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U.S. District Court Southern District of California (San Diego) CIVIL DOCKET FOR CASE #: 3:20-cv-02146-TWR-BGS

E.A.R.R et al v. U.S. Department Of Homeland Security Date Filed: 11/02/2020

(DHS) et al

Jury Demand: None

Assigned to: Judge Todd W. Robinson

Nature of Suit: 899 Other Statutes:

Referred to: Magistrate Judge Bernard G. Skomal

Administrative Procedures

Cause: 05:0706 Judicial Review of Agency Action

Act/Review or Appeal of Agency

Decision

Jurisdiction: U.S. Government

Defendant

Plaintiff E.A.R.R

represented by Elizabeth Biedenharn Jordan Civil Rights Education and Enforcement Center (CREEC) 1245 East Colfax Avenue Suite 400 Denver, CO 80203 303-757-7901 Email: ejordan@creeclaw.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Erin D. Thorn Vela Texas Civil Rights Project 1017 West Hackberry Avenue Alamo, TX 78516 956-787-8171 Email: erin@texascivilrightsproject.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Maria del Pilar Gonzalez Morales Civil Rights Education and Enforcement Center (CREEC) 1825 North Vermont Avenue

Plaintiff

P.O. Box 27916 Los Angeles, CA 90027 805-813-8896 Email: pgonzalez@creeclaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mimi Marziani 1405 Montopolis Drive Austin, TX 78741 512-474-5073 Email: mimi@texascivilrightsproject.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nicholas Peterson Orrick, Herrington & Sutcliffe LLP 1152 15th St., NW Washington, DC 20005 202-339-8400 Email: npeterson@orrick.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert S. Shwarts Orrick, Herrington & Sutcliffe LLP 405 Howard Street San Francisco, CA 94105 415-773-5760 Email: rshwarts@orrick.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lillian J. Mao Orrick, Herrington & Sutcliffe 1000 Marsh Road Menlo Park, CA 94025 650-614-7400 Fax: 650-614-7401 Email: lmao@orrick.com ATTORNEY TO BE NOTICED

G.S.E.R A minor child, by and through his mother and next friend, E.A.R.R
Plaintiff B.A.E.R A minor child, by and through his mother and next friend, E.A.R.R

represented by Elizabeth Biedenharn Jordan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Erin D. Thorn Vela (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Maria del Pilar Gonzalez Morales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mimi Marziani (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nicholas Peterson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert S. Shwarts (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lillian J. Mao (See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth Biedenharn Jordan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Erin D. Thorn Vela

Plaintiff L.Y.G.

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Maria del Pilar Gonzalez Morales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mimi Marziani (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nicholas Peterson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert S. Shwarts (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lillian J. Mao (See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth Biedenharn Jordan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Erin D. Thorn Vela (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Maria del Pilar Gonzalez Morales (See above for address)

Plaintiff H.A.H.G.

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mimi Marziani (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nicholas Peterson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert S. Shwarts (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lillian J. Mao (See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth Biedenharn Jordan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Erin D. Thorn Vela (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Maria del Pilar Gonzalez Morales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mimi Marziani (See above for address) LEAD ATTORNEY PRO HAC VICE

Plaintiff J.A.E.M

ATTORNEY TO BE NOTICED
Nicholas Peterson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert S. Shwarts (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lillian J. Mao (See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth Biedenharn Jordan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Erin D. Thorn Vela (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Maria del Pilar Gonzalez Morales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mimi Marziani (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nicholas Peterson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Y.J.C.E A minor child, by and through his mother and next friend, J.A.E.M.

Robert S. Shwarts (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lillian J. Mao (See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth Biedenharn Jordan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Erin D. Thorn Vela (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Maria del Pilar Gonzalez Morales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mimi Marziani (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nicholas Peterson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert S. Shwarts (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lillian J. Mao

Plaintiff S.F.L.
Plaintiff C.J.M.L. A minor child, by and through his mother and next friend, S.F.L.

(See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth Biedenharn Jordan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Erin D. Thorn Vela (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Maria del Pilar Gonzalez Morales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mimi Marziani (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nicholas Peterson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert S. Shwarts (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lillian J. Mao (See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth Biedenharn Jordan (See above for address) LEAD ATTORNEY

Plaintiff Y.M.M.

PRO HAC VICE ATTORNEY TO BE NOTICED
Erin D. Thorn Vela (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Maria del Pilar Gonzalez Morales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mimi Marziani (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nicholas Peterson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert S. Shwarts (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lillian J. Mao (See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth Biedenharn Jordan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Erin D. Thorn Vela (See above for address) LEAD ATTORNEY PRO HAC VICE

Plaintiff
J.C.M.M. A minor child, by and through her mother and next friend, Y.M.M

ATTORNEY TO BE NOTICED
Maria del Pilar Gonzalez Morales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mimi Marziani (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nicholas Peterson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert S. Shwarts (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lillian J. Mao (See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth Biedenharn Jordan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Erin D. Thorn Vela (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Maria del Pilar Gonzalez Morales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff G.F.F.

Mimi Marziani (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nicholas Peterson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert S. Shwarts (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lillian J. Mao (See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth Biedenharn Jordan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Erin D. Thorn Vela (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Maria del Pilar Gonzalez Morales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mimi Marziani (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nicholas Peterson

Plaintiff M.Y.J.L.

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert S. Shwarts (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lillian J. Mao (See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth Biedenharn Jordan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Erin D. Thorn Vela (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Maria del Pilar Gonzalez Morales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mimi Marziani (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nicholas Peterson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert S. Shwarts (See above for address)

Plaintiff M.M.G. A minor child, by and through his mother and next friend, V.A.G.
Plaintiff

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lillian J. Mao (See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth Biedenharn Jordan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Erin D. Thorn Vela (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Maria del Pilar Gonzalez Morales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mimi Marziani (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nicholas Peterson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert S. Shwarts (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lillian J. Mao (See above for address) ATTORNEY TO BE NOTICED

D.Y.S. A minor child, by and through his mother and next friend, M.S.S.
Plaintiff S.M.A. A minor child, by and through her mother and next friend, K.A.M.

represented by Elizabeth Biedenharn Jordan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Erin D. Thorn Vela (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Maria del Pilar Gonzalez Morales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mimi Marziani (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nicholas Peterson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert S. Shwarts (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lillian J. Mao (See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth Biedenharn Jordan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Erin D. Thorn Vela

Plaintiff D.G.M.

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Maria del Pilar Gonzalez Morales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mimi Marziani (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nicholas Peterson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert S. Shwarts (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lillian J. Mao (See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth Biedenharn Jordan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Erin D. Thorn Vela (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Maria del Pilar Gonzalez Morales (See above for address)

Plaintiff N.R.R.

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mimi Marziani (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nicholas Peterson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert S. Shwarts (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lillian J. Mao (See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth Biedenharn Jordan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Erin D. Thorn Vela (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Maria del Pilar Gonzalez Morales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mimi Marziani (See above for address) LEAD ATTORNEY PRO HAC VICE

Plaintiff E.H.M.

ATTORNEY TO BE NOTICED
Nicholas Peterson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert S. Shwarts (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lillian J. Mao (See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth Biedenharn Jordan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Erin D. Thorn Vela (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Maria del Pilar Gonzalez Morales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mimi Marziani (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nicholas Peterson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
C.J.V.C. A minor child, by and through his mother and next friend, M.C.

Robert S. Shwarts (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lillian J. Mao (See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth Biedenharn Jordan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Erin D. Thorn Vela (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Maria del Pilar Gonzalez Morales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mimi Marziani (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nicholas Peterson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert S. Shwarts (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lillian J. Mao

Plaintiff La.V.S.O. A minor child, by and through her mother and next friend, A.A.F.S.O
Plaintiff Al Otro Lado an organization

(See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth Biedenharn Jordan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Erin D. Thorn Vela (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Maria del Pilar Gonzalez Morales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mimi Marziani (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nicholas Peterson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert S. Shwarts (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lillian J. Mao (See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth Biedenharn Jordan (See above for address) LEAD ATTORNEY

Plaintiff H.H.M.

PRO HAC VICE ATTORNEY TO BE NOTICED
Erin D. Thorn Vela (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Maria del Pilar Gonzalez Morales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mimi Marziani (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert S. Shwarts (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lillian J. Mao (See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth Biedenharn Jordan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Erin D. Thorn Vela (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Maria del Pilar Gonzalez Morales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant U.S. Department Of Homeland Security (DHS)

Mimi Marziani (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nicholas Peterson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert S. Shwarts (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lillian J. Mao (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
Paul L Starita U S Attorneys Office Southern District of California Civil Division 880 Front Street Room 6293 San Diego, CA 92101 (619) 546-7701

Defendant Chad Wolf Acting Secretary of The Department of Homeland Security, in his official capacity
Defendant U.S. Customs and Border Protection (CBP)
Defendant Mark A. Morgan Acting Commissioner of U.S. Customs and Border Protection, in his official capacity

Email: Paul.Starita@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul L Starita (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul L Starita (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul L Starita (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 11/02/2020

# Docket Text
1 COMPLAINT Against U.S. Department of Homeland Security, Chad Wolf, U.S. Customs and Border Protection, Mark A. Morgan, (Filing fee $400.00 receipt number ACASDC-14797491.), filed by E.A.R.R, G.S.E.R, B.A.E.R., L.Y.G., H.A.H.G., Y.J.C.E., J.A.E.M., S.F.L., C.J.M.L., Y.M.M., J.C.M.M., G.F.F., M.Y.J.L., M.M.G., D.Y.S., S.M.A., D.G.M., N.R.R., H.H.M., E.H.M., C.J.V.C., La.V.S.O., Al Otro Lado, (Attachments: # 1 Civil Cover Sheet)

11/03/2020 11/03/2020 11/05/2020 11/05/2020 11/05/2020
11/06/2020 11/06/2020
11/09/2020

The new case number is 3:20-cv-2146-BGS. Judge Todd W. Robinson and Magistrate Judge Bernard G. Skomal are assigned to the case. (Shwarts, Robert)(zda)(jrd) (Entered: 11/03/2020)
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. (zda)(jrd) (Entered: 11/03/2020)
3 NOTICE OF RELATED CASE(S) by Al Otro Lado, B.A.E.R, C.J.M.L., C.J.V.C., D.G.M., D.Y.S., E.A.R.R, E.H.M., G.F.F., G.S.E.R, H.A.H.G., H.H.M., J.A.E.M, J.C.M.M., L.Y.G., La.V.S.O., M.M.G., M.Y.J.L., N.R.R., S.F.L., S.M.A., Y.J.C.E, Y.M.M. of case(s) 3:19-cv-2119 . (Shwarts, Robert) (mme). (Entered: 11/03/2020)
4 MOTION to File Documents Under Seal (With attachments)(Mao, Lillian) (Entered: 11/05/2020)
5 **Docketed under seal at doc. no. 31 per Order 30 ** SEALED LODGED Proposed Document re: 4 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (Mao, Lillian) Modified on 1/7/2021 (anh). (Entered: 11/05/2020)
6 MOTION to Proceed Anonymously by Al Otro Lado, B.A.E.R, C.J.M.L., C.J.V.C., D.G.M., D.Y.S., E.A.R.R, E.H.M., G.F.F., G.S.E.R, H.A.H.G., H.H.M., J.A.E.M, J.C.M.M., L.Y.G., La.V.S.O., M.M.G., M.Y.J.L., N.R.R., S.F.L., Y.J.C.E, Y.M.M.. (Attachments: # 1 [Proposed] Order Granting Plaintiffs' Motion to Proceed Anonymously)(Shwarts, Robert) **QC Mailer sent re: not filing proposed orders and no hearing date/time. Instructed to withdraw and refile if filed in error. (jmo). (Entered: 11/05/2020)
7 Request to Appear Pro Hac Vice, No payment Submitted. (Application to be reviewed by Clerk.) (Jordan, Elizabeth)(QC mailer sent; filing fee not paid; name of party represented.)(Refer ECF No. 9 )(jrd) (Entered: 11/06/2020)
8 Corrected Motion re 6 MOTION to Proceed Anonymously by Al Otro Lado, B.A.E.R, C.J.M.L., C.J.V.C., D.G.M., D.Y.S., E.A.R.R, E.H.M., G.F.F., G.S.E.R, H.A.H.G., H.H.M., J.A.E.M, J.C.M.M., L.Y.G., La.V.S.O., M.M.G., M.Y.J.L., N.R.R., S.F.L., S.M.A., Y.J.C.E, Y.M.M.. (Attachments: # 1 Memo of Points and Authorities in support of Plaintiffs' Corrected Motion to Proceed Anonymously)(Shwarts, Robert) (jmr). Modified to correct text on 11/20/2020 (jao). (Entered: 11/06/2020)
9 Request to Appear Pro Hac Vice (Filing fee received: $206.00 receipt number ACASDC-14832091.)(Application to be reviewed by Clerk.) (Jordan, Elizabeth)(jrd) (Entered: 11/09/2020)

11/16/2020 11/20/2020
11/25/2020 11/30/2020 11/30/2020 12/01/2020 12/01/2020 12/01/2020 12/01/2020

10 ORDER Approving the Pro Hac Vice Application of Elizabeth Jordan, re 9 Request to Appear Pro Hac Vice. Signed by Judge Todd W. Robinson on 11/16/2020.(Designated Local Counsel not admitted to practice, will be notified by mail to submit petition for admission)(All non-registered users served via U.S. Mail Service)(rmc) (Entered: 11/16/2020)
11 NOTICE of Appearance by Paul L Starita on behalf of Mark A. Morgan, U.S. Customs and Border Protection (CBP), U.S. Department Of Homeland Security (DHS), Chad Wolf (Starita, Paul)Attorney Paul L Starita added to party Mark A. Morgan(pty:dft), Attorney Paul L Starita added to party U.S. Customs and Border Protection (CBP)(pty:dft), Attorney Paul L Starita added to party U.S. Department Of Homeland Security (DHS)(pty:dft), Attorney Paul L Starita added to party Chad Wolf(pty:dft) (jmr). (Entered: 11/20/2020)
12 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number ACASDC-14935681.) (Application to be reviewed by Clerk.) (Thorn Vela, Erin) (rmc). (Entered: 11/25/2020)
13 Mail Returned as Undeliverable re 10 Order re Pro Hac Vice Application. Mail sent to Pilar Gonzalez Morales. (bta) (Entered: 11/30/2020)
14 ORDER Vacating Hearing and Taking Matters Under Submission Without Oral Argument and Denying as Moot Plaintiffs' Original Motion to Proceed Anonymously (ECF no 6 , 8 ). The Court vacates the hearing set for December 9, 2020. Defendants may file a response on or before December 11, 2020. Signed by Judge Todd W. Robinson on 11/30/2020. (jmr) (jms). (Entered: 11/30/2020)
15 SUMMONS Returned Executed by N.R.R., J.A.E.M, D.G.M., J.C.M.M., L.Y.G., C.J.M.L., E.A.R.R, Y.J.C.E, G.F.F., D.Y.S., M.Y.J.L., M.M.G., C.J.V.C., G.S.E.R, H.A.H.G., La.V.S.O., S.F.L., H.H.M., E.H.M., Y.M.M., Al Otro Lado, S.M.A., B.A.E.R. Chad Wolf served. (Mao, Lillian) (jmr). (Entered: 12/01/2020)
16 SUMMONS Returned Executed by N.R.R., J.A.E.M, D.G.M., J.C.M.M., L.Y.G., C.J.M.L., E.A.R.R, Y.J.C.E, G.F.F., D.Y.S., M.Y.J.L., M.M.G., C.J.V.C., G.S.E.R, H.A.H.G., La.V.S.O., S.F.L., H.H.M., E.H.M., Y.M.M., Al Otro Lado, S.M.A., B.A.E.R. U.S. Customs and Border Protection (CBP) served. (Mao, Lillian) (jmr). (Entered: 12/01/2020)
17 SUMMONS Returned Executed by N.R.R., J.A.E.M, D.G.M., J.C.M.M., L.Y.G., C.J.M.L., E.A.R.R, Y.J.C.E, G.F.F., D.Y.S., M.Y.J.L., M.M.G., C.J.V.C., G.S.E.R, H.A.H.G., La.V.S.O., S.F.L., H.H.M., E.H.M., Y.M.M., Al Otro Lado, S.M.A., B.A.E.R. U.S. Department Of Homeland Security (DHS) served. (Mao, Lillian) (jmr). (Entered: 12/01/2020)
18 SUMMONS Returned Executed by N.R.R., J.A.E.M, D.G.M., J.C.M.M., L.Y.G., C.J.M.L., E.A.R.R, Y.J.C.E, G.F.F., D.Y.S., M.Y.J.L., M.M.G., C.J.V.C., G.S.E.R, H.A.H.G., La.V.S.O., S.F.L., H.H.M., E.H.M.,

12/07/2020 12/09/2020 12/09/2020 12/11/2020 12/22/2020 12/23/2020
12/23/2020 12/23/2020
12/23/2020

