immigration custody by the DHS, and (2) have a minor child who is or will be

28 separated from them by DHS and detained in ORR custody, ORR foster care, or

15

Case 3:18-cv-00428-DMS-MDD Document 85 Filed 07/03/18 PageID.1766 Page 18 of 19

1 DHS custody, absent a determination that the parent is unfit or presents a danger to

2 the child.

3

B. Name Ms. L. and Ms. C. as representatives of the class, and appoint

4 Plaintiffs’ counsel as class counsel;

5

C. Declare the separation of Ms. L., Ms. C., and the other class members

6 from their children unlawful;

7

D. Preliminarily and permanently enjoin Defendants from continuing to

8 separate the class members from their children;

9

E. Order Defendants either to release class members along with their

10 children, or to detain them together in the same facility;

11

F. Enjoin Defendants from removing any class members from the country

12 who have received final removal orders until they are reunited with their children,

13 unless the class members knowingly and voluntarily decide that they do not want

14 their children removed with them;

15

G. Enjoin Defendants from removing any class member who received a final

16 removal order prior to the issuance of this Court’s preliminary injunction on June

17 26, 2018, or prior to receiving notice of their rights under the injunction, until they

18 have had an opportunity to consult with class counsel, or a delegate of class

19 counsel, to insure that these class members have knowingly and voluntarily chosen

20 to forego any further challenges to removal, rather than feeling coerced into doing

21 so as a result of separation from their children.

22

H. Require Defendants to pay reasonable attorneys’ fees and costs;

23

I. Order all other relief that is just and proper.

24 25 Dated: July 3, 2018

26 Bardis Vakili (SBN 247783)

27

ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES

28

P.O. Box 87131 San Diego, CA 92138-7131

Respectfully Submitted, /s/Lee Gelernt Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* AMERICAN CIVIL LIBERTIES UNION FOUNDATION

16

Case 3:18-cv-00428-DMS-MDD Document 85 Filed 07/03/18 PageID.1767 Page 19 of 19

1

T: (619) 398-4485 F: (619) 232-0036

IMMIGRANTS’ RIGHTS PROJECT 125 Broad St., 18th Floor

2 bvakili@aclusandiego.org

New York, NY 10004 T: (212) 549-2616

3

Stephen B. Kang (SBN 292280) Spencer E. Amdur (SBN 320069)

F: (212) 549-2654 lgelernt@aclu.org

4

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

jrabinovitz@aclu.org abalakrishnan@aclu.org

5

IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street

6

San Francisco, CA 94111 T: (415) 343-1198

7

F: (415) 395-0950 skang@aclu.org

8 samdur@aclu.org

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

17

 
 Case 3:18-cv-00428-DMS-MDD Document 111 Filed 07/16/18 PageID.2164 Page 1 of 4

1 Christopher T. Casamassima (SBN #211280) chris.casamassima@wilmerhale.com
2 WILMER CUTLER PICKERING
3 HALE & DORR LLP 350 South Grand Avenue, Suite 2100
4 Los Angeles, CA 90071
5 Telephone: (213) 443-5300 Facsimile: (213) 443-5400
6
7 Noah A. Levine (pro hac vice to be filed) Jamie S. Dycus (pro hac vice to be filed)
8 Adriel I. Cepeda Derieux (pro hac vice to be filed)
9 WILMER CUTLER PICKERING HALE & DORR LLP
10 7 World Trade Center
11 250 Greenwich Street New York, NY 10007
12 Telephone: (212) 230-8800
13 Facsimile: (212) 230-8888

14 Attorneys for Amici Curiae Scholars of 15 Habeas Corpus and Constitutional Law

16 UNITED STATES DISTRICT COURT
17 SOUTHERN DISTRICT OF CALIFORNIA
18

19 Ms. L.,
20 Petitioner-Plaintiff,
21 v.
22 U.S. Immigration and Customs
23 Enforcement, et al.,

24

Respondents-Defendants.

25

26

27

28

Case No.: 3:18-CV-0428
District Judge: Dana M. Sabraw Courtroom: 13A
APPLICATION OF SCHOLARS OF HABEAS CORPUS AND CONSTITUTIONAL LAW TO FILE BRIEF AMICUS CURIAE IN SUPPORT OF PLAINTIFFS’ MOTION FOR STAY OF REMOVAL AND EMERGENCY TRO PENDING RULING ON THE STAY MOTION

1 3:18-CV-0428

Case 3:18-cv-00428-DMS-MDD Document 111 Filed 07/16/18 PageID.2165 Page 2 of 4

1

APPLICATION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

2

Applicants, as proposed amici curiae, are scholars with expertise in the law of

3 habeas corpus and constitutional law who believe it would assist the Court to offer their

4 perspectives on the history and application of the habeas writ and the Suspension Clause.

5 Amici appear in their individual capacities. Respective institutional affiliations are

6 provided for identification purposes only. Applicants are:

7

Erwin Chemerinsky, Jesse H. Choper Distinguished Professor of Law and Dean,

8 University of California, Berkeley School of Law.

9

Lee Kovarsky, Professor of Law, University of Maryland Francis King Carey

10 School of Law.

11

Christopher N. Lasch, Associate Professor of Law, University of Denver Sturm

12 College of Law.

13

James S. Liebman, Simon H. Rifkind Professor, Columbia Law School.

14

Hiroshi Motomura, Susan Westerberg Prager Distinguished Professor of Law,

15 UCLA School of Law.

16

Gerald L. Neuman, J. Sinclair Armstrong Professor of International, Foreign, and

17 Comparative Law, Harvard Law School.

18

Judith Resnik, Arthur Liman Professor of Law, Yale Law School.

19

Michael Wishnie, William O. Douglas Clinical Professor of Law, Yale Law

20 School.

21

Stephen I. Vladeck, A. Dalton Cross Professor in Law, University of Texas School

22 of Law.

23

Amici have collectively spent many years on research, study, and writing about the

24 writ of habeas corpus and the Suspension Clause of Article I, Section 9 of the

25 Constitution, and they have a professional interest in ensuring that this Court is accurately

26 informed regarding the history and application of the habeas writ and the Suspension

27 Clause.

28

Federal district courts possess inherent authority to accept briefs submitted by

2 3:18-CV-0428

Case 3:18-cv-00428-DMS-MDD Document 111 Filed 07/16/18 PageID.2166 Page 3 of 4

1 amici curiae, Padilla v. Beard, No. 2:14-CV-1118, 2017 WL 1364666, at *5 (E.D. Cal.

2 Apr. 14, 2017), and retain “broad discretion regarding the appointment of amici,”

3 Hoptowit v. Ray, 682 F.2d 1237, 1260 (9th Cir. 1982). Amicus briefs are “normally

4 allowed” when, among other considerations, “the amicus has unique information or

5 perspective that can help the court beyond the help that the lawyers for the parties are

6 able to provide.” Community Ass’n for Restoration of Env’t (CARE) v. DeRuyter Bros.

7 Dairy, 54 F. Supp. 2d 974, 975 (E.D. Wash. 1999) (citing Northern Secs. Co. v. United

8 States, 191 U.S. 555, 556 (1903)). “There are no strict prerequisites that must be

9 established prior to qualifying for amicus status; an individual seeking to appear as

10 amicus must merely make a showing that his participation is useful to or otherwise

11 desirable to the court.” In re Roxford Foods Litig., 790 F. Supp. 987, 997 (E.D. Cal.

12 1991) (quoting United States v. Louisiana, 751 F. Supp. 608, 620 (E.D. La. 1990)). See

13 also Dkt. 17, 23 (granting leave to file amicus curiae briefs in this action).

14

Applicants submit that there is good cause for the Court to accept their brief

15 amicus curiae and consider their views on the subject.

16 DATED: July 16, 2018

WILMER CUTLER PICKERING

17

HALE & DORR LLP

18

19

By: /s/ Christopher T. Casamassima

20

Christopher T. Casamassima

21

22

Attorneys for Amici Curiae Scholars

23

of Habeas Corpus and Constitutional Law

24

25

26

27

28

3 3:18-CV-0428

Case 3:18-cv-00428-DMS-MDD Document 111 Filed 07/16/18 PageID.2167 Page 4 of 4

1

CERTIFICATE OF SERVICE

2

I hereby certify that on this sixteenth day of July, 2018, I electronically transmitted

3 the foregoing APPLICATION OF SCHOLARS OF HABEAS CORPUS AND

4 CONSTITUTIONAL LAW TO FILE BRIEF AMICUS CURIAE IN SUPPORT OF

5 PLAINTIFFS’ MOTION FOR STAY OF REMOVAL AND EMERGENCY TRO

6 PENDING RULING ON THE STAY MOTION to the Clerk’s office using the

7 CM/ECF system, which will send a notice of filing to all counsel of record.

8

9

/s/ Chris Casamassima

10

Christopher T. Casamassima

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4 3:18-CV-0428

 
 Case 3:18-cv-00428-DMS-MDD Document 124 Filed 07/19/18 PageID.2336 Page 1 of 9

1

CHAD A. READLER Acting Assistant Attorney

2

General

3

SCOTT G. STEWART Deputy Assistant Attorney

4

General

5

WILLIAM C. PEACHEY Director

6

Office of Immigration Litigation

7

U.S. Department of Justice

WILLIAM C. SILVIS

8

Assistant Director

9

Office of Immigration Litigation

SARAH B. FABIAN

10

Senior Litigation Counsel

11

NICOLE MURLEY

Trial Attorney

12

Office of Immigration Litigation

13

U.S. Department of Justice

Box 868, Ben Franklin Station

14

Washington, DC 20442

15

Telephone: (202) 532-4824

Fax: (202) 616-8962

16

17

ADAM L. BRAVERMAN

United States Attorney

18

SAMUEL W. BETTWY

19

Assistant U.S. Attorney

California Bar No. 94918

20

Office of the U.S. Attorney

21

880 Front Street, Room 6293

San Diego, CA 92101-8893

22

619-546-7125

23

619-546-7751 (fax)

24

Attorneys for Federal

25

Respondents-Defendants

26

27

28

Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2660 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org
Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 398-4485 F: (619) 232-0036 bvakili@aclusandiego.org
Stephen B. Kang (SBN 292280) Spencer E. Amdur (SBN 320069) AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 skang@aclu.org samdur@aclu.org
Attorneys for PetitionersPlaintiffs *Admitted Pro Hac Vice

Case 3:18-cv-00428-DMS-MDD Document 124 Filed 07/19/18 PageID.2337 Page 2 of 9

1

2

UNITED STATES DISTRICT COURT

3

SOUTHERN DISTRICT OF CALIFORNIA

4

MS. L, et al.,

5

Petitioners-Plaintiffs,

6

vs.

7

U.S. IMMIGRATION AND

8

CUSTOMS ENFORCEMENT, et

9

al.,

10

Respondents-Defendants.

Case No. 18cv428 DMS MDD JOINT STATUS REPORT

11

12

The Court ordered the parties to file a joint report on July 19, 2018, in

13 anticipation of the status conference scheduled for July 20, 2018 at 1:30pm PST.
14 The parties submit this joint status report in accordance with the Court’s instruction.
15

16 I. DEFENDANTS’ POSITIONS

17 A. Update on Reunification Process
18 The reunification plan outlined to the Court in Defendants’ filing on July
19

20 15, 2018, ECF No. 109, and discussed at the July 16, 2018 status conference, is

21 proceeding. Defendants report the following with regard to the reunification of
22 23 families with children ages 5-17:1

24 1 The numbers provided are based on unofficial, daily reports that have not been
25 analyzed in the same manner as official statistics. Official statistics require at
26 least 48 hours of analysis and verification. As such, providing official statistics 27 today would reflect data as of July 16, 2018. The daily reports are based on data

28

1

18cv428 DMS MDD

Case 3:18-cv-00428-DMS-MDD Document 124 Filed 07/19/18 PageID.2338 Page 3 of 9

1

• Total number of possible children of potential class members

identified: 2551

2

3

• Potential class members possibly eligible for reunification: 1606

o Class members interviewed and cleared for reunification: 848

4

o Potential class members pending interview: 272

5

o Potential class members released to the interior by ICE: 222

o Potential class members in ICE custody pending ORR review

6

of adult and child files: 264

7

• Potential class members, or non-members of the class, either not

8

eligible, or not yet known to be eligible, for reunification: 908

9

o Adults known to be in U.S. Marshal, State or local custody: 2

o At interview, parent waived reunification: 136

10

o Adults with prohibitive criminal record or deemed ineligible by

11

ICE: 91

o Further evaluation: 679

12

13

• Class members with a final order of removal: 719

14

• Total number of reunifications: 364

15

16 B. Notice

17

The Government is providing the “cleared” list to Plaintiffs on a daily basis

18 when it is updated. This provides normally provides 12-hours’ notice or more 19 20 that a class member may be reunified.

21

Moreover, at the time of reunification, families are released to the office of a

22 local NGO, who assists the family with post-release services as needed. These 23

24

25 as of 11:59 PM the night before reporting. In the interest of providing information that is as up-to-date as possible, although not verified, the unofficial
26 numbers are provided. As such, the numbers provided in Section A reflect the 27 unofficial numbers as of 11:59 PM on July 18, 2018.

28

2

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1 NGOs are available to assist released families 24-hours a day. ICE provides notice

2 to the NGOs of the families being released at least 1 hour in advance of any release.

3 C. Class Member Lists and Other Information For Plaintiffs

4

5

On July 13, 2016, Defendants provided Plaintiffs’ counsel with a list of

6 identified class members in ICE custody, as well as a list of identified children of

7 class members. Those lists contained names, A#s, and locations for all individuals,
8
9 as well as the ages of the children.

10

On or before July 20, 2018, Defendants plan to provide Plaintiffs with a list

11 of class members who have been removed, including the date of removal, country
12
13 of removal, and last detention location. On or before July 23, 2018, Defendants

14 plan to provide Plaintiffs with a list of class members who have been released from

15 ICE custody. Defendants are still attempting to determine whether they can
16
17 provide Plaintiffs with a list of class members who are in criminal custody. The

18 information requested is not in ICE’s or HHS’s control, and is not maintained in

19 such a way that it can be pulled automatically from the respective systems.
20

21

On July 18, 2018, Plaintiffs sent to Defendants an email requesting

22 additional information, including clarifications regarding the information that 23
Defendants have already provided to Plaintiffs. Defendants have asked Plaintiffs to 24 25 prioritize their requests to that Defendants can best get them the information that

26 they need. In the meantime, Defendants are in the process of determining if they 27

28

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1 are able to provide the requested information and will do so, or will meet and

2 confer with Plaintiffs regarding their requests for additional information.

3 II. PLAINTIFFS’ POSITIONS
4
5 A. Children Age 5-17

6

Despite multiple requests, Plaintiffs’ counsel still has not received critical

7 information from Defendants. Plaintiffs need this information to locate Class
8
9 Members who have been deported or released from ICE custody, to ensure

10 compliance with the Court’s deadlines, and to arrange for appropriate legal and

11 other services for Class Members and their children. As of this filing, for the Class
12
13 Members with children age 5-17, Defendants have not provided the following

14 information:

15 • A list of Class Members who have been released from ICE custody.
16

17

• A list of Class Members who have been deported.

18 • A list of parents with final removal orders, who need to be counseled on

19

their options and their children’s options immediately.

20 This information is especially critical for parents with removal orders. These
21 22 parents may only have a matter of days to make the momentous decision whether

23 to leave their child behind in the United States. Plaintiffs have accordingly made
24 urgent requests to Defendants for these parents’ information.
25

26

27

28

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1

Defendants have also not provided any plan for reuniting the parents who

2 have been released from ICE custody. The July 14 list of children stated that

3 hundreds of parents have been released from custody. But Plaintiffs do not know 4
5 where and when any of these families will be reunited.

6 B. Children Under 5

7 For Class Members with children younger than 5, Defendants have not
8
9 provided any of the clarifications necessary for Plaintiffs to ensure that parents

10 were not improperly excluded from the class. Defendants have so far not provided

11 the following:
12

13

• Details about the nature of the charge, conviction, or warrant for each

parent who was excluded from the class based on criminal history or

14

alleged abuse or neglect.

15

• Details about the reasons why each putative Class Member was excluded

16

for not being a parent.

17

18 C. Deadlines

19

To ensure that reunification occurs on time for all Class Members, Plaintiffs

20 respectfully request that the Court order the following deadlines:
21

22

1. By July 20 at 5:00pm PST, Defendants must provide a list of Class

23 Members in ICE custody who have final removal orders. The list must indicate

24 whether the parent signed any election form to be removed with or without the
25
26 child. For parents who elected to be removed with the child, the list must state the

27 location where the family will be reunited.

28

5

18cv428 DMS MDD

Case 3:18-cv-00428-DMS-MDD Document 124 Filed 07/19/18 PageID.2342 Page 7 of 9

1

2. By July 20, Defendants must provide an updated list of parents who

2 have been “precleared” for reunification.

3

3. By July 21, Defendants must provide a list of Class Members who

4

5 have been deported or released from DHS custody into the interior.

6

4. Defendants must immediately file a plan for reuniting children with

7 the Class Members who have been released from ICE custody. This plan should
8
9 provide the same level of detail as Defendants’ July 15 plan for reuniting parents

10 who are in ICE custody.

11 5. By July 23, Defendants must provide a list of families with children
12
13 age 5-17 who have already been reunified. The list must indicate whether the

14 family was deported after being reunified.

15 6. By July 23, Defendants must provide detailed and specific
16
17 information as to why each putative Class Member with children under 5 was

18 excluded based on criminal history, allegations of abuse or neglect, or parentage,
19 given the age of these children. This information must be sufficiently detailed to
20
21 allow Plaintiffs to dispute or challenge the reasons for excluding the parent from

22 the class. 23

24

25

26

27

28

6

18cv428 DMS MDD

Case 3:18-cv-00428-DMS-MDD Document 124 Filed 07/19/18 PageID.2343 Page 8 of 9

1 DATED: July 19, 2018 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Respectfully submitted,
/s/ Lee Gelernt Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2660 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org
Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 398-4485 F: (619) 232-0036 bvakili@aclusandiego.org
Stephen B. Kang (SBN 292280) Spencer E. Amdur (SBN 320069) AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 skang@aclu.org samdur@aclu.org
Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice

7

18cv428 DMS MDD

Case 3:18-cv-00428-DMS-MDD Document 124 Filed 07/19/18 PageID.2344 Page 9 of 9

CHAD A. READLER

1

Acting Assistant Attorney General

2

SCOTT G. STEWART

Deputy Assistant Attorney General

3

WILLIAM C. PEACHEY

4

Director

WILLIAM C. SILVIS

5

Assistant Director

6

/s/ Sarah B. Fabian

7

SARAH B. FABIAN

8

Senior Litigation Counsel

NICOLE MURLEY

9

Trial Attorney

10

Office of Immigration Litigation

Civil Division

11

U.S. Department of Justice

12

P.O. Box 868, Ben Franklin Station

Washington, DC 20044

13

(202) 532-4824

14

(202) 616-8962 (facsimile)

sarah.b.fabian@usdoj.gov 15

16

ADAM L. BRAVERMAN

17

United States Attorney SAMUEL W. BETTWY

18

Assistant U.S. Attorney

19

Attorneys for Respondents-Defendants

20

21

22

23

24

25

26

27

28

8

18cv428 DMS MDD

 
 Case 3:18-cv-00428-DMS-MDD Document 204 Filed 08/23/18 PageID.3295 Page 1 of 13

1

CHAD A. READLER Acting Assistant Attorney General

2 SCOTT G. STEWART

3

Deputy Assistant Attorney General WILLIAM C. PEACHEY

4 Director

5

Office of Immigration Litigation WILLIAM C. SILVIS

6 Assistant Director

7 Office of Immigration Litigation SARAH B. FABIAN
8 Senior Litigation Counsel

9 NICOLE MURLEY Trial Attorney
10 Office of Immigration Litigation

11 U.S. Department of Justice Box 868, Ben Franklin Station
12 Washington, DC 20442

13 Telephone: (202) 532-4824 Fax: (202) 616-8962
14

15 ADAM L. BRAVERMAN United States Attorney
16 SAMUEL W. BETTWY

17 Assistant U.S. Attorney California Bar No. 94918
18 Office of the U.S. Attorney

19 880 Front Street, Room 6293 San Diego, CA 92101-8893
20 619-546-7125

21 619-546-7751 (fax)

22 Attorneys for Federal Respondents23 Defendants

24

25

26

27

28

Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2660 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org
Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 398-4485 F: (619) 232-0036 bvakili@aclusandiego.org
Stephen B. Kang (SBN 292280) Spencer E. Amdur (SBN 320069) AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 skang@aclu.org samdur@aclu.org
Attorneys for PetitionersPlaintiffs *Admitted Pro Hac Vice

Case 3:18-cv-00428-DMS-MDD Document 204 Filed 08/23/18 PageID.3296 Page 2 of 13

1

UNITED STATES DISTRICT COURT

2

SOUTHERN DISTRICT OF CALIFORNIA

3

MS. L, et al.,

4

5

Petitioners-Plaintiffs,

6

vs.

Case No. 18cv428 DMS MDD JOINT STATUS REPORT

7 U.S. IMMIGRATION AND

8

CUSTOMS ENFORCEMENT, et

9

al.,

10

Respondents-Defendants.

11

12 The Court ordered the parties to file a joint status report on August 23, 2018,
13
14 in anticipation of the telephonic status conference scheduled for August 24, 2018, at

15 1:00 p.m. PST. The parties submit this joint status report in accordance with the
16 Court’s instruction.
17
18 I. DEFENDANTS’ POSITIONS

19 A. Update on Reunifications 20
Defendants report the current status on reunification of families with children 21 22 ages 0 through 17 in the table below. The data presented in this section reflects

23 approximate numbers maintained by ORR as of at least August 20, 2018. These 24
numbers are dynamic and continue to change as more reunifications or discharges 25 26 occur.

27

28

1

18cv428 DMS MDD

Case 3:18-cv-00428-DMS-MDD Document 204 Filed 08/23/18 PageID.3297 Page 3 of 13

1 2 Description

Phase 1 Phase 2

(Under (5 and Total

5)

above)

3 Total number of possible children of potential class members originally identified

103

4

Discharged Children

2,551 2,654

5

Children discharged by being reunified with separated parent

61

6 Children discharged under other appropriate

7

circumstances (these include discharges to other sponsors [such as situations where the child’s separated 19

8

parent is not eligible for reunification] or children that turned 18)

1,862 1,923

184

203

9 Total children discharged

80

2,046 2,126

10

Children Remaining in Care with ORR

11 Children remaining in care where the adult associated with the child is not eligible for reunification or is not 23
12 available for discharge at this time:

505

528

13

• Children still in care where further review shows 4

they were not separated from parents by DHS:

14

• Parent indicated desire against reunification

15

(includes a significant number of parents outside 0

the U.S.):

16

• Adult presently outside the U.S.:

6

17

• Adult in other federal, state, or local custody:

3

41

45

139

139

337

343

16

19

18

• Adult red flag background check:

9

26

35

19

• Adult red flag case review – safety & well-being 0

17

17

20

• Adult red flag case review – parentage:

1

9

10

21

Defendants have made two changes to the categories in this table relative to

22

23 the Joint Status Report (JSR) filed on August 16, 2018. First, the category entitled

24 “Children discharged by being reunified with separated parent” has been expanded

25 from the previous category in the August 16 JSR, “Children discharged by being
26
27 reunified with parents in ICE custody under the government’s plan,” to include all

28

2

18cv428 DMS MDD

Case 3:18-cv-00428-DMS-MDD Document 204 Filed 08/23/18 PageID.3298 Page 4 of 13

1 reunifications with a separated parent, whether in ICE custody or not. As a result,

2 the current category now contains a number of children who were previously

3 categorized as “Children discharged under other appropriate circumstances.”

