STAYED,CLASS ACTION
U.S. District Court Southern District of California (San Diego) CIVIL DOCKET FOR CASE #: 3:18−cv−01832−DMS−MDD

M.M.M et al v. SESSIONS et al Assigned to: Judge Dana M. Sabraw Referred to: Magistrate Judge Mitchell D. Dembin Related Cases: 3:18−cv−00428−DMS−MDD
3:18−cv−01979−DMS−MDD
Case in other court: District of Columbia, 1:18−cv−01759 Cause: 05:0706 Judicial Review of Agency Action
Plaintiff

Date Filed: 08/03/2018 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

M.M.M. On behalf of his minor child, J.M.A.

represented by Haley K. Costello−Essig Hogan Lovells US LLP 7930 Jones Branch Drive Park Place II Ninth Floor McLean, VA 22102 703−610−6230 Fax: 703−610−6200 Email: haley.essig@hoganlovells.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Ira M. Feinberg Hogan Lovells US LLP 390 Madison Avenue New York, NY 10017 212−918−3509 Fax: 212−918−3100 Email: ira.feinberg@hoganlovells.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Justin W. Bernick Hogan Lovells US LLP 555 13th Street NW Washington, DC 20004 202−637−5485 Fax: 202−637−5910 Email: justin.bernick@hoganlovells.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Justin W. Bernick Hogan Lovells US LLP 555 13th Street, NW Washington, DC 20004 202−637−5600 Fax: 202−637−5910 Email: justin.bernick@hoganlovells.com TERMINATED: 08/08/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Katherine A. Nelson Hogan Lovells US LLP 1601 Wewatta Street

Plaintiff
I.A.T. On behalf of his minor child E.A.H.

Suite 900 Denver, CO 80202 303−454−2539 Fax: 303−899−7333 Email: katherine.nelson@hoganlovells.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael M. Maddigan Hogan Lovells US LLP 1999 Avenue of the Stars Suite 1400 Los Angeles, CA 90067 310−785−4600 Fax: 310−785−4601 Email: michael.maddigan@hoganlovells.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Oliver J. Armas HOGAN LOVELLS US LLP 875 Third Avenue New York, NY 10022 (212) 918−3020 Fax: (212) 918−3100 Email: oliver.armas@hoganlovells.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Theodore (T.) Clark Weymouth Hogan Lovells US LLP 555 13th Street NW Washington, DC 20004 202−637−8633 Fax: 202−637−5910 Email: t.weymouth@hoganlovells.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Zachary W.H. Best Hogan Lovells 555 Thirteenth Street NW Columbia Square Washington, DC 20004 202−637−6473 Fax: 202−637−5910 Email: zachary.best@hoganlovells.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Haley K. Costello−Essig (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ira M. Feinberg (See above for address) LEAD ATTORNEY

Plaintiff
N.B. On behalf of her minor child D.B.G.

ATTORNEY TO BE NOTICED
Justin W. Bernick (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin W. Bernick (See above for address) TERMINATED: 08/08/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katherine A. Nelson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael M. Maddigan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Oliver J. Armas (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Theodore (T.) Clark Weymouth (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Zachary W.H. Best (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Haley K. Costello−Essig (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ira M. Feinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Justin W. Bernick (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin W. Bernick (See above for address) TERMINATED: 08/08/2018

Plaintiff
P.A.P. On behalf of her minor child, G.M.A.

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katherine A. Nelson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael M. Maddigan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Oliver J. Armas (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Theodore (T.) Clark Weymouth (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Zachary W.H. Best (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Haley K. Costello−Essig (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ira M. Feinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Justin W. Bernick (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin W. Bernick (See above for address) TERMINATED: 08/08/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katherine A. Nelson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael M. Maddigan (See above for address)

Plaintiff
G.C.H. On behalf of his minor child, A.M.C.

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Oliver J. Armas (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Theodore (T.) Clark Weymouth (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Zachary W.H. Best (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Haley K. Costello−Essig (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ira M. Feinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Justin W. Bernick (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin W. Bernick (See above for address) TERMINATED: 08/08/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katherine A. Nelson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael M. Maddigan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Oliver J. Armas (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Theodore (T.) Clark Weymouth (See above for address)

Plaintiff
L.C.O. On behalf of her minor child, L.A.A.

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Zachary W.H. Best (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Haley K. Costello−Essig (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ira M. Feinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Justin W. Bernick (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin W. Bernick (See above for address) TERMINATED: 08/08/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katherine A. Nelson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael M. Maddigan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Oliver J. Armas (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Theodore (T.) Clark Weymouth (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Zachary W.H. Best (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant Jefferson Beauregard Sessions, III Attorney General of the United States
Defendant Kirstjen Nielsen Secretary of the U.S. Department of Homeland Security

represented by Briana Faith Yuh U.S. Department of Justice Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, DC 20044 202−532−4165 Fax: 202−305−7000 Email: briana.yuh@usdoj.gov TERMINATED: 09/19/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey S. Robins Department of Justice, Office of Immigration Litigation 450 5th Street, NW Washington, DC 20001 202−616−1246 Fax: 202−305−7000 Email: jeffrey.robins@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Fabian U.S. Department of Justice Office of Immigration Litigation P. O. Box 868 Ben Franklin Station Washington, DC 20044 202−532−4824 Email: sarah.b.fabian@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart U. S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 202−307−6482 Email: scott.g.stewart@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Briana Faith Yuh (See above for address) TERMINATED: 09/19/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey S. Robins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Alex Azar Secretary of the Department of Health and Human Services
Defendant Ronald Vitiello Acting Director of U.S. Immigration and Custom Enforcement
Defendant L. Francis Cissna Director of U.S. Citizenship and Immigration

Scott Grant Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Briana Faith Yuh (See above for address) TERMINATED: 09/19/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey S. Robins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Briana Faith Yuh (See above for address) TERMINATED: 09/19/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey S. Robins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Briana Faith Yuh (See above for address) TERMINATED: 09/19/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey S. Robins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Fabian

Defendant Kevin K. McAleenan Commissioner of U.S. Customs and Border Protection
Defendant Scott Lloyd Director of the Office of Refugee Resettlement
Defendant Daniel A. Bible Director of ICE San Antonio Field Office

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Briana Faith Yuh (See above for address) TERMINATED: 09/19/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey S. Robins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Briana Faith Yuh (See above for address) TERMINATED: 09/19/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey S. Robins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Briana Faith Yuh (See above for address) TERMINATED: 09/19/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey S. Robins (See above for address) LEAD ATTORNEY

Defendant United States Department of Homeland Security
Defendant United States Immigration and Customs Enforcement
Defendant U.S. Customs and Border Protection

ATTORNEY TO BE NOTICED
Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Briana Faith Yuh (See above for address) TERMINATED: 09/19/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey S. Robins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Briana Faith Yuh (See above for address) TERMINATED: 09/19/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey S. Robins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Briana Faith Yuh (See above for address) TERMINATED: 09/19/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant U.S. Citizenship and Immigration Services
Defendant U.S. Department of Health and Human Services
Defendant Office of Refugee Resettlement

Jeffrey S. Robins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Briana Faith Yuh (See above for address) TERMINATED: 09/19/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey S. Robins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Briana Faith Yuh (See above for address) TERMINATED: 09/19/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey S. Robins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Briana Faith Yuh (See above for address) TERMINATED: 09/19/2019

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey S. Robins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 07/27/2018 07/27/2018 07/27/2018 07/27/2018
07/27/2018 07/27/2018
07/27/2018 07/27/2018

# Docket Text
1 MOTION for Leave to File Under Pseudonym by G.C.H., I.A.T., L.C.O., M.M.M, N.B., P.A.P. (Attachments: # 1 Text of Proposed Order)(zrdj) [Transferred from District of Columbia on 8/6/2018.] (Entered: 07/27/2018)
2 MEMORANDUM AND ORDER granting 1 Motion for Leave to File Under Pseudonym. Signed by Chief Judge Beryl A. Howell on 7/27/2018. (zrdj) [Transferred from District of Columbia on 8/6/2018.] (Entered: 07/27/2018)
3 SEALED DOCUMENT filed by G.C.H., I.A.T., L.C.O., M.M.M, N.B., P.A.P.. re 1 MOTION for Leave to File Under Pseudonym filed by N.B., G.C.H., I.A.T., M.M.M, L.C.O., P.A.P. (This document is SEALED and only available to authorized persons.)(zrdj) [Transferred from District of Columbia on 8/6/2018.] (Entered: 07/27/2018)
4 COMPLAINT against ALEX AZAR, DANIEL A. BIBLE, L. FRANCIS CISSNA, SCOTT LLOYD, KEVIN K. MCALEENAN, KIRSTJEN NIELSEN, OFFICE OF REFUGEE RESETTLEMENT, JEFFERSON BEAUREGARD SESSIONS, III, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, RONALD VITIELLO filed by I.A.T., M.M.M, L.C.O., N.B., P.A.P., G.C.H. (Attachments: # 1 Exhibit 1, # 2 Civil Cover Sheet)(zrdj) [Transferred from District of Columbia on 8/6/2018.] (Entered: 07/27/2018)
5 NOTICE OF RELATED CASE by G.C.H., I.A.T., L.C.O., M.M.M, N.B., P.A.P.. Case related to Case No. 18−1458−PLF. (zrdj) [Transferred from District of Columbia on 8/6/2018.] (Entered: 07/27/2018)
6 MOTION for Preliminary Injunction, MOTION for Temporary Restraining Order by G.C.H., I.A.T., L.C.O., M.M.M, N.B., P.A.P. (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1 − L.A.A. Declaration, # 3 Exhibit 2 − I.A.T. Declaration, # 4 Exhibit 3 − G.M.A. Declaration, # 5 Exhibit 4 − D.B.G. Declaration, # 6 Exhibit 5 − A.M.C. Declaration, # 7 Exhibit 6 − J.M.A Declaration, # 8 Exhibit 7 − Manoj Govindaiah Affidavit−, # 9 Exhibit 8 − Shalyn Fluharty Declaration, # 10 Text of Proposed Order Preliminary Injunction, # 11 Text of Proposed Order TRO)(zrdj) [Transferred from District of Columbia on 8/6/2018.] (Entered: 07/27/2018)
7 MOTION for Expedited Hearing re 6 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order by G.C.H., I.A.T., L.C.O., M.M.M, N.B., P.A.P. (zrdj) [Transferred from District of Columbia on 8/6/2018.] (Entered: 07/27/2018)
8 Certificate of Compliance with Local Rule 65.1 by G.C.H., I.A.T., L.C.O., M.M.M, N.B., P.A.P. (zrdj) [Transferred from District of Columbia on 8/6/2018.] (Entered: 07/27/2018)

07/27/2018 07/27/2018 07/27/2018 07/27/2018 07/27/2018 07/27/2018
07/30/2018 07/30/2018 07/30/2018 07/30/2018
07/30/2018

9 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− KATHERINE A. NELSON, :Firm− Hogan Lovells US LLP, :Address− 1601 Wewatta Street, Suite 900, Denver, CO 80202. Phone No. − (303) 454−2539. Fee Status: No Fee Paid. by G.C.H., I.A.T., L.C.O., M.M.M, N.B., P.A.P. (zrdj) [Transferred from District of Columbia on 8/6/2018.] (Entered: 07/27/2018)
10 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− IRA M. FEINBERG, :Firm− Hogan Lovells US LLP, :Address− 875 Third Avenue, New York, NY 10022. Phone No. − (212) 918−3509. Fee Status: No Fee Paid. by G.C.H., I.A.T., L.C.O., M.M.M, N.B. (zrdj) [Transferred from District of Columbia on 8/6/2018.] (Entered: 07/27/2018)
11 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− OLIVER J. ARMAS, :Firm− Hogan Lovells US LLP, :Address− 875 Third Avenue, New York, NY 10022. Phone No. − (212) 918−3020. Fee Status: No Fee Paid. by G.C.H., I.A.T., L.C.O., M.M.M, N.B. (zrdj) [Transferred from District of Columbia on 8/6/2018.] (Entered: 07/27/2018)
12 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− ZACHARY W. BEST, :Firm− Hogan Lovells US LLP, :Address− 555 Thirteenth Street, NW, Washington, D.C. 20004. Phone No. − (202) 637−6473. Fee Status: No Fee Paid. by G.C.H., I.A.T., L.C.O., M.M.M, N.B. (zrdj) [Transferred from District of Columbia on 8/6/2018.] (Entered: 07/27/2018)
13 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− T. Clark Weymouth, :Firm− Hogan Lovells US LLP, :Address− 555 Thirteenth Street, NW, Washington, D.C. 20004. Phone No. − (202) 637−8633. Fee Status: No Fee Paid. by G.C.H., I.A.T., L.C.O., M.M.M, N.B., P.A.P. (zrdj) [Transferred from District of Columbia on 8/6/2018.] (Entered: 07/27/2018)
SUMMONS (15) Issued as to ALEX AZAR, DANIEL A. BIBLE, L. FRANCIS CISSNA, SCOTT LLOYD, KEVIN K. MCALEENAN, KIRSTJEN NIELSEN, OFFICE OF REFUGEE RESETTLEMENT, JEFFERSON BEAUREGARD SESSIONS, III, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, RONALD VITIELLO and U.S. Attorney (zrdj) [Transferred from District of Columbia on 8/6/2018.] (Entered: 07/27/2018)
Filing fee received: $ 400.00, receipt number: 4616093831. (ztd) [Transferred from District of Columbia on 8/6/2018.] (Entered: 07/30/2018)
Filing fee received for Pro Hac Vice Motions for Theodore Clark Weymouth, Zachary W. Best, Oliver J. Armas, Ira M. Feinberg and Katherine A. Nelson: $ 500.00, receipt number: 4616093832. (ztd) [Transferred from District of Columbia on 8/6/2018.] (Entered: 07/30/2018)
14 NOTICE of Appearance by Jeffrey S Robins on behalf of All Defendants (Robins, Jeffrey) [Transferred from District of Columbia on 8/6/2018.] (Entered: 07/30/2018)
15 Memorandum in opposition to re 6 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order filed by ALEX AZAR, DANIEL A. BIBLE, L. FRANCIS CISSNA, SCOTT LLOYD, KEVIN K. MCALEENAN, KIRSTJEN NIELSEN, OFFICE OF REFUGEE RESETTLEMENT, JEFFERSON BEAUREGARD SESSIONS, III, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, RONALD VITIELLO. (Attachments: # 1 Exhibit)(Robins, Jeffrey) [Transferred from District of Columbia on 8/6/2018.] (Entered: 07/30/2018)
MINUTE ORDER. The parties shall appear for a hearing on plaintiff' motion 6 for a temporary restraining order on Tuesday, July 31, 2018 at 4:00 p.m. in Courtroom 29A. The parties shall be prepared to argue the TRO motion. The parties shall also be prepared to discuss whether the relief sought is already covered by orders issued by Judge Sabraw in the class action pending in San Diego and, relatedly, whether this case should be transferred to Judge Sabraw. Signed by Judge Paul L. Friedman on July

07/30/2018 07/30/2018 07/30/2018 07/31/2018 07/31/2018 08/01/2018 08/01/2018 08/01/2018 08/01/2018 08/01/2018
08/02/2018
08/02/2018

30, 2018. (MA) [Transferred from District of Columbia on 8/6/2018.] (Entered: 07/30/2018)
MINUTE ORDER granting Motion 9 for Leave to Appear Pro Hac Vice of Katherine A. Nelson, Motion 10 for Leave to Appear Pro Hac Vice of Ira M. Feinberg, and Motion 11 for Leave to Appear Pro Hac Vice of Oliver J. Armas, on behalf of plaintiffs. Signed by Judge Paul L. Friedman on July 30, 2018. (MA) [Transferred from District of Columbia on 8/6/2018.] (Entered: 07/30/2018)
MINUTE ORDER denying without prejudice Motion 12 for Leave to Appear Pro Hac Vice of Zachary W. Best and Motion 13 for Leave to Appear Pro Hac Vice of Theodore Clark Weymouth. Counsel are advised to review Local Civil Rule 83.2, in particular 83.2(c)(2). Signed by Judge Paul L. Friedman on July 30, 2018.(MA) [Transferred from District of Columbia on 8/6/2018.] (Entered: 07/30/2018)
Set/Reset Hearings: TRO Motion Hearing set for 7/31/2018 at 4:00 PM in Courtroom 29A before Judge Paul L. Friedman. (gdf) [Transferred from District of Columbia on 8/6/2018.] (Entered: 07/31/2018)
16 NOTICE of Appearance by Scott Grant Stewart on behalf of All Defendants (Stewart, Scott) [Transferred from District of Columbia on 8/6/2018.] (Entered: 07/31/2018)
Minute Entry for proceedings held before Judge Paul L. Friedman: Motion Hearing held on 7/31/2018, re 6 MOTION for Temporary Restraining Order. Oral argument heard and order forthcoming via chambers. (Court Reporter: Patricia Kaneshiro−Miller) (gdf) [Transferred from District of Columbia on 8/6/2018.] (Entered: 07/31/2018)
MINUTE ORDER. The parties are directed to file supplemental briefs addressing the transfer and venue issues raised at the hearing of July 31, 2018, by 5:00 p.m. today. Signed by Judge Paul L. Friedman on August 1, 2018. (MA) [Transferred from District of Columbia on 8/6/2018.] (Entered: 08/01/2018)
Set/Reset Deadlines: Supplement brief due 8/1/2018, by 5:00 pm. (gdf) [Transferred from District of Columbia on 8/6/2018.] (Entered: 08/01/2018)
17 NOTICE of Appearance by Briana Faith Yuh on behalf of All Defendants (Yuh, Briana) [Transferred from District of Columbia on 8/6/2018.] (Entered: 08/01/2018)
18 REPLY to opposition to motion re 6 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order filed by G.C.H., I.A.T., L.C.O., M.M.M, N.B., P.A.P.. (Attachments: # 1 Exhibit Exhibit 1 to Plaintiffs' Reply in Support of Motion for Temporary Restraining Order, # 2 Certificate of Service)(Bernick, Justin) [Transferred from District of Columbia on 8/6/2018.] (Entered: 08/01/2018)
19 MEMORANDUM by ALEX AZAR, DANIEL A. BIBLE, L. FRANCIS CISSNA, SCOTT LLOYD, KEVIN K. MCALEENAN, KIRSTJEN NIELSEN, OFFICE OF REFUGEE RESETTLEMENT, JEFFERSON BEAUREGARD SESSIONS, III, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, RONALD VITIELLO. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)(Yuh, Briana) [Transferred from District of Columbia on 8/6/2018.] (Entered: 08/01/2018)
20 MOTION for Leave to File Plaintiffs' Response to Defendants' Supplemental Brief in Support of Defendants' Motion to Transfer Venue by G.C.H., I.A.T., L.C.O., M.M.M, N.B., P.A.P. (Attachments: # 1 Exhibit Plaintiffs' Response to Defendants' Supplemental Brief in Support of Defendants' Motion to Transfer Venue, # 2 Certificate of Service)(Bernick, Justin) [Transferred from District of Columbia on 8/6/2018.] (Entered: 08/02/2018)
MINUTE ORDER granting 20 plaintiffs' motion for leave to file response to defendants' supplemental brief in support of defendants' motion to transfer venue. Signed by Judge Paul L. Friedman on August 2, 2018. (MA) [Transferred from District of Columbia on 8/6/2018.] (Entered: 08/02/2018)

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21 TRANSCRIPT OF PROCEEDINGS before Judge Paul L. Friedman held on July 31, 2018; Page Numbers: 1−46. Date of Issuance:August 2, 2018. Court Reporter/Transcriber Patricia A Kaneshiro−Miller, Telephone number 202−354−3243, Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 8/23/2018. Redacted Transcript Deadline set for 9/2/2018. Release of Transcript Restriction set for 10/31/2018.(pk) [Transferred from District of Columbia on 8/6/2018.] (Entered: 08/02/2018)
23 SUPPLEMENTAL Response to Defendants' Supplemental Brief in Support of Defendants' Motion to Transfer Venue re Minute Order on Motion for Leave to File, Minute Order filed by G.C.H., I.A.T., L.C.O., M.M.M, N.B., P.A.P.. (ztd) [Transferred from District of Columbia on 8/6/2018.] (Entered: 08/03/2018)
22 NOTICE of Appearance by Zachary W. H. Best on behalf of All Plaintiffs (Best, Zachary) [Transferred from District of Columbia on 8/6/2018.] (Entered: 08/03/2018)
24 ORDER granting defendants' motion to transfer venue 19 . Count IV of the complaint is severed from Counts I, II, and III, and this case with those three claims will be transferred immediately, without any waiting period, to the United States District Court for the Southern District of California to be assigned, with his consent, to the Honorable Dana M. Sabraw. Signed by Judge Paul L. Friedman on August 3, 2018. (lcplf1) [Transferred from District of Columbia on 8/6/2018.] (Entered: 08/03/2018)
Case transferred as to Counts I, II, and III of the complaint to the USDC for the Southern District of California, pursuant to Court Order entered 08/03/2018. Sent to Court Electronically. (zrdj) [Transferred from District of Columbia on 8/6/2018.] (Entered: 08/03/2018)
25 OPINION granting defendants' motion to transfer venue 19 . Signed by Judge Paul L. Friedman on August 3, 2018. (lcplf1) [Transferred from District of Columbia on 8/6/2018.] (Entered: 08/03/2018)
27 Judge Dana M. Sabraw and Magistrate Judge Bernard G. Skomal assigned to transfer case from District of Columbia. (no document attached) (sjt) (Entered: 08/06/2018)
26 Case transferred in from District of District of Columbia; Case Number 1:18−cv−01759. Original file received electronically (Entered: 08/06/2018)
28 NOTICE of Appearance by Sarah B. Fabian on behalf of Alex Azar, DANIEL A. BIBLE, L. FRANCIS CISSNA, Scott Lloyd, Kevin K. McAleenan, KIRSTJEN NIELSEN, Office of Refugee Resettlement, Jefferson Beauregard Sessions, III, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Health and Human Services, United States Department of Homeland Security, United States Immigration and Customs Enforcement, Ronald Vitiello (Fabian, Sarah)Attorney Sarah B. Fabian added to party Alex Azar(pty:dft), Attorney Sarah B. Fabian added to party DANIEL A. BIBLE(pty:dft), Attorney Sarah B. Fabian added to party L. FRANCIS CISSNA(pty:dft), Attorney Sarah B. Fabian added to party Scott Lloyd(pty:dft), Attorney Sarah B. Fabian added to party Kevin K. McAleenan(pty:dft), Attorney Sarah B. Fabian added to party KIRSTJEN NIELSEN(pty:dft), Attorney Sarah B. Fabian added to party Office of Refugee Resettlement(pty:dft), Attorney Sarah B. Fabian added to party Jefferson Beauregard Sessions, III(pty:dft), Attorney Sarah B. Fabian added to party U.S. Citizenship and Immigration Services(pty:dft), Attorney Sarah B. Fabian added to party U.S. Customs and Border Protection(pty:dft), Attorney Sarah B. Fabian added to party U.S. Department of Health and Human Services(pty:dft), Attorney Sarah B. Fabian added to party United States Department of Homeland Security(pty:dft), Attorney Sarah B.