Y.M.M., Al Otro Lado, S.M.A., B.A.E.R. Mark A. Morgan served. (Mao, Lillian) (jmr). (Entered: 12/01/2020)
19 ORDER Denying the Pro Hac Vice Application of Erin Thorn Vela, re 12 Request to Appear Pro Hac Vice. Signed by Judge Todd W. Robinson on 12/7/2020.(rmc) (Entered: 12/07/2020)
20 Request to Appear Pro Hac Vice, No payment Submitted. (Application to be reviewed by Clerk.) (Thorn Vela, Erin) (rmc). (Entered: 12/09/2020)
21 ORDER Approving the Pro Hac Vice Application of Erin Thorn Vela, re 20 Request to Appear Pro Hac Vice. Signed by Judge Todd W. Robinson on 12/9/2020.(rmc) (Entered: 12/09/2020)
22 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number ACASDC-15036695.) (Application to be reviewed by Clerk.) (Marziani, Mimi) (rmc). (Entered: 12/11/2020)
23 MOTION to Stay Entire Civil Action Pending Appeal of Innovation Law Lab by U.S. Customs and Border Protection (CBP), U.S. Department Of Homeland Security (DHS), Chad Wolf. (Starita, Paul) (jmr). (Entered: 12/22/2020)
24 MOTION for Preliminary Injunction by Al Otro Lado, B.A.E.R, C.J.M.L., C.J.V.C., D.G.M., D.Y.S., E.A.R.R, E.H.M., G.F.F., G.S.E.R, H.A.H.G., H.H.M., J.A.E.M, J.C.M.M., L.Y.G., La.V.S.O., M.M.G., M.Y.J.L., N.R.R., S.F.L., S.M.A., Y.J.C.E, Y.M.M.. (Attachments: # 1 Memo of Points and Authorities in Support)(Shwarts, Robert) (jmr). (Entered: 12/23/2020)
25 MOTION to Certify Class by Al Otro Lado, B.A.E.R, C.J.M.L., C.J.V.C., D.G.M., D.Y.S., E.A.R.R, E.H.M., G.F.F., G.S.E.R, H.A.H.G., H.H.M., J.A.E.M, J.C.M.M., L.Y.G., La.V.S.O., M.M.G., M.Y.J.L., N.R.R., S.F.L., S.M.A., Y.J.C.E, Y.M.M.. (Attachments: # 1 Memo of Points and Authorities in Support)(Shwarts, Robert) (jmr). (Entered: 12/23/2020)
26 SUPPLEMENTAL DOCUMENT by Al Otro Lado, B.A.E.R, C.J.M.L., C.J.V.C., D.G.M., D.Y.S., E.A.R.R, E.H.M., G.F.F., G.S.E.R, H.A.H.G., H.H.M., J.A.E.M, J.C.M.M., L.Y.G., La.V.S.O., M.M.G., M.Y.J.L., N.R.R., S.F.L., S.M.A., Y.J.C.E, Y.M.M. re 25 MOTION to Certify Class , 24 MOTION for Preliminary Injunction Plaintiffs Omnibus Volume of Declarations and Exhibits in Support of Motions for Preliminary Injunction and Class Certification. (Attachments: # 1 Declaration Charlene D'Cruz, # 2 Declaration Timothy P. Fox, # 3 Declaration Elizabeth B. Jordan, # 4 Declaration Nicolas Palazzo, # 5 Declaration Helen Rae Perry, # 6 Declaration Nicole Ramos, # 7 Declaration Robert S. Shwarts, # 8 Declaration Erin D. Thorn)(Mao, Lillian) (jmr). (Entered: 12/23/2020)
27 MOTION to File Documents Under Seal (With attachments)(Mao, Lillian) (anh). (Entered: 12/23/2020)

12/23/2020 01/05/2021 01/07/2021 01/13/2021 01/14/2021
01/22/2021

28 **Docketed under seal at doc. no. 32 per Order 30 ** SEALED LODGED Proposed Document re: 27 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Mao, Lillian) (anh). Modified on 1/7/2021 (anh). (Entered: 12/24/2020)
29 ORDER Approving the Pro Hac Vice Application of Mimi Marziani, re 22 Request to Appear Pro Hac Vice. Signed by Judge Todd W. Robinson on 1/5/2021.(rmc) (Entered: 01/05/2021)
30 ORDER Granting Plaintiff's E.A.R.R. ET AL.'S (1) Motion to Proceed Anonymously; (2) Motion to File Under Seal; and (3) Motion to File Declarations Under Seal [ 4 , 8 , 27 ]. Signed by Judge Todd W. Robinson on 1/7/2021. (anh) (Entered: 01/07/2021)
33 RESPONSE in Opposition re 23 MOTION to Stay Entire Civil Action Pending Appeal of Innovation Law Lab filed by Al Otro Lado, B.A.E.R, C.J.M.L., C.J.V.C., D.G.M., D.Y.S., E.A.R.R, E.H.M., G.F.F., G.S.E.R, H.A.H.G., H.H.M., J.A.E.M, J.C.M.M., L.Y.G., La.V.S.O., M.M.G., M.Y.J.L., N.R.R., S.F.L., S.M.A., Y.J.C.E, Y.M.M.. (Attachments: # 1 Declaration of Nicole Ramos in Support, # 2 Declaration of Patricia E. Gonzalez-Zuniga in Support)(Shwarts, Robert) (sxa). (Entered: 01/13/2021)
34 Minute Entry for proceedings held with chambers of Magistrate Judge Bernard G. Skomal: Plaintiff's counsel contacted Judge Skomal's chambers regarding the filing of a motion for expedited discovery on January 14, 2021. Before any briefing may be filed, the parties must meet and confer. If the parties can agree on a proposal, they may file a joint motion with their proposal. If they do not agree after meeting and conferring, they may file a joint statement setting forth each parties' position on the issue. The parties must meet and confer by January 27, 2021 and file either a joint motion or a joint statement by February 8, 2021. It must include the parties' proposed date to file their Rule 26(f) report and proposed deadlines for completion of fact and expert discovery. Additionally, if either party seeks discovery related to any particular topics on an expedited basis the scope of that discovery should be specifically identified. If a joint statement is filed, it is limited to five pages each with any exhibits summarized or quoted within the briefing. Because joint statements must include not only each parties' position, but a parties' response to the opposing party, the parties must exchange their briefing in advance of the deadline to submit a joint statement to allow each party to respond to the other's arguments.(no document attached) (rxa) (Entered: 01/15/2021)
35 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number ACASDC-15264158.) (Application to be reviewed by Clerk.) (Peterson, Nicholas)QC email sent re missing signature. (dsn) (Entered: 01/22/2021)

01/22/2021 01/27/2021 02/04/2021 02/05/2021 02/08/2021
02/10/2021
02/11/2021 02/12/2021 02/16/2021

36 Request to Appear Pro Hac Vice, No payment Submitted. (Application to be reviewed by Clerk.) (Peterson, Nicholas) (dsn) (Entered: 01/22/2021)
37 REPLY - Other re 33 Response in Opposition to Motion, filed by Mark A. Morgan, U.S. Customs and Border Protection (CBP), U.S. Department Of Homeland Security (DHS), Chad Wolf. (Starita, Paul) (sxa). (Entered: 01/27/2021)
38 NOTICE of Teleconference Information Sheet. Teleconference set for 02/10/2021 at 01:30 PM. (sxa) (Entered: 02/04/2021)
39 ORDER Approving the Pro Hac Vice Application of Nicholas Peterson, re 36 Request to Appear Pro Hac Vice. Signed by Judge Todd W. Robinson on 2/5/2021.(rmc) (Entered: 02/05/2021)
40 MOTION for Discovery by Al Otro Lado, B.A.E.R, C.J.M.L., C.J.V.C., D.G.M., D.Y.S., E.A.R.R, E.H.M., G.F.F., G.S.E.R, H.A.H.G., H.H.M., J.A.E.M, J.C.M.M., L.Y.G., La.V.S.O., M.M.G., M.Y.J.L., N.R.R., S.F.L., S.M.A., Y.J.C.E, Y.M.M.. (Attachments: # 1 Exhibit A to Joint Statement Regarding Plaintiffs' Request for Expedited Discovery)(Shwarts, Robert) (sxa). (Entered: 02/08/2021)
41 Minute Entry for proceedings held before Judge Todd W. Robinson: Telephonic Motion Hearing held on 2/10/2021 re 23 MOTION to Stay Entire Civil Action Pending Appeal of Innovation Law Lab. The motion is taken under submission; written order to follow. The Motion Hearing set for 4/14/2021 is advanced to 4/7/2021 01:30 PM in Courtroom 3A before Judge Todd W. Robinson; amended briefing schedule to be issued.(Court Reporter/ECR Cami Kircher). (Plaintiff Attorney Nicholas Peterson (t)). (Defendant Attorney AUSA Paul Starita). (no document attached) (jao) (Entered: 02/11/2021)
42 TRANSCRIPT ORDER - For hearing(s) on 2/10/2021 by Al Otro Lado, B.A.E.R, C.J.M.L., C.J.V.C., D.G.M., D.Y.S., E.A.R.R, E.H.M., G.F.F., G.S.E.R, H.A.H.G., H.H.M., J.A.E.M, J.C.M.M., L.Y.G., La.V.S.O., M.M.G., M.Y.J.L., N.R.R., S.F.L., S.M.A., Y.J.C.E, Y.M.M.. (Peterson, Nicholas) (Entered: 02/11/2021)
43 NOTICE of Supplemental Fact on Motion to Stay by Mark A. Morgan, U.S. Customs and Border Protection (CBP), U.S. Department Of Homeland Security (DHS), Chad Wolf re 23 MOTION to Stay Entire Civil Action Pending Appeal of Innovation Law Lab (Attachments: # 1 Exhibit)(Starita, Paul) (sxa). (Entered: 02/12/2021)
44 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Motion Hearing) held on 2/10/2021 before Judge Todd W. Robinson. Court Reporter/Transcriber: Cameron P. Kircher. 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 3/9/2021. Redacted Transcript Deadline set for 3/19/2021. Release of Transcript Restriction set for 5/17/2021. (akr) (Entered: 02/16/2021)

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 1 ROBERT S. SHWARTS (SBN 196803)

TIMOTHY P. FOX (SBN 157750)

rshwarts@orrick.com

tfox@creeclaw.org

2 ORRICK, HERRINGTON & SUTCLIFFE LLP CIVIL RIGHTS EDUCATION AND

The Orrick Building

ENFORCEMENT CENTER

3 405 Howard Street

1245 E. Colfax Avenue, Suite 400

San Francisco, CA 94105-2669

Denver, CO 80218

4 Telephone: (415) 773-5700

Telephone: (303) 757-7901

Facsimile: (415) 773-5759

Facsimile: (303) 872-9072

5

LILLIAN J. MAO (SBN 267410)

MARIA DEL PILAR GONZALEZ

6 lmao@orrick.com

MORALES (SBN308550)

ORRICK, HERRINGTON & SUTCLIFFE LLP pgonzalez@creeclaw.org

7 1000 Marsh Road

CIVIL RIGHTS EDUCATION AND

Menlo Park, CA 94025-1015

ENFORCEMENT CENTER

8 Telephone: (650) 614-7400

1825 N. Vermont Avenue, #27916

Facsimile: (650) 614-7401

Los Angeles, CA 90027

9

Telephone: (805) 813-8896

Facsimile: (303) 872-9072

10 Attorneys for Plaintiffs

11

12

IN UNITED STATES DISTRICT COURT

13

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

14 E.A.R.R.; G.S.E.R, A MINOR CHILD, by and through his mother and NEXT
15 FRIEND, E.A.R.R; B.A.E.R., A MINOR CHILD, by and through his
16 mother and NEXT FRIEND, E.A.R.R; L.Y.G.; H.A.H.G.; J.A.E.M; Y.J.C.E, A
17 MINOR CHILD, by and through his mother and NEXT FRIEND, J.A.E.M.;
18 S.F.L.; C.J.M.L., A MINOR CHILD, by and through his mother and NEXT
19 FRIEND, S.F.L.; Y.M.M.; J.C.M.M., A MINOR CHILD, by and through her
20 mother and NEXT FRIEND, Y.M.M.; G.F.F.; M.Y.J.L.; M.M.G., A MINOR
21 CHILD, by and through his mother and NEXT FRIEND, V.A.G.; D.Y.S., A
22 MINOR CHILD, by and through his mother and NEXT FRIEND, M.S.S.;
23 S.M.A., A MINOR CHILD, by and through her mother and NEXT
24 FRIEND, K.A.M.; D.G.M.; N.R.R.; H.H.M.; E.H.M.; C.J.V.C., A MINOR
25 CHILD, by and through his mother and NEXT FRIEND, M.C.; La.V.S.O., A
26 MINOR CHILD, by and through her mother and NEXT FRIEND, A.A.F.S.O;
27 and, AL OTRO LADO, an organization,

Case No. ______________________ CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

28

Plaintiffs,

1

v.

2 U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); CHAD WOLF,
3 Acting Secretary of The Department of Homeland Security, in his official
4 capacity; U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); and
5 MARK A. MORGAN, Acting Commissioner of U.S. Customs and
6 Border Protection, in his official capacity,
7 Defendants.
8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

1. Named Plaintiffs1 are men, women, and children who represent putative

2 classes of migrants with disabilities and health conditions and their family members

3 whom the Department of Homeland Security (“DHS”) and its sub-component

4 Customs and Border Protection (“CBP”) have forcibly returned to Mexico under the

5 so-called Migrant Protection Protocols (the “MPP”). Defendants’ own policies

6 categorically prohibit placing people with “mental or physical health issues in the

7 MPP.” This is far from accidental. Instead, the brutal practice of ignoring this policy,

8 refusing disability accommodations, and sending people with disabilities to survive

9 in makeshift refugee camps and shelters in Mexico is widespread. The risk of harm

10 to people with disabilities in this program is imminent, substantial, and irreparable.

11 Countless individuals have tried and failed to overcome the everyday deprivations of

12 water, sanitation, medicine, and reasonable aids in order to prepare and present their

13 cases in inaccessible courts without basic accommodations.

14

2. Prior to being placed in the MPP, CBP takes a recently arrived

15 immigrant into custody and detains them in a CBP processing center. As a result of

16 this process, Defendants knew or should have known during Plaintiffs’ time in CBP

17 custody that Plaintiffs or their family member had physical or mental health

18 1 A motion to proceed under anonymity is forthcoming. In this case, Plaintiffs assert 19 multiple facts that support proceeding with anonymity. They (1) face imminent
threats from anti-immigrant groups in Northern Mexico; (2) disclose information of 20 the utmost intimacy about the physical abuse and discrimination that could subject
them to being ostracized; and (3) face potential retaliation from port officials, who 21 have threatened to label as “terrorists” other migrants who peacefully raised public
awareness of their plight, an action that would bar that person from receiving asylum. 22 These factors counsel in favor of proceeding anonymously. Does I thru XXIII v.
Advanced Textile Corp., 214 F.3d 1058, 1067-68 (9th Cir. 2000) (party may preserve 23 anonymity in judicial proceedings when “special circumstances justify” this
treatment – i.e., when the plaintiff’s need for anonymity outweighs prejudice to the 24 [Defendants] and the public’s interest in knowing [Plaintiff’s] identity”); see also Al
Otro Lado, Inc. v. Nielsen, No. 17-cv-02366-BAS-KSC, 2017 WL 6541446, at *1 25 (S.D. Cal. Dec. 20, 2017) (granting anonymity to asylum seekers who brought suit
against the government for denying them access to the U.S. asylum system through 26 unlawful policies and practices). Moreover, ten of the plaintiffs are minor children
and the Federal Rules of Civil Procedure require redaction of the names of minor 27 children. Fed. R. Civ. Proc. 5.2(a) (“In an electronic or paper filing with the court
that contains . . . the name of an individual known to be a minor, . . . the filing may 28 include only . . . the minor’s initials”). Plaintiffs will disclose their identities to the
representatives of Defendants.

1

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 conditions, including disabilities. Plaintiffs’ conditions are open and obvious, well

2 documented, and/or were repeatedly reported to CBP agents. Further, Defendants are

3 obligated to put in place screening procedures to identify people with disabilities.

4

3. Defendants have utterly failed to establish mechanisms to ensure that its

5 agents follow Defendants’ policies, including exempting migrants with physical or

6 mental health conditions from the MPP. As a result, Defendants’ employees or agents

7 subjected Plaintiffs to the MPP, forcing them to return to Mexico pending their

8 immigration proceedings and any appeals.

9

4. As a result of Defendants’ actions, Plaintiffs and putative class members

10 in Mexico do not have sufficient shelter, are denied essential medical equipment and

11 care, and/or face barriers such as inaccessible buildings and facilities, a lack of sign

12 language interpreters, and a lack of effective communication, all of which

13 substantially affect their ability to prepare for and adequately aid in their defense in

14 removal proceedings.

15

5. Further, Defendants send Plaintiffs and members of the class—

16 sometimes completely without warning—to areas in Mexico for which the

17 Department of State has given the highest travel warning due to rampant murder,

18 armed robbery, carjacking, kidnapping, extortion, and sexual assault, and to some

19 areas where the Department of State warns U.S. citizens that local law enforcement

20 is not capable of protecting them. This is particularly harmful to Plaintiffs and

21 members of the putative class, who are especially vulnerable to persecution, torture,

22 and human trafficking in Mexico.