4

5

Second, Defendants have removed the subcategories entitled “Children

6 Remaining in Care with ORR – Adult released to interior” and “Children Remaining

7 in Care with ORR – Adult location under case file review” from the current table.
8
9 Consistent with the Court’s direction during the August 17 status conference,

10 Defendants are providing the details below regarding the children who were

11 included in those subcategories in the August 16 JSR.

12

13

Nine children reported in August 16, 2018 JSR as “Children Remaining in Care with ORR – Adult released to interior”

14

Of the nine children, four children no longer meet the criterion: two children

15 have been discharged from ORR care, and two children are associated with adults
16

17 who are no longer in the interior.

18

Of the remaining five of nine children, two have separated parents with a red

19

20 flag for a background check, and the remaining three continue to process towards

21 appropriate discharge.

22

These children are accounted for as appropriate in other categories in the table

23

24 above.

25

26

27

28

3

18cv428 DMS MDD

Case 3:18-cv-00428-DMS-MDD Document 204 Filed 08/23/18 PageID.3299 Page 5 of 13

1

Ten children reported in August 16, 2018 JSR as “Children Remaining in Care

with ORR – Adult location under case file review”

2

3

As of Wednesday, August 22, three of the ten children no longer meet the

4 criterion, as contact has since been established with the adult associated with the

5 child.
6 Of the remaining seven of ten children:
7

8

• Two are under review to determine whether they were separated from their

parent by the United States Government;

9

10

• Two have had contact made with a non-separated parent, but not yet the

11

separated parent;

12

• Two have not had contact made with a separated or non-separated parent,

13

though case managers continue to work to establish contact; and

14

• One has a parent who is in custody in his country of origin (COO).

15 B. Reunification of Removed Class Members
16

17

Defendants report on the current status of reunification of released and

18 removed class members in the table below. The data presented in this section reflects
19 approximate numbers maintained by ORR as of at least August 20, 2018. These
20

21 numbers are dynamic and continue to change as the reunification process moves

22 forward. 23

24

25

26

27

28

4

18cv428 DMS MDD

Case 3:18-cv-00428-DMS-MDD Document 204 Filed 08/23/18 PageID.3300 Page 6 of 13

REUNIFICATION

1 PROCESS

REPORTING METRIC

NO. REPORTING PARTY

2 STARTING POPULATION
3

Children in ORR care with parents presently departed from the U.S.

343

Def’s.

4

PROCESS 1: Identify & Resolve

Children with no “red flags” for safety or parentage

5

Safety/Parentage Concerns

Children with “red flags” for safety per background check

6

Children with “red flags” for

safety per case file review

7

Children with “red flags” for

8

parentage

337 Def’s. 4 Def’s. 0 Def’s. 2 Def’s.

9

PROCESS 2: Establish Contact

10

with Parents in Country of Origin

11

12

13

14

Children with parent contact information identified

343

Children with parent contact information identified and parents 339 actually contacted

Children with no parent contact

information/parent contact

0

information in development

Children with parent contact

information provided to ACLU by 343

Government

Def’s. Def’s. Def’s. Def’s.

15

PROCESS 3:

16 17

Determine Parental Plaintiffs to address in their

Intention for Minor

portion of Joint Status Report

N/A Pl’s.

18

Defendants will report on Processes 4 (Resolve Immigration Status of Minors

19 to Allow Reunification) and 5 (Transportation of Minors for Physical Reunification
20

21 with Parents in Country of Origin) when those Processes are under way.

22 C. Court’s Order Granting Joint Motion Regarding Scope of the Court’s

23

Preliminary Injunction

24

In accordance with the Court’s Order Granting Joint Motion Regarding Scope

25 of the Court’s Preliminary Injunction, ECF No. 192 (Aug. 16, 2018), the parties met
26

27 and conferred regarding whether or in what circumstances a waiver described in that

28

5

18cv428 DMS MDD

Case 3:18-cv-00428-DMS-MDD Document 204 Filed 08/23/18 PageID.3301 Page 7 of 13

1 Order cannot be reconsidered. The parties do not have any issue to raise with the

2 Court about that issue at this time, and ask that the Court permit them to continue to

3 meet and confer on the issue as necessary and report to the Court as needed. 4
5 D. M.M.M. TRO Negotiations

6

As ordered by the Court, the parties are meeting and conferring on the issues

7 set forth in the Court’s August 17 order, ECF No. 196. The parties request that they
8
9 be permitted a short extension until 11:00 a.m. Pacific on Friday, August 24, to

10 submit a proposed briefing schedule if they cannot reach resolution.

11 E. Information Sharing
12

13

Defendants have provided the data previously requested by Plaintiffs, and are

14 supplementing some pieces of that data as appropriate. Plaintiffs recently raised a

15 number of questions about data that had been previously provided. Defendants have
16
17 reiterated their request to Plaintiffs that Plaintiffs consolidate and prioritize such

18 requests, so that Defendants can determine how to respond in a manner that
19 minimizes interference with the ongoing data needs related to reunifications.
20
21 Defendants propose that Plaintiffs would keep an updated list of their requests for

22 information and data that prioritizes those requests and is provided to Defendants 23
each Monday and Thursday, so that Defendants can do their best to provide 24 25 information to Plaintiffs in accordance with Plaintiffs’ identified priorities. Requests

26 for information or assistance should be submitted outside that timeframe only on an 27

28

6

18cv428 DMS MDD

Case 3:18-cv-00428-DMS-MDD Document 204 Filed 08/23/18 PageID.3302 Page 8 of 13

1 emergency basis, identifying why it is an emergency, and specifying whether the

2 request should be prioritized above other pending requests.

3 F. Individual Requests for Relief from M.M.M. TRO

4

5

A number of children of class members in this case, as well as some class

6 members themselves, are separately represented by counsel other than class counsel

7 in Ms. L or M.M.M. Several of those counsel have reached out to Government
8
9 counsel, or to other employees of Defendants, seeking relief from the M.M.M. TRO

10 so that they can depart from the United States. Government counsel have told these

11 individuals and their counsel that in order to be removed, or take voluntary departure,
12
13 they must reach out to M.M.M. class counsel who can either agree that such

14 individuals are not subject to the TRO, or seek relief from the TRO from this Court

15 on behalf of those individuals.
16

17 II. PLAINTIFFS’ POSITION

18

19

Over the past week, the Steering Committee has been actively engaged in

20 outreach to removed parents and representatives for their children who remain in

21 the United States. On August 7 and August 10, the Government produced lists of

22 removed parents with contact information for most parents. The August 7th list

23 included 14 parents not on the August 10th list; combined the Government lists

24 have a total of 412 parents.

25

The Steering Committee has asked the Government to clarify why those 14

26 parents on the August 7 list are not listed on the August 10 list. The Government

27 has indicated that it is investigating. The following table summarizes Steering

28

7

18cv428 DMS MDD

Case 3:18-cv-00428-DMS-MDD Document 204 Filed 08/23/18 PageID.3303 Page 9 of 13

1 Committee progress:

2 Removed parents identified by the Government (8/7 and 8/10 412
3

lists)

4

• Parents for whom Committee has no phone number 41 5

Steering Committee called parent

371

6

7 Steering Committee spoke to parent (either by phone or in

231

8 person)

9

• Parents called and successfully reached

225

10

• Parents found through outreach by NGOs

6

11

• Parents called and not reached (and not reached 140

12

through NGO efforts)

13

o Phone number inoperable or ineffective

38

14

o Phone calls ongoing

102

15 Parents reached by phone or NGO outreach

231

Reunified: confirmed reunifications in home country

10

16

Ready for reunification: parent’s reunification wish confirmed to 15

match child’s

17

Preliminary indication of parent’s wishes for reunification

183

18

Ongoing discussions w parent about reunification

23

19

20

The Steering Committee has placed calls to all parents for whom it has

21 phone numbers — 3711 out of the 412 — and has successfully spoken to 231 (225

22 through phone calls, six reached by NGO partners in Central America). Of these

23 231, we have obtained a preliminary indication of the desires of 183 parents. We

24 are having ongoing discussions with 23 parents to ascertain their wishes. Ten

25 1 The Steering Committee received 366 phone numbers for removed parents
26 from the Government. The additional five parents contacted were found through

27 the Committee’s efforts.

28

8

18cv428 DMS MDD

Case 3:18-cv-00428-DMS-MDD Document 204 Filed 08/23/18 PageID.3304 Page 10 of 13

1 children have been reunified with their parents in their country of origin.

2

As required by the Reunification Plan, the Steering Committee has also been

3 communicating with attorneys for the children of removed parents to ensure that

4 the desires expressed by parents and children are aligned before a final decision is

5 communicated to the Government. On August 16, the Government provided a list

6 of 236 children and their associated attorneys. This list did not include the names,

7 locations, or contact information for their parents, so we have been working to

8 correlate this information with the information provided concerning parents. Of

9 these 236 children, 73 were not included on the previous two lists of children with

10 removed parents provided by the Government on August 7 and 10, and the

11 Steering Committee has asked for clarification in this regard. For the remaining

12 children—for whom the parents are understood to be removed—the Steering

13 Committee has reached out to all of the children’s attorneys and is awaiting

14 confirmation of the children’s wishes. To identify the legal representatives of the

15 249 children for whom the Government has not provided information, the Steering

16 Committee has worked with the Vera Institute of Justice to determine the

17 designated legal service providers for all ORR shelters, and has reached out to all

18 of these providers to determine which children they represent. Within the coming

19 days, the Steering Committee will identify children who do not appear to be

20 represented and will work with Vera to secure counsel for them.

21

For 15 sets of parents and children, the Steering Committee has confirmed

22 that the desires of parents and children are aligned and the Steering Committee is

23 in the process of obtaining or preparing documentation of those desires to provide

24 final confirmation to the Government. Of the 15 families that fall within this

25 group, 12 have elected reunification in the country of origin, and 3 have decided to

26 decline such reunification.

27

Of the 140 parents for whom outreach attempts have been unsuccessful to

28

9

18cv428 DMS MDD

Case 3:18-cv-00428-DMS-MDD Document 204 Filed 08/23/18 PageID.3305 Page 11 of 13

1 date, the Steering Committee has determined that 38 of the phone numbers

2 provided are inoperative or ineffective and the Steering Committee is continuing

3 efforts to reach the remaining 102 parents. The Steering Committee is determining

4 a phone number to be inoperative or ineffective under the following circumstances:

5 (1) the person answering the phone accepted the call and indicated that the number

6 was incorrect; (2) the number does not ring or leads to a pre-recorded error

7 message; or (3) the Steering Committee has attempted to dial the phone number

8 provided by the Government at least five times, over multiple days, and has been

9 unable to reach the parent (e,g., the call reaches a voicemail that has not been set

10 up, the call rings with no answer). The Steering Committee provided a list of such

11 inoperative or ineffective phone numbers to the Government on Tuesday, August

12 21, and will continue to provide updates lists as numbers are determined to be

13 inoperative or ineffective.

14

For parents for whom the Government has not yet provided phone numbers

15 (41), or for whom the Steering Committee has determined the numbers to be

16 inoperative or ineffective (38), Steering Committee member Justice in Motion is

17 currently engaged in on-the-ground efforts in Honduras and Guatemala to locate

18 parents. Justice in Motion representatives who speak indigenous languages have

19 obtained birth certificates of parents to determine their locations and have travelled

20 to remote villages to seek to interview the parents in person. These efforts have

21 reached six parents and will continue, supported by Steering Committee member

22 KIND’s local partners in Central America and other NGO partners.

23

Finally, in communicating with removed parents, the Steering Committee

24 has indications that some parents may have been coerced or misled by U.S.

25 government actions that deprived the parents of their right to seek asylum. These

26 incidents include parents who were told that they needed to accept removal and not

27 pursue asylum in order to be reunited with their children, and parents who were

28

10

18cv428 DMS MDD

Case 3:18-cv-00428-DMS-MDD Document 204 Filed 08/23/18 PageID.3306 Page 12 of 13

1 required to sign documents they did not understand, in languages they do not

2 speak, that had the effect of waiving their right to seek asylum. The Steering

3 Committee is further investigating these cases.

4

5 DATED: August 23, 2018

Respectfully submitted,

6

/s/ Lee Gelernt

7

Lee Gelernt*

Judy Rabinovitz*

8

Anand Balakrishnan*

9

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION

10

125 Broad St., 18th Floor

11

New York, NY 10004

T: (212) 549-2660

12

F: (212) 549-2654

13

lgelernt@aclu.org

jrabinovitz@aclu.org

14

abalakrishnan@aclu.org

15

Bardis Vakili (SBN 247783)

16

ACLU FOUNDATION OF SAN DIEGO

17

& IMPERIAL COUNTIES

P.O. Box 87131

18

San Diego, CA 92138-7131

19

T: (619) 398-4485

F: (619) 232-0036

20

bvakili@aclusandiego.org

21

22

Stephen B. Kang (SBN 292280) Spencer E. Amdur (SBN 320069)

23

AMERICAN CIVIL LIBERTIES UNION

24

FOUNDATION 39 Drumm Street

25

San Francisco, CA 94111

26

T: (415) 343-1198 F: (415) 395-0950

27

skang@aclu.org

28

11

18cv428 DMS MDD

Case 3:18-cv-00428-DMS-MDD Document 204 Filed 08/23/18 PageID.3307 Page 13 of 13

1

samdur@aclu.org

2

Attorneys for Petitioners-Plaintiffs

*Admitted Pro Hac Vice 3

4

CHAD A. READLER

5

Acting Assistant Attorney General

6

SCOTT G. STEWART

Deputy Assistant Attorney General

7

WILLIAM C. PEACHEY

8

Director

WILLIAM C. SILVIS

9

Assistant Director

10

/s/ Sarah B. Fabian

11

SARAH B. FABIAN

12

Senior Litigation Counsel

NICOLE MURLEY

13

Trial Attorney

14

Office of Immigration Litigation

Civil Division

15

U.S. Department of Justice

16

P.O. Box 868, Ben Franklin Station

Washington, DC 20044

17

(202) 532-4824

18

(202) 616-8962 (facsimile)

sarah.b.fabian@usdoj.gov 19

20

ADAM L. BRAVERMAN

21

United States Attorney SAMUEL W. BETTWY

22

Assistant U.S. Attorney

23

Attorneys for Respondents-Defendants

24

25

26

27

28

12

18cv428 DMS MDD

 
 Case 3:18-cv-00428-DMS-MDD Document 250 Filed 10/09/18 PageID.3995 Page 1 of 22

1 Lee Gelernt* Judy Rabinovitz*
2 Anand Balakrishnan*

Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES

3 Daniel Galindo (SBN 292854) AMERICAN CIVIL LIBERTIES
4 UNION FOUNDATION

P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 398-4485

5 IMMIGRANTS’ RIGHTS PROJECT F: (619) 232-0036

125 Broad St., 18th Floor

bvakili@aclusandiego.org

6 New York, NY 10004

7 T: (212) 549-2660 F: (212) 549-2654
8 lgelernt@aclu.org

Spencer E. Amdur (SBN 320069) Stephen B. Kang (SBN 292280) AMERICAN CIVIL LIBERTIES

9 jrabinovitz@aclu.org abalakrishnan@aclu.org
10

UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street

11

San Francisco, CA 94111

T: (415) 343-1198

12

F: (415) 395-0950

13 Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice
14

samdur@aclu.org skang@aclu.org

15

16

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

17

18
Ms. L. et al.,
19

Case No. 18-cv-00428-DMS-MDD

20

Petitioners-Plaintiffs,

Date Filed: October 5, 2018

v.
21

THIRD AMENDED COMPLAINT

22 U.S. Immigration and Customs Enforcement (“ICE”); et al.,

FOR DECLARATORY AND INJUNCTIVE RELIEF

23

24

Respondents-Defendants. CLASS ACTION

25

26

27

28

Case 3:18-cv-00428-DMS-MDD Document 250 Filed 10/09/18 PageID.3996 Page 2 of 22

1 Aaron M. Olsen (SBN 259923)

Wilson G. Barmeyer* EVERSHEDS

Sirine Shebaya* Johnathan Smith*

2 HAEGGQUIST & ECK SUTHERLAND (US) LLP MUSLIM ADVOCATES

3 LLP 225 Broadway, Ste 2050
4 San Diego, CA 92101 5 T: 619.342.8000
F: 619.342.7878 6 aarono@haelaw.com
7
8

700 Sixth Street NW Suite 700 Washington, DC 20001 T: (202) 383-0100 F: (202)637-3593 wilsonbarmeyer@evershed s-sutherland.com

P.O. Box 34440 Washington, D.C. 20043 T: (202) 897-2622 F: (202) 508-1007 sirine@muslimadvocates .org johnathan@muslimadvocates .org

9

John H. Fleming*

Simon Y. Sandoval-

EVERSHEDS

Moshenberg*

10

SUTHERLAND (US) LLP Sophia Gregg*

11

999 Peachtree Street NE, LEGAL AID JUSTICE

Suite 2300

CENTER

12

Atlanta, GA 30309

6066 Leesburg Pike, Suite

13

T: (404) 853-8000

520

F: (404) 853-8806

Falls Church, VA 22041

14

johnfleming@eversheds- T: (703) 778-3450

15

sutherland.com

F: (703) 778-3454

simon@justice4all.org

16

sophia@justice4all.org

17
Counsel for Plaintiffs Dora and Alma and for Count 3 Only 18 *Motion for Admission Pro Hac Vice Forthcoming

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24

25

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1

INTRODUCTION

1. This case challenges the United States government’s forcible

2
separation of parents from their young children for no legitimate reason and

3
notwithstanding the threat of irreparable damage that separation has been

4
universally recognized to cause young children.

5
2. Plaintiff Ms. L. is the mother of a seven (7) year-old daughter, who
6
was ripped away from her, and then sent halfway across the country to be detained
7
alone. Plaintiff Ms. C. is the mother of a fourteen (14) year-old son, who was also
8

forcibly separated from his mother and detained more than a thousand miles away.
9

Dora is the mother of a thirteen (13) year-old daughter who was forcibly separated
10

from her. Alma is the mother of seven-year old and nine-year old sons who were
11

forcibly separated from her.
12

3. Ms. L., Ms. C., Dora, and Alma bring this action on behalf of
13

themselves and thousands of other parents whom the government has forcibly
14

separated from their children. Like Ms. L., Ms. C., Dora, and Alma, many of these
15

individuals have fled persecution and are seeking asylum in the United States.
16

Without any allegations of abuse, neglect, or parental unfitness, and with no
17

hearings of any kind, the government is separating these families and detaining
18

their young children, alone and frightened, in facilities often thousands of miles
19

from their parents.
20

4. Forced separation from parents causes severe trauma to young
21

children, especially those who are already traumatized and are fleeing persecution
22

in their home countries. The resulting cognitive and emotional damage can be
23

permanent.
24

5. Forced separation can also cause parents to experience symptom of
25

acute stress response and corresponding cognitive impairments, which can in turn
26

impair the ability to meaningfully participate in a credible fear interview.
27

28

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1

6. Defendants have ample ways to keep Plaintiffs together with their

2 children, as they have done for decades prior to their current practice. There are

3 shelters that house families (including asylum-seekers) while they await the final

4 adjudication of their immigration cases. If, however, the government lawfully

5 continues detaining these parents and young children, it must at a minimum detain

6 them together in one of its immigration family detention centers.

7

7. The Due Process Clause of the Fifth Amendment does not permit the

8 government to forcibly take young children from their parents, without justification

9 or even a hearing. That separation also violates the asylum statutes, which

10 guarantee a meaningful right to apply for asylum, and the Administrative Procedure

11 Act (APA), which prohibits unlawful and arbitrary government action.

12

JURISDICTION

13

8. This case arises under the Fifth Amendment to the United States

14 Constitution, federal asylum statutes, and the APA. The court has jurisdiction under

15 28 U.S.C. § 1331 (federal question jurisdiction); 28 U.S.C. § 2241 (habeas

16 jurisdiction); and Art. I., § 9, cl. 2 of the United States Constitution (“Suspension

17 Clause”). Plaintiffs are in custody for purposes of habeas jurisdiction.

18

VENUE

19

9. Venue is proper under 28 U.S.C. § 1391(e) because Ms. L. was

20 detained in this District when this action commenced, Defendants reside in this

21 District, and a substantial portion of the relevant facts occurred within this District,

22 including the Defendants’ implementation of their practice of separating immigrant

23 parents from their children for no legitimate reason.

24

PARTIES

25

10. Plaintiff Ms. L. is a citizen of the Democratic Republic of the Congo

26 (the “Congo” or “DRC”). She is the mother of 7 year-old S.S.

27

11. Plaintiff Ms. C. is a citizen of Brazil. She is the mother of 14 year-old

28 J.

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1

12. Dora is a citizen of Honduras. She is the mother of a 13 year-old

2 daughter.

3

13. Alma is a citizen of Honduras. She is the mother of 7 and 9 year-old

4 sons.

5

14. Defendants U.S. Department of Homeland Security (“DHS”) has

6 responsibility for enforcing the immigration laws of the United States.

7

15. Defendant U.S. Immigration and Customs Enforcement (“ICE”) is the

8 sub-agency of DHS that is responsible for carrying out removal orders and

9 overseeing immigration detention.

10

16. Defendant U.S. Customs and Border Protection (“CBP”) is the sub

11 agency of DHS that is responsible for the initial processing and detention of

12 noncitizens who are apprehended near the U.S. border.

13

17. Defendant U.S. Department of Health and Human Services (HHS) is a

14 department of the executive branch of the U.S. government which has been

15 delegated authority over “unaccompanied” noncitizen children.

16

18. Defendant Office of Refugee Resettlement (“ORR”) is the component

17 of HHS which provides care of and placement for “unaccompanied” noncitizen

18 children.

19

19. Defendant Thomas Homan is sued in his official capacity as the

20 Director of ICE, and is a legal custodian of Plaintiffs.

21

20. Defendant Greg Archambeault is sued in his official capacity as the

22 ICE San Diego Field Office Director, and is a legal custodian of Plaintiff Ms. L.

23

21. Defendant Joseph Greene is sued in his official capacity as the ICE

24 San Diego Assistant Field Office Director for the Otay Mesa Detention Center, and

25 is a legal custodian of Plaintiff Ms. L.

26

22. Defendant Adrian P. Macias is sued in his official capacity as the ICE

27 El Paso Field Office Director, and is a legal custodian of Plaintiff Ms. C.

28

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1

23. Defendant Frances M. Jackson is sued in his official capacity as the

2 ICE El Paso Assistant Field Office Director for the West Texas Detention Facility,

3 and is a legal custodian of Plaintiff Ms. C.

4

24. Defendant Kirstjen Nielsen, is sued in her official capacity as the

5 Secretary of the Department of Homeland Security. In this capacity, she directs

6 each of the component agencies within DHS: ICE, USCIS, and CBP. As a result,

7 Respondent Nielsen has responsibility for the administration of the immigration

8 laws pursuant to 8 U.S.C. § 1103, is empowered to grant asylum or other relief, and

9 is a legal custodian of the Plaintiffs.

10

25. Defendant Jefferson Beauregard Sessions III is sued in his official

11 capacity as the Attorney General of the United States. In this capacity, he has

12 responsibility for the administration of the immigration laws pursuant to 8 U.S.C. §

13 1103, oversees the Executive Office of Immigration Review, is empowered to grant

14 asylum or other relief, and is a legal custodian of the Plaintiffs.

15

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

16 Director of USCIS.

17

27. Defendant Kevin K. McAleenan is sued in his official capacity as the

18 Acting Commissioner of CBP.

19

28. Defendant Pete Flores is sued in his official capacity as the San Diego

20 Field Director of CBP.

21

29. Defendant Hector A. Mancha Jr. is sued in his official capacity as the

22 El Paso Field Director of CBP.

23

30. Defendant Alex Azar is sued in his official capacity as the Secretary of

24 the Department of Health and Human Services.

