CLOSED,TYPE−E
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:18−cv−01938−PLF

DORA et al v. SESSIONS et al Assigned to: Judge Paul L. Friedman Case: 1:18−cv−01835−PLF Cause: 05:0706 Judicial Review of Agency Actions
Plaintiff

Date Filed: 08/17/2018 Date Terminated: 02/05/2019 Jury Demand: None Nature of Suit: 465 Immigration: Other Immigration Actions Jurisdiction: U.S. Government Defendant

DORA

represented by Sirine Shebaya NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Ave NW Suite 200 Washington, DC 20007 202−656−4788 Email: sirine@nipnlg.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wilson G. Barmeyer EVERSHEDS SUTHERLAND (US) LLP 700 6th Street, NW Suite 700 Washington, DC 20001 (202) 383−0824 Fax: (202) 637−3593 Email: wilsonbarmeyer@eversheds−sutherland.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff ALMA

represented by Sirine Shebaya (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wilson G. Barmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff BEATRIZ

represented by Sirine Shebaya (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wilson G. Barmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff CARLA

represented by Sirine Shebaya (See above for address) LEAD ATTORNEY

Plaintiff ESPERANZA
Plaintiff FANY
Plaintiff GINA
Plaintiff HELENA
Plaintiff ISIDRA

ATTORNEY TO BE NOTICED
Wilson G. Barmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sirine Shebaya (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wilson G. Barmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sirine Shebaya (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wilson G. Barmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sirine Shebaya (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wilson G. Barmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sirine Shebaya (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wilson G. Barmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sirine Shebaya (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wilson G. Barmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff JENIFER
Plaintiff KARA
Plaintiff LINDA
Plaintiff MINDY
Plaintiff NORA
Plaintiff ORELIA

represented by Sirine Shebaya (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wilson G. Barmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sirine Shebaya (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wilson G. Barmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sirine Shebaya (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wilson G. Barmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sirine Shebaya (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wilson G. Barmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sirine Shebaya (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wilson G. Barmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sirine Shebaya (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff PATRICIA
Plaintiff QUELA
Plaintiff RITA
Plaintiff SYLVIA
Plaintiff TANIA
Plaintiff

Wilson G. Barmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sirine Shebaya (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wilson G. Barmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sirine Shebaya (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wilson G. Barmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sirine Shebaya (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wilson G. Barmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sirine Shebaya (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wilson G. Barmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sirine Shebaya (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wilson G. Barmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

ULA
Plaintiff VICTORIA
Plaintiff WILMA
Plaintiff XIOMARA
Plaintiff YADIRA
Plaintiff ZANDRA

represented by Sirine Shebaya (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wilson G. Barmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sirine Shebaya (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wilson G. Barmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sirine Shebaya (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wilson G. Barmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sirine Shebaya (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wilson G. Barmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sirine Shebaya (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wilson G. Barmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sirine Shebaya (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wilson G. Barmeyer (See above for address)

Plaintiff ALEX
Plaintiff BENJAMIN
Plaintiff CARLOS
Plaintiff ALL PLAINTIFFS
V. Defendant JEFFERSON B. SESSIONS, III in his official capacity as the Attorney

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sirine Shebaya (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wilson G. Barmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sirine Shebaya (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wilson G. Barmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sirine Shebaya (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wilson G. Barmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sirine Shebaya (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wilson G. Barmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Johnathan James Smith MUSLIM ADVOCATES P.O. Box 34440 Washington, DC 20043 (202) 897−1897 Fax: (202) 508−1007 Email: johnathan@muslimadvocates.org TERMINATED: 02/01/2019
represented by Jeffrey S Robins UNITED STATES DEPARTMENT OF

General
Defendant KIRSTJEN NIELSEN in her official capacity as the Secretary of the Department of Homeland Security
Defendant RONALD VITIELLO in his official capacity as Acting Director of U.S. Immigration and Customs Enforcement Defendant L. FRANCIS CISSNA in his official capacity as the Acting Director of U.S. Citizenship and Immigration Service Defendant KEVIN K. MCALEENAN in his official capacity as Commissioner of U.S. Customs and Border Protection

JUSTICE Office of Immigration Litigation, District Court Section 450 5th Street, NW Washington, DC 20001 (202) 616−1246 Email: jeffrey.robins@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeffrey S Robins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeffrey S Robins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeffrey S Robins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeffrey S Robins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/17/2018
08/17/2018 08/17/2018
08/17/2018

# Docket Text
1 MOTION to Proceed Under Pseudonyms and to File Supporting Exhibits Under Seal by ALEX, ALMA, BEATRIZ, BENJAMIN, CARLA, CARLOS, DORA, ESPERANZA, FANY, GINA, HELENA, ISIDRA, JENIFER, KARA, LINDA, MINDY, NORA, ORELIA, PATRICIA, QUELA, RITA, SYLVIA, TANIA, ULA, VICTORIA, WILMA, XIOMARA, YADIRA, ZANDRA (Attachments: # 1 Declaration of Carol T. McClarnon, # 2 Text of Proposed Order)(jf) (Entered: 08/21/2018)
2 ORDER temporarily granting 1 MOTION to Proceed Under Pseudonyms and to File Supporting Exhibits Under Seal. Signed by Judge Rudolph Contreras on 08/17/2018. (jf) (Entered: 08/21/2018)
3 REDACTED COMPLAINT against L. FRANCIS CISSNA, KEVIN K. MCALEENAN, KIRSTJEN NIELSEN, JEFFERSON B. SESSIONS, III, RONALD VITIELLO ( Filing fee $ 400, receipt number 4616094175) filed by ULA, GINA, ZANDRA, QUELA, ALMA, DORA, RITA, PATRICIA, YADIRA, ALEX, BENJAMIN, TANIA, NORA, XIOMARA, JENIFER, KARA, VICTORIA, MINDY, WILMA, CARLOS, FANY, BEATRIZ, ISIDRA, LINDA, ORELIA, HELENA, CARLA, SYLVIA, ESPERANZA. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Civil Cover Sheet)(jf) (Entered: 08/21/2018)
SUMMONS (4) Issued as to L. FRANCIS CISSNA, KEVIN K. MCALEENAN, KIRSTJEN NIELSEN, JEFFERSON B. SESSIONS, III, RONALD VITIELLO, and U.S. Attorney General (jf) . (Entered: 08/21/2018)

08/17/2018 08/17/2018
08/20/2018 08/22/2018 08/28/2018 08/30/2018 08/30/2018
08/31/2018 09/24/2018 09/24/2018 09/26/2018 09/27/2018 10/22/2018
10/23/2018
10/26/2018 12/31/2018
01/02/2019
01/31/2019

4 NOTICE OF RELATED CASE by All Plaintiffs. Case related to Case No. 18−1835. (jf) (Entered: 08/21/2018)
5 SEALED COMPLAINT re 3 Redacted Complaint filed by ULA, RITA, HELENA, YADIRA, ORELIA, JENIFER, KARA, ALMA, BEATRIZ, DORA, VICTORIA, SYLVIA, ZANDRA, QUELA, LINDA, CARLA, ESPERANZA, ISIDRA, ALEX, WILMA, MINDY, CARLOS, TANIA, BENJAMIN, GINA, FANY, XIOMARA, PATRICIA, NORA. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Sealed Names)(zjf) (Entered: 08/21/2018)
SUMMONS (1) Issued as to U.S. Attorney (jf) (Entered: 08/21/2018)
6 NOTICE of Appearance by Jeffrey S Robins on behalf of All Defendants (Robins, Jeffrey) (Entered: 08/22/2018)
7 ENTERED IN ERROR. . . . .NOTICE of Appearance by Sirine Shebaya on behalf of ALL PLAINTIFFS (Shebaya, Sirine) Modified on 8/30/2018 (ztd). (Entered: 08/28/2018)
8 NOTICE of Appearance by Johnathan James Smith on behalf of ALL PLAINTIFFS (Smith, Johnathan) (Entered: 08/30/2018)
NOTICE OF ERROR re 7 Notice of Appearance; emailed to sirine@muslimadvocates.org, cc'd 7 associated attorneys −− The PDF file you docketed contained errors: 1. Incorrect header/caption/case number, 2. Please refile document, 3. Please file in the correct case. (ztd, ) (Entered: 08/30/2018)
9 NOTICE of Appearance by Sirine Shebaya on behalf of ALL PLAINTIFFS (Shebaya, Sirine) (Entered: 08/31/2018)
10 Joint STATUS REPORT by ALL PLAINTIFFS. (Attachments: # 1 Exhibit Notice Lodging Agreement for Court's Approval in Case No. 18cv1832, # 2 Certificate of Service)(Barmeyer, Wilson) (Entered: 09/24/2018)
11 NOTICE of Appearance by Sirine Shebaya on behalf of All Plaintiffs (Shebaya, Sirine) (Entered: 09/24/2018)
MINUTE ORDER. In view of the parties' joint status report 10 , the parties shall file a further joint status report on or before October 26, 2018. Signed by Judge Paul L. Friedman on Septenber 26, 2018. (MA) (Entered: 09/26/2018)
Set/Reset Deadlines: Status Report due by 10/26/2018 (tj) (Entered: 09/27/2018)
12 Consent MOTION for Extension of Time to File Answer re 3 Complaint,, by L. FRANCIS CISSNA, KEVIN K. MCALEENAN, KIRSTJEN NIELSEN, JEFFERSON B. SESSIONS, III, RONALD VITIELLO (Attachments: # 1 Text of Proposed Order)(Robins, Jeffrey) (Entered: 10/22/2018)
MINUTE ORDER granting defendants' unopposed motion 12 for extension of time to file their responsive pleading. Defendants shall file their responsive pleading on or before January 1, 2019. Signed by Judge Paul L. Friedman on October 23, 2018. (lcplf1) (Entered: 10/23/2018)
13 Joint STATUS REPORT by DORA. (Barmeyer, Wilson) (Entered: 10/26/2018)
14 Consent MOTION for Extension of Time to File Answer re 3 Complaint,, 5 Sealed Document, by L. FRANCIS CISSNA, KEVIN K. MCALEENAN, KIRSTJEN NIELSEN, JEFFERSON B. SESSIONS, III, RONALD VITIELLO (Attachments: # 1 Text of Proposed Order)(Robins, Jeffrey) (Entered: 12/31/2018)
15 ORDER granting defendants' unopposed motion 14 to stay the deadline for the filing of defendants' answer or responsive pleading, commensurate with the duration of the lapse in appropriations. Signed by Judge Paul L. Friedman on January 2, 2019. (lcplf1) (Entered: 01/02/2019)
MINUTE ORDER: In accordance with 15 the Court's Order granting Defendants' unopposed motion to stay commensurate with the duration of the lapse in appropriations, and the subsequent restoration of appropriations on 1/25/19 after 35 days, the stay on the filing deadline is lifted. Defendants' answer or responsive pleading to 31 Plaintiffs' First Amended Complaint is due February 5, 2019, 35 days

02/01/2019 02/05/2019

after the original deadline of January 1, 2019. Signed by Judge Paul L. Friedman on January 31, 2019. (Entered: 01/31/2019)
16 NOTICE OF WITHDRAWAL OF APPEARANCE as to ALL PLAINTIFFS. Attorney Johnathan James Smith terminated. (Smith, Johnathan) (Entered: 02/01/2019)
17 NOTICE of Voluntary Dismissal by DORA (Barmeyer, Wilson) (Entered: 02/05/2019)

 
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 Case 3:18-cv-00428-DMS-MDD Document 220-1 Filed 09/12/18 PageID.3439 Page 1 of 7
Plan to address the asylum claims of class-member parents and children who are physically present in the United States
The government is willing to agree to the following procedures for addressing the asylum claims of M.M.M. agreed class members and the claims of Ms. L class members (and Dora plaintiffs), other than those class members who agree to waive these procedures (and thus to waive any further claims or relief). 1 (In this document, references to Ms. L class members encompass Dora plaintiffs.) Class counsel are responsible for determining a class member’s intentions related to waiver of the procedures set forth below. Upon approval of this agreed-upon plan by the U.S. District Court for the Southern District of California, M.M.M. agreed class members agree to dismiss their pending litigation in the U.S. District Court for the District of Columbia, and to refrain from seeking preliminary injunctive relief in their litigation pending in the U.S. District Court for the Southern District of California; Dora plaintiffs agree to dismiss their pending litigation in the U.S. District Court for the District of Columbia; and M.M.M. agreed class members and Ms. L class members agree to refrain from additional litigation seeking immigration- or asylum-related injunctive, declaratory, or equitable relief that arises from the facts and circumstances set forth in the Ms. L, M.M.M., and Dora complaints relating to those parents and children covered by this plan, including statutory claims. This plan applies only to Ms. L class members and M.M.M. agreed class members who have been continuously physically present in the United States since June 26, 2018, and does not set any precedent for any additional group of aliens, and any exercise of legal authority or discretion taken pursuant to this plan is exercised only to effectuate the implementation of this plan in relation to this group of individuals. The Court’s approval of this agreement will resolve the pending preliminary-injunction motion in M.M.M. and will also lift the TRO issued in that matter. The Court will retain jurisdiction to enforce the provisions of this plan, which represents the substantive terms for the implementation of a settlement agreement and supersedes the prior written or oral communications between the parties regarding this plan.
1. a. Ms. L class members and M.M.M. agreed class members who are not currently detained in DHS custody (and are not currently in HHS custody) and who have been issued Notices to
1 The classes of individuals to whom this plan relates include:
Ms. L Class Members and Dora Plaintiffs: All adult alien parents who entered the United States at or between designated ports of entry with their child(ren), and who, on or before the effective date of this agreement: (1) were detained in immigration custody by the DHS; (2) have a child who was or is separated from them by DHS and, on or after June 26, 2018, was housed in ORR custody, ORR foster care, or DHS custody, absent a determination that the parent is unfit or presents a danger to the child; and (3) have been (and whose child(ren) have been) continuously physically present within the United States since June 26, 2018, whether in detention or released. The class does not include alien parents with criminal histories or a communicable disease, or those encountered in the interior of the United States.
M.M.M. Agreed Class Members: All alien children who are under the age of 18 on the effective date of this agreement who: (1) entered the United States at or between designated ports of entry with an alien parent, and who were separated from their parents, on or before the effective date of this settlement agreement; (2) have been or will be reunified with that parent pursuant to the preliminary injunction issued by the Court in Ms. L v. U.S. Immigration and Customs Enforcement, No. 18-428 (S.D. Cal. June 26, 2018); and (3) have been continuously physically present in the United States since June 26, 2018.
All references to a “class” or “class member” in this document refer to the classes described above, as well as alien parents who are not part of the Ms. L class due to criminal history or communicable disease, but who the Court has ordered must be reunified.
1

Case 3:18-cv-00428-DMS-MDD Document 220-1 Filed 09/12/18 PageID.3440 Page 2 of 7
Appear (NTAs) will not be removed by DHS prior to issuance of a final removal order in their resulting removal proceedings conducted under Section 240 of the Immigration and Nationality Act (INA). If a Ms. L class member or M.M.M. agreed class member was released from DHS or ORR custody, is not currently in Section 240 removal proceedings, and is not subject to a final removal order, that individual can affirmatively apply for asylum before U.S. Citizenship and Immigration Services (USCIS), USCIS will adjudicate such an application regardless of whether an unfiled NTA exists, and USCIS will follow its established procedures concerning a parent’s involvement in his or her minor child’s asylum application process. If an M.M.M. agreed class member (whether currently detained or released) received a final removal order in Section 240 removal proceedings prior to reunification, DHS and HHS will work in good faith with M.M.M. counsel to identify such children within 15 days of approval of this agreement, and DHS will join in a motion to reopen those proceedings if requested by the M.M.M. agreed class member no later than 45 days from approval of this agreement. M.M.M. agreed class members who have not been reunified with their parent(s) as of the effective date of this agreement will be afforded existing procedures for unaccompanied alien children pursuant to governing statutes and regulations, including but not limited to Section 240 removal proceedings, unless and until they are reunified with a parent, in which case the procedures described below will apply.
b. If a detained, reunited M.M.M. agreed class member child has been served with an NTA, but the NTA has not been filed with an immigration court, DHS will exercise its discretion under 8 C.F.R. § 239.2(a) to cancel the NTA within 15 days of the Court’s approval of this agreement. For such a child who either had an NTA cancelled in this way, or who has never been served with an NTA, if the child is an arriving alien or was initially encountered by DHS within 14 days of entry and 100 miles of the border, ICE will then initiate expedited removal (ER) proceedings under Section 235 of the INA against the child. Where such a class member child asserts, or has already asserted, an intention to apply for asylum or a fear of persecution or torture, either directly or through counsel, they shall be referred to USCIS for a credible fear determination.
c. If a detained, reunited M.M.M. agreed class member child has been issued an NTA that has been filed with an immigration court and the child is an arriving alien or was initially encountered by DHS within 14 days of entry and 100 miles of the border, DHS will file a motion to dismiss the pending Section 240 proceeding, seeking to do so jointly with the child’s immigration attorney of record, as practicable. Such a motion shall be filed within 30 days of the Court’s approval of this agreement and shall request expedited consideration by the immigration court. Upon dismissal of the Section 240 proceeding, ICE will initiate expedited removal proceedings under Section 235 of the INA against the child. Where such a class member child asserts, or has already asserted, an intention to apply for asylum or a fear of persecution or torture, either directly or through counsel, they shall be referred to USCIS for a credible fear determination.
d. For Ms. L class members who have not been issued an NTA and have final ER orders that have not been cancelled by DHS, USCIS will exercise its discretionary authority to sua sponte conduct in good faith a de novo review of the credible fear finding of the parent to determine if reconsideration of the negative determination is warranted. During that review process for Ms. L class members, USCIS will review the parent’s case and the information provided and determine whether the individual has a credible fear of persecution or torture.
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For the limited purpose of this settlement agreement, USCIS will speak with the individual again for additional fact-gathering and the individual may present new or additional information at this time, with the assistance of the individual’s counsel in-person unless ICE determines in good faith that in-person participation would adversely impact facility security or operations due to facility staffing, configuration, or access policies, in which case counsel will be permitted to participate telephonically, provided that counsel’s attendance is at no expense to the government and does not unreasonably delay the process. In determining whether any factual inconsistencies between the original interview and the subsequent fact-gathering impact the credibility of the parent, due consideration will be given to the psychological state of the parent at the time of the initial interview. If the parent establishes that he or she can meet the credible fear standard, as it is described at Section 235(b)(1)(B)(v) of the INA and 8 C.F.R. § 208.30(e)(2) and (3), then DHS will issue and subsequently file an NTA. The children will be treated as the parent’s dependents under 8 C.F.R. § 208.30(b). If the parent’s credible fear determination remains negative, USCIS will screen the child individually for credible fear. The parent will be permitted to participate in the child(ren)’s credible fear interview and provide testimony on behalf of the child(ren), in addition to any testimony from the child(ren). Counsel for the child will be permitted to attend the interview in person unless ICE determines in good faith that inperson participation would adversely impact facility security or operations due to facility staffing, configuration, or access policies, in which case counsel will be permitted to participate telephonically, so long as it does not unreasonably delay the process and any attorney assistance is at no expense to the government.
e. For Ms. L class members who are currently detained2 with their M.M.M. agreed class member child(ren) at an ICE FRC and are subject to reinstated orders of removal, ICE will initiate ER proceedings under Section 235 against the minor child(ren), upon a determination that the child was initially encountered within 14 days of entry and 100 miles of the border. During those proceedings, the child(ren) will be referred for a credible fear determination if the child(ren) asserts, or has already asserted, a fear of return, either directly or through counsel. The credible fear claim will then be considered under the standards of 8 C.F.R. § 208.30, as described above. USCIS will conduct the credible fear interview of the child(ren) in coordination with a sua sponte review of the reasonable fear determination for the parents to determine whether reconsideration of the negative reasonable fear determination is warranted.
USCIS will review the parent’s case and the information provided and determine whether the individual has a reasonable fear of persecution or torture. For the limited purpose of this settlement agreement, USCIS will speak with the individual again for additional factgathering and the individual may present new or additional information at this time, with the assistance of the individual’s counsel in-person unless ICE determines in good faith that in-person participation is impracticable or would adversely impact facility security or operations due to facility staffing, configuration, or access policies, in which case counsel will be permitted to participate telephonically, provided that counsel’s attendance is at no expense to the government and does not unreasonably delay the process. In determining whether any factual inconsistencies between the original interview and the subsequent fact-
2 This agreement does not impact the ability of Ms. L class members with reinstated orders of removal who are not detained to pursue any available appeal of such an order under existing law and subject to statutory time periods.
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gathering impact the credibility of the parent, due consideration will be given to the psychological state of the parent at the time of the initial interview. If the parent establishes that he or she can meet the reasonable fear standard, as it is described at 8 C.F.R. § 208.31(c), then DHS will place the parent in withholding-only proceedings. The parent will be permitted to participate in the child(ren)’s credible fear interview and provide testimony on behalf of the child(ren), in addition to any testimony from the child(ren). Counsel for the child will be permitted to attend the interview in person unless ICE determines in good faith that in-person participation is impracticable or would adversely impact facility security or operations due to facility staffing, configuration, or access, in which case counsel will be permitted to participate telephonically, so long as it does not unreasonably delay the process and any attorney assistance is at no expense to the government.
f. If the parent’s credible fear or reasonable fear finding remains negative upon review, USCIS will notify the parent in writing that USCIS declines to reconsider the existing negative credible fear or reasonable fear determination. If the child receives a separate negative credible fear determination, the child may seek review by an immigration judge.
g. For purposes of the reviews and interviews of detained parents and/or children described in this proposal, the government shall provide the parent and/or child with the orientation that is normally provided for credible fear interviews, and shall provide at least 5 days’ notice of such orientation. Notice of the orientation shall be provided no later than 3 days following the parent and/or child’s execution of a document reflecting his or her decision pursuant to paragraph 8 of this agreement, and the notice shall state the purpose of the notice (orientation for an interview or review) and the date, time, and location of the orientation. Such reviews and interviews will be conducted at least 48 hours after the orientation, with due consideration given to any reasonable requests to continue the interview. The notice and time periods described in this paragraph will not apply if a parent affirmatively requests, in writing, that the review or interview take place on an expedited basis.
2. In the case of a parent and child(ren) both in ER proceedings under the process described above, if either the parent or the child establishes a credible fear of persecution or torture, USCIS will issue NTAs to both parent and child and place the family in Section 240 removal proceedings. See 8 C.F.R. §§ 208.30(f) (positive credible fear finding made by USCIS), 1208.30(g)(2)(iv)(B) (positive credible fear finding made by immigration judge).
3. In the case of a parent and child(ren) both in ER proceedings under the process described above, if none of the family members establish credible fear of persecution or torture (and in the case of a child who seeks review of the credible fear finding by an immigration judge, such finding is upheld by an immigration judge), the ER orders may immediately be executed.
4. In the case of a parent who is subject to a reinstated order of removal, if the child(ren) establishes credible fear and the parent does not establish a reasonable fear, the child(ren) would be placed in Section 240 removal proceedings and the parent would at that time be subject to continued detention or release, in DHS’s discretion, consistent with paragraph 7 below. DHS will not remove a Ms. L class member who received a negative reasonable fear finding while his or her M.M.M. agreed class member child goes through the credible
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fear process and, if applicable, Section 240 removal proceedings. Plaintiffs concede, however, that removal of any Ms. L class member with a reinstated removal order under this agreement is significantly likely to occur in the reasonably foreseeable future and that, if a parent initiates legal proceedings challenging their continued detention, DHS may immediately proceed with that Ms. L class member’s removal, regardless of any injunctive orders issued in Ms. L and M.M.M., provided that DHS gives the parent at least 7 days’ advance notice to the parent that he or she will be removed.
5. In the case of a parent who is subject to a reinstated order of removal, if the child(ren) establish credible fear and the parent establishes a reasonable fear, the child(ren) would be issued NTAs and placed in Section 240 removal proceedings, and the parent would be referred for withholding-only proceedings pursuant to 8 C.F.R. §§ 1208.2(c)(2) and 1208.31(e).
6. If a Ms. L. class member who is currently detained3 in an ICE FRC with his or her M.M.M. agreed class member child is subject to a final removal order issued in proceedings conducted under Section 240 (other than a reinstated order) and the child is an arriving alien or was initially encountered by DHS within 14 days of entry and 100 miles of the border, ICE would initiate ER proceedings under Section 235 against the child within 7 days of the Court’s approval of this agreement, and refer the child for a credible fear interview. While the final order parent would not be a party to the child’s credible fear adjudication, the parent would be available to consult with and assist the child in the course of that process. The parent would be permitted to participate in the child(ren)’s credible fear interview and provide testimony on behalf of the child(ren), in addition to any testimony from the child(ren). Counsel for the child will be permitted to attend the interview in person, so long as it does not unreasonably delay the process and any attorney assistance is at no expense to the government, and the timing of the interview will be in accordance with Paragraph 1.g. above. If the child establishes a credible fear of persecution or torture, USCIS will place the child in Section 240 removal proceedings, and ICE will move for reopening of the parent’s prior removal proceedings and consolidation of the parent’s case with the child’s before the immigration court. If the child does not establish credible fear of persecution or torture, the removal orders may immediately be executed.
7. Detention and custody decisions for aliens covered by this plan will be made consistent with DHS’s authorities under Sections 235, 236, and 241, and the Order Granting Joint Motion Regarding Scope Of The Court’s Preliminary Injunction in Ms. L. v. ICE, No. 18428 (S.D. Cal.) (Aug. 16, 2018) (ECF 192) (recognizing that class members may be required to choose whether to waive their own right not to be separated from their minor child(ren) or to waive their child(ren)’s right under the Flores Settlement Agreement to be released, including the rights with regard to placement in the least restrictive setting appropriate to the minor’s age and special needs, and the right to release or placement in a “licensed program.”).
8. Ms. L counsel, M.M.M. counsel, or Dora counsel may identify class members who wish to waive the procedures described herein and be promptly removed to their country of origin.
3 This agreement does not impact the ability of Ms. L class members with final removal orders issued in Section 240 removal proceedings, other than a reinstated order of removal, and who are not detained, to pursue individual appeals of such orders under existing law and subject to statutory time periods for challenging any such order.
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Ms. L counsel, M.M.M. counsel, and Dora counsel will promptly develop a process for obtaining and documenting such a choice through a knowing and voluntary waiver. Defendants will not engage with class members on such matters, but will seek to effectuate such waiver decisions when communicated and documented by Ms. L counsel, M.M.M. counsel, or Dora counsel. Class members may either pursue the relief described in this agreement or elect prompt removal, but may not pursue any other immigration- or asylumrelated injunctive, declaratory, or equitable relief based on the allegations or claims made in any of the Ms. L, M.M.M., or Dora complaints filed in any court accruing as of the date this plan is approved by the Court, including statutory claims. This agreement does not affect the right of Ms. L class members to seek reunification under the June 26, 2018 preliminary injunction in Ms. L.
The return of removed parents to the United States4
The government does not intend to, nor does it agree to, return any removed parent to the United States or to facilitate any return of such removed parents. The classes agree not to pursue any right or claim of removed parents to return to the United States other than as specifically set forth in this paragraph. Plaintiffs’ counsel may raise with the government individual cases in which plaintiffs’ counsel believes the return of a particular removed Ms. L class member may be warranted. Plaintiffs’ counsel represent that they believe that such individual cases will be rare and unusual and that they have no basis for believing that such individual cases will be other than rare and unusual. Plaintiffs’ counsel agree to present any such cases, including all evidence they would like considered by the government within 30 days of the approval of this agreement. In light of plaintiffs’ counsel’s representation that such cases will be rare and unusual, Defendants agree to provide a reply to any case presented by Plaintiffs within 30 days of receiving Plaintiffs’ request to consider the case. Except as specifically set forth herein, the classes agree that existing law, existing procedures, and the Court-approved reunification plan address all interests that such parents or their children may have.
With respect to M.M.M. agreed class members who seek asylum and who have removed parents, the government agrees not to oppose requests that the removed parent provide testimony or evidence telephonically or in writing in the child’s asylum or removal proceedings and that ICE attorneys appearing in immigration court (1) will not object to the admission of documentary evidence (such as photocopied, scanned, or faxed documents) provided by the removed parent on the grounds that such documentary evidence does not bear an original signature or is not an original copy (ICE reserves the right to object based on other grounds), and (2) will not object to telephonic participation by the parent in the M.M.M. agreed class member’s Section 240 removal proceedings provided that the alien (and his or her legal representative, if applicable) make appropriate motions to the immigration judge to permit telephonic testimony in advance of any merits hearing, that the alien is responsible for providing accurate contact information to permit the immigration judge to make contact with the parent, and that the parent’s unavailability and faulty connections or other technological impediments may not serve as the basis for delaying scheduled hearings. Class
4 For this section of this agreement, the classes are the same as in footnote 1 above except that the requirements of continuous physical presence in the United States do not apply to this section of the agreement, since this section addresses removed parents.
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 Case 3:18-cv-00428-DMS-MDD Document 321 Filed 11/15/18 PageID.4952 Page 1 of 6

1 MICHAEL M. MADDIGAN (SBN 163450) HOGAN LOVELLS US LLP
2 1999 Avenue of the Stars, Suite 1400 Los Angeles, CA 90067
3 Telephone: (310) 785-4727 Facsimile: (310) 785-4601
4 Email: michael.maddigan@hoganlovells.com

5 Attorney for M.M.M. Plaintiffs

6

7

8

9

UNITED STATES DISTRICT COURT

10

SOUTHERN DISTRICT OF CALIFORNIA

11

SAN DIEGO DIVISION

12

13 M.M.M., on behalf of his minor child, J.M.A., et al.,
14

Case No. 3:18-cv-1832-DMS JUDGE: Hon. Dana M. Sabraw

15 16 v.

Plaintiffs,

DATE: November 15, 2018 TIME: 10:30 AM COURTROOM: 13A

17 Jefferson Beauregard Sessions, III, Attorney General of the United States,
18 et al.,

19

Defendants.

20

21 Ms. L, et al.,

22
23 v.
24

Plaintiffs,

25 U.S. Immigration and Customs Enforcement, et al.,
26 Defendants.
27

Case No. 3:18-cv-428-DMS JUDGE: Hon. Dana M. Sabraw DATE: November 15, 2018 TIME: 10:30 AM COURTROOM: 13A ORDER CERTIFYING THE SETTLEMENT CLASSES AND GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT

HOGAN LOVELLS US LLP
ATTORNEYS AT LAW
LOS ANGELES

ORDER CERTIFYING SETTLEMENT CLASSES AND GRANTING FINAL APPROVAL OF CLASS
ACTION SETTLEMENT

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Upon consideration of the Plaintiffs’ Motion for Final Approval of Class

Action Settlement and Certification of Settlement Classes;

WHEREAS, the M.M.M., Ms. L, and Dora named Plaintiffs allege that they

and members of the Settlement Classes were injured as a result of Defendants’

actions;

WHEREAS, the Court granted the M.M.M. Plaintiffs’ request for a

Temporary Restraining Order temporarily restraining Defendants “from removing

[specified persons] from the United States, until the merits of Plaintiffs’ motion for

a preliminary injunction is resolved,” M.M.M. v. Sessions, Case No. 3:18-cv-1832-

DMS (S.D. Cal.) (Aug. 16, 2018), Dkt No. 55 at 15;

WHEREAS the Court ordered the parties to consider “how they wish to

proceed on the issues of class certification and Plaintiffs’ entitlement to asylum

proceedings” and to “meet and confer and propose a solution—one which follows

the law, and is equitable and reflective of ordered governance,” id. at 16;

WHEREAS, the parties reached a settlement agreement that was filed with

the Court on September 12, 2018 (“Agreement” or “Settlement”);

WHEREAS, on October 9, 2018, the Court granted preliminary approval of

the Agreement, approved the proposed notice plan, and provisionally certified the

Settlement Classes; and

WHEREAS, the Court has considered the Agreement, the filed objections to

the agreement, arguments presented at the fairness hearing held on November 15,

2018, and all other submissions in connection with the parties’ request for final

approval of the Agreement and certification of the Settlement Classes set forth in

the Agreement for the purposes of settlement only, and good cause appearing

therefor;

IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS

FOLLOWS:

1. The Motion is GRANTED. - 2 -

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Final Approval of the Settlement 2. The form and method by which notice was given to the Settlement
Classes met the requirements of due process, Rules 23(c)(2) and 23(e) of the Federal Rules of Civil Procedure, constituted the best notice practicable under the circumstances, and constituted due and sufficient notice to all persons entitled thereto.
3. The Court finds that: (a) the Settlement is fair, reasonable, and adequate in accordance with Fed. R. Civ. P. 23(e)(2); (b) the Agreement was negotiated at arm’s length by experienced counsel acting in good faith; and (c) there has been adequate opportunity for experienced counsel to evaluate the claims and risks at this stage of the litigation.
4. The Court has reviewed the six objections filed regarding the Settlement and carefully considered each of the issues raised by those filings, and finds that the objections do not impact the conclusion that the Settlement is fair, reasonable, and adequate.
5. The Court therefore finds that final approval is appropriate and hereby grants final approval of the Settlement. The parties are directed to consummate the Agreement according to its terms. The Agreement and every term thereof shall be deemed incorporated herein as if explicitly set forth and shall have the full force of an Order of the Court. Certification of the Settlement Classes, Appointment of Settlement Class Representatives, and Appointment of Co-Lead Counsel
6. For purposes of the Settlement, and only for that purpose, and without an adjudication on the merits, pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure, the Court finds that the requirements for a class action are met, and hereby defines the following classes.
The class of parents is defined as follows:

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All adult alien parents who entered the United States at or between designated ports of entry with their child(ren), and who, on or before the effective date of this agreement: (1) were detained in immigration custody by the DHS; (2) have a child who was or is separated from them by DHS and, on or after June 26, 2018, was housed in ORR custody, ORR foster care, or DHS custody, absent a determination that the parent is unfit or presents a danger to the child; and (3) have been (and whose child(ren) have been) continuously physically present within the United States since June 26, 2018, whether in detention or released. The class does not include alien parents with criminal histories or a communicable disease, or those encountered in the interior of the United States.1 The class of children is defined as follows: All alien children who are under the age of 18 on the effective date of this agreement who: (1) entered the United States at or between designated ports of entry with an alien parent, and who were separated from their parents, on or before the effective date of this settlement agreement; (2) have been or will be reunified with that parent pursuant to the preliminary injunction issued by the Court in Ms. L v. U.S. Immigration and Customs Enforcement, No. 18-428 (S.D. Cal. June 26, 2018); and (3) have been continuously physically present in the United States since June 26, 2018. The Settlement Classes are certified for settlement purposes. 7. The Court finds that certification of the Settlement Classes is warranted in light of the Settlement under the prerequisites of Federal Rule of Civil Procedure 23(a) because: (1) the members of the Settlement Classes are so numerous that joinder is impracticable; (2) there are issues of law and fact common to the Settlement Classes; (3) the claims of the named Plaintiffs in M.M.M., Ms. L, and Dora are typical of the claims of the Settlement Class Members; and (4) Plaintiffs and Class Counsel will fairly and adequately represent the interests of the Settlement Class Members. 8. The Court also finds that certification of the Settlement Classes is warranted in light of the Settlement under the requirements of Federal Rule of Civil Procedure 23(b)(2) because Defendants are alleged to have acted or refused to act

1 References to a “class” or “class member” in the Agreement refer to the classes described in the text, as well as alien parents who are not part of the Ms. L class due to criminal history or communicable disease, but who the Court has ordered must be reunified. The Agreement also addresses parents who are covered by the above description, but who have been removed from the United States.

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on grounds that apply generally to the Settlement Classes, so that final injunctive

relief or corresponding declaratory relief is appropriate respecting the Settlement

Classes as a whole.

9. The Court hereby appoints the named Plaintiffs in M.M.M. and Ms. L.

(as recently amended) as Settlement Class Representatives. The Court finds that the

Settlement Class Representatives will fairly and adequately protect the interests of

the Settlement Classes because: (1) the interests of the Settlement Class

Representatives are consistent with those of Settlement Class Members; (2) there

appear to be no conflicts between or among the Settlement Class Representatives

and the other Settlement Class Members; (3) the Settlement Class Representatives

have been and appear to be capable of continuing to be active participants in both

the prosecution and the settlement of this litigation; and (4) the Settlement Class

Representatives and Settlement Class Members are represented by qualified,

reputable counsel who are experienced in preparing and prosecuting large,

complicated class action cases, including those concerning alleged violations of the

relevant laws.

10. The requirements of Rule 23(g) of the Federal Rules of Civil

Procedure are met, and the Court hereby confirms the appointment of the law firm

Eversheds Sutherland, Muslim Advocates, and the Legal Aid Justice Center as

counsel for the parent class for parents continuously physically present in the

United States since June 26, 2018, the ACLU as counsel for parents who have been

removed, and Hogan Lovells US LLP as counsel for the child class.

Other Provisions

11. Neither the Agreement, nor any of its terms or provisions, nor any of

the negotiations or proceedings in connection with it, shall be construed as an

admission or concession by Defendants of the truth of any allegations in the

litigation, or of any fault or wrongdoing of any kind, or of a lack of merit of

Plaintiffs’ allegations.

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IT IS SO ORDERED. Dated: November 15, 2018

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ORDER CERTIFYING SETTLEMENT CLASSES AND GRANTING FINAL APPROVAL OF CLASS
ACTION SETTLEMENT