23

6. As a result of these conditions, Plaintiffs and putative class members

24 cannot meaningfully prepare for or participate in removal proceedings, including

25 asserting any defenses to removal to another country claims. For example, Plaintiffs

26 are forced to divert their time, energy, and resources to attempt to obtain—sometimes

27 unsuccessfully—basic medical equipment and care, making it virtually impossible

28 for them to meaningfully assert defenses to removal or otherwise prepare for removal

2

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 proceedings.

2

7. Despite repeated pleas from Plaintiffs and advocates, and despite clear

3 evidence of harm, Defendants continue to refuse to exempt Plaintiffs and members

4 of the class from the MPP notwithstanding that their own policies and applicable laws

5 require them to do so.

6

8. Plaintiffs seek a declaration that Defendants’ actions violate the

7 Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., and Section 504 of

8 the Rehabilitation Act of 1973, 29 U.S.C. § 794, and seek an order enjoining

9 Defendants from continuing to subject Plaintiffs and putative class members to the

10 MPP, and requiring Defendants to put in place practices and procedures to satisfy

11 their obligations under Section 504.

12

I. PARTIES

13 A. The Plaintiffs

14

9. Plaintiff E.A.R.R. is a thirty-four-year old woman and is a qualified

15 individual with a disability. Doctors diagnosed her with a pituitary tumor that presses

16 against her brain. Since on or about May 22, 2019, Defendants have forced her to

17 remain in Mexico under the MPP with her two children, including G.S.E.R.

18

10. Plaintiff G.S.E.R. is a thirteen-year-old child and is a qualified

19 individual with a disability. G.S.E.R. has only one functioning lung. Since on or

20 about May 22, 2019, Defendants have forced him to remain in Mexico under the

21 MPP.

22

11. Plaintiff B.A.E.R. is twelve-year-old child and is the child and sibling

23 of people with disabilities (E.A.R.R. and G.S.E.R.). Since on or about May 22, 2019,

24 Defendants have forced him to remain in Mexico under the MPP.

25

12. Plaintiff L.Y.G. is a thirty-six-year-old woman and is a qualified

26 individual with a disability. Doctors diagnosed her with scoliosis and kidney stones.

27 She has Post-Traumatic Stress Disorder, high blood pressure, and high glucose

28 levels. Since on or about February 5, 2020, Defendants have forced her and her two

3

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 children to remain in Mexico under the MPP.

2

13. Plaintiff H.A.H.G. is a forty-five-year-old man and is a qualified

3 individual with a disability. H.A.H.G. has an inguinal hernia, a kidney cyst, a

4 dislocated spinal disc, and hearing loss. Since on or about June 22, 2019, Defendants

5 have forced him and his sons to remain in Mexico under the MPP.

6

14. Plaintiff Y.J.C.E is a seven-year-old child and is a qualified individual

7 with disabilities. He has been diagnosed with a heart murmur. Since on or about

8 October 29, 2019, Defendants have forced him and his family, including his mother

9 J.A.E.M., to stay in Mexico under the MPP.

10

15. Plaintiff J.A.E.M. is a thirty-eight-year-old woman and is the mother of

11 a person with disabilities (Y.J.C.E.). Since on or about October 29, 2019, Defendants

12 have forced her and her family to stay in Mexico under the MPP.

13

16. Plaintiff S.F.L. is a forty-seven-year-old woman and is a qualified

14 individual with disabilities. She has diabetes, vision loss, and depression. Since on or

15 about July 16, 2019, Defendants have forced her and her son, C.J.M.L., to remain in

16 Mexico under the MPP.

17

17. Plaintiff C.J.M.L. is an eight-year-old boy and is a qualified individual

18 with disabilities. He has a urethral malformation that requires surgery. Since on or

19 about July 16, 2019, Defendants have forced him and his mother, S.F.L., to remain

20 in Mexico under the MPP.

21

18. Plaintiff Y.M.M. is a thirty-nine-year-old woman and is mother of a

22 person with disabilities (J.C.M.M.). Y.M.M. is being assessed for mental health

23 issues. Since on or about March 27, 2020, Defendants have forced Y.M.M. and her

24 child to remain in Mexico under the MPP.

25

19. Plaintiff J.C.M.M. is a seven-year-old child and is a qualified individual

26 with disabilities. She has urinary tract problems, experiences seizures, and has a mild

27 intellectual disability. Since on or about March 27, 2020, Defendants have forced her

28 and her mother, Y.M.M., to remain in Mexico under the MPP.

4

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1

20. Plaintiff G.F.F. is a thirty-eight-year-old man, and is a qualified

2 individual with a disability. He has depression and insomnia. Since around July 2019,

3 Defendants have forced him to remain in Mexico under the MPP.

4

21. Plaintiff M.Y.J.L. is a thirty-four-year-old woman and is a qualified

5 individual with disabilities. She has debilitating uterine fibroids, also known as

6 myomas and endometriosis. These conditions cause her to experience intense pain

7 and bleeding. Since on or about March 13, 2020, Defendants have forced her and her

8 husband to remain in Mexico under the MPP.

9

22. Plaintiff M.M.G. is a sixteen-year-old boy and is a qualified individual

10 with a disability. He has a brain injury arising from surgery to reconstruct a brain

11 blood vessel, and he experiences painful headaches, impaired memory, and

12 confusion. Since on or about September 26, 2019, Defendants have forced him and

13 his family, including his mother, V.A.G., to stay in Mexico.

14

23. Plaintiff D.Y.S. is a nine-year-old child and is a qualified individual with

15 a disability. Doctors have diagnosed him with autism, hyperactivity, and epilepsy.

16 Since on or about November 22, 2019, Defendants have forced him and his mother,

17 M.S.S., to remain in Mexico under the MPP.

18

24. Plaintiff S.M.A. is a seven-year-old child and is a qualified individual

19 with a disability. Doctors diagnosed her with lissencephaly, a disorder characterized

20 by developmental delay and seizures. Since on or about August 23, 2019, Defendants

21 have forced her and her mother, K.A.M., to remain in Mexico under the MPP.

22

25. Plaintiff D.G.M. is a fifty-two-year-old man and is a qualified individual

23 with a disability. He has hypertension and a growth in his heart that requires a

24 pacemaker. Since on or about July 28, 2019, Defendants have forced him and his

25 family to remain in Mexico under the MPP.

26

26. Plaintiff N.R.R. is a forty-four-year-old woman and the wife of a person

27 with disabilities (D.G.M.). Since on or about July 28, 2019, Defendants have forced

28 her and her family to remain in Mexico under the MPP.

5

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1

27. Plaintiff H.H.M. is a twenty-year-old man and is a qualified individual

2 with a disability. He is deaf and does not communicate through any standardized sign

3 language. He relies on his sister, E.H.M., almost exclusively for communication.

4 Since on or about March 21, 2020, Defendants have forced him and his family to

5 remain in Mexico under the MPP.

6

28. Plaintiff E.H.M. is a twenty-two-year-old woman and is the sister of

7 person with disabilities (H.H.M.). Since on or about March 21, 2020, Defendants

8 have forced her, her child, and her brother to remain in Mexico under the MPP.

9

29. Plaintiff C.J.V.C. is a fourteen-year-old child and is a qualified

10 individual with a disability. He has an amputated leg. Since on or about September

11 24, 2019, Defendants have forced him and his mother, M.C., to remain in Mexico

12 under the MPP.

13

30. Plaintiff La.V.S.O. is a one-year-old baby and is a qualified individual

14 with a disability. She was born with congenital hydrocephalus, which causes a

15 buildup of fluid around her brain and spinal cord and requires specialized medical

16 treatment. Since on or about February 27, 2020, Defendants have forced her and her

17 family, including her mother A.A.F.S.O., to remain in Mexico under the MPP.

18

31. Al Otro Lado is a non-profit, binational legal services organization

19 incorporated in California. Al Otro Lado serves indigent deportees, migrants,

20 refugees and their families, principally in Los Angeles, California and Tijuana,

21 Mexico. In both locations, the populations that Al Otro Lado serves includes many

22 individuals with disabilities or who are seriously ill, as well as their families. The

23 volume of individuals with disabilities or medical conditions subjected to the MPP

24 requiring Al Otro Lado’s assistance has forced Al Otro Lado to expend significant

25 additional time and effort, affecting the organization’s activities and staffing,

26 frustrating its mission, and requiring it to divert its resources.

27 B. The Defendants

28

32. Defendant U.S. Department of Homeland Security (“DHS”) is a

6

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 Department within the Executive Branch tasked with enforcing the immigration laws

2 of the United States.

3

33. Defendant Chad Wolf is or was the purported Acting Secretary of DHS

4 at all times relevant to this suit and is sued in his official capacity. Defendant Wolf

5 is responsible for the administration, implementation, and enforcement of U.S.

6 immigration laws and policies pursuant to 8 U.S.C. § 1103(a), including policies

7 related to the forcible return of asylum-seekers to Mexico at the U.S. southern border.

8

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

9 agency of DHS that is responsible for enforcement operations along the borders of

10 the United States, including the U.S. southern border.

11

35. Defendant Mark A. Morgan is the Acting Commissioner of CBP and is

12 sued in his official capacity. Defendant Morgan oversees the apprehension and

13 detention of individuals, including asylum seekers, who enter the United States at or

14 near the U.S. border.

15

II. JURISDICTION AND VENUE

16

36. This case arises under the Administrative Procedure Act (“APA”), 5

17 U.S.C. § 701 et seq., and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.

18 § 794.

19

37. The Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, 1346,

20 2201-2202; 29 U.S.C. § 794a; and 5 U.S.C. § 702.

21

38. Venue is proper under 28 U.S.C. § 1391(e) because a substantial part of

22 the acts or omissions occurred in the Southern District of California.

23

III. LEGAL FRAMEWORK

24 A. Section 240 Proceedings

25

39. The Immigration and Naturalization Act (“INA”) provides different

26 proceedings for different categories of individuals to determine their admissibility to

27 the United States.

28

40. The proceedings relevant to this case are set forth in section 240 of the

7

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 INA, as well as any appeals as of right therefrom including petitions for review,

2 collectively referred to herein as “Section 240 proceedings.” Section 240 is codified

3 at 8 U.S.C. § 1229a. Appeals as of right from those proceedings are discussed in 8

4 C.F.R. § 1003.1. Petitions for review to Circuit Court of Appeals (included in the

5 term “appeals as of right” for the purposes of this complaint) are discussed in 8 U.S.C.

6 § 1252.

7

41. Section 240 proceedings are evidentiary hearings presided over by an

8 immigration judge.

9

42. Through this, individuals, who are respondents in these proceedings, are

10 given the opportunity to examine evidence brought against them, to present evidence,

11 and to cross-examine witnesses. 8 U.S.C. § 1229a(b)(4).

12

43. The respondent has the burden of proof on most issues, and in

13 determining whether that burden has been met, an immigration judge focuses on

14 whether the respondent has submitted credible, persuasive, specific facts. 8 U.S.C. §

15 1229a(c)(2). Any evidence submitted by the noncitizen must comply with applicable

16 requirements. 8 U.S.C. § 1229a(c)(3).

17

44. A respondent who does not appear for a scheduled Section 240

18 proceeding faces a significant risk that the immigration judge will order their

19 removal. 8 U.S.C. § 1229a(b)(5).

20

45. Appeals as of right, which include appeals to the Board of Immigration

21 Appeals and petitions for review for the purposes of this complaint as indicated

22 above, involve review of the factual and legal findings of the agency through briefs,

23 occasionally including oral argument. A respondent who does not file briefs on

24 appeal faces a significant risk of having an appeal as of right dismissed.

25 B. The Migrant Protection Protocols

26

46. The MPP, introduced in December 2018, is a policy of the Trump

27 administration that purports to grant CBP officers the authority to return to Mexico

28 people seeking admission to the United States, pending their Section 240

8

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 proceedings.2

2

47. As of March 2020, Defendants had forcibly returned more than 60,000

3 people to Mexico pursuant to the MPP. Approximately 25,000 of these individuals

4 live in makeshift camps and shelters in Mexican border towns.

5

48. Individuals placed in the MPP are in Section 240 proceedings. The

6 process of pursuing Section 240 proceedings under the MPP is itself a grueling

7 exercise. Immigration court respondents who are set for morning proceedings must

8 travel through extremely dangerous, sometimes cartel-controlled areas, to present

9 themselves to CBP agents at the Port of Entry before sunrise. Those set for the

10 afternoon docket often are not released back into Mexico until late in the evening,

11 often after sunset. Section 240 proceedings usually entail a series of court

12 appearances, culminating in a final merits hearing. As a result, prior to receiving an

13 immigration judge’s determination on the merits of their cases, Plaintiffs and others

14 in the MPP must often present themselves for court many times.

15

49. Respondents in MPP proceedings must first pass a medical inspection

16 before being permitted to enter immigration court. Some individuals have been

17 turned away and rescheduled because, for example, abysmal living conditions have

18 caused them to have lice. After their belongings are inspected, individuals often wait

19 hours in holding areas before being called for their proceedings.

20

50. At San Diego and El Paso, MPP court proceedings are held in the San

21 Diego and El Paso immigration courts in person, where asylum-seekers interact with

22 court staff or officials and, when possible, submit documents in person. Once an

23 asylum seeker is permitted to enter the court, that person is prohibited from exercising

24 any freedom of movement.

25

51. At Brownsville and Laredo, Texas, MPP court proceedings are

26

27

2 Plaintiffs, including members of the putative class, who entered the United States without inspection and were apprehended by CBP agents thereafter, do not

28

concede that the INA permits CBP to return them to a contiguous country pending removal proceedings by filing this suit.

9

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 conducted in temporary “tent” facilities erected on federal property near the ports of

2 entry. These facilities are not easily accessible for individuals with mobility

3 disabilities, such as C.V.J.C. Those who attend courts at these facilities do not come

4 face-to-face with any court staff or officials; instead, asylum-seekers interact with the

5 immigration judge and government attorneys entirely over televideo. Individuals

6 who have documents to submit to the court must hand the documents to a security

7 guard to scan. While waiting for others to finish proceedings with the judge,

8 immigrants are not given any freedom of movement and must ask for and be granted

9 permission to use restroom facilities. When appearing for the merits portion of their

10 immigration proceeding, individuals are placed into a repurposed shipping container

11 that is barely big enough to hold three people. Interpreters are not physically present

12 for the interviews. Instead, if interpretation is needed, respondents speak through an

13 interpreter over the phone.

14

52. After proceedings are concluded, depending on several factors,

15 including whether someone has been granted a non-refoulement interview, people

16 can wait another several hours, incommunicado, before being returned to Mexico.

17

53. The heightened risk of abuse or crimes and the conditions that people

18 with disabilities face in Mexico—including lack of medical care, medical equipment,

19 accessible housing and buildings, sign language interpreters, and other necessary

20 supports—are appalling.

21

54. As a result, people with disabilities that Defendants force to return to

22 Mexico often must focus all their efforts on simply surviving. They have no

23 meaningful opportunity to prepare for their Section 240 proceedings. In fact, people

24 with disabilities run the risk of not even being able to appear at their 240 proceedings

25 because of their disabilities.

26

55. DHS, apparently recognizing that the MPP should not be applied to

27 people with disabilities, has expressly excluded people with known physical or

28 mental health issues from the MPP in its policies (the “Physical/Mental Health

10

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 Exclusion”).

2

56. Among other places, the Physical/Mental Health Exclusion is set forth

3 on a DHS webpage entitled “Migrant Protection Protocols,” last published on August

4 10, 2020. In a section of this webpage entitled “Are there any exclusions to who is

5 subject to MPP?” DHS explicitly states that people with “[k]nown physical/mental

6 health issues” are excluded from the MPP.3

7

57. On several other occasions—including in a brief to the Ninth Circuit4

8 and a statement of “Guiding Principles” applicable to the MPP at all ports of entry5—

9 DHS and CBP have made it clear that the MPP should not be applied to people with

10 known physical or mental health issues.

11

58. Notwithstanding DHS and CBP’s stated policy that the MPP should not

12 apply to people with known physical or mental health issues, CBP continues to apply

13 the MPP to such people, returning Plaintiffs and numerous other people with physical

14 or mental health conditions, including people with disabilities, to Mexico.

15

59. On information and belief, DHS has not put in place effective

16 mechanisms to ensure that CBP employees implement its policy exempting people

17 with known physical or mental health conditions from the MPP, and has failed to put

18 in place mechanisms to identify or assess, for purposes of accommodations,

19 immigrants with disabilities.

20

21

3 Migrant Protection Protocols, DEP’T OF HOMELAND SEC., https://www.dhs.gov/migrant-protection-protocols (last visited Nov. 2, 2020).

22 4 See Br. for Appellants at 13, Innovation Law Lab v. McAleenan, 2019 WL

2290420 (9th Cir. May 22, 2019).