25

31. Defendant Scott Lloyd is sued in his official capacity as the Director of

26 the Office of Refugee Resettlement.

27

28

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1

FACTS

2

32. Over the past year, the government has separated thousands of migrant

3 families for no legitimate purpose. The government’s true purpose in separating

4 these families was to deter future families from seeking refuge in the United States.

5

33. Many of these migrant families fled persecution and are seeking

6 asylum. Although there are no allegations that the parents are unfit or abusing their

7 children in any way, the government has forcibly separated them from their young

8 children and detained the children, often far away, in facilities for “unaccompanied”

9 minors.

10

34. There is overwhelming medical evidence that the separation of a

11 young child from his or her parent will have a devastating negative impact on the

12 child’s well-being, especially where there are other traumatic factors at work, and

13 that this damage can be permanent.

14

35. The American Association of Pediatrics has denounced the

15 Administration’s practice of separating migrant children from their parents, noting

16 that: “The psychological distress, anxiety, and depression associated with

17 separation from a parent would follow the children well after the immediate period

18 of separation—even after the eventual reunification with a parent or other family.”

19

36. Prior Administrations detained migrant families, but did not have a

20 practice of forcibly separating fit parents from their young children.

21

37. There are non-governmental shelters that specialize in housing and

22 caring for families—including asylum seeking families—while their immigration

23 applications are adjudicated.

24

38. There are also government-operated family detention centers where

25 parents can be housed together with their children, should the government lawfully

26 decide not to release them. The government previously detained, and continues to

27 detain, numerous family units at those facilities.

28

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1

39. In April 2018, the New York Times reported that more than “700

2 children have been taken from adults claiming to be their parents since October [of

3 2016], including more than 100 children under the age of 4.” Caitlin Dickerson,

4 Hundreds of Children Have Been Taken from Parents at U.S. Border, N.Y. Times,

5 Apr. 20, 2018.

6

40. On May 7, 2018, Defendant Sessions announced “a new initiative” to

7 refer “100 percent” of immigrants who cross the Southwest border for criminal

8 immigration prosecutions, also known as the “zero-tolerance policy.” Defendant

9 Sessions stated that as part of that prosecution, all parents who are prosecuted

10 would be separated from their children. U.S. Dep’t of Justice, Attorney General

11 Sessions Delivers Remarks to the Association of State Criminal Investigative

12 Agencies 2018 Spring Conference (May 7, 2018). The purpose of this new policy

13 was to separate families in the hope that it would deter other families from seeking

14 refuge in the United States.

15

41. At a Senate Judiciary Committee hearing in May, a deputy chief of

16 Defendant U.S. Customs and Border Protection testified that between May 6 and

17 May 19 alone, a total of 658 children were separated from their family members

18 pursuant to this policy. The Washington Post reported that in the city of McAllen, 19 Texas, 415 children were taken from their parents during a two week period.1 And

20 in June 2018, the Department of Homeland Security reported that in the six weeks

21 between April 19 and May 31, the administration took almost 2,000 children away 22 from their parents.2

23

42. Defendant Sessions and other government officials, including

24 Defendant Nielsen, have repeatedly defended the separation of children from their

25 parents in speeches and interviews with various media outlets. Among other

26 1 https://www.washingtonpost.com/world/national-security/trumps-zero-tolerance- at-the-
27 border-is-causing-child-shelters-to-fill-up-fast/2018/05/29/7aab0ae4-636b-11e8-a69cb944de66d9e7_story.html?utm_term=.d52d94c37d05.
28 2 https://ca.reuters.com/article/topNews/idCAKBN1JB2SF-OCATP.

6

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1 justifications for the practice, they have stated that separating families would be a 2 way to “discourage parents from bringing their children here illegally,”3 and that it

3 would help “deter more movement” to the United States by asylum seekers and 4 other migrants.4 Administration officials told the New York Times in May, “[t]he

5 president and his aides in the White House had been pushing a family separation

6 policy for weeks as a way of deterring families from trying to cross the border 7 illegally.”5

8

43. Even if the separated child is released from custody and placed in a

9 community setting or foster care, the trauma of the ongoing separation continues.

10

44. By taking away their children, Defendants are coercing class members

11 into giving up their claims for asylum and other legal protection. Numerous class

12 members have been told by CBP and ICE agents that they will see their children

13 again sooner if they withdraw their asylum applications and accept earlier 14 deportation.6

15

45. Many class members have given up their asylum claims and stipulated

16 to removal as a way to be reunited with their children faster.

17

46. For class members who have not been coerced into giving up their

18 asylum claims, separation from their children has made those applications much

19 more difficult. Separation prevents parents from helping their children apply for

20 asylum and navigate removal proceedings. Separation also makes it harder for

21
22 3 http://transcripts.cnn.com/TRANSCRIPTS/1801/16/cnr.04.html. 4 https://www.cnn.com/2017/03/06/politics/john-kelly-separating-children-from- parents-immigration-
23 border/

24 5 https://www.nytimes.com/2018/05/10/us/politics/trump-homeland-security- secretary-resign.html

6 This practice has been widely reported. See, e.g., Dara Lind, Trump Will Reunite Separated Families— 25 But Only if They Agree to Deportation, Vox.com (June 25, 2018),

https://www.vox.com/2018/6725/17484042/children-parents-separate- reunite-plan-trump; Jay Root & 26 Shannon Najmabadi, Kids in Exchange for Deportation: Detained Migrants Say They Were Told They

27

Could Get Kids Back on Way Out of U.S., Texas Tribune (June 24, 2018), https://www.texastribune.org/2018/06/24/kids-exchange-deportation-migrants-claim-they-were-promised-

28

they-could/?utm_campaign=tribsocial&utm_medium=social&utm_source=twitter&utm_content=1529859032.

7

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1 parents to present facts involving their children which support their own asylum

2 claims.

3

47. The trauma of separation also renders asylum-seeking class members

4 too distraught to effectively pursue their asylum applications. See, e.g., Angelina

5 Chapin, Separated Parents Are Failing Asylum Screenings Because They’re So 6 Heartbroken, Huffington Post (June 30, 2018).7

7

48. Defendants have deported class members without their separated

8 children. Their children are now stranded in the United States alone. Many of these

9 parents are now struggling to make contact with their children, who are being

10 detained thousands of miles away across multiple international borders. See Miriam

11 Jordan, “I Can’t Go Without My Son, “a Mother Pleaded as She Was Deported to 12 Guatemala, N.Y. Times (June 17, 2018).8

13

49. On June 20, 2018, President Trump signed an Executive Order (“EO”)

14 purporting to end certain family separations going forward.9 The EO directs DHS to

15 “maintain custody of alien families during the pendency of any criminal improper

16 entry or immigration proceedings.”

17

50. The EO directs DHS to separate families any time DHS determines

18 that separation would protect “the child’s welfare.” It does not, however, set forth

19 how that standard will be applied. In prior cases the government has applied that

20 standard in a manner that is inconsistent with the child’s best interest, including in

21 Ms. L’s case.

22

51. The EO makes no provision for reunifying the thousands of families

23 who were separated prior to its issuance.

24 7 https://www.huffingtonpost.com/entry/separated-parents-too-grief-stricken-to-seek-asylum-expertssay_us_5b379974e4b08c3a8f6ad5d9.
25 8 https://www.nytimes.com/2018/06/17/us/immigration-deported-parents.html. See also Nelson
26 Renteria, El Salvador Demands U.S. Return Child Taken from Deported Father, Reuters (June 21, 2018), https://www.reuters.com/article/us-usa- immigration-el-salvador/el-salvador-demands-us-return-child-
27 taken-from-deported- father-idU SKBN1JH3ER.
28 9 https://www.whitehouse.gov/presidential-actions/affording-congress-opportunity- address-familyseparation/.

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1

52. The EO makes no provision for returning separated children to parents

2 who have been already been deported without their children.

3

NAMED PLAINTIFFS

4

53. Ms. L. and her daughter S.S. are one of the many families that have

5 recently been separated by the government.

6

54. Ms. L. and her daughter are seeking asylum in the United States.

7

55. Ms. L. is Catholic and sought shelter in a church until she was able to

8 escape the Congo with S.S.

9

56. Upon reaching the United States, Ms. L. and S.S. presented themselves

10 at the San Ysidro, California Port of Entry on November 1, 2017. Although their

11 native language is Lingala, they were able to communicate to the border guards that

12 they sought asylum.

13

57. Based on her expression of a fear of returning to the Congo, Ms. L.

14 was referred for an initial screening before an asylum officer, called a “credible fear

15 interview.” She subsequently passed the credible fear screening but, until March 6,

16 2018, remained detained in the Otay Mesa Detention Center in the San Diego area.

17

58. On or about November 5, immigration officials forcibly separated

18 then-6 year-old S.S. from her mother and sent S.S. to Chicago. There she was

19 housed in a detention facility for “unaccompanied” minors run by the Office of

20 Refugee Resettlement (ORR).

21

59. When S.S. was taken away from her mother, she was screaming and

22 crying, pleading with guards not to take her away from her mother. While detained,

23 Ms. L. spoke to her daughter approximately 6 times by phone, never by video. For

24 months she was terrified that she would never see her daughter again. The few

25 times Ms. L. was able to speak to her daughter on the phone, her daughter was

26 crying and scared.

27

60. In December, S.S. turned 7 and spent her birthday in the Chicago

28 facility, without her mother.

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1

61. In detention, Ms. L. was distraught and depressed because of her

2 separation from her daughter. As a result, she did not eat properly, lost weight, and

3 was not sleeping due to worry and nightmares.

4

62. In one moment of extreme despair and confusion, Ms. L. told an

5 immigration judge that she wanted to withdraw her application for asylum,

6 realizing her mistake only a few days later. She is seeking to reopen her case before

7 the Board of Immigration Appeals.

8

63. The government had no legitimate interest in separating Ms. L. and her

9 child.

10

64. There has been no evidence, or even accusation, that S.S. was abused

11 or neglected by Ms. L.

12

65. There is no evidence that Ms. L. is an unfit parent or that she is not

13 acting in the best interests of her child.

14

66. After Ms. L. filed this lawsuit and moved for a preliminary injunction,

15 Defendants abruptly released her from custody on March 6, 2018, due to the filing

16 of the lawsuit. Defendants informed her that she would be released mere hours in

17 advance, with no arrangements for where she would stay. S.S. was released to Ms.

18 L.’s custody several days later. Both are now pursuing their claims for legal

19 protection.

20

67. Ms. C. and her 14 year-old son, J., are another one of the families who

21 have been separated by the government. Like Ms. L. and her daughter, Ms. C. and

22 her son are seeking asylum in the United States.

23

68. Ms. C. and J. fled Brazil and came to the United States to seek asylum.

24 A few feet after Ms. C. entered the United States, a border guard approached her,

25 and she explained that she was seeking asylum. Ms. C. subsequently passed a

26 credible fear interview, and was put in removal proceedings, where she is applying

27 for asylum.

28

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1

69. Despite having communicated her fear of persecution to border guards,

2 the government prosecuted Ms. C. for entering the country illegally, took her son J.

3 away from her, and sent him to a facility for “unaccompanied” children in Chicago.

4

70. The government continued to separate Ms. C. from her son even after

5 she completed serving her criminal misdemeanor sentence on September 22, 2017,

6 and was sent to an immigration detention facility, the El Paso Processing Center. In

7 early January 2018, she was transferred again, to another immigration facility, the

8 West Texas Detention Facility (also known as Sierra Blanca), but still was not

9 reunited with her son. Even after Ms. C was released from immigration detention

10 on April 5, 2018, the government did not reunify her with her son for another two

11 months, until June 9.

12

71. While separated from J., Ms. C. was desperate to be reunited with him.

13 She worried about him constantly and did not know when she would be able to see

14 him. They spoke on the phone only a handful of times while they were separated by

15 Defendants.

16

72. J. had a difficult time emotionally during the months he was separated

17 from his mother.

18

73. The government had no legitimate interest for the separation of Ms. C.

19 and her child.

20

74. There is no evidence, or even accusation, that J. was abused or

21 neglected by Ms. C.

22

75. There is no evidence that Ms. C. is an unfit parent or that she is not

23 acting in the best interests of her child.

24

76. Dora fled Honduras with her thirteen-year-old daughter due to

25 persecution on account of her political opinion. She was separated from her

26 daughter when she arrived in the United States in May 2018. It was the first time in

27 their lives that they had been separated. Dora was unable to obtain information

28 about her daughter’s whereabouts.

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1

77. Dora was terrified for her daughter after being separated from her. She

2 became so distraught that she had to be given medication—antidepressants and

3 sleeping pills—to treat the depression she suffered as a result of having been

4 separated from her daughter. The medication did not work and actually made her

5 feel worse. Dora suffered side effects from the medications.

6

78. Dora received a negative determination in a credible fear interview

7 conducted during the separation. She has been reunited with her children and is

8 currently detained at the South Texas Family Residential Center in Dilley, Texas.

9

79. Alma fled Honduras with her two boys, aged seven and nine, because

10 of violence and persecution she and her family members endured. She arrived in the

11 United States in June 2018 and was separated from her children. She received no

12 information about them for twenty-eight days.

13

80. At the time of her credible fear interview, Alma was separated from

14 her children and unable to focus on anything other than that separation. She was

15 later diagnosed with post-traumatic stress disorder ("PTSD") because of this

16 separation, with strong indications that she was suffering from acute, debilitating

17 trauma at the time of her interview, including alterations in mood and cognition,

18 hyperarousal, and dissociation.

19

81. Alma received a negative credible fear determination, which was

20 affirmed by an immigration judge.

21

82. Alma was reunited with her children, and was released on an order of

22 supervision. She is required to check in regularly with ICE and is subject to

23 deportation at any time.

24

CLASS ALLEGATIONS

25

83. Plaintiffs bring this action under Federal Rule of Civil Procedure

26 23(b)(2) on behalf of themselves and a nationwide class of all other persons

27 similarly situated.

28

84. Plaintiffs seek to represent the following class:

12

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1

All adult parents who enter the United States at or between designated ports

of entry who (1) have been, are, or will be detained in immigration custody

2

by the DHS, and (2) have a minor child who is or will be separated from

3

them by DHS and detained in ORR custody, ORR foster care, or DHS

custody, absent a determination that the parent is unfit or presents a danger

4

to the child.

5

85. Ms. L., Ms. C., Dora, and Alma are each adequate representatives of

6 the proposed class.

7

86. The proposed class satisfies the requirements of Rule 23(a)(1) because

8 the class is so numerous that joinder of all members is impracticable. There are at a

9 minimum hundreds of parents who fit within the class.

10

87. The class meets the commonality requirements of Federal Rule of

11 Civil Procedure 23(a)(2). The members of the class are subject to a common

12
practice: forcibly separating detained parents from their minor children absent any

13
determination that the parent is unfit or presents a danger to the child. By definition,

14
all class members have experienced that practice, and none has been given an

15
adequate hearing regarding the separation. The lawsuit raises numerous questions

16
of law common to members of the proposed class, including: whether Defendants’

17
family separation practice violates class members’ substantive due process right to

18
family integrity; whether the practice violates class members’ procedural due

19
process rights; whether the practice violates the federal asylum statute; and whether

20
these separations are unlawful or arbitrary and capricious under the APA.

21
88. The proposed class meets the typicality requirements of Federal Rule

22
of Civil Procedure 23(a)(3), because the claims of the representative Plaintiffs are

23
typical of the claims of the class. Ms. L., Ms. C., Dora, and Alma, and the proposed

24
class members are all individuals who have had or will have their children forcibly

25
taken away from them despite there being no proven allegations of abuse, neglect,
26
or any other danger or unfitness. Plaintiffs and the proposed class also share the
27
same legal claims, which assert the same substantive and procedural rights under
28
the Due Process Clause, the asylum statute, and the APA.

13

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1

89. The proposed class meets the adequacy requirements of Federal Rule

2 of Civil Procedure 23(a)(4). The representative Plaintiffs seek the same relief as the

3 other members of the class—namely, an order that they be reunified with their

4 children, whether through release or in family detention facilities. In defending their

5 own rights, Ms. L., Ms. C., Dora, and Alma will defend the rights of all proposed

6 class members fairly and adequately.

7

90. The proposed class is represented by counsel from the American Civil

8 Liberties Union Immigrants’ Rights Project and the ACLU of San Diego and

9 Imperial Counties. Counsel have extensive experience litigating class action

10 lawsuits and other complex cases in federal court, including civil rights lawsuits on

11 behalf of noncitizens.

12

91. The members of the class are readily ascertainable through

13 Defendants’ records.

14

92. The proposed class also satisfies Federal Rule of Civil Procedure

15 23(b)(2). Defendants have acted on grounds generally applicable to the class by

16 unlawfully separating parents from their young children. Injunctive and declaratory

17 relief is thus appropriate with respect to the class as a whole.

18

CAUSES OF ACTION

COUNT I

19

(Violation of Due Process: Right to Family Integrity)

20

93. All of the foregoing allegations are repeated and realleged as though

21 fully set forth herein.

22

94. The Due Process Clause of the Fifth Amendment applies to all

23 “persons” on United States soil and thus applies to Ms. L., Ms. C., their children

24 S.S. and J., and all proposed class members.

25

95. Plaintiffs, their children, and all class members have liberty interests

26 under the Due Process Clause in remaining together as families.

27

28

14

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1

96. The separation of the class members from their children violates

2 substantive due process because it furthers no legitimate purpose and was designed

3 to deter.

4

97. The separation of the class members from their children also violates

5 procedural due process because it was undertaken without any hearing.

6

COUNT II

7

(Administrative Procedure Act: Arbitrary and Capricious Practice)

8

98. All of the foregoing allegations are repeated and realleged as though

9 fully set forth herein.

10

99. The APA prohibits agency action that is arbitrary and capricious or

11 violates a person’s legal or constitutional rights.

12

100. Defendants’ separation practice is final agency action for which there

13 is no other adequate remedy in a court. Defendants’ decision to separate parents is

14 not tentative or interlocutory, because Defendants have already separated thousands

15 of families and continue to do so, and the policy was announced by high-level

16 officials. And Defendants’ decision to separate gravely impacts class members’

17 rights to remain together as families.

18

101. Defendants’ separation of Ms. L., Ms. C., and the other class members

19 from their children without any explanation or legitimate justification is arbitrary

20 and capricious and accordingly violates the APA. 5 U.S.C. § 706.

21

102. Among other things, Defendants failed to offer adequate reasons for

22 adopting their unprecedented new separation practice; they failed to explain why

23 they were not using alternatives to separation, including supervised release and

24 family detention; and for parents like Ms. L., Defendants have never explained why

25 they cannot verify parentage before imposing traumatic separation on both parent

26 and child.

27

28

15

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1

COUNT III

(Violation of Right to Seek Protection Under the Asylum and Withholding of

2

Removal Statutes, and the Convention Against Torture)

3

103. All of the foregoing allegations are repeated and realleged as though

4 fully set forth herein.

5

104. Under United States law, noncitizens with a well-founded fear of

6 persecution shall have the opportunity to apply for asylum in the United States. 8

7 U.S.C. § 1158(a). In addition, noncitizens have a mandatory statutory entitlement to

8 withholding of removal where they would face a probability of persecution if

9 removed to their country of nationality, 8 U.S.C. § 1231(b)(3), or withholding or

10 deferral of removal where they would face a probability of torture. Foreign Affairs

11 Reform and Restructuring Act (“FARRA”), Pub. L. No. 105-277, Div. G., Title

12 XXII, § 2242, 112 Stat. 2681-822 (Oct. 21, 1998) (codified as Note to 8 U.S.C.§

13 1231).

14

105. Class members have a private right of action to challenge violations of

15 their right to apply for asylum under § 1158(a). That right is not barred by 8 U.S.C.

16 § 1158(d)(7), which applies to only certain procedural requirements set out in

17 Section 1158(d).

18

106. Defendants’ separation of families violates federal law that provides

19 for asylum and other protection from removal, as well as their due process right to

20 seek such relief. Separation severely impedes their ability to pursue their asylum

21 and other protection claims in a number of ways, including by denying them the

22 ability to coordinate their applications with their children, present facts related to

23 themselves and their children, and creating trauma that hinders their ability to

24 navigate the complex process. This is in violation of due process and other federal

25 law, including the Rehabilitation Act, 29 U.S.C. § 701 et seq. and Immigration and

26 Nationality Act, 8 U.S.C. § 1101.

27

107. The government is also using the trauma of separation to coerce

28 parents into giving up their asylum and protection claims in order to be reunited

16

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1 with their children.

2

3

PRAYER FOR RELIEF

4

Plaintiffs request that the Court enter a judgment against Defendants and

5 award the following relief:

6

A. Certify a class of all adult parents nationwide who enter the United

7 States at or between designated ports of entry who (1) have been, are, or will be

8 detained in immigration custody by the DHS, and (2) have a minor child who is or

9 will be separated from them by DHS and detained in ORR custody, ORR foster

10 care, or DHS custody, absent a determination that the parent is unfit or presents a

11 danger to the child.

12

B. Name Ms. L., and Ms. C., Dora, and Alma as representatives of the

13 class, and appoint Plaintiffs’ counsel as class counsel;

14

C. Declare the separation of Ms. L., Ms. C., Dora, and Alma, and the

15 other class members from their children unlawful;

16

D. Preliminarily and permanently enjoin Defendants from continuing to

17 separate the class members from their children;

18

E. Order Defendants either to release class members along with their

19 children, or to detain them together in the same facility;

20

F. Enjoin Defendants from removing any class members from the country

21 who have received final removal orders until they are reunited with their children,

22 unless the class members knowingly and voluntarily decide that they do not want

23 their children removed with them;

24

G. Enjoin Defendants from removing any class member who received a

25 final removal order prior to the issuance of this Court’s preliminary injunction on

26 June 26, 2018, or prior to receiving notice of their rights under the injunction, until

27 they have had an opportunity to consult with class counsel, or a delegate of class

28 counsel, to insure that these class members have knowingly and voluntarily chosen

17

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1 to forego any further challenges to removal, rather than feeling coerced into doing

2 so as a result of separation from their children.

3

H. Order Defendants to provide Ms. L, Ms. C., Dora, Alma, and the other

4 class members with a reasonable opportunity to pursue claims for asylum.