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Fabian added to party United States Immigration and Customs Enforcement(pty:dft), Attorney Sarah B. Fabian added to party Ronald Vitiello(pty:dft) (aef). (Entered: 08/06/2018)
29 MINUTE ORDER OF TRANSFER. Pursuant to related case 18CV0428−DMS−MDD, case reassigned to Magistrate Judge Mitchell D. Dembin for all further proceedings. The new case number is 18cv1832−DMS−MDD. Case association to 18cv428−DMS−MDD created.(no document attached) (sjt) (Entered: 08/07/2018)
30 NOTICE of Appearance by Michael M. Maddigan on behalf of M.M.M. (Maddigan, Michael)Attorney Michael M. Maddigan added to party M.M.M.(pty:pla) (aef). (Entered: 08/07/2018)
31 SUPPLEMENTAL DOCUMENT by M.M.M. re 6 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order Plaintiffs' Supplemental Memorandum of Law in Support of Motion for Temporary Restraining Order. (Maddigan, Michael) (aef). (Entered: 08/07/2018)
32 SUPPLEMENTAL DOCUMENT by Ms. C., Ms. L. Ms. L. Plaintiffs' Memorandum Regarding Reunification Forms. (Amdur, Spencer) (aef). (Entered: 08/07/2018)
33 SUPPLEMENTAL DOCUMENT by M.M.M. re 6 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order Exhibit A to Plaintiffs' Supplemental Memorandum of Law in Support of Motion for Temporary Restraining Order. (Maddigan, Michael) (aef). (Entered: 08/07/2018)
34 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974−11534889.) (Application to be reviewed by Clerk.) (Weymouth, Theodore (T.)) Modified on 8/8/2018 − Atty to refile re missing signature. (mdc) (Entered: 08/07/2018)
35 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974−11534909.) (Application to be reviewed by Clerk.) (Nelson, Katherine) Modified on 8/8/2018 − Atty to refile re missing signature. (mdc) (Entered: 08/07/2018)
36 NOTICE of Appearance by Justin W. Bernick on behalf of G.C.H., I.A.T., L.C.O., M.M.M., N.B., P.A.P. (Attachments: # 1 Proof of Service)(Bernick, Justin)Attorney Justin W. Bernick added to party G.C.H.(pty:pla), Attorney Justin W. Bernick added to party I.A.T.(pty:pla), Attorney Justin W. Bernick added to party L.C.O.(pty:pla), Attorney Justin W. Bernick added to party M.M.M.(pty:pla), Attorney Justin W. Bernick added to party N.B.(pty:pla), Attorney Justin W. Bernick added to party P.A.P.(pty:pla) Modified on 8/8/2018−Notified attorney re filing PHV application (aef). (Entered: 08/07/2018)
37 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974−11535623.) (Application to be reviewed by Clerk.) (Bernick, Justin) (mdc) (Entered: 08/08/2018)
38 Request to Appear Pro Hac Vice, ( Filing fee received: $ 206 receipt number 0974−11534889 − See 34 .) (Application to be reviewed by Clerk.) (Weymouth, Theodore (T.)) Modified text on 8/8/2018 re filing fee info. (mdc) (Entered: 08/08/2018)
39 Request to Appear Pro Hac Vice, (Filing fee received: $ 206 receipt number 0974−11534909 − See 35 .) (Application to be reviewed by Clerk.) (Nelson, Katherine) Modified text on 8/8/2018 re filing fee info. (mdc) (Entered: 08/08/2018)
40 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974−11535794.) (Application to be reviewed by Clerk.) (Best, Zachary) (mdc) (Entered: 08/08/2018)
41 Minute Entry for proceedings held before Judge Dana M. Sabraw: Motion Hearing held on 8/8/2018 re MOTION for Temporary Restraining Order filed by N.B., G.C.H., I.A.T., L.C.O., P.A.P., M.M.M. All counsel appearing telephonically. Court to issue order.(Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Zachary Best, Justin Bernick). (Defendant Attorney Scott Stewart, Sarah Fabian). (Lee Gelernt for plaintiffs in 18cv0428−DMS (Ms. L) and Jennifer Levy and Charles Reiter for plaintiffs in

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18cv1626−DMS (N.T.C.)).(no document attached) (jak) (Entered: 08/08/2018)
42 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Telephonic Motion Hearing) held on 8/8/2018, before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 8/29/2018. Redacted Transcript Deadline set for 9/10/2018. Release of Transcript Restriction set for 11/6/2018. (Transcript filed in case numbers 3:18−cv−00428−DMS−MDD, 3:18−cv−01626−DMS−JLB, and 3:18−cv−01832−DMS−MDD.) (All non−registered users served via U.S. Mail Service. Notice of electronic filing only.) (akr) (Entered: 08/09/2018)
44 ORDER Approving the Pro Hac Vice Application of Katherine A. Nelson (Re: Doc. No. 39 Request to Appear Pro Hac Vice). Signed by Judge Dana M. Sabraw on 8/8/2018.(All non−registered users served via U.S. Mail Service)(jrd) (Entered: 08/09/2018)
45 ORDER Approving the Pro Hac Vice Application of Theodore (T.) Clark Weymouth (Re: Doc. No. 38 Request to Appear Pro Hac Vice). Signed by Judge Dana M. Sabraw on 8/8/2018.(All non−registered users served via U.S. Mail Service)(jrd) (Entered: 08/09/2018)
46 ORDER Approving the Pro Hac Vice Application of Justin W. Bernick (Re: Doc. No. 37 Request to Appear Pro Hac Vice). Signed by Judge Dana M. Sabraw on 8/8/2018.(All non−registered users served via U.S. Mail Service)(jrd) (Entered: 08/09/2018)
47 ORDER Approving the Pro Hac Vice Application of Zachary W. H. Best (Re: Doc. No. 40 Request to Appear Pro Hac Vice). Signed by Judge Dana M. Sabraw on 8/8/2018.(All non−registered users served via U.S. Mail Service)(jrd) (Entered: 08/09/2018)
43 NOTICE of Appearance by Ira M. Feinberg on behalf of G.C.H., I.A.T., L.C.O., M.M.M., N.B., P.A.P. (Attachments: # 1 Proof of Service)(Feinberg, Ira) (aef). (Entered: 08/09/2018)
48 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974−11541200.) (Application to be reviewed by Clerk.) (Costello−Essig, Haley) (mdc) (Entered: 08/09/2018)
49 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974−11548604.) (Application to be reviewed by Clerk.) (Armas, Oliver) (mdc) (Entered: 08/10/2018)
50 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 8/10/2018. All parties appeared telephonically. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Zachary Best, Justin Bernick). (Defendant Attorney Sarah Fabian, Scott Stewart). (Lee Gelernt for plaintiffs in 18cv0428−DMS (Ms. L), Charles Reiter, Jennifer Levy and Gregory Copeland for plaintiffs in 18cv1626−DMS (N.T.C.)). (no document attached) (jak) (Entered: 08/10/2018)
51 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Telephonic Status Conference) held on 8/10/2018, before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 9/4/2018. Redacted Transcript Deadline set for 9/13/2018. Release of Transcript Restriction set for 11/12/2018. (Transcript filed in case numbers 3:18−cv−00428−DMS−MDD, 3:18−cv−01626−DMS−JLB, and 3:18−cv−01832−DMS−MDD.) (All non−registered users served via U.S. Mail

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Service. Notice of electronic filing only.) (akr) (Entered: 08/13/2018)
52 ORDER Approving the Pro Hac Vice Application of Haley K. Costello−Essig (Re: Doc. No. 48 Request to Appear Pro Hac Vice). Signed by Judge Dana M. Sabraw on 8/13/2018.(jrd) (Entered: 08/14/2018)
53 ORDER Approving the Pro Hac Vice Application of Oliver J. Armas (Re: Doc. No. 49 Request to Appear Pro Hac Vice). Signed by Judge Dana M. Sabraw on 8/13/2018.(jrd) (Entered: 08/14/2018)
54 NOTICE of Plaintiffs' Response to Defendants' Plan for Reunification of Separated Minors with Removed Parents by G.C.H., I.A.T., L.C.O., M.M.M., N.B., P.A.P. (Attachments: # 1 Proof of Service)(Maddigan, Michael) (aef). (Entered: 08/16/2018)
55 ORDER Granting 6 Plaintiffs' Motion for Temporary Restraining Order. The Court hereby GRANTS Plaintiffs' motion for a temporary restraining order. A status conference will be held on August 24, 2018, at 1:00 p.m. Signed by Judge Dana M. Sabraw on 8/16/2018. (aef) (Entered: 08/16/2018)
56 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 8/17/2018. All counsel appeared telephonically. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Justin Bernick, Zachary Best). (Defendant Attorney Sarah Fabian, Scott Stewart, August Flentje). (Lee Gelernt for plaintiffs in 18cv0428−DMS).. (no document attached) (jak) (Entered: 08/17/2018)
57 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Telephonic Status Conference) held on 8/17/2018 before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 9/7/2018. Redacted Transcript Deadline set for 9/17/2018. Release of Transcript Restriction set for 11/15/2018. (Transcript filed in case numbers 3:18−cv−00428−DMS−MDD, 3:18−cv−01626−DMS−JLB, and 3:18−cv−01832−DMS−MDD.) (akr) (Entered: 08/20/2018)
58 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 8/24/2018. All counsel appeared telephonically. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Zachary Best, Justin Bernick). (Defendant Attorney Scott Stewart, Sarah Fabian). (For Plaintiffs in 18cv0428 Ms. L − Lee Gelernt, Stephen Kang. For Plaintiffs in 18cv1626−DMS NTC − Jennifer Levy, Harrison (Buzz) Frahn).(no document attached) (jak) (Entered: 08/24/2018)
59 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 8/24/2018, before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 9/17/2018. Redacted Transcript Deadline set for 9/27/2018. Release of Transcript Restriction set for 11/26/2018. (Transcript filed in case numbers 3:18−cv−00428−DMS−MDD, 3:18−cv−01626−DMS−JLB, and 3:18−cv−01832−DMS−MDD.) (akr) (Entered: 08/27/2018)
60 NOTICE of Plaintiffs' Response to Joint Status Report by G.C.H., I.A.T., L.C.O., M.M.M., N.B., P.A.P. (Attachments: # 1 Proof of Service)(Maddigan, Michael) (aef). (Entered: 08/31/2018)
61 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 8/31/2018. All counsel appeared telephonically. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Justin Bernick, T. Weymouth). (Defendant Attorney Scott Stewart, Sarah Fabian). (For Plaintiffs in 18cv0428 Ms. L − Lee Gelernt). For Plaintiffs in 18cv1626−DMS NTC − Jennifer Levy).(no document attached) (lrf)

08/31/2018
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(Entered: 08/31/2018)
62 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Telephonic Status Conference) held on 8/31/2018, before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 9/21/2018. Redacted Transcript Deadline set for 10/1/2018. Release of Transcript Restriction set for 11/29/2018. (Transcript filed in case numbers 3:18−cv−00428−DMS−MDD, 3:18−cv−01626−DMS−JLB, and 3:18−cv−01832−DMS−MDD.) (akr) (Entered: 08/31/2018)
63 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Hearing held on 9/7/2018. All parties appeared telephonically. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Zachary Best, Justin Bernick). (Defendant Attorney Scott Stewart and Sarah Fabian). (Lee Gelernt for plaintiffs in 18cv0428−DMS, Jennifer Levy for plaintiffs in 18cv1626−DMS).(no document attached) (jak) (Entered: 09/07/2018)
64 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Telephonic Status Conference) held on 9/7/2018, before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 9/28/2018. Redacted Transcript Deadline set for 10/9/2018. Release of Transcript Restriction set for 12/6/2018. (Transcript filed in case numbers 3:18−cv−00428−DMS−MDD, 3:18−cv−01626−DMS−JLB, and 3:18−cv−01832−DMS−MDD.) (akr) (Entered: 09/10/2018)
65 NOTICE LODGING AGREEMENT FOR COURTS APPROVAL by Alex Azar, Daniel A. Bible, L. Francis Cissna, Scott Lloyd, Kevin K. McAleenan, Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson Beauregard Sessions, III, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Health and Human Services, United States Department of Homeland Security, United States Immigration and Customs Enforcement, Ronald Vitiello (Attachments: # 1 Exhibit)(Fabian, Sarah)(aef). (Entered: 09/12/2018)
66 NOTICE re: Rule 23(e) Requirements by Catholic Charities Community Services of the Archdiocese of New York re 65 Notice (Other),, (Glynn, Katie)Attorney Katie Rose Glynn added to party Catholic Charities Community Services of the Archdiocese of New York(pty:ip) (aef). (Entered: 09/14/2018)
67 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Telephonic Status Conference) held on 9/14/2018, before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 10/9/2018. Redacted Transcript Deadline set for 10/19/2018. Release of Transcript Restriction set for 12/17/2018. (Transcript filed in case numbers 3:18−cv−00428−DMS−MDD, 3:18−cv−01626−DMS−JLB, and 3:18−cv−01832−DMS−MDD.) (akr) (Entered: 09/18/2018)
68 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 9/21/2018. All parties appeared telephonically. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Justin Bernick). (Defendant Attorney Scott Stewart, Sarah Fabian). (For Plaintiffs in 18cv0428−DMS Ms. L.: Anand Balakrishnan, Stephen Kang. For Plaintiffs in 18cv1626−DMS NTC: Jennifer Levy. For Plaintiffs in

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18cv1769−DMS RGH: Rex Chen, Caroline Heller, Jack McBride. For Plaintiffs in Dora case: Sirine Shebaya, Wilson Barmeyer). (no document attached) (jak) (Entered: 09/21/2018)
69 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Telephonic Status Conference) held on 9/21/2018, before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 10/12/2018. Redacted Transcript Deadline set for 10/22/2018. Release of Transcript Restriction set for 12/20/2018. (Transcript filed in case numbers 3:18−cv−00428−DMS−MDD, 3:18−cv−01626−DMS−JLB, and 3:18−cv−01832−DMS−MDD.) (akr) (Entered: 09/24/2018)
70 MOTION to Withdraw as Attorney by Alex Azar, Daniel A. Bible, Catholic Charities Community Services of the Archdiocese of New York, L. Francis Cissna, Scott Lloyd, Kevin K. McAleenan, Ms. C., Ms. L., Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson Beauregard Sessions, III, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Health and Human Services, United States Department of Homeland Security, United States Immigration and Customs Enforcement, Ronald Vitiello. (Yuh, Briana) (aef). (Entered: 09/28/2018)
71 STATUS REPORT re: Stipulated Extension of Time to Answer Complaint by Alex Azar, Daniel A. Bible, L. Francis Cissna, Scott Lloyd, Kevin K. McAleenan, Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson Beauregard Sessions, III, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Health and Human Services, United States Department of Homeland Security, United States Immigration and Customs Enforcement, Ronald Vitiello. (Robins, Jeffrey) (aef). (Entered: 10/01/2018)
72 ORDER Granting 71 Joint Stipulated Extension of Time for Defendants to Answer Plaintiffs' Complaint. IT IS HEREBY ORDERED that Defendants answer to Plaintiffs' second amended complaint shall be due Tuesday, October 31, 2018. Signed by Judge Dana M. Sabraw on 10/2/2018. (aef) (Entered: 10/02/2018)
73 MOTION for Settlement Preliminary Certification of Settlement Classes, and Approval of Class Notice by G.C.H., I.A.T., L.C.O., M.M.M., N.B., P.A.P.. (Attachments: # 1 Notice Proposed Class Notice)(Maddigan, Michael) (aef). (Entered: 10/05/2018)
74 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 10/9/2018. All parties appeared telephonically. Amended complaint to be filed in 18cv0428−DMS−MDD (Ms. L). The Court will enter the order granting preliminary approval following entry of the amended complaint. (Further Status Conference set for 10/16/2018 01:00 PM in Courtroom 13A before Judge Dana M. Sabraw, Final Approval Hearing set for 11/15/2018 10:30 AM in Courtroom 13A before Judge Dana M. Sabraw.)(Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Zachary Best, Justin Bernick). (Defendant Attorney Sarah Fabian, Scott Stewart). (Lee Gelernt for Plaintiffs in 18cv0428 Ms. L., Jennifer Levy for Plaintiffs in 18cv1626 N.T.C., Caroline Heller for Plaintiffs in 18cv1769 R.G.H., Sirine Shebaya, Wilson Barmeyer and Carol McClarnos for Plaintiffs in Dora case.) (no document attached) (jak) (Entered: 10/09/2018)
75 ORDER Granting 73 Preliminary Approval of Proposed Settlement; Preliminarily Certifying the Settlement Classes; and Approving Class Notice. Signed by Judge Dana M. Sabraw on 10/9/2018. (aef) (Entered: 10/09/2018)
76 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Telephonic Status Conference) held on 10/9/2018 before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from

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10/15/2018 10/15/2018 10/16/2018 10/16/2018
10/16/2018

the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 10/30/2018. Redacted Transcript Deadline set for 11/9/2018. Release of Transcript Restriction set for 1/7/2019. (Transcript filed in case numbers 3:18−cv−00428−DMS−MDD, 3:18−cv−01626−DMS−JLB, and 3:18−cv−01832−DMS−MDD.) (akr) (Entered: 10/10/2018)
77 MOTION for Order Requiring Implementation of Settlement Agreement by G.C.H., I.A.T., L.C.O., M.M.M., N.B., P.A.P.. (Attachments: # 1 Memo of Points and Authorities, # 2 Proposed Order)(Maddigan, Michael) (aef). (Entered: 10/10/2018)
78 NOTICE of Appearance by Katie Rose Glynn on behalf of Catholic Charities Community Services of the Archdiocese of New York (Glynn, Katie) (aef). (Entered: 10/11/2018)
79 ORDER Requesting Response. (Re ECF 77 ) The Court is in receipt of the emergency motion to require implementation of the settlement agreement filed by Plaintiffs in the above−captioned cases. Defendants shall file a response to the motion on or before October 15, 2018. Unless otherwise ordered, the Court will take the matter under submission without oral argument. Signed by Judge Dana M. Sabraw on 10/11/2018.(aef) (Entered: 10/11/2018)
80 Request to Appear Pro Hac Vice, (Filing fee received: $ 206 receipt number 0974−11772796 − See 18cv428−DMS−MDD, # 262). (Application to be reviewed by Clerk.) (Weiss, Catherine) Modified text on 10/15/2018 to include filing fee info. (mdc) (Entered: 10/12/2018)
81 RESPONSE in Opposition re 77 MOTION for Order Requiring Implementation of Settlement Agreement filed by Alex Azar, Daniel A. Bible, L. Francis Cissna, Scott Lloyd, Kevin K. McAleenan, Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson Beauregard Sessions, III, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Health and Human Services, United States Department of Homeland Security, United States Immigration and Customs Enforcement, Ronald Vitiello. (Attachments: # 1 Exhibit, # 2 Exhibit)(Fabian, Sarah) (aef). (Entered: 10/15/2018)
83 OBJECTION to the October 5, 2018 Settlement Agreement by Lesbi Martinez−Martinez. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(aef) (Entered: 10/16/2018)
84 ORDER Approving the Pro Hac Vice Application of Catherine Weiss (Re: Doc. No. 80 Request to Appear Pro Hac Vice). Signed by Judge Dana M. Sabraw on 10/15/2018.(jrd) (Entered: 10/16/2018)
82 REPLY to Response to Motion re 77 MOTION for Order Requiring Implementation of Settlement Agreement filed by G.C.H., I.A.T., L.C.O., M.M.M., N.B., P.A.P.. (Maddigan, Michael) (aef). (Entered: 10/16/2018)
85 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 10/16/2018. All parties appeared telephonically. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Zachary Best, Justin Bernick). (Defendant Attorney Sarah Fabian, Scott Stewart). (Lee Gelernt, Anand Balakrishnan, Sirine Shebays, Wilson Barmeyer for plaintiffs in 18cv0428−DMS Ms. L and Dora; Jennifer Levy and Beth Kraus for plaintiffs in 18cv1626−DMS N.T.C.).(no document attached) (jak) (Entered: 10/16/2018)
86 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Telephonic Status Conference) held on 10/16/2018, before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 11/6/2018. Redacted Transcript Deadline set for 11/16/2018. Release of Transcript Restriction set for 1/14/2019. (Transcript

10/18/2018
10/23/2018 11/01/2018
11/05/2018 11/07/2018
11/07/2018 11/08/2018 11/09/2018 11/09/2018 11/09/2018

filed in case numbers 3:18−cv−00428−DMS−MDD, 3:18−cv−01626−DMS−JLB, and 3:18−cv−01832−DMS−MDD.) (akr) (Entered: 10/17/2018)
87 ORDER on 77 Plaintiffs' Emergency Motion to Require Implementation of Settlement Agreement. The Court grants Plaintiffs' motion to require implementation of the parties' settlement agreement. Specifically, the Court orders Defendants to begin the asylum process provided for in the agreement to those class members that are in detention and have executed an election form. Signed by Judge Dana M. Sabraw on 10/18/2018. (aef) (Entered: 10/18/2018)
88 OBJECTION to the October 5, 2018 Settlement Agreement by Egla Arely Velasquez Molina. (Attachments: # 1 Table of Contents, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E)(aef) (Entered: 10/23/2018)
89 STATUS REPORT re: Stipulated Extension of Time to Answer Complaint by Alex Azar, Daniel A. Bible, L. Francis Cissna, Scott Lloyd, Kevin K. McAleenan, Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson Beauregard Sessions, III, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Health and Human Services, United States Department of Homeland Security, United States Immigration and Customs Enforcement, Ronald Vitiello. (Robins, Jeffrey) Modified on 11/2/2018 QC mail re wrong event; motion added (aef). (Entered: 11/01/2018)
90 ORDER Granting 89 Joint Stipulated Extension of Time for Defendants to Answer Plaintiffs' Complaint. IT IS HEREBY ORDERED that Defendants answer to Plaintiffs' second amended complaint shall be due on or before Tuesday, January 1, 2019. Signed by Judge Dana M. Sabraw on 11/5/2018. (aef) (Entered: 11/05/2018)
92 Notice of Document Discrepancies and Order Thereon by Judge Dana M. Sabraw Accepting Document: Notice of class member's objection to proposed settlement, from Objector Krismi Rosmari Mac Catun. Non−compliance with local rule(s), Civ. L. Rule 7.1: Date noticed for hearing not in compliance with rules/documents are not timely; per docket #75, paragraph 11. Nunc Pro Tunc 11/5/2018. Signed by Judge Dana M. Sabraw on 11/7/2018.(aef) (Entered: 11/08/2018)
93 Notice of class member's objection to proposed settlement by Krismi Rosmari Mac Catun. Nunc Pro Tunc 11/5/2018. (aef) (Entered: 11/08/2018)
91 ORDER Requesting Response. In anticipation of the hearing on final approval of the settlement in these cases, the Court requests written responses from the parties to the objections. The parties' responses shall be filed on or before 12:00 noon on November 14, 2018. Signed by Judge Dana M. Sabraw on 11/8/2018.(aef) (Entered: 11/08/2018)
94 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 11/9/2018. All parties appeared telephonically. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Zachary Best, Justin Bernick). (Defendant Attorney Sarah Fabian, Scott Stewart). (Lee Gelernt for plaintiffs in 18cv0428 Ms. L.).(no document attached) (jak) (Entered: 11/09/2018)
95 MOTION for Order for Final Approval of Class Action Settlement by G.C.H., I.A.T., L.C.O., M.M.M., N.B., P.A.P.. (Attachments: # 1 Memo of Points and Authorities, # 2 Proposed Order)(Maddigan, Michael) (aef). (Entered: 11/09/2018)
96 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Telephonic Status Conference) held on 11/9/2018 before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 11/30/2018. Redacted Transcript Deadline set for 12/10/2018. Release of Transcript Restriction set for 2/7/2019. (Transcript filed in case numbers 3:18−cv−00428−DMS−MDD, 3:18−cv−01626−DMS−JLB, and 3:18−cv−01832−DMS−MDD.) (akr) (Entered: 11/09/2018)

11/13/2018 11/14/2018 11/15/2018 11/15/2018
11/30/2018 12/04/2018
12/14/2018 12/18/2018
12/26/2018

98 NOTICE of Class Member's Withdrawal of Objection to Proposed Settlement by K.R.M.C. (aef) (Entered: 11/14/2018)
97 REPLY − Other re 88 Objection, 83 Objection, 93 Objection Joint Response to Objections to Class Action Settlement filed by G.C.H., I.A.T., L.C.O., M.M.M., N.B., P.A.P.. (Maddigan, Michael) (aef). (Entered: 11/14/2018)
99 ORDER Certifying the Settlement Classes and Granting Final Approval of Class Action Settlement. (ECF 95 ) Signed by Judge Dana M. Sabraw on 11/15/2018. (aef) (Entered: 11/15/2018)
100 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 11/15/2018 before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 12/6/2018. Redacted Transcript Deadline set for 12/17/2018. Release of Transcript Restriction set for 2/13/2019. (Transcript filed in case numbers 3:18−cv−00428−DMS−MDD, 3:18−cv−01626−DMS−JLB, and 3:18−cv−01832−DMS−MDD.) (akr) (Entered: 11/15/2018)
101 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 11/30/2018(Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Zachary Best, Justin Bernick). (Defendant Attorney Scott Steward, Sarah Fabian). (Lee Gelernt, Anan Balakrishnan, Sirine Shebaya for Plaintiffs in 18cv0428−DMS Ms. L, Jennifer Levy for Plaintiffs in 18cv1626−DMS NTC, Steven Herzog for Steering Committee, Joshua Tull for objectors). (no document attached) (jak) (Entered: 11/30/2018)
102 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Telephonic Status Conference) held on 11/30/2018 before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 12/26/2018. Redacted Transcript Deadline set for 1/4/2019. Release of Transcript Restriction set for 3/4/2019. (Transcript filed in case numbers 3:18−cv−00428−DMS−MDD, 3:18−cv−01626−DMS−JLB, and 3:18−cv−01832−DMS−MDD.) (akr) (Entered: 12/04/2018)
103 Minute Entry for proceedings held before Judge Dana M. Sabraw: Telephonic Status Conference held on 12/14/2018, with 18cv0428−DMS. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Zachary Best). (Defendant Attorney Scott Stewart Nicole Murley). (no document attached) (jak) (Entered: 12/14/2018)
104 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Telephonic Status Conference) held on 12/14/2018 before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 1/8/2019. Redacted Transcript Deadline set for 1/18/2019. Release of Transcript Restriction set for 3/18/2019. (Transcript filed in case numbers 3:18−cv−00428−DMS−MDD, 3:18−cv−01626−DMS−JLB, and 3:18−cv−01832−DMS−MDD.) (akr) (Entered: 12/18/2018)
105 MOTION to Stay All Case Deadlines Due To Lapse in Appropriations by Alex Azar, Daniel A. Bible, L. Francis Cissna, Scott Lloyd, Kevin K. McAleenan, Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson Beauregard Sessions, III, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S.

12/27/2018 02/08/2019 02/08/2019 02/11/2019
02/21/2019 02/22/2019
02/25/2019
03/07/2019

Department of Health and Human Services, United States Department of Homeland Security, United States Immigration and Customs Enforcement, Ronald Vitiello. (Fabian, Sarah) (sjm). (Entered: 12/26/2018)
106 ORDER granting 105 Motion to Stay. Case stayed until Congress has appropriated funds for the Department. Signed by Judge Dana M. Sabraw on 12/27/2018. (sjm) (Entered: 12/27/2018)
107 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 2/8/2019. All parties appeared telephonically. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Zachary Best). (Defendant Attorney Sarah Fabian, Scott Stewart). (For plaintiffs in 18cv0428 Ms. L: Lee Gelernt, Anan Balakrishnan. For Dora Plaintiffs: Sirine Shebaya, Wilson Barmeyer. For objectors: Catherine Weiss. For Steering Committee: Steven Herzog. (no document attached) (jak) (Entered: 02/08/2019)
108 ORDER on Further Clarifications to Settlement Agreement of November 15, 2018. Signed by Judge Dana M. Sabraw on 2/8/2019.(aef) (Entered: 02/08/2019)
109 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Telephonic Status Conference) held on 2/8/2019 before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 3/4/2019. Redacted Transcript Deadline set for 3/14/2019. Release of Transcript Restriction set for 5/13/2019. (Transcript filed in case numbers 3:18−cv−00428−DMS−MDD and 3:18−cv−01832−DMS−MDD.) (akr) (Entered: 02/12/2019)
110 Minute Entry for proceedings held before Judge Dana M. Sabraw: Motion Hearing held on 2/21/2019, re motions in related case 18cv0428−DMS. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Zachary Best(telephonically)). (Defendant Attorney Sarah Fabian, Scott Stewart). (For plaintiffs in 18cv0428 Ms. L: Lee Gelernt, Stephen Kang, Anan Balakrishnan(teleph), Dora plaintiffs: Sirine Shebaya(teleph), Wilson Barmeyer(teleph)).(no document attached) (jak) (Entered: 02/21/2019)
111 ORDER on Plaintiffs' Motion to Enforce Settlement Conference Agreement for Class Members who have not submitted executed waiver forms. It is hereby ordered on or before February 28, 2019, defense counsel shall provide to Class Counsel the list of persons subject to removal. Counsel shall meet and confer on the best way to cull that list down to persons with expedited removal orders. Defense counsel shall advise Immigration and Customs Enforcement that class members subject to the settlement agreement in this case may not be removed without first providing them with notice of the settlement and an opportunity to decide whether they wish to take advantage of the settlement procedures or waive those procedures. Counsel shall provide the Court with an update on these issues in the next Joint Status Report. Signed by Judge Dana M. Sabraw on 2/22/2019.(aef) (Entered: 02/22/2019)
112 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Motion Hearing) held on 2/21/2019 before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 3/18/2019. Redacted Transcript Deadline set for 3/28/2019. Release of Transcript Restriction set for 5/28/2019. (Transcript filed in case numbers 3:18−cv−00428−DMS−MDD and 3:18−cv−01832−DMS−MDD.) (akr) (Entered: 02/25/2019)
113 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 3/7/2019. All counsel appeared telephonically. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Zachary Best). (Defendant Attorney Sarah Fabian, Scott

03/28/2019 03/28/2019
04/16/2019 04/17/2019
05/06/2019 05/08/2019 05/08/2019

Stewart). (for 18cv0428 Ms. L plaintiffs: Lee Gelernt, Sirine Shebaya, Wilson Barmeyer. Steven Herzog for Steering Committee, Catherine Weiss for objectors).(no document attached) (jak) (Entered: 03/07/2019)
114 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 3/28/2019. All parties appeared telephonicall. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Zachary Best). (Defendant Attorney Scott Stewart, Sarah Fabian). (for 18cv0428 Ms. L plaintiffs − Lee Gelernt. For Dora plaintiffs − Sirine Shebaya, Wilson Barmeyer, Emily Bork). For Steering Committee, Steven Herzog. For objectors, Catherine Weiss).(no document attached) (jak) (Entered: 03/28/2019)
115 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Status Conference) held on 3/28/2019 before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 4/18/2019. Redacted Transcript Deadline set for 4/29/2019. Release of Transcript Restriction set for 6/26/2019. (Transcript filed in case numbers 3:18−cv−00428−DMS−MDD and 3:18−cv−01832−DMS−MDD.) (akr) (Entered: 03/28/2019)
116 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 4/16/2019. All parties appeared telephonically. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Zachary Best). (Defendant Attorney Scott Stewart, Sarah Fabian). (Lee Gelernt, Daniel Galindo for 18cv0428 Ms. L plaintiffs; Sirine Shebaya, Wilson Barmeyer for Dora plaintiffs; Steven Herzog for Steering Committee; Catherine Weiss for objectors).(no document attached) (jak) (Entered: 04/16/2019)
117 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Status Conference) held on 4/16/2019 before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 5/8/2019. Redacted Transcript Deadline set for 5/20/2019. Release of Transcript Restriction set for 7/16/2019. (Transcript filed in case numbers 3:18−cv−00428−DMS−MDD and 3:18−cv−01832−DMS−MDD.) (akr) (Entered: 04/17/2019)
118 NOTICE of Hearing: Status Conference set for 5/8/2019 01:00 PM in Courtroom 13A before Judge Dana M. Sabraw. (no document attached) (jak) (Entered: 05/06/2019)
119 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 5/8/2019. All counsel appeared telephonically. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Zachary Best). (Defendant Attorney Sarah Fabian). (Other appearances: for 18cv0428 Ms. L plaintiffs − Lee Gelernt, Daniel Galindo. For Dora plaintiffs − Wilson Barmeyer). (Steven Herzog for Steering Committee). (no document attached) (jak) (Entered: 05/08/2019)
120 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Status Conference) held on 5/8/2019 before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 5/29/2019. Redacted Transcript Deadline set for 6/10/2019. Release of Transcript Restriction set for 8/6/2019. (Transcript filed in case numbers 3:18−cv−00428−DMS−MDD and 3:18−cv−01832−DMS−MDD.) (akr) (Entered: 05/09/2019)

06/07/2019 07/12/2019 08/16/2019 09/19/2019 09/20/2019 10/18/2019 11/08/2019 12/06/2019 01/17/2020 03/06/2020

121 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 6/7/2019. All parties appeared telephonically. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Zachary Best). (Defendant Attorney Scott Stewart, Sarah Fabian). (for plaintiffs is 18cv0428 (Ms. L) Lee Gelernt, Daniel Galindo, Wilson Barmeyer. Crd Jonathan White HHS, Steven Herzog of Steering Committee, Catherine Weiss for objectors.).(no document attached) (jak) (Entered: 06/07/2019)
122 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 7/12/2019. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Zachary Best (telephonically). (Defendant Attorney Scott Stewart and Sarah Fabian (telephonically)). (Lee Gelernt, Anan Balakrishnan, Sirine Shebaya, Commander Jonathan White, Steven Herzog, Catherine Weiss, Linda Dakin Grimm).(no document attached) (jak) (Entered: 07/12/2019)
123 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 8/16/2019. All appearances were telephonic. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Zachary Best). (Defendant Attorney Sarah Fabian, Scott Stewart). (Lee Gelernt and Anan Balakrishnan for Ms. L plaintiffs, Wilson Barmeyer for Dora plaintiffs, Steven Herzog for Steering Committee, Catherine Weiss for objectors).(no document attached) (jak) (Entered: 08/19/2019)
124 ORDER Granting 70 Motion for Leave to as Attorney of Record. It is ORDERED that Briana Yuh is withdrawn from further representation of Defendants. Signed by Judge Dana M. Sabraw on 9/19/2019. (aef) (Entered: 09/19/2019)
125 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 9/20/2019. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Zachary Best). (Defendant Attorney Sarah Fabian, Scott Stewart). (Lee Gelernt, Stephen Kang and Daniel Galindo for plaintiffs in Ms. L) (All telephonically: Sirine Shebaya for Dora plaintiffs, Cmdr Jonathan White HHS, Victor Suh HHS counsel, Steven Herzog for Steering Committee, Catherine Weiss, Linda Dakin−Grimm).(no document attached) (jak) (Entered: 09/20/2019)
126 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 10/18/2019. All parties appeared telephonically. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Zachary Best). (Defendant Attorney Sarah Fabian, Scott Stewart). (Lee Gelernt for plaintiffs in Ms L, Wilson Barmeyer for Dora plaintiffs). (Steven Herzog for Steering Committee, Cdr Jonathan White, Victor Suh for HHS, Catherine Weiss for objectors).(no document attached) (jak) (Entered: 10/18/2019)
127 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 11/8/2019. All parties appeared telephonically. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Zachary Best). (Defendant Attorney Scott Stewart, Nicole Murley). (Lee Gelernt, Anand Balakrishnan, Daniel Galindo, Sirine Shebaya for plaintiffs in 18cv0428 Ms. L., Steven Herzog for Steering Committee, Cdr Jonathan White and Victor Suh for HHS, Catherine Weiss for legal service providers).(no document attached) (jak) (Entered: 11/08/2019)
128 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 12/6/2019. All parties appeared telephonically. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Zachary Best). (Defendant Attorney Scott Stewart, Nicole Murley). (Lee Gelernt, Stephen Kang and Emily Bork for plaintiffs in 18cv0428, Steven Herzog for Steering Committee, Catherine Weiss for objectors).(no document attached) (jak) (Entered: 12/06/2019)
129 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 1/17/2020. All parties appeared telephonically. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Zachary Best). (Defendant Attorney Nicole Murley). (For plaintiffs in 18cv0428 Ms. L − Lee Gelernt, Daniel Galindo, Stephen Kang. For Dora plaintiffs − Emily Bork). (HHS: Jean−Michel Voltaire, Victor Suh, Commander Jonathan White. for Steering Committee − Steven Herzog).(no document attached) (jak) (Entered: 01/17/2020)
130 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status Conference held on 3/6/2020. All parties appeared telephonically. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Katherine Nelson, Haley Costello−Essig). (Defendant

Attorney Sarah Fabian). (for plaintiffs in 18cv428 Ms. L − Lee Gelernt, Daniel Galindo, Sirine Shebaya, Emily Bork. Steven Herzog for Steering Committee, Catherine Weiss for objectors).(no document attached) (jak) (Entered: 03/06/2020)

 
 Case 3:18-cv-01832-DMS-MDD Document 4 Filed 07/27/18 PageID.11 Page 1 of 42
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

M.M.M., ON BEHALF OF HIS MINOR CHILD, J.M.A. 409 FM 1144 Kames City, TX, 78118
I.A.T., ON BEHALF OF HIS MINOR CHILD, E.A.H. 409 FM 1144 Kames City, TX, 78118
N.B., ON BEHALF OF HER MINOR CHILD, D.B.G. 1925 TX-85, Dilley, TX 78017
P.A.P., ON BEHALF OF HER MINOR CHILD, G.M.A. 1925 TX-85, Dilley, TX 78017
G.C.H., ON BEHALF OF HIS MINOR CHILD, A.M.C. 1925 TX-85, Dilley, TX 78017
L.C.O, ON BEHALF OF HER MINOR CHILD, L.A.A. 1925 TX-85, Dilley, TX 78017
Plaintiffs,

CIVIL ACTION NO. _ _ __
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

- v. -

JEFFERSON BEAUREGARD SESSIONS III, ATTORNEY GENERAL OF THE UNITED STATES, U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530;

Case 3:18-cv-01832-DMS-MDD Document 4 Filed 07/27/18 PageID.12 Page 2 of 42
KIRSTJEN NIELSEN, SECRETARY OF THE U.S. DEPARTMENT OF HOMELAND SECURITY, 25 Murray Lane SW Washington, DC 20528;
ALEX AZAR, SECRETARY OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES, 200 Independence Avenue SW Washington, DC 20201;
RONALD VITIELLO, ACTING DIRECTOR OF U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, 500 12th Street SW Washington, DC 20536;
L. FRANCIS CISSNA, DIRECTOR OF U.S. CITIZENSHIP AND IMMIGRATION SERVICES, 20 Massachusetts Avenue NW Room 4210, MS: 2120 Washington, DC 20529;
KEVIN K. MCALEENAN, COMMISSIONER OF U.S. CUSTOMS AND BORDER PROTECTION, 1300 Pennsylvania Avenue NW MS: 1345 Washington, DC 20229;
SCOTT LLOYD, DIRECTOR OF THE OFFICE OF REFUGEE RESETTLEMENT, Mary E. Switzer Building 330 C Street SW Washington, DC 20201;
DANIEL A. BIBLE, DIRECTOR OF ICE SAN ANTONIO FIELD OFFICE, 1777 NE Loop 41 0, Floor 15 San Antonio, TX 78217;
2

Case 3:18-cv-01832-DMS-MDD Document 4 Filed 07/27/18 PageID.13 Page 3 of 42
U.S. DEPARTMENT OF HOMELAND SECURITY, 245 Murray Lane SW Mailstop 0485 Washington, DC 20528;
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, 500 12th Street SW Washington, DC 20530;
U.S. CUSTOMS AND BORDER PROTECTION, 1300 Pennsylvania Avenue NW Washington, DC 20229;
U.S. CITIZENSHIP AND IMMIGRATION SERVICES, 20 Massachusetts Avenue NW Washington, DC 20529;
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, 200 Independence Avenue SW Washington, DC 20201;
OFFICE OF REFUGEE RESETTLEMENT, Mary E. Switzer Building 330 C Street SW Washington, DC 20201,
Defendants.
INTRODUCTION
1. This case concerns the U.S. government's denial of mandatory asylum procedures
to minor migrant children, including Plaintiffs, who were forcibly and unlawfully separated from
their parents and have been or will be reunified with them pursuant to the preliminary injunction
issued by the court in Ms . L v. U.S. Immigration and Customs E1~{orcement ("ICE"); eta!., Case
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No. 18-cv-00428-DMS (MOD) (S.D. Cal. June 26, 2018). Under the U.S. government's stated policy of immediate removal following reunification, Plaintiffs - and many other child migrants like them - are in imminent danger of being deported back to life-threatening conditions in their home countries, without any final order of removal and without ever having been given the chance to access asylum procedures that are guaranteed by both statute and the Constitution.
2. Many of the families who were subject to the U.S. government's "zero tolerance" separation policy were apprehended at or near the U.S. border with Mexico after fleeing lifethreatening conditions in certain Central American countries, including El Salvador, Guatemala, and Honduras. Many of these families, including Plaintiffs' families, came to the U.S. seeking refuge, and their forcible separation has caused both parents and children severe trauma and distress.
3. In its order granting a preliminary injunction against the U.S. government, the district court in Ms. L. recently catalogued some of this trauma. The court there determined that the separation policy likely violated the Due Process Clause of the Fifth Amendment because it was likely to be "so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience, . . . and is so brutal and offensive that it does not comport with traditional ideas of fair play and decency." Ms. L. v. US. Immigration and Customs E1~(orcement ("ICE'') , eta!., No. 18cv0428 OMS (MOD), 2018 WL 3129486, at *8, 1165- 66 (S.D. Cal., June 26, 2018) (internal quotations omitted). Given the likely unconstitutionality of the separation policy, the court ordered the U.S. government to stop separating families immediately, and to reunify all families that had already been separated by July 26, 2018. See id.
at *12.
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4. Having been ordered to end the unlawful separations, Plaintiffs are informed and believe that Defendants intend to embark on a policy of immediately deporting reunified families in which one of the parents has been given an expedited removal order, without honoring the minor children's individually vested rights to seek asylum. In furtherance of this policy, immigration officials have presented parents separated from their children with "removal fonns" in which they must choose between being deported alone or with their child. The apparent goal of these fonns is to pressure or coerce the parents to abandon not only their own rights, but also their children's rights to seek asylum. Upon information and belief, the government plans to rely on these waivers to immediately deport children who do not even have a final order of removal.
5. "A deportation hearing involves issues basic to human liberty and happiness and, in the present upheavals in lands to which aliens may be returned, perhaps to life itself." Wong Yang Sung v. McGrath, 339 U.S. 33, 50 (1950). And as the Supreme Court has recognized, "the Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or pennanent." Zadvydas v. Davis, 533 U.S. 678, 693 (200 1) (internal quotation omitted).
6. Here, the planned removal of these minor children and their parents without honoring the children's rights to apply for asylum deprives the children of their fundamental right to due process and to seek asylum prior to repatriation. Plaintiffs therefore ask this Court to invalidate and enjoin the U.S. government's unlawful policy to remove families before granting Plaintiffs access to the asylum procedures to which they are entitled by law. Plaintiffs request this relief on behalf of themselves and on behalf of a nationwide class, as set forth below.
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JURISDICTION AND VENUE 7. This court has subject-matter jurisdiction pursuant to 28 U.S.C. § 1331 because this action arises under the Constitution and the laws of the United States. Specifically, this action arises under the Immigration and Nationality Act ("INA"), the Fifth Amendment to the Constitution, the Administrative Procedure Act ("APA"), and the Mandamus Act. 8. Venue is proper under 28 U.S.C. § 1391(e) because several of the Defendants reside in this District, and upon infonnation and belief a substantial portion of the relevant facts occurred within this District, including the decision to implement the policy changes challenged in this action. 9. Jurisdiction and venue also are proper under 8 U.S.C. § 1252(e)(3), insofar as Plaintiffs' claims arise from or relate to the implementation or operation of an expedited removal order under 8 U.S.C. § 1225(b)(I), and/or in the event that the Court is reviewing a decision by the Attorney General to invoke the provisions of that section. In either case, jurisdiction is proper under 8 U.S.C. § l252(e)(3) because this action is a systemic challenge to the legal validity of written policies and procedures issued by or under the authority of the Attorney General that have been used to remove migrant children who were forcibly separated from their families upon apprehension at or near the U.S. border with Mexico and who are now reunited with parents who have received expedited removal orders.
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PARTIES 10. Each Plaintiff is a minor child and brings this action by and through his or her parent and next friend, in accordance with Federal Rule ofCivil Procedure 17(c). 11. J.M.A. emigrated to the U.S. from Honduras with his father and IS currently detained at the Kames County Residential Center in Kames, Texas. 12. E.A.H. emigrated to the U.S. from Honduras with his father and IS currently detained at the Kames County Residential Center in Kames, Texas. 13. D.B.G. emigrated to the U.S. from Honduras with her mother and is currently detained at the South Texas Family Residential Center in Dilley, Texas. 14. G.M.A. emigrated to the U.S. from Honduras with her mother and is currently detained at the South Texas Family Residential Center in Dilley, Texas. 15. A.M.C. emigrated to the U.S. from Honduras with his mother and is currently detained at the South Texas Family Residential Center in Dilley, Texas. 16. L.A.A. emigrated to the U.S. from Guatemala with her mother and is currently detained at the South Texas Family Residential Center in Dilley, Texas. 17. Defendant Jefferson Beauregard Sessions III is sued in his official capacity as the Attorney General of the United States. In this capacity, he is responsible for administering U.S. immigration laws pursuant to 8 U.S.C. § 1103 and has the authority to grant non-citizens asylum and other relief. 18. Defendant Kirstjen Nielsen is sued in her official capacity as the Secretary of the U.S. Department of Homeland Security. In this capacity, she directs the sub-agencies within the U.S. Department of Homeland Security: U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, and U.S. Customs and Border Protection. Secretary
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Nielsen is responsible for administering the U.S. immigration laws pursuant to 8 U.S.C. § 1103 and has the authority to grant non-citizens asylum and other relief.
19. Defendant Alex Azar is sued in his official capacity as the Secretary of the U.S. Department of Health and Human Services. In this capacity, he is responsible for overseeing the agency charged with enhancing and providing effective health and social services in the United States.
20. Defendant Ronald Vitiello is sued in his official capacity as the Acting Director of the U.S. Immigration and Customs Enforcement. In this capacity, he is responsible for civil and criminal enforcement of federal laws governing border control, customs, trade and immigration.
21. Defendant L. Francis Cissna is sued in his official capacity as the Director ofU.S. Citizenship and Immigration Services. In this capacity, he is responsible for overseeing the officers who conduct applicants' credible fear interviews and adjudicate applicants' asylum claims.
22. Defendant Kevin K. McAleenan is sued in his official capacity as the Commissioner of U.S. Customs and Border Protection. In this capacity, he oversees the agency responsible for securing U.S. borders regarding trade, immigration, and agricultural protection.
23. Defendant Scott Lloyd is sued in his official capacity as the Director of the Office of Refugee Resettlement. In this capacity, he is responsible for the agency that provides care and placement for children who have entered the U.S. without a guardian. His agency is also responsible for the care of children who were separated from their adult guardians at the U.S. border pursuant to the administration's "zero tolerance" policy.
24. Defendant Daniel A. Bible is sued in his official capacity as the Director of the San Antonio Field Office of U.S. Immigration and Customs Enforcement.
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25. Defendant U.S. Department of Homeland Security ("DHS") is the government agency responsible for enforcing the immigration laws of the United States.
26. Defendant U.S. Immigration and Customs Enforcement ("ICE") is the sub-agency of DHS responsible for carrying out removal orders and overseeing immigration detention in the United States.
27. Defendant U.S. Customs and Border Protection ("CBP") is the sub-agency of DHS responsible for the initial processing and detention of non-citizens who are apprehended at or near U.S. borders.
28. Defendant U.S. Citizenship and Immigration Services ("CIS") is the sub-agency of DHS responsible for conducting interviews of individuals apprehended at the border in order to detennine whether those individuals have a credible or reasonable fear of persecution in their home countries and should be permitted to seek asylum in the United States.
29. Defendant U.S. Department of Health and Human Services ("HHS") is a department of the executive branch of the Government that has been delegated with authority over "unaccompanied minors."
30. Defendant Office of Refugee Resettlement ("ORR") is a program of the Administration for Children and Families, an office of HHS responsible for providing care of and placement for "unaccompanied" non-citizen children who come to the United States.
FACTS A. The U.S. Govemment's Deliberate and New Immigration Policy Forcibly Separated
Child Migrants from Their Parents. 31. Earlier this year, the U.S. government initiated a "zero tolerance" policy on immigration, pursuant to which the U.S. government engaged in a widespread practice of separating migrant families who had been detained after crossing the U.S. border with Mexico.
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32. Over the course of several months, the U.S. government, including ICE, forcibly separated or oversaw the forcible separation of thousands of child migrants from their parents, dividing families with small children (including infants) who were seeking asylum. The separated children were transferred to the custody of ORR for placement elsewhere in the United States, in some cases hundreds of miles from their parents who remained in detention. Many families were separated for months, with little or no ability to communicate with one another.
33. The express purpose of the "zero tolerance" policy, according to Attorney General Sessions, was to deter migrant families from entering the United States without authorization.'
B. A Federal Court Found that the Separation Policy Likely Violates the Parents' Fifth Amendment Right to Family Integrity and Ordered the Federal Government to Reunify Families by July 26. 34. On June 26, 2018, Judge Dana Sabraw of the District Court for the Southern
District of California issued a preliminary injunction enjoining the U.S. government from detaining migrant parents without and apart from their minor children, and ordered the U.S. government to reverse the effects of its separation policy by reuniting families who had been separated within 30 days, absent a determination that the parent was unfit or presents a danger to the child. See Ms. L, 2018 WL 3129486 at *12.
35. In finding that a preliminary injunction was warranted based on several months of litigation and a robust record before the court, Judge Sabraw determined that the U.S.
U.S. Att'y Gen. Jeff Sessions, Attorney General Sessions Delivers Remarks Discussing the Immigration Enforcement Actions of the Trump Administration (May 7, 2018), https: //www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-discussingimmigration-enforcement-actions. As the Attorney General explained: "If you cross this border unlawfully, then we will prosecute you. It's that simple. If you smuggle illegal aliens across our border, then we will prosecute you. If you are smuggling a child, then we will prosecute you and that child will be separated from you as required by law. ... So if you're going to come to this country, come here legally. Don't come here illegally."
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government's separation policy likely violated the parents' Fifth Amendment right to family integrity because it could be considered:
so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience, ... interferes with rights implicit in the concept of ordered liberty, ... and is so brutal and offensive that it does not comport with traditional ideas of fair play and decency. !d. at *8 36. In evaluating whether the migrant parents would suffer irreparable injury without an injunction, Judge Sabraw also found that "the record in this case reflects that the separations at issue have been agonizing for the parents who have endured them," and that "separating children from their parents is a highly destabilizing, traumatic experience that has long term consequences on child well-being, safety, and development." Id at 9- 10 (internal quotations omitted). 37. Finally, Judge Sabraw noted his disappointment with the U.S. government's actions: "The facts set forth before the Court portray reactive governance- responses to address a chaotic circumstance of the Government's own making. They belie measured and ordered government, which is central to the concept of due process enshrined in our Constitution. This is particularly so in the treatment of migrants, many of whom are asylum seekers and small children." !d. 38. Unfortunately, these same words continue to describe the U.S. government's actions following the reunification of families, as described in more detail below. C. In the Wake ofthe Ms. L Order, Defendants Are Attempting to Effectuate the Immediate Deportation ofHundreds ofReunified Families Through Unlawful Measures. 39. Pursuant to the preliminary injunction entered in Ms. L, Defendants were supposed to reunify all separated families by July 26, 2018. Although Defendants are still in the
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process of reunification, as ordered, it is apparent that Defendants intend to follow a policy to

immediately remove any reunified families in which a parent has received an expedited removal

order under 8 U.S.C. § 1225(b)(l), without giving the child access to procedures that are

required by statute and the Constitution.

40. This policy, which is demonstrated by the statements made by the U.S .

government officials and other sources discussed below, is being carried out in two steps. First,

the U.S. government has pressured parents with final removal orders into waiving their

children's right to remain in removal proceedings under Section 240 of the INA, so that the U.S.

government can extract the children from Section 240 proceedings and deport them under a

pretense of voluntary return. Second, once reunited with their parents in detention, the U.S.

government has refused to give children access to asylum procedures under Section 235. With

these two steps- both of which are illegal- the U.S. government is preparing to deport the

families forthwith, without ever giving the child the chance to seek asylum.

41. The U.S. government's recent statements on reunification, including statements

from the president himself, show that Defendants' goal is to deport these reunified families as

soon as possible. On June 23, 2018, DHS released a Fact Sheet entitled "Zero-Tolerance

Prosecution and Family Reunification," which lays out the agency's plans for family

reunification. By its own tenns, the DHS Fact Sheet makes clear that the reunification process is

designed "to ensure that those adults who are subject to removal are reunited with their children for the purposes of remova/."2 The Fact Sheet makes no provision for migrant children who are

entitled to- but have never received- an interview with an asylum officer prior to being

deported, or a hearing before an immigration judge under Section 240. Rather, it explicitly states

2

Fact Sheet: Zero-Tolerance Prosecution and Family Reunification, Dep't of Homeland

Security (June 23, 2018), https://www.dhs.gov/news/20 18/06/23/fact-sheet-zero-tolerance-

prosecution-and-family-reunification (emphasis added).

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that "ICE will seek to reunite verified family units and link their removal proceedings so that

family units can be returned to their home countries together."~

42. As the court in Ms. L described it, "the Fact Sheet focuses on reunification 'at

time of removal[,]' stating that the parent slated for removal will be matched up with their child

at a location in Texas and then removed." Ms. L, 2018 WL 3129486, at *5 (emphasis added and

internal citations omitted). Indeed, the Ms. L court noted that "it is undisputed ICE has no plans

or procedures in place to reunify the parent with the child other than arranging for them to be

deported together after the parent's immigration case is concluded." /d. (emphasis added and

internal quotation marks omitted). There is no mention of whether a child's rights to their own

immigration and asylum procedures will be upheld prior to removal.