23 5 [MPP Guiding Principles], CBP Enforcement Programs Division,

24

https://www.cbp.gov/sites/default/files/assets/documents/2019Jan/MPP%20Guiding%20Principles%201-28-19.pdf (stating that the MPP

25

should not be applied to people with known physical or mental health issues); Executive Director Todd A. Hoffman, Office of Field Operations, Guidance on

26

Migrant Protection Protocols, CBP (Jan. 28, 2019) https://www.cbp.gov/sites/default/files/assets/documents/2019-

27

Jan/MPP%20OFO%20Memo%201-28-19.pdf (stating that “[t]he Guiding Principles outline which aliens may be amenable to MPP” and instructs

28

recipients to “ensure that this memorandum is disseminated to all ports of entry.”).

11

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1

60. Defendants similarly refuse to allow Plaintiffs’ family members to

2 accompany them into the United States or to assist Plaintiffs in preparing for and

3 participating in their 240 Proceedings. Defendants have a policy of maintaining

4 family unity “to the greatest extent operationally feasible, absent a legal requirement

5 or an articulable safety or security concern that require separation” (the “Family Unit

6 Policy”).6 Defendants have been enjoined from separating parents from their minor

7 children when in detention or upon release from detention, for example, through

8 continuing to detain the minor children while releasing the parents, or vice versa. Ms.

9 L. v. U.S. Immigr. & Customs Enf’t, No. 18-CV-0428-DMS-MDD (S.D. Cal. June

10 26, 2018), Docket Nos. 82-83.7

11

IV. FACTUAL ALLEGATIONS

12 A. Conditions that People with Disabilities Face When Placed in the MPP

13

and Returned to Mexico

14

Defendants place persons with known physical or mental health issues and/or disabilities in the MPP

15

61. Defendants routinely place persons with known physical or mental

16 health issues, including qualified individuals with disabilities, in the MPP. Yet,

17 Defendants have no mechanism to properly screen individuals with disabilities and

18 exempt them from the program.

19

62. Defendants’ practice has been widely reported.8 For example, six people

20 with physical and/or mental health disabilities, including four children, were placed

21 in the MPP and sent to Ciudad Juárez. One of those persons, a fourteen-year-old child

22

23

6 National Standards on Transport, Escort, Detention, and Search, CBP, https://www.cbp.gov/sites/default/files/assets/documents/2020-Feb/cbp-teds-

24

policy-october2015.pdf (last updated February 28, 2020) 7 Compare class certification order, Docket No.82, to preliminary injunction, docket

25 no. 83, both issued on the same day.

26

8 See, e.g., US Move Puts More Asylum Seekers at Risk, HUM. RTS. WATCH (Sept. 25, 2019), https://www.hrw.org/news/2019/09/25/us-move-puts-more-asylum-

27

seekers-risk; Jessica Eller et al., Migrant Protection Protocols: Implementation and Consequences for Asylum Seekers in Mexico, 218 U. TEX. AUSTIN STRAUSS

28

CTR. INT’L SEC. & L. 26 (May 2020), https://repositories.lib.utexas.edu/handle/2152/81991.

12

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 with intellectual disabilities, appeared to be confused and distraught by his situation.9

2

63. In Matamoros, Mexico, across the border from Brownsville, Texas,

3 attorneys with the organization Lawyers for Good Government have confirmed that

4 children with disabilities were being placed in the MPP, which included at least two

5 children with Down Syndrome.10

6

64. A 2019 article by The Guardian details the story of José, an asylum

7 seeker with a severe cognitive disability who sought asylum. When José and his

8 family arrived at the U.S. border, they provided officials with a written statement

9 from his doctor affirming that he had the cognitive age of a four-year-old child.

10 Nevertheless, Defendants separated him from his caretaker, detained him in an El

11 Paso detention facility for two weeks, and then bused him to Ciudad Juárez,

12 Chihuahua, Mexico, and placed him in the MPP.11

13

65. José was unable to provide basic information such as his date of birth or

14 age, and immigration advocates informed government officials of his condition.

15 Nevertheless, he was sent back to Ciudad Juárez, where he stayed without any

16 support for nearly three months.12

17

66. Immigration advocates arranged for José to undergo another cognitive

18 assessment, which confirmed the earlier diagnosis, including the fact that Jose had

19 no concept of time or space, and no real idea of where he was. Despite this evidence,

20 CBP insisted on retesting him and held him in a detention center for three days. CBP

21 then inexplicably sent Jose back to Mexico, where he remained at the time of the

22 article.13

23

67. Other outlets have confirmed that individuals with disabilities who

24 9 Id.

25 10 Id.

26

11 Adam Gabbatt, 'Like a Child': The Disabled Migrant Stranded and Alone in Mexico, GUARDIAN (July 18, 2019), https://www.theguardian.com/us-

27

news/2019/jul/27/mexico-disabled-migrant-stranded-trump. 12 Id.

28 13 Id.

13

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 should be exempt from the MPP continue to be held in the program, despite their

2 inability to access their immigration proceedings or the necessary medical treatments

3 in Mexico.14

4 Living conditions in Mexico for people with disabilities housed in shelters and 5 migrant “camps”

6

68. The living environment for those returned to Mexico, including in

7 overcrowded shelters or makeshift tent encampments, exacerbates any existing

8 health conditions and puts these individuals at risk for developing infectious

9 diseases.15 There is heightened inaccessibility to health care due to the violence in

10 northern Mexico border cities and a lack of basic services, including medical

11 supplies. Basic care is in general provided by over-burdened and under-funded non-

12 governmental organizations.16

13

69. Most of the shelters and facilities available to those returned to Mexico

14 are inaccessible to persons with disabilities and lack the necessary resources for

15 persons with physical and mental disabilities. Many individuals are fearful of leaving

16 to seek care.17

17

70. Apart from these shelters and facilities, those who must live in tent

18 encampments face even more inaccessibility issues. For example, at the tent

19 encampment in Matamoros, Tamaulipas, Mexico, which at its height held 2,500

20 people, there are only a handful of outdoor showers. There is also a limited number

21 of portable toilets, which at times have overflowed with human waste. Insufficient

22

23 14 Reynaldo Leaños Jr., Border Officials Keep Sending Asylum Seekers With

Disabilities, Illnesses Back To Mexico, TEX. PUB. RADIO (Feb. 21, 2020),

24 https://www.tpr.org/border-immigration/2020-02-21/border-officials-keep-

sending-asylum-seekers-with-disabilities-illnesses-back-to-mexico.

25 15 Megan Diamond, et al., A Population in Peril: A Health Crisis Among Asylum

26

Seekers on the Northern Border of Mexico, HARV. GLOB. HEALTH INST. & B.C. SCH. SOC. WORK 1 (2020), https://globalhealth.harvard.edu/wp-

27

content/uploads/2020/07/A_Population_in_Peril.pdf. 16 Id. at 4.

28 17 Id. at 5.

14

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 access to potable water frequently leads to chronic dehydration and heat stroke.18

2

71. Existing disabilities and chronic health conditions are exacerbated by

3 the routine confiscation of medications by CBP agents.19 It can take weeks to secure

4 new prescriptions in Mexico. Those held in CBP custody also commonly report

5 chronic conditions being undiagnosed and left untreated, as well as inconsistent

6 initial medical screening protocols performed by the Mexican government. In

7 particular, the Mexican government has provided insufficient information to people

8 with disabilities and chronic health conditions regarding how they could access

9 healthcare.20

10

72. Being returned to Mexico can be a “catastrophic stressor on health” for

11 these individuals due to the stress from waiting in a dangerous living environment

12 and trauma from their experiences in migration.21

13

73. Minors are especially vulnerable to exacerbated mental health issues.

14 Due to the high need for mental health and psychosocial services for those placed in

15 the MPP, those with psychiatric disabilities face a lack of care.22

16

74. Generally, Mexico does not have enough health care resources,

17 particularly in the border cities where Defendants have forcibly sent Plaintiffs. In

18 three Mexican border states, the physician to population ratio is approximately 0.6 to

19 1,000, and compared to other nations, Mexico exhibits poor performance on quality

20 of care indicators, including amputations on diabetic patients and avoidable hospital

21 admission. As a result, under-funded and over-burdened faith-based and nonprofit

22 organizations attempt to fill the gaps in health care services and supplies for those

23

24 18 Id.

25 19 Id. at 6.

26

20 Id; see also, Human Rights Watch, Mexico: Risks at Border for Those with Disabilities, HUM. RTS. WATCH (Oct. 29, 2019),

27

https://www.hrw.org/news/2019/10/29/mexico-risks-border-those-disabilities. 21 Diamond, et al., supra note 15, at 7.

28 22 Id.

15

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 sent to Mexico whose disabilities Defendants refuse to accommodate.23

2

75. Researchers in December 2018 in Tijuana identified many barriers that

3 those migrating through Mexico face—and since the MPP began to be administered

4 in January 2019, conditions have not improved. Due to the number of migrants

5 arriving in Tijuana in 2018, Mexican officials used a sports stadium as a shelter. After

6 the stadium flooded during a storm, many migrants were forced to move into the

7 streets.24

8

76. The sports stadium used as a shelter does not have any bathrooms,

9 forcing migrants to walk outside and pay for the use of a public restroom. Moreover,

10 those with disabilities are unable to access the available restrooms outside of the

11 stadium and, for example, some have required someone to push their wheelchair in

12 order to access the restroom.25

13

77. While other shelters do have bathrooms on site, these facilities are filthy

14 and have puddles of water on the floor. For instance, at the “El Barretal” shelter,

15 beyond basic hygiene concerns, the slippery floor makes it impossible for wheelchair

16 users to even enter and dangerous for people with physical disabilities to use, as was

17 the case for a migrant named Rafael who uses crutches. To avoid the inaccessible El

18 Barretal bathrooms, Rafael relieves himself in a plastic can and sometimes goes five

19 days without bathing. When he does finally bathe, he pays to use a private bathroom

20 outside of El Barretal.26

21

78. Migrants have reported being turned away from local clinics and

22 hospitals, which can be deadly for those with serious chronic health conditions.27

23

79. In Ciudad Juárez, Chihuahua, Mexico, migrants with disabilities and

24 23 Id. at 7-8.

25 24 Carlos Ríos Espinosa, Life with a Disability in the Migrant Caravan, HUM. RTS. WATCH (Dec. 20, 2018), https://www.hrw.org/news/2018/12/20/life-disability-
26 migrant-caravan.

27

25 Id. 26 Id.

28 27 Eller et al., supra note 8, at 29.

16

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 chronic health conditions face obstacles in obtaining basic services and health care.

2 The Mexican government fails in supporting migrants with disabilities and chronic

3 health conditions returned from the United States by Defendants in a variety of ways.

4 For example, the Mexican government has an inadequate system for identifying

5 people with disabilities and health conditions nor and for providing information about

6 and access to health care.28

7

80. None of the four shelters in Ciudad Juárez, even the newly built ones,

8 are fully accessible to persons with disabilities returned to Mexico by Defendants.

9 The government-run Leona Vicario National Integration Center, which has a capacity

10 for 3,000 people, originally had no beds, leaving people to sleep on the floor,

11 including persons with disabilities. The shelter also has no accessible bathrooms for

12 persons with physical disabilities and no accessible transportation nearby.29

13

81. Some individuals with disabilities reported that neither American nor

14 Mexican government officials provide them sufficient information or otherwise

15 facilitate access to health care. Although a state health insurance program exists for

16 low-income migrants, many were not told of its existence. For example, a woman

17 with high blood pressure and a man with a prosthetic eye were deprived of critical

18 health care because they were not informed of the state health insurance.30

19

82. Limited food options at many shelters results in an inability to provide

20 appropriate dietary accommodations for persons with certain disabilities and chronic

21 illnesses, which can lead to a deterioration in their health.31

22

83. The COVID-19 pandemic has also exacerbated access to shelters for

23 individuals with disabilities returned from the United States. In Matamoros and

24

25 28 Mexico: Risks at Border for Those with Disabilities, HUM. RTS. WATCH (Oct. 29, 2019), https://www.hrw.org/news/2019/10/29/mexico-risks-border-those-
26 disabilities.

27

29 Id. 30 Id.

28 31 Id.

17

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 Tijuana, migrant shelters have announced that they will be closing or no longer

2 accepting new residents.32

3 Deafness

4

84. Numerous sources point to Mexico as being unsafe and unsupportive to

5 deaf or hard-of-hearing persons.

6

85. There is a lack of sign language interpreters for the most basic services,

7 especially in health care. In a survey regarding accessibility, a mother in the MPP

8 with a deaf child stated that there are no sign interpreters in Mexican hospitals and

9 that sometimes hospitals would not allow her to accompany her deaf child to

10 appointments.33

11

86. Advocates for individuals who are deaf or hard-of-hearing in Mexico

12 often speak to the constant discrimination and societal and institutional barriers that

13 deaf persons face in Mexico.34

14 Blindness

15

87. People who are visually impaired face architectural barriers as a major

16 obstacle to accessing rehabilitation services in Mexico.35

17

88. Blind people also face discrimination and accessibility challenges in

18 Mexico. For example, many blind people are prevented from entering public places

19 and using public transportation with their guide dogs. Once inside, navigating public

20 places can be particularly difficult, for barriers such as many elevators do not have

21

22

23

32 Id. at 30. 33 Amanda Admire & Blanca Ramirez, Violence and Disability: Experiences and

24 Perceptions of Victimization Among Deaf People, JOURNAL OF INTERPERSONAL

VIOLENCE 13-14 (Sept. 14, 2017),

25

https://journals.sagepub.com/doi/10.1177/0886260517730564. 34 Paola Cortés Pérez, Sordos Enfrentan Discriminación Social e Institucional:

26 DIES, UNIVERSO (Nov. 3, 2018), https://www.uv.mx/prensa/general/sordos-

enfrentan-discriminacion-social-e-institucional-dies/.

27 35 Guillermo Rivera, Como es Ser Invidente en México, VICE (en español) (July 7,

28

2016), https://www.vice.com/es/article/pp5qvm/los-ciegos-la-tenemoscomplicada-como-es-ser-invidente-en-mexico.

18

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 braille signage.36

2

89. In its 2019 Country Reports on Human Rights Practices, the State

3 Department stated that public buildings and facilities were often not accessible to

4 those with disabilities. Furthermore, the State Department documented systemic

5 problems of abuse and unhygienic conditions within mental health institutions and

6 care facilities meant for people with disabilities in Mexico.37 The report found that

7 “[p]ublic buildings and facilities often did not comply with the law requiring access

8 for persons with disabilities.”38

9 B. Heightened Risks to People with Disabilities of Kidnapping, Abuse, and

10

Hospitalization in the Informal Refugee Camps

11

90. By placing individuals with disabilities and medical conditions and their

12 families in the MPP, Defendants force them to live in Mexico where they are

13 particularly vulnerable to criminal activity. Plaintiffs and putative class members

14 stand out within their Mexican surroundings because they live in the camps, speak

15 with non-Mexican accents (or do not speak Spanish at all), or because of their

16 disability. Criminals often assume people in the MPP have U.S. relatives who can be

17 extorted for large sums of money.

18

91. From November 2019 to January 2020, criminal organizations in the

19 Mexican state of Tamaulipas kidnapped at least 80 migrants and attempted to kidnap

20 an additional 19 people who were in the MPP.39 The organization Doctors Without

21 Borders reported that between June 2018 and July 2019, 45% of the 2,315 people

22 (migrant, asylum seekers, refugees, or returnees) treated by their mental health teams

23

24

36 Mario Mora Legaspi, Lamentan que Haya Discriminación Hacia Personas Invidentes, FUNDACIÓN ONCE AMÉRICA LATINA (Oct. 7, 2014),

25

https://www.foal.es/es/noticias/lamentan-que-haya-discriminaci%C3%B3nhacia-personas-invidentes.

26 37 U.S. DEP’T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2019:

MEXICO 25 (2019), https://www.state.gov/reports/2019-country-reports-on-human-

27

rights-practices/mexico/. 38 Id.

28 39 US: Investigate ‘Remain in Mexico’ Program, HUM. RTS. WATCH (June 2, 2020),

https://www.hrw.org/news/2020/06/02/us-investigate-remain-mexico-program.

19

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 in the Tamaulipas cities of Reynosa and Matamoros reported being victims of

2 violence while in Mexico.40

3

92. In line with these larger trends, Plaintiffs have suffered under the poor

4 health conditions, disability discrimination, and crime they experience in Mexico.

5 Many have ended up being hospitalized in Mexico or have had their conditions

6 deteriorate, resulting from lack of access to the medical care that would have kept

7 Plaintiffs healthy. For example, in January 2020, while Plaintiff D.Y.S. and his

8 mother were staying in a shelter in Matamoros as a result of Defendants actions, he

9 was sexually assaulted. D.Y.S.’s health deteriorated in the weeks following the

10 sexual assault: He began having seizures and was eventually hospitalized. Similarly,

11 Plaintiff S.M.A. and her mother ran out of medicine for S.M.A.’s brain disorder,

12 lissencephaly, after being sent to a makeshift migrant camp in Matamoros, Mexico.

13 Her mother had no way of replacing the medicine, resulting in S.M.A’s

14 hospitalization.