5

H. Require Defendants to pay reasonable attorneys’ fees and costs;

6

I. Order all other relief that is just and proper.

7
8 Dated: October 5, 2018

Respectfully Submitted,

9 Bardis Vakili ISBN 247783) 10 ACLU FOUNDATION OF SAN
DIEGO & IMPERIAL COUNTIES 11 P.O. Box 87131 12 San Diego, CA 92138-7131
T: (619) 398-4485 13 F: (619) 232-0036 14 bvakili@aclusandiego.org
15 Stephen B. Kang (SBN 292280) Spencer E. Amdur (SBN 320069)
16 AMERICAN CIVIL LIBERTIES 17 UNION FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT 18 39 Drumm Street 19 San Francisco, CA 94111
T: (415) 343-1198 20 F: (415) 395-0950 21 skang@aclu.org
samdur@aclu.org
22

/s/ Lee Gelernt Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* Daniel Galindo (SBN 292854) AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2616 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org dgalindo@aclu.org

23 Counsel for Plaintiffs Ms. L. and Ms. C.

24

25

26

27

28

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1 Aaron M. Olsen (SBN 259923)

Wilson G. Barmeyer* EVERSHEDS

Sirine Shebaya* Johnathan Smith*

2 HAEGGQUIST & ECK SUTHERLAND (US) LLP MUSLIM ADVOCATES

3 LLP 225 Broadway, Ste 2050
4 San Diego, CA 92101 5 T: 619.342.8000
F: 619.342.7878 6 aarono@haelaw.com
7
8

700 Sixth Street NW Suite 700 Washington, DC 20001 T: (202) 383-0100 F: (202)637-3593 wilsonbarmeyer@evershed s-sutherland.com

P.O. Box 34440 Washington, D.C. 20043 T: (202) 897-2622 F: (202) 508-1007 sirine@muslimadvocates .org johnathan@muslimadvocates .org

9

John H. Fleming*

Simon Y. Sandoval-

EVERSHEDS

Moshenberg*

10

SUTHERLAND (US) LLP Sophia Gregg*

11

999 Peachtree Street NE, LEGAL AID JUSTICE

Suite 2300

CENTER

12

Atlanta, GA 30309

6066 Leesburg Pike, Suite

13

T: (404) 853-8000

520

F: (404) 853-8806

Falls Church, VA 22041

14

johnfleming@eversheds- T: (703) 778-3450

15

sutherland.com

F: (703) 778-3454

simon@justice4all.org

16

sophia@justice4all.org

17
Counsel for Plaintiffs Dora and Alma and for Count 3 Only 18 *Motion for Admission Pro Hac Vice Forthcoming

19

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1

CERTIFICATE OF SERVICE

2

I hereby certify that on October 5, 2018, I electronically filed the foregoing

3
with the Clerk for the United States District Court for the Southern District of
4

5 California by using the appellate CM/ECF system. A true and correct copy of this

6 brief has been served via the Court’s CM/ECF system on all counsel of record.

7

/s/ Lee Gelernt

8

Lee Gelernt, Esq.

9

10

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1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 Ms. L.; et al.,

Case No.: 18cv0428 DMS (MDD)

12

Petitioners-Plaintiffs,

13 v.

14 U.S. Immigration and Customs
15 Enforcement (“ICE”); et al., Respondents-Defendants.
16

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION TO ENFORCE PRELIMINARY INJUNCTION

17

18

Plaintiffs bring the present motion to enforce this Court’s June 26, 2018 preliminary

19 injunction. That injunction was directed at the Trump Administration’s practice of

20 separating migrant parents and their minor children when they crossed the United States-

21 Mexico border and its failure to reunify those families in accordance with the United States

22 Constitution. The Administration’s practice of separating these families was formally

23 abandoned on June 20, 2018, when the President of the United States issued Executive

24 Order No. 13841, which reestablished a policy to “maintain family unity,” and directed

25 that alien families be detained together “during the pendency of any criminal improper

26 entry or immigration proceedings involving their members.” However, the Executive

27 Order did not provide any guidance on reunifying families, and did not provide any

28 guidance on future family separations, other than stating that parents and children would

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1 not be detained together if Defendants had “concerns” that the parent posed “a risk to the

2 child’s welfare.”

3

This Court’s injunction addressed those two issues. Specifically, it required

4 Defendants to reunify within thirty days parents and minor children who had been

5 separated under the Administration’s practices, and prohibited Defendants from separating

6 migrant parents and their minor children in the future absent a determination that the parent

7 was unfit or presented a danger to his or her child or had a criminal history or

8 communicable disease.

9

The day after this Court issued its preliminary injunction and accompanying order

10 granting class certification, Defendants implemented new guidelines and procedures in an

11 attempt to comply with those orders. Nevertheless, in the year following issuance of the

12 preliminary injunction, Defendants have separated nearly 1,000 migrant families at the

13 border. Given these numbers, Plaintiffs fear the Administration has returned to

14 “systematic” separation of families, prompting the present motion. It is undisputed that

15 prior Administrations separated families at the border based on fraudulent claims of

16 parentage, or evidence of child trafficking or other dangers to the child or community.

17 Defendants argue their practices now are no different from prior Administrations. They

18 point out that the number of separations at issue represents a small fraction of the number

19 of individuals entering the border at the time in question, some 524,294 parents and

20 children, and reflects careful exercise of discretion consistent with the Court’s orders.

21

Considering the Administration’s return to family unity, Defendants’

22 implementation of guidelines immediately following the Court’s preliminary injunction,

23 Defendants’ authority to secure the Nation’s borders, and the scope of the class and need

24 to avoid individualized determinations, the Court finds Defendants are generally exercising

25 their discretion to separate families at the border consistent with Plaintiffs’ rights to family

26 integrity and the Court’s orders, with one exception regarding DNA testing and one

27 clarification regarding separations based on family residential center standards.

28 / / /

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1

I.

2

BACKGROUND

3

In July of 2017, the Trump Administration embarked on an unprecedented policy of

4 separating migrant families at the border to deter immigration. The policy started quietly

5 and was implemented by the Department of Homeland Security (“DHS”) through Customs

6 and Border Protection (“CBP”) officials at border facilities in Texas. See Department of

7 Homeland Security, Office of the Inspector General, DHS Lacked Technology Needed to

8 Successfully Account for Separated Migrant Families, Rep. No. OIG-20-06 (Nov. 2019)

9 (“OIG DHS Report (11/25/19)”), at 5 (stating DHS began a “prosecution initiative … in

10 the El Paso Sector to deter illegal border crossings by increasing prosecutions, which

11 resulted in an increase in family separations.”). Eventually, the policy would be made

12 public on May 7, 2018, when the Attorney General of the United States announced the

13 Administration’s “zero tolerance policy,” in which all migrant parents entering illegally

14 between ports of entry with their minor children would be criminally prosecuted and

15 separated from their children. In practice, the policy resulted in the indiscriminate

16 separation of thousands of migrant parents and children, most of whom were seeking

17 asylum from countries in Central America and many of whom entered the United States

18 lawfully at designated ports of entry. In addition, parents who were prosecuted for

19 unlawful entry for entering between ports of entry were not reunified with their children

20 after serving brief criminal sentences because DHS did not have adequate systems in place

21 to keep track of the children, let alone any plan to reunify the families. As a result, migrant

22 parents remained separated from their children for months while the parents pursued their

23 asylum claims and other relief from removal. Many of the parents were deported back to

24 Central America without their children after exhausting their challenges to removal.

25

In response to this situation, Plaintiffs filed the present case seeking to enjoin family

26 separations on constitutional and statutory grounds. The focus of Plaintiffs’ Complaint

27 was not the zero tolerance policy, but rather a broader family separation practice that was

28 being applied to families crossing into the United States both legally at designated ports of

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1 entry and illegally between ports of entry. In response to the Complaint, Defendants filed

2 a motion to dismiss, which the Court denied. In the June 6, 2018 order on that motion, the

3 Court found Plaintiffs had stated a legally cognizable claim that this broader family

4 separation practice violated the right to family integrity and association under the Due

5 Process Clause of the Fifth Amendment to the United States Constitution. The Court also

6 found Plaintiffs’ allegations that Defendants’ practice of separating parents for prosecution

7 for improper entry (zero tolerance) and failing to reunify those families after the parent

8 completed his or her sentence without a determination the parent was unfit or presented a

9 danger to the child stated a claim for violation of the right to family integrity.

10

Thereafter, on June 20, 2018, the President of the United States abandoned the zero

11 tolerance policy in favor of a “policy of th[e] Administration to maintain family unity” by

12 way of the Executive Order, see Exec. Order No. 13841, 83 Fed. Reg. 29435 (June 20,

13 2018), but did not address reunification or set out specific standards for separating family

14 units in the future.1 This Court then issued its order on class certification and the

15 preliminary injunction on June 26, 2018. Pursuant to those orders, the Court certified a

16 class that included adult parents who entered the United States at or between ports of entry

17 who were detained in immigration custody and had a minor child who was separated from

18 them and placed in the custody of the Department of Health and Human Services (“HHS”),

19 Office of Refugee Resettlement (“ORR”). Specifically, the Court certified the following

20 class (“Ms. L. class”) on Plaintiffs’ due process claim arising out of the Administration’s

21 family separation practices:

22

All adult parents who enter the United States at or between designated ports

23

of entry who (1) have been, are, or will be detained in immigration custody by the DHS, and (2) have a minor child who is or will be separated from them

24

25 1 Prior Administrations attempted to maintain family unity at the border. See CBP,
26 National Standards on Transport, Escort, Detention, and Search (“TEDS”), October 2015,
27 at § 1.9 Family Unity (stating “CBP will maintain family unity to the greatest extent operationally feasible, absent a legal requirement or an articulable safety or security
28 concern that requires separation.”)

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1

by DHS and detained in ORR custody, ORR foster care, or DHS custody,

2

absent a determination that the parent is unfit or presents a danger to the child.

3 (ECF No. 82 at 17.) The Court excluded from the class “parents with criminal history or

4 communicable disease, or those who are in the interior of the United States or subject to”

5 the Executive Order. (Id.) The preliminary injunction ordered the reunification of class

6 members with their children and prohibited Defendants from separating parents from their

7 minor children at the border “absent a determination that the parent is unfit or presents a

8 danger to the child.” (ECF No. 83 at 22-23.)2

9

The day after the Court issued its injunction, Defendants distributed a Memorandum

10 to CBP employees providing “initial direction on compliance with” the Court’s orders.

11 (Opp’n to Mot., Ex. 4 (Memorandum from Kevin K. McAleenan, Commissioner, U.S.

12 Customs and Border Protection, to Carla L. Prevost, Chief, U.S. Border Patrol, and Todd

13 C. Owen, Exec. Asst. Commissioner, Office of Field Operations (June 27, 2018))

14 (“Memorandum” or “CBP Interim Guidance Memorandum”). The Memorandum directs

15 that parents “who enter the United States illegally as part of a family unit … should not be

16 referred for prosecution for [improper entry under] 8 U.S.C. § 1325.” (Id.) In addition, it

17 states that a parent should not be separated from his or her minor child unless he or she has

18 a criminal conviction for “violent misdemeanors or felonies[,]” presents a danger to the

19 child, has a communicable disease, or presents a fraudulent claim of parental relationship.

20 (Id.) The Memorandum emphasizes that “any questions about what constitutes a violent

21 misdemeanor or felony should be referred to the local Office of Chief Counsel[,]” and that

22 / / /

23

24

25 2 At the time the preliminary injunction issued on June 26, 2018, 2,814 children had been separated from their parents (“Ms. L. class members”) and were then in the custody of ORR
26 in facilities throughout the country. Through the parties’ reunification efforts, every one
27 of these families was accounted for and nearly every child was reunified with a parent either in the United States or in their country of origin or placed with a sponsor in the
28 United States to pursue asylum, in accordance with law and the parents’ wishes.

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1 “any questions about how to comply with the court order should be raised through the

2 appropriate chain of command for contact with local Office of Chief Counsel.” (Id.)

3

In November 2018, after the majority of class members had been reunited with their

4 children, Plaintiffs notified the Court that Defendants were interpreting the class

5 certification order to include only those parents whose children were in ORR custody on

6 or after June 26, 2018. Given Plaintiffs’ allegations that the family separation practice had

7 been in effect well before the announcement of the zero tolerance policy, Plaintiffs filed a

8 motion to clarify that the class include parents who had been separated from their children

9 prior to June 26, 2018, and whose children had been released from ORR custody prior to

10 that date. While that motion was pending, the Office of Inspector General for HHS

11 confirmed that Defendants began separating families in July of 2017, and that potentially

12 thousands of additional children may have been through ORR custody before the

13 preliminary injunction issued. See Department of HHS, Office of the Inspector General,

14 Separated Children Placed in Office of Refugee Resettlement Care, HHS OIG Issue Brief

15 No. OEI-BL-18-0051 (Jan. 2019). After that report was issued, the Court granted

16 Plaintiffs’ motion to modify the class definition to include those parents who had been

17 separated from their children at the border beginning on July 1, 2017, and whose children

18 were released from ORR custody prior to June 26, 2018. As with the original class, the

19 expanded class is subject to the same exclusions for criminal history and communicable

20 disease.3

21 / / /

22

23 3 After the Court modified the class definition, it ordered Defendants to conduct an
24 accounting of possible children of members of the expanded Ms. L. class. That accounting
25 was completed on October 25, 2019, and revealed an additional 1,556 separated children. It appears the majority of parents in the expanded class were deported to Central America
26 without their children. Finding them will involve the same painstaking process that was
27 used to locate the 471 parents who were removed without their children in the original class of 2,814 parents. The reunification effort is presently underway and is being monitored by
28 the Court through monthly status conferences with the parties.

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1

Consistent with the Court’s class certification orders and preliminary injunction,

2 Defendants have continued to separate parents and children crossing the border when there

3 are concerns about parentage, the parent has a criminal history or communicable disease

4 (or long-term medical need), or the parent is unfit or presents a danger to his or her child

5 or others. During the initial reunification process of approximately 2,814 families,

6 Plaintiffs reported Defendants had excluded only twenty-nine parents from the class based

7 on the factors identified in the Court’s orders. Plaintiffs assert the number of parents who

8 have since been excluded from the class in the year following issuance of the preliminary

9 injunction stands at approximately 1,000.4

10

Given the number of family separations and the expectation that more parents will

11 be excluded from the class in the future, Plaintiffs filed the present motion to enforce the

12 Court’s preliminary injunction. The Court heard argument on the motion on September

13 20, 2019. In response to the Court’s invitation during oral argument, counsel in MMM v.

14 Sessions, Case No. 18cv1832, and Dora v. Sessions, Case No. 18cv1938, who represent

15 the settlement class of children of Ms. L. class members, filed a supplemental letter brief

16 to address whether parents convicted of illegal reentry under 8 U.S.C. § 1326 are entitled

17 to class membership. Defendants filed a response to that brief on October 16, 2019. During

18 a subsequent status conference, Plaintiffs requested an opportunity to file a supplemental

19 brief directed to Defendants’ then-recently produced separation protocols and practices set

20 out in the CBP Interim Guidance Memorandum and other documents, which the Court

21 granted. The Court also gave Defendants an opportunity to file a supplemental response

22 / / /

23

24

25 4 When the present motion was filed on July 30, 2019, the number of exclusions was 911: 678 based on allegations of criminal conduct, seventy-one (71) based on gang affiliation,
26 twenty (20) based on lack of fitness or child safety concerns, forty-six (46) based on
27 “unverified familial relationships,” and twenty-four (24) based on illness. (Mot. at 7.) In the reply brief, filed on September 18, 2019, Plaintiffs assert the number was then
28 “approximately 1,000[.]” (Reply at 1.)

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1 to Plaintiffs’ brief, which Defendants did on October 31, 2019. The motion has been fully

2 briefed and argued and is now granted in part and denied in part as discussed below.

3

II.

4

DISCUSSION

5

Read together, the orders on class certification and preliminary injunction set out

6 five criteria to be considered by DHS before an adult may be separated from his or her

7 child at the border: lack of parentage or fitness, criminal history, communicable disease,

8 and danger to the child.5 Plaintiffs argue Defendants’ application of these factors is

9 resulting in exclusion from the Ms. L. class and continued, unconstitutional separations of

10 parents from their minor children. Plaintiffs also assert Defendants’ standards for

11 placement in family residential centers (“FRCs”) are causing unconstitutional separations

12 of fit parents who pose no danger to their children.

13

Before turning to the five factors identified above, the Court first clarifies the

14 standard for separating parents and children at the border, as that standard informs the

15 remaining discussion. Since the beginning of this case, Plaintiffs have argued the right to

16 family integrity is protected by the Due Process Clause of the Constitution, and the

17 government may not separate a parent from his or her child absent a showing the parent is

18 unfit or presents a danger to the child. The first of these arguments is not disputed. As

19 stated in the Court’s order denying Defendants’ motion to dismiss, “it has long been settled

20 that the liberty interest identified in the Fifth Amendment provides a right to family

21 integrity or to familial association.” (ECF No. 71 at 14.) What is disputed is whether, and

22 to what extent, that right applies to the facts presented here, namely, to immigrant families

23 taken into government custody while crossing the United States-Mexico border.

24

25

26 5 The preliminary injunction prohibits separation absent a finding the parent is unfit or
27 presents a danger to the child, while the class certification orders limit application of the preliminary injunction to certain individuals: adult parents at the border who do not have a
28 criminal history or communicable disease.

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1

In the order on Defendants’ motion to dismiss, the Court found Plaintiffs had alleged

2 sufficient facts to state a due process claim under the circumstances of this case, and further

3 found the standard applicable to this claim was whether the government conduct at issue,

4 namely the separation of parents and children at the border based on a nationwide policy

5 or practice to deter illegal immigration, “shocks the conscience.”6 In the present motion,

6 Plaintiffs urge the Court, as they have done throughout this case, to adopt a different

7 standard, namely, that the separation of a parent from his or her minor child violates due

8 process absent a showing the parent is unfit or presents a danger to the child. In support,

9 Plaintiffs cite Quilloin v. Wolcott, 434 U.S. 246, 255 (1978) (quoting Smith v. Organization

10 of Foster Families, 431 U.S. 816, 862-863 (1977)), which states “the Due Process Clause

11 would be offended ‘[i]f a State were to attempt to force the breakup of a natural family …

12 without some showing of unfitness[.]’” See also Brokaw v. Mercer County, 235 F.3d 1000,

13 1019 (7th Cir. 2000) (citing Croft v. Westmoreland County Children and Youth Services,

14 103 F.3d 1123, 1126 (3d Cir. 1997) (“courts have recognized that a state has no interest in

15 protecting children from their parents unless it has some definite and articulable evidence

16 giving rise to a reasonable suspicion that a child has been abused or is in imminent danger

17 of abuse.”). In other words, Plaintiffs argue these two factors, fitness and danger, are the

18 only valid government interests justifying the separation of a parent from his or her child.

19

However, this approach ignores that “the jurisprudence of substantive due process

20 is an exercise that is ‘highly dependent on context and detail.’” Aguilar v. U.S. Immigration

21 and Customs Enforcements Div. of Dep’t of Homeland Sec., 510 F.3d 1, 22 (1st Cir. 2007)

22

23 6 The Court also found the “shocks the conscious” standard applied to Defendants’ practice
24 of separating parents for prosecution for improper entry and failing to reunify those
25 families after the parent completed his or her criminal sentence and was returned to immigration detention. In that context, the initial separation of the parent for prosecution
26 is lawful but the continued separation after completion of the criminal sentence is not
27 unless the parent is determined to be unfit or a danger to the child. The present motion focuses on the initial separation of parents from their children at the border for reasons
28 unrelated to prosecution for improper entry.

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1 (quoting DePoutot v. Raffaelly, 424 F.3d 112, 119 (1st Cir. 2005)). Here, the context is an

2 international border between the United States and Mexico, which hundreds, if not

3 thousands, of people cross every day. In this context, the government interests go well

4 beyond just the fitness and danger that a parent may present to his or her own child. Rather,

5 the government interests extend to securing the Nation’s borders and enforcing the

6 Nation’s criminal and immigration laws, and all that those interests entail, including

7 detention and parole determinations for migrants taken into custody.

8

Plaintiffs’ approach, by contrast, is based on the context of state child welfare

9 investigations. (See Reply at 1) (asking Court to “reiterate that the standard for separating

10 a child is the traditional due process standard used in the child welfare context: whether

11 there is objective evidence to believe that the parent is genuinely unfit or a danger to her

12 child.”) In that context, child protective service agencies are typically responding to

13 concerns for an individual child’s welfare and are tasked with determining whether an

14 individual parent or guardian is unfit or presents such a danger to their child that the child

15 should be removed from the parent’s custody. There, the state’s primary concern is the

16 best interests of the child. There are no national security concerns or concerns about

17 immigration or criminal law enforcement, and no concerns about detaining or paroling into

18 the community families and children without lawful status in the United States.

19

The unique circumstances of this case, namely the intersection of national security

20 at the border and the fundamental right to family integrity, do not lend themselves to

21 Plaintiffs’ approach. Rather, other factors besides fitness and danger must be taken into

22 consideration when deciding whether to separate parents and children in the context of this

23 case. This Court has determined those factors include parentage, criminal history and

24 communicable disease, in addition to fitness and danger.

25

With these principles in mind, the Court considers whether Defendants’ application

26 of these factors is consistent with this Court’s orders. Plaintiffs argue Defendants are

27 separating parents from their children for unjustified reasons, including dubious concerns

28 about parentage, arbitrary determinations regarding parents with emergency medical needs

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1 or treatable illness, minor crimes and questionable allegations of gang affiliation, dubious

2 fitness and danger determinations, and overbroad use of family detention standards as a

3 justification to separate families. Defendants respond that their application of the factors

4 has been consistent with the Court’s orders, and that further Court intervention is

5 unnecessary and unwarranted. Each of these arguments is discussed below.

6 A. Parentage

7

The first factor, of course, is parentage, and here, Plaintiffs state Defendants have

8 separated forty-six (46) parents based on “unverified familial relationship[s].” (Mot. at 7.)

9 Specifically, Plaintiffs identify two cases in which parents were separated from their

10 children for this reason, only to be reunified after a DNA test confirmed parentage. While

11 these cases are relatively few, they raise two significant issues. The first is whether

12 Defendants are required to use DNA testing before separating a parent and child based on

13 doubts about parentage. The second concerns the burden of proof.

14

On the first issue, Defendants explain that DHS has implemented a pilot program

15 using Rapid DNA technology, which can determine parentage in approximately ninety

16 minutes. (Opp’n to Mot. at 11.) This program has been implemented in seven locations

17 along the border, but Defendants state “operational concerns” have prevented a wholesale

18 adoption of this program across the entire border. (Id.) It is unclear exactly what these

19 “operational concerns” are, especially when it appears Defendants are preparing for DNA

20 testing of immigrants being held in detention centers across the country. See Daniella

21 Silva, Trump admin to broadly expand DNA collection of migrants in custody, NBC News

22 (October 2, 2019, 12:51 PM), https://www.nbcnews.com/news/us-news/trump-admin-

23 broadly-expand-dna-collection-migrants-custody-n1061471. Nevertheless, if testing is not

24 available at a particular facility, Defendants can transfer the family to a facility where that

25 testing is available, or take swabs from the parent and child and send the swabs for testing,

26 as they did with Ms. L. and her daughter. Given the right at issue here, the harm that

27 parents and children suffer when they are separated, and the undisputed speed, accuracy

28 and availability of DNA testing, the Court finds Defendants must conduct DNA testing

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1 before separating an adult from a child based on parentage concerns. Such testing, in

2 service to the fundamental right at issue, is clearly warranted. It is also an efficient and

3 definitive way to resolve any concerns about fraudulent documentation. (See Opp’n to

4 Mot., Ex. 2 (Decl. of Lloyd Easterling, Div. Chief, U.S. Border Patrol, RGV Sector

5 (“Easterling Decl.”) ¶¶ 34-36 (explaining CBP concerns about fraudulent documentation

6 and child trafficking, efforts to verify validity of documents through the consulate and other

7 law enforcement agencies, and transfer of child to ORR when parentage “cannot be

8 validated within a reasonable period of time.”)

9

The answer to the second issue follows logically from the first: Defendants bear the

10 burden to show that an adult is not the parent before removing the child from the adult’s

11 custody. While Defendants’ guidelines provide that CBP must “clearly establish[] that the

12 familial relationship is not bonafide” before making a separation decision, (see ECF No.

13 489 (Memorandum from Todd A. Hoffman, Executive Director, Office of Field Operations

14 to Directors, Field Operations (Oct. 1, 2018)), it appears that guideline is not being

15 followed when parentage “cannot be validated” in a reasonable period.

