Case 3:18-cv-00428-DMS-MDD Document 32 Filed 03/09/18 PageID.616 Page 1 of 15 1 2 3 4 5 6 7 8 9 10 Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2660 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 398-4485 F: (619) 232-0036 bvakili@aclusandiego.org Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice Additional counsel on next page UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 11 12 Ms. L. and Ms. C., Case No. 18-cv-00428-DMS-MDD Petitioners-Plaintiffs, 13 v. 14 U.S. Immigration and Customs Enforcement (“ICE”); U.S. Department of Homeland Security (“DHS”); U.S. Customs and Border Protection (“CBP”); U.S. Citizenship and Immigration Services (“USCIS”); U.S. Department of Health and Human Services (“HHS”); Office of Refugee Resettlement (“ORR”); Thomas Homan, Acting Director of ICE; Greg Archambeault, San Diego Field Office Director, ICE; Joseph Greene, San Diego Assistant Field Office Director, ICE; Adrian P. Macias, El Paso Field Director, ICE; Frances M. Jackson, El Paso Assistant Field Office Director, ICE; Kirstjen Nielsen, Secretary of DHS; Jefferson Beauregard Sessions III, Attorney General of the United States; L. Francis Cissna, Director of USCIS; Kevin K. McAleenan, Acting Commissioner of CBP; Pete Flores, San Diego Field Director, CBP; Hector A. Mancha Jr., El Paso Field Director, CBP; Alex Azar, Secretary of the Department of Health and Human Services; Scott Lloyd, Director of the Office of Refugee Resettlement, 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Respondents-Defendants. Date Filed: March 9, 2018 AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF WITH CLASS ACTION ALLEGATIONS CLASS ACTION Case 3:18-cv-00428-DMS-MDD Document 32 Filed 03/09/18 PageID.617 Page 2 of 15 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 Spencer E. Amdur (SBN 320069) AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 samdur@aclu.org Case 3:18-cv-00428-DMS-MDD Document 32 Filed 03/09/18 PageID.618 Page 3 of 15 1 2 INTRODUCTION 1. This case challenges the United States government’s forcible 3 separation of parents from their young children for no legitimate reason and 4 notwithstanding the threat of irreparable psychological damage that separation has 5 been universally recognized to cause young children. 6 2. Plaintiff Ms. L. is the mother of a seven (7) year-old daughter, who 7 was ripped away from her, and then sent halfway across the country to be detained 8 alone. Plaintiff Ms. C. is the mother of a fourteen (14) year-old son, who was also 9 forcibly separated from his mother and detained more than a thousand miles away. 10 3. Ms. L. and Ms. C. bring this action to have the government reunite 11 them with their young children, from whom they have been separated now for more 12 than four and five months respectively. 13 4. They also bring this action on behalf of the hundreds of other parents 14 whom the government has forcibly separated from their children and continues to 15 separate. Like Ms. L. and Ms. C., almost all of these individuals have fled 16 persecution and are seeking asylum in the United States. Without any assertions of 17 abuse, neglect, or parental unfitness, and with no hearings of any kind, the 18 government is detaining these young children, alone and frightened, in facilities 19 often thousands of miles from their parents. 20 5. Forced separation from parents causes severe trauma to young 21 children, especially those who are already traumatized and are fleeing persecution 22 in their home countries. The resulting cognitive and emotional damage can be 23 permanent. 24 6. Defendants have ample ways to keep Plaintiffs together with their 25 children. There are shelters that house families (including asylum-seekers) while 26 they await the final adjudication of their immigration cases. If, however, the 27 government feels compelled to continue detaining these parents and young children, 28 1 Case 3:18-cv-00428-DMS-MDD Document 32 Filed 03/09/18 PageID.619 Page 4 of 15 1 it must at a minimum detain them together in one of its immigration family 2 detention centers. 3 7. The Due Process Clause of the Fifth Amendment does not permit the 4 government to forcibly take young children from their parents, without justification 5 or even a hearing. That separation also violates the asylum statutes, which 6 guarantee a meaningful right to apply for asylum, and the Administrative Procedure 7 Act (APA), which prohibits arbitrary government action. 8 JURISDICTION 9 8. This case arises under the Fifth Amendment to the United States 10 Constitution, federal asylum statutes, and the APA. The court has jurisdiction 11 under 28 U.S.C. § 1331 (federal question jurisdiction); 28 U.S.C. § 2241 (habeas 12 jurisdiction); and Art. I., § 9, cl. 2 of the United States Constitution (“Suspension 13 Clause”). Plaintiffs are in custody for purposes of habeas jurisdiction. 14 VENUE 15 9. Venue is proper under 28 U.S.C. § 1391 because Ms. L. was detained 16 within this District when this action commenced and a substantial portion of the 17 relevant facts occurred within this District, including the separation of Ms. L. and 18 her daughter. 19 PARTIES 20 21 10. (the “Congo” or “DRC”). She is the mother of 7 year-old S.S. 22 23 24 Plaintiff Ms. L. is a citizen of the Democratic Republic of the Congo 11. Plaintiff Ms. C. is a citizen of Brazil. She is the mother of 14 year-old 12. Defendant U.S. Immigration and Customs Enforcement (“ICE”) is the J. 25 sub-agency of DHS that is responsible for carrying out removal orders and 26 overseeing immigration detention. 27 28 13. Defendants U.S. Department of Homeland Security (“DHS”) has responsibility for enforcing the immigration laws of the United States. 2 Case 3:18-cv-00428-DMS-MDD Document 32 Filed 03/09/18 PageID.620 Page 5 of 15 1 14. Defendant U.S. Customs and Border Protection (“CBP”) is the sub- 2 agency of DHS that is responsible for the initial processing and detention of 3 noncitizens who are apprehended near the U.S. border. 4 15. Defendant U.S. Citizenship and Immigration Services (“USCIS”) is 5 the sub-agency of DHS that, through its Asylum Officers, conducts interviews of 6 certain individuals apprehended at the border to determine whether they have a 7 credible fear of persecution and should be permitted to apply for asylum. 8 9 10 11 16. Defendant U.S. Department of Health and Human Services (HHS) is a department of the executive branch of the U.S. government which has been delegated with authority over “unaccompanied” noncitizen children. 17. Defendant Office of Refugee Resettlement (“ORR”) is the component 12 of HHS which provides care of and placement for “unaccompanied” noncitizen 13 children. 14 18. 15 16 17 18 Defendant Thomas Homan is sued in his official capacity as the Director of ICE, and is a legal custodian of Plaintiffs. 19. Defendant Greg Archambeault is sued in his official capacity as the ICE San Diego Field Office Director, and is a legal custodian of Plaintiff L. 20. Defendant Joseph Greene is sued in his official capacity as the ICE 19 San Diego Assistant Field Office Director for the Otay Mesa Detention Center, and 20 is a legal custodian of Plaintiff L. 21 22 23 21. Defendant Adrian P. Macias is sued in his official capacity as the ICE El Paso Field Office Director, and is a legal custodian of Plaintiff C. 22. Defendant Frances M. Jackson is sued in his official capacity as the 24 ICE El Paso Assistant Field Office Director for the West Texas Detention Facility, 25 and is a legal custodian of Plaintiff C. 26 23. Defendant Kirstjen Nielsen, is sued in her official capacity as the 27 Secretary of the Department of Homeland Security. In this capacity, she directs 28 each of the component agencies within DHS: ICE, USCIS, and CBP. As a result, 3 Case 3:18-cv-00428-DMS-MDD Document 32 Filed 03/09/18 PageID.621 Page 6 of 15 1 Respondent Nielsen has responsibility for the administration of the immigration 2 laws pursuant to 8 U.S.C. § 1103, is empowered to grant asylum or other relief, and 3 is a legal custodian of the Plaintiffs. 4 24. Defendant Jefferson Beauregard Sessions III is sued in his official 5 capacity as the Attorney General of the United States. In this capacity, he has 6 responsibility for the administration of the immigration laws pursuant to 8 U.S.C. § 7 1103, oversees the Executive Office of Immigration Review, is empowered to grant 8 asylum or other relief, and is a legal custodian of the Plaintiffs. 9 10 11 12 13 14 15 16 17 18 19 20 25. Defendant L. Francis Cissna is sued in his official capacity as the Director of USCIS. 26. Defendant Kevin K. McAleenan is sued in his official capacity as the Acting Commissioner of CBP. 27. Defendant Pete Flores is sued in his official capacity as the San Diego Field Director of CBP. 28. Defendant Hector A. Mancha Jr. is sued in his official capacity as the El Paso Field Director of CBP. 29. Defendant Alex Azar is sued in his official capacity as the Secretary of the Department of Health and Human Services. 30. Defendant Scott Lloyd is sued in his official capacity as the Director of the Office of Refugee Resettlement. 21 22 23 24 FACTS 31. Over the past year, the government has separated hundreds of migrant families for no legitimate purpose. 32. Almost all of these migrant families fled persecution and are seeking 25 asylum. Although there are no allegations that the parents are unfit or abusing their 26 children in any way, the government has forcibly separated them from their young 27 children and detained the children, often far away, in facilities for “unaccompanied” 28 minors. 4 Case 3:18-cv-00428-DMS-MDD Document 32 Filed 03/09/18 PageID.622 Page 7 of 15 1 33. There is overwhelming medical evidence that the separation of a 2 young child from his or her parent will have a devastating negative impact on the 3 child’s well-being, especially where there are other traumatic factors at work, and 4 that this damage can be permanent. 5 34. The American Association of Pediatrics has recently denounced the 6 Administration’s practice of separating migrant children from their parents, noting 7 that: “The psychological distress, anxiety, and depression associated with 8 separation from a parent would follow the children well after the immediate period 9 of separation—even after the eventual reunification with a parent or other family.” 10 11 12 33. Prior Administrations detained migrant families, but did not have a practice of forcibly separating fit parents from their young children. 34. According to reports, the government may soon adopt a formal 13 national policy of separating migrant families, and placing the children in 14 government facilities for unaccompanied minors. 15 35. There are non-governmental shelters that specialize in housing and 16 caring for families—including asylum seeking families—while their immigration 17 applications are adjudicated. 18 36. There are also government-operated family detention centers where 19 parents can be housed together with their children, should the government decide 20 not to release them. 21 22 37. Ms. L. and her daughter S.S. are one of the many families that have recently been separated by the government. 23 38. Ms. L. and her daughter are seeking asylum in the United States. 24 39. Ms. L. is Catholic and sought shelter in a church until she was able to 25 26 27 escape the Congo with S.S. 40. Upon reaching the United States, Ms. L. and S.S. presented themselves at the San Ysidro, California Port of Entry on November 1, 2017. Although their 28 5 Case 3:18-cv-00428-DMS-MDD Document 32 Filed 03/09/18 PageID.623 Page 8 of 15 1 native language is Lingala, they were able to communicate to the border guards that 2 they sought asylum. 3 41. Based on her expression of a fear of returning to the Congo, Ms. L. 4 was referred for an initial screening before an asylum officer, called a “credible fear 5 interview.” She subsequently passed the credible fear screening but, until March 6, 6 2018, remained detained in the Otay Mesa Detention Center in the San Diego area. 7 42. On or about November 5, immigration officials forcibly separated 7- 8 year-old S.S. from her mother and sent S.S. to Chicago. There she was housed in a 9 detention facility for “unaccompanied” minors run by the Office of Refugee 10 11 Resettlement (ORR). 43. When S.S. was taken away from her mother, she was screaming and 12 crying, pleading with guards not to take her away from her mother. That was the 13 last time Ms. L. saw her daughter. During the few times Ms. L. was able to speak 14 to her daughter on the phone, her daughter was crying and scared. Although her 15 daughter was terrified for herself, she was also frightened for her mother, always 16 asking how her mother was doing in “prison.” 17 18 19 44. Ms. L. and her daughter have been separated now for more than four months. Seven-year-old S.S. is alone in a facility in Chicago. 45. While detained, Ms. L. spoke to her daughter approximately 6 times 20 by phone, never by video. For months she has been terrified that she would never 21 see her daughter again. 22 46. S.S. is scared and misses her mother, and wants to be reunited with her 23 as soon as possible. In December, S.S. turned 7 and spent her birthday in the 24 Chicago facility, without her mother. 25 47. Every day that S.S. is separated from her mother causes her greater 26 emotional and psychological harm and could potentially lead to permanent 27 emotional trauma. 28 6 Case 3:18-cv-00428-DMS-MDD Document 32 Filed 03/09/18 PageID.624 Page 9 of 15 1 48. Ms. L. is distraught and depressed because of the separation from her 2 daughter. In detention, she did not eat properly, lost weight, and was not sleeping 3 due to worry and nightmares. 4 49. In one moment of extreme despair and confusion, Ms. L. told an 5 immigration judge that she wanted to withdraw her application for asylum, 6 realizing her mistake only a few days later. Her application to reopen her asylum 7 case is pending before the immigration judge. 8 9 10 11 12 13 14 50. The government has no legitimate interest in separating Ms. L. and her 51. There has been no evidence, or even accusation, that S.S. was abused child. or neglected by Ms. L. 52. There is no evidence that Ms. L. is an unfit parent or that she is not acting in the best interests of her child. 53. After Ms. L. filed this lawsuit and moved for a preliminary injunction, 15 Defendants abruptly released her from custody on March 6, 2018. Defendants 16 informed her that she would be released mere hours in advance, with no 17 arrangements for where she would stay. They have not reunited her with her 18 daughter, who remains detained at an ORR facility halfway across the country. 19 54. Ms. C. and her 14 year-old son, J., are another one of the families who 20 have been separated by the government. Like Ms. L. and her daughter, Ms. C. and 21 her son are seeking asylum in the United States. 22 55. Ms. C. and J. fled Brazil and came to the United States to seek asylum. 23 A few feet after Ms. C. entered the United States, a border guard approached her, 24 and she explained that she was seeking asylum. Ms. C. subsequently passed a 25 credible fear interview, and was put in removal proceedings, where she is applying 26 for asylum. 27 28 7 Case 3:18-cv-00428-DMS-MDD Document 32 Filed 03/09/18 PageID.625 Page 10 of 15 1 56. Despite having communicated her fear of persecution to border guards, 2 the government prosecuted Ms. C. for entering the country illegally, took her son J. 3 away from her, and sent him to a facility for “unaccompanied” children in Chicago. 4 57. The government continued to separate Ms. C. from her son even after 5 she completed serving her 25-day criminal misdemeanor sentence on September 22, 6 2017, and was sent to an immigration detention facility, the El Paso Processing 7 Center. In early January 2018, she was transferred again, to another immigration 8 facility, the West Texas Detention Facility (also known as Sierra Blanca), but still 9 not reunited with her son. 10 58. Ms. C. has not seen her son since he was taken from her in the more 11 than 5 months since she was placed into an immigration detention facility. She is 12 desperate to be reunited with him. She worries about him constantly and does not 13 know when she will be able to see him. They have only spoken on the phone a 14 handful of times since they were forcibly separated by Defendants. 15 59. 16 from his mother. 17 60. J. has been having a difficult time emotionally since being separated Every day that J. is separated from his mother causes him greater 18 emotional and psychological harm and could potentially lead to permanent 19 emotional trauma. 20 21 22 23 24 25 61. The government has no legitimate interest in separating Ms. C. and her 62. There has been no evidence, or even accusation, that J. was abused or child. neglected by Ms. C. 63. There is no evidence that Ms. C. is an unfit parent or that she is not acting in the best interests of her child. 26 27 28 8 Case 3:18-cv-00428-DMS-MDD Document 32 Filed 03/09/18 PageID.626 Page 11 of 15 1 2 CLASS ALLEGATIONS 64. Plaintiffs bring this action under Federal Rule of Civil Procedure 3 23(b)(2) on behalf of themselves and a nationwide class of all other persons 4 similarly situated. 5 65. 6 All adult parents nationwide who (1) are or will be detained in immigration custody by the Department of Homeland Security, and (2) have a minor child who is or will be separated from them by DHS and detained in ORR custody, absent a demonstration in a hearing that the parent is unfit or presents a danger to the child. 7 8 9 Plaintiffs seek to represent the following nationwide class: 10 66. 11 proposed class. 12 67. 13 14 15 16 Plaintiffs Ms. L. and Ms. C. are each adequate representatives of the The proposed class satisfies the requirements of Rule 23(a)(1) because the class is so numerous that joinder of all members is impracticable. 68. There are hundreds of parents that fit within the class and many more that will become separated from their young children. 69. The class meets the commonality requirements of Federal Rule of 17 Civil Procedure 23(a)(2). The members of the class are subject to a common 18 practice: forcibly separating detained parents from their minor children. By 19 definition, all class members have experienced that practice, and none has been 20 given an adequate hearing regarding the separation. The lawsuit raises numerous 21 questions of law common to members of the proposed class, including: whether 22 Defendants’ family separation practice violates class members’ substantive due 23 process right to family integrity; whether the practice violates class members’ 24 procedural due process rights; whether the practice violates the federal asylum 25 statute; and whether these separations are arbitrary and capricious under the APA. 26 70. The proposed class meets the typicality requirements of Federal Rule 27 of Civil Procedure 23(a)(3), because the claims of the representative Plaintiffs are 28 typical of the claims of the class. Ms. L., Ms. C., and the proposed class members 9 Case 3:18-cv-00428-DMS-MDD Document 32 Filed 03/09/18 PageID.627 Page 12 of 15 1 are all individuals who have had or will have their children forcibly taken away 2 from them despite there being no proven allegations of abuse, neglect, or any other 3 danger or unfitness. Plaintiffs and the proposed class also share the same legal 4 claims, which assert the same substantive and procedural rights under the Due 5 Process Clause, the asylum statute, and the APA. 6 71. The proposed class meets the adequacy requirements of Federal Rule 7 of Civil Procedure 23(a)(4). The representative Plaintiffs seek the same relief as 8 the other members of the class—namely, an order that they be reunified with their 9 children, whether through release or in family detention facilities. In defending 10 their own rights, Ms. L. and Ms. C. will defend the rights of all proposed class 11 members fairly and adequately. 12 72. The proposed class is represented by counsel from the American Civil 13 Liberties Union Immigrants’ Rights Project and the American Civil Liberties Union 14 of San Diego and Imperial Counties. Counsel have extensive experience litigating 15 class action lawsuits and other complex cases in federal court, including civil rights 16 lawsuits on behalf of noncitizens. 17 18 19 73. The members of the class are readily ascertainable through Defendants’ records. 74. The proposed class also satisfies Federal Rule of Civil Procedure 20 23(b)(2). Defendants have acted on grounds generally applicable to the class by 21 unlawfully separating parents from their young children. Injunctive and declaratory 22 relief is thus appropriate with respect to the class as a whole. 23 24 25 26 27 28 10 Case 3:18-cv-00428-DMS-MDD Document 32 Filed 03/09/18 PageID.628 Page 13 of 15 1 CAUSES OF ACTION 2 COUNT I 3 (Violation of Due Process) 4 5 6 75. All of the foregoing allegations are repeated and realleged as though fully set forth herein. 76. The Due Process Clause of the Fifth Amendment applies to all 7 “persons” on United States soil and thus applies to Ms. L. and her daughter, Ms. C. 8 and her son, and all proposed class members. 9 10 11 77. Ms. L., Ms. C., their children, and all class members have a liberty interest under the Due Process Clause in remaining together as a family. 78. The separation of the class members from their children violates 12 substantive due process because it furthers no legitimate purpose, not to mention a 13 compelling governmental interest. 14 15 79. The separation of the class members from their children also violates procedural due process because it was undertaken without any hearing. 16 COUNT II 17 (Administrative Procedure Act—Arbitrary and Capricious Practice) 18 19 80. All of the foregoing allegations are repeated and re-alleged as though fully set forth herein. 20 81. The APA prohibits agency action that is arbitrary and capricious. 21 82. Defendants’ separation of Ms. L., Ms. C., and the other class members 22 from their children without a legitimate justification is arbitrary and capricious and 23 accordingly violates the APA. 5 U.S.C. § 706. 24 COUNT III 25 (Violation of Asylum Statute) 26 27 83. All of the foregoing allegations are repeated and re-alleged as though fully set forth herein. 28 11 Case 3:18-cv-00428-DMS-MDD Document 32 Filed 03/09/18 PageID.629 Page 14 of 15 1 84. Under United States law, noncitizens with a well-founded fear of 2 persecution shall have the opportunity to obtain asylum in the United States. 8 3 U.S.C. § 1158. 4 85. Defendants’ separation of Ms. L., Ms. C., and the other asylum- 5 seeking class members from their children violates federal asylum law, because it 6 impedes their ability to pursue their asylum claims. 7 8 9 PRAYER FOR RELIEF Petitioners-Plaintiffs request that the Court enter a judgment against Respondents-Defendants and award the following relief: 10 A. Certify a class of all adult parents nationwide who (1) are or will be 11 detained in immigration custody by the Department of Homeland 12 Security, and (2) have a minor child who is or will be separated from 13 them by DHS and detained in ORR custody, absent a demonstration in a 14 hearing that the parent is unfit or presents a danger to the child. 15 16 17 18 19 20 21 22 23 B. Name Ms. L. and Ms. C. as representatives of the class, and appoint Petitioners’ counsel as class counsel; C. Declare the separation of Ms. L., Ms. C., and the other class members from their children unlawful; D. Preliminarily and permanently enjoin Defendants from continuing to separate Ms. L., Ms. C., and the other class members from their children; E. Order defendants either to release class members along with their children, or to detain them together in the same facility; F. Enjoin defendants from removing Ms. L., Ms. C., and the other class 24 members from the country until they are reunited with their children, in 25 the event that they are not permitted to remain in the United States; 26 G. Require Defendants to pay reasonable attorneys’ fees and costs; 27 H. Order all other relief that is just and proper. 28 12 Case 3:18-cv-00428-DMS-MDD Document 32 Filed 03/09/18 PageID.630 Page 15 of 15 1 2 3 4 5 6 7 8 9 10 11 Dated: March 9, 2018 Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 398-4485 F: (619) 232-0036 bvakili@aclusandiego.org Spencer E. Amdur (SBN 320069) AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 samdur@aclu.org Respectfully Submitted, /s/Lee Gelernt Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2616 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13