15

93. Apart from issues of crime and health, conditions in the camp lack the

16 basic safeguards to make life stable and secure for Plaintiffs and class members.

17

94. In addition to the above-mentioned risks, the COVID-19 pandemic has

18 made the situation for individuals with disabilities and medical conditions in the MPP

19 more dire. On July 17, 2020, DHS and DOJ postponed Section 240 proceedings for

20 people in the MPP until the completion of certain public health criteria, which caused

21 additional backlog in court proceedings.

22

95. Nonetheless, Defendants are still issuing new hearing dates for people

23 in the MPP. Plaintiffs who have been given updated court hearing dates have

24 attempted to prepare for their claims despite the limitations and lack of access noted

25 above, only to have the court dates postponed yet again each time. Each successive

26

27 40 US ‘Remain in Mexico’ Policy Endangers Lives of Asylum Seekers in Tamaulipas State, DOCTORS WITHOUT BORDERS (Sept. 5, 2019),
28 https://www.doctorswithoutborders.org/what-we-do/news-stories/news/us-remainmexico-policy-endangers-lives-asylum-seekers-tamaulipas.

20

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 postponement of Plaintiffs’ hearings does nothing to provide them with appropriate

2 accommodations to pursue their claim: Plaintiffs are forced to remain in the abysmal

3 conditions described in detail above in order to access even basic medical care and

4 humanitarian aid. If they leave and are forced to give up their space in a shelter or a

5 refugee camp, where access is restricted, some people risk losing access to even these

6 minimal protections of the tent camp or shelter.

7

96. In addition to the crime and poor health conditions that Plaintiffs have

8 experienced in Mexico, they now face another layer of threat due to COVID-19

9 exposure. The informal refugee camps force people to live within arm’s reach of

10 other tents. These overcrowded conditions are ripe for the spread of COVID-19.41

11 Named Plaintiffs and other similarly situated individuals have medical conditions

12 and/or disabilities that put them at high risk of serious, potentially life-threatening

13 outcomes from COVID-19.

14 C. The Named Plaintiffs’ Experiences

15 1., 2., & 3. E.A.R.R., G.S.E.R., and B.A.E.R.

16

97. Defendants forcibly sent E.A.R.R. and her two sons, G.S.E.R. and

17 B.A.E.R., to Mexicali, Mexico pursuant to the MPP.

18

98. E.A.R.R. is a person with disabilities: She has a pituitary tumor that

19 presses against her brain and causes severe headaches, dizziness, and fainting spells.

20 Doctors diagnosed the tumor about three years ago, but E.A.R.R. was unable to

21 undergo the necessary procedures to manage her condition. Her condition

22 substantially limits her ability to care for herself, think, concentrate, and work, and

23 impairs her neurological and brain functions.

24

99. E.A.R.R.’s son, G.S.E.R., is also a person with a disability: he has only

25 one functioning lung. This substantially impairs his respiratory and immune

26 functions. For example, when exposed to cold temperatures, he suffers from a severe

27 41 Ashoka Mukpo, Asylum Seekers Stranded in Mexico Face a New Danger: 28 COVID-19, ACLU (Mar. 26, 2020), https://www.aclu.org/news/immigrants-
rights/asylum-seekers-stranded-in-mexico-face-a-new-danger-covid-19/.

21

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 cough.

2

100. On or around May 17, 2019, Defendants apprehended E.A.R.R. and her

3 children and took them into custody. Defendants detained E.A.R.R. and her sons for

4 five days, including time in a hielera (a Spanish-language term immigrants use to

5 refer to certain border detention facilities).

6

101. Defendants knew about E.A.R.R.’s and G.S.E.R.’s physical health

7 conditions because these conditions worsened in the hielera. At the hielera, G.S.E.R.

8 developed a severe cough due to the cold temperature’s impact on his lung condition.

9 E.A.R.R. battled an incapacitating headache caused by her tumor. After making her

10 wait for several hours, Defendants’ guards gave her medication that alleviated some

11 of the pain.

12

102. On information and belief, sometime during the family’s detention,

13 Defendants placed E.A.R.R., G.S.E.R., and B.A.E.R. in the MPP. They did not

14 receive interviews or an opportunity to discuss their medical concerns about being

15 returned to Mexico. The family was never given a chance to understand the

16 determination, appeal the decision, or contact a lawyer. Instead, Defendants forcibly

17 sent them to Mexico.

18

103. Since being sent to Mexicali, E.A.R.R. and her sons have struggled.

19 E.A.R.R. is very worried about not being able to afford treatment if she or her sons

20 get ill. She has been unable to work as she has no-one to care for her sons and is

21 afraid for her and her sons’ safety.

22

104. Because of this stress and instability, E.A.R.R.’s headaches have

23 worsened: The pain now spreads down her arms and hands and she is barely able to

24 sleep due to the pain. She has dizzy spells that impair her ability to function.

25

105. Within the past couple of months, E.A.R.R. went to get medicine for her

26 headaches at a pharmacy. The medical personnel referred her to a specialist for

27 several tests. Based on her blood test, the specialist told her that, due to her pituitary

28 tumor, she had extremely high levels of the hormone prolactin in her blood—the

22

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 healthy level being around 20 nanograms per milliliter (ng/mL) and hers being

2 around 150 ng/mL. She had a follow-up appointment, but despite receiving medicine,

3 E.A.R.R.’s condition has not improved and suffers from severe headaches, pain in

4 both arms, and dizziness. She was told that she now needs surgery.

5

106. E.A.R.R. struggles to perform everyday tasks because of her severe

6 headaches and she is worried her family is even more vulnerable in Mexico because

7 of her medical condition. As she struggles due to her medical condition, she will be

8 unable to meaningfully participate in her and her sons’ removal proceedings. Her

9 severe headaches and difficulty sleeping impact her ability, on behalf of herself and

10 her children, to (i) focus on and understand what is asked of her to participate in

11 immigration proceedings on behalf of herself and her children; (ii) provide accurate,

12 relevant, helpful responses to questions in court or on necessary forms; and (iii)

13 collect and provide required information and documents.

14

107. E.A.R.R. is very worried that her son, G.S.E.R., will contract COVID-

15 19. She knows that he is more vulnerable due to his lung disorder.

16

108. As G.S.E.R. is thirteen years old and B.A.E.R. is twelve years old,

17 E.A.R.R. prepares their cases and presents their claims in conjunction with her own.

18 Because of this, E.A.R.R.’s disability significantly impedes her participation in her

19 immigration court proceedings, and E.A.R.R. must spend significant resources in

20 caring for G.S.E.R. due to his medical condition. As a result, although he does not

21 have a disability or medical condition, B.A.E.R. cannot receive proper assistance

22 from his mother in the preparation of his case.

23

109. When she appeared for a hearing, E.A.R.R. tried to tell the judge that

24 she and her son experience severe health issues and that they felt unsafe returning to

25 Mexico. The judge suggested E.A.R.R. talk with immigration officers about this, but

26 Defendants’ employees never gave her the chance to do so before forcibly sending

27 her back to Mexico.

28

110. E.A.R.R. and her children were denied relief in immigration court

23

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 proceedings and her case is now on petition for review before the Ninth Circuit Court

2 of Appeals. She and her children face obstacles along the appeal process as well.

3 4. L.Y.G.

4

111. Defendants forcibly sent L.Y.G. and her two children to Tijuana,

5 Mexico pursuant to the MPP.

6

112. L.Y.G. has multiple physical and mental disabilities and disorders: She

7 has hypertension (high blood pressure), hyperglycemia (high glucose levels),

8 scoliosis, kidney stones so severe that she needs surgery, Post-Traumatic Stress

9 Disorder (PTSD), and panic attacks. Four years ago, doctors diagnosed her with

10 scoliosis. On a daily basis, L.Y.G.’s scoliosis substantially impairs her ability to

11 walk, stand, lift, bend, and care for herself. Additionally, her chronic conditions—

12 hyperglycemia and hypertension—impairs her immune and circulatory function. Her

13 PTSD and panic attacks impair her ability to think, concentrate, and communicate.

14

113. Defendants detained L.Y.G. and her children in the in the hielera for

15 four days. Defendants were aware of L.Y.G.’s physical disabilities because they

16 performed a medical examination on her. In addition to her disabilities, Defendants’

17 medical staff diagnosed L.Y.G. with an additional physical health condition:

18 influenza. Every day, the officers brought L.Y.G. medicine, but she did not know

19 what type of medicine they were bringing her. L.Y.G. remembers having a fever and

20 her daughter telling her that her skin was hot to the touch.

21

114. Upon information and belief, Defendants decided to place L.Y.G. and

22 her family into the MPP. They did not receive interviews or an opportunity to discuss

23 their medical concerns about being returned to Mexico. The family was never given

24 a chance to understand the determination, appeal the decision, or contact a lawyer.

25 Instead, Defendants’ employees forcibly sent them to Mexico. Indeed, Defendants

26 sent L.Y.G. to Mexico even when she had not recovered fully from the flu. L.Y.G.

27 was not able to explain why she could not return to Mexico.

28

115. L.Y.G. has experienced numerous barriers to medical treatment. Since

24

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 March 2020, L.Y.G. has not been able to get free medications for her panic attacks;

2 therefore, she cannot manage her conditions. L.Y.G. is afraid to have surgery because

3 she has heard that her operation is serious and she is concerned about what will

4 happen to her children if she were to die.

5

116. Given L.Y.G.’s ongoing weakness and her mental health deterioration,

6 L.Y.G. struggles to participate fully in the family’s removal proceedings. Due to her

7 physical and mental health limitations, L.Y.G. is struggling for the survival of herself

8 and her children. She does not have the mental or physical ability to complete all

9 tasks necessary in between court hearings: preparing documents, compiling evidence,

10 and communicating with attorneys. Furthermore, the limitations posed by her

11 disabilities will prevent L.Y.G. from fully understanding and communicating at long

12 and exhausting removal proceedings.

13 5. H.A.H.G.

14

117. Defendants forcibly sent H.A.H.G. and his family to Tijuana, Mexico

15 pursuant to the MPP.

16

118. Due to a brutal physical attack, H.A.H.G. has permanent hearing loss,

17 an inguinal hernia, kidney cyst, and physical impairments. H.A.H.G. has severe,

18 chronic pain in his back, neck, head, and left eye. As a result, this pain causes

19 headaches, burning sensations around his eye, and inability to breathe well through

20 his nose, substantially impairing his respiratory functions and limiting his ability to

21 think, concentrate, and care for himself. H.A.H.G. has a dislocated disc in his spine

22 and struggles to move his left arm and leg, which impairs his ability to walk, lift,

23 bend, stand, and perform manual tasks. His disabilities are easily observable.

24

119. On or about on June 18, 2019, H.A.H.G. and his two sons were

25 apprehended. His wife entered the day before them on June 17, 2019, with their other

26 children. His wife and three of their children are currently in the United States, while

27 he and their two sons remain in Mexico.

28

120. Defendants detained H.A.H.G. and his sons in a hielera for four days.

25

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 Defendants were aware of H.A.H.G.’s disabilities. Upon arrival at the hielera,

2 H.A.H.G. asked to speak with a doctor and for medicine because he was experiencing

3 severe pain. H.A.H.G. repeatedly requested medical attention for his pain, but

4 Defendants repeatedly denied or ignored his requests. At one point, Defendants told

5 H.A.H.G. that only children were entitled to medical attention. H.A.H.G. struggled

6 to sleep because of the pain.

7

121. During his detention, H.A.H.G. was interviewed by Defendants’

8 employees. H.A.H.G. explained the attack and his resulting limitations, pointing to

9 places on his body where he had been injured.

10

122. Upon information and belief, Defendants decided to place H.A.H.G.

11 into the MPP. He was never given a chance to understand the determination, appeal

12 the decision, or contact a lawyer. Instead, Defendants forcibly sent him and his sons

13 to Mexico.

14

123. H.A.H.G. continues to endure severe pain from his disabilities. In

15 Mexico, there are many days where H.A.H.G. is unable to walk or do anything

16 because of the pain he is experiencing. Sometimes, he is unable to even put his foot

17 on the floor to get out of bed because he is in so much pain. H.A.H.G. has been taking

18 over-the-counter painkillers like ibuprofen for over two years, but the medication is

19 insufficient to address the resulting limitations. Doctors have told H.A.H.G. that he

20 needs a neurologist, a pain management specialist, a kidney specialist, and a spinal

21 column specialist to address his physical limitations—medical treatment unavailable

22 in Mexico.

23

124. Because H.A.H.G. is not a Mexican citizen, he faces barriers to access

24 health care in Mexico that prevent him from receiving such specialized medical

25 treatment. This makes it very hard for him to take care of his children and himself,

26 let alone work on their asylum case. He and his sons therefore face obstacles

27 preparing for and participating in their immigration proceedings because of

28 H.A.H.G.’s disability. His sons help him as much as they can, but they are too young

26

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 to prepare court filings, compile evidence, consult with attorneys, and represent the

2 family in removal proceedings.

3

125. H.A.H.G. struggles to complete ordinary, day-to-day tasks. Due to the

4 physical limitations, his lack of hearing aid, his headaches, and his chronic pain, he

5 believes his conditions will interfere with his ability to travel to court, sit through

6 hours of proceedings, understand the judge, and adequately present his family’s

7 asylum case. Furthermore, he finds it challenging to go to court, especially due to the

8 long wait involved in waiting for transportation to court hearings in MPP.

9 6. & 7. Y.J.C.E. and J.A.E.M.

10

126. Defendants forcibly sent a child with disabilities, Y.J.C.E., his mother

11 J.A.E.M., and the rest of his family to Mexicali, Mexico pursuant to the MPP.

12

127. Y.J.C.E. has a physical health condition: a heart murmur that causes

13 chest pain. This congenital heart defect substantially limits his respiratory function,

14 causing him to struggle to breathe at times. Y.J.C.E.’s heart veins are smaller than

15 normal, so doctors recommend that he needs to be under medical surveillance at all

16 times and cannot do any strenuous activities. Additionally, Y.J.C.E.’s immune

17 system is substantially impaired, meaning that he may not survive medical events

18 such as a fever, a cold, or COVID-19.

19

128. On or around October 26, 2019, Defendants took Y.J.C.E. and his

20 family into custody. The agents separated Y.J.C.E. and his father from J.A.E.M. and

21 sister.

22

129. Defendants detained Y.J.C.E. and his family for three days. Defendants

23 were aware of Y.J.C.E.’s medical condition. While detained, Y.J.C.E. was examined

24 by a doctor who told his mother, J.A.E.M., that her son had a heart murmur and that

25 his condition could worsen in the future. J.A.E.M. immediately grew concerned that

26 the hielera’s cold temperatures would worsen her son’s condition.

27

130. Defendants placed Y.J.C.E. into the MPP with his mother J.A.E.M, his

28 sister and his father. His parents were never given a chance to understand the

27

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 determination, appeal the decision, or contact a lawyer. Instead, Defendants’

2 employees forcibly sent them to Mexicali, Mexico in a small bus. Given the doctor’s

3 recent prognosis, his mother, J.A.E.M., was terrified for her son’s health.

4

131. J.A.E.M. and her husband struggle to care for him in Mexico. Their

5 housing will soon end, placing them at risk of becoming homeless. Y.J.C.E.’s

6 medical insurance has ended, so his mother worries that he will not be able to receive

7 adequate medical care for his condition. In particular, J.A.E.M. is worried that

8 Y.J.C.E. will be exposed to COVID-19 and she will not be able to afford a doctor

9 visit or the necessary medicine.

10

132. Y.J.C.E. and his family have had three immigration court hearings.

11 Their individual court proceeding was set for April 2020, but because of COVID-19,

12 it has been delayed and they have stayed much longer in Mexico.

13

133. Given their circumstances in Mexico and Y.J.C.E.’s need for constant

14 supervision, J.A.E.M. uses a substantial amount of time, energy, and focus to

15 concentrate on overcoming daily obstacles, such as ensuring Y.J.C.E. remains

16 healthy. Thus, it is difficult for J.A.E.M. to concentrate on preparing for their asylum

17 claim. This affects Y.J.C.E. who is a minor and relies on his parents to represent his

18 interests in court.

19 8. & 9. S.F.L. and C.J.M.L.

20

134. Defendants forcibly sent S.F.L. and her eight-year old son, C.J.M.L., to

21 Tijuana, Mexico pursuant to the MPP.

22

135. S.F.L. has multiple medical conditions: diabetes, cataracts, and severe

23 depression. Doctors diagnosed her diabetes fourteen years ago. This condition

24 substantially limits her ability to care for herself and sleep. For example, she wakes

25 up regularly at night when her blood sugar level drops dangerously low. When this

26 happens, S.F.L. is unable to help herself; instead, she relies on C.J.M.L. to bring her

27 food or something to drink to increase her blood sugar levels. S.F.L.’s cataracts are

28 a result of her diabetes. The cataracts impair her ability to see and cause pain in her

28

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 head, which limits her ability to read and think. She has had surgery but still has

2 vision problems. Lastly, her depression interferes with her ability to focus and care

3 for herself, causing her to have suicidal thoughts.