16

As discussed, the personal right at issue here, to family integrity and familial

17 association, is “constitutionally protected[,]” Quilloin, 434 U.S. at 255, and finds its source

18 “in intrinsic human rights, as they have been understood in ‘this Nation’s history and

19 tradition.’” Smith v. Org. of Foster Families for Equality and Reform, 431 U.S. 816, 845

20 (1977) (quoting Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977)). When the

21 importance of this right is combined with the circumstances in which these parents find

22 themselves, namely an unfamiliar custodial setting without access to resources other than

23 their own paperwork, if any, and where Defendants have the ability to resolve any concerns

24 about parentage quickly and inexpensively through the use of DNA testing, Defendants,

25 not Plaintiffs, bear the burden to prove lack of parentage before making a separation

26 decision. Subjective concerns about parentage—or inability to validate documentation—

27 are an insufficient basis for separation when those concerns can be definitively addressed

28 through use of readily accessible, inexpensive and accurate scientific testing.

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1 B. Communicable Disease

2

The next factor is communicable disease, and here Plaintiffs state Defendants have

3 separated twenty-four (24) parents due to “illness.” Of these twenty-four, Plaintiffs point

4 out two cases of concern. First, they complain about a father who was separated from his

5 child because he has HIV. (Mot. at 10.) Defendants acknowledge that parent was excluded

6 from the class “in error.” (Opp’n to Mot. at 22 n.9.)

7

Second, Plaintiffs complain about a mother who was hospitalized for emergency

8 surgery and whose child was placed in ORR custody as a result. (Mot. at 10.) Plaintiffs

9 complain that when the mother was released from the hospital into the community, she was

10 not reunified with her child in a timely manner, and the mother and her child were only

11 reunified after Plaintiffs informed Defendants that the child’s lawyer had prepared a motion

12 for the child’s release to the mother. (Id. at 10-11.) Here, again, Defendants concede error.

13 Specifically, they state the mother was mistakenly informed she would have to go through

14 the typical ORR screening process designed for “unaccompanied alien children” set out in

15 the Trafficking Victims Protection and Reauthorization Act (“TVPRA”), Pub. L. No. 110-

16 457 (Dec. 23, 2008), rather than the “Ms. L. reunification protocols” set out by the Court,

17 to regain custody of her child. (Opp’n to Mot. at 9 n.3.) The child also was not placed in

18 an ORR facility near the mother’s hospital. (Id. at 21.) Defendants explain the measures

19 they have taken to avoid any recurrence of that situation. (Id. at 9 n.3.) They also explain

20 that when a parent is hospitalized, DHS and ORR have been “work[ing] together to make

21 efforts to place the child in ORR custody near the location where the parent is hospitalized

22 to allow for reunification,” and that the situation described here was an anomaly. (Id. at

23 21.) These efforts are consistent with Defendants’ interim guidelines. (See Opp’n., Ex. 4

24 (CBP Interim Guidance Memorandum) (stating where parent “has an urgent medical need

25 that is not a communicable disease, officers and agents should attempt to keep the family

26 together in CBP custody, or parole both for medical care or contact the local Office of

27 Chief Counsel.”))

28 / / /

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1

While each of the above cases resulted in unwarranted separations, they also reflect

2 Defendants’ efforts to ensure those mistakes are not repeated and the importance of

3 Plaintiffs’ oversight. These two cases also demonstrate what can be accomplished when

4 the parties exchange information and work together. Based on the present record, the Court

5 declines to find Defendants are in violation of the Court’s orders with respect to the

6 communicable disease factor.

7 C. Criminal History

8

The next factor is criminal history, which is of primary concern to Plaintiffs, likely

9 because it has resulted in the largest number of family separations: nearly 750 from June

10 26, 2018, through June 29, 2019. On this factor, there are three primary disputes: (1)

11 whether the criminal history exclusion applies to any criminal history or only criminal

12 history bearing on a parent’s fitness or danger; (2) whether a conviction for illegal reentry

13 under 8 U.S.C. § 1326 may be a basis for exclusion from the class; and (3) the standards

14 for separating a parent and child based on gang affiliation.

15

1. Scope of the Criminal History Exclusion

16

Although Plaintiffs concede that parents with criminal history were excluded from

17 the class, they argue that exclusion was limited to criminal history bearing on the parent’s

18 fitness and danger, not just any criminal history. Defendants disagree with that

19 interpretation of the Court’s orders. They assert any criminal history may be a basis for

20 excluding a parent from the class. Notably, however, Defendants state they are not

21 excluding parents with any criminal history. Rather, they are excluding only those parents

22 “whose criminal history, in a good-faith discretionary determination by DHS, would

23 generally prevent them from being released into the community and from being housed in

24 an ICE FRC.” (Opp’n to Mot. at 18.) In other words, Defendants state they are including

25 many parents in the class even though they have minor criminal history. That assertion is

26 consistent with CBP guidelines. (See Opp’n to Mot., Ex. 4 (CBP Interim Guidance

27 / / /

28 / / /

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1 Memorandum) (directing that a parent should not be separated from his or her minor child

2 unless he or she has a criminal conviction for “violent misdemeanors or felonies.”7))

3

The present motion is not the first time the Court has been asked to decide a dispute

4 over exclusions from the class based on criminal history. Shortly after the initial

5 reunification efforts were completed, Plaintiffs filed a motion concerning two parents who

6 had been excluded from the class, and therefore denied reunification with their children,

7 based on their criminal history. (See ECF No. 221.) In that motion, Plaintiffs argued

8 Defendants’ interpretation of the criminal history exclusion was too broad, and that the

9 criminal histories at issue—an arrest warrant out of El Salvador for being a member of the

10 MS-13 gang, and an eight year old misdemeanor domestic violence conviction for

11 swinging a machete at his spouse—were insufficient bases for exclusion. In the order on

12 that motion, the Court noted the parties had debated the criminal history exclusion prior to

13 issuance of the class certification order, with Plaintiffs expressing concern that

14 “Defendants would abuse their discretion and exclude parents with minor misdemeanors,

15 while Defendants were concerned with their ability to make detention decisions for

16 ‘individuals who posed a flight risk or danger to the community or others in a family

17 detention facility because of that person’s criminal history.’” (ECF No. 236 at 2 (citation

18 omitted).) The Court further noted the well-established principle that matters of detention

19 and parole are within the province of the Executive Branch. (Id.) See, e.g., 8 U.S.C. §

20 1231(g)(1) (stating the “Attorney General shall arrange for appropriate places of detention

21 for aliens detained pending removal or a decision on removal.”); Comm. Of Cent. Am

22 Refugees v. I.N.S., 795 F.2d 1434 (9th Cir. 1986) (stating Attorney General has broad

23 discretion in deciding where to house deportable aliens). Ultimately, the Court denied

24

25 7 “Violent misdemeanors” generally include offenses such as “assault, battery, burglary,
26 resisting arrest, hit and run, and disorderly conduct.” (See Opp’n. to Mot., Ex. 2 (Easterling
27 Decl.) ¶ 16.) “Simple thefts, fraud crimes, minor drug or traffic crimes, or driving while intoxicated (without an aggravating factor) are examples of offenses that would not
28 generally justify separation.” (Id.)

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1 Plaintiffs’ motion to include these parents in the class, and declined to interfere with

2 Defendants’ determination that the two parents had “disqualifying criminal history that

3 precludes reunification with the children and either release into the community or detention

4 in a family residential center.” (ECF No. 236 at 3.)

5

As with Plaintiffs’ previous motion on this issue, the Court again agrees with

6 Defendants that parents may be excluded from the class based on any criminal history, not

7 just criminal history that bears on a parent’s fitness or danger. Plaintiffs’ approach ignores

8 the context of this case. This case does not involve individual issues of child welfare that

9 typically confront child protective service agencies. Rather, the system at issue in this case

10 involves CBP officers making decisions about hundreds, sometimes thousands, of people

11 crossing daily at the border. Given the large number of migrant families arriving at the

12 border and the inherent limitations placed on CBP facilities at the border,8 Defendants must

13 be able to use criminal history as an objective metric not only to assess the parent’s fitness

14 and danger to the child, but also risk of flight, danger to others and suitability for release

15 into the community or placement in an FRC with other families. Factually, this case is not

16 amenable to Plaintiffs’ proposed approach.

17

The procedural posture of the case also fails to lend support to Plaintiffs’ approach.

18 Procedurally, this case is proceeding as a class action on Plaintiffs’ substantive due process

19

20

21 8 (See Opp’n. to Mot., Ex. 2 (Easterling Decl.) ¶ 5) (stating “Border Patrol stations are designed for short-term custody. For multiple reasons (a high number of individuals
22 arrested on a daily basis; time-in-custody requirements imposed by the [TVPRA]; the
23 Flores Stipulated Settlement Agreement; the need to ensure that individuals referred for prosecution are promptly presented before a Magistrate Judge; and the general fact that
24 Border Patrol Stations were not designed to hold individuals—particularly children—for a
25 long period of time) Border Patrol Agents process all individuals as expeditiously as possible and make every effort to transfer them to facilities that are more appropriate for
26 longer-term detention (such as those run by … [ICE and ORR]). Therefore, agents must
27 often make processing determinations based on the limited information available to them at the time of encounter.”)
28

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1 claim. In granting class certification, the Court excluded from the class parents with

2 criminal history because including them would have destroyed the commonality

3 requirement. That requirement was met based on Defendants’ practice or policy of family

4 separation to deter immigration, not individual decisions about a parent’s criminal history.

5 Plaintiffs’ approach ignores the criminal history carve out, and jeopardizes the class’s

6 status because it invites individualized determinations about the reasons for family

7 separations rather than focusing on the common policy.

8

Defendants’ focus on violent misdemeanors and felonies when evaluating a parent’s

9 criminal history and determining whether a parent should be separated from his or her child

10 indicates good faith and compliance with the Court’s orders. For these reasons, the Court

11 declines to adopt Plaintiffs’ approach to the scope of the criminal history exclusion.

12

2. 8 U.S.C. § 1326

13

Turning to the next issue, the parties agree there is one exception to the criminal

14 history exclusion: illegal entry into the United States under 8 U.S.C. § 1325. (See Opp’n

15 to Mot. at 18 n.6) (stating Defendants have been treating parents with section 1325

16 convictions “as class members eligible for relief under the preliminary injunction.”)) See

17 also Exec. Order No. 13841, § 3 (stating the Secretary of Homeland Security shall “to the

18 extent permitted by law and subject to the availability of appropriations, maintain custody

19 of alien families during the pendency of any criminal improper entry [§ 1325] or

20 immigration proceedings involving their [family] members.”); OIG DHS Report

21 (11/27/19) (stating prior to zero tolerance policy, “in most instances, family units either

22 remained together in family detention centers operated by ICE while their civil

23 immigration cases were pending, or they were released into the United States with orders

24 to appear in immigration court at a later date.”) The parties do not agree, however, on

25 whether convictions for illegal reentry under 8 U.S.C. § 1326 qualify for an exception.

26 This issue first came up during a July 16, 2018 hearing. (See ECF No. 117 at 53.) During

27 that hearing, Plaintiffs sought clarification from Defendants on whether parents with §

28 1326 violations were being excluded from the class. Based on testimony at that hearing,

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1 the Court made “the assumption that 1325, 1326 collectively would not exclude[,]” but left

2 counsel to meet and confer on that issue. (Id.)

3

In their opposition to the present motion, Defendants propose the following for

4 parents with § 1326 convictions:

5

6

[During or immediately following] service of any sentence for a section 1326

conviction, Defendants will endeavor to promptly complete the removal

7

process consistent with applicable law, including processing the parent for

8

reinstatement of removal under 8 U.S.C. § 1231(a)(5). Should the parent

become subject to an executable removal order (e.g., no pending reasonable

9

fear claim or withholding only proceedings before the Executive Office for

10

Immigration Review), the government anticipates offering the parent the

choice whether to be removed with his or her child or to allow the child to

11

remain in the United States to pursue any immigration claims that the child

12

may have.

13 (Id. at 19 n.7.)

14

Plaintiffs urge the Court to reject this proposal, and instead “reiterate” that § 1326

15 convictions, like § 1325 convictions, are not a basis for exclusion from the class. (Reply

16 at 14.) Counsel for the settlement class of children in the MMM/Dora cases also object to

17 Defendants’ proposal on the ground it could “prevent[ ] separated children and their parents

18 from meaningfully exercising their rights to seek relief from removal.” (ECF No. 480 at

19 1.) They propose an alternate process for parents with § 1326 convictions “in which parents

20 and children jointly decide on reunification, and have the option to reunify for a joint

21 reasonable fear and credible fear screening, [which] would avoid violating parents’ and

22 childrens’ right to seek relief from removal.” (Id.) Alternatively MMM/Dora counsel

23 request that the Court defer ruling on this issue so the parties can continue to meet and

24 confer. (Id. at 2.)

25

This issue has been percolating for well over a year now despite the parties’ efforts

26 to come to an agreement, so the Court addresses it now. At first glance, it appears § 1326

27 convictions should be treated the same as § 1325 convictions for purposes of this case

28 because both statutes criminalize the same general conduct, namely illegal entry into the

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1 United States. But there are differences, and some of them are significant. Section 1325

2 is charged as a misdemeanor with up to six months imprisonment for the first improper

3 entry offense and may be charged as a felony with up to two years imprisonment for a

4 second improper entry offense, while § 1326 is only chargeable as a felony and carries a

5 statutory maximum sentence of two, ten or twenty years imprisonment depending on a

6 person’s immigration and criminal history. Also, unlike § 1325, which concerns unlawful

7 entry and no prior removal, § 1326 concerns unlawful reentry, which indicates a prior

8 removal (deportation) and often other criminal history. A § 1326 conviction also impacts

9 a person’s options under the immigration laws. (See Defs.’ Resp. to MMM Br. at 3) (stating

10 “violation of section 1326 is a serious felony and those who illegally re-enter and whose

11 previous orders of removal are reinstated are barred from seeking asylum”). Thus,

12 although § 1325 and § 1326 convictions concern the same conduct in the abstract, the

13 repetitive nature of the conduct underlying § 1326, including prior removal(s) and possible

14 prior conviction(s), calls for different treatment of that offense in this case.

15

Defendants are therefore justified in excluding from the class parents who are

16 separated from their children at the border as a result of the parent being charged, convicted

17 and sentenced under § 1326, as well as parents who have a prior § 1326 conviction.9 Absent

18 membership in the class, these parents would not be entitled to the relief provided by the

19 Court’s orders in Ms. L. and MMM/Dora. Nevertheless, Defendants agree that if these

20

21 9 It appears the exclusion of parents with a prior illegal reentry offense from the Ms. L.
22 class may impact relatively few. If a parent “has criminal history consisting only of a prior
23 conviction for 8 U.S.C. § 1326 …, RGV Sector [Texas] does not, in general, separate the parent from the child.” (See Opp’n. to Mot., Ex. 2 (Easterling Decl.) ¶ 21.) An “alien
24 parent’s prior immigration history, standing alone, is not used as a basis to justify
25 separation from an alien child.” (Id. ¶ 4.) In addition, the number of cases the U.S. Attorney’s Office elects to prosecute for § 1326 of parents crossing with their children
26 appears to be relatively small. (Id. ¶ 21) (stating in “fiscal year 2019 (through August 27,
27 2019), RGV Sector processed 10,809 parents accompanying children for reinstatement of removal because of prior removal orders. CBP’s statistics reflect that only 140 of these
28 parents (1.3%) were actually prosecuted for illegal reentry under 8 U.S.C. § 1326.”)

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1 parents become subject to an executable removal order, they will offer these parents “the

2 choice whether to be removed with [their] child or to allow the child to remain in the United

3 States to pursue any immigration claims the child may have.” (Opp’n to Mot. at 19 n.7.)

4 Although Plaintiffs and MMM/Dora counsel object to this proposal, it is consistent with

5 the Court’s orders in this case.

6

3. Gang Affiliation

7

Of the nearly 750 parents separated from their children based on criminal history,

8 Plaintiffs contend thirty-seven (37) of them have been separated based on gang affiliation

9 alone. (Mot. at 25.) As noted, the issue of gang affiliation came before the Court on

10 Plaintiffs’ previous motion to reunify a parent who had been separated from her child based

11 on a warrant out of El Salvador alleging she was affiliated with a violent gang. (See ECF

12 No. 221 at 4.) There, Plaintiffs disputed the allegation, but the Court declined to order

13 reunification, and deferred to Defendants’ determination that the mother’s criminal history

14 precluded reunification with her child and either release into the community or detention

15 in a family residential center. (ECF No. 236 at 3.)

16

Here, Plaintiffs argue that Defendants are separating parents and children based

17 solely on unsupported allegations of gang affiliation, and that evidence collected after the

18 separations demonstrates those initial determinations of gang affiliation are incorrect. The

19 record does not support Plaintiffs’ first argument that these decisions are being made on

20 speculation of gang affiliation. Rather, the record reflects that as part of the intake process,

21 border patrol agents may receive information “from foreign governments and other law

22 enforcement databases” indicating “that an individual has been identified as affiliated with

23 a criminal gang[.]” (Opp’n. to Mot., Ex. 2 (Easterling Decl.) ¶ 20.) Although Plaintiffs

24 complain about the reliability of this evidence, Defendants are relying on objective

25 evidence, not allegations or intuition.

26

Although the initial evidence of gang affiliation may turn out to be inaccurate, border

27 officials have limited information during the intake process and limited time to further

28 investigate at that stage. (Id. ¶18.) The record also reflects that when the families or their

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1 attorneys have subsequently obtained evidence refuting or qualifying allegations of gang

2 affiliation, Defendants have reunified the parents and children when appropriate. On this

3 record, where Defendants are relying on foreign records or other law enforcement

4 databases, and not subjective concerns about gang affiliation, and where the parties have

5 successfully resolved disputed cases, the Court declines to find Defendants are violating

6 the Court’s preliminary injunction with respect to gang affiliation.

7 D. Fitness and Danger

8

The next area of dispute concerns fitness and danger. Plaintiffs assert that during

9 the timeframe in question Defendants have separated twenty (20) families based on

10 “dubious” and “questionable” determinations of fitness and danger. Defendants assert they

11 are exercising their discretion and judgment in a reasonable manner, and that the Court

12 should decline to second-guess those determinations.

13

According to Defendants, the determination that a parent is unfit or presents a danger

14 to his or her child is made after evaluating the particular circumstances of an individual

15 case. (Opp’n to Mot. at 6.) As for the substantive decision, Defendants state:

16

[A]gents and officers may make the decision on a review of any available

17

records about the parent, as well as observations made while the parent and child are in DHS custody, including immediately following the initial

18

encounter with the family, and the views of medical professionals available to

19

the officers and agents.

20 (Id. at 6.) In addition, decisions to separate must be reviewed and approved by a supervisor,

21 and CBP’s Office of Chief Counsel is often involved. (Id. at 7-8.)

22

The factual circumstances under which these initial determinations are made do not

23 lend themselves to micromanagement by the Court. This is especially so given the class

24 action nature of this case. Defendants must be allowed discretion to make these decisions

25 based on the available information. Concerns about lack of fitness and danger to a child

26 often overlap and include many scenarios that are difficult to assess under ideal

27 circumstances, let alone at the border: mental disorders, active users of illicit controlled

28 substances, odd behavior (e.g., climbing cell fencing and feigning passing out), and

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1 potential criminal activity, including child trafficking, sexual abuse and physical abuse.

2 (See Opp’n., Ex. 2 (Easterling Decl.) ¶¶ 25-29). The Court expects that field officers and

3 agents and medical professionals will exercise their discretion in a reasonable manner

4 based on the evidence then available, and that the reasonableness of those decisions will

5 be reviewed by appropriate supervisors before separation decisions are made. It is

6 expected the parties will meet and confer on disputed findings of fitness and danger, as

7 they have been doing on the issues of communicable disease and gang affiliation. Given

8 the intensely factual nature of these decisions and the processes now in place for parents to

9 challenge such decisions, (see ECF No. 489 (Memorandum from Carla L. Prevost, Chief,

10 U.S. Border Patrol to All Chief Patrol Agents and All Directorate Chiefs (Sep. 16, 2019)

11 (“Prevost Memo”) (explaining and attaching “Tear Sheet,” which informs a parent who

12 has been separated from his or her child of the reasons for separation, how to contact their

13 child and how to contest separation from their child)),10 the Court declines to find

14 Defendants are violating the injunction with respect to this factor.

15 E. FRC Standards

16

The final issue is Defendants’ standards for placement in FRCs. Specifically,

17 Plaintiffs assert those standards are vague and inconsistent, and result in unconstitutional

18 separations of parents and children.

19

Notably, the claims in this case do not challenge Defendants’ FRC standards.

20 Rather, this case has always focused on Defendants’ general practices of separating parents

21 and children at the border for reasons other than the FRC standards. In other words, the

22

23

24 10 The Tear Sheet advises parents: “If you believe that your separation from your child was
25 improper and would like to provide the government with additional information, you may submit that information to SeparationSupplementalInformation@ice.dhs.gov. DHS will
26 review any information submitted within 30 days and, if DHS determines some further
27 action is appropriate, you will be so informed.” The “Separation Supplemental Information Form” informs the parent how to challenge the separation decision and request
28 reunification.

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1 FRC standards are not the basis for Plaintiffs’ claims, nor have they been the subject of this

2 Court’s previous orders. Defendants must be able to consider danger to others and risk of

3 flight in addition to fitness and danger of a parent to his or her own child. (See Opp’n to

4 Mot., Ex. 5 (Decl. of Melissa Harper) ¶¶6-7, 10 (stating parents with criminal history or

5 gang affiliation are generally excluded from FRCs because of risk of flight and harm to

6 families, though in exceptional cases a parent with a non-violent misdemeanor offense may

7 be admitted.))11 Careful assessment of all of these factors is necessary in the context of

8 this case and may result in separation of a parent who is otherwise fit and not a danger to

9 his or her own child but poses an unacceptable risk to others or of flight. Given the scope

10 of this case and the statutory framework providing discretion to Executive Branch officials

11 in matters of detention and parole, see 8 U.S.C. § 1231(g)(1), the Court declines to wade

12 into the constitutionality of the FRC standards on the present record.

13

Plaintiffs also argue that by using any criminal history, Defendants can take a parent

14 out of the class and absolve themselves “of any obligation to immediately reunify the

15 family when the parent is released from an adult detention center [by an immigration judge]

16 (which happens frequently when the government cannot show that the parent is a flight risk

17 or danger [to others]”).” (See Suppl. Br. at 1-2.) Plaintiffs argue that parents who are

18 excluded from FRCs but later released from immigration detention are not being reunified

19 with their children during the pendency of their immigration proceedings. The Court

20 agrees with Plaintiffs that if a parent who is separated from his or her child due to FRC

21 standards is subsequently released from custody, then Defendants should reunify that

22 parent with his or her child in the same way they are reunifying families with resolved

23

24

25 11 Defendants assert FRCs are governed by standards that are designed to “promote a unique, non-secure, open-movement environment which permits parents and children to
26 live in a dorm-like setting with access to education, recreational opportunities, and health
27 care on site.” (See Opp’n to Mot., Ex. 5 (Harper Decl. ¶ 4.)) The safety of family residents is also regulated by state licensing requirements that impose “legal prohibitions on criminal
28 individuals living, visiting or working at such licensed facilities.” (Id. ¶¶ 8-9.)

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1 communicable diseases or long-term illnesses. (See ECF No. 489 (Prevost Memo, Tear

2 Sheet) (informing parents that “following the conclusion of any criminal custody or

3 hospitalization” the parent will be transferred to ICE custody and DHS and ICE “will take

4 steps to determine whether you may be reunified with your child or children.”)) This

5 clarification does not interfere with Defendants’ discretion in matters of parole or

6 detention. CBP’s initial determination to detain the parent remains undisturbed until

7 another Executive Branch officer (an immigration judge) decides later based on additional

8 information to release the parent on bond or other appropriate conditions pending their

9 removal proceedings. Should Defendants fail to reunify parents under these circumstances,

10 parents can also now avail themselves of the “Tear Sheet” process, by which they can

11 make application for and be reunified with their children. Except for this clarification, the

12 Court declines to intervene further on this issue.

13

III.