43. Perhaps most tellingly, on June 24, 2018, President Trump tweeted that "[w]hen

somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from

where they came."4 As Judge Michael Simon ofthe District Court for the District of Oregon put

regarding this statement, "[t]he position of the United States Government appears to be that

aliens are not entitled to due process in immigration proceedings." Innovation Law Lab \.

Nielsen, _ F. Supp. 3d_ , No. 3:18-CV-01098-SI, 2018 WL 3114530, at *6 (D. Or. June 25 ,

2018).

44. The policy of immediately deporting these families upon reunification is also

reflected in recent filings in Ms. L. In the ACLU's Motion for Stay of Removal and Emergency

TRO Pending Ruling on the Stay Motion, the ACLU cites "persistent and increasing rumors -

which Defendants have refused to deny - that mass deportations may be carried out imminently

and immediately upon reunification." Pis.' Reply in Supp. of Mot. for Stay of Removal at 1, Ms.

3

/d. (emphasis added).

4

Donald J. Trump (@realDonaldTrump), Twitter, (June 24, 2018 8:02 AM),

https://twitter.com/realDonaldTrump/status/ 1010900865602019329.

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L. v. U.S. Immigration & Customs Enforcement, No. 18-0428 (S .D. Cal. July 25, 2018), ECF No.

154.

45. In fact, Defendants' policy includes attempting to get parents to waive their

children's legal rights in order to facilitate families' immediate removal. On June 24, 2018, a

DHS official told MSNBC Correspondent Jacob Soboroff that parents separated from their

children "were quickly given the option to sign paperwork leading to deportation. Many chose to do so."5 On the same day, the Washington Post reported comments from an interview with a

senior administration official who declined to be identified:

[O]fficials never intended to send busloads of children to [the Port Isabel detention facility] for a massive reunion. Instead, the official said, they plan to
reunite families on an individual basis once a parent has lost his or her deportation
case. Parents may ask.for their children to join them so that they can be deported together, the official said.6

46. Indeed, following the reunification order in Ms. L, ICE began providing parents

subject to final orders of removal with a "Separated Parent's Removal Fonn" (the "Removal

Fonn") that offered them two choices: ( 1) reunification with their minor children "for the

purpose of repatriation to" the parent's country of citizenship, or (2) repatriation without

reunification. See Exhibit 1 (Separated Parent's Removal Fonn). The forms do not recognize

that the children have independent rights to seek asylum, and a right to be accompanied by their

parent(s) pending the outcome of those proceedings. The only opportunity for family

reunification afforded by the Removal Fonn requires parents to consent to repatriation together.

As such, the Removal Fonn coerces parents into choosing the second option of being deported

5

Jacob Soboroff (@jacobsoboroff), Twitter (June 24, 2018, 5:29 AM),

https: //twitter.com/jacobsoboroff/status/ 1010862394103328771.

6

Maria Sacchetti et al., Sen. Warren visit detention center, says no children being returned

to parents there, The Washington Post (June 24, 2018),

https://www. washingtonpost. com/local/immigration/desperate-to-get-children-back-migrants-

are-willing-to-give-up-asylum-claims-lawyers-say/20 18/06/24/c7fab87c-77e2-11 e8-80be-

6d32e182a3bc_story.html?utm_tenn=.7a9ca477bddd (emphasis added).

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together, unknowingly and unlawfully waiving their children's legal right to pursue asylum. These coercive fonns are thus meant to facilitate the immediate deportation of reunified families in which the parent has received (or will receive) an expedited removal order.
47. In their Reply in Support of the Motion for Stay of Removal in Ms. L, the ACLU identified at least 27 instances in which parents who wished to be reunited with their children were pressured and/or misled into signing Removal Forms. These parents were instructed to sign the English-language Removal Forms without being told that they would waive their right to be reunited with their children. In one instance, a Guatemalan father, a native Acateco speaker who speaks only limited Spanish and cannot read or write in any language, signed a Removal Form in English that he was told would allow his daughter to be released to family members in the United States without knowing that he was waiving his right to be reunited with her. Pis.' Reply in Supp. of Mot. for Stay of Removal at 20-21, Ms. L. v. U.S Immigration & Customs E1~{orcement, No. 18-0428 (S .D. Cal. July 25, 2018), ECF No. 154. In another instance, a father who was afraid to return his daughter to Guatemala was told that the only way she could remain in the United States was if he signed an English-language Removal Form, which he did not understand. !d. at 31-32. The entire interaction lasted approximately one minute, and he was not given the opportunity to review the document or ask questions about it. !d. at 32. He was later told to sign a Spanish-language document acknowledging that he understood the Removal Fonn, which he signed because he believed he had no choice if he wanted his daughter to remain in the United States. !d.
48. Upon information and belief, the U.S. government is treating the selection of reunification and deportation as a waiver of the child's independent rights to seek asylum in proceedings under Section 240 of the INA. Indeed, prior to their reunification, the U.S.
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government had classified separated minors as "unaccompanied" minors . An unaccompanied child migrant is defined as a person who, among other things, is under age 18 and "with respect to whom there is no parent or legal guardian in the United States." See 6 U.S.C. § 279(g). Unaccompanied child migrants are not subject to the same expedited removal proceedings under Section 235 and are instead afforded direct access to an asylum officer for removal proceedings pursuant to Section 240 of the INA. See 8 U.S. C. § 1158(b)(3 )(C). This process reflects a policy decision that "unaccompanied minors should not be placed in expedited removal proceedings, but should instead be entitled to the procedural safeguards of a full removal hearing under INA § 240." Representing Minors in Removal Proceedings - Training Materials, Center for Human Rights and Constitutional Law (Nov. 18, 2016), https: //www.centerforhumanrights.org/PDFsll l18-16 Handout_ Minors_in_Removal_Proceedings.pdf.
49. After Plaintiffs and other separated children became "unaccompanied," they were transferred to the custody of the ORR, and at least some were issued Notices to Appear (NTAs) in immigration court for removal proceedings under Section 240, separate and apart from their parents' expedited removal proceedings under Section 235. Consistent with the INA and their due process rights, these removal proceedings under Section 240 would have (and should have) afforded the minors the opportunity to petition for any and all forms of immigration relief before the immigration court, and would have entitled them to certain procedural protections while doing so, such as the right to be represented by counsel.
50. However, the U.S. government has since reversed course, revoking NTAs or simply never filing them with the immigration court, presumably on the basis of the parental "waivers" discussed above. The parents do not have the legal authority to waive their child's rights to seek asylum under the INA, particularly under these circumstances. Parents have been
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coerced or mislead into signing the waivers under the threat of pennanent separation from their children, to waive rights the parents do not understand, for children who have rights independent of the parents' rights under the INA. Parents are not executing the waiver knowingly, intelligently, and voluntarily. As another judge on this Court concluded just last week: "Simply put, the fonn is not worth the paper it is written on." Mem. Op. and Order at 5, M.G.U v. Kirstjen Nielsen, Case No. 1:18-cv-1458-PLF (D.D.C. July 16, 2018) ECF No. 44.
51. Nevertheless, by revoking or never filing the NTAs, the U.S. government has effectively and unlawfully terminated the children's removal proceedings under Section 240, and the access to asylum procedures that Section 240 provides. Thus, through the operation of the improper waiver fonns, separated minors have been stripped of the opportunity to petition for asylum through Section 240 proceedings.
D. The Government is Also Denying Children Access to Altemative Asylum Procedures Guaranteed by Statute and the Constitution. 52. Having improperly removed Plaintiffs and other reunified children from
proceedings under Section 240, the U.S . government is even denying them access to asylum procedures under Section 235, effectively leaving them without access to asylum procedures at all. As a result, the minor children in these families - many of whom came to the U.S. to escape horrifying violence that they themselves face - have been completely deprived of the right to seek asylum, even though their individual right to seek asylum is guaranteed by Sections 235 and 240 of the INA and the Fifth Amendment of the Constitution.
53. Prior to the U.S. government's separation policy, Plaintiffs and other children would have been subject to proceedings under Section 235. These procedures - referred to as "expedited removal proceedings" and reserved for migrants who are detained within 100 miles of the boarder and within 14 days of their entry - allow for expedited removal without appearing
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before an immigration judge. However, as part of the expedited removal process, Section 235 of the INA requires an immigration officer to refer a migrant to an asylum officer if the migrant indicates either intent to apply for asylum or fear of persecution in his or her home country. See 8 U.S.C. § 1225(b)(l)(A).
54. The asylum officer must then conduct a "credible fear" interview. If the asylum officer detennines that the migrant has a "credible fear" of persecution, the migrant cannot be deported pursuant to an expedited removal order under Section 235; instead, the migrant "shall be detained for further consideration of the application for asylum" pursuant to full removal proceedings under Section 240, including a hearing before an immigration judge. !d. at § 1225(b)(l)(B)(ii); see also 8 C.F.R. § 208.30(f); 8 U.S.C. § 1229a.
55. In preparing for a "credible fear" interview with an asylum officer, the migrant may consult with persons of his or her choosing. See 8 U.S.C. § 1225(b)(l)(B)(iv). If a migrant detained at the border demonstrates a "credible fear" of persecution, then the spouse and children of the migrant who arrived with them in the United States are included in that detennination and permitted full removal proceedings under Section 240, and the ability to petition for asylum that comes with it. See 8 U.S.C. § 1158(b)(3)(A); 8 C.F.R. § 208.30(b). Likewise, if a child migrant independently demonstrates a "credible fear," that positive finding is imputed to the parent, and the entire family is pennitted full removal proceedings under Section 240.
56. Thus, for families subject to expedited removal, the credible fear interview is the family's sole access point to asylum.
57. Here, however, Plaintiffs and other minor children who were taken from their families under the U.S. government's separation policy have been completely foreclosed from ever receiving a credible fear interview, even where their entitlement to such an interview has
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been triggered. Nor were they able to participate in any credible fear interviews received by their parents.
58. Instead, following separation from their families, the minor children were placed in their own immigration proceedings under Section 240 of the INA discussed above, separate and apart from those against their parents.
59. Following reunification with their parents, and after the children's NTAs for Section 240 proceedings were withdrawn or never filed, the U.S. government failed to afford them even expedited rights under Section 235 to seek asylum. Children in this position are being denied "credible fear" interviews, even if they triggered the statutory provision entitling them to such an interview. For example, ICE has completely failed to respond to requests for "credible fear" interviews made on behalf of at least four of the Plaintiffs in writing. And CIS, the subagency responsible for conducting credible fear interviews, confinned in writing that Plaintiffs J.M.A. and E.A.H. have not been referred for credible fear interviews. Accordingly, these minor children are in imminent danger of being deported without ever having the opportunity to access statutory asylum procedures required by law. Indeed, J.M.A. 's father and E.A.H. 's father were contacted by the Honduran consulate, which infonned them that they would be deported "soon."
60. Moreover, many younger children and infants can only access the credible fear process through their parents, who participate in the credible fear interview on the family's behalf. A positive result in a parent's credible fear interview is imputed to the whole family, and a parent may testify on behalf of his or her child. But many of these parents - including Plaintiffs' parents - were in such emotional distress following separation from their children that they were too distraught to meaningfully participate in their credible fear interviews, and thus received a negative decision. See, e.g., Angelina Chapin, Separated Parents Are Failing Asylum
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Screenings Because They're So Heartbroken, Huffington Post (June 30, 2018), https: //www.huffingtonpost.com/entry/separated-parents-too-grief-stricken-to-seek-asylumexperts-say_us_5b379974e4b08c3a8f6ad5d9. In many circumstances, their children could have provided compelling evidence of the basis for the whole family's credible fear. Yet these parents are not being granted new "credible fear" interviews following reunification. Thus, many young children have been denied access to asylum because their parents' interviews were tainted by the unlawful separation and therefore fundamentally unfair.
61. In light of the foregoing, Plaintiffs and other child migrants have been unlawfully denied the opportunity to apply for asylum. The U.S. government's policy of denying these children access to the credible fear process and seeking to deport them with their parents as soon as possible violates the INA and their Constitutional rights.
62. Upon infonnation and belief, and based on facts stated above, DHS, ICE, and other Defendants promulgated, at some point after in June, 2018, internal written directives implementing the reunification order in Ms. Land Executive Order 13841. See Executive Order 13841, Affording Congress an Opportunity to Address Family Separation, 83 Fed. Reg. 29,435 (June 20, 2018) (stating that it is "the policy of this Administration to maintain family unity, including detaining alien families together where appropriate and consistent with law and available resources."). These directives ordered DHS and ICE personnel to effectuate the deportation of families as soon as practically possible following reunification by securing the parent's agreement to be deported with their child, extracting the child from removal proceedings under Section 240, and placing the child back in the custody of the parent so that they could be prepared for immediate deportation. These directives apply to all members of reunified families, including to minor children who do not have final orders of removal and have indicated either an
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intention to apply for asylum or who have expressed a fear of persecution; these directives do not provide for such children to remain in removal proceedings under Section 240 with the assistance of their parent (where they would have the opportunity to petition for asylum) or to have an interview with an asylum officer prior to being deported, as required by law. These written directives have been implemented for the first time in the last 60 days and are within the sole possession and control of Defendants.
63. Upon infonnation and belief, the only impediment currently preventing the immediate deportation of hundreds of families - including Plaintiffs - is the temporary stay imposed by the court in Ms. L on July 16, 2018 . Order Granting Pis.' Mot. for Emergency TRO Pending Ruling on Mot. to Stay and Amending July 13, 2018 Order Following Status Conference, Ms. L v. ICE, No. 18cv0428 OMS (MOD) (S.D. Cal. July 16, 2018), ECF 116. The Ms. L court ordered a temporary halt to deportations of reunited families at the request of the ACLU, and is holding a second hearing on the stay today, July 27, 2018. If the court does not continue the stay, upon information and belief, the U.S. government will immediately begin to deport reunited families pursuant to removal orders that have been issued individually to the parents.
E. The Conditions in Countries From Which Plaintiffs Fled Are Particularly Violent. 64. Five of the six Plaintiffs, and many other migrant children like them, fled
Honduras with their parents. Honduras is characterized by constant violence, a destabilizing government, and official corruption. It is a particularly dangerous place for young people. In 2017, it was listed as the single most violent country for children under nineteen years old with a
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homicide rate of more than thirty children per 100,000 inhabitants - about ten times higher than the global average. 7
65. Two rival gangs, Mara Salvatrucha ("MS-13") and the 18th Street Gang, fight for control over territory and recruits in urban and rural areas of Honduras alike. 8 These gangs often target children as their weapons of war because national anti-gang legislation canies less severe penalties for minors involved in gang activity than for adults.9 These young recruits are often forced to collect "taxes" or sell drugs, and those who refuse are often killed. 10
66. Children living in these gang-riddled areas are doubly targeted, not only by gangs but by law enforcement officers who regard them as potential criminals or gang members. 11 And corruption among Honduran law enforcement has been widely reported; police officers who do not target young males as suspected gang members are often themselves working with the gangs. 12
67. These conditions are by no means limited to Honduras. They extend to Guatemala, El Salvador, and throughout Central America as well. 13

7

Parker Asmann, Ten Countries with Highest Child Homicide Rates All in LatAM:

Report, InSight Crime (June 6, 2017), https://www.insightcrime.org/news/brief/ten-countries-

highest-child-homicide-rates-all-latam-report/.

8

See, generally, Gangs in Honduras, Insight Crime (Apr. 21, 20 16), http://bit.ly/2nl8ov0.

9

U.S. Dep't of State, Honduras 2016 Human Rights Report, 28 (2016)

https: / /www.state.gov/ documents/organization/265808.pdf..

10

UN Human Rights Council, Report ofthe Special Rapporteur on Extrajudicial, Summmy

or Arbitrmy Executions on his Mission to Honduras at 6, A/HRC/35/23/Add.l (June 2017).

II

.ld. at 14.

12

Sarah Chayes, Carnegie Endowment for International Peace, When Corruption is the

Operating System: The Case ofHonduras, 29 (May 2017)

https://carnegieendowment.org/files/Chayes_Corruption_Final_updated.pdf (stating"[o]f

greater concern are the reports we heard in interviews of collusion between police and the youth

gangs whose depredations it is their job to curb.").

13

See UN High Commissioner for Refugees (UNHCR), Eligibility Guidelines for Assessing

the International Protection Needs ofasylum-seekers from Guatemala at 7,

HCR/EG/GTM/ 18/01 (Jan. 2018), http://www.refworld.org/docid/5a5e03e96.html [accessed 26

July 2018]; UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for

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F. Plaintiffs Seek Asylum in the United States, But Defendants Are Depriving Them of Their Rights and Opportunity to Pursue Their Claims. 68. J.M.A. is a 13 year-old child seeking asylum in the United States. J.M.A. is from
Honduras and traveled to the United States to seek asylum because of threats of violence and mortal danger made against him and his father by the 18th Street Gang. Indeed, J.M.A.'s father bears scars from a previous knife attack. J.M.A. 's native language is Spanish.
69. J.M.A. and his father were apprehended by border patrol agents around Eagle Pass, Texas on or about May 20, 2018. J.M.A. and his father were initially detained together in the hielera, or "ice box," with other migrants for approximately 8 - 10 hours, where J.M.A.'s father was fingerprinted and photographed. J.M.A. 's father and other parents were then taken from the room. When he returned, J.M.A.'s father infonned J.M.A. that the two would be separated, and that he did not know where J.M.A. would be taken. J.M.A. and his father shared a tearful goodbye before J.M.A. was then taken from the room, loaded into a van with other migrant children, and transported to a separate facility.
70. When J.M.A. asked officials about his father, they told J.M.A. simply that he was "going to another place." J.M.A. was not permitted to bathe or change clothes, and officials subjected him to security screenings for weapons. Upon separation, J.M.A. was deemed and treated as an "unaccompanied minor." On May 21, 2018, J.M.A. was issued an NTA for proceedings under Section 240 of the INA. J.M.A. was taken first to another "ice box" for children, where the children were grouped by gender and age, then to a shelter in San Antonio, Texas where he was detained for 58 days. While detained, J.M.A. had some telephonic contact with his family.
Assessing the International Protection Needs ofAsylum-Seekers from El Salvador at 4-6, HCR/EG/SLV/ 16/01 (Mar. 15, 2016), http://www.refworld.org/docid/56e706e94.html [accessed 26 July 2018]
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71. J.M.A. suffered tremendous fear, anxiety, and uncertainty during this detention. For the duration, J.M.A. did not know whether he would ever see his father again, and officials would not inform him of his father's status. Indeed, J.M.A. was detained for over a month before being pennitted a brief, two-minute phone call with his father. While J.M.A. was relieved to hear his father's voice following such prolonged silence, whether the two would ever see each other again remained unclear.
72. On July 17, 2018, per the court order in Ms. L, J.M.A. was reunified with his father. Since being reunified he does not want to leave his father's side and is afraid of being separated from his father again. By the time J.M.A. and his father were reunified, J.M.A.'s father had already independently sat through a credible fear interview. On May 22, 2018, J.M.A.'s father was issued an expedited order of removal.
73. After reunification, and through an attorney, J.M.A. requested the opportunity to explain his fear of returning to Honduras to immigration or asylum officers, but J.M.A. has not received a response to that request. J.M.A. is not independently subject to an expedited order of removal and is not named on the order issued to his father. Nevertheless, upon information and belief, Defendants intend to imminently deport J.M.A. along with his father. J.M.A. 's father was contacted by the Honduran consulate, which told him that they would be deported "very soon."
74. J.M.A. is afraid to return to Honduras because he and his father might be threatened, assaulted, or killed by the 181h Street Gang - the same gang that has previously threatened them, and maimed J.M.A.'s father in a knife attack.
75. E.A.H. is a six year-old child seeking asylum in the United States. E.A.H. is from Honduras. He and his father traveled to the United States to seek asylum because gangs were
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threatening his father's life. E.A.H. 's native language is Spanish. E.A.H. and his father were apprehended by U.S. border patrol agents in McAllen, Texas on or about June 12,2018.
76. On June 13, 2018, E.A.H. was forcibly separated from his father. On that day, E.A.H. 's father was told he was going to court and that E.A.H. would be there waiting for him afterwards. When he returned, however, E.A.H. had already been taken away, and officers could not tell him where his son had gone or what would happen to him. E.A.H. was taken to Harlingen, Texas where he was detained for 33 days. While detained, E.A.H. had only very limited contact with his family. Upon separation, E.A.H. was deemed and treated as an "unaccompanied minor." On June 15, 2018, E.A.H. was issued an NTA for proceedings under Section 240 ofthe INA.
77. E.A.H. and his father were separated for 33 days. They were not allowed to speak to each other until nine or ten days after they were first separated. When E.A.H. 's father started speaking to E.A.H., the child started crying uncontrollably. His father tried to calm him down, but said it was too painful for him to hear his son so upset and not be able to hug him or console him or do anything but talk. E.A.H. 's father asked the guard to end the phone call early because he could not bear it and did not want to put his son through so much pain any longer. He stated he had no idea if he would ever see his son again.
78 . On July 16, 2018, per the court order from Ms. L, E.A.H. was reunified with his father. By that time, however, E.A.H. 's father had already independently sat through the credible fear interview. He was not able to consult with E.A.H. prior to the interview. In addition, E.A.H. 's father was not able to concentrate on the questions during the credible fear interview because he was so worried about E.A.H., and could not think of anything but his son
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and where he was. He also did not understand what information he was expected to share in the interview. On June 13, 2018, E.A.H. 's father was issued an expedited order of removal.
79. E.A.H.'s father signed a document indicating that he wanted to be repatriated to Honduras with his son if it were so ordered. He picked that option because the person that presented him with the document said that if he picked that option, he could be reunited with his son that same day. He did not understand the fonn well.
80. After being reunified with his father, and through their attorney, E.A.H. requested the opportunity to explain his fear of returning to Honduras to immigration or asylum officers, but E.A.H. has not received a response to that request. E.A.H. is not independently subject to an expedited order for removal and is not named on the order issued to his father. He has never had a court hearing or seen an immigration judge. Nevertheless, upon infonnation and belief, Defendants intend to deport E.A.H. along with his father very soon.
81. E.A.H. is afraid to return to Honduras because he and his father might be harmed by the same gangs that previously targeted E.A. H.'s father for violence, or by the national political party that has threatened his father for refusing to support them.
82. D.B.G. is a twelve year-old child seeking asylum in the United States. D.B.G. is from Honduras and traveled to the United States to seek asylum because she is scared to return to Honduras. D.B.G. fled from Honduras because a gang in Honduras threatened to kill her to retaliate against her mother, who made a police report after the gang murdered her second cousm. D.B.G. is also scared to return to Honduras because her father is physically and emotionally abusive and threatened to kill her. D.B.G. 's native language is Spanish.
83. D.B.G. and her mother were apprehended by immigration officers in Texas on May 25, 2018, the day they entered the United States. Upon apprehension and any time
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thereafter, D.B.G. was never asked whether she feared returning to Honduras. From the time of apprehension, D.B.G. was forcibly separated from her mom.
84. For approximately three days after apprehension, D.B.G. was kept in a cell at a building that she refers to as the "ice box, or hie/era" because it was freezing. D.B.G. shared the cell in the hie/era with more than 40 girls, between 8 and 17 years of age. The cell had no windows and the lights were kept on at all times, making it impossible to know whether it was night or day. The cell had concrete floors, and no tables or chairs. There was one toilet inside the cell, without a door. D.B.G. was not given a change of clothes, a tooth brush, or anything else.
85. After approximately three or four days, D.B.G. was loaded into a car with her mother, and driven to another place called the dog pound, or pen·era. She was placed in a cage with lots of other girls, who like her, came to the United States with their parents. Many of the guards in the pen·era only spoke English and could not understand D.B.G. when she would ask them where her mother was. They would laugh at her, and then walk away. D.B.G. spent approximately seven or eight days in the pen·era. From the pen·era, D.B.G. was taken on an airplane to Miami, Florida. She was not told where she was going until they landed in Miami. D.B.G. had never been on a plane before. She was then taken to a shelter for children who do not have parents. The shelter was filled with tennites.
86. D.B.G. was separated from her mother for approximately 52 days, from approximately May 25, 2018 through July 17, 2018. She spent all of those days in Miami, alone, without her mother. After she was taken away from her mother, she did not have contact with her for over a month. She was sad and scared, and cried almost every day. While she was separated from her mother, D.B.G. was only given the chance to speak with her mother by phone two or three times, for about five minutes each time. A case manager at the shelter was present
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and listened to every conversation she had with her mother. On July 17,2018, per the court order from Ms. L, D.B.G. was reunified with mother. D.B.G. and her mom are now detained together in Dilley, Texas.
87. D.B.G. has never received any paperwork from any immigration officers. She does not remember signing any documents regarding immigration. She has never been to immigration court, or had an interview with any asylum officer. During the time D.B.G. was separated from her mother, D.B.G. 'smother independently sat through the credible fear interview, which resulted in a negative finding, and she was issued an expedited order of removal. At the time ofher interview, and because of the forcible separation from her daughter, D.B.G's mother was suffering from emotional distress so severe that she was unable to participate meaningfully in her interview. She was also denied the ability to consult with D.B.G. prior to the interview.
88. After D.B.G. and her mother were reunified in Dilley, D.B.G. requested, through her attorney, the opportunity to explain their fear of returning to Honduras to immigration or asylum officers. D.B.G. and her attorney have not received a response to that request. D.B.G. is not independently subject to an expedited order for removal and is not named on the order issued to her mother. Nevertheless, upon infonnation and belief, Defendants intend to deport D.B.G. along with her mother very soon.
89. D.B.G. is afraid to return to Honduras because both a gang threatened to kill her to retaliate against her mother, who made a police report after the gang murdered D.B.G. 's second cousin. D.B.G. is also afraid of her father, who beat her, threatened to kill her and emotionally abused her, her entire life. D.B.G. 's mother came to the United States for the same reasons - she fears being killed by D.B.G.'s father and the gang.
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90. G.M.A. is a nine-year-old child seeking asylum in the United States. G.M.A. is from Honduras and traveled to the United States to seek asylum based on religious persecution. G.M.A.'s native language is Spanish. G.M.A. and her mother were apprehended and detained by border patrol agents when they crossed the border on June 12, 2018. Upon apprehension, G.M.A. 's mother expressed fear of returning to Honduras. Upon questioning, G.M.A. 's mother told an immigration official that she and G.M.A. were afraid to return to Honduras. The official did not ask G.M.A. any questions.
91. G.M.A and her mother were taken to a place called the perrera, or dog pound, on June 14, 2018. G.M.A. was told that she had to be separated from her mother so her mother could "go to court." G.M.A. began to cry, and was made to stand in a line with other crying children. That day, G.M.A. was forcibly separated from her mother. G.M.A. was told that she would be separated from her mother for only two days. But G.M.A. would not see her mother for nearly forty days.
92. G.M.A. remained in the pen·era for four days after being separated. She then was taken to a shelter in New York where she was detained for 32 days. While detained, G.M.A. did not have contact with her mother for many days. While in New York, G.M.A. had a foster mother and foster siblings. But her foster siblings hit her. Her foster mother's cousin yelled at her and told her she would never see her mother again. G.M.A. cried often, and didn't know if she would ever see her mother again. During this time, and upon infonnation and belief, G.M.A. was deemed and treated as an "unaccompanied minor." As an unaccompanied minor she would have been issued an NTA for proceedings under Section 240 of the INA. Although G.M.A. remembers signing various papers, nobody explained what the papers meant, and she did not understand them.
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93. On July 17, 2018, per the court order from Ms. L, G.M.A. was reunified with her mother. By that time, however, G.M.A. 's mother had already independently sat through a credible fear interview and received an expedited order of removal. At the time of her interview, G.M.A. 's mother was suffering from emotional distress so severe that she was unable to participate meaningfully in her interview. She was also denied the ability to consult with G.M.A. prior to the interview.
94. Through her attorney, G.M.A. requested the opportunity to explain her fear of returning to Honduras to immigration or asylum officers, but G.M.A. and her attorney have not received a response to that request. G.M.A. is not independently subject to an expedited order for removal and is not named on the order issued to her mother. Nevertheless, upon infonnation and belief, Defendants intend to deport G.M.A. along with her mother as soon as possible.
95. G.M.A. and her mother are Monnons. G.M.A. is afraid to return to Honduras because her mother was harmed by "bad people" because of their religion. The same "bad people" have also threatened to hurt G.M.A. The people who hurt G.M.A. 's mother believe that she reported them to the police. G.M.A. feels that she and her mother will be in danger if they have to return to Honduras.
96. A.M.C. is a seven year-old child seeking asylum in the United States. A.M.C. is from Honduras and traveled to the United States to seek asylum because he and his mother fear for their safety in Honduras. A.M.C. 's native language is Spanish.
97. A.M.C. and his mother were apprehended by border patrol agents upon entry into the United States. Upon apprehension, A.M.C. and his mother were taken to a place called the hie/era, or ice box. He and his mother were kept at the hie/era for many days. There was no bed in the hie/era, and he was cold and hungry the entire time he was there. A.M.G. was with his
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mother in the hielara, and she hugged him to keep him warm, but he remained cold. One day, an official took him and his mother out of their cell, and asked his mother some questions. A.M.C. is unaware of the questions his mother was asked, and he was not asked any questions himself.
98. After that, A.M. C. and his mother were taken to the perrera, or dog pound, where they were put into a cage together. They slept on the floor of the cage for four days. One day in May, A.M.C. was separated from his mother. He was driven to a shelter in Texas by a man and a woman. He did not see his mother again for 50 days. While at the shelter, A.M.C. did not speak to his mother for many days. He was eventually allowed to speak to her on the telephone and ask her why she did not come to visit him. At the shelter, there were women that the children called "Miss" who took care of A.M.C. and the others children. A.M.C. felt sad and missed his mother while they were apart.
99. On July 17, 2018 (a day before his seventh birthday), per the court order from Ms. L, A.M. C. was reunified with his mother. A.M.C. was provided with a lot of paperwork when he was placed in the shelter but he does not know what those papers were, nor does he know how to locate those papers. The papers were taken away from A.M.C., and he does not know how to get them back. A.M.C.'s mother has been issued an expedited order of removal as a result of a negative finding from her credible fear interview. Through their attorney, A.M.C. requested the opportunity to explain their fear of returning to Honduras to immigration or asylum officers, but A.M.C. has not received a response to that request. A.M.C. is not independently subject to an expedited order for removal. Nevertheless, upon infonnation and belief, Defendants intend to deport A.M.C. along with his mother.
100. A.M. C. is afraid to return to Honduras because he fears for his life. Before fleeing Honduras, individuals shot bullets at his house and threw a bomb at his house, in an
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attempt to kill his family. A.M.C. is also afraid to return to Honduras because his father abuses him and he does not feel safe living with him.
101. L.A. A. is a 10-year-old child seeking asylum in the United States. L.A.A. is from Guatemala and traveled to the United States seeking safety because a gang attempted to kill her and her mother after her mother complained to the police about L.A.A. being sexually abused by her grandfather. L.A.A. 's native language is Spanish.
102. L.A.A. and her mother were apprehended at the border on June 14, 2018, and placed in the hie/era. L.A.A. and her mother were hungry, tired, cold, and afraid. L.A.A. told an immigration officer that she was afraid to go back to Guatemala. The officer yelled at her and did not believe her. Later that same day, an immigration official told her they were going to put L.A.A. up for adoption. Two days later, L.A.A. was forcibly separated from her mother and taken to the pen·era. She was afraid and she cried. L.A.A. was taken to Raymondville, TX where she was detained for 35 days with minimal contact from her mother. L.A.A. felt sick being separated from her mother. Upon infonnation and belief, L.A.A. was deemed and treated as an "unaccompanied minor" as of the time ofher separation. Upon information and belief, she was issued an NTA for removal proceedings under Section 240.
103. On July 23, 2018, per the court order from Ms. L, L.A.A. was reunified with mother in Dilley. Even still, L.A.A. is afraid every day that someone will take her mother away. By the time of their reunification, L.A. A.'s mother had already sat through the credible fear interview and was issued an expedited order of removal. Through their attorney, L.A.A. requested the opportunity to explain their fear of returning to Guatemala to immigration or asylum officers, but L.A.A. has not received a response to that request. It is very hard for L.A.A.
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to talk about everything that has happened to her. When someone asks her why she is afraid, she starts to cry and cannot stop. She needs her mother to explain everything for her.
104. L.A. A. is not independently subject to an expedited order for removal and is not named on the order issued to her mother. Nevertheless, upon infonnation and belief, Defendants intend to deport L.A.A. along with her mother. L.A.A. is afraid to return to Guatemala. She wants to stay in the United States where she and her mother will be safe from the gang and from her grandfather. She wants to apply for asylum.
105. Each of the above Plaintiffs faces an immediate threat of irreparable harm from Defendants' imminent removal of Plaintiffs - without the opportunity to exercise their rights under the INA to seek asylum, and without due process - to a country where they face a real fear of persecution. Defendants' unlawful conduct should be enjoined.
CLASS ACTION ALLEGATIONS 106. Plaintiffs bring this lawsuit challenging the Government's policy of denying migrants the right to pursue asylum individually and on behalf of a proposed nationwide class under Federal Rules 23(b)(2) and 23(c)(4) consisting of all non-citizens under the age of 18 who were separated from their parents or guardians upon (or after) entry into the United States and who are, have been, or will be detained by the U.S. government at any time since January 1, 2018. 107. The proposed class consists of hundreds of children detained throughout the United States, rendering it impracticable to join all class members before the Court. There are substantial questions of law or fact common to all class members, including the particular issue of whether class members have a statutory and constitutional right to apply for asylum in the
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United States. The requested injunctive and declaratory relief is appropriate respecting the class as a whole because all class members have these rights to apply for asylum.
CAUSE OF ACTION COUNT I
(Violation of Due Process under the Fifth Amendment to the Constitution) (Against All Defendants)
108. Plaintiffs re-allege and incorporate each and every allegation contained m Paragraphs 1 through 107 above, as though fully set forth herein.
109. "[T]he Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or pennanent." Zadvydas v. Davis, 533 U.S. at 693 (internal quotation omitted). Thus, the Due Process Clause applies to Plaintiffs.
110. Thus, "aliens who have once passed through our gates, even illegally, may be expelled only after proceedings confonning to ... due process of law." Shaughnessy v. United States ex ref. Mezei, 345 U.S. 206, 212 (1953). Here, Defendants are preparing to expel Plaintiffs and other minor children like them without affording them any process at all. Indeed, none of Plaintiffs even has a final order of removal.
111. In addition, "an alien who has unlawfully entered the United States has a Fifth Amendment procedural due process right to petition the government for political asylum and a statutory procedural due process right to a meaningful or fair evidentiary hearing." GutierrezRogue v. Immigration & Naturalization Serv., 954 F.2d 769, 772-73 (D.C. Cir. 1992) (citing Maldonado-Perez v. Immigration & Naturalization Serv., 865 F.2d 328, 332- 33 (D.C. Cir. 1989)). As explained above, Plaintiffs have been afforded no process through which to seek asylum. Defendants initially decided to place Plaintiffs in removal proceedings under Section
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240, and the process that Section 240 provides for seeking asylum. But the U.S. government revoked that opportunity on the basis of the parents' invalid waivers. Thus, Plaintiffs received no process under Section 240.
112. Now that Plaintiffs and other children have been reunified with their parents, who separately went through expedited removal proceedings under Section 235, Defendants have even denied Plaintiffs the opportunity to their own credible fear interview under Section 235. Thus, Plaintiffs have been foreclosed from any ability to be heard on their asylum claim. This plainly violates their Fifth Amendment right to procedural due process.
113. Moreover, minor children who are too young to participate in the credible fear process rely on their parents to seek asylum on their behalf, and all minor children are entitled to the benefit of a parent's positive result, through the "linking" of cases, in a credible fear interview. Thus, many children access these asylum procedures through their parents. However, separated parents were forced to undergo credible fear interviews while under incredible emotional distress caused by the forcible separation from their children. And separated parents were denied the ability to consult with their children in preparation for credible fear interviews, to obtain any infonnation that is relevant to the parents' claim of fear. These realities rendered the parents' credible fear interviews fundamentally unfair. Because many children's access to asylum procedures derives from their parents, the unfairness of the parents' interviews violates the procedural due process rights of the child.
114. Plaintiffs' due process rights are further implicated by the involuntary, uninfonned and unknowing nature in which the U.S. government has secured "waivers" of Plaintiffs' rights, as neither Plaintiffs nor their parents fully understood the Removal Form and
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Plaintiffs parents were coerced into completing the form in order to regain their rightful custody of their child.
115. The Supreme Court has clearly stated that aliens "may be expelled only after proceedings confonning to . .. due process of law." Me:=ei, 345 U.S. at 212. The planned deportations fail that test because the U.S. government has foreclosed all avenues for Plaintiffs to petition for asylum under the.
COUNT II (Petition for a Writ of Mandamus, 28 U.S.C. § 1361)
(Against All Defendants) 116. Plaintiffs re-allege and incorporate each and every allegation contained m Paragraphs 1 through 115 above, as though fully set forth herein. 117. Under U.S. law, "[t]he district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States, or any agency thereof to perfonn a duty owed to the plaintiff." 28 U.S.C. § 1361. 118. Obtaining a writ of mandamus requires satisfaction of three elements: (1) the plaintiff has a clear right to the relief sought, (2) the defendant has a duty to do the act in question, and (3) no other adequate remedy is available. Id. 119. Section 235 of the INA sets forth non-discretionary procedures that the Attorney General must follow before removing a non-citizen who has been in the United States for fewer than 14 days and who was apprehended fewer than 100 miles from the United States border. 8 U.S.C. § 1225(b)(l)(A)(ii). 120. Specifically, Section 235 states that if a non-citizen indicates either intent to apply for asylum or expresses a fear of persecution, the immigration officer "shall" refer the noncitizen for a credible fear interview before an asylum officer. 8 U.S.C. § 1225(b)(1)(A)(ii). If
36

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the asylum officer determines that the non-citizen does, in fact, have a credible fear of persecution in his or her home country, the non-citizen is granted the right to access meaningful procedures through which to apply for asylum in the United States in Section 240 proceedings.
121. The word "shall" as used in INA Section 23 5 establishes a mandatory, nondiscretionary duty. See lddir v. Immigration & Naturalization Serv., 301 F.3d 492, 499 (7th Cir. 2002) ("[t]he tenn 'shall' denotes a clear directive, a command, as opposed to the tenns 'may' or 'in his discretion.'"). As such, Plaintiffs have a clear right to a credible fear interview if they express either an intent to apply for asylum or a fear of persecution in their country; and if they successfully establish a credible fear in that interview, Plaintiffs have a right to seek asylum through proceedings under INA Section 240. Moreover, Defendants have a mandatory, nondiscretionary duty to provide Plaintiffs with a credible fear interview if they have indicated an intent to apply for asylum or a fear of persecution.
122. Defendants have failed to carry out that duty. They have failed to provide Plaintiffs with a credible fear interview, even though Plaintiffs have triggered the nondiscretionary duty outlined at INA Section 235. Now, upon infonnation and belief, Defendants are preparing to deport these children without ever giving them access to the credible fear procedures to which they are legally entitled.
123. Because Plaintiffs have a clear right to access the credible fear process, Defendants have a non-discretionary duty to provide them access to that process. Moreover, there is no adequate remedy apart from ordering Defendants to carry out their duty under the INA. Accordingly, Plaintiffs are entitled to mandamus relief.
COUNT III (Violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(a))
(Against All Defendants)
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124. Plaintiffs re-allege and incorporate each and every allegation contained 111 Paragraphs 1 through 123 above, as though fully set forth herein.
125. Under the APA, federal courts have the authority to "hold unlawful and set aside agency action ... found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5. U.S.C. § 706(2)(A). A court "shall ... hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," or "unsupported by substantial evidence." 5 U.S.C. §§ 706(2)(A), (E).
126. Removal of Plaintiffs and other minor children from proceedings under Section 240 on the basis of coercive and misleading waiver fonns was "arbitrary, capricious, [and] an abuse of discretion," and it was "not in accordance with law." Apart from the invalidity of the waivers themselves, there is no statutory or regulatory authority for Defendants to remove a minor child from proceedings under Section 240 and then deport such minor with no final order of removal. After Defendants placed Plaintiffs in removal proceedings under Section 240, Plaintiffs were entitled to remain in such proceedings and be reunited with their parents pursuant to Ms. L.
127. Even assuming arguendo that Defendants could lawfully remove Plaintiffs from proceedings under Section 240, Plaintiffs are at least entitled to the procedural protections outlined in Section 235 of the INA prior to being deported. Section 235 contains nondiscretionary procedures that the Attorney General must follow before expeditiously removing certain adult aliens and families. Specifically, Section 235 states that if an alien "indicates either an intention to apply for asylum ... or a fear of persecution, the officer shall refer the alien for an interview by an asylum officer" for a credible fear interview. 8 U.S.C. § 1225(b)(1)(A)(ii)
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(emphasis added). Thus, U.S. government officials have a non-discretionary duty to refer an alien for a credible fear interview if he or she indicates an intent to apply for asylum or fear of persecution.
128. Here, Plaintiffs have expressed a fear of repatriation or indicated a desire to apply for asylum, thereby triggering the credible fear interview process. As described above, Plaintiffs have not been given access to such interviews. Upon infonnation and belief, the U.S. government is currently preparing to deport Plaintiffs and their parents without giving Plaintiffs access to the credible fear interview process or other process afforded them by law under either Section 235 or 240 of the INA.
129. Defendants' policy of denying credible fear interviews to Plaintiffs, and their plan to deport Plaintiffs without such interviews or any final removal orders, is "not in accordance with" the procedures mandated by the INA and this Court is authorized to set this policy aside. 5. U.S.C. § 706(2)(A).
130. The U.S. government's denial of access to required asylum proceedings, and current plans to imminently deport Plaintiffs without any further proceedings, constitutes "final agency action" reviewable by the Court. Such actions are not tentative or interlocutory and, once executed, preclude the children from seeking or obtaining any other fonn of relief or review of the decision.
39

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COUNT IV (Judicial Review of Expedited Removal Policy)
(Against All Defendants) 1. Plaintiffs re-allege and incorporate each and every allegation contained m Paragraphs 1 through 130 above, as though fully set forth herein. 2. The U.S. government's policy of denying Plaintiffs their rights to pursue asylum in the United States is inconsistent with Section 240 and/or Section 235 of the INA and is otherwise in violation of the law. That policy is reflected in written statements and directives including but not limited to the DHS Fact Sheet, which states that the reunification process is designed "to ensure that those adults who are subject to removal are reunited with their children for the purposes ofremova/." 14 3. Pursuant to this policy, Plaintiffs' requests for credible fear interviews have been unlawfully denied, and Plaintiffs face an imminent threat of deportation without access to asylum proceedings. Plaintiffs are entitled to relief from Defendants' unlawful policy under 8 U.S.C. 1252(e)(3).
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully ask that this Court to grant the following relief: a) A temporary restraining order that preserves the status quo by enjoining Defendants from deporting any reunified families until Plaintiffs' and the putative class' claims are adjudicated on the merits; b) Issuance of an Order declaring that Defendants' actions violate the APA, INA, and/or Fifth Amendment Due Process Clause because of Defendants' unlawful refusal to provide

14

Dep't of Homeland Security, Fact Sheet: Zero-Tolerance Prosecution and Family

Reunification (June 23, 20 18), https: //www.dhs.gov/news/20 18/06/23/fact-sheet-zero-tolerance-

prosecution-and-family-reunification (emphasis added).

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Plaintiffs and the putative class the right to pursue or have heard their individual asylum claims or to be consulted in their families' joint claims;
c) Issuance of an Order declaring that Plaintiffs and the putative class have a right to pursue their own asylum claims in removal proceedings under INA Section 240 with the assistance of a parent or guardian and, in addition, that Plaintiffs and the putative class have a right to a credible fear interview under INA Section 235 with the assistance of a parent or guardian;
d) Issuance of an Order declaring that Plaintiffs and the putative class have a right to their parent or guardian receiving a fundamentally fair credible fear interview free from the distress of family separation and with the ability to consult with their child before the interview;
e) Issuance of a writ of mandamus requiring Defendants' compliance with the tenns of Section 235 of the INA, including requiring that Defendants provide Plaintiffs and the putative class access to credible fear interviews to pursue their asylum claims;
f) Detennination that this action may be maintained as a class action pursuant to Federal Rules 23(b)(2) and 23(c)(4); direction that reasonable notice be provided to the class pursuant to Federal Rule 23(c)(2); a declaration that Plaintiffs are representatives of the class; and a declaration that Plaintiffs' counsel are class counsel;
g) Such other and further relief as this Court may deem just and appropriate, including but not limited to the mental health treatment, alternatives to detention, and other compensation or equitable relief necessary to restore Plaintiffs and the putative class to their position but for Defendants' unlawful conduct.

Dated: July 27, 2018

Respectfully submitted, HOGAN LOVELLS US LLP

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By:¥'~
Justin W. Bernick (DC Bar No. 988245) *T. Clark Weymouth *Zachary W. Best 555 Thirteenth Street, NW Washington, DC 20004 Telephone: (202) 637-5600 Facsimile: (202) 637-5910 justin.bernick@hoganlovells.com t.weymouth@hoganlovells.com zachary.best@hoganlovells.com
*Ira M. Feinberg *Oliver 1. Annas 875 Third Avenue New York, NY 10022 Telephone: (212) 918-3000 Facsimile: (212) 918-3100 oliver.annas@hoganlovells.com ira.feinberg@hoganlovells.com
*Katherine A. Nelson 1601 Wewatta Street, Suite 900 Denver, CO 80202 Telephone: (303) 454-7300 Facsimile: (303) 899-7333 katherine.nelson@hoganlovells.com
* admission pro hac vice to be sought
Counsel for Plaintiffs
42

 
 Case 3:18-cv-01832-DMS-MDD Document 25 Filed 08/03/18 PageID.546 Page 1 of 13

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________

)

M.M.M., on behalf of his minor child,

)

J.M.A., et al.,

)

)

Plaintiffs,

)

)

v.

)

)

JEFFERSON BEAUREGARD SESSIONS, )

III, Attorney General of the United States, )

et al.,

)

)

Defendants.

)

____________________________________)

Civil Action No. 18-1759 (PLF)

OPINION This case arises out of the government’s controversial “zero-tolerance” immigration policy, under which immigrant parents unlawfully entering the United States with their young children were subject to criminal prosecution and forcibly separated from their children for several weeks. On June 26, 2018, Judge Dana M. Sabraw of the United States District Court for the Southern District of California certified a nationwide class of separated parents and issued a class-wide preliminary injunction requiring the government to reunify separated families by July 26, 2018. See Ms. L. v. U.S. Immigration & Customs Enf’t, No. 18-0428, 2018 WL 3129486 (S.D. Cal. June 26, 2018). With approximately 1,800 families reunified to date, attention has turned to what lies ahead for these parents and their children. Plaintiffs in this action are a putative class of non-citizen children who were separated from their parents shortly after crossing the United States-Mexico border. They allege that defendants – various federal agencies and officials responsible for enforcing immigration

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laws and regulations – recently adopted a policy of removing families from the United States immediately after reunification and, as a result, have denied plaintiffs access to certain asylum procedures guaranteed by statute and under the Constitution.
On July 27, 2018, plaintiffs filed a motion for a temporary restraining order and preliminary injunction [Dkt. No. 6]. Following expedited briefing, the Court held a hearing on the motion on July 31, 2018. At the hearing, defendants orally moved to transfer venue to the Southern District of California pursuant to 28 U.S.C. § 1404(a). The following day, defendants submitted a written supplement in support of their oral motion to transfer venue [Dkt. No. 19], and plaintiffs addressed the transfer issue in two supplemental filings [Dkt. Nos. 18 and 23]. Upon careful consideration of the parties’ written submissions, the relevant legal authorities, the arguments of counsel in open court on July 31, 2018, and the entire record in this case, the Court will grant defendants’ motion to transfer venue, subject to certain modifications.1
I. BACKGROUND Plaintiffs filed this action on July 27, 2018. Plaintiffs are six immigrant children ages six through thirteen who were forcibly separated from their parents shortly after entering the United States. See Compl. ¶¶ 68-105. Having recently been reunified with their parents after

1

In connection with the pending motion, the Court has reviewed the following

filings, including the exhibits attached thereto: Complaint (“Compl.”) [Dkt. No. 4]; Plaintiffs’

Motion for Temporary Restraining Order and Preliminary Injunction (“TRO Mot.”) [Dkt. No. 6];

Plaintiffs’ Motion for Expedited Hearing (“Hearing Mot.”) [Dkt. No. 7]; Defendants’ Opposition

to Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction (“TRO

Opp’n”) [Dkt. No. 15]; Plaintiffs’ Reply in Support of Motion for Temporary Restraining Order

and Preliminary Injunction (“TRO Reply”) [Dkt. No. 18]; Defendants’ Supplemental Brief in

Support of Motion to Transfer Venue (“Venue Mot.”) [Dkt. No. 19]; July 31, 2018 TRO Motion

Hearing Transcript (“July 31, 2018 Hr’g Tr.”) [Dkt. No. 21]; and Plaintiffs’ Response to

Defendants’ Supplemental Brief in Support of Motion to Transfer Venue (“Venue Opp’n”) [Dkt.

No. 23].

2

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spending several weeks apart, they now face the prospect of another lengthy separation: their parents are subject to expedited removal orders and may soon be removed from the country. See id. Plaintiffs bring this action by and through their parents and next friends under Rule 17(c) of the Federal Rules of Civil Procedure. They also bring class action claims under Rule 23 of the Federal Rules of Civil Procedure on behalf of “all non-citizens under the age of 18 who were separated from their parents or guardians upon (or after) entry into the United States and who are, have been, or will be detained by the U.S. government at any time since January 1, 2018.” See id. ¶¶ 10-16, 106.
Plaintiffs’ core allegation is that defendants have deprived them of their right to pursue their own, independent asylum claims after reunification with their parents. See Compl. ¶ 42. Plaintiffs allege that this right is separate from the right of a parent to seek asylum on his or her own behalf, see id. ¶ 46, and may not be waived by the parent on behalf of the child, particularly when the waiver is not knowing, intelligent, and voluntary, see id. ¶ 50. According to plaintiffs, defendants have coerced parents into abandoning their children’s asylum claims in order to remain together as a family unit. See id. ¶ 46. Plaintiffs further allege that defendants have obtained invalid waivers from parents that purport to waive the rights of their children to pursue asylum and to be accompanied by their parent while their asylum application is pending. See id. They maintain that parents do not have the legal authority to waive their children’s rights in this manner. See id. ¶ 50. Based on those and other allegations, the complaint asserts four causes of action: (1) violations of the Due Process Clause of the Fifth Amendment (Count I); (2) petition for a writ of mandamus under 28 U.S.C. § 1361 (Count II); (3) violations of the Administrative Procedure Act, 5 U.S.C. § 706(2)(a) (Count III); and (4) judicial review of defendants’ expedited removal policy under 8 U.S.C. § 1252(e)(3) (Count IV).
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On July 27, 2018, plaintiffs filed a motion for a temporary restraining order and preliminary injunction. See TRO Mot. at 1. Plaintiffs seek to temporarily restrain defendants from depriving them of their right to pursue asylum upon reunification with their parents pending a full hearing on their preliminary injunction motion. See id. They further move for a preliminary injunction requiring defendants to permit plaintiffs to pursue asylum following reunification with their parents or guardians and in consultation with them. See id.
Defendants filed an opposition to plaintiffs’ motion on July 30, 2018, arguing primarily that the Court should transfer this case to the Southern District of California for consideration together with the Ms. L. class action pending before Judge Sabraw and two other actions brought on behalf of separated children that were recently transferred to him. See N.T.C. v. ICE, No. 18-6428, 2018 WL 3472544 (S.D.N.Y. July 19, 2018); Order, E.S.R.B. v. Sessions, No. 18-6654 (S.D.N.Y. July 24, 2018), ECF No. 4. The Court held a hearing on plaintiffs’ motion for a temporary restraining order on July 31, 2018, during which defendants orally moved to transfer venue. See July 31 Hr’g Tr. at 32. Defendants also submitted a supplement to their oral motion to transfer venue. See Venue Mot. at 1-2. Plaintiffs filed a reply in support of their motion for a temporary restraining order, see TRO Reply, as well as a response to defendants’ motion to transfer venue, see Venue Opp’n.
Meanwhile, on June 26, 2018 in the Southern District of California, Judge Sabraw issued a class-wide preliminary injunction requiring the government to reunify separated families by July 26, 2018. See Ms. L. v. U.S. Immigration & Customs Enf’t, 2018 WL 3129486, at *11-12. On July 16, 2018, the Ms. L. plaintiffs asked Judge Sabraw to impose a seven-day waiting period before members of reunified families can be removed from the country – relief sought to ensure that parents can consult with their children and counsel about legal options prior
4

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to removal. That day, Judge Sabraw temporarily stayed removals of reunified families pending his decision on plaintiffs’ request for a seven-day waiting period. See Order, Ms. L. v. U.S. Immigration & Customs Enf’t, No. 18-0428 (S.D. Cal. July 16, 2018), ECF No. 116.2
II. LEGAL STANDARD Under 28 U.S.C. § 1404(a), a district court may transfer a civil action to any other district “[f]or the convenience of the parties and witnesses, in the interest of justice,” so long as the transferee district is one where the case “might have been brought.” See 28 U.S.C. § 1404(a). Section 1404(a) affords the Court broad discretion in determining whether transfer from one jurisdiction to another is appropriate. See Ravulapalli v. Napolitano, 773 F. Supp. 2d 41, 55 (D.D.C. 2011) (citing SEC v. Savoy Indus. Inc., 587 F.2d 1149, 1154 (D.C. Cir. 1978)). The decision to transfer is made based on an “individualized, case-by-case consideration of convenience and fairness.” See Ravulapalli v. Napolitano, 773 F. Supp. 2d at 55 (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)); see also Aracely v. Nielsen, No. 17-1976, 2018 WL 3243977, at *6 (D.D.C. July 3, 2018). And the moving party “bears a heavy burden” of establishing that plaintiffs’ choice of forum is inappropriate and the case should be transferred to another venue. See Southern Utah Wilderness Alliance v. Norton, 315 F. Supp. 2d 82, 86 (D.D.C. 2004) (quoting Pain v. United Tech. Corp., 637 F.2d 775, 784 (D.C. Cir. 1980)).

2

The Ms. L. class is defined to include: “All adult parents who enter the United

States at or between designated ports of entry who (1) have been, are, or will be detained in

immigration custody by the [Department of Homeland Security (“DHS”)], and (2) have a minor

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

care, or DHS custody, absent a determination that the parent is unfit or presents a danger to the

child.” Ms. L. v. U.S. Immigration & Customs Enf’t, 2018 WL 3129486, at *3 n.5. The class

does not include “parents with criminal history or communicable disease, or those apprehended

in the interior of the country or subject to the [June 20, 2018 Executive Order].” See id.

5

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Defendants must make two showings to justify transfer under Section 1404(a). First, defendants must establish that plaintiffs could have brought the action in the proposed transferee district. See Aracely v. Nielsen, 2018 WL 3243977, at *7 (citing Van Dusen v. Barrack, 376 U.S. at 616-17); see also 28 U.S.C. § 1404(a). Second, defendants must demonstrate that “considerations of convenience and the interest of justice weigh in favor of transfer to that district.” See Aracely v. Nielsen, 2018 WL 3243977, at *7 (citing Trout Unlimited v. U.S. Dep’t of Ag., 944 F. Supp. 13, 16 (D.D.C. 1996)). In evaluating whether defendants have made this second showing, the Court weighs several private and public interest factors. See id.; Ravulapalli v. Napolitano, 773 F. Supp. 2d at 55-56.
Cases transferred pursuant to Section 1404(a) must be transferred in their entirety. See 15 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FED. PRAC. & PROC. CIV. § 3846 (4d ed. 2018). Where all claims in a single case cannot be transferred to a single transferee district, the Court has authority to sever claims, so that one case may be transferred in its entirety pursuant to Section 1404(a), while the remaining claim proceeds as a separate case. See Pinson v. U.S. Dep’t of Justice, 74 F. Supp. 3d 283, 288 (D.D.C. 2014); Spaeth v. Mich. State Univ. Coll. of Law, 845 F. Supp. 2d 48, 57 n.13 (D.D.C. 2012) (severing claims prior to transferring venue under Section 1404(a)).
Under Rule 21 of the Federal Rules of Civil Procedure, “[o]n motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party.” FED. R. CIV. P. 21. Severed claims become independent actions that proceed separately and result in separate judgments. See Pinson v. U.S. Dep’t of Justice, 74 F. Supp. 3d at 288 n.7; see also 7 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FED. PRAC. & PROC. CIV. § 1689 (3d ed. 2018). District courts have broad discretion in
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determining whether severance of particular claims is warranted. See Spaeth v. Mich. State Univ. Coll. of Law, 845 F. Supp. 2d at 55 n.11 (citation and internal quotation marks omitted); M.K. v. Tenet, 216 F.R.D. 133, 137 (D.D.C. 2002); see also WRIGHT, MILLER & KANE, supra, § 1689. In making this determination, courts consider multiple factors, including: (1) whether the claims arise out of the same transaction or occurrence; (2) whether the claims present common questions of law or fact; (3) concerns related to judicial economy, multiplicity of litigation, and orderly and efficient resolution of disputes; (4) the availability of witnesses and other evidentiary proof; and (5) the potential for confusion, undue delay, or prejudice to any party. See, e.g., Dickerson v. Novartis Corp., 315 F.R.D. 18, 24-25 (S.D.N.Y. 2016); Wultz v. Islamic Republic of Iran, 762 F. Supp. 2d 18, 32-33 (D.D.C. 2011); Khanna v. State Bar of Cal., No. 07-2587, 2007 WL 2288116, at *2-3 (N.D. Cal. Aug. 7, 2007); M.K. v. Tenet, 216 F.R.D. at 137-38; see also Wyndham Assocs. v. Bintliff, 398 F.2d 614, 618 (2d Cir. 1968), cert. denied, 393 U.S. 977 (1968).3

III. DISCUSSION Defendants’ alleged policy of depriving children of their right to pursue independent asylum claims, in combination with other threatened actions, could well result in the removal of these plaintiffs and other separated children from the country without due process and possibly in violation of 8 U.S.C. § 1252(e)(3). The question is whether this Court or Judge

3

Rule 21 is commonly invoked to sever parties improperly joined under Rule 20,

which governs permissive joinder of parties. See WRIGHT, MILLER & KANE, supra, § 1689

(“[A]lthough the primary significance of Rule 21 is in the context of joinder of parties, it does

have an effect on the joinder of claims.”). Where, as here, severance of a claim rather than a

party is at issue, Rule 21 must be read in conjunction with: (1) Rule 18, which provides the

parties with “great freedom in the joinder of claims”; (2) Rule 42(b), which authorizes the

separate trial of a claim “in furtherance of convenience or to avoid prejudice, or when separate

trials will be conducive to expedition and economy”; and (3) Rule 42(a), which permits actions

involving a common question of law or fact to be consolidated for trial. See id.

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Sabraw is in a better position to resolve these claims. Defendants have made a persuasive argument that this Court should transfer the instant case to Judge Sabraw in the Southern District of California, as Judges Furman and Rakoff of the United States District Court for the Southern District of New York have done with similar cases brought by separated children. See N.T.C. v. ICE, No. 18-6428, 2018 WL 3472544 (S.D.N.Y. July 19, 2018); Order, E.S.R.B. v. Sessions, No. 18-6654 (S.D.N.Y. July 24, 2018), ECF No. 4. Indeed, the instant case and the cases of separated parents and children pending before Judge Sabraw involve members of the same families, as well as substantially similar claims that relate directly to the family reunification process and its aftermath, which Judge Sabraw has been closely managing over the last several weeks. Plaintiffs counter, however, that transfer of this case to the Southern District of California is both inappropriate and impossible because this District has exclusive jurisdiction over one of plaintiffs’ four claims, Count IV concerning judicial review of expedited removal orders under Section 1252(e)(3).
The Court easily concludes that under these circumstances, a single judge – Judge Sabraw – should be entrusted to untie this sailor’s knot. Plaintiffs are correct, however, that the Southern District of California is barred by statute from considering Count IV. The Court therefore will sever Counts I, II, and III and transfer this case with those three claims to the Southern District of California, to be considered together with the similar actions now pending before Judge Sabraw. Because jurisdiction over Count IV lies exclusively in this District, however, Count IV must remain before this Court and will proceed as a separate action brought under Section 1252(e)(3).
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A. Severance of Count IV The parties agree that Count IV of the complaint fails the threshold inquiry under Section 1404(a): Count IV could not have been brought in the Southern District of California. Unlike plaintiffs’ other statutory and constitutional claims, a claim brought under Section 1252(e)(3) may be brought only in the United States District Court for the District of Columbia. See 8 U.S.C. § 1252(e)(3)(A). Moreover – and importantly to the Court’s determination that the other claims can best be handled by Judge Sabraw – Count IV cannot proceed as a putative class action. See 8 U.S.C. § 1252(e)(1) (“Without regard to the nature of the action or claim and without regard to the identity of the party or parties bringing the action, no court may . . . certify a class under Rule 23 of the Federal Rules of Civil Procedure in any action for which judicial review is authorized under a subsequent paragraph of this subsection.”); American Immigration Lawyers Ass’n v. Reno, 199 F.3d 1352, 1358-59 (D.C. Cir. 2000). While Counts I, II, and III may be brought in the Southern District of California and proceed as a putative class action, Count IV involves a claim brought by six individuals over which only this Court has jurisdiction. Although plaintiffs’ four claims clearly arise out of the same transaction or occurrence, they present different considerations which, absent severance, would create significant barriers to the efficient resolution of the myriad claims arising out of the zero-tolerance immigration policy and its aftermath. On the one hand, declining transfer and adjudicating all four claims in this Court would result in duplicative litigation, given that Judge Sabraw is addressing substantially similar issues in the Ms. L. class action and the cases recently transferred from New York. See N.T.C. v. ICE, No. 18-6428, 2018 WL 3472544 (S.D.N.Y. July 19, 2018); Order, E.S.R.B. v. Sessions, No. 18-6654 (S.D.N.Y. July 24, 2018), ECF No. 4. On the other hand, transferring all four claims to Judge Sabraw would prejudice plaintiffs by
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transferring Count IV to a court that so clearly lacks jurisdiction to hear it. Proceeding down one path would needlessly expend judicial resources, while proceeding down the other would improperly deprive plaintiffs of the opportunity to litigate Court IV.
These foreseeable complications stand in contrast to a sensible alternative: severing Count IV from Counts I, II, and III and transferring the case to Judge Sabraw, while retaining jurisdiction over Count IV as a separate action. As discussed more fully below, severing Count IV and transferring Counts I, II, and III to Judge Sabraw will permit him to resolve plaintiffs’ claims in this action together with the related claims in the Ms. L. class action and the two other actions brought on behalf of separated children. See N.T.C. v. ICE, No. 18-6428, 2018 WL 3472544 (S.D.N.Y. July 19, 2018); Order, E.S.R.B. v. Sessions, No. 18-6654 (S.D.N.Y. July 24, 2018), ECF No. 4. The claims of the parent class and the claims of the children of those same parents will be before a single judge. As Judge Rakoff observed in deciding to transfer the case before him to Judge Sabraw, the entire process of reunifying immigrant families “has many, many moving parts.” See Venue Mot. Ex. 6 at 3. Severance and transfer will advance the goals of judicial economy and the orderly and efficient resolution of disputes. Moreover, keeping Count IV in this Court will mitigate prejudice to the six individual plaintiffs: rather than having their claim transferred to the Southern District of California where it could be dismissed for lack of jurisdiction, Count IV will remain alive in this Court.4
Weighing these factors, the Court finds that severing Count IV from Counts I, II, and III and transferring the case will materially advance the fair administration of justice.

4

The Court declines to construe defendants’ motion to transfer venue as a motion

to dismiss Count IV. At this stage, the question is not whether plaintiffs are subject to a removal

order or whether they have sufficiently alleged a written policy for purposes of 8 U.S.C.

§ 1252(e)(3) (Count IV). Rather, the question is whether Count IV could be brought in the

transferee court for purposes of 28 U.S.C. § 1404(a).

10

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Because jurisdiction over Count IV lies exclusively in this District, however, Count IV will remain before this Court and will proceed as a separate action brought under Section 1252(e)(3).
B. Transfer of Counts I, II, and III The remaining question is whether Counts I, II, and III may properly be transferred to the Southern District of California under 28 U.S.C. § 1404(a). The parties do not challenge that these claims meet the threshold requirement under Section 1404(a), i.e., that they could have been brought in the Southern District of California. The Court thus focuses its inquiry on whether the relevant private and public interest factors weigh in favor of transfer to that venue. The Court easily concludes that Counts I, II, and III should be transferred to the Southern District of California to be considered together with the claims pending in the Ms. L. class action and the actions recently transferred from New York. First, the instant case and one of the cases pending before Judge Sabraw, N.T.C. v. ICE, No. 18-6428, 2018 WL 3472544 (S.D.N.Y. July 19, 2018), both involve class action claims brought by separated children rather than by their parents. More broadly, plaintiffs in this case and in all of the cases pending before Judge Sabraw involve members of the same families. Plaintiffs in this case are the children of the class members in Ms. L. All of the cases address both family reunification and the rights of individual family members to pursue various immigration claims. In this regard, these cases represent two sides of the same coin: whether and to what extent parents may waive their children’s rights to pursue asylum and whether and to what extent children may independently assert their individual asylum rights. Second, the relief plaintiffs seek in this case is directly related to the reunification process that Judge Sabraw has been admirably overseeing for several weeks. Here, a putative
11

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class of separated children contends that they have rights distinct from the rights of their parents and that the reunification process does not adequately account for their distinct rights. They argue that defendants have deprived them of their ability to pursue individual asylum claims and that defendants have sought to extinguish their independent rights through purported waivers signed by their parents. Judge Sabraw is in a better position than this Court to decide those questions and to modify his own orders if appropriate. To the extent plaintiffs’ claims turn on the interpretation of the waiver form approved in the Ms. L. class action, for instance, Judge Sabraw is better suited to the task than this Court.5 Contrary to plaintiffs’ assertion, this issue is now squarely before Judge Sabraw, as the parties in the actions pending before him have brought the instant case to his attention. Transfer to the Southern District of California therefore will promote the orderly and consistent administration of the issues and claims presented in these cases.
The Court acknowledges the deference owed to plaintiffs’ choice of forum. The Court is also aware that transferring this case may inconvenience plaintiffs and their counsel, some of whom are located in Washington, D.C. But the fact remains that Judge Sabraw is considering substantially similar issues and has closely supervised the reunification process, holding dozens of conferences with counsel to date and issuing multiple opinions and orders concerning the family reunification process. Upon careful consideration of the parties’ arguments, and having consulted with Judge Sabraw with the parties’ consent, the Court finds that transfer is appropriate. The Court therefore severs Count IV from Counts I, II, and III and

5

In a separate case pending before the Court involving the zero-tolerance

immigration policy, the Court characterized a purported waiver form given to a separated parent

in June 2018 as “not worth the paper it is written on.” M.G.U. v. Nielsen, No. 18-1458, 2018

WL 3432720, at *3 (D.D.C. July 16, 2018). The Court notes that the waiver form at issue in that

case was not the waiver form approved by Judge Sabraw in the Ms. L. class action.

12

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transfers this case with those claims to the Southern District of California pursuant to 28 U.S.C. § 1404(a). Judge Sabraw will have to consider whether to certify a class and, more immediately, resolve the pending motion for a temporary restraining order and preliminary injunction. As defendants have agreed not to remove plaintiffs or their parents until August 6, 2018 if plaintiffs’ claims are transferred, no temporary restraining order is necessary from this Court at this time.
IV. CONCLUSION For the reasons set forth in this Opinion, the Court will grant defendants’ motion to transfer venue. The Court will sever Count IV from Counts I, II, and III and transfer this case with those three claims to the United States District Court for the Southern District of California to be considered by Judge Sabraw in conjunction with the related proceedings pending before him. The Court will retain jurisdiction over Count IV as a separate action. An Order consistent with this Opinion shall issue this same day. SO ORDERED.

DATE: August 3, 2018

/s/
PAUL L. FRIEDMAN United States District Judge

13

 
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1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 M.M.M., on behalf of his minor child,

12 J.M.A., et al.,

13 v.
14

Plaintiffs,

15

JEFFERSON BEAUREGARD SESSIONS III, Attorney General of the

16 United States, et al.,

Case No.: 18cv1832 DMS (MDD)
ORDER GRANTING PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER

17

Defendants.

18

19

Plaintiffs are migrant children who were forcibly separated from their parents shortly

20 after crossing the United States-Mexico border. The children entered the United States

21 with their parents at or between ports of entry and were fleeing violence from countries in

22 Central America. They were seeking refuge in the United States and hoped to be granted

23 asylum together as a family. However, under the Government’s “zero tolerance”

24 immigration policy, immigrant parents unlawfully entering the United States with their

25 young children were subject to criminal prosecution and systematically separated from

26 their children. In less than two months following implementation of the zero tolerance

27 policy, approximately 2,600 families were separated, sparking national protests and

28 condemnation.

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1

The parents of these children sought relief in this Court over the government’s family

2 separation practices. On June 26, 2018, this Court certified a nationwide class of separated

3 parents and issued a classwide preliminary injunction requiring the Government to reunify

4 these parents with their children by July 26, 2018, on a showing that the parents’

5 fundamental right to family integrity under the Fifth Amendment to the United States

6 Constitution had been violated. See Ms. L. v. U.S. Immigration and Customs Enforcement,

7 (“Ms. L.”), Case No. 18cv0428 DMS (MDD), ECF No. 83. The Government marshaled

8 its resources and reunified nearly 2,000 of these parents with their children by the deadline.

9 These timely reunifications were possible because the parents and children were still in the

10 United States. Approximately 400 other parents, however, were deported to countries in

11 Central America without their children prior to the Court’s reunification order. An

12 intensive collaborative effort is presently underway to locate and reunite these parents with

13 their children.

14

With approximately 2,000 families recently reunified in the United States, attention

15 has turned to what lies ahead for these parents and their children. Plaintiffs in this putative

16 class action are the children of the parents in the Ms. L. case. They contend that Defendants

17 intend to immediately remove some of the families, thereby depriving Plaintiffs of certain

18 asylum procedures guaranteed by statute and under the United States Constitution.

19 (Compl. ¶ 4.) Over half of the parents completed their asylum proceedings and were issued

20 final orders of removal after their claims were rejected. These parents cleared background

21 checks and were deemed suitable for reunification, but did not otherwise meet the

22 requirements for asylum or other relief from removal. Some of their children, who are

23 Plaintiffs in the present action, were also in asylum proceedings that had been initiated for

24 them by the Government before reunification occurred. Plaintiffs allege that Defendants

25 have “since reversed course, revoking [these proceedings] with the immigration court,

26 presumably on the basis” that their parents waived their rights to seek asylum when they

27 executed forms agreeing to be removed with their children. (Id. ¶¶ 49-50.) The

28 Government does not dispute that it intends to remove parents with removal orders, and to

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1 remove their children (Plaintiffs) with them based on the parents’ requests to be removed

2 with their children. Plaintiffs dispute that their parents knowingly and voluntarily waived

3 their rights, and thus request the Court to issue a temporary restraining order (“TRO”)

4 enjoining the Government from removing them and their parents pending a determination

5 of these issues.1

6

Plaintiffs initially filed this action on July 27, 2018, before Judge Paul L. Friedman

7 in the United States District Court for the District of Columbia. (Case No. 1:18cv01759

8 PLF.) Judge Friedman observed that these cases, the present one and Ms. L., “represent

9 two sides of the same coin: whether and to what extent parents may waive their children’s

10 rights to pursue asylum and whether and to what extent children may independently assert

11 their individual asylum rights.” (ECF No. 25 at 11.) On August 3, 2018, Judge Friedman

12 transferred the case to this Court given the interrelated issues and invited it to “untie this

13 sailor’s knot.” (Id. at 8.) To do so requires an understanding of what is actually in dispute

14 and what is not.

15

Importantly, both sides appear to agree on maintaining family unity—they just do

16 not agree on how the family unit should be treated. Plaintiffs want to access asylum

17 proceedings to which they are statutorily entitled and to be accompanied by their parents,

18 while Defendants want to remove the families forthwith.2 Plaintiffs therefore seek a TRO

19 prohibiting their removal and the removal of their parents until a determination is made

20

21 1 The relief requested here overlaps with the relief requested by the plaintiffs in Ms. L. in
22 their July 16, 2018 Motion for Stay of Removal and Emergency Temporary Restraining
23 Order Pending Ruling on the Stay Motion. (See Ms. L., ECF No. 110.) The Court granted the plaintiffs’ request for TRO in Ms. L. pending the parties’ attempt to resolve and brief
24 the issues. On August 15, 2018, Defendants renewed their request for additional time to
25 explore resolution, but Plaintiffs in M.M.M. declined the invitation. With this ruling, the TRO in Ms. L. is moot, and will be denied in a separate order to be filed in that case.
26 2 Importantly, Defendants do not argue, either here or in Ms. L., that they wish to remove
27 parents with final removal orders without their children. Rather, Defendants appear to be seeking removal of parents and children together. The only dispute here is whether those
28 removals should occur now or at a later time.

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1 about whether and to what extent they may assert their individual asylum rights. The

2 principal dispute here is not whether the children have their own asylum rights (Defendants

3 agree they do), but whether their parents waived those rights, and if they did not, what type

4 of asylum procedures the children are entitled to—a potentially quick one under § 235 of

5 the Immigration and Nationality Act (“INA”), or a more involved one under § 240 of the

6 INA that was initially provided to some of the children after they were separated.3

7

As noted, this case is not about Defendants’ authority—or desire—to deport the

8 parents at issue without their children. It does not appear Defendants wish to do so. Rather,

9 this case is about the timing of removal of the family unit and whether an orderly asylum

10 process should be permitted. Re-separation of the family would be antithetical to the

11 President’s Executive Order which expressly restored family unity and abandoned the

12 family separation policy,4 and it would greatly exacerbate the intensive efforts presently

13

14

15 3 Plaintiffs point out that families apprehended at or near the border prior to the zero
16 tolerance policy would have gone through § 235 proceedings together. (Mem. of Law in
17 Supp. of Pls.’ Application for TRO and Prelim. Inj. at 16, ECF No. 6-1.) In those family proceedings, the asylum officer would make credible fear determinations as to both parent
18 and child, and if one received a positive credible fear finding, that finding would inure to
19 the benefit of the other. (Pls.’ Supp. Mem. of Law in Supp. of Mot. for TRO, Ex. A (Decl. of Shalyn Fluharty) ¶¶ 3-5, ECF No. 33.) Plaintiffs note this is important because the
20 credible fear determinations for parents and children are different. In analyzing the
21 parent’s claim, the asylum officer considers whether the parent has been targeted with persecution on account of a reason other than race, religion, nationality, political opinion
22 or membership in a particular group. In considering the children’s claim, the inquiry may
23 be broader in that their “particular social group” may “be comprised of ‘immediate family members’ of their” parent. (Id. ¶ 3.) If, during this process, either the parent or child
24 receives a credible fear finding, both parent and child are taken out of expedited removal
25 proceedings and placed in proceedings under § 240. (Id. ¶ 4.) However, if neither parent nor child receives a positive credible fear finding, both are subject to expedited removal.
26 4 See Executive Order, Affording Congress an Opportunity to Address Family Separation
27 § 1, 2018 WL 3046068 (June 20, 2018) (stating it is “the policy of this Administration to maintain family unity, including by detaining alien families together where appropriate and
28 consistent with law and available resources.”).

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1 underway to reunite the nearly 400 parents who were previously removed from the country

2 with their children who remain in the United States.

3

For the reasons set forth below, the Court concludes it has jurisdiction to issue the

4 requested injunction and exercises its discretion to do so. Plaintiffs have met all the

5 required factors for the relief they request, including likely success on the merits—which

6 encompasses the waiver issue.

7

I.

8

DISCUSSION

9

Generally, injunctive relief is “an extraordinary remedy that may only be awarded

10 upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res.

11 Def. Council, Inc., 555 U.S. 7, 22 (2008). To meet that showing, Plaintiffs must

12 demonstrate “‘[they are] likely to succeed on the merits, that [they are] likely to suffer

13 irreparable harm in the absence of preliminary relief, that the balance of equities tips in

14 [their] favor, and that an injunction is in the public interest.’” Am. Trucking Ass’ns v. City

15 of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter, 555 U.S. at 20). The

16 purpose of a temporary restraining order, in particular, is to preserve the status quo before

17 a preliminary injunction hearing may be held; its provisional remedial nature is designed

18 merely to prevent irreparable loss of rights prior to judgment. See Granny Goose Foods,

19 Inc. v. Brotherhood of Teamsters & Auto Truck Drivers, 415 U.S. 423, 439 (1974) (noting

20 a temporary restraining order is restricted to its “underlying purpose of preserving the status

21 quo and preventing irreparable harm just so long as is necessary to hold a hearing, and no

22 longer”).

23 A. Jurisdiction

24

Before turning to the merits of Plaintiffs’ request for a temporary restraining order,

25 the Court must first address Defendants’ argument that the Court lacks jurisdiction to grant

26 the requested relief, more specifically, to enjoin the execution of any final removal orders

27

28

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1 issued to Plaintiffs’ parents. (See Defs.’ Opp’n to Mot. at 6-9, ECF No. 15.)5 In support

2 of this argument, Defendants rely on the INA, specifically 8 U.S.C. §§ 1252(a)(2)(A)(i),

3 1252(e)(1), (2), (4), and 1252(g). Plaintiffs in both this case and in Ms. L. disagree that

4 these statutes deprive the Court of jurisdiction to grant the requested relief. The Ms. L.

5 Plaintiffs, in particular, also argue the Court has authority to issue orders necessary to

6 ensure implementation of its injunction in that case. (See Ms. L., ECF No. 110 at 8.)

7

The statute Defendants rely on to support their argument that the Court lacks

8 jurisdiction is 8 U.S.C. § 1252, which is entitled “Judicial Review of Orders of Removal.”

9 Defendants rely first on subsection (a)(2)(A)(i) of this statute, which states, “no court shall

10 have jurisdiction to review any individual determination or to entertain any other cause or

11 claim arising from or relating to the implementation or operation of an order of removal

12 pursuant to section 1225(b)(1) of this title.” 8 U.S.C. § 1252(a)(2)(A)(i). Although

13 Plaintiffs in this case did not address this specific statute, the Ms. L. Plaintiffs argue this

14 statute does not apply here because the relief they are requesting does not “aris[e] from ...

15 the implementation or operation of an order of removal[.]” Id. Rather, they contend the

16 requested relief arises from “the government’s decision to separate them from their

17 children[.]” (Ms. L., ECF No. 110 at 9.)

18

In Jennings v. Rodriguez, ___ U.S. ___, 138 S.Ct. 830 (2018), the Supreme Court

19 addressed the “arising from” language in a neighboring subsection of § 1252. There, the

20 Court refused to give this language an “expansive interpretation,” stating it “would lead to

21 staggering results.” Id. at 840. Instead, the Court concluded that § 1252(b)(9) did not

22 present a jurisdictional bar where respondents were “not asking for review of an order of

23 removal; they are not challenging the decision to detain them in the first place or to seek

24

25

26 5 Defendants also raised this argument in their opposition to the motion to stay in the Ms.
27 L. case. (See Ms. L., ECF No. 177 at 18-23.) Because the jurisdictional issue presented in that case is the same as the one presented here, the Court incorporates the parties’
28 arguments and briefing from Ms. L. into this discussion.

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1 removal; and they are not even challenging any part of the process by which their

2 removability will be determined.” Id. at 841.

3

Here, as in Jennings, Plaintiffs are not asking this Court to review any individual

4 removal orders. Indeed, none of the Plaintiffs in this case have final removal orders. The

5 only persons with final removal orders here are Plaintiffs’ parents, but they are not

6 challenging the Government’s ultimate decision to detain or remove them. All Plaintiffs

7 are asking of the Court is to stay removal of their parents pending resolution of Plaintiffs’

8 separate claims for asylum. Because this request does not “aris[e] from … the

9 implementation or operation of an order of removal[,]” § 1252(a)(2)(A)(i) does not deprive

10 this Court of jurisdiction to consider Plaintiffs’ request.

11

Next, Defendants rely on § 1252(e)(1). That statute provides, no court may “(A)

12 enter declaratory, injunctive, or other equitable relief in any action pertaining to an order

13 to exclude an alien in accordance with section 1225(b)(1) of this title except as specifically

14 authorized in a subsequent paragraph of this subsection[.]” 8 U.S.C. § 1252(e)(1). The

15 parties do not devote much attention to this subsection, but like § 1252(a)(2)(A)(i), it also

16 does not deprive this Court of jurisdiction to entertain Plaintiffs’ request. On its face, this

17 statute applies only to “action[s] pertaining to an order to exclude an alien in accordance

18 with section 1225(b)(1)[,]” 8 U.S.C. § 1252(a)(1)(A), and the cases and motions at issue

19 here do not fit that description. Thus, this statute does not act as a jurisdictional bar to the

20 Court’s consideration of the motion.

21

The final subsection of the statute Defendants rely on is § 1252(g). This subsection

22 states “no court shall have jurisdiction to hear any cause or claim by or on behalf of any

23 alien arising from the decision or action by the Attorney General to commence

24 proceedings, adjudicate cases, or execute removal orders against any alien under this

25 chapter.” 8 U.S.C. § 1252(g). Like subsection (a)(2)(A)(i) above, the relevant language

26 here is “arising from,” and as stated above, the claims in the cases and motions at issue

27 here do not “arise from” the Attorney General’s decision to execute removal orders against

28 parents in Ms. L. Rather, the claims in Ms. L. and the relief requested in the motion to stay

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1 in that case arise from the parents’ separation from their children pursuant to Defendants’

2 policies. The present case is even farther afield of § 1252(g) as the claims here are brought

3 on behalf of the children of Ms. L. parents, none of whom even have final orders of

4 removal. Thus, § 1252(g) does not deprive the Court of jurisdiction to consider the present

5 motion. See Arce v. United States, ___ F.3d ___, 2018 WL 3763524, at *2-4 (9th Cir. Aug.

6 9, 2018) (rejecting government’s argument that § 1252(g) deprived the courts of

7 jurisdiction to hear “FTCA claims of a noncitizen who was wrongfully removed in

8 violation of a court order.”); Barahona Gomez v. Reno, 167 F.3d 1228, 1233 34 (9th Cir.

9 1999) (rejecting defendants’ argument that § 1252(g) deprived court of jurisdiction to “stay

10 deportation pending resolution of [plaintiffs’] constitutional claims.”); Walters v. Reno,

11 145 F.3d 1032, 1051 53 (9th Cir. 1998) (same). There being no jurisdictional impediment

12 to hearing the present motion, the Court now turns to the merits of Plaintiffs’ request.

13 B. Likelihood of Success

14

“The first factor under Winter is the most important—likely success on the merits.”

15 Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015). While Plaintiffs carry the burden

16 of demonstrating a likelihood of success, they are not required to prove their case in full at

17 this stage but only such portions that enable them to obtain the injunctive relief they seek.

18 See Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981).

19

Here, Plaintiffs argue they are likely to succeed on the merits on all of their claims,

20 but the Court need only discuss one: the claim for mandamus relief, which is premised on

21 the children’s independent right to seek asylum under well settled law. To prevail on this

22 claim, Plaintiffs must show (1) their claim is clear and certain, (2) Defendants’ duty to

23 perform “is nondiscretionary, ministerial, and so plainly prescribed as to be free from

24 doubt, and (3) no other adequate remedy is available.” Patel v. Reno, 134 F.3d 929, 931

25 (9th Cir. 1997) (citing Azuring v. Von Raab, 803 F.2d 993, 995 (9th Cir. 1986)). Plaintiffs

26 have shown a likelihood of success on this claim for the reasons stated below.

27

First, Plaintiffs’ claim is clear and certain. Plaintiffs argue—and it is undisputed—

28 that prior to the Government’s separation policy, Plaintiffs and similarly situated children

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1 would have been subject to proceedings under § 235 of the INA. (Compl. ¶ 53.) Under §

2 235, a person who requests asylum by expressing a fear of persecution in his or her home

3 country has the right to be interviewed by an asylum officer to determine whether that

4 individual has a credible fear of returning to their home country. The statute provides,

5

If an immigration officer determines that an alien ... who is arriving in the

6

United States ... is inadmissible under section 1182(a)(6)(C) or 1182(a)(7) of this title and the alien indicates either an intention to apply for asylum ... or a

7

fear of persecution, the officer shall refer the alien for an interview by an

8

asylum officer ....

9 8 U.S.C. § 1225(b)(1)(A)(ii). Here, Plaintiffs allege they have “triggered the non-

10 discretionary duty outlined” in this statute, namely, the duty to refer them for an interview

11 by an asylum officer. (Compl. ¶ 122.) More specifically, they allege they have requested

12 an opportunity to explain to an immigration or asylum officer their fear of returning to their

13 home countries, but not one of them has received a response to those requests. (Id. ¶¶ 73,

14 80, 88, 94, 99, 103.)

15

Second, the duty set out in the statute is “nondiscretionary, ministerial, and so plainly

16 prescribed as to be free from doubt[.]” Patel, 134 F.3d at 931. By its plain language, the

17 statute provides the immigration officer “shall” refer the alien for an interview by an

18 asylum officer. 8 U.S.C. § 1182(b)(1)(A)(ii). “The word ‘shall’ generally imposes a

19 nondiscretionary duty[.]” SAS Institute, Inc. v. Iancu, ___ U.S. ___, 138 S.Ct. 1348, 1351

20 (2018); see also Spencer Enterprises, Inc. v. U.S., 345 F.3d 683, 691 (9th Cir. 2003)

21 (stating use of “shall” reflects nondiscretionary duty). Indeed, Defendants’ counsel

22 conceded that children, like the Plaintiffs here, have a right to pursue asylum separate and

23 apart from their parents. (Rep. Tr. at 14-15, August 8, 2018, ECF No. 180.)

24

Third, there is no dispute that no other adequate remedy is available to Plaintiffs.

25

In their opposition to the motion, Defendants did not address whether Plaintiffs had

26 shown a likelihood of success on this claim. However, at oral argument and in Ms. L.

27 Defendants raised the defense of waiver. Specifically, Defendants assert Plaintiffs’ parents

28

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1 waived their children’s separate right to pursue asylum by executing one of the forms

2 during the reunification process.

3

An election form was provided to parents in Ms. L. and attached to their class notice,

4 which was entitled “Notice of Potential Rights for Certain Detained Alien Parents

5 Separated from their Minor Children.” The class notice was created and distributed to

6 advise the parents of their right to reunification with their children. The notice was

7 proposed, in part, as a response to a form the Government had previously distributed to

8 parents in the Ms. L. class, entitled “Separated Parent’s Removal Form.” (See Ms. L. Pls.’

9 Mem. Regarding Reunification Forms, Ex. 63, ECF No. 32.) The government form offered

10 two choices to parents with final removal orders: (1) to be reunited with their child for the

11 purpose of repatriation to their home country, or (2) to “voluntarily” return to their home

12 country without their child, who would “remain in the United States to pursue available

13 claims of relief.” (Id.) The Ms. L. plaintiffs argued the government form was misleading

14 and was being used improperly to suggest to parents that they needed to waive their right

15 to contest removal in order to obtain reunification. Plaintiffs in Ms. L. therefore requested

16 the Court to issue the class notice to “dispel that impression, and nothing more.” (See Ms.

17 L., ECF No. 168 at 1.) The class notice included information left out of the government

18 form, namely, that a preliminary injunction had issued compelling the government to

19 reunify the parents with their children. (See Ms. L. Pls.’ Mem. Regarding Reunification

20 Forms, Ex. 62, ECF No. 32.) The class notice clarified, “The government must reunify

21 you with your child. ... You do NOT need to take any action to be reunified with your child.

22 ... You do NOT need to agree to removal from the United States in order to be reunified

23 with your child.” (Id. at 10.) A similar statement appeared on the election form attached

24 to the class notice. (Id. at 11) (“You DO NOT have to agree to removal from the United

25 States in order to be reunified with your child. Even if you continue to fight your case, the

26 government must still reunify you.”)

27

Notably, neither the government form nor the class notice included any language

28 concerning the children’s separate rights to pursue asylum. Similarly, there is no language

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1 on the election form concerning the children’s right to pursue asylum, the parents’ ability

2 to waive those rights, or any place on the form for the parents to actually execute such a

3 waiver. The reason for this omission is apparent: the class notice was designed to advise

4 parents of their right to reunification without having to take any action on their own or

5 abandoning their own challenge to removal, and nothing more. The core allegations in Ms.

6 L. focused on the constitutional violation caused by the Government’s family separation

7 policy, and the obligation of the Government to reunify the separated families to redress

8 the wrong. The class notice, therefore, was not designed to advise parents of their

9 childrens’ asylum rights, let alone to waive those rights. It was about the right to reunify.

10 The complete absence of any mention of the children’s asylum rights on any of the forms

11 at issue here dooms Defendants’ waiver argument. See Kirkpatrick v. Chappell, 877 F.3d

12 1047, 1055 (9th Cir. 2017) (stating “knowing, voluntary, and intelligent requirement” that

13 applies to waivers means the waiver must be “made with a full awareness of both the nature

14 of the right being abandoned and the consequences of the decision to abandon it.”); see

15 also United States v. Lopez-Vasquez, 1 F.3d 751, 754 (9th Cir. 1993) (“Courts should

16 indulge every reasonable presumption against waiver, and they should not presume

17 acquiescence in the loss of fundamental rights.”) (citations omitted).

18

Nevertheless, Defendants maintain the election form provided with the class

19 notice—created in the context of reunification—constitutes a waiver of the children’s

20 separate rights to pursue asylum. Defendants hinge their waiver argument on two

21 statements in the election form. First, the form states: “IF YOU LOSE YOUR CASE AND

22 THE GOVERNMENT IS GOING TO REMOVE YOU FROM THE UNITED STATES,

23 you must decide at that time whether you want your child to leave the United States with

24 you.” Next, the form prompts those parents to choose from one of three options: (1) to be

25 removed with child, (2) to be removed without child, or (3) if undecided, “to talk with a

26 lawyer before deciding” whether to be removed with or without child. Based on that

27 language, Defendants argue the election form was “designed to allow the parent to make

28 the election whether to forego any separate relief their child may have and return home

11 18cv1832 DMS (MDD)

Case 3:18-cv-01832-DMS-MDD Document 55 Filed 08/16/18 PageID.742 Page 12 of 16

1 together[.]” (ECF No. 169 at 3.) However, as discussed above, that is simply not the case.

2 The class notice and election form were not designed for that purpose; they focused solely

3 on the parents’ reunification rights, not the childrens’ rights, and certainly not on any

4 waiver of those rights.

5

On the present record, Defendants have not met their burden of showing that the

6 parents’ execution of either the government form or the election form provided with the

7 class notice effected a waiver of their children’s asylum rights. See Orantes-Hernandez v.

8 Smith, 541 F.Supp. 351, 377 (C.D. Cal. 1982) (citing In re Gault, 387 U.S. 1, 42 (1967))

9 (“Abandonment of a federal right must be intentional; it will not be presumed.”) Thus,

10 Plaintiffs have shown a likelihood of success on their second claim for relief, which weighs

11 in favor of issuance of the temporary restraining order.6

12 C. Irreparable Injury and Balance of Equities

13

Turning to the next two factors, Plaintiffs must show they are “‘likely to suffer

14 irreparable harm in the absence of preliminary relief[,]’” and demonstrate that “‘the balance

15 of equities tips in [their] favor.’” Hernandez v. Sessions, 872 F.3d 976, 995 (9th Cir. 2017)

16 (quoting Winter, 555 U.S. at 20). Plaintiffs have met that burden.

17

Plaintiffs allege, and Defendants do not dispute, that the Government plans to

18 remove recently reunified families absent a court order to the contrary. (See Mem. of Law

19 in Supp. of Pls.’ Application for TRO and Prelim. Inj. at 23, ECF No. 6-1) (stating

20 government is threatening to remove Plaintiffs without providing them access to any

21 asylum proceedings); (Rep. Tr. at 14, August 8, 2018, ECF No. 180) (confirming

22 government’s plan “to remove these families as soon as practical.”) This would harm

23 Plaintiffs and similarly situated children by depriving them of their right to seek asylum.

24 “By definition, aliens seeking asylum contend that they are subject to persecution when

25

26

27 6 In light of this conclusion the Court declines to address at this time Plaintiffs’ other
28 claims.

12 18cv1832 DMS (MDD)

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1 they return to their own countries, where they risk further harm, potentially including

2 imprisonment or even death.” Desta v. Ashcroft, 365 F.3d 741, 748 (9th Cir. 2004).

3

In their brief in opposition to the present motion, Defendants did not raise any

4 hardships to them if the temporary restraining order was granted. At oral argument,

5 defense counsel asserted there was some unrest in at least one of the family detention

6 facilities, but it is unclear what that unrest is and there is no evidence before the Court to

7 support counsel’s statement. To be sure, each side faces some burden if a temporary

8 restraining does or does not issue, but on balance these factors clearly favor Plaintiffs. Cf.

9 Barahona-Gomez, 167 F.3d at 1236 (upholding finding that balance of hardships favored

10 plaintiffs where “without a preliminary injunction, ... the plaintiffs may never have an

11 opportunity to seek review of the actual cause of denial of their applications for suspension

12 of deportation.”)

13 D. Public Interest

14

The final factor for consideration is the public interest. See Hernandez, 872 F.3d at

15 996 (quoting Stormans, Inc. v. Selecky, 586 F.3d 1109, 1139 (9th Cir. 2009)) (“When, as

16 here, ‘the impact of an injunction reaches beyond the parties, carrying with it a potential

17 for public consequences, the public interest will be relevant to whether the district court

18 grants the preliminary injunction.’”) To obtain the requested relief, “Plaintiffs must

19 demonstrate that the public interest favors granting the injunction ‘in light of [its] likely

20 consequences,’ i.e., ‘consequences [that are not] too remote, insubstantial, or speculative

21 and [are] supported by evidence.’” Id. (quoting Stormans, 586 F.3d at 1139).

22

Here, there are a number of public interests at stake. First, there is “a public interest

23 in preventing aliens from being wrongfully removed, particularly to countries where they

24 are likely to face substantial harm.” Nken v. Holder, 556 U.S. 418, 436 (2009). Second,

25 there is “a public interest in prompt execution of removal orders[.]” Id. As the Supreme

26 Court has stated, “[t]he continued presence of an alien lawfully deemed removable

27 undermines the streamlined removal proceedings IIRIRA established, and ‘permit[s] and

28 prolong[s] a continuing violation of United States law.’” Id. (quoting Reno v. American-

13 18cv1832 DMS (MDD)

Case 3:18-cv-01832-DMS-MDD Document 55 Filed 08/16/18 PageID.744 Page 14 of 16

1 Arab Anti-Discrimination Comm., 525 U.S. 471, 490 (1999)). Third, there is a public

2 interest in ensuring that government officials charged with executing the law fulfill their

3 duties. See 8 U.S.C. § 1225(b)(1)(A)(ii) (stating that if an alien “indicates either an

4 intention to apply for asylum under section 1158 of this title or a fear of persecution, the

5 officer shall refer the alien for an interview by an asylum officer under subparagraph (B).”)

6 Finally, there is a public interest in ensuring that Plaintiffs’ constitutional right to family

7 association and integrity is upheld. Each of these interests is important, and all but one

8 will be served by the issuance of a temporary restraining order in this case.

9

The only interest that will not be served is the interest in prompt execution of

10 removal orders. There is no doubt this an important interest. This Court, situated as it is

11 on the border between the United States and Mexico, “is keenly aware of the serious

12 problems already caused by the influx of illegal aliens into the United States and recognizes

13 the dangers to both citizens and illegal immigrants arising from this situation.” Orantes-

14 Hernandez, 541 F.Supp. at 379-80. However, “these problems must not and surely need

15 not be solved by depriving people of their rights.” Id. at 380. By furthering the other

16 public interests set out above, “the Court is not directing that the doors be opened to illegal

17 aliens with no right to be in this country.” Id. Rather, the Court is upholding the rights

18 provided to all persons under the United States Constitution, rights that are particularly

19 important to minor children seeking refuge through asylum, and rights that have been

20 specifically recognized by the President’s Executive Order in the particular circumstances

21 of this case. See Executive Order § 1, 2018 WL 3046068 (“[T]he policy of this

22 Administration [is] to maintain family unity, including by detaining alien families together

23 where appropriate and consistent with law and available resources.”) Maintaining family

24 unity under these circumstances is appropriate, consistent with law, see 8 U.S.C. §

25 1225(b)(1)(B)(iv) (alien may choose persons to consult with prior to credible fear interview

26 or any review thereof), and would not unfairly or unduly tax available government

27 resources. Notably, the laws enacted by Congress provide “that those aliens with claims

28 of persecution in their homeland should at least be heard and that those with valid claims

14 18cv1832 DMS (MDD)

Case 3:18-cv-01832-DMS-MDD Document 55 Filed 08/16/18 PageID.745 Page 15 of 16

1 of persecution in their homeland should receive protection.” Orantes-Hernandez, 541

2 F.Supp. at 380. In the end, it may be that many of these children will be denied the relief

3 they seek, but the public has an interest in ensuring these children receive the process that

4 Congress has provided. The hasty removal of these children and their parents at the

5 expense of an ordered process provided by law would be antithetical to the public interests

6 set out above, which plainly weigh in favor of granting the requested relief.

7

II.

8

CONCLUSION

9

For the reasons set out above, the Court hereby GRANTS Plaintiffs’ motion for a

10 temporary restraining order as follows:

11

Defendants and their officers, agents, servants, employees, attorneys, and all those

12 who are in active concert or participation with them are hereby TEMPORARILY

13 RESTRAINED from removing from the United States, until the merits of Plaintiffs’ motion

14 for a preliminary injunction is resolved: (a) “All adult parents who enter the United States

15 at or between designated ports of entry who (1) have been, are, or will be detained in

16 immigration custody by the DHS, and (2) have a minor child who is or will be separated

17 from them by DHS and detained in ORR custody, ORR foster care, or DHS custody, absent

18 a determination that the parent is unfit or presents a danger to the child,” as modified by

19 the Court’s class definition in Ms. L., and their children; (b) all such parents who have

20 already been reunified, and their children; (c) all such parents who have allegedly waived

21 reunification, and their children; and (d) all such parents whose background checks or case

22 file reviews have allegedly raised “red flags,” and their children.7

23

24

25 7 Unlike in Ms. L., Plaintiffs here did not move for class certification in conjunction with their request for TRO. Defendants, however, did not object to providing classwide relief
26 other than on Plaintiffs’ claim under 8 U.S.C. § 1252(e)(3). That claim remains pending
27 before Judge Friedman in the district court for District of Columbia, and thus, that issue is more appropriately addressed to him. To the extent there is any objection to providing
28 classwide relief here, the Court notes the reasoning behind certification of the class in Ms.

15 18cv1832 DMS (MDD)

Case 3:18-cv-01832-DMS-MDD Document 55 Filed 08/16/18 PageID.746 Page 16 of 16

1

IT IS FURTHER ORDERED that Defendants shall immediately provide a copy of

2 this Order to any person or entity that may be subject to any provision of this Order,

3 including their officers, agents, servants, employees, attorneys, and all those who are in

4 active concert or participation with them or have any involvement in the removal of

5 individuals from the United States.

6

A status conference will be held on August 24, 2018, at 1:00 p.m. Plaintiffs’

7 counsel should be prepared to address whether they wish to proceed with a request for a

8 preliminary injunction, and counsel for both parties should be prepared to address how they

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

10 proceedings under §§ 235 or 240.8 What is anticipated, as the Court has grown accustomed

11 to in the Ms. L. case, is the parties will meet and confer and propose a solution—one which

12 follows the law, and is equitable and reflective of ordered governance.

13 Dated: August 16, 2018

14

15

16

17

18

19

20

21

22

23

24 L. would seem to apply equally here. See Ms. L. v. U.S. Immigration and Customs
25 Enforcement, ECF No. 82. 8 Consistent with the Court’s Orders in Ms. L., it appears Plaintiffs’ asylum claims would
26 be more appropriately addressed under § 235 since Plaintiffs were not truly
27 “unaccompanied” minors warranting removal proceedings under § 240. Nevertheless, the Court reserves ruling on that issue pending guidance from the parties on how they wish to
28 proceed.

16 18cv1832 DMS (MDD)

 
 Case 3:18-cv-01832-DMS-MDD Document 75 Filed 10/09/18 PageID.1005 Page 1 of 6

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10 M.M.M., on behalf of his minor child, J.M.A.,
et al.,
11

Case No. 3:18-cv-1832-DMS

12

Plaintiffs,

13 v.

14 Jefferson Beauregard Sessions, III, Attorney
General of the United States, et al.,
15
Defendant.
16

17
Ms. L, et al.,
18

19

Plaintiff,

20 v.