4

136. S.F.L.’s eight-year-old son, C.J.M.L., was born with a closed urethra,

5 which required surgery when he was just three months old. Although he needs

6 another surgery, he must first see an endocrinologist because he is also prone to low

7 blood sugar. S.F.L. already struggles due to her own health, and at times must rely

8 on her son. As a result, having to care for C.J.M.L. further aggravates S.F.L.’s

9 circumstances.

10

137. Defendants detained S.F.L. and her son. Defendants were aware of

11 S.F.L.’s disabilities because, on the third day in the hielera, S.F.L. told Defendants’

12 agents that she and her son were ill and informed the agents that she was diabetic and

13 that her son’s symptoms are likely indicative of low blood sugar. S.F.L. also informed

14 the agents that she had been told that C.J.M.L. needs to see a specialist related to his

15 blood sugar issues.

16

138. The agents took S.F.L. and her son to the hospital for a check-up. During

17 the check-up, S.F.L. told the doctor about her cataracts. The doctor then gave S.F.L.

18 diabetes medicine and sent her and C.J.M.L. back to the hielera.

19

139. On information and belief, around that time, Defendants placed S.F.L

20 and C.J.M.L. into the MPP. She was never given a chance to understand the

21 determination, appeal the decision, or contact a lawyer. Instead, Defendants forcibly

22 sent them to Mexico.

23

140. In Mexico, S.F.L. cannot access the food and medical care necessary to

24 manage her disabilities. S.F.L. is unable to afford to see the specialists she and

25 C.J.M.L. so desperately need in order to improve their health. The conditions have

26 worsened her depression. S.F.L. often struggles to find enough food to sustain them,

27 further exacerbating their low blood sugar issues.

28

141. At S.F.L.’s first court hearing in the United States, she informed the

29

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 judge that she needed emergency surgery for her eyes because her cataracts made it

2 increasingly difficult to see. The judge told S.F.L. that she needed to find an attorney

3 and to inform immigration officers. S.F.L. informed the officers but was still sent

4 back to Mexico.

5

142. S.F.L.’s limitations have already almost forced her and C.J.M.L. to lose

6 their immigration proceedings. In Mexico, S.F.L.’s eyesight rapidly degraded. After

7 she was nearly run over by a car, she became fearful for her life and for what would

8 happen to C.J.M.L. if she died. S.F.L. underwent emergency surgery. Because of

9 complications from this surgery, S.F.L. was forced to miss her last court date. She

10 was informed that the court terminated their case due to her absence. Their case was

11 appealed and remanded to the immigration court. However, due to her limitations,

12 S.F.L. still faces challenges to prepare for and attend her hearings with C.J.M.L. Her

13 cataracts, for example, may severely impede her ability to read, review, and present

14 documents in hearings that rely on written documents. Her depression can affect her

15 motivation and focus on preparation and participation.

16 10. & 11. Y.M.M. and J.C.M.M.

17

143. On or around March 27, 2020, Defendants forcibly sent Y.M.M. and her

18 daughter J.C.M.M. to Matamoros, Mexico under the MPP. They were then taken to

19 Tijuana, Baja California by the Mexican government.

20

144. Y.M.M. suffers from a trauma-related disorder consistent with PTSD.

21 Her condition substantially interferes with her ability to think, communicate, and care

22 for herself and for J.C.M.M. While trauma-related disorders are not visible to the eye,

23 Y.M.M. had an interview with an official, and her cognitive issues would become

24 apparent upon an interview with her. At the time of her detention in CBP custody,

25 Y.M.M. also had a severely infected foot that limited her ability to walk, of which

26 Defendants were also aware.

27

145. J.C.M.M. has epilepsy, a mild intellectual disability, severe asthma,

28 frequent urinary tract infections, and a bleeding condition for which she has

30

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 undergone testing due to the possibility that it is tumor-related. J.C.M.M.’s medical

2 conditions substantially interfere with her cognitive abilities and her awareness and

3 physical safety, as well as her bladder and immune functions. As she suffered a

4 seizure in detention, her epilepsy was or should have been open and obvious to

5 Defendants. J.C.M.M.’s uncontrolled asthma was or should have been also open and

6 obvious to Defendants, as the asthma attack she suffered in their custody caused her

7 to appear purple all over at times when she was in detention.

8

146. Defendants detained Y.M.M. and J.C.M.M. Defendants knew about

9 their medical conditions. While detained, Y.M.M. asked Defendants’ for medical

10 help for J.C.M.M.

11

147. Defendants decided to place Y.M.M. and J.C.M.M. into the MPP. They

12 were never given a chance to understand the determination, appeal the decision, or

13 contact a lawyer. Instead, Defendants’ employees forcibly sent them to Mexico.

14

148. The conditions in Mexico have exacerbated the limitations arising from

15 both Y.M.M.’s and J.C.M.M.’s medical conditions. J.C.M.M. requires significant

16 medical care, chiefly for her epilepsy and intellectual impairment, as well as for her

17 urinary condition. Due to the strain of trying to find the medical care that J.C.M.M.

18 needs and the stress of the conditions in which they are living, Y.M.M.’s mental

19 health condition has deteriorated, affecting her ability to think, concentrate, focus,

20 and communicate. Y.M.M. has a traumatic disorder that is being diagnosed, which

21 causes her to experience scattered thinking. These limitations mean that Y.M.M. is

22 struggling to understand and prepare for her immigration case.

23

149. Furthermore, as Defendants placed them into separate removal

24 proceedings, J.C.M.M., as a six-year old with uncontrolled epilepsy and asthma, will

25 likely be forced to attend any hearing alone, without the support of Y.M.M.

26 J.C.M.M.’s seizure condition is currently poorly controlled, creating a risk that she

27 will have a seizure while waiting for a hearing, on the way to a hearing, or during a

28 hearing. This would preclude meaningful participation in their case and puts

31

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 J.C.M.M.’s health in grave danger.

2 12. G.F.F.

3

150. Since around July 2019, Defendants have forcibly kept G.F.F., a thirty-

4 eight-year-old man, in Tijuana, Mexico under the MPP.

5

151. G.F.F. is a victim of torture, which occurred while in his home country.

6 He has been diagnosed with depression and suffers from insomnia and traumatic

7 nightmares. These conditions significantly impair his ability to think, concentrate,

8 and sleep.

9

152. In or around July 2019, Defendants detained G.F.F. His initial detention

10 by Defendants resurfaced the trauma of his past torture.

11

153. Defendants placed G.F.F. into the MPP. He was never given a chance

12 to understand the determination, appeal the decision, or contact a lawyer.

13

154. G.F.F. attended one court hearing for his immigration case. For his

14 following hearing, he was not given special transport instructions needed to be

15 transported to his hearing, so he was not allowed to enter the United States to attend

16 court. In his absence, he was ordered removed. This led to his detention by Mexican

17 authorities.

18

155. On or around February 25, 2020, G.F.F. was re-detained by Mexican

19 officials and held for about twenty-five days. Because he had been tortured in

20 detention by his home country’s government, this experience again traumatized him.

21 He asked to see a physician and tried to show his documentation for his prescriptions

22 and diagnoses unsuccessfully. G.F.F. was seen by a physician only towards the end

23 of his detention, around the twenty-third or twenty-fourth day of detention. The

24 physician referred him to a psychiatrist, but G.F.F. was released before he could see

25 a psychiatrist in detention.

26

156. G.F.F.’s disability, known to the Defendants, prevents him from

27 meaningfully participating in his immigration proceedings because the trauma of his

28 torture in detention by government officials is aggravated by the repeated detention

32

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 and interaction with CBP officers that the MPP court involves.

2 13. M.Y.J.L.

3

157. Since on or around March 13, 2020, Defendants have forcibly kept

4 M.Y.J.L., a thirty-four-year-old woman, in Tijuana, Mexico, with her husband under

5 the MPP.

6

158. She suffers from fibroids and endometriosis. Her fibroids and

7 endometriosis cause her debilitating pain and protracted menstrual bleeding. Her

8 condition is worsening and, in transit to the border with the United States, Mexican

9 agency workers referred her to specialist care. However, she has not been able to

10 pursue this or obtain the care that she needs.

11

159. On or around March 13, 2020, M.Y.J.L. and her husband were detained

12 by the Defendants. M.Y.J.L., who is only fluent in Spanish, tried to make Defendants

13 aware of her disability but Defendant did not provide a Spanish-fluent agent nor an

14 interpreter. Defendants did not otherwise seek to engage meaningfully with M.Y.J.L.

15 in discussing her disability.

16

160. Defendants placed M.Y.J.L. into the MPP. She was never given a

17 chance to understand the determination, appeal the decision, or contact a lawyer.

18 Nevertheless, Defendants forcibly returned M.Y.J.L. and her husband to Mexico.

19

161. M.Y.J.L. has been unable to obtain the care she needs since she was

20 placed in MPP and her condition is getting worse. The protracted bleeding makes her

21 feel weak and her pain is debilitating and worsening. This pain is such that it would

22 prevent her from being able to prepare for her hearings or participate in them while

23 she is suffering such pain. Her weakness from her bleeding prevents her from being

24 able to take the steps she needs to prepare for her hearings or proceedings or take

25 steps in her case at times that she is not feeling pain.

26

14. M.M.G.

27

162. Since on or about September 26, 2019, Defendants have forced M.M.G.

28 and his mother, father, and sister, to remain in Mexico under the MPP.

33

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1

163. Plaintiff M.M.G. is a 16-year-old boy, suffering from a brain injury

2 following surgery to reconstruct a brain blood vessel. He experiences painful

3 headaches, impaired memory, and confusion. M.M.G.’s brain injury significantly

4 impairs his ability to think, communicate, and focus as well as his brain functions.

5

164. On or around September 19, 2019, Defendants took him and his family,

6 his mother, father, and sister, into detention. While in detention, his mother, V.A.G.,

7 notified Defendants of M.M.G.’s brain condition and his need for medical care.

8

165. Defendants placed M.M.G. and his family into the MPP. They were

9 never given a chance to understand the determination, appeal the decision, or contact

10 a lawyer. Defendants forcibly returned the family to Mexico.

11

166. M.M.G. may be sixteen-years old, but his family has to watch him

12 closely due to his condition: he is easily confused, experiences headaches, and has

13 memory problems. Caring for M.M.G. in MPP takes up much of the family’s time

14 and attention, making it difficult to concentrate on his, and their own, claims before

15 the immigration court.

16 15. D.Y.S.

17

167. Since November 2019, Defendants have forcibly kept D.Y.S., a nine-

18 year-old indigenous child, and his mother, M.S.S., in the MPP in Matamoros,

19 Mexico.

20

168. D.Y.S. has three long-diagnosed disabilities: epilepsy, autism spectrum

21 disorder, and hyperactivity. D.Y.S.’s disabilities substantially impair his ability to

22 learn, and he depends heavily on his mother even for daily life tasks. D.Y.S. needs

23 M.S.S.’s support to care for himself and eat. These disabilities also severely affect

24 D.Y.S.’s immune system. His disabilities are documented and easily observable.

25

169. Defendants took M.S.S. and D.Y.S. into custody sometime in August

26 2019. Defendants were aware of D.Y.S.’s disability. While in CBP custody, M.S.S.

27 told CBP agents that D.Y.S. had a medical condition and that he needed medicine.

28 She provided medical documentation that explained D.Y.S.’s diagnosed disabilities

34

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1 and resulting medical needs.

2

170. Instead of providing medical assistance, CBP agents said that D.Y.S.

3 was “special” and instructed other people not to touch him. While detained in the

4 hielera and without adequate care, D.Y.S.’s health rapidly deteriorated so that D.Y.S.

5 had a severe seizure and had to be hospitalized. Nevertheless, agents returned D.Y.S.

6 to the same conditions that caused his hospitalization and failed to provide

7 medication as directed by doctors.

8

171. Prior to returning them to Mexico, an officer interviewed M.S.S. over

9 the telephone. She discussed her fear of returning to Mexico and D.Y.S.’s medical

10 conditions. Despite medical documentation, the officer refused to believe that D.Y.S.

11 had medical conditions. On or around the time of this interview, officials decided to

12 place M.S.S. and D.Y.S. in the MPP and return them to Mexico. M.S.S. was never

13 given a chance to understand the determination, appeal the decision, or contact a

14 lawyer.

15

172. Upon seeing the bridge, M.S.S. frantically begged the officers not to

16 return her, saying that she was afraid to go to Mexico, especially due to the violence

17 and D.Y.S.’s recent hospitalization and poor health. Despite this, agents forcibly sent

18 M.S.S. and D.Y.S. to Mexico pursuant to the MPP.

19

173. On the day after their first immigration court hearing, D.Y.S. was again

20 hospitalized. The doctors gave D.Y.S. some medicine and released him. Soon after

21 his release, M.S.S. approached the international bridge and asked CBP to re-assess

22 their placement in the MPP. D.Y.S. was weak from his hospitalization and needed

23 help walking. Without providing paperwork or a reason for the decision, the agent

24 told M.S.S. that D.Y.S. was fine, implying that the agent was refusing the request for

25 redetermination. The agent never informed M.S.S. or D.Y.S. about any right to

26 appeal the determination.

27

174. M.S.S. and D.Y.S., along with an attorney, made two additional

28 attempts to request parole but were denied in the same manner: without a record of

35

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 the denial or any information about the reason for the denial or appeals process.

2

175. D.Y.S.’s limitations affect M.S.S.’s ability to prepare for their

3 immigration hearing. The medical support that D.Y.S. needs for any type of stability

4 is completely out of reach while M.S.S. and D.Y.S. are in the MPP. Without stability,

5 M.S.S. must constantly attend to D.Y.S.’s health and safety; she has no time or

6 resources to work on their asylum case. Despite M.S.S.’s best efforts, every day poses

7 risks to D.Y.S.’s health.

8

176. D.Y.S.’s limitations impact M.S.S.’s ability to participate in their

9 immigration hearings. At the tent court, Defendants employees or subcontractors

10 refuse to take care of D.Y.S. due to his disability, telling M.S.S. that she had best

11 keep him. Defendants’ employees do not make accommodations for food appropriate

12 for D.Y.S.’s dietary needs, causing D.Y.S. to further struggle. During court hearings,

13 M.S.S. must pay attention to managing D.Y.S. while trying to answer the judge,

14 which can cause her to struggle to speak with the judge and makes her feel flustered.

15 16. S.M.A.

16

177. Defendants forcibly returned a child with disabilities, S.M.A., and her

17 mother to Matamoros, Mexico pursuant to the MPP.

18

178. S.M.A. has lissencephaly, a condition caused by the brain’s failing to

19 develop normal deep grooves and ridges, which means that she will likely live to be

20 only ten years old. As a result, S.M.A. has seizures and is severely developmentally

21 impaired. This disability substantially impairs major life activities, such as caring for

22 herself, eating, speaking, learning, concentrating, and communicating. Her disability

23 affects major bodily functions such as bowel and bladder functions, as well as

24 neurological, brain, and respiratory functions. S.M.A.’s mother, K.A.M., provides

25 S.M.A. with constant assistance and care.

26

179. On or about August 2019, S.M.A. and her mother K.A.M. were

27 apprehended by Defendants, who sent them to a hielera.

28

180. Defendants are aware of S.M.A.’s disability. Immediately after being

36

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 apprehended, K.A.M. told CBP agents about S.M.A.’s disability and need for

2 medication, showing them her medical documentation and medication. At that time,

3 CBP refused to provide S.M.A. with the necessary medical care or treatment.

4

181. While at the hielera, K.A.M. repeatedly told Defendants about S.M.A.’s

5 condition and need for medication. Although Defendants finally brought medicine,

6 K.A.M. later discovered that agents were providing medication to S.M.A. were not

7 in accordance with the medical documentation and inappropriate for S.M.A.’s

8 condition. In these conditions, S.M.A.’s health deteriorated.

9

182. Although aware of S.M.A.’s disability, Defendants placed K.A.M. and

10 her daughter to the MPP. On information and belief, Defendants never asked, or in

11 any way investigated, if K.A.M. or her daughter were afraid to be sent to Mexico.

12

183. Defendants provided no notice of decision, opportunity to appeal the

13 decision, or chance to speak with a lawyer. Indeed, K.A.M. did not realize she and

14 her daughter were being sent to Mexico until the bus arrived at the Brownsville-

15 Matamoros bridge. K.A.M. repeatedly explained to CBP officers about S.M.A.’s

16 conditions and the need for proper medication and their fear of Mexico. Instead of

17 providing any process for appeal, or re-determination, the CBP officers answered that

18 they did not care and that K.A.M. and S.M.A. were not welcome in the United States.

19

184. While living in Mexico under the MPP, S.M.A.’s health has further

20 deteriorated, causing her be hospitalized. K.A.M. often cannot obtain S.M.A.’s

21 necessary medications on time or, sometimes, at all. Due to S.M.A.’s medical

22 conditions, K.A.M. does not believe her daughter would survive contracting COVID-

23 19.