14

CONCLUSION

15

Plaintiffs assert Defendants have returned to systematically separating families at

16 the border. However, the evidence before the Court does not support that assertion.

17 Although family separations have not stopped entirely, the number of family separations

18 compared to the number of family units crossing the border appears to be less than one

19 percent.12 Furthermore, the Executive Order abandoned the zero tolerance policy in favor

20 of a policy to maintain family unity, and Defendants have implemented policies and

21

22

23 12 Defendants represent that the number of parents separated from their children between June 27, 2018, and July 20, 2019, is less than .4% of the overall number of individuals
24 entering the United States as members of a family unit over the same time period. (Opp’n
25 to Mot. at 1.) Defendants state that during “an almost overlapping timeframe, from July 1, 2018 through July 30, 2019, … CBP data reflects that 524,294 individuals have crossed
26 the southwest border at or between ports of entry as a member of a family unit[.]” (Id. at 27 5.) See also Innovation Law Lab v. McAleenan, 924 F.3d 503, 510 (9th Cir. 2019) (noting
that for several months in 2018, approximately 2,000 migrants were “arriving at the 28 Nation’s southern border on a daily basis”).

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1 procedures that are largely consistent with this Court’s orders prohibiting family separation

2 in the absence of the factors discussed above. Defendants have also gone beyond the scope

3 of the Court’s injunction and implemented additional practices related to family

4 separations, such as the Tear Sheet, which provide parents with the reasons for any

5 separations and information on how to challenge any separation decisions.

6

In the present motion, Plaintiffs invite the Court to engage in prospective oversight

7 of Defendants’ separation decisions, but that invitation warrants caution. It is an invitation

8 that is potentially massive in scope, invades an area that is particularly within the province

9 of the Executive Branch to secure the Nation’s border, and goes beyond this Court’s class

10 certification and preliminary injunction orders, which were focused on the

11 Administration’s practice of separating families at the border for the purpose of deterring

12 immigration, and failing to reunify those families.13 The Court is satisfied that the factors

13 discussed above provide an appropriate balance between the constitutional right to family

14 integrity and the government’s interests in border security and criminal and immigration

15 law enforcement. See J.B. v. Washington County, 127 F.3d 919, 927 (10th Cir. 1997)

16 (quoting Youngberg v. Romeo, 457 U.S. 307, 321 (1982)) (stating evaluation of party’s

17 “substantive due process rights require[s] a ‘balancing [of the party’s] liberty interests

18 against the relevant state interests.’”) Except for DNA testing and the clarification

19 regarding FRC standards, Defendants’ application of these factors has generally been

20 / / /

21

22

23 13 Although the Court previously examined Defendants’ conduct in determining compliance with the preliminary injunction, that scrutiny occurred in a limited context—
24 i.e., whether Defendants’ exclusion of parents from the original class of 2,814 was proper
25 based on their criminal history. That examination was retrospective, confined to two parents, and concerned reunification. In contrast, Plaintiffs’ present motion invites the
26 Court to set out additional “guidelines” for DHS to use before separating a family unit and,
27 if necessary, to appoint a monitor to oversee DHS’s exercise of discretion in making those decisions for hundreds of thousands of migrant families arriving at the border. That is
28 unwarranted on the present record.

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1 consistent with this Court’s orders and thus Plaintiffs’ motion to enforce the preliminary

2 injunction is otherwise respectfully denied.

3

IT IS SO ORDERED.

4 Dated: January 13, 2020

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1

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5

6

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8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 Ms. L.; et al.,

Case No.: 18cv0428 DMS (MDD)

12

Petitioners-Plaintiffs,

13 v.

14 U.S Immigration and Customs
15 Enforcement (“ICE”); et al., Respondents-Defendants.
16

ORDER GRANTING PLAINTIFFS’ MOTION TO MODIFY CLASS DEFINITION

17

18

Last spring, the Attorney General of the United States announced a controversial

19 “zero tolerance” policy for all persons crossing the border illegally. Under the policy,

20 parents and children who crossed the border illegally were separated, and the children were

21 placed in the custody of the Department of Health and Human Services (“HHS”), Office

22 of Refugee and Resettlement (“ORR”). Several weeks before the Attorney General’s

23 announcement of the zero tolerance policy, Plaintiffs filed the present case alleging they,

24 and a class of similarly situated individuals, had been forcibly separated from their children

25 by government officials at the border. Plaintiffs alleged these separations were the result

26 of a nationwide policy that had been implemented well before the announcement of the

27 zero tolerance policy and that the policy had resulted in the indiscriminate separation of

28 migrant families both at and between designated ports of entry. Plaintiffs challenged this

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1 family separation policy as a violation of their substantive due process rights to family

2 integrity under the Fifth Amendment to the United States Constitution.

3

On June 26, 2018, this Court granted Plaintiffs’ motions for class certification and

4 for a preliminary injunction, and ordered reunification of the children in ORR custody with

5 their parents within 30 days. (See ECF Nos. 82, 83.) Pursuant to the Court’s Orders, 2,816

6 children were identified as having been separated from their parents at the border, and

7 nearly all of them have now been reunified with their parents or otherwise discharged in

8 accordance with their parents’ wishes.

9

Recently, the HHS Office of Inspector General (“OIG”) conducted an internal

10 investigation into the Administration’s zero tolerance policy given “the potential impact of

11 [the policy] on vulnerable children and ORR operations[,]” and “to determine the number

12 and status of separated children who have entered ORR care” as a result of the policy. On

13 January 17, 2019, the OIG issued a Report on its investigation entitled, “Separated Children

14 Placed in Office of Refugee Resettlement Care.” That Report reveals the Department of

15 Justice (“DOJ”) and the Department of Homeland Security (“DHS”) began separating

16 migrant families as early as July 1, 2017, well before the zero tolerance policy was publicly

17 announced in May of 2018, and that pursuant to the policy, potentially “thousands” more

18 families had been separated.

19

In granting class certification, this Court generally defined the class to include

20 parents who had entered the United States at or between ports of entry, who were, had been

21 or would be detained in immigration custody by DHS, and had a minor child who was

22 separated from them and detained in ORR custody at or after that time. Specifically, the

23 class was defined as follows:

24

All adult parents who enter the United States at or between designated ports

25

of entry who (1) have been, are, or will be detained in immigration custody by the DHS, and (2) have a minor child who is or will be separated from them

26

by DHS and detained in ORR custody, ORR foster care, or DHS custody,

27

absent a determination that the parent is unfit or presents a danger to the child.

28 / / /

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1 (ECF No. 82 at 17.) In implementing the Court’s preliminary injunction and reunification

2 order, Defendants limited this class to parents whose children were “detained in ORR

3 custody, ORR foster care, or DHS custody” on the date the preliminary injunction was

4 issued, June 26, 2018. Defendants did not include in the class those parents whose children

5 were released from ORR custody before June 26, 2018. As a result, those parents—the

6 potentially “thousands” identified by OIG—were not reunified with their children pursuant

7 to the Court’s preliminary injunction. Plaintiffs now move to clarify that the class certified

8 in the Court’s Order includes those parents, or in the alternative, to modify the class

9 definition to include those parents. After reviewing the parties’ briefs and relevant legal

10 authority, and hearing argument from counsel, the Court grants Plaintiffs’ motion to

11 modify the class definition.

12

Defendants oppose the motion on several grounds. They contend that expanding the

13 class to include these parents would run afoul of the adequacy, typicality and commonality

14 requirements of Federal Rule of Civil Procedure 23(a), and present ascertainability

15 problems. Defendants argue parents whose children were released from government

16 custody before June 26, 2018, are in a different legal position from parents whose children

17 were in government custody on or after that date. They also argue Plaintiffs delayed raising

18 this issue, and that it would be unfair to Defendants to expand the class after they have

19 reunified so many class members with their children.

20

There is no dispute “courts retain discretion to revisit class certification throughout

21 the legal proceedings, and may rescind, modify, or amend the class definition in light of

22 subsequent developments in the litigation.” Krueger v. Wyeth, Inc., 310 F.R.D. 468, 473-

23 74 (S.D. Cal. 2015). This authority is found in Federal Rule of Civil Procedure 23(c)(1)(C),

24 which states, “[a]n order that grants or denies class certification may be altered or amended

25 before final judgment[,]” and in Supreme Court case law. See Gen. Tel. Co. v. Falcon, 457

26 U.S. 147, 160 (1982) (“Even after a certification order is entered, the judge remains free to

27 modify it in the light of subsequent developments in the litigation.”) “’In considering the

28 appropriateness of [modification or] decertification, the standard of review is the same as

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1 a motion for class certification: whether the Rule 23 requirements are met.’” Roy v. County

2 of Los Angeles, No. CV 13-04416-AB (FFMx), 2018 WL 3435417, at *2 (C.D. Cal. July

3 11, 2018) (quoting Marlo v. United Parcel Serv., Inc., 251 F.R.D. 476, 479 (C.D. Cal.

4 2008)). See also Lyon v. U.S. Immigration & Customs Enforcement, 308 F.R.D. 203, 210-

5 11 (N.D. Cal. 2015); Astiana v. Kashi Co., 295 F.R.D. 490, 492 (S.D. Cal. 2013) (same).

6

Here, Plaintiffs first notified the Court of their concerns with the class definition in

7 the November 29, 2018 Joint Status Report (“JSR”). (See ECF No. 329.) In that document,

8 Plaintiffs’ counsel stated that on November 16, 2018, they “learned of a separated parent

9 who feared imminent removal because her child was released from ORR custody before

10 June 26, 2018.” (Id. at 18.) Plaintiffs’ counsel stated during the subsequent status

11 conference that they had learned of “a handful” of such cases. (ECF No. 332 at 16.)

12 Counsel informed the Court they had met and conferred on this issue, and “agreed that

13 removals of individuals in this category be stayed pending the Court’s resolution.” (ECF

14 No. 329 at 18.) Defense counsel requested that the issue be resolved by way of a formal

15 noticed motion, to which the Court agreed.

16

Thereafter, Plaintiffs filed the present motion based on the information they had at

17 that time. Before Defendants filed their response, the case was stayed because of the

18 government shutdown. During the stay, OIG issued its Report. As noted above, the

19 purpose of the OIG investigation was to determine the number and status of separated

20 children “who have entered ORR care, including but not limited to the subset of separated

21 children covered by [the present case,] Ms. L. v. ICE.” (Report at 1.) OIG found the

22 following:

23

In the summer of 2017, prior to the formal announcement of the zero-tolerance

24

policy, ORR staff and officials observed a steep increase in the number of children who had been separated from a parent or guardian by DHS

25

(“separated children”) and subsequently referred to ORR for care.[ ] Officials

26

estimated that ORR received and released thousands of separated children prior to a June 26, 2018, court order in Ms. L v. ICE that required ORR to

27

identify and reunify certain separated children in its care as of that date.

28

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1 (Id.) Although the Administration’s zero tolerance policy was publicly announced in May

2 2018, the OIG Report states, “From July through November 2017, the El Paso sector of

3 Customs and Border Protection (CBP), an agency within DHS, implemented new policies

4 that resulted in 281 families being separated.” (Id. at 3.) During this same period, July

5 through November 2017, ORR staff “observed a significant increase in the number and

6 proportion of separated children (i.e., children separated from their parent or legal guardian

7 by DHS) relative to other UACs [unaccompanied alien children].” (Id.) “Overall, ORR

8 and ASPR [the Office of the Assistant Secretary for Preparedness and Response] officials

9 estimate that thousands of separated children entered ORR care and were released prior to

10 the June 26, 2018 court order.” (Id.)

11

Clearly, the OIG Report is a significant development in this case. And, importantly,

12 the contents of the Report are undisputed. The most significant facts to come out of the

13 Report are (1) that in the summer of 2017, DOJ and DHS were separating parents and

14 children at the border pursuant to the Administration’s new policy, and (2) during and after

15 that time, potentially thousands of children who had been separated from a parent were

16 received by ORR and subsequently discharged from ORR custody to designated sponsors

17 pursuant to the Trafficking Victims Protection and Reauthorization Act (“TVPRA”), Pub.

18 Law No. 110-457 (Dec. 13, 2008), prior to the Court’s June 26, 2018 Orders.

19

Defendants suggest this information is not a new development, but rather something

20 the parties knew about, or should have known about, when the Court issued its Orders.

21 However, that suggestion stands in stark contrast to Defendants’ representations in this

22 case in as late as May of 2018 that the government did not have either a policy or practice

23 of separating families at the border. (See ECF No. 61 at 10 (stating Plaintiffs failed to point

24 to an “actual Government policy or practice regarding separation” but were instead

25 “challenging a number of different immigration and criminal enforcement actions by

26 multiple agencies which, when taken with regard to the named Plaintiffs, resulted in the

27 separation of each named Plaintiff from her child.”); see also ECF No. 70 at 5 (disputing

28 / / /

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1 that there was a policy or practice of family separation).)1 In light of those representations,

2 it is unreasonable to suggest that Plaintiffs should have known that potentially thousands

3 of parents and children had been separated at the border prior to the Court’s June 26, 2018

4 Orders.2 Given the subsequent, undisputed developments set out in the OIG Report,

5 modification of the class is warranted if the class, as modified, meets the requirements of

6 Federal Rule of Civil Procedure 23.

7

As set out in the Court’s previous order on class certification, Rule 23(a) sets out the

8 requirements of numerosity, commonality, typicality and adequacy of representation.

9 Numerosity is not disputed as there are thousands of members in the class as currently

10 certified, so the Court turns first to commonality. In the previous order on class

11 certification, the Court found the commonality requirement was met given the evidence of

12 a “common practice” of “separating migrant parents and children and failing to reunite

13 them without a showing the parent is unfit or presents a danger to the child.” (ECF No. 82

14 at 12.) The Court went on to state: “Whether that practice violates substantive due process

15 is a question common to the class, and the answer to that question is ‘apt to drive the

16 resolution of the litigation.’” (Id.) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338,

17 350 (2011)). That finding applies equally to the proposed modified class.

18

There is no dispute the parents who have been excluded from the class were also

19 subjected to this “common practice.” Like the current members of the class, they, too,

20 were separated from their children by DOJ and DHS, their children were placed in ORR

21

22

23 1 The Court notes the latter representation was made only a few days before the Attorney General publicly announced the zero tolerance policy under which children were to be
24 separated from their parents if they entered the country illegally. 25 2 Undoubtedly, Plaintiffs would have discovered the total number of separated children in
ORR custody through normal discovery channels in this litigation. However, the parties 26 did not engage in discovery at the outset of the litigation. Instead, they properly focused
27 their intense efforts on implementing the Court’s preliminary injunction, which required reunification of children with their parents within 14 days (for children under age 5) and
28 30 days (for children over 5).

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1 custody, and they were not reunified with their children despite the absence of any finding

2 they were unfit parents or presented a danger to their children. These parents, like those

3 presently in the class, present the identical question, namely did that practice violate the

4 parents’ rights to substantive due process, and the answer to that question applies to all

5 these parents, not just those whose children were in ORR custody on June 26, 2018.

6

Defendants argue this new group of parents presents a different legal and factual

7 situation from the current class members because the children of this new group are no

8 longer in ORR custody, and thus, reunification of these parents and their children may be

9 impossible or ill-advised. However, this argument goes to the issue of remedy, not liability,

10 and Ninth Circuit case law makes clear that a difference in remedies does not necessarily

11 defeat a showing of commonality. See Hanlon v. Chrysler Corp., 150 F.3d 1011, 1022 (9th

12 Cir. 1998) (“The existence of shared legal issues with divergent factual predicates is

13 sufficient, as is a common core of salient facts coupled with disparate legal remedies within

14 the class.”); see also Parra v. Bashas’, Inc., 536 F.3d 975, 979 (9th Cir. 2008) (rejecting

15 argument that “redressing the harm and calculating the various pay disparities for the

16 different employment positions precludes class certification.”). Further, reunification is

17 not the only remedy available here. Other remedies may be appropriate, and they would

18 apply to all class members. For instance, as OIG has suggested, an accounting is a

19 necessary first step to determine the “number and status” of separated children who were

20 in ORR custody at any time.3 And, finally, Defendants’ argument ignores Plaintiffs’

21 request for declaratory relief, namely a declaration that the separation of class members

22 from their children was and is unlawful. (Am. Compl. at 14.) This remedy would be

23 / / /

24 / / /

25 / / /

26

27 3 That accounting necessarily would provide important information about the number and
28 status of the proposed modified parent class members.

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1 available to all class members regardless of the custodial status of their children.4 Thus,

2 the newly proposed class satisfies the commonality requirement.5

3

Next, Defendants argue the proposed modification to the class definition does not

4 satisfy the adequacy requirement. Specifically, they assert “Plaintiffs’ proposed expansion

5 of the class would … create an adequacy problem, because no named class member at the

6 time class certification was being briefed was in the situation where her child had been

7 released from ORR custody to a sponsor.” (Defs.’ Opp’n to Mot. at 2; see also id. at 16

8 (arguing “the named plaintiffs … cannot be adequate class representatives for the expanded

9 class … because neither of their children were released to other sponsors, and both of them

10 sought reunification with their child directly from ORR.”)) However, it is unclear how the

11 location of the separated children would render the class representatives inadequate.

12 Defendants do not assert the location of the separated children creates a conflict between

13 the named Plaintiffs and their counsel and the newly proposed class members. Nor do they

14 assert that the named Plaintiffs would not vigorously prosecute the action on behalf of these

15 newly proposed class members. Indeed, the named Plaintiffs and their counsel have

16 vigorously prosecuted this action on behalf of parents who were removed from the United

17 States even though they themselves were not removed. There is simply no evidence or

18 reason to believe that the named Plaintiffs or their counsel would not vigorously prosecute

19 this action on behalf of parents who were subjected to the same government policy but

20

21

22 4 Plaintiffs’ request for declaratory relief also satisfies the requirement of Rule 23(b)(2),
23 which states class certification is appropriate if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive or
24 declaratory relief is appropriate respecting the class as a whole[.]” Fed. R. Civ. P. 23(b)(2)
25 (emphasis added). 5 As with the motion for class certification, the parties’ arguments on typicality mirror their
26 arguments on commonality. Given the overlap of these issues in this case, the reasoning
27 set out above and in the class certification order, (ECF No. 82 at 13-14), leads the Court to conclude the typicality requirement is satisfied.
28

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1 whose children were released from ORR custody prior to June 26, 2018. On the contrary,

2 Plaintiffs’ counsel represented to the Court that they stand ready to put together another

3 steering committee to assist any newly identified class members in the event this motion is

4 granted. (ECF No. 364 at 34.) Under these circumstances, the newly proposed class

5 satisfies the adequacy requirement.

6

In addition to these Rule 23 factors, Defendants raise several other arguments against

7 modifying the class definition. First, although Defendants recognize that ascertainability

8 is not a requirement for class certification, they argue the proposed modification to the

9 class definition “would make it nearly impossible to ascertain the class with any level of

10 certainty.” (Defs.’ Opp’n to Mot. at 5.) In essence, they assert it would be too burdensome

11 for them to identify the members of the newly proposed class, therefore the class should

12 not be modified.

13

As an initial matter, the Court notes this is not a valid argument against either class

14 certification or modification of a previously certified class. See Briseno v. ConAgra Foods,

15 Inc., 844 F.3d 1121, 1125-26 (9th Cir.) (rejecting assertion that, in addition to satisfying the

16 requirements of Rule 23, “class proponents must also demonstrate that there is an

17 administratively feasible way to determine who is in the class.”), cert. denied by ConAgra

18 Brands, Inc. v. Briseno, ___ U.S. ___, 138 S.Ct. 313 (2017). This is especially so here,

19 where the difficulty in identifying proposed class members is the result of Defendants’ own

20 record keeping practices, or lack thereof. See Agne v. Papa John’s Int’l, Inc., 286 F.R.D.

21 559, 566 n.6 (W.D. Wash. 2012) (stating “it would be unfair to deny class certification

22 because of the potential difficulty of identifying the class members where that difficulty is

23 mostly due to the fact that [Defendant] destroyed the call lists that it used.”); Raffin v.

24 Medicredit, Inc., No. 15-4912-GHK (PJWx), 2017 WL 131745, at *6 n.5 (C.D. Cal. Jan.

25 3, 2017) (stating “courts generally do not bar class certification where the defendant’s own

26 destruction of records causes difficulty in identifying class members.”) The argument

27 holds even less weight here because Plaintiffs are not seeking class certification under Rule

28 23(b)(3), which calls for consideration of the difficulties in identifying class members as

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1 part of the “superiority” requirement. See Pierce v. County of Orange, 526 F.3d 1190,

2 1200 (9th Cir. 2008) (finding no abuse of discretion in denying certification of Rule 23(b)(3)

3 class “in light of expected difficulties identifying class members and determining

4 appropriate damages.”) Rather, the class in this case is certified under Rule 23(b)(2), which

5 does not have a similar requirement.

6

Furthermore, although the process for identifying newly proposed class members

7 may be burdensome, it clearly can be done. Indeed, Jallyn Sualog, who is leading ORR’s

8 efforts to reunify separated parents and children, has set out the process of identifying these

9 newly proposed class members. (See Decl. of Jallyn Sualog in Supp. of Defs.’ Opp’n to

10 Mot. ¶¶ 13-20.) Thus, Defendants’ argument of burden does not warrant denial of the

11 present motion.

12

Defendants also suggest it would be more appropriate for the newly proposed class

13 members to bring individual cases rather than include them in this case. (ECF No. 364 at

14 52.) Like the issue of burden, this argument also goes to the issue of superiority under

15 Rule 23(b)(3). See Fed. R. Civ. P. 23(b)(3)(A) (listing as factor for consideration “the class

16 members’ interests in individually controlling the prosecution or defense of separate

17 actions[.]”) Even if this argument applied here, it would weigh in favor of granting the

18 motion, not denying it. As the Ninth Circuit stated in Smith v. Los Angeles Unified School

19 Dist., 830 F.3d 843 (9th Cir. 2016), “[c]ourts have long recognized the benefits conferred

20 by the class action mechanism over numerous individual actions[,]” (id. at 863),

21 particularly in civil rights actions where a government practice or policy is at issue.

22 Parsons v. Ryan, 754 F.3d 657, 686-87 (9th Cir. 2014) (stating primary purpose of Rule

23 23(b)(2) “has always been the certification of civil rights class actions.”) In fact, near the

24 beginning of this case when separate lawsuits were being filed across the country,

25 Defendants advocated for consolidation and avoidance of separate actions in multiple fora.

26 See, e.g., State of Wash. v. United States, Case No. 18cv1979 DMS (MDD), ECF No. 22

27 (Defendants’ motion to dismiss, or in the alternative, to transfer venue to this Court);

28 / / /

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1 M.M.M. v. Sessions, Case No. 18cv1832 DMS (MDD), ECF No. 21 at 21 (reflecting

2 Defendants’ request to transfer case to this Court).

3

Now that Defendants have complied with this Court’s preliminary injunction, it

4 appears they want to reverse course and have these newly identified parents file individual

5 cases throughout the country. However, forcing individual parents to bring separate

6 lawsuits challenging separation from their children makes little sense when precisely that

7 same legal claim has already been certified for class treatment in this case. It also ignores

8 the harsh reality of this case, namely that 471 parents in the presently defined class were

9 removed from this country without their children. (ECF No. 382 at 6.) Unless members

10 of the newly proposed class are identified, it will remain unknown how many of them, if

11 any, were also removed without their children, though it is probable that many will have

12 suffered the same fate as the 471 parents mentioned above. The ability of any such

13 removed parents to pursue individual claims in this country would be virtually impossible.