21 U.S. Immigration and Customs Enforcement,
et al.,
22
Defendant.
23

Case No. 3:18-cv-428-DMS
ORDER GRANTING PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT; PRELIMINARILY CERTIFYING THE SETTLEMENT CLASSES; AND APPROVING CLASS NOTICE

24

25

Upon consideration of the Parties’ Unopposed Motion for Preliminary Approval of

26 Proposed Settlement; Preliminary Certification of Settlement Classes; and Approval of Class

27 Notice;

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

Case 3:18-cv-01832-DMS-MDD Document 75 Filed 10/09/18 PageID.1006 Page 2 of 6
1
Settlement Classes were injured as a result of Defendants’ actions;
2
WHEREAS, the Court granted the M.M.M. Plaintiffs’ request for a Temporary Restraining
3
Order temporarily restraining Defendants “from removing [specified persons] from the United
4
States, until the merits of Plaintiffs’ motion for a preliminary injunction is resolved,” Order, ECF
5
No. 55 at 15 (Aug. 16, 2018);
6
WHEREAS the Court ordered the parties to consider “how they wish to proceed on the
7
issues of class certification and Plaintiffs’ entitlement to asylum proceedings” and to “meet and
8
confer and propose a solution—one which follows the law, and is equitable and reflective of
9
ordered governance,” id. at 16; and
10
WHEREAS, the Court has considered the Agreement, the proposed plan and form of notice,
11
and the other documents submitted in connection with the parties’ request for preliminary approval
12
of the Agreement, certification of the Settlement Classes set forth in the Agreement for the purposes
13
of settlement only, and appointment of class representatives and counsel for the Settlement Classes,
14
and good cause appearing therefore;
15
IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS:
16
1. The Motion is GRANTED.
17
Preliminary Approval of the Settlement
18
2. The Court finds that: (a) the proposed Settlement, as set forth in the Agreement, is
19
sufficiently fair, reasonable, and adequate to authorize the dissemination of notice of the Settlement
20
to potential members of the Settlement Classes and to schedule a fairness hearing to determine
21
whether to grant final approval of the proposed Settlement under Fed. R. Civ. P. 23(e); (b) the
22
Agreement was negotiated at arm’s length by experienced counsel acting in good faith; and
23
(c) there has been adequate opportunity for discovery for experienced counsel to evaluate the claims
24
and risks at this stage of the litigation.
25
3. The Court finds that preliminary approval is appropriate and hereby grants
26
preliminary approval of the Settlement subject to final determination following notice and hearing.
27
Certification of the Settlement Classes, Appointment of Settlement Class Representatives,
28
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Case 3:18-cv-01832-DMS-MDD Document 75 Filed 10/09/18 PageID.1007 Page 3 of 6

1

and Appointment of Co-Lead Counsel
2
4. For purposes of the Settlement, and only for that purpose, and without an
3

adjudication on the merits and without any impact upon the issues between Plaintiffs and
4

Defendants in the event that final approval of the Settlement does not occur, pursuant to Rules 23(a)
5
and 23(b)(2) of the Federal Rules of Civil Procedure, the Court finds that the requirements for a
6

class action are met, and hereby defines the following settlement classes.
7

The class of parents is defined as follows:
8

All adult alien parents who entered the United States at or between designated ports

9

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

10

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

11

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

12

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

13

encountered in the interior of the United States.1

14 The class of children is defined as follows:

15

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

16

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

17

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

18

(3) have been continuously physically present in the United States since June 26,

2018.
19

20

The Settlement Classes are accordingly preliminarily certified for settlement purposes.

21

5. For purposes of preliminary approval, the Court finds that provisional certification

22 of the Settlement Classes is warranted in light of the proposed Settlement under the prerequisites

23 of Federal Rule of Civil Procedure 23(a) because: (1) the members of the Settlement Classes are so

24 numerous that joinder is impracticable; (2) there are issues of law and fact common to the

25 Settlement Classes; (3) the claims of the named Plaintiffs in M.M.M. and Ms. L. are typical of the

26

1

References to a “class” or “class member” in the Agreement refer to the classes described

27 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

28 addresses parents who are covered by the above description, but who have been removed from the

United States.

- 3 -

Case 3:18-cv-01832-DMS-MDD Document 75 Filed 10/09/18 PageID.1008 Page 4 of 6
1
claims of the Settlement Class Members; and (4) Plaintiffs and the proposed Class Counsel will
2
fairly and adequately represent the interests of the Settlement Class Members.
3
6. For purposes of preliminary approval, the Court finds that provisional certification
4
of the Settlement Classes is warranted in light of the proposed Settlement under the requirements
5
of Federal Rule of Civil Procedure 23(b)(2) because Defendants are alleged to have acted or refused
6
to act on grounds that apply generally to the Settlement Classes, so that final injunctive relief or
7
corresponding declaratory relief is appropriate respecting the Settlement Classes as a whole.
8
7. The Court hereby appoints the named Plaintiffs in M.M.M. and Ms. L. as Settlement
9
Class Representatives. The Court preliminarily finds that the Settlement Class Representatives will
10
fairly and adequately protect the interests of the Settlement Classes because: (1) the interests of the
11
Settlement Class Representatives are consistent with those of Settlement Class Members; (2) there
12
appear to be no conflicts between or among the Settlement Class Representatives and the other
13
Settlement Class Members; (3) the Settlement Class Representatives have been and appear to be
14
capable of continuing to be active participants in both the prosecution and the settlement of this
15
litigation; and (4) the Settlement Class Representatives and Settlement Class Members are
16
represented by qualified, reputable counsel who are experienced in preparing and prosecuting large,
17
complicated class action cases, including those concerning alleged violations of the relevant laws.
18
8. The requirements of Rule 23(g) of the Federal Rules of Civil Procedure are met, and
19
the Court hereby confirms the appointment of the law firm Eversheds Sutherland, Muslim
20
Advocates, and the Legal Aid Justice Center as counsel for the parent class for parents continuously
21
physically present in the United States since June 26, 2018, the ACLU as counsel for parents who
22
have been removed, and Hogan Lovells US LLP as counsel for the child class.
23
24
25
26
27
28
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1
Notice to Potential Settlement Class Members
2
9. The Court finds that the proposed Settlement, as set forth in the Agreement, subject
3
to final determination following proper notice and a fairness hearing, is sufficiently fair, reasonable,
4
and adequate to authorize dissemination of notice to the Settlement Classes.
5
10. The Court approves the form and content of the draft Notice, as well as the plan for
6
distribution of the Notice, which complies fully with the requirements of Federal Rule of Civil
7
Procedure 23 and due process. The parties shall cause the Notice to be provided to potential
8
members of the Settlement Classes in accordance with the Notice Plan and the Agreement.
9
11. Any Settlement Class Member who objects to the proposed Settlement must do so
10
in writing, postmarked no later than November 2, 2018, and shall otherwise comply with the
11
requirements set forth in the Notice.
12
12. By November 9, 2018, the parties shall file with the Court their motion for final
13
approval of the Settlement.
14
13. The parties shall file with the Court their responses to any objection(s) to the
15
Settlement on or before November 9, 2018.
16
14. The Court will hold a fairness hearing on November 15, 2018, at 10:30 AM at
17
Courtroom 13A, 13th Floor, Suite 1310, 333 West Broadway, San Diego, CA 92101, to determine
18
the fairness, reasonableness, and adequacy of the proposed Settlement. Any Settlement Class
19
Member who follows the procedure set forth in the Notice may appear and be heard. The fairness
20
hearing may be rescheduled, adjourned, or continued without further notice to the Settlement Class
21
Members.
22
Other Provisions
23
15. In the event that the Settlement does not become final and effective for any reason,
24
nothing in the Agreement, this Order, or proceedings or orders regarding the Settlement shall be
25
construed to prejudice any position that the Plaintiffs, Defendants, and Settlement Class Members
26
may assert in any aspect of this litigation.
27
28
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Case 3:18-cv-01832-DMS-MDD Document 75 Filed 10/09/18 PageID.1010 Page 6 of 6
1
16. Neither the Agreement, nor any of its terms or provisions, nor any of the negotiations
2
or proceedings in connection with it, shall be construed as an admission or concession by
3
Defendants of the truth of any allegations in the litigation, or of any fault or wrongdoing of any
4
kind, or of a lack of merit of Plaintiffs’ allegations.
5
IT IS SO ORDERED.
6 Dated: October 9, 2018
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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 Case 3:18-cv-01832-DMS-MDD Document 73-1 Filed 10/05/18 PageID.1000 Page 1 of 5
NOTICE OF PROPOSED SETTLEMENT and SETTLEMENT ELECTION FORM
If you were separated from your parent(s) or child(ren) at the border, your rights may be affected by a proposed class action settlement.
A proposed settlement has been reached in class action lawsuits regarding the mechanism by which certain separated parents and children may pursue asylum or other protection in the United States. The lawsuits are M.M.M. v. Sessions, Case No. 3:18-cv-1832-DMS (S.D. Cal.), M.M.M. v. Sessions, Case No. 1:18-cv-1835-PLF (D.D.C.), Ms. L. v. ICE, Case No. 3:18-cv-428-DMS (S.D. Cal.), and Dora v. Sessions, Case No. 18-cv-1938 (D.D.C.).
What are these lawsuits about?
These lawsuits were brought on behalf of parents and children who were separated after being apprehended by the U.S. government at or near the border. The plaintiffs allege that the U.S. government failed to give these parents and children an adequate opportunity to pursue asylum or other protection from removal in the United States. The Judge overseeing the lawsuits temporarily stopped removals of families that were reunited after being separated at the border. The plaintiffs and the U.S. government subsequently agreed to a settlement, which will grant both parents and children access to procedures to seek asylum or other protection from removal in the United States.
Who is included?
A parent may be a member of the Parent Settlement Class if he or she:  Is an adult alien parent who entered the United States at or between designated ports of entry with their child(ren),  Was detained in immigration custody by the Department of Homeland Security (DHS),  Has a child who was or is separated from him or her and who was in DHS custody, Office of Refugee Resettlement (ORR) custody, or ORR foster care on or after June 26, 2018,  Was ordered to be reunified under the Court’s Order in Ms. L. v. U.S. Immigration and Customs Enforcement, No. 18-428 (S.D. Cal. June 26, 2018); and  Has been continuously physically present in the United States since June 26, 2018.
The agreement also reflects the parties’ agreement with regard to individuals who fit the parent class description as defined above, but have been removed from the United States, as well as the rights of members of the children class (defined below) whose parents have been removed.
1

Case 3:18-cv-01832-DMS-MDD Document 73-1 Filed 10/05/18 PageID.1001 Page 2 of 5
A child may be a member of the Child Settlement Class if he or she:  Is an alien child under the age of 18 as of the effective date of the agreement, who entered the United States at or between designated ports of entry with an alien parent,  Was separated from their parent(s),  Has been or will be reunified with their parent(s) under the preliminary injunction issued in Ms. L. v. U.S. Immigration and Customs Enforcement, No. 18-428 (S.D. Cal. June 26, 2018), and  Has been continuously physically present in the United States since June 26, 2018.
What relief does the settlement provide?
Among other things, the Settlement Agreement requires that, for parents who initially received a negative credible fear finding and have a final order of expedited removal, the U.S. government will conduct a good faith review of parents’ prior credible fear findings,1 which includes meeting with an asylum officer to present additional information. For the children of such parents who have been issued a Notice to Appear (NTA) or are in removal proceedings, the NTA will be cancelled or the government will move to dismiss the removal proceedings, and the child will be placed into expedited removal along with the parent. The child will also be referred for a credible fear interview if the child expresses a fear of return. If the parent if found to have a credible fear, then both parents and children will be issued a NTA to appear before an immigration judge, where they will be able to pursue asylum or other protection claims before the immigration court. If parents do not receive a positive credible fear finding on review, then the U.S. government will provide their children with their own credible fear interview. If children receive a positive credible fear finding, they and their parents will be issued a NTA to appear before an immigration judge, where they will be able to pursue asylum or other protection claims before the immigration court. Additional or other procedures apply where parents and children have been released from detention, where parents are subject to reinstated or final orders of removal, or where parents already have been removed. The Settlement Agreement does not provide any monetary payments to class members. Parents and children who fall into these categories should read the final Settlement Agreement and/or consult with counsel to understand what rights they may have under the Agreement. If the Settlement Agreement is approved, class members will be prohibited from seeking any additional immigration- or asylum-related injunctive, declaratory, or equitable relief related to allegations made in these lawsuits. All of the terms of the proposed Settlement are subject to Court approval at a “Final Approval Hearing” which is explained below. A copy of the Settlement Agreement is attached to this notice.

1

“Credible fear” refers to the process by which those individual subject to expedited

removal may seek asylum in the United States, in which an alien in expedited removal who has a

fear of returning home is interviewed by a U.S. government asylum officer to determine whether

they can establish a credible fear of persecution or torture if they are returned to their home

country. If the alien receives a positive credible fear determination, he or she can file an

application for asylum before the immigration court.

2

Case 3:18-cv-01832-DMS-MDD Document 73-1 Filed 10/05/18 PageID.1002 Page 3 of 5
You have the right to waive relief under the settlement.
Parents or children who wish to waive their rights under this Settlement Agreement and be promptly removed to their country of origin, have the right to do so by executing the below form. Any decision to return to your country of origin must be made affirmatively, knowingly, and voluntarily. Failure to return this form will not be construed as a waiver of your rights under the Settlement Agreement.
Instructions: This form must be read to the class member in a language that he/she understands. The class member must indicate which option he/she is choosing by signing the appropriate box below. If the class member is a child and lacks capacity or is under age 14, this form must be signed by the child’s parent or legal representative. Separate forms must be completed for each family member. Completed forms must be mailed or emailed to counsel for the appropriate proposed class set forth below.
I request to remain in the United States to seek relief from removal. I understand that the class action settlement does not guarantee that I will receive relief from removal. Name (printed): ____________________________ Signature: _________________________________
I am affirmatively, knowingly, and voluntarily requesting removal to my country of origin as soon as possible. I understand that I am waiving any rights to remain in the United States to pursue the procedures set forth in the settlement, including any right to apply for asylum or other protection from removal. Name (printed): ____________________________ Signature: _________________________________
Your Information: Name: ________________________________________________________ Date of Birth: ___________________________________________________ A#: __________________________________________________________ Country of citizenship: ___________________________________________ Detention facility (if applicable): ____________________________________ Address: _______________________________________________________ Telephone number: ______________________________________________
Parent(s)/child(ren) name(s): _______________________________________ Parent(s)/child(ren) A#(s): _________________________________________ Parent(s)/child(ren) address: ________________________________________ Parent(s)/child(ren) telephone number: ________________________________
Attorney Certification: I represent ____________________ (name) in his/her immigration proceedings. I have advised him/her (and/or his/her parent or legal representative) of his/her rights under the proposed class action settlement in ____________________ (language).
Attorney signature: _____________________________________________ Attorney name: ________________________________________________ Date: ________________________________________________________ Attorney telephone: ____________________________________________ Attorney address: ______________________________________________
3

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You have the right to object to the settlement. Although you may waive your rights to seek relief under this Settlement Agreement, you cannot exclude yourself from the settlement. However, you can ask the Court to deny approval by filing an objection. If the Court denies approval, the lawsuits will continue. If that is what you want to happen, you must object. You may object to the proposed settlement in writing. You may also appear at the Final Approval Hearing, either in person or through your own attorney. All written objections and supporting papers must (a) clearly identify the following case names and numbers: M.M.M. v. Sessions, Case No. 3:18-cv-1832-DMS (S.D. Cal.) and Ms. L. v. ICE, Case No. 3:18-cv-428-DMS (S.D. Cal.), (b) be submitted to the Court either by mailing them to the Class Action Clerk, United States District Court for the Southern District of California, San Diego Courthouse, 333 West Broadway, San Diego, CA 92101, or by filing them in person at any location of the United States District Court for the Southern District of California, and (c) be filed or postmarked on or before November 2, 2018.
When and where will the Court decide whether to approve the settlement? The Final Approval Hearing will be held on November 15, 2018, at 1:00 PM at Courtroom 13A, 13th Floor, Suite 1310, 333 West Broadway, San Diego, CA 92101, to determine the fairness, reasonableness, and adequacy of the proposed Settlement. The date may change without further notice to the class.
Where can I get more information? This notice summarizes the proposed settlement. For the precise terms and conditions of the settlement, please see the attached Settlement Agreement, by contacting class counsel identified below, by accessing the Court docket in this case through the Court’s Public Access to Court Electronic Records (PACER) system at https://ecf.casd.uscourts.gov, or by visiting the office of the Clerk of the Court for the United States District Court for the Southern District of California, San Diego, between 8:30 a.m. and 4:30 p.m., Monday through Friday, excluding Court holidays.
PLEASE DO NOT TELEPHONE THE COURT OR THE COURT CLERK’S OFFICE TO INQUIRE ABOUT THIS SETTLEMENT.
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Who represents the Classes?

Proposed Class Counsel for Child Class: Justin W. Bernick Zachary W. Best T. Clark Weymouth HOGAN LOVELLS US LLP 555 Thirteenth Street, NW Washington, DC 20004 Telephone: (888) 365-1112 Fax: (202) 637-5910 MMMSettlementQuestions@hoganlovells.c om

Proposed Class Counsel for Parent Class (Parents in the United States): Wilson G. Barmeyer John H. Fleming EVERSHEDS SUTHERLAND (US) LLP 700 Sixth Street NW, Suite 700 Washington, DC 20001 Telephone: (202) 220-8628 Fax: (202) 637-3593 parentsasylumclass@evershedssutherland.com
Sirine Shebaya Johnathan Smith MUSLIM ADVOCATES
Simon Y. Sandoval-Moshenberg Sophia Gregg LEGAL AID JUSTICE CENTER

Proposed Counsel for Removed Parents: Lee Gelernt Judy Rabinovitz Anand Balakrishnan Stephen Kang Spencer Amdur AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad St. 18th Floor New York, NY 10004 Telephone: (212) 549-2660 Fax: (212) 549-2654 familyseparation@aclu.org

5

 
 Case 3:18-cv-01832-DMS-MDD Document 87 Filed 10/18/18 PageID.1471 Page 1 of 5

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10 M.M.M., on behalf of his minor child, J.M.A., et al.,
11

Case No. 3:18-cv-1832-DMS

12

Plaintiffs,

13 v.

14 Jefferson Beauregard Sessions, III, Attorney General of the United States,
15 et al.,

16

Defendant.

17 18 Ms. L, et al.,

Case No. 3:18-cv-428-DMS

19 Plaintiff,
20 v.
21 U.S. Immigration and Customs
22 Enforcement, et al.,

ORDER ON PLAINTIFFS’ EMERGENCY MOTION TO REQUIRE IMPLEMENTATION OF SETTLEMENT AGREEMENT

23

Defendant.

24

25 This case comes before the Court on Plaintiffs’ emergency motion to require
26 implementation of the parties’ settlement agreement. Defendants submitted an
27 opposition to the motion, and Plaintiffs submitted a reply. The Court heard oral

Case 3:18-cv-01832-DMS-MDD Document 87 Filed 10/18/18 PageID.1472 Page 2 of 5

1 argument on the motion during the October 16, 2018 status conference. Justin

2 Bernick argued the motion for Plaintiffs, and Scott Stewart argued the motion for

3 Defendants.

4

The settlement agreement at issue here was entered into by the parties after the

5 Court granted a motion for a temporary restraining order (“TRO”) filed by Plaintiffs

6 in the M.M.M. case. That motion raised issues surrounding the asylum process for

7 families that had been separated at the border. In the order granting that motion, the

8 Court encouraged the parties to meet and confer on a possible solution for those

9 issues, (see 18cv1832, ECF No. 55), and over the following month, the parties did

10 exactly that.

11

While those negotiations were ongoing, counsel for Defendants emphasized to

12 the Court and opposing counsel Defendants’ interest in an expeditious process for

13 approval of the settlement. (Rep. Tr. at 6-7, Sep. 18, 2018, ECF No. 234.) When

14 asked by the Court whether the asylum procedures agreed to in the settlement could

15 “start right away,” defense counsel responded,

16

our tentative view would be that I think that is appropriate and we could

17

get moving on this. … my hope is with most – you know, as with other

plans we have approved it consistent with our desire to move things

18

expeditiously but orderly, we would want to just get moving. If it is a

19

good plan, we should get moving.

20 (Id. at 9-10.) Defense counsel reiterated his interest in expeditious resolution of these

21 issues at the subsequent status conference. (Rep. Tr. at 5-9, Sep. 21, 2018, ECF No.

22 240.)

23

Thereafter, Plaintiffs in these cases submitted an unopposed motion for

24 preliminary approval of the parties’ settlement agreement. Pursuant to paragraph 1.g.

25 of the parties’ agreement, the government is to provide notice of orientation for

26 credible fear interviews or reviews to class members “no later than 3 days following

27 the parent and/or child’s execution of a document reflecting his or her decision

28

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1 pursuant to paragraph 8” of the agreement.1 (Id. at 35.) Paragraph 1.g. goes on to

2 state, “[s]uch reviews and interviews will be conducted at least 48 hours after the

3 orientation, with due consideration given to any reasonable requests to continue the

4 interview.” (Id.) The Court preliminarily approved the settlement on October 9,

5 2018. (See ECF No. 256.)

6

The following day, Plaintiffs filed the present motion. In the motion, and at

7 oral argument, Plaintiffs’ counsel explained that they had obtained forms executed

8 by at least 60 class members who are currently in detention evidencing their election

9 to proceed with the asylum process provided for in the settlement agreement, and that

10 those forms had been provided to Defendants. Plaintiffs’ counsel anticipated that

11 upon receipt of those forms, Defendants would begin the asylum process for those

12 individuals, but that did not happen. Instead, defense counsel informed Plaintiffs’

13 counsel that Defendants would not begin the asylum process until the settlement was

14 finally approved by the Court. Plaintiffs move the Court to order Defendants to begin

15 the process now for those class members in detention that have elected to take

16 advantage of the asylum procedures set out in the settlement agreement.

17

Notably, neither side cites any case law governing the issue raised here, which

18 is whether a court may enforce a class action settlement prior to final approval.

19 However, the issue may be resolved by reference to the parties’ agreement. As stated

20 above, the agreement provides that the government shall provide notice of the

21 orientation for the credible fear review or interview “no later than 3 days following

22 the parent and/or child’s execution of a document reflecting his or her decision

23 pursuant to paragraph 8” of the agreement, and that the actual review or interview

24 “will be conducted at least 48 hours after the orientation, with due consideration

25 given to any reasonable requests to continue the interview.” (Mot. for Prelim.

26

27

1 Paragraph 8 requires Plaintiffs’ counsel to develop a process for obtaining waivers from class members who wish to waive the asylum procedures provided for in the

28

settlement agreement and instead be removed to their country of origin. (Mot. for Prelim. Approval, Ex. 68 at 37, ECF No. 247.)

- 3 -

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1 Approval, Ex. 68 at 35, ECF No. 247.) Unlike other paragraphs of the agreement,

2 (see id. at 35), the provision of notice and reviews and interviews under this

3 paragraph are not dependent on the Court’s “approval” of the agreement. Rather,

4 they are triggered by the class member’s execution of the election form. Those are

5 the plain terms of the agreement, and they are consistent with defense counsel’s

6 repeated representations to the Court and Plaintiffs’ counsel that Defendants wanted

7 to proceed expeditiously and “get moving on this.”

8

In their opposition to the present motion, Defendants assert it would be

9 “gravely unfair” if they were forced to fully implement the settlement agreement

10 before final approval. (Defs.’ Opp’n to Mot. at 12, ECF No. 280.) They specifically

11 argue that forced, full-scale implementation “would give class members all of the

12 benefits of the agreement with no guarantee that the government would, in turn,

13 receive the central benefits of its bargain.” (Id.) However, Plaintiffs are not asking

14 for full-scale implementation of the agreement right now. Rather, they are asking

15 Defendants to start the agreed-upon asylum process for the 60 or so class members

16 that are currently in detention and have executed an election form. As to these class

17 members, Defendants will receive finality and resolution. Plaintiffs’ counsel

18 confirmed as much at oral argument when he stated,

19

If an individual gets the due process to which they are entitled under this

20

agreement and they are found to not have an asylum case, then … those

individuals could be removed. They wouldn’t get a second bite at the

21

apple to relitigate the issue, they would be bound to the agreement.

22 (Rep. Tr. at 19, Oct. 16, 2018, ECF No. 285.)
23 Defendants also contend forced, full-scale implementation of the settlement
24 agreement would be unfair given the possibility that class members may object to the
25 settlement and final approval may be denied. There is a theoretical possibility that
26
class members may object to the settlement and that final approval may be denied. 27
However, at this point, there is no indication that will occur. Indeed, the only 28

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1 “objection” the Court has seen thus far is actually a request for inclusion in the

2 settlement, not an objection to the merits of the agreement.

3

Finally, and contrary to Defendants’ assertion at oral argument, there is no

4 prejudice to Defendants in providing notice of the credible fear orientations or the

5 actual credible fear reviews and interviews to the 60 or so class members that are

6 currently in detention and have executed election forms. As Plaintiffs pointed out at

7 oral argument, and as the Court indicated in its order granting the TRO in the M.M.M.

8 case, Defendants have a statutory obligation to provide class members access to

9 asylum procedures. Providing that access now as opposed to later does not prejudice

10 Defendants.

11

For these reasons, the Court grants Plaintiffs’ motion to require

12 implementation of the parties’ settlement agreement. Specifically, the Court orders

13 Defendants to begin the asylum process provided for in the agreement to those class

14 members that are in detention and have executed an election form.

15

IT IS SO ORDERED.

16 Dated: October 18, 2018

17

18

19

20

21

22

23

24

25

26

27

28 - 5 -

 
 Case 3:18-cv-01832-DMS-MDD Document 99 Filed 11/15/18 PageID.1735 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

Case 3:18-cv-01832-DMS-MDD Document 99 Filed 11/15/18 PageID.1736 Page 2 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
HOGAN LOVELLS US LLP
ATTORNEYS AT LAW LOS ANGELES

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 -

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

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HOGAN LOVELLS US LLP
ATTORNEYS AT LAW LOS ANGELES

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:

- 3 -

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

Case 3:18-cv-01832-DMS-MDD Document 99 Filed 11/15/18 PageID.1738 Page 4 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
HOGAN LOVELLS US LLP
ATTORNEYS AT LAW LOS ANGELES

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

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HOGAN LOVELLS US LLP
ATTORNEYS AT LAW LOS ANGELES

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

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HOGAN LOVELLS US LLP
ATTORNEYS AT LAW LOS ANGELES

IT IS SO ORDERED. Dated: November 15, 2018

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

 
 Case 3:18-cv-01832-DMS-MDD Document 73 Filed 10/05/18 PageID.967 Page 31 of 63
EXHIBIT 9

Exhibit 9,

Page 31

Case 3:18-cv-01832-DMS-MDD Document 73 Filed 10/05/18 PageID.968 Page 32 of 63

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 preliminaryinjunction 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 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

Exhibit 9,

Page 32

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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 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

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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. 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 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, 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
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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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-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.

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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 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
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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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. 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 asylum-related 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

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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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 members, however, recognize that ICE has no control over the technology or logistics of the Executive Office for Immigration Review.

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