24

185. CBP agents refused to re-evaluate S.M.A.’s placement in the MPP.

25 K.A.M. and S.M.A. have gone twice to the Brownsville-Matamoros Bridge with

26 documentation of S.M.A.’s medical condition. Although they waited hours each time

27 for a decision, Defendants’ employees returned them without providing notice or a

28 rationale for the decision or an opportunity to appeal the decision.

37

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1

186. Due to S.M.A.’s need for care in the conditions of Matamoros, K.A.M.

2 has struggled to prepare for their immigration proceedings. She cannot leave S.M.A.

3 alone and must continuously worry about S.M.A.’s medication. This interferes with

4 K.A.M.’s time and focus to work on their immigration case, like focusing on tasks

5 such as compiling evidence, completing paperwork, and consulting with her attorney.

6

187. S.M.A.’s disability has severely impacted K.A.M.’s ability to

7 participate in their immigration proceedings. As K.A.M. cannot find anyone who can

8 properly care for S.M.A. due to her disabilities, K.A.M. has had to take S.M.A. to

9 their immigration court hearing all three times. When K.A.M. tries to speak with the

10 judge, S.M.A. yells, tries to get up, or talks about random things, including to the

11 judge, distracting K.A.M. and the judge. During the most recent hearing, S.M.A. had

12 a seizure as they waited for the court. Right after S.M.A. regained consciousness,

13 K.A.M. was forced to enter the room for her immigration hearing. She was so worried

14 about S.M.A. that she could not answer the judge’s questions.

15 17 & 18. D.G.M. and N.R.R.

16

188. Defendants forcibly sent D.G.M. and his family, including wife N.R.R.,

17 to Matamoros, Mexico pursuant to the MPP.

18

189. D.G.M. has two heart conditions, including hypertension and a growth

19 on his heart. D.G.M.’s medical conditions cause extreme spikes in his blood pressure

20 that sometimes require hospitalization. These conditions substantially limit major life

21 activities, such as breathing, performing manual tasks, and working, and major bodily

22 functions, such as respiratory and circulatory functions.

23

190. On July 26, 2019, Defendants took D.G.M. and his family into custody.

24

191. Defendants knew of D.G.M.’s disability because he was hospitalized in

25 custody when his blood pressure spiked dangerously high on July 27, 2019.

26

192. Despite D.G.M.’s disability, Defendants subjected D.G.M. and his

27 family in the MPP. When he came back from the hospital, Defendants’ employees

28 handed D.G.M. and his family documents in English, even though no one in

38

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 D.G.M.’s family is able to read or speak English. Defendants did not read or explain

2 the paperwork or the family’s rights. Instead, without explanation, they demanded

3 that the family sign the documents.

4

193. D.G.M. pleaded with the agents that he could not go back to Mexico due

5 to his health issues. Instead of providing a process for appeal, or re-determination,

6 the agents returned D.G.M. and his family to Mexico.

7

194. In the MPP, D.G.M.’s health continues to worsen. He now regularly has

8 dangerously elevated blood pressure and difficulty breathing. D.G.M. has needed

9 medical attention multiple times. On one occasion, the entire left side of his body

10 went numb and he fainted; nevertheless, the hospital refused to treat him. Given his

11 current heart issues, his doctor has informed D.G.M. that his health is at greater risk

12 of severe complications and possible death from COVID-19.

13

195. D.G.M.’s heart conditions interfere with his ability to prepare for his

14 immigration case. Due to the severity of his impairments and limits of treatment, he

15 must monitor and care for his health. Therefore, he cannot devote sufficient efforts

16 to such matters such as gathering information, compiling evidence, filling out

17 documents, and consulting with attorneys.

18

196. D.G.M.’s heart conditions interfere with his ability to participate in his

19 immigration case. While in the MPP, D.G.M. and his family have attended five

20 immigration hearings. Each time they attend court, a doctor checks the blood pressure

21 of each family member. D.G.M. often has chest pains on days he has a hearing. The

22 doctor informs D.G.M. each time that, if his blood pressure is too high, he will not

23 be permitted to attend the hearing, and his court hearing will be rescheduled for a

24 later date. As D.G.M.’s health worsens, the chances increase that he will have high

25 blood pressure on a court date and be forced to wait for months longer for the next

26 stage in his proceedings.

27

197. N.R.R. is impacted by her husband’s disability. She must devote time

28 and energy to caring for D.G.M.’s deteriorating health, leaving her with little time or

39

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 energy to prepare the entire family’s immigration claims. Furthermore, every time

2 they attend court, N.R.R. worries both about her husband’s health and that the

3 family’s hearing will be re-set due to D.G.M.’s conditions. This distracts her from

4 meaningfully participating in the proceedings.

5 19 & 20. H.H.M. and E.H.M.

6

198. Defendants forcibly sent H.H.M., his older sister E.H.M., and his niece

7 to Matamoros, Mexico pursuant to the MPP.

8

199. H.H.M. is a twenty-year-old individual who is Deaf. H.H.M. does not

9 know standard sign language, but communicates in “home sign,” meaning a sign

10 language that he and E.H.M. have developed together. As a result, H.H.M. relies

11 entirely on his sister to translate what other people say to him and to relay his thoughts

12 to other hearing people. H.H.M. is therefore substantially limited in his ability to

13 communicate. H.H.M.’s Deafness is apparent to anyone who interacts with him.

14

200. On or around March 17, 2020, H.H.M., his sister and niece were taken

15 into custody by Defendants.

16

201. Defendants knew of H.H.M.’s disability. As they were being taken into

17 custody, one of the agents asked E.H.M. why H.H.M. came to the United States if he

18 could not communicate with anyone.

19

202. At the hielera, agents separated H.H.M. from E.H.M—the only person

20 with whom he could communicate. E.H.M. explained three times to officers that

21 H.H.M. could not hear or speak and that she was the only person that could

22 communicate with him. One agent responded that, if that was the case, H.H.M.

23 should not have come to the United States, effectively denying E.H.M.’s request for

24 an accommodation. Instead, federal officials kept H.H.M. separated from the sole

25 person with whom he could communicate for days. E.H.M. was extremely worried

26 about her brother the entire time that she was detained.

27

203. After about two days, agents decided to place E.H.M. and her daughter,

28 H.H.M.’s niece in the MPP and return them to Mexico. They never permitted H.H.M.

40

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 to see his sister or communicate about what was happening prior to forcibly returning

2 E.H.M. to Mexico. E.H.M. was never given an interview or a notification that she

3 had been placed in MPP, let alone a chance to appeal.

4

204. Although Defendants knew H.H.M. was deaf, they never provided an

5 interpreter and did not inquire if he had any needs that he could not verbally

6 communicate to them. They never even permitted E.H.M. to be present or translate

7 in any interview.

8

205. On information and belief, without using an interpreter to determine

9 H.H.M.’s fears about return to his home country or Mexico, Defendants decided to

10 place H.H.M. in the MPP and forcibly returned him to Mexico. Defendants never

11 provided chance to understand the determination, appeal the decision, or contact a

12 lawyer.

13

206. E.H.M. was also forcibly returned to MPP, and was able to find and

14 reunite with H.H.M. because she repeatedly spoke with Mexican immigration

15 officers to see if he had been returned. She found out that H.H.M. had initially been

16 bused to southern Mexico, hours by bus from where E.H.M. was forced to stay. Only

17 after the intervention of private Mexican citizens, the two were able to reunite.

18

207. H.H.M. cannot effectively prepare for his immigration proceedings in

19 Matamoros, Mexico. H.H.M. is overwhelmed, stressed, and worried about the

20 dangers and difficulties posed by his disability in Matamoros, ranging from difficulty

21 communicating with aid providers to high risk of being kidnapped. H.H.M. worries

22 that, if anything were to happen to E.H.M., he would be unable to communicate with

23 the world. If H.H.M. were kidnapped—a common occurrence for those Defendant

24 has returned to Mexico—he would not be able to provide even basic information to

25 possible kidnappers for his ransom. Especially with the risks of COVID-19, without

26 E.H.M., H.H.M. will struggle to communicate if he has any medical issues. As his

27 time and energy is focused on survival, he is not able to adequately focus on tasks

28 such as collecting information and preparing documents.

41

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1

208. After seven months, H.H.M. has not yet had a first immigration court

2 hearing. However, his case is separate from that of his sister. There is no indication

3 that Defendants will provide an interpreter or other effective form of communication

4 as part of that hearing, at the bridge, or in any interactions while he is present in the

5 United States for court. Absent such assistance, H.H.M. will not be able to

6 meaningfully participate in his court hearings and will be denied the opportunity to

7 communicate his fears of returning to his home country or remaining in Mexico.

8

209. E.H.M. is constantly worried about her brother. She must constantly stay

9 close to H.H.M. to ensure that he is not attacked or otherwise harmed. In order for

10 him to communicate with anyone, even the humanitarian organizations, she must be

11 present to translate for him. E.H.M. has spent most of her time and energy ensuring

12 that H.H.M. and her child are safe and cared for. She has tried to help with her

13 brother’s immigration case, but she is unsure whether she will be able to attend his

14 hearing to translate. Due to the energy that she spends on her brother’s care and case,

15 E.H.M. does not have sufficient time or energy to prepare for her own case.

16 21. C.J.V.C.

17

210. Defendants forcibly sent a child with disabilities, C.J.V.C, and his

18 mother, to Matamoros, Mexico pursuant to the MPP.

19

211. At thirteen-years old, C.J.V.C. was in a major accident and doctors had

20 to amputate his left leg above the knee. As a result, C.J.V.C.’s mobility impairment

21 substantially limits his ability to perform major life activities, including caring for

22 himself, performing manual tasks, walking, standing, lifting, and bending.

23

212. In September 2019, Defendants took C.J.V.C. and his mother. M.C.,

24 into custody.

25

213. Defendants detained them in a hielera for about a week. Defendants

26 knew about C.J.V.C.’S disability because M.C. made multiple requests that agents

27 provide C.J.V.C. with medical attention due to pain associated with his amputation.

28 However, agents refused to provide him with any assistance.

42

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1

214. Despite C.J.V.C.’s disability, Defendants placed C.J.V.C. and M.C. in

2 the MPP. Neither received interviews. They were never given a chance to understand

3 the determination, appeal the decision, or contact a lawyer. Indeed, neither knew that

4 they would be returned to Mexico until Defendants’ employees walked them up to

5 the bridge to Mexico.

6

215. Since CBP agents sent them to Mexico, C.J.V.C. and M.C. are forced to

7 live in a crowded shelter with limited access to sufficient food and resources.

8

216. C.J.V.C.’s mobility impairments also impact he and his mother’s ability

9 to prepare for immigration hearings. For example, C.V.J.C. and M.C. depend on a

10 volunteer lawyer to prepare their case. However, the only lawyer they can find does

11 not have accessible facilities. Therefore, it is difficult for C.V.J.C. to be in a private

12 space to privately consult with the attorney.

13

217. C.J.V.C.’s mobility impairments also impact their ability to participate

14 in immigration hearings. It is difficult for C.J.V.C. to travel to hearings. As his only

15 set of crutches are currently broken, M.C. is unsure how they will even make it to

16 court hearings. They have attended court hearings twice in a makeshift tent court. It

17 is dangerous for C.J.V.C. to maneuver the court in his crutches due to uneven floors

18 and inclines. Therefore, M.C. arrives at the hearing only after spending the entire trip

19 worrying about whether her son will be hurt because the trip to and the hearing rooms

20 themselves are inaccessible for him. In one hearing, after expressing her concern for

21 her son, M.C. has broken down crying when trying to discuss her son’s disability

22 with the judge, which interferes with her ability to discuss her case.

23 22. La.V.S.O.

24

218. Defendants forcibly sent La.V.S.O., a child with disabilities, and her

25 family to Ciudad Juarez, Mexico pursuant to the MPP.

26

219. La.V.S.O. has congenital hydrocephalus, which causes a build-up of

27 fluid around her brain and spinal cord and requires continuous, specialized medical

28 treatment. This condition causes her to have to seizures, developmental delay, and

43

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 brain damage. These impairments substantially limit major life functions, such as

2 caring for herself and thinking, and major bodily functions, including neurological

3 and brain functions.

4

220. In February 2020, Defendants took La.V.S.O., her mother, and her

5 siblings into custody.

6

221. Defendants were aware of La.V.S.O.’s disabilities, as her mother,

7 A.A.F.S.O. repeatedly attempted to show La.V.S.O.’s medical documentation to

8 Defendants. Defendants’ medical personnel also diagnosed La.V.S.O.’s condition. A

9 doctor placed a bracelet on her showing that she had a special condition. Defendants’

10 agents saw the bracelet and made A.A.F.S.O. remove the medical bracelet. CBP

11 agents knew La.V.S.O. needed medication but threw away both the prescriptions and

12 the medications.

13

222. On information or belief, around this time, Defendants decided to place

14 La.V.S.O. and her family in the MPP. They did not receive interviews. The family

15 was never given a chance to understand the determination, appeal the decision, or

16 contact a lawyer.

17

223. Instead, after a few weeks in the hielera, agents placed the family on a

18 bus. Once boarded, agents told the family that they were going to be sent back to

19 Mexico. They were not given an opportunity to explain why they could not return to

20 Mexico.

21

224. La.V.S.O. and her family have twice approached the international

22 bridge in Juarez to try to explain to agents that they cannot be in Mexico. On one

23 occasion, a doctor at the bridge examined La.V.S.O. and determined that she required

24 special medical treatment. Officers still sent the family back to Mexico. Due to their

25 treatment, the children have become so scared of the immigration officers, causing

26 them to beg A.A.F.S.O. not to go to the bridge.

27

225. A.A.F.S.O. is forced to live with her children in a crowded shelter with

28 little in the way of precautionary measures to prevent the spread of coronavirus,

44

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 including to La.V.S.O., who could face dire consequences if infected. Without a

2 support system in Mexico, and due to La.V.S.O.’s medical condition, A.A.F.S.O.

3 must spend a significant amount of time watching over La.V.S.O. and her siblings.

4 A.A.F.S.O. reports that she must keep constant watch over La.V.S.O. for fear that

5 she will fall due to issues with her coordination caused by her brain condition.

6 A.A.F.S.O. is left with little time or energy to focus on activities such as reviewing

7 documents or consulting with her attorney, making her unable to properly prepare for

8 the entire family’s immigration case.

9 23. Plaintiff Al Otro Lado

10

226. Al Otro Lado is a binational immigrants’ rights advocacy nonprofit

11 organization. Al Otro Lado provides legal orientation and other services to large

12 numbers of migrants at the border between the United States and Mexico, including

13 individuals with disabilities subjected to the MPP. Al Otro Lado advocates for such

14 disabled individuals by giving them legal orientation and, in certain cases, direct

15 representation, as well as by making parole requests on their behalf or otherwise

16 advocating for them to be taken out of the MPP and paroled into the United States.

17 Al Otro Lado was incorporated at 4843 Slauson Ave., Maywood, California 90270-

18 3018, and has offices in Los Angeles, San Diego, and Tijuana.

19

227. The Defendants’ actions in failing to follow the law and their own

20 internal guidelines to exempt the Plaintiffs and their families from MPP has diverted

21 the organization’s time and resources. Al Otro Lado has needed to engage workers

22 to assist with social care and provide special assistance for particularly vulnerable

23 individuals who often face more problems in their immigration proceedings because

24 of their vulnerability, whether it is due to inability to obtain or prepare documents, or

25 a higher likelihood of being kidnapped or missing court hearings. This means that Al

26 Otro Lado’s ability to carry out its organizational mission to provide assistance to

27 indigent individuals on both sides of the border between Mexico and the United

28 States is undermined by Defendants’ placing avoidable obstacles in their path,

45

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 limiting the amount of time and resources that could otherwise go to serving a wider

2 population better and with more services.

3

V. CLASS ALLEGATIONS

4

228. The named Plaintiffs seek certification pursuant to Rule 23(b)(2) of the

5 Federal Rules of Civil Procedure of the following three classes:

6

The “Accardi class,” consisting of all people (1) who have been or will be

7

placed in the Migrant Protection Protocols program, and (2) who have known physical or mental health issues for purposes of the Physical/Mental Health

8

Exclusion;

9

The “Section 504 class,” consisting of all qualified people with a disability under the Rehabilitation Act who have been, or will be, denied meaningful

10

participation in Section 240 proceedings, properly initiated or not, because they are placed in the MPP; and

11

The “Family Member class,” consisting of the members of the family unit of

12

each Section 504 class member, who are also seeking admission from CBP and who are placed in Section 240 proceedings, properly initiated or not.

13

229. All three putative classes seek certification of claims for declaratory

14 relief and injunctive relief.

15

230. Named Plaintiffs E.A.R.R., G.S.E.R., L.Y.G., H.A.H.G., Y.J.C.E.,

16 S.F.L., C.J.M.L., Y.M.M., J.C.M.M., G.F.F., M.Y.J.L., M.M.G., D.Y.S., S.M.A.,

17 D.G.M., H.H.M., C.J.V.C., La.V.S.O. are representatives of the Accardi and Section

18 504 classes (the “Accardi/Section 504 class representatives”) and Named Plaintiffs

19 B.A.E.R., J.A.E.M., N.R.R., and E.H.M. are representatives of the Family Member

20 class (the “Family Member class representatives”).