14

Defendants also argue the Court should not modify the class definition because this

15 is not the proper forum in which to account for the parents who were separated from their

16 children at the border by DOJ and DHS, and whose children were released from ORR

17 custody prior to June 26, 2018. (ECF No. 364 at 54.) Specifically, at the hearing on this

18 matter, defense counsel argued: “Litigation doesn’t necessarily exist to resolve every issue

19 ….” (Id.) Instead, counsel noted, other branches of government can get to the bottom of

20 the issue. (Id. (“The executive branch itself with OIG Reports … is a possibility.”))

21

The other branches, of course, are free to investigate these issues, and they are doing

22 so. In addition to OIG, Congress has been holding hearings on these issues and issuing

23 subpoenas to the Defendants in this case. See, Colleen Long, House Targets Family

24 Separations in First Trump Subpoena, AP News (Feb. 26, 2019),

25 https://www.apnews.com/0b012aaaa6454a10a585eb4a848c8541; Colleen Long et al.,

26 Kirstjen Nielsen testifies on border security, future of border wall, PBS News (Mar. 6,

27 2019, 5:17 PM EST), https://www.pbs.org/newshour/politics/watch-live-homeland-

28 security-secretary-kirstjen-nielsen-testifies-before-house-committee. Clearly, the matter

11 18cv0428 DMS (MDD)

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1 of determining the “number and status of separated children” who have entered ORR care

2 at any point in time because of the Administration’s family separation policy is not going

3 away. Every branch of government is now invested in the process. But that does not mean

4 the Court should abdicate its role in this matter. The quintessential duty of the courts is to

5 determine controversies involving matters of constitutional significance; to ensure that the

6 actions of government officials do not violate fundamental constitutional rights, and if they

7 do, to address them. See Marbury v. Madison, 5 U.S. 137, 178 (1803) (stating the

8 resolution of constitutional questions “is the very essence of judicial duty.”); The Federalist

9 No. 78 (Alexander Hamilton) (stating it is the “duty” of the courts “to declare all acts

10 contrary to the manifest tenor of the Constitution void. Without this, all the reservations

11 of particular rights or privileges would amount to nothing.”)

12

This Court has before it a case involving a class of parents who were separated from

13 their children at the border by DOJ and DHS pursuant to government policy. The present

14 motion asks the Court to modify the class definition to include all parents who were

15 subjected to that policy, not just those whose children were in ORR custody on June 26,

16 2018. That question clearly falls within the scope of this case, and the Court has an

17 obligation to resolve that question and to provide relief to these parents, if appropriate

18 under law. See Lewis v. Casey, 518 U.S. 343, 349 (1996) (“It is the role of courts to provide

19 relief to claimants, in individual or class actions, who have suffered, or will imminently

20 suffer, actual harm[.]”).

21

Defendants’ final argument is essentially one of equity. Specifically, they argue they

22 have been operating under the assumption that the class was limited to parents whose

23 children were in ORR custody on June 26, 2018, and it would be unfair to them to now

24 enlarge the class and force them to identify and reunify these other parents and their

25 children. This argument overlooks the profound importance of the reunification effort,

26 which entailed a search for parents who had been separated from their minor children under

27 questionable circumstances; it ensured every reasonable effort was employed to avoid the

28 very real possibility of a permanently orphaned child due to the actions of one or more

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1 government officials. Whether it is fair to Defendants to require them to identify and

2 possibly reunite another group of parents and children who were separated pursuant to the

3 same government policy is not relevant to the purely legal issue presently before this Court,

4 i.e., whether the class definition in this case should be modified. The factors relevant to

5 that inquiry have been discussed above, and they warrant modification of the class

6 definition here.

7

The hallmark of a civilized society is measured by how it treats its people and those

8 within its borders. That Defendants may have to change course and undertake additional

9 effort to address these issues does not render modification of the class definition unfair; it

10 only serves to underscore the unquestionable importance of the effort and why it is

11 necessary (and worthwhile).

12

In sum, that Plaintiffs were alerted to the existence of a handful of parents within

13 this group, and that subsequent investigation by the OIG confirmed that there was not just

14 a handful but potentially thousands of parents in this group, does not render modification

15 of the class definition unfair. Rather, modification of the class definition falls squarely

16 within the confines of Supreme Court precedent and Rule 23(c)(1)(C), which give courts

17 broad discretion to alter or amend a class definition considering subsequent developments

18 in a case. See Armstrong v. Davis, 275 F.3d 849, n.28 (9th Cir. 2001) (stating district courts

19 have “broad discretion” to revisit class certification “throughout the legal proceedings

20 before the Court.”), abrogated on other grounds by Johnson v. California, 543 U.S. 499,

21 504-05 (2005).

22

Subsequent developments have occurred here, and the modified class, like the

23 original class, satisfies the requirements of Rule 23. Accordingly, Plaintiffs’ motion to

24 modify the class definition is granted. The previously certified class is modified as follows:

25

All adult parents who entered the United States at or between designated ports

26

of entry on or after July 1, 2017, who (1) have been, are, or will be detained in immigration custody by the DHS, and (2) have a minor child who has been,

27

is or will be separated from them by DHS and has been, is or will be detained

28

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1

in ORR custody, ORR foster care, or DHS custody, absent a determination

2

that the parent is unfit or presents a danger to the child.6

3

Although the parties addressed the issue of the relief to be afforded to the newly

4 included class members both in their briefs and at oral argument, the Court declines to

5 resolve that issue in the present order. Rather, pursuant to Defendants’ request, the Court

6 stays application of its preliminary injunction to the newly included class members pending

7 further briefing from the parties as to what specific relief Plaintiffs request and are entitled

8 to at this stage of the case. The parties should be prepared to address these issues in the

9 next JSR.

10

IT IS SO ORDERED.

11 Dated: March 8, 2019

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27 6 The class as modified is subject to the same qualifications as the originally certified class with respect to, for example, criminal history and communicable disease. (ECF No. 82 at
28 10-11, 17 n. 10.)

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1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 Ms. L.; et al.,

Case No.: 18cv0428 DMS (MDD)

12

Petitioners-Plaintiffs,

13 v.

14 U.S. Immigration and Customs
15 Enforcement (“ICE”); et al., Respondents-Defendants.
16

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION TO ALLOW PARENTS DEPORTED WITHOUT THEIR CHILDREN TO TRAVEL TO THE UNITED STATES

17

18

Plaintiffs bring the present motion to allow a small group of migrant parents who

19 were separated from their minor children at the border, and then deported without their

20 children, to travel to the United States so they may be reunited with their children and

21 pursue their asylum claims as provided by law. These parents are members of the Ms. L.

22 Class, which was certified by this Court on June 26, 2018. That Class included over 2,800

23 parents who were forcibly separated from their children at the United States-Mexico border

24 under the Administration’s immigration policies. (See 8/14/19 Joint Status Report, ECF

25 No. 444.)1 Thereafter, the children were detained in government-run facilities throughout

26

27 1 On March 8, 2019, the Court modified the class definition to include parents who entered
28 the United States with their children beginning on July 1, 2017. (See ECF No. 386.)

1 18cv0428 DMS (MDD)

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1 the United States. Pursuant to this Court’s orders, all of these children have now been

2 accounted for and more than 2,300 of them have been reunified with at least one of their

3 parents. But during the chaotic and unprecedented practice of separating these migrant

4 families, 471 of the parents were deported without their children. (ECF No. 382 at 7.)2 All

5 of these parents have now been found through the herculean efforts of the parties.3 Many

6 of the parents were located in remote villages in the recesses of Central America, and nearly

7 all of them have now made the difficult decision either to reunify with their children in

8 their home countries or to waive reunification and allow their children to remain in the

9 United States to pursue their own claims for asylum in accordance with established law.

10

Thirty of the 471 parents returned to the United States without permission and sought

11 asylum upon apprehension. According to Plaintiffs, all thirty of these parents either passed

12 a credible fear interview or were placed directly into immigration proceedings before an

13 immigration judge, and were subsequently reunified with their children. Eighteen other

14 parents,4 who are the subject of the present motion, are also seeking to return to the United

15

16

17 Defendants, led admirably by Commander Jonathan White of the Department of Health and Human Services, are currently working to identify how many children of these parents
18 went through government custody, and how many additional parents will be included in
19 the Class. These additional numbers are not included in the approximately 2,800 parents referenced here.
20 2 Defendants have identified 471 parents “who were removed from the United States
21 without their children, and without being given the opportunity to elect or waive reunification in accordance with the [June 26, 2018] preliminary injunction.” (Id.) The
22 enlarged class of Ms. L. parents, as defined in the Court’s March 8, 2019 Order, may
23 include many more parents who were removed without their children. See n.1, supra. 3 Plaintiffs established a steering committee comprised of volunteers and non-
24 governmental organizations (“NGOs”). Mr. Steven Herzog and his law firm, Paul, Weiss,
25 Rifkind, Wharton & Garrison, devoted hundreds of hours of pro bono legal services. NGOs such as Justice in Motion and Kids in Need of Defense (“KIND”) also devoted countless
26 hours toward the important and unprecedented effort of locating parents in Central America
27 who had been separated from their minor children. 4 Plaintiffs originally sought relief on behalf of twenty-one parents but have now limited
28 the request to eighteen parents. See, infra, at 9-10.

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1 States, but rather than doing so unilaterally, they are requesting that the Court order the

2 Government to allow them to return so they, too, may be reunited with their children and

3 pursue their asylum claims under existing law and procedures.

4

Plaintiffs argue they are entitled to this relief under a Settlement Agreement entered

5 into between the parties in this case, as well as under Ninth Circuit law that provides for

6 the return of an alien who is wrongfully removed. Defendants oppose the motion. The

7 matter has been fully briefed and argued. For the reasons discussed below, the Court finds

8 eleven of the parents are entitled to the relief requested under Ninth Circuit law and seven

9 are not, those parents having failed to meet their burden of proving they were wrongfully

10 removed.

11

I.

12

DISCUSSION

13

On June 26, 2018, this Court certified the Ms. L. Class of parents and generally

14 included in the Class those parents who were (1) separated from their minor children at the

15 border pursuant to the Administration’s immigration policies and (2) did not have criminal

16 history (with limited exceptions), were not unfit and did not present a danger to their

17 children. The Court also issued on the same day a preliminary injunction prohibiting

18 Defendants from further separating parents and their children at the border as there was a

19 likelihood that conduct violated the parents’ Fifth Amendment due process rights to family

20 integrity under the United States Constitution. The preliminary injunction also ordered

21 Defendants to reunite the families that had already been separated. There is no dispute the

22 eighteen parents at issue fall within the Ms. L. Class.

23

The circumstances of the eighteen parents’ immigration and removal proceedings

24 vary widely. Twelve of the eighteen parents were removed before this Court issued its

25 class certification order and preliminary injunction. Two other parents were removed after

26 those orders issued, but before this Court issued a stay of any further removals. Three

27 parents were removed after the stay, and it is unclear when the remaining parent was

28 removed.

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1

Of the twelve parents who were removed before issuance of the Court’s class

2 certification order and preliminary injunction, two subsequently returned to the United

3 States illegally, and were again removed without their children. It appears these two

4 parents fell outside the scope of the court-approved Settlement Agreement in this case, (see

5 ECF No. 321), and thus were subject to removal, because they were not “continuously

6 physically present in the United States since June 26, 2018[.]” (ECF No. 220-1 at 1.5)

7

Sixteen of the eighteen parents entered the United States illegally at the southern

8 border with Mexico, while two of the parents entered legally through designated ports of

9 entry. And although the majority of those entering illegally were transferred to criminal

10 custody and prosecuted under the Administration’s “zero tolerance policy”6 before being

11 returned to immigration custody, it appears others were not charged with a crime and were

12 detained only in immigration custody.

13

Waiver forms executed by the parents, purporting to waive the parents’ rights to be

14 reunified with their children prior to removal, also varied. One parent signed the court-

15 approved form that was supposed to be attached to the Class Notice. Others signed a form

16 provided by Defendants prior to the Court’s approval of the Class Notice. And still others

17 signed forms of unknown origin.

18

Finally, the length of each parent’s separation from their child varied considerably.

19 One parent was separated from his child for nine days, while another parent was separated

20 from her child for nearly seven months. And although each parent suffered the same injury,

21

22

23 5 The page numbers cited here and throughout this Order correspond to the page numbers
24 assigned by the Court’s CM/ECF filing system.
25 6 On May 7, 2018, the Attorney General of the United States announced a zero tolerance policy, in which all adults entering the country illegally would be criminally prosecuted.
26 In accordance with that policy, parents who crossed between ports of entry with their minor
27 children were separated from their children and prosecuted. Many of those parents were returned to immigration custody after serving their criminal sentence and then deported
28 without their children.

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1 namely separation from their child, the effect of that injury on each parent and their

2 respective immigration case was different.

3

Despite these varying circumstances, Plaintiffs move the Court to allow all eighteen

4 parents to return to the United States as a group. Plaintiffs are not asking the Court to order

5 Defendants to pay for or otherwise arrange travel for these parents to the United States.

6 (ECF No. 434 at 49-50.) Rather, they are moving the Court for an order directing

7 Defendants to allow the parents to return to the United States so they can be reunified with

8 their children and proceed with their asylum claims. (Id. at 50.) As noted, Plaintiffs argue

9 the Court has authority to grant this relief pursuant to either the court-approved Settlement

10 Agreement in this case or the Court’s inherent authority under Ninth Circuit law.

11 Defendants dispute that the Settlement Agreement gives the Court authority to grant the

12 requested relief. Indeed, they argue the Settlement Agreement forecloses the Court’s

13 ability to do so. Aside from the Settlement Agreement, Defendants also assert the Court

14 lacks jurisdiction to order the relief requested here. Each argument is addressed in turn.

15 A. Settlement Agreement

16

The entirety of the relevant provision of the Settlement Agreement is found under

17 the heading, “The return of removed parents to the United States.” It provides:

18

The government does not intend to, nor does it agree to, return any removed

19

parent to the United States or to facilitate any return of such removed parents. The classes agree not to pursue any right or claim of removed parents to return

20

to the United States other than as specifically set forth in this paragraph.

21

Plaintiffs’ counsel may raise with the government individual cases in which plaintiffs’ counsel believes the return of a particular removed Ms. L class

22

member may be warranted. Plaintiffs’ counsel represent that they believe that

23

such individual cases will be rare and unusual and that they have no basis for believing that such individual cases will be other than rare and unusual.

24

Plaintiffs’ counsel agree to present any such cases, including all evidence they

25

would like considered by the government within 30 days of the approval of this agreement. In light of plaintiffs’ counsel’s representation that such cases

26

will be rare and unusual, Defendants agree to provide a reply to any case

27

presented by Plaintiffs within 30 days of receiving Plaintiffs’ request to consider the case. Except as specifically set forth herein, the classes agree

28

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1

that existing law, existing procedures, and the Court-approved reunification

2

plan address all interests that such parents or their children may have.

3 (ECF No. 315-2 at 7.)7 There is no dispute this provision sets out a procedure for the parties

4 to follow in the event Plaintiffs believe that return to the United States is warranted for an

5 individual Ms. L. class member. Under that procedure, Plaintiffs agree to present any cases

6 warranting return to Defendants, and Defendants agree to provide a response within thirty

7 days of receiving Plaintiffs’ request. Other than these two requirements, however, the

8 Agreement fails to set out any specifics. For instance, while the Agreement reflects

9 Plaintiffs’ belief that such cases will be “rare and unusual,” it does not set out the criteria

10 by which Plaintiffs will decide that return to the United States is warranted. Nor does the

11 Agreement set out the criteria by which Defendants will review Plaintiffs’ requests.

12 Defendants argue that return to the United States would be warranted only in “rare and

13 unusual” cases, whatever that might mean. But the Court reads that portion of the

14 Agreement simply to reflect a good faith standard: Plaintiffs’ belief that individual cases

15 warranting return will be “rare and unusual,” not that only “rare and unusual” cases will

16 warrant return.

17

On its face, the Agreement does little more than outline procedures the parties will

18 follow in the event Plaintiffs’ counsel believe “the return of a particular removed Ms. L

19 class member may be warranted.” (Id.) Both parties have complied with these general

20 procedures. But the Agreement does not provide for any further relief if Plaintiffs’ requests

21 for return are rejected. Thus, Plaintiffs’ motion to the extent it relies on the Settlement

22 Agreement is denied.

23

Defendants argue the only relief available to Plaintiffs is under the Settlement

24 Agreement, and that relief does not include the return of these parents once Defendants

25

26

27 7 The Settlement Agreement was filed in both this case and in a related class action case involving the minor children of the Ms. L. class members. See M.M.M. v. Jefferson
28 Sessions, et. al., Case No. 18cv1832 DMS (MDD).

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1 have evaluated and rejected Plaintiffs’ requests. In support, Defendants rely on the

2 language of the Settlement Agreement that states “[t]he classes agree not to pursue any

3 right or claim of removed parents to return to the United States other than as specifically

4 set forth in this paragraph.” (ECF No. 315-2 at 7.) However, the Agreement also provides

5 that “the classes agree that existing law, existing procedures, and the Court-approved

6 reunification plan address all interests that such parents or their children may have.” (Id.)

7 Plaintiffs are pursuing relief under existing law. The Court, therefore, declines to find that

8 the Settlement Agreement provides the only basis for the relief requested in the present

9 motion.

10 B. Ninth Circuit Law

11

As an alternative to the Settlement Agreement, Plaintiffs argue the Court may grant

12 the requested relief pursuant to its “remedial authority to effectuate its injunction and

13 ensure a meaningful opportunity for reunification.” (Mem. of P. & A. in Supp. of Mot. at

14 11.) In support, Plaintiffs rely on a series of Ninth Circuit cases involving the court-ordered

15 return of aliens who were wrongfully deported. See Walters v. Reno, 145 F.3d 1032 (9th

16 Cir. 1998); Singh v. Waters, 87 F.3d 346 (9th Cir. 1996); Mendez v. Immigration and

17 Naturalization Service, 563 F.2d 956 (9th Cir. 1977). Defendants do not address these

18 cases, relying instead on the argument that the Court lacks jurisdiction to order Defendants

19 to allow the return of these parents. (See Opp’n to Mot. at 17-19.) Defendants cite a

20 number of cases that speak to the power of the legislative and executive branches of the

21 federal government “over the subject of immigration and the status of aliens.” Arizona v.

22 United States, 567 U.S. 387, 394 (2012). But none of the cases cited by Defendants

23 addresses the specific issue raised here, which is whether the Court may order Defendants

24 to allow parents who were separated from their children at the border pursuant to a

25 nationwide policy, and who were subsequently deported without their children, to travel

26 back to the United States so they may be reunified with their children and have a renewed

27 opportunity to request asylum free from the trauma of that separation. Indeed, given the

28 unprecedented nature of this situation, there are no cases directly on point.

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1

However, the Ninth Circuit cases cited by Plaintiffs are instructive. See Walters,

2 145 F.3d 1036 (reviewing permanent injunction requiring INS to parole class members into

3 the United States as a result of due process violations during immigration proceedings);

4 Singh, 87 F.3d at 346-50 (reviewing denial of habeas petition filed by deported alien

5 alleging unlawful deportation); Mendez, 563 F.2d at 957-59 (reviewing challenge of

6 deported alien to deportation order where alien was deprived of right to counsel in

7 immigration proceeding). In each of the foregoing cases, the court rejected the defendant’s

8 argument that the court lacked authority to order return of the alien to the United States.

9 See Walters, 145 F.3d at 1050-51 (rejecting argument “that the district court exceeded its

10 authority in requiring the INS to grant parole to these individuals, as a matter of both recent

11 statutory developments and of circuit precedent.”); Singh, 87 F.3d at 347 (holding district

12 court had jurisdiction over habeas petition seeking petitioner’s return to the United States);

13 Mendez, 563 F.2d at 958-59 (rejecting jurisdictional challenge to appeal of immigration

14 orders). In light of these cases, the Court rejects Defendants’ jurisdictional argument and

15 finds it has authority to grant the requested relief if a parent was wrongfully deported.

16

The circumstances of each parent’s case must therefore be examined, and Plaintiffs

17 carry the burden of proving that each parent was unlawfully or improperly removed.8

18 Plaintiffs, however, argue the group as a whole should be allowed to return to the United

19 States because they meet three criteria: (1) they present bona fide claims for asylum, (2)

20 their asylum claims were abandoned or lost due to coercion or trauma inflicted by the

21 family separation policy, and (3) they are unable to reunify in their home country because

22 of fear of harm to themselves and their children. (Mem. in Supp. of Mot. at 7-8.) There is

23 no legal authority establishing these criteria as a basis for the relief sought. Rather, Ninth

24 Circuit case law provides that the relief sought here, primarily, the parents’ return to the

25 United States, depends on a finding that the parents were unlawfully deported. See Walters,

26

27 8 During the August 16, 2019 status conference, Plaintiffs’ counsel conceded that Plaintiffs
28 bear the burden to show that any removals were unlawful. (ECF No. 452 at 28.)

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1 145 F.3d at 1050-51 (upholding parole into United States as remedy for due process

2 violation in immigration proceedings); Singh, 87 F.3d at 347 (holding petitioner’s unlawful

3 deportation entitled him to habeas relief, including return to the United States); Mendez,

4 563 F.2d at 958 (stating issue was whether the “departure was ‘legally executed’ [] when

5 effected by the government.”)

6

Plaintiffs initially argued the parents’ deportations were illegal based on “the trauma

7 of family separation, in conjunction with statutory and regulatory violations[.]” (Pls.’

8 Supp. Br. in Supp. of Mot. at 3.) During a subsequent status conference, however,

9 Plaintiffs made clear their lead argument was that the deportations of these parents were

10 unlawful based solely on their separation from their children. (ECF No. 452 at 28-29.) As

11 traumatic and unlawful as the separations may have been, the Court declines to find that

12 separation of the family—standing alone—renders the subsequent removal of the parent

13 unlawful. Rather, to be entitled to the relief sought here, the circumstances surrounding

14 the separation of each parent from his or her child must have caused the deportation or

15 removal to be unlawful, e.g., the separation must have affected the voluntariness of the

16 parent’s decisions in the immigration proceedings, or there must have been a statutory or

17 regulatory violation in the immigration process independent of the separation, e.g., a failure

18 to provide a credible fear interview in the face of a credible fear claim. This inquiry must

19 be addressed on an individual basis, not to the group as a whole. See Walters, 145 F.3d at

20 1051 (discussing individual nature of parole decision).

21

Since the parties did not frame the issue in these individual terms, the Court

22 requested supplemental briefing from the parties and ordered Defendants to produce the

23 parents’ immigration records to fully develop the facts of each parent’s case. (See ECF

24 No. 437.)9 In the course of the supplemental briefing, Defendants agreed to return one of

25

26

27 9 Defendants produced approximately 245 pages relating to the immigration proceedings
28 of the eighteen parents. Although Defendants also had an opportunity to submit their own

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1 the twenty-one original parents to the United States because he was removed without first

2 receiving a credible fear interview in violation of law. It also appears another parent is

3 already in the United States with “pending INA § 240 proceedings” before an immigration

4 judge. In addition, Plaintiffs indicated they would not be pursuing relief as to another one

5 of the twenty-one original parents, leaving only the eighteen parents at issue. The Court

6 has now reviewed the records of each parent and makes the following findings.

7 C. Findings

8

A.D.G. – The records reflect A.D.G. and his daughter were apprehended by Border

9 Patrol agents on May 30, 2018, near Hidalgo, Texas. (ECF No. 448 at 6.) A.D.G.’s Form

10 I-21310 includes a notation that A.D.G. was part of a family unit. (Id. at 5.) It also includes

11 a statement that A.D.G. did not fear being returned to his country of origin. (Id. at 8.) In

12 A.D.G.’s Declaration submitted in support of this motion, he states, “I told officials on

13 several occasions that I was afraid to return to [my country of origin].” (ECF No. 430 at

14 4.) It is unclear, however, whether those claims were made to an immigration officer, as

15 required. The relevant statute provides that if an alien indicates to an “immigration officer”

16 either an intention to apply for asylum or a fear of persecution, that officer shall refer the

17 alien for an interview by an asylum officer. See 8 U.S.C. § 1225(b)(1)(A)(ii).11 Based on

18 the evidence submitted and other court records, it appears A.D.G. was at some point

19 transferred to criminal custody, and it appears his claims may have been made to a federal

20

21 declarations in response to the parents’ declarations, they did not do so. Thus, the findings
22 herein are based on the parents’ declarations and the documents produced by the parties.
23 10 Plaintiffs state the Form I-213 “is the form that Customs and Border Patrol agents complete soon after initially apprehending an individual.” (Pls.’ Supp. Br. in Supp. of Mot.
24 at 4 n.3.)
25 11 The statute provides: “If an immigration officer determines that an alien (other than an alien described in subparagraph (F)) who is arriving in the United States or is described in
26 clause (iii) is inadmissible under section 1182(a)(6)(C) or 1182(a)(7) of this title and the
27 alien indicates either an intention to apply for asylum under section 1158 of this title or a fear of persecution, the officer shall refer the alien for an interview by an asylum officer
28 under subparagraph (B).” 8 U.S.C. § 1225(b)(1)(A)(ii).

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1 correctional officer rather than an immigration officer. In light of the evidence, it is unclear

2 whether A.D.G. was entitled to a credible fear interview pursuant to § 1225(b)(1)(A)(ii).

3 Furthermore, although A.D.G. attests to the emotional distress he suffered as a result of

4 being separated from his daughter, he fails to explain how that distress affected his

5 deportation proceedings. Based on the present record, Plaintiffs have not met their burden

6 to show that A.D.G. was unlawfully deported.

7

B.L.S.P. – The evidence reflects B.L.S.P. and her son were apprehended by Border

8 Patrol agents on November 20, 2017, in Presidio, Texas. (ECF No. 448 at 19.) Although

9 B.L.S.P.’s Form I-213 states she did not fear persecution or harm should she be returned

10 to her country of origin, (id. at 19-20) (B.L.S.P. “stated she does not fear persecution or

11 harm should she be returned to native country ….”), she in fact was later provided a

12 credible fear interview. (ECF No. 430 at 10.) It is unclear exactly how long B.L.S.P. was

13 separated from her son before her credible fear interview, but it may have been anywhere

14 from one to four months. During that time, B.L.S.P. “was constantly crying.” (Id. at 9.)

15

For a month, B.L.S.P. had no information about where her son was, and she

16

felt that she could faint from the pain she was feeling. … B.L.S.P. was so stressed by the separation from her son that part of her face became paralyzed

17

for 2-3 days. It was extremely swollen and very painful. … B.L.S.P. felt

18

powerless, overwhelmed by depression from the abrupt separation from her son, all her past traumas resurfaced, and she had difficulties getting through

19

the days.

20 (Id. at 9-10.) B.L.S.P. passed her credible fear interview and was referred to an

21 immigration judge (“IJ”). (Id. at 10.) Two months passed, however, before B.L.S.P.’s

22 hearing before the IJ. (Id.) By that point, B.L.S.P. had been separated from her son for

23 nearly six months. During the hearing, the IJ told B.L.S.P. that it would be another five

24 months before her asylum hearing would be scheduled. (Id. at 11.)

25

B.L.S.P. was overwhelmed and traumatized by the ongoing and indefinite

separation from her child. Faced with potentially almost a year before her

26

asylum claim could be heard and the prospect of ongoing separation from her

27

child throughout this time, she felt defeated, hopeless and unable to remain

separated nor to focus on her asylum claim. … B.L.S.P. was so distraught at

28

the idea of being separated from her child for what would be closer to a year

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1

by the time her next hearing was scheduled that she decided she could not take

2

the suffering anymore and she withdrew her application and asked to go back to [her country of origin].

3

4 (Id.)

5

In B.L.S.P.’s case, the issue for the Court is whether her decision to withdraw her

6 application for asylum and withholding of removal was voluntary. See 8 C.F.R. § 235.4

7 (stating alien’s “decision to withdraw his or her application for admission must be made

8 voluntarily[.]”)12 The evidence presented clearly warrants a finding that B.L.S.P.’s

9 withdrawal of her claims was not voluntary. When B.L.S.P. and her son entered

10 immigration detention on November 20, 2017, they were separated, and the following day

11 B.L.S.P. awoke and found “her son was gone.” (ECF No. 430 at 9.) She remained

12 separated from her son for several months, and for a month, “had no information about

13 where her son was[.]” (Id.) She was thereafter allowed only limited phone contact with

14 her son, and during the time they were separated, she suffered not only emotional harm,

15 but physical harm as well. (Id. at 9-10.) After nearly six months of separation, and being

16 told that she would remain separated from her son for another five months, “[s]he chose to

17 abandon her claim rather than continue the punishment of separation from her child.” (Id.

18 at 11.) The Court cannot say B.L.S.P.’s decision to withdraw her applications was the

19 product of a free and deliberate choice, particularly when she made her decision as a result

20 of the continued separation from her child. B.L.S.P.’s subsequent removal based on the

21 alleged voluntary withdrawal of her claim was therefore unlawful.

22

23

24 12 The same standard applies to B.L.S.P.’s decision to waive her appeal of the IJ’s decision.

25 United States v. Mendoza-Lopez, 481 U.S. 828, 840 (1987). See also Garcia v. Lynch, 786

26

F.3d 789, 792 (9th Cir. 2015) (quoting In re Rodriguez-Diaz, 22 I. & N. Dec. 1320, 1322 (BIA 2000)) (stating waiver of appeal of IJ decisions must be “’knowingly and intelligently

27 made.’”); Ali v. Mukasey, 525 F.3d 171, 173-74 (2d Cir. 2008) (stating waiver of appeal of

28 IJ decision must be “knowing and voluntary”).

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1

C.A.C. – The circumstances surrounding C.A.C.’s removal raise yet other issues.

2 Specifically, C.A.C. executed the court-approved Form that was supposed to be provided

3 to class members along with the Class Notice. C.A.C. chose the following option: “If I

4 lose my [immigration] case and am going to be removed, I do NOT want to take my child

5 with me.” (ECF No. 448 at 29.) That Form was approved by the Court on July 10, 2018.

6 (See ECF No. 103.) It appears C.A.C. signed the Form on July 13, 2018. (ECF No. 448

7 at 29.) He was then removed on July 20, 2018. (Id. at 22.)

8

The problem with C.A.C.’s removal is that on July 16, 2018, this Court granted

9 Plaintiffs’ motion to stay the removal of class members pending full briefing on that issue.

10 (ECF No. 117 at 4.) It appears that C.A.C.’s removal was in violation of that Order, and

11 therefore unlawful. See Singh, 87 F.3d at 349 (finding removal unlawful where alien was

12 deported after stay of deportation had been issued by immigration judge).

13

Two other parents appear to have suffered a similar fate: E.A.S.M. and E.F.A.R.

14 These parents appear to have been removed in violation of the Court’s stay order. (See

15 ECF No. 448 at 101, 124) (indicating removal of E.A.S.M. on July 16, 2018, and removal

16 of E.F.A.R. on August 22, 2018). Indeed, E.F.A.R. was removed not only after the Court’s

17 stay order, but after the Court issued a temporary restraining order prohibiting Defendants

18 from removing Class Members. Accordingly, the removals of these two additional parents

19 were also unlawful.

20

C.P.E. – C.P.E. presents circumstances similar to those of A.D.G. in that the parties

21 dispute whether he made a credible fear claim. C.P.E. claims he did, (see ECF No. 430 at

22 19) (“I told the officials that I was afraid to go back to [my country of origin], but they

23 ignored me.”), but his Form I-213 reflects he did not. (ECF No. 448 at 34) (“the subject

24 does not [ ] claim fear persecution or torture if returned to the subject’s country of

25 citizenship.”) As with A.D.G., it is unclear when and to whom C.P.E. allegedly made his

26 credible fear claim. Plaintiffs have not met their burden to show C.P.E.’s removal was

27 unlawful.

28

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1

D.C.C. – D.C.C. presents circumstances similar to those of A.D.G. and C.P.E. in

2 that there is a dispute about whether he made a credible fear claim. Unlike A.D.G. and

3 C.P.E., D.C.C. appears to allege he made a credible fear claim during his screening

4 interview with an immigration officer. (See ECF No. 430 at 24, ¶ 6.) Defendants submit

5 a Form I-213, which refutes D.C.C.’s assertions and states, “Subject made a statement

6 claiming no fear of being returned to his country of origin.” (ECF No. 448 at 41.) But

7 there is more to D.C.C.’s case. D.C.C. provides evidence he was subject to coercion and

8 misrepresentations by the immigration officer. (ECF No. 430 at 24.) For instance, D.C.C.

9 states the immigration officer told him his “papers were already completed” and that he

10 “had to return” to his country of origin. (Id.) The officer said he “had to sign the paper,

11 that there was no choice.” (Id.) He stated that if D.C.C. “didn’t sign the papers, he would

12 sign for me, so I signed.” (Id.) The officer also said in response to D.C.C.’s claim of fear

13 that D.C.C. “was not allowed to stay in the United States because the President had changed

14 the law and only [D.C.C.’s] son could stay.” (Id.) These circumstances sufficiently

15 demonstrate D.C.C.’s removal was based on an involuntary waiver of his rights as a result

16 of the officer’s actions. Plaintiffs have therefore met their burden to show D.C.C.’s

17 removal was unlawful.

18

D.J.M. – D.J.M.’s case also presents a dispute about whether he made a credible

19 fear claim. In his Declaration, D.J.M. states “[t]he agents did not ask me if I was afraid to

20 return to [my country of origin].” (ECF No. 430 at 31.) D.J.M. states, “I tried to explain

21 that I could not go back to [my country of origin] but it was difficult without [an]

22 interpreter.” (Id.) While D.J.M. states he had difficulty communicating, he does not state

23 he was unable to do so. And D.J.M’s Form I-213 states he “claimed no fear of persecution

24 or torture if he is returned to his native country ….” (ECF No. 446 at 45-46.) As with the

25 others discussed above, Plaintiffs have not met their burden to show D.J.M.’s removal was

26 unlawful.

27

D.P.F. – D.P.F. also presents a dispute about whether he made a credible fear claim.

28 In his Declaration, he states an officer asked him and his daughter if they were afraid to

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1 return to their country of origin, and they replied “yes, and told the officer why [they] were

2 afraid to return.” (ECF No. 430 at 65.) However, D.P.F.’s Form I-213 states, “Subject

3 made a statement claiming no fear of being returned to his country of origin.” (ECF No.

4 448 at 90.) As with the others discussed above, Plaintiffs have not met their burden to

5 show D.P.F.’s removal was unlawful.

6

D.X.C. – D.X.C. also presents a dispute about whether he made a credible fear claim,

7 but unlike the individuals discussed above, his case also presents issues about

8 voluntariness. In his Declaration, he states that after he and his 8-year-old son turned

9 themselves in to immigration officials, he “asked the official for protection and asylum[.]”

10 (ECF No. 430 at 79.) D.X.C. states he repeated that claim the following day, and

11 “explained to the official that [he] had been attacked and feared returning to [his country

12 of origin] with [his son].” (Id.) D.X.C. states that during this exchange, the official asked

13 D.X.C. to sign a document, but he refused and persisted with his credible fear claim. (Id.)

14 After he refused to sign the document,

15

[t]he officer left and a few minutes later came back with another officer. The

16

second officer told me that if I persisted in my asylum claim they would have to separate [my son] and I. He told me that government rules would not allow

17

for me to be released while I asked for asylum, that I would be held for at least

18

two years while my asylum claim was heard by a judge, and that I would be separated from [my son] during that time. He told me that if I asked for

19

asylum, [my son] would be placed for adoption because he could not stay with

20

me in an adult detention center. The officer further told me that I could avoid being separated from [my son] only if I signed the document in front of me

21

which he said would allow for us to be deported together. Otherwise, he said

22

I would be held and [my son] taken from me and put up for adoption. I felt crushed with fear and [my son] began to cry. Fearing the permanent loss of

23

[my son] in a foreign land to an unknown American family was too much for

24

me to bear. As a result, I was forced to sign the paper in front of me that I could not read, and agreed to be deported in order not to lose my 8-year-old

25

son to adoption.

26 (Id.) D.X.C. states that despite the representations of the immigration officials,

27 “[i]mmediately after I signed the document, [my son] was separated from me, and the

28 officers placed my hands and feet in shackles.” (Id. at 80.) D.X.C.’s Form I-213 is silent

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1 as to this exchange, but appears to confirm that D.X.C. was separated from his son. (ECF

2 No. 448 at 97.) As for credible fear, the Form states, “the subject does not [ ] claim fear

3 persecution or torture if returned to the subject’s country of citizenship.” (Id.)

4

As stated, 8 C.F.R. § 235.4 states that an alien’s “decision to withdraw his or her

5 application for admission must be made voluntarily[.]” D.X.C.’s Declaration reflects he

6 did not voluntarily withdraw his claim. Rather, it reflects the immigration officials coerced

7 him to drop his asylum claim. See Orantes-Hernandez v. Smith, 541 F. Supp. 351, 372-74

8 (C.D. Cal. 1982) (discussing “coercive tactics to cause members of the class to accept

9 ‘voluntary departure’ to El Salvador”); see also United States v. Tingle, 658 F.2d 1332,

10 1336 (9th Cir. 1981) (finding officers’ warning to parent, including that parent “might not

11 see … two-year-old child for a while … patently coercive.”) Specifically, after the initial

12 officer was unable to persuade D.X.C. to sign the document, another officer was brought

13 into the interview room. The second officer then threatened that if D.X.C. “persisted in

14 [his] asylum claim, they would have to separate” him from his son, that the separation

15 could last “for at least two years[,]” and that his son would be put up for adoption. (ECF

16 No. 430 at 79.) Given these facts, the Court finds D.X.C.’s decision to withdraw his

17 credible fear claim was involuntary and his subsequent removal was unlawful.

18

E.C.C. – Like many of the other parents, E.C.C. states he made a credible fear claim

19 when he originally surrendered to immigration officials, and again thereafter. (See ECF

20 No. 430 at 94-95.) Defendants contend E.C.C. did not make a credible fear claim, but they

21 fail to submit any evidence to support that contention. Based on the evidence presently

22 before the Court, E.C.C. made a credible fear claim, and was not provided with a credible

23 fear interview in violation of § 1225(b)(1)(A)(ii). E.C.C.’s removal was unlawful.

24

J.A.A. – Other than J.A.A.’s Declaration, there is limited information about the

25 circumstances surrounding his removal. Defendants assert he was removed pursuant to a

26 June 18, 2018 Order of an IJ, (see ECF No. 448 at 135-36), and they submit a “Separated

27

28

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1 Parent’s Removal Form.” (Id. at 137.)13 The Form is undated, so it is unclear whether

2 J.A.A. executed the Form before or after the IJ’s Order. However, J.A.A.’s Declaration

3 suggests he signed the Form before his hearing with the IJ. (See ECF No. 430 at 115.)

4

The circumstances surrounding J.A.A.’s execution of this particular form are

5 unclear, but J.A.A. describes the circumstances surrounding the execution of “three [other]

6 documents.” (Id.) He states that after being separated from his daughter for more than two

7 weeks, during which time he had no information about her whereabouts and was not able

8 to speak with her, he was taken to a room with “an official wearing a red shirt” who asked

9 him if he “was going to ask for asylum.” (Id.) J.A.A.:

10

tried to explain that [he] was fleeing violence in [his country of origin]: that

11

[his] older brother was murdered and that [he and his daughter] had been attacked in the same town where [his] brother was killed. The official told

12

[him] that there was a new policy of zero tolerance towards migrants and that

13

they were no longer giving out asylum.

14 (Id.) The official asked J.A.A. if he had a lawyer, and when he said no, the official “told

15 [him] to sign three documents but did not explain what they were.” (Id.) J.A.A. says the

16 documents were in English, and he “signed them because [he] felt like there was no other

17 choice.” (Id.) He states: “During this meeting, I felt like I was not thinking clearly because

18 I was so distressed by not knowing what was happening with my daughter.” (Id.)

19

It is unclear whether the Form submitted to the Court was one of the three documents

20 J.A.A. signed during that meeting. However, assuming the Form was one of the three

21 documents, the Court cannot say J.A.A.’s execution of it was voluntary. Rather, the official

22 who handed him the Form misrepresented that the United States “was no longer giving out

23 asylum.” (Id.) That undisputed misrepresentation, combined with the distress J.A.A. was

24 suffering as a result of being separated from his daughter, not knowing her whereabouts

25

26

27 13 The Separated Parent’s Removal Form was used by Defendants before the Court’s
28 approval of the Class Notice. (See M.M.M. v. Sessions, Case No. 18cv1832, ECF No. 32.)

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1 and not being able to speak with her, is sufficient to show J.A.A.’s execution of the Form

2 was not voluntary. J.A.A.’s removal was therefore unlawful.

3

L.R.M. – Like certain of the parents discussed above, L.R.M. presents a dispute

4 about whether he made a credible fear claim. In his Declaration, he states that in

5 conjunction with being fingerprinted, he told an official he was afraid to go back to his

6 country, but the official did not respond. (Id. at 120.) However, L.R.M.’s Form I-213

7 states, “The subject denied having fear of persecution or torture if returned” to his country

8 of origin. (ECF No. 448 at 145.) As with the other parents discussed above, Plaintiffs

9 have not met their burden to show L.R.M.’s removal was unlawful.

10

O.U.R.M. – Defendants contend O.U.R.M. was lawfully removed pursuant to an

11 expedited removal order. (Defs.’ Supp. Br. at 2.) They assert he received a negative

12 credible fear finding, and that he did not pursue review by an IJ. (Id.) Notably, Defendants

13 fail to submit any evidence reflecting that O.U.R.M. had a credible fear interview, or the

14 results of that interview, such as a Form I-869, Record of Negative Credible Fear Finding

15 and Request for Review by Immigration Judge. See 8 C.F.R. § 208.30(g)(1). This kind of

16 evidence is important and ought to exist. “If an alien is found not to have a credible fear

17 of persecution of torture, the asylum officer shall provide the alien with a written notice of

18 decision and inquire whether the alien wishes to have an immigration judge review the

19 negative decision, using Form I-869[.]” Id. § 208.30(g)(1). Further, if the alien refuses to

20 indicate whether he or she desires such review, “the alien … shall be considered [to have

21 made] a request for review.” Id.

22

O.U.R.M’s Declaration describes a telephone conversation he had while in

23 detention, which may have been his credible fear interview, but the evidence is

24 inconclusive. That conversation took place approximately three weeks after O.U.R.M. was

25 separated from his son, during which time O.U.R.M. did not know his son’s whereabouts

26 nor have an opportunity to speak with him. (ECF No. 430 at 130.) O.U.R.M. states,

27

The conversation lasted about 10 minutes in total, and this person asked me

28

about my reasons for leaving [my country of origin]. She advised me that I

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1

needed a lot of proof to win my case, that I would spend six to seven months

2

in detention, and that it was best for me to ask for voluntary departure. What she said made me think that I did not have a case and that my only option was

3

to return to [my country of origin]. I was extremely depressed and could not

4

think clearly about anything. I just wanted to see my son.

5 (Id. at 129.) O.U.R.M.’s case is similar to that of B.L.S.P., D.C.C., D.X.C. and J.A.A. in

6 that it raises issues of voluntariness, and the reasoning of those cases applies equally here.

7 Based on that reasoning, O.U.R.M.’s removal was not voluntary.

8

R.A.R.A. – R.A.R.A. presents yet another dispute about whether a credible fear

9 claim was made to an immigration officer. Defendants assert R.A.R.A. did not make such

10 a claim, (Defs.’ Supp. Br. at 2), but they fail to provide a copy of his Form I-213, or any

11 other evidence, to support that assertion. R.A.R.A., by contrast, states he told officials he

12 “was afraid to return to [his] country[.]” (ECF No. 430 at 134.) Based on this evidence,

13 R.A.R.A. was removed without first being provided with a credible fear interview,

14 rendering his removal unlawful.

15

Defendants argue R.A.R.A. is ineligible for asylum because he subsequently

16 reentered the United States illegally. (Defs.’ Supp. Br. at 4.) However, they concede he

17 may be eligible for withholding of removal. (Id.) Defendants fail to explain how

18 R.A.R.A.’s removal was lawful in light of the evidence discussed above and his eligibility

19 for withholding of removal. Accordingly, Defendants’ argument does not deprive

20 R.A.R.A. of the relief sought here.

21

S.A.C. – S.A.C. made a credible fear claim, (ECF No. 448 at 174), and it appears he

22 was provided a credible fear interview. (ECF No. 430 at 138-39.) Defendants assert that

23 interview resulted in a negative credible fear finding, and S.A.C. did not pursue review of

24 that finding. But Defendants fail to provide any evidence to support either of these

25 assertions. See 8 C.F.R. § 208.30(g)(1). The only evidence they provided, apart from the

26 Form I-213 and the Notice and Order of Expedited Removal, was a “Separated Parent’s

27 Removal Form,” (ECF No. 448 at 170), yet Defendants do not appear to be relying on that

28 Form as the basis for S.A.C.’s removal. Absent evidence to support Defendants’ assertion

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1 that S.A.C. failed to request review by an IJ, and S.A.C.’s Declaration stating that he

2 refused to sign one document and was coerced to sign other documents, (ECF No. 430 at

3 139) (stating while he “was detained in Atlanta, immigration officials told me again to sign

4 documents. I asked what the documents said and they said ‘you sign.’ They would not

5 explain what they wanted me to sign and they did not speak Spanish[ ]”), the Court finds

6 S.A.C.’s removal was unlawful.

7

S.T.S. – S.T.S. presents the same situation as certain other parents discussed above,

8 namely a dispute about whether he made a credible fear claim. In his Declaration, S.T.S.

9 states he “tried to explain that [he] wanted to enter the United States because [he] was

10 afraid to go back to [his country of origin].” (ECF No. 430 at 143.) However, S.T.S.’s

11 Form I-213 states, “Subject made a statement that he DID NOT fear his return to his

12 country.” (ECF No. 448 at 180.) As with the other parents discussed above, Plaintiffs

13 have not met their burden to show S.T.S.’s removal was unlawful.

14

S.X.C. – The last parent at issue in this motion is S.X.C. S.X.C. entered the United

15 States with his son at a designated port of entry. (ECF No. 430 at 148.) S.X.C. states that

16 at the port of entry, he and his son “told immigration officials that we were afraid to return

17 to [our country of origin].” (Id.) However, S.X.C.’s Form I-213 states he “was questioned

18 if he had any fear of returning to his home country … using CBP Forms I-867A&B.

19 [S.X.C.] stated he did not fear returning to his home country … but that he would prefer

20 not to go back.” (ECF No. 448 at 186.) As with the other parents discussed above,

21 Plaintiffs have not met their burden to show S.X.C.’s removal was unlawful.

22

II.

23

CONCLUSION

24

In light of the above discussion and the evidence presently before the Court,

25 Plaintiffs have met their burden to show the removals of the following parents were

26 unlawful: B.L.S.P., C.A.C., D.C.C., D.X.C., E.C.C., E.F.A.R., E.A.S.M., J.A.A.,

27 O.U.R.M., R.A.R.A. and S.A.C. Accordingly, Plaintiffs’ motion is granted as to these

28

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1 parents. Plaintiffs have not met their burden as to A.D.G., C.P.E., D.J.M., D.P.F., L.R.M.,

2 S.T.S. and S.X.C. Therefore, the motion is denied without prejudice as to these parents.

3

IT IS SO ORDERED.

4 Dated: September 4, 2019

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