21

231. The Accardi class, the Section 504 class, and the Family Member class

22 are each so numerous that joinder of all members is impracticable. The exact number

23 of people with disabilities or physical and mental health issues who have, or will be,

24 returned to Mexico pursuant to the MPP is unknown because Defendants do not

25 adequately screen and track such individuals with disabilities. Based on estimates

26 from service organizations that assist asylum-seekers along the U.S.-Mexico border,

27 Plaintiffs reasonably believe there are at least hundreds of individuals in the classes.

28 Plaintiff Al Otro Lado alone currently serves more than forty individuals who are

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CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 themselves disabled or seriously ill, approximately, and more than twenty individuals

2 who are family members or care for disabled or seriously ill individuals.

3

232. Other factors establish the numerosity requirement, including that the

4 classes consist of numerous individuals who are geographically diverse and who are

5 unlikely to be able to bring individual suits, and that the classes include future,

6 unknowable class members.

7

233. There are questions of law and fact common to the members of the

8 Accardi Class. Such questions include, but are not limited to:

9

a. Whether Defendants have a policy the Physical/Mental Health

10

Exclusion pursuant to which people with known physical or mental

11

health issues are supposed to be excluded from the MPP and not

12

returned to Mexico;

13

b. What mechanisms, if any, Defendants have in place to ensure that the

14

Physical/Mental Health Exclusion is carried out on the ground;

15

c. Whether people with known physical or mental health issues have been

16

returned to Mexico pursuant to the MPP notwithstanding the

17

Physical/Mental Health Exclusion;

18

d. If so, whether this violates the Accardi doctrine; and

19

e. Whether, if members of the Accardi class prevail on their claim, the

20

relief should include requiring Defendants to admit members of the

21

family unit of each class member pursuant to the Family Unit Policy and

22

relevant injunctions.

23

234. There are questions of law and fact common to the members of the

24 Section 504 class. These questions include, but are not limited to:

25

a. Whether Section 240 proceedings constitute a program or activity of the

26

federal government;

27

b. Whether Section 504 obligates Defendants to put in place practices and

28

procedures to identify members of the Section 504 class, and to assess

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CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1

those people as to the need for accommodations in order to meaningfully

2

participate in Section 240 proceedings;

3

c. Whether placing members of the Section 504 class in the MPP, and

4

returning them to Mexico, violates DHS regulations by affording such

5

class members an opportunity to participate in or benefit from Section

6

240 proceedings that is not equal to that afforded to others;

7

d. Whether placing members of the Section 504 class in the MPP, and

8

returning them to Mexico, violates DHS regulations by providing those

9

class members with a benefit or service that is not as effective in

10

affording equal opportunity to obtain the same result as that provided to

11

others;

12

e. Whether Defendants violate DHS regulations by utilizing criteria or

13

methods of administration the purpose or effect of which is to subject

14

members of the Section 504 class to discrimination, or that defeat or

15

substantially impair accomplishment of the objectives of Section 240

16

proceedings;

17

f. Whether placing members of the Section 504 class in the MPP and

18

returning them to Mexico denies them meaningful participation in

19

Section 240 proceedings; and

20

g. Whether excluding people with disabilities from the MPP, which would

21

be in keeping with Defendants’ Physical/Mental Health Exclusion,

22

constitutes a reasonable accommodation.

23

235. There are questions of law and fact common to the members of the

24 Family Member Class. Such questions include, but are not limited to:

25

a. Whether people with an association to a person with a disability, and

26

who are injured based on discrimination against that person with a

27

disability, have a claim under the Rehabilitation Act;

28

b. Whether family members have been injured based on their association

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CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1

with members of the Section 504 class; and

2

c. If so, what is the appropriate relief.

3

236. Defendants are expected to raise common defenses to the claims of each

4 class, including denying that their actions violate the law.

5

237. The claims of the Accardi/Section 504 class representatives are typical

6 of those of the Accardi Class, as each Accardi/Section 504 class representative, like

7 each member of the proposed Accardi class, has a known physical or mental health

8 issue; each Accardi/Section 504 class representative’s claim arises from the same

9 policies, practices, or courses of conduct as those of the class; and their claims are

10 based on the same theory of law as the class’s claims.

11

238. The claims of the Accardi/Section 504 are typical of those of the Section

12 504 class, as each Accardi/Section 504 class representative has a disability for

13 purposes of the Rehabilitation Act; each Accardi/Section 504 class representative’s

14 claim arises from the same policies, practices, or courses of conduct as those of the

15 class; and their claims are based on the same theory of law as the Section 504 class’s

16 claims.

17

239. The claims of the Family Member class representatives are typical of

18 those of the Family Member class, as each Family Member class representative has

19 an association with a person with a disability; each Family Member class

20 representative’s claim arises from the same policies, practices, or courses of conduct

21 as those of the class; and their claims are based on the same theory of law as the

22 Family Member class’s claims.

23

240. The representative Plaintiffs for each putative class are capable of fairly

24 and adequately protecting the interests of the members of each class because the

25 representative Plaintiffs do not have any interests antagonistic to the classes.

26 Plaintiffs, as well as the members of the classes, seek to enjoin the unlawful acts and

27 omissions of Defendants. Finally, Plaintiffs are represented by counsel experienced

28 in civil rights litigation, litigation regarding the rights of detained individuals and

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CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 individuals with disabilities, working with individuals placed in the MPP, and

2 complex class action litigation.

3

241. This action is maintainable as a class action pursuant to Fed. R. Civ. P.

4 23(b)(2) because Defendants’ policies, practices, actions, and omissions that form

5 the basis of this Complaint are common to and apply generally to all members of

6 each putative class, and the injunctive and declaratory relief sought is appropriate

7 and will apply to all members of the respective class(es). Defendants’ MPP policies

8 are centrally promulgated, disseminated, and enforced. The injunctive and

9 declaratory relief sought is appropriate and will apply to all members of the

10 respective class(es).

11

VI. CAUSES OF ACTION

12

COUNT I

13

(Violation of the Administrative Procedure Act/Accardi Doctrine on behalf of the Accardi class)

14

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

15 fully set forth herein.

16

243. The APA provides that courts “shall . . . hold unlawful and set aside

17 agency action” that is “arbitrary, capricious, an abuse of discretion, or otherwise not

18 in accordance with law,” 5 U.S.C. § 706(2)(A), or “without observance of procedure

19 required by law,” id. § 706(2)(D). The Accardi doctrine requires that agencies follow

20 their own regulations, policies, and procedures. See United States ex rel. Accardi v.

21 Shaughnessy, 347 U.S. 260 (1954).

22

244. Defendants’ Physical/Mental Health Exclusion policy exempts people

23 with known physical or mental health issues from the MPP.

24

245. In spite of this, Defendants placed, and continue to place, individuals

25 with known physical or mental health issues in the MPP.

26

246. Defendants placed the Accardi/Section 504 class representatives in the

27 MPP even though Defendants knew of those representatives' medical issues. For

28 example, Defendants were aware of D.Y.S. and D.G.M.’s medical issues because

50

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 each of these individuals was hospitalized due to these known medical issues while

2 in Defendants’ custody. Regardless, Defendants placed each individual in the MPP

3 shortly after their release from the hospital.

4

247. Similarly, Defendants were also aware of other Accardi/Section 504

5 class representatives’ various medical issues because each provided Defendants with

6 proof of these medical issues. Plaintiffs presented medical records and prescribed

7 medications, explained their disabilities, and asked for medical attention for their

8 deteriorating condition while in Defendants’ custody. Defendants’ own medical team

9 corroborated many of Plaintiffs’ medical issues and required Defendants to allow the

10 Plaintiffs access to prescribed medications. Despite this, Defendants placed Plaintiffs

11 in the MPP.

12

248. By placing the Accardi/Section 504 class representatives and members

13 of the Accardi class in the MPP, Defendants have violated their own policy, and thus

14 run afoul of the Accardi doctrine, by not following their own policy.

15

249. As a result, Accardi/Section 504 class representatives and members of

16 the Accardi class have been injured, and in the absence of judicial relief, this injury

17 is ongoing and will continue.

18

COUNT II (Violation of the Rehabilitation Act on behalf of the Section 504 class)

19

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

20 fully set forth herein.

21

251. Section 504 of the Rehabilitation Act (“Section 504”) provides that “no

22 otherwise qualified individual with a disability . . . shall, solely by reason of his or

23 her disability, be excluded from the participation in, be denied the benefits of, or be

24 subjected to discrimination under . . . any program or activity conducted by any

25 Executive agency . . . .” 29 U.S.C. § 794(a).

26

252. Section 504 requires covered entities to provide reasonable

27 accommodations to qualified disabled individuals so that they can have meaningful

28 access to programs and benefits provided by executive agencies.

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CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1

253. DHS has promulgated regulations implementing the requirements of

2 Section 504. These regulations prohibit, among other things, DHS and CBP from:

3 affording a qualified individual with a disability an opportunity to participate in or

4 benefit from a benefit or service “that is not equal to that afforded to others;”

5 providing a qualified individual with a disability with a benefit or service “that is not

6 as effective in affording equal opportunity to obtain the same result as that provided

7 to others”; or utilizing criteria or methods of administration the purpose or effect of

8 which would subject qualified individuals with disabilities to discrimination or defeat

9 or substantially impair accomplishment of the objectives of a program or activity.” 6

10 C.F.R. § 15.30.

11

254. Section 240 proceedings, and determinations by DHS/CBP as to who

12 will be returned to Mexico pending those proceedings, constitute a program, activity

13 or benefit of the federal government.

14

255. Each of the Accardi/Section 504 class representatives is a qualified

15 person with a disability for purposes of Section 504.

16

256. Defendants have violated Section 504 by returning people with

17 disabilities to Mexico pending or after the conclusion of their Section 240

18 proceedings, whether or not properly initiated, because doing so: (i) denies people

19 with disabilities meaningful access to those proceedings; (ii) does not afford them

20 with an opportunity to participate in Section 240 proceedings that is equal to that

21 afforded others; (iii) does not provide them with an opportunity to achieve the same

22 result as others; and (iv) utilizes criteria or methods of administration the purpose or

23 effect of which subject qualified individuals with disabilities to discrimination and,

24 thus, defeat or substantially impair accomplishment of the objectives of Section 240

25 proceedings.

26

257. Defendants’ actions are also contrary to Defendants’ own

27 Physical/Mental Health Exclusion policy.

28

258. As a result of Defendants’ actions as described herein, members of the

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CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 Section 504 class have been, and in the absence of judicial relief will continue to be,

2 injured.

3

259. Putting in place mechanisms to ensure that Defendants follows their

4 own Physical/Mental Health Exclusion policy and admit members of the Section 504

5 class into the United States who are currently in Mexico pursuant to the MPP, and in

6 the future to not return Section 504 class members to Mexico, would constitute a

7 reasonable accommodation, and is otherwise required by Section 504.

8

260. Similarly, exempting people with disabilities from the MPP and

9 allowing those currently in Mexico to pursue their Section 240 proceedings from the

10 United States would constitute a reasonable accommodation, and is otherwise

11 required by Section 504.

12

261. Further, in accordance with CBP’s Family Unit policy, admitting

13 members of the Family Member class, who provide support to Section 504 class

14 members and allow such class members to meaningfully participate in Section 240

15 proceedings, is also a reasonable accommodation, and is otherwise required by

16 Section 504.

17

COUNT III

18

(Violation of Rehabilitation Act on behalf of the Family Member class)

19

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

20 fully set forth herein.

21

263. Each member of the Family Member class has an association with a

22 person with a disability who has suffered discrimination in violation of the

23 Rehabilitation Act, as described above.

24

264. As a result of the discrimination suffered by their disabled family

25 member, each member of the Family Member class has been injured because, for

26 example and without limitation, rather than being able to prepare for their own

27 Section 240 proceedings, they have had to focus on assisting and supporting their

28 disabled family member and thus have not been able to meaningfully participate in

53

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 Section 240 proceedings.

2

265. If members of the Section 504 class are allowed to pursue their Section

3 240 proceedings from the United States pursuant either to the Rehabilitation Act or

4 in compliance with Defendants’ Physical/Mental Health Exclusion policy, any

5 Family Member class member who is forced to remain in Mexico will be unable to

6 assist and support their disabled family member. Furthermore, a disabled family

7 member may be essential to the proper development of a family member’s claim,

8 leaving them unable to fully develop their claim if forced to remain in the MPP. As

9 a result, they will continue to suffer mental trauma and will be unable to meaningfully

10 participate in Section 240 proceedings.

11

266. In the absence of judicial relief, this injury to Family Member class

12 members is ongoing and will continue.

13

V. APPLICATION FOR TEMPORARY RESTRAINING ORDER

14

AND INJUNCTIVE RELIEF

15

267. Plaintiffs intend to file an Application for Temporary Restraining Order

16 and Injunctive Relief and Brief in Support, requesting that the court provide relief

17 consistent with the claims set forth above.

18

PRAYER FOR RELIEF

19

Plaintiffs respectfully request that the Court enter a judgment against

20 Defendants and award the following relief:

21 1. Issue a temporary restraining order, pending a hearing on the request for a

22

preliminary injunction, that provides relief that will be identified in Plaintiffs’

23

briefing and will be consistent with the claims set forth above;

24 2. Declare that the suit is maintainable as a class action pursuant to Federal Rule

25

of Civil Procedure 23(a) and 23(b)(2);

26 3. Adjudge and declare that the acts, omissions, policies, and practices of

27

Defendants, and their agents, employees and officials, described herein, are in

28

violation of the rights of Plaintiffs and the class members they seek to represent

54

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 2 3 4. 4 5 6 7 5. 8 9 10 11 12 13 14 15 16 17 18 19 6. 20 21 7. 22 23 24 25 26 27 28

under the Rehabilitation Act, and the Administrative Procedure Act/Accardi doctrine; Preliminarily and permanently enjoin Defendants, their agents, employees, and officials from subjecting Plaintiffs and the class members they seek to represent to the illegal and unconstitutional conditions, acts, omissions, policies, and practices set forth above; Issue an injunction requiring Defendants, without limitation, to: stop subjecting members of the Accardi class to the MPP, and to put in place mechanisms to ensure that their Physical/Mental Health Exclusion policy is carried out on the ground; to admit family members of Accardi class members pursuant to the Family Unit Policy; put in place practices and policies to identify immigrants with disabilities, and to assess those immigrants for accommodations necessary to meaningfully prepare for and participate in Section 240 proceedings from the United States; as part of this accommodations assessment process, determine whether the immigrant with a disability and their families should be admitted into the United States to pursue their Section 240 proceedings, either as an accommodation or in compliance with Defendants’ Physical/Mental Health Exclusion policy; Require Defendants to pay Plaintiff’s reasonable attorneys’ fees and costs, pursuant to 29 U.S.C. § 794(a)(b) and 28 U.S.C. § 2412(d); and Grant all other relief that is just and proper.

55

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 Date: November 2, 2020

Respectfully Submitted,

2

/s/ Robert S. Shwarts

3

ROBERT S. SHWARTS (SBN 196803)

rshwarts@orrick.com

4

ORRICK, HERRINGTON & SUTCLIFFE LLP

The Orrick Building

5

405 Howard Street

San Francisco, CA 94105-2669

6

Telephone: (415) 773-5700

Facsimile: (415) 773-5759

7

LILLIAN J. MAO (SBN 267410)

8

lmao@orrick.com

ORRICK, HERRINGTON & SUTCLIFFE LLP

9

1000 Marsh Road

Menlo Park, California 94025-1015

10

Telephone: (650) 614-7400

Facsimile: (650) 614-7401

11

TIMOTHY P. FOX (SBN 157750)

12

tfox@creeclaw.org

CIVIL RIGHTS EDUCATION AND

13

ENFORCEMENT CENTER

1245 E. Colfax Avenue, Suite 400

14

Denver, CO 80218

Telephone: (303) 757-7901

15

Facsimile: (303) 872-9072

16

MARIA DEL PILAR GONZALEZ MORALES

(SBN 308550)

17

pgonzalez@creeclaw.org

CIVIL RIGHTS EDUCATION AND

18

ENFORCEMENT CENTER

1825 N. Vermont Avenue, #27916

19

Los Angeles, CA 90027

Telephone: (805) 813-8896

20

Facsimile: (303) 872-9072

21

Counsel for Plaintiffs

22 Of Counsel:

23 ERIN D. THORN* (TX SBN 24093261) erin@texascivilrightsproject.org
24 EFRÉN C. OLIVARES* (TX SBN 24065844) efren@texascivilrightsproject.org
25 KARLA M. VARGAS* (TX SBN 24076748) kvargas@texascivilrightsproject.org
26 MIMI MARZIANI* (TX SBN 24091906) mimi@texascivilrightsproject.org
27 CAROLYN O’CONNOR* (CT SBN 441082) carrie@texascivilrightsproject.org
28 TEXAS CIVIL RIGHTS PROJECT

56

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 1017 W. Hackberry Ave. Alamo, Texas 78516
2 Telephone: 956-787-8171, ext. 127 Facsimile: 956-787-6348
3 *Pro hac vice application forthcoming
4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF