Case 3:18-cv-00428-DMS-MDD Document 57 Filed 04/20/18 PageID.1036 Page 1 of 28 1 CHAD A. READLER Acting Assistant Attorney General 2 WILLIAM C. PEACHEY 3 Director WILLIAM C. SILVIS 4 Assistant Director 5 SARAH B. FABIAN Senior Litigation Counsel 6 NICOLE MURLEY 7 Trial Attorney U.S. Department of Justice 8 Office of Immigration Litigation 9 District Court Section Box 868, Ben Franklin Station 10 Washington, DC 20442 11 Telephone: (202) 532-4824 Fax: (202) 616-8962 12 ADAM L. BRAVERMAN United States Attorney SAMUEL W. BETTWY Assistant U.S. Attorney California Bar No. 94918 Office of the U.S. Attorney 880 Front Street, Room 6293 San Diego, CA 92101-8893 619-546-7125 619-546-7751 (fax) Attorneys for Federal RespondentsDefendants 13 14 UNITED STATES DISTRICT COURT 15 SOUTHERN DISTRICT OF CALIFORNIA 16 17 MS. L., et al. 18 Case No. 18-cv-428 DMS MDD Petitioners-Plaintiffs, 19 20 vs. 21 U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., 22 23 24 25 26 27 28 HEARING DATE: May 4, 2018 Hon. Dana M. Sabraw Respondents-Defendants. RESPONDENTS-DEFENDANTS’ OPPOSITION TO PETITIONERSPLAINTIFFS’ MOTION FOR CLASSWIDE PRELIMINARY INJUNCTION Case 3:18-cv-00428-DMS-MDD Document 57 Filed 04/20/18 PageID.1037 Page 2 of 28 TABLE OF CONTENTS 1 2 I. INTRODUCTION .................................................................................................................................. 1 3 II. APPLICABLE FRAMEWORK ............................................................................................................. 2 4 A. Criminal Prosecution ........................................................................................................................ 2 5 B. Reinstatement of Removal ................................................................................................................ 3 6 7 C. Expedited Removal ........................................................................................................................... 4 8 D. Custody of Unaccompanied Alien Children by The U.S. Department of Health and Human Services ............................................................................................................................................. 5 9 10 III. STATEMENT OF FACTS RELATED TO THE NAMED PLAITNIFFS ............................................ 7 11 A. Ms. L ............................................................................................................................................... 7 12 B. Ms. C. .............................................................................................................................................. 9 13 IV. ARGUMENT ........................................................................................................................................ 10 14 A. Standard for preliminary Injunction .............................................................................................. 10 15 B. Plaintiffs Cannot Show a Likelihood of Success on the Merits .................................................... 11 16 17 18 1. This Court Lacks Jurisdiction and Venue Over Plaintiffs’’ Claims, And Plaintiffs’ Amended Complaint Fails to State a Claim as a Matter of Law. ........................................................... 12 19 2. Plaintiffs Cannot Establish That the Government’s Actions Are Unlawful. ......................... 14 20 C. Plaintiffs Cannot Show a Likelihood of Irreparable Harm ........................................................... 18 21 D. The Government’s Interests Would be Harmed, and the Public Interest Would Not Be Served by 22 23V. 24 25 26 27 28 the Grant of Injunctive Relief ........................................................................................................ 19 CONCLUSION ..................................................................................................................................... 20 Case 3:18-cv-00428-DMS-MDD Document 57 Filed 04/20/18 PageID.1038 Page 3 of 28 TABLE OF AUTHORITIES 1 2 Abdala v. INS, 3 488 F.3d 1061 (9th Cir. 2007) .................................................................................................................... 12 Alliance for the Wild Rockies v. Cottrell, 4 632 F.3d 1127 (9th Cir. 2011) .................................................................................................................... 11 5 Anderson v. United States, 6 612 F.3d 1112 (9th Cir. 1979) .................................................................................................................... 11 7 Ass'n des Eleveurs de Canards et d'Oies du Quebec v. Harris, 729 F.3d 937 (9th Cir. 2013) ...................................................................................................................... 12 8 Blackie’s House of Beef, Inc. v. Castillo, 9 659 F.2d 1211 (D.C. Cir. 1981) .................................................................................................................. 19 10 Dahl v. HEM Pharms. Corp., 11 7 F.3d 1399 (9th Cir. 1993) ........................................................................................................................ 11 12 Flores v. Johnson, 212 F. Supp. 3d 864 (C.D. Cal. 2015) ........................................................................................................ 17 13 Flores v. Lynch, 14 212 F. Supp. 3d 907 (C.D. Cal. 2015) ........................................................................................................ 17 15 Flores v. Lynch, 828 F.3d 898 (9th Cir. 2016) ...................................................................................................................... 17 16 17 Flores v. Lynch, 2017 WL 6049373 (C.D. Cal., Jan. 20, 2017) ............................................................................................ 17 18 Flores v. Reno, 19 Case CV-85-4544-RJK(px)(C.D. Cal.)......................................................................................................... 6 20 Friendly House v. Whiting, 21 846 F. Supp. 2d 1053 (D. Ariz. 2012) ........................................................................................................ 10 22 Garcia v. Google, Inc., 786 F.3d 733 (9th Cir. 2015) ...................................................................................................................... 11 23 Jennings v. Rodriguez, 24 138 S. Ct. 830 (2018) ............................................................................................................................ 13, 14 25 Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 26 571 F.3d 873 (9th Cir. 2009) ...................................................................................................................... 11 27 Maryland v. King, 567 U.S. 1301 (2012) .................................................................................................................................. 19 28 ii Case 3:18-cv-00428-DMS-MDD Document 57 Filed 04/20/18 PageID.1039 Page 4 of 28 1 Matter of X-K-, 23 I. & N. Dec. 731 (2005) ........................................................................................................................... 5 2 Mazurek v. Armstrong, 3 529 U.S. 968 (1997) .................................................................................................................................... 10 4 Park Village Apartment Tenants Association v. Foster, 5 636 F.3d 1150 (9th Cir. 2011) .................................................................................................................... 18 6 Pimentel v. Dreyfus, 670 F.3d 1096 (9th Cir. 2012) .................................................................................................................... 11 7 Planned Parenthood Arizona, Inc. v. Humble, 8 13 F. Supp. 3d 1017 (D. Ariz. 2014) .......................................................................................................... 10 9 Spencer v. Kemna, 10 523 U.S. 1 (1998) ........................................................................................................................................ 12 11 U.S. v. Batchelder, 442 U.S. 114 (1979) ...................................................................................................................................... 3 12 United States v. Brignoni-Ponce, 13 422 U.S. 873 (1975) .................................................................................................................................... 19 14 United States v. Martinez-Fuerte, 15 428 U.S. 543 (1976) .................................................................................................................................... 19 Winter v. Natural Res. Def. Council, 16 555 U.S. 7 (2008) ........................................................................................................................................ 10 17 STATUTES 18 6 U.S.C. § 279(g)(2) ........................................................................................................................ 5, passim 19 20 21 22 8 U.S.C. § 1182(a)(7) .................................................................................................................................. 17 8 U.S.C. § 1182(d)(5)(A) .............................................................................................................................. 4 8 U.S.C. § 1225(b) .............................................................................................................................. 4, 7, 15 23 8 U.S.C. § 1225(b)(1)(A)(i) ........................................................................................................................ 17 24 8 U.S.C. § 1225(b)(1)(B) .............................................................................................................................. 5 25 8 U.S.C. § 1225(b)(1)(B)(iii) ........................................................................................................................ 5 26 8 U.S.C. § 1225(b)(1)(B)(iii)(III) ................................................................................................................. 5 27 8 U.S.C. § 1225(b)(1)(B)(iii)(IV) ........................................................................................................... 4, 17 28 8 U.S.C. § 1225(b)(1)(C) .............................................................................................................................. 5 iii Case 3:18-cv-00428-DMS-MDD Document 57 Filed 04/20/18 PageID.1040 Page 5 of 28 1 8 U.S.C. § 1226(a) ........................................................................................................................................ 4 2 8 U.S.C. § 1229a ..................................................................................................................................... 5, 10 3 8 U.S.C. § 1231(a) .................................................................................................................................. 3, 18 4 8 U.S.C. § 1231(a)(5) .............................................................................................................................. 3, 18 5 8 U.S.C. § 1232(b)(1) ................................................................................................................................... 5 6 8 U.S.C. § 1232(b)(3) ...................................................................................................................... 5, passim 7 8 9 8 U.S.C. § 1232(c)(2)(A) .............................................................................................................................. 6 8 U.S.C. § 1232(c)(3) ................................................................................................................................ 8, 9 8 U.S.C. § 1232(c)(3)(A) .................................................................................................................... 7, 9, 16 10 11 12 13 8 U.S.C. § 1252(a)(2)(A)(iii) ........................................................................................................................ 5 8 U.S.C. § 1252(f)(1) ............................................................................................................................ 13, 14 8 U.S.C. § 1324 ......................................................................................................................................... 2, 3 14 8 U.S.C. § 1325 ..................................................................................................................................... 2, 3, 9 15 8 U.S.C. § 1326 ......................................................................................................................................... 2, 3 16 Pub. L. No. 110-457 ...................................................................................................................................... 5 17 REGULATIONS 18 8 C.F.R. § 208.30 .......................................................................................................................................... 5 19 8 C.F.R. § 208.30(f) ...................................................................................................................................... 5 20 8 C.F.R. § 208.30(g) ..................................................................................................................................... 5 21 8 C.F.R. § 208.31 .......................................................................................................................................... 3 22 8 C.F.R. § 235.3(b)(2)(iii).................................................................................................................. 4, 5, 18 23 8 C.F.R. § 235.3(b)(4) ................................................................................................................................... 5 24 25 26 27 8 C.F.R. § 235.3(b)(4)(ii) .................................................................................................................... 4, 5, 18 8 C.F.R. § 236.1(c)(8) ................................................................................................................................... 5 8 C.F.R. § 1003.42 ........................................................................................................................................ 5 28 8 C.F.R. § 1003.42(f) .................................................................................................................................... 5 iv Case 3:18-cv-00428-DMS-MDD Document 57 Filed 04/20/18 PageID.1041 Page 6 of 28 1 8 C.F.R. § 1208.30 ........................................................................................................................................ 5 2 8 C.F.R. § 1236.1 .......................................................................................................................................... 5 3 8 C.F.R. § 1241.1(b) ..................................................................................................................................... 8 4 69 Fed. Reg. 48 ............................................................................................................................................. 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 v Case 3:18-cv-00428-DMS-MDD Document 57 Filed 04/20/18 PageID.1042 Page 7 of 28 1 I 2 INTRODUCTION 3 Plaintiffs have filed a motion for a class-wide preliminary injunction asking this 4 Court to “order Defendants to reunite Plaintiffs and other class members with their children, 5 and to discontinue their family separation practice.” Motion, ECF No. 48-1, at 26. Plaintiffs 6 incorrectly contend that a preliminary injunction should issue in this case because, they 7 argue, the component agencies of the U.S. Department of Homeland Security (“DHS”), 8 U.S. Customs and Border Protection (“CBP”) and U.S. Immigration and Customs 9 Enforcement (“ICE”), have no legitimate basis to separate claimed parents and children. 10 However, Plaintiffs’ motion entirely ignores the complex immigration and criminal 11 enforcement framework in which the decision to separate a purported family unit might 12 occur, and thus ignores the various legitimate government interests that form the bases for 13 these decisions. 14 Plaintiffs are asking the Court to enjoin the legitimate operations of DHS in a manner 15 that would inhibit the agency’s immigration and law enforcement missions. In fact, several 16 important considerations play a role in DHS’s decisions that may result in the possible 17 separation of a purported family unit in the custody of ICE or CBP. These considerations 18 include concerns about the safety of the individual child, efforts to interrupt smuggling 19 operations on a broader scale, law enforcement interests in identifying and prosecuting 20 criminals and detecting immigration fraud, and an interest in effectively using the 21 immigration enforcement tools provided to the agency by Congress in the Immigration and 22 Nationality Act (“INA”). A preliminary injunction that makes it difficult, or even 23 impossible, for DHS to take certain actions simply because those actions could result in the 24 separation of a purported family unit would impact all of these interests, while imposing 25 requirements on DHS that have no basis in the law. 26 Thus, the Court should decline to enter the preliminary injunction requested by 27 Plaintiffs in this case. Notably, Plaintiffs’ motion does not rely on cases that address the 28 separation of a parent and child occurring as a result of immigration or law enforcement 1 Case 3:18-cv-00428-DMS-MDD Document 57 Filed 04/20/18 PageID.1043 Page 8 of 28 1 actions; nor can it because, as explained in the Government’s motion to dismiss, such cases 2 establish that separation occurring in these contexts does not violate the U.S. Constitution. 3 Instead, in asking this Court to enjoin DHS component agencies from separating any 4 purported family units Plaintiffs rely entirely on case law regarding the procedures required 5 for family separation that originates in a very different context, unrelated to detention. 6 Plaintiffs have provided no basis on which to find that they are likely to succeed in 7 this case, both because their claims lack legal merit for the reasons discussed below and in 8 the Government’s motion to dismiss, and because their claims fail on the merits in light of 9 the fact that the Government does in fact have several interests that underlie the immigration 10 and law enforcement actions taken by DHS that are at issue in this case. Moreover, the 11 balance of the interests weighs heavily in favor of the Government because there is a strong 12 public interest in the enforcement of immigration laws, and because the separation of family 13 units occurs in accordance with the Trafficking Victims Protection and Reauthorization Act 14 of 2008 (“TVPRA”) which was enacted to provide protections to minors for whom no 15 parent or guardian is available to provide care and custody. These protections ensure that 16 when a minor is separated from his or her parent, it is done in a manner that considers the 17 interests and safety of the child, and that child is transferred to a facility that is designed and 18 licensed for his or her care. For all of these reasons, Plaintiffs’ preliminary injunction 19 motion should be denied. 20 II 21 APPLICABLE FRAMEWORK 22 23 C. Criminal Prosecution Individuals in DHS custody also may be subject to criminal prosecution, either for 24 criminal immigration violations or for other criminal violations. Notably, many of the 25 immigration statutes that DHS enforces have criminal provisions, including but not limited 26 to 8 U.S.C. §§ 1324, 1325, and 1326, giving DHS discretion to refer people to the U.S. 27 Department of Justice (“DOJ”) for prosecution based on the particularized facts and 28 circumstances of an individual case. Furthermore, pursuant to an April 11, 2017 2 Case 3:18-cv-00428-DMS-MDD Document 57 Filed 04/20/18 PageID.1044 Page 9 of 28 1 memorandum from the Office of the Attorney General, all qualifying individuals 2 apprehended by CBP are referred to DOJ to consider prosecution under 8 U.S.C. §§ 1324, 3 1325, 1326, or for other criminal violations. Whether a person is prosecuted for these crimes 4 after a referral by CBP is a decision made by DOJ, and is subject to that agency’s 5 prosecutorial discretion. See U.S. v. Batchelder, 442 U.S. 114, 124 (1979) (“Whether to 6 prosecute and what charge to file or bring before a grand jury are decisions that generally 7 rest in the prosecutor's discretion.”). 8 9 B. Reinstatement of Removal One category of adults who may be apprehended as part of a purported family unit is 10 individuals who have previously been removed from the United States, but who illegally 11 reenter. DHS may “reinstate” a prior order of removal where it finds an individual “has 12 reentered the United States illegally after having been removed or having departed voluntarily, 13 under an order of removal.” 8 U.S.C. § 1231(a)(5). If an individual expresses fear of returning 14 to the country of removal, she is referred to U.S. Citizenship and Immigration Services 15 (“USCIS”) for an interview by an asylum officer to determine whether she possesses a 16 “reasonable fear” of persecution or torture, a process similar to, but distinct from, the credible 17 fear analysis for expedited removal. See 8 C.F.R. § 208.31. If the asylum officer determines 18 that the individual has not established a reasonable fear of persecution or torture, she may 19 request review of that determination by an immigration judge. See id. §§ 208.31(f); 1208.31(f). 20 If the immigration judge also finds that no reasonable fear of persecution or torture exists, the 21 case is returned to DHS for execution of the reinstated order of removal, and no administrative 22 appeal is available. See id. §§ 208.31(g)(1); 1208.31(g)(1). 23 If the asylum officer determines that the individual has established a reasonable fear of 24 persecution or torture, the individual is referred to the immigration judge for consideration of 25 withholding or deferral of removal only (aliens with reinstated orders of removal are not 26 eligible for asylum). See id. §§ 208.31(e); 1208.31(e). Because an individual’s removal order 27 remains administratively final throughout such “withholding-only” proceedings, 8 U.S.C. 28 § 1231(a) continues to provide the statutory authority for her detention. 3 Case 3:18-cv-00428-DMS-MDD Document 57 Filed 04/20/18 PageID.1045 Page 10 of 28 1 2 C. Expedited Removal Adult aliens who are seeking to enter the United States without any documentation 3 allowing for their admission, including as part of a purported family unit, may be subject to 4 a process commonly referred to as “expedited removal,” which provides an accelerated 5 removal process for certain aliens. See 8 U.S.C. § 1225(b); 69 Fed. Reg. 48,877 (Aug. 11, 6 2004). Congress has explicitly mandated the detention of individuals who are in the 7 expedited removal process and whose claim of credible fear of persecution is still being 8 considered, or who have been found not to have a credible fear of persecution. See 8 U.S.C. 9 § 1225(b)(1)(B)(iii)(IV) (“Any alien subject to the procedures under this clause shall be 10 detained pending a final determination of credible fear of persecution and, if found not to 11 have such a fear, until removed.”). 12 Individuals subject to such mandatory detention under expedited removal are eligible 13 for release from immigration detention only if they are granted parole under certain limited 14 criteria. See 8 C.F.R. §§ 235.3(b)(2)(iii); 235.3(b)(4)(ii) (parole of aliens mandatory 15 detention who are awaiting a credible fear determination or who have not expressed a fear 16 of return “may be permitted only when the [Secretary of Homeland Security] determines, 17 in the exercise of discretion, that parole is required to meet a medical emergency or is 18 necessary for a legitimate law enforcement objective.”); 8 U.S.C. § 1182(d)(5)(A) (DHS 19 may, in its “discretion parole into the United States temporarily under such conditions as 20 [the Secretary] may prescribe only on a case-by-case basis for urgent humanitarian reasons 21 or significant public benefit any alien applying for admission to the United States . . . .”). 22 Thus, an alien who is subject to expedited removal, and who is seeking to establish that he 23 or she has credible fear, is not subject to discretionary detention under 8 U.S.C. § 1226(a) 24 and is ineligible for release on bond or a bond redetermination hearing before an 25 immigration judge. 26 If a USCIS asylum officer interviews an individual in expedited removal proceedings 27 and determines that he or she has a credible fear of persecution or torture, the individual 28 4 Case 3:18-cv-00428-DMS-MDD Document 57 Filed 04/20/18 PageID.1046 Page 11 of 28 1 may seek asylum or other protection from removal before an immigration judge. See 2 8 U.S.C. § 1225(b)(1)(B); 8 C.F.R. §§ 208.30, 235.3(b)(4). If the asylum officer determines 3 the individual does not have a credible fear of persecution or torture, the individual may 4 request review of that determination by an immigration judge. See 8 U.S.C. § 5 1225(b)(1)(B)(iii)(III); 8 C.F.R. § 208.30(g); 8 C.F.R. § 1003.42; 8 C.F.R. § 1208.30. If the 6 immigration judge determines that the individual does not have a credible fear of 7 persecution or torture, he or she may be ordered removed from the United States. 8 U.S.C. 8 § 1225(b)(1)(B)(iii); see also 8 U.S.C. §§ 1225(b)(1)(C), 1252(a)(2)(A)(iii); 8 C.F.R. § 9 1003.42(f) (“No appeal shall lie from a review of an adverse credible fear determination 10 made by an immigration judge.”). 11 If either the asylum officer or the immigration judge determines that the alien has a 12 credible fear of persecution or torture, expedited removal proceedings are vacated and the 13 alien is referred for removal proceedings before an immigration judge under 8 U.S.C. § 14 1229a. See 8 C.F.R. § 208.30(f). However, even after an individual is found to have a 15 credible fear, release from detention may still be limited. Depending on the circumstances 16 of the aliens’ arrest, the alien may be either eligible for parole to meet a medical emergency 17 or if necessary for a legitimate law enforcement objective, see 8 C.F.R. §§ 235.3(b)(2)(iii) 18 and 235.3(b)(4)(ii) or for bond, if the alien was detained for expedited removal as “certain 19 other aliens” and can show “that such release would not pose a danger to property or 20 persons, and that the alien is likely to appear for any future proceeding,” 8 C.F.R. § 21 236.1(c)(8); 8 C.F.R. § 1236.1; Matter of X-K-, 23 I. & N. Dec. 731 (2005). 22 23 24 D. Custody of Unaccompanied Alien Children by The U.S. Department of Health and Human Services. The TVPRA was signed into law on December 23, 2008. See Pub. L. No. 110-457. 25 The TVPRA confirmed that “the care and custody of all unaccompanied alien children, 26 including responsibility for their detention, where appropriate, shall be the responsibility of 27 the Secretary of Health and Human Services [“HHS”].” 8 U.S.C. § 1232(b)(1). An 28 “unaccompanied alien child” (“UAC”) is defined as “a child who (A) has no lawful 5 Case 3:18-cv-00428-DMS-MDD Document 57 Filed 04/20/18 PageID.1047 Page 12 of 28 1 immigration status in the United States; (B) has not attained 18 years of age; and (C) with 2 respect to whom (i) there is no parent or legal guardian in the United States; or (ii) no parent 3 or legal guardian in the United States is available to provide care and physical custody.” 6 4 U.S.C. § 279(g)(2). Under the TVPRA, except in the case of “exceptional circumstances,” 5 any department of agency must transfer a UAC to the custody of HHS, Office of Refugee 6 Resettlement (“ORR”) within 72 hours of the agency’s determination that a child in its 7 custody is, in fact, a UAC. 8 U.S.C. § 1232(b)(3). 8 When a UAC is referred to ORR, the agency places the UAC with a care provider. 9 See Office of Refugee Resettlement, ORR Policy Guide: Children Entering the United 10 States Unaccompanied (“ORR Guide”) § 3.1, available at: 11 http://www.acf.hhs.gov/orr/resource/children-entering-the-united-states-unaccompanied 12 (last accessed April 20, 2018); see also Flores v. Reno, Case CV-85-4544-RJK(px) (C.D. 13 Cal.) Settlement Agreement Ex. 1 (providing minimum standards for licensed programs.). 14 The ORR intakes staff makes an initial care provider placement decision for each UAC. See 15 ORR Guide § 1.3.2. The majority of care providers operate one of three types of facilities: 16 shelter-type facilities, staff secure facilities, or secure facilities. Id. § 1.1; see also 17 Declaration of Jallyn N. Sualog (“Sualog Decl.”), ¶ 7, attached hereto as Exhibit A. Shelter 18 care is a residential care facility in which all programs are administered on-site, in the least 19 restrictive setting. See ORR Guide: Guide to terms; Sualog Decl. ¶ 7. Staff secure facilities 20 maintain stricter security measures than shelters, such as a higher staff-to-UAC ratio for 21 supervision and a secure perimeter with a “no climb” fence. ORR Guide: Guide to terms; 22 Sualog Decl. ¶ 7. These facilities have a more shelter or home-like setting than secure 23 detention, and do not have locked pods or cell units. ORR Guide: Guide to terms; Sualog 24 Decl. ¶ 7. Secure facilities are the most restrictive level of care. They are physically secure 25 structures with staff who are able to control violent behavior and may be a licensed juvenile 26 detention center or a highly structured therapeutic facility. ORR Guide: Guide to terms; 27 Sualog Decl. ¶ 7. 28 6 Case 3:18-cv-00428-DMS-MDD Document 57 Filed 04/20/18 PageID.1048 Page 13 of 28 1 When deciding placement, ORR places the child in the “least restrictive setting that 2 is in the best interest of the child,” subject to considerations of danger to self, danger to 3 others, or risk of flight, in accordance with the TVPRA. 8 U.S.C. § 1232(c)(2)(A); see also 4 Sualog Decl. ¶ 6. Shelter care is by far the most common type of placement for minors in 5 ORR custody. See Sualog Decl. ¶ 7. 6 ORR also conducts ongoing assessments as to whether there is a suitable sponsor for 7 each UAC in their care so that children may be released as quickly as is safe and appropriate. 8 See ORR Guide § 2.2; Sualog Decl. ¶ 13. Under the TVPRA, where a custodian seeks to 9 have a child released by ORR to his or her custody ORR must make “a determination that 10 the proposed custodian is capable of providing for the child’s physical and mental well11 being.” 8 U.S.C. § 1232(c)(3)(A); Sualog Decl. ¶ 13. This assessment reviews a potential 12 sponsor’s strengths, resources, risk factors, and special concerns within the context of the 13 UAC’s needs, strengths, risk factors and relationship to the sponsor. See ORR Guide § 2.4. 14 A potential sponsor must fill out an application, the “family reunification package”, provide 15 identification documentation, and he or she undergoes a background check, along with any 16 adult living in his or her household. See ORR Guide §§ 2.2.3, 2.5. Once the assessment of 17 the potential sponsor is complete, the care provider makes a release recommendation. See 18 ORR Guide § 2.7. ORR makes the final release decision. See id. 19 III 20 STATEMENT OF FACTS RELATED TO THE NAMED PLAINTIFFS 21 A. 22 Ms. L. Ms. L. claims to be a citizen of the Democratic Republic of the Congo, who sought 23 admission to the United States on November 1, 2018 at the San Ysidro, California Port of 24 Entry. Amended Complaint, ECF No. 32, ¶¶ 10, 40. She was accompanied by her daughter 25 S.S. Id. ¶ 40. When she arrived at the port of entry Ms. L. had no identity documents other 26 than the Mexican exit visa issued to her, and she stated that her identity documentation had 27 been lost during her travel to the United States. See Declaration of Mario Ortiz (“Ortiz 28 Decl.”), ECF No. 46-1, ¶ 5; ECF No. 50 at 12. Ms. L. stated that she wished to seek asylum, 7 Case 3:18-cv-00428-DMS-MDD Document 57 Filed 04/20/18 PageID.1049 Page 14 of 28 1 and CBP officers therefore referred her for a credible fear interview with a USCIS asylum 2 officer and transferred her to ICE custody. Id. ¶¶ 40-41. Pending that interview, Ms. L. was 3 subject to mandatory detention. 8 U.S.C. § 1225(b). Because Ms. L. had no identity 4 documents, ICE had no way to immediately confirm whether S.S. was, in fact, Ms. L.’s 5 daughter, so it could not place Ms. L. and S.S. in an ICE family residential center. 6 Accordingly, ICE detained Ms. L. at the Otay Mesa Detention Center. Id. ¶ 41. Because 7 Ms. L. was subject to mandatory detention by ICE, S.S. had “no parent or legal guardian in 8 the United States . . . available to provide care and physical custody.” 6 U.S.C. § 279(g)(2). 9 Therefore, in accordance with the TVPRA, S.S. was transferred to the custody of ORR. 8 10 U.S.C. § 1232(b)(3); Amended Complaint ¶ 42; Sualog Decl. ¶ 3. 11 S.S. was housed by ORR in a non-secure shelter care facility licensed by the State of 12 Illinois to provide residential care to children. Sualog Decl. ¶ 9. The facility is one which is 13 capacitated to shelter young children such as S.S. and is routinely used for such children. 14 Id. The facility is unique in that it provides developmentally appropriate care which is 15 culturally sensitive to many young children like S.S. from diverse non-Central American 16 countries such as the Congo, Guinea, Nepal, Haiti, Kyrgyzstan, China, Vietnam, India, 17 Bangladesh, and Romania. Id. At the facility, S.S. received many services, including case 18 management, clinical, educational and medical services throughout the duration of her stay 19 in ORR care. Id. 20 On November 17, 2017, a USCIS asylum officer conducted a credible fear interview 21 for Ms. L. Amended Complaint ¶ 41; ECF No. 50 at 20. The asylum officer determined that 22 Ms. L had met the credible fear threshold to have her asylum application heard by an 23 immigration judge. Amended Complaint ¶ 41; ECF No. 50 at 20. Ms. L appeared, 24 unrepresented, before the immigration judge and was granted a continuance until January 25 26, 2018, to seek legal representation. ECF No. 50 at 25. On January 26, 2018, Ms. L 26 appeared again, unrepresented, before the immigration judge, stating her desire to continue 27 without an attorney. ECF No. 50 at 26. The immigration judge ordered that Ms. L be 28 8 Case 3:18-cv-00428-DMS-MDD Document 57 Filed 04/20/18 PageID.1050 Page 15 of 28 1 removed from the United States. ECF No. 50 at 28, 31. Ms. L waived appeal, and so her 2 removal order became immediately final. See 8 C.F.R. § 1241.1(b). 3 Ms. L. remained in ICE detention pending her removal from the United States 4 pursuant to the final order of removal. On February 28, 2018, Ms. L., represented by 5 counsel, filed a motion to reconsider her removal order with the immigration court. ECF 6 No. 50 at 33-47. On March 5, 2018, Ms. L. submitted a request to ICE to stay her removal 7 given her pending “Motion to Reconsider and possible Motion to Reopen or Appeal to 8 [Board of Immigration Appeals].” ECF No. 50 at 48-49. On March 6, 2018, ICE granted 9 the request for stay of removal. Id. That same day, ICE released Ms. L from detention. 10 Amended Complaint ¶ 41. 11 In order to facilitate the reunification process, ORR took steps to verify whether Ms. 12 L and S.S. were mother and daughter by conducting a DNA test, and on March 12, 2018 13 received results showing that they are. ECF No. 44. ORR also made the TVPRA-mandated 14 “determination that the proposed custodian is capable of providing for the child’s physical 15 and mental well-being.” 8 U.S.C. § 1232(c)(3)(A); see also ORR Guide §§ 2.2, 2.7.8; Status 16 Report, Mar. 19, 2018, ECF No. 49; 8 U.S.C. § 1232(c)(3). On March 16, 2018, ORR 17 released S.S. into Ms. L.’s custody. 18 19 B. Ms. C. On August 26, 2017, at approximately 6 pm local time, a Border Patrol Agent from 20 the El Paso Sector observed two individuals crossing the U.S./Mexico border into the United 21 States, on foot, approximately eight miles east of the Santa Teresa Port of Entry. 22 Declaration of Robert H. Lukason (“Lukason Decl.”), attached hereto as Exhibit B, ¶ 2. The 23 agent approached the two individuals in his marked Border Patrol vehicle, and identified 24 himself. Id. ¶ 3. The two individuals were Ms. C., and her minor son, J., who both admitted 25 to being citizens of Brazil with no immigration documentation to lawfully be present, or 26 lawfully remain in, the United States. Id. Both were arrested and transported to the Santa 27 Teresa, New Mexico Border Patrol station for processing. Id. 28 9 Case 3:18-cv-00428-DMS-MDD Document 57 Filed 04/20/18 PageID.1051 Page 16 of 28 1 After being arrested by Border Patrol, Ms. C. stated that she feared returning to her 2 home country. Amended Complaint ¶ 55; Lukason Decl., ¶ 4. Ms. C. was prosecuted for 3 illegally entering the United States under 8 U.S.C. § 1325, and was sentenced to serve time 4 in criminal custody. Amended Complaint ¶¶ 56-57. Because Ms. C. was prosecuted and 5 sentenced to jail time, J. had “no parent or legal guardian in the United States . . . available 6 to provide care and physical custody.” 6 U.S.C. § 279(g)(2). Therefore, in accordance with 7 the TVPRA, J. was transferred to the custody of ORR. 8 U.S.C. § 1232(b)(3); Amended 8 Complaint ¶ 56; Sualog Decl. ¶ 4. Initially J. was housed by ORR in a shelter-care facility, 9 but was transferred on December 8, 2107 to a more restrictive facility staff-secure facility 10 due to aggressive and inappropriate behavior. Id. ¶ 9. While in the ORR facilities, J. has 11 received many services including psychological services such individual and group therapy, 12 psychiatric services, and case management services, as well as educational services and 13 recreation. Id. 14 Ms. C. has since been found to have credible fear, and placed in removal proceedings 15 under 8 U.S.C. § 1229a. Id. ¶ 55. After her release from criminal custody, ICE took her into 16 custody. Id. ¶ 57. On April 5, 2018, Ms. C. had a bond hearing before an immigration judge 17 and was ordered released from custody on a $3000 bond, and subject to GPS monitoring by 18 DHS. See Order of the Immigration Judge, attached hereto as Exhibit C. Ms. C. has since 19 been released from custody. ORR is currently following the steps under the TVPRA to 20 provide for the reunification of Ms. C. and J. Sualog Decl. ¶¶ 12, 14. 21 IV 22 ARGUMENT 23 24 A. Standard for Preliminary Injunction It is well-settled that a preliminary injunction is “an extraordinary and drastic 25 remedy” which “should not be granted unless the movant, by a clear showing, carries the 26 burden of persuasion.” Mazurek v. Armstrong, 529 U.S. 968, 972 (1997) (per curiam) 27 (citations and quotations omitted). This court may issue a preliminary injunction only when 28 the movant demonstrates that: “there is a substantial likelihood plaintiff will succeed on the 10 Case 3:18-cv-00428-DMS-MDD Document 57 Filed 04/20/18 PageID.1052 Page 17 of 28 1 merits; plaintiff will be irreparably injured if an injunction is not granted; an injunction will 2 not substantially injure the other party; and the public interest will be furthered by an 3 injunction.” Friendly House v. Whiting, 846 F. Supp. 2d 1053, 1055 (D. Ariz. 2012) (citing 4 Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008)). “[T]he elements of the 5 preliminary injunction test are balanced, so that a stronger showing of one element may 6 offset a weaker showing of another.” Planned Parenthood Arizona, Inc. v. Humble, 13 F. 7 Supp. 3d 1017, 1019 (D. Ariz. 2014) (quoting Pimentel v. Dreyfus, 670 F.3d 1096, 1105– 8 1106 (9th Cir. 2012) (quotations omitted)). Thus, all four factors must be met for the court 9 to grant a preliminary injunction. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 10 1135 (9th Cir. 2011). 11 Moreover, the nature of the preliminary injunction sought by Plaintiffs makes it a 12 mandatory injunction that should be subject to heightened scrutiny by this Court. See Dahl 13 v. HEM Pharms. Corp., 7 F.3d 1399, 1403 (9th Cir. 1993) (Mandatory injunctions are 14 “subject to a heightened scrutiny and should not be issued unless the facts and law clearly 15 favor the moving party.”). Specifically, Plaintiffs ask this Court to release the named 16 Plaintiffs and putative class members, and to enjoin DHS from being able to follow its 17 current practices with regard to immigration and law enforcement actions that may result in 18 the separation of a purported family unit. While Plaintiffs do not clearly state what, 19 specifically, they are asking the Court to order, it is likely that any such order would require 20 DHS to implement entirely new procedures related to class members. See Marlyn 21 Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009) (“A 22 mandatory injunction orders a responsible party to take action,” and thus, “goes well beyond 23 simply maintaining the status quo.”) (internal citations and quotation marks omitted). 24 “[M]andatory injunctions ‘are not granted unless extreme or very serious damage will result 25 and are not issued in doubtful cases . . . .’” Id. (quoting Anderson v. United States, 612 F.3d 26 1112, 1115 (9th Cir. 1979)). Because Plaintiffs are asking this Court to impose new 27 procedures and limitations onto DHS’s existing operations, this Court should not issue the 28 11 Case 3:18-cv-00428-DMS-MDD Document 57 Filed 04/20/18 PageID.1053 Page 18 of 28 1 requested preliminary injunction unless it finds that “the facts and law clearly favor the 2 moving party.” Dahl, 7 F.3d at 1403. 3 4 B. Plaintiffs Cannot Show a Likelihood of Success on the Merits. Likelihood of success on the merits is a threshold issue: “[W]hen ‘a plaintiff has 5 failed to show the likelihood of success on the merits, [the court] need not consider the 6 remaining three [elements].’” Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (en 7 banc) (quoting Ass'n des Eleveurs de Canards et d'Oies du Quebec v. Harris, 729 F.3d 937, 8 944 (9th Cir. 2013)) (internal quotation marks omitted). 9 11 1. This Court Lacks Jurisdiction and Venue Over Plaintiffs’ Claims, And Plaintiffs’ Amended Complaint Fails to State a Claim as a Matter of Law. 12 Plaintiffs’ likelihood of success on the merits in this case is exceedingly low for all 10 13 of the reasons addressed in Respondents-Defendants’ Motion to Dismiss (ECF No.56). The 14 Government incorporates those arguments herein. 15 As an initial matter, Plaintiffs cannot succeed on their claims because the Court lacks 16 jurisdiction and venue over those claims. Specifically, for the reasons discussed in the 17 Government’s motion to dismiss, Ms. L’s claims are moot, and this Court lacks jurisdiction 18 and venue over Ms. C’s claims. Moreover, since the filing of the Government’s motion to 19 dismiss, Ms. C. has been ordered released from ICE custody by an immigration judge, and 20 ORR is evaluating her request to have J. released to her. See Order of the Immigration Judge, 21 attached hereto; Sualog Decl. ¶¶ 12, 14. Given that an immigration judge has ordered Ms. 22 C.’s release and she has been released from ICE custody, she can no longer obtain any relief 23 from any order of this Court either ordering her release, or ordering that she be detained in 24 an ICE family residential facility. Thus, her claims are now moot as well and should be 25 dismissed on that basis. See Abdala v. INS, 488 F.3d 1061, 1063 (9th Cir. 2007) (“At any 26 stage of the proceeding a case becomes moot when ‘it no longer present[s] a case or 27 28 12 Case 3:18-cv-00428-DMS-MDD Document 57 Filed 04/20/18 PageID.1054 Page 19 of 28 1 controversy under Article III, § 2 of the Constitution.’”) (quoting Spencer v. Kemna, 523 2 U.S. 1, 7 (1998)). 3 Even if this Court concludes that it has jurisdiction and venue over any of Plaintiffs’ 4 claims, Plaintiffs’ claims still cannot succeed because their Amended Complaint fails to 5 state any claim for relief. First, the named Plaintiffs do not—and cannot—challenge the 6 lawfulness of their arrests and detention by immigration authorities. Relatedly, Ms. C. does 7 not challenge the lawfulness of her prosecution and criminal custody. Plaintiffs nonetheless 8 request that this Court order ICE to release Plaintiffs, or detain Plaintiffs with their children 9 in an ICE family residential center. However, this Court has no authority to order either of 10 these forms of relief because these are discretionary immigration actions that have been 11 delegated to the authority of DHS, and the INA precludes review of those decisions by this 12 Court. 13 Second, Plaintiffs’ claims fail as a matter of law because Plaintiffs seek to establish 14 a constitutional right for aliens to be detained along with their minor children. Such a right, 15 however, is recognized nowhere in the law, as demonstrated in the Government’s motion 16 to dismiss. Plaintiffs seek to suggest that such a right exists by citing to cases regarding the 17 showing they contend is necessary before separation occurs, but those cases are inapplicable 18 here because they all relate to situations where the decision to separate a parent and child 19 was itself the sole decision at issue before the court, which is not the case here. Plaintiffs 20 have provided no basis to find that such a showing is required where the separation at issue 21 occurs as the result of legitimate discretionary immigration and law enforcement actions 22 taken by the Government. 23 Third, Plaintiffs’ claims fail as a matter of law because Plaintiffs’ Amended 24 Complaint fails to state a claim that their lawful arrest and detention by DHS—and in the 25 case of Ms. C., prosecution and criminal custody—violated the Fifth Amendment, 26 Administrative Procedure Act (“APA”), or asylum laws. 27 Finally, the preliminary relief requested by Plaintiffs is barred by 8 U.S.C. § 28 1252(f)(1), which strips the Court of jurisdiction over all class claims seeking to enjoin the 13 Case 3:18-cv-00428-DMS-MDD Document 57 Filed 04/20/18 PageID.1055 Page 20 of 28 1 operation of sections §§ 1221–123[2]. See Jennings v. Rodriguez, 138 S. Ct. 830, 851 2 (2018). Under that provision, “no court (other than the Supreme Court) shall have 3 jurisdiction or authority to enjoin or restrain the operation of [§§ 1221–1232] other than 4 with respect to the application of such provisions to an individual alien against whom 5 proceedings under such part have been initiated.” 8 U.S.C. § 1252(f)(1). While the Ninth 6 Circuit has held that § 1252(f)(1) does not affect the lower courts’ jurisdiction over statutory 7 claims that seek only to enjoin unlawful conduct (as opposed to the lawful operation of the 8 immigration detention statutes), the Supreme Court has stated that such reasoning “does not 9 seem to apply to an order granting relief on constitutional grounds.” Jennings, 138 S. Ct. at 10 851. As explained in the Government’s motion to dismiss and below, the separation of 11 family units about which Plaintiffs complain comes about in many instances as a result of 12 DHS’s operations relative to Sections 1225(b) and 1231. To the extent the relief requested 13 by Plaintiffs would enjoin DHS’s operations with regard to these provisions against the 14 putative class, such relief is barred by 8 U.S.C. § 1252(f)(1). 15 Thus, for all of the above reasons, and for the reasons explained in Respondents- 16 Defendants’ Motion to Dismiss (ECF No. 56), Plaintiffs are not likely to succeed on the 17 merits because this Court lacks jurisdiction and venue over their claims, and because their 18 Amended Complaint should be dismissed as a matter of law. Accordingly, a preliminary 19 injunction should not be issued. 20 21 2. Plaintiffs Cannot Establish That the Government’s Actions Are Unlawful. 22 Even if Plaintiffs’ claims are not dismissed as a matter of law, Plaintiffs’ request for 23 a preliminary injunction also should be denied because Plaintiffs cannot show that even 24 with the benefit of further proceedings they are likely to succeed on the merits of their 25 constitutional and APA claims. Plaintiffs contend that a preliminary injunction is 26 appropriate on those two claims because the Government “has offered no legitimate basis 27 for taking Plaintiffs’ children away” and thus the separation of Plaintiffs from their children 28 violates the Fifth Amendment and is arbitrary and capricious. Motion, ECF No. 48-1, at 19, 14 Case 3:18-cv-00428-DMS-MDD Document 57 Filed 04/20/18 PageID.1056 Page 21 of 28 1 20. However, the premise of Plaintiffs’ argument is incorrect. In fact, the separation of a 2 child from an accompanying parent by ICE or CBP may occur for various reasons, all of 3 which serve legitimate and important Government functions. 4 As the case of Ms. L. demonstrates, family separation may occur where CBP or ICE 5 is unable to confirm a family relationship between individuals purporting to be a parent and 6 child. As the Government explained in its motion to dismiss, the decisions to detain Ms. L. 7 rather than release her on parole, and to hold her in an adult detention facility rather than an 8 ICE family residential center, are discretionary decisions that are not subject to judicial 9 review. Further, it is essential for DHS to be able to make these discretionary decisions 10 because DHS plays an important role in disrupting smuggling operations that are harmful 11 to, and exploitative of, children. See Declaration of Marc W. Sanders (“Sanders Decl.”), ¶¶ 12 3-5, attached hereto as Exhibit D; see also Ortiz Decl. ¶ 3. 13 Both ICE and CBP frequently are faced with the need to determine, in a fast-moving 14 and uncertain environment, the legitimacy of a purported family relationship, and to act 15 accordingly in a short period of time following their initial encounter with a purported 16 family unit. Sanders Decl. ¶ 6. Pending her credible fear interview, Ms. L. was subject to 17 mandatory detention. 8 U.S.C. § 1225(b). When she arrived at the port of entry Ms. L. had 18 no identity documents other than the Mexican exit visa issued to her. See Ortiz Decl. ¶ 5; 19 ECF No. 50 at 12. Because Ms. L. had no identity documents, ICE had no way to 20 immediately confirm whether S.S. was, in fact, Ms. L.’s daughter so it could not place Ms. 21 L. and S.S. in an ICE family residential center. Accordingly, ICE detained Ms. L. at the 22 Otay Mesa Detention Center. Id. ¶ 41. S.S. therefore had “no parent or legal guardian in the 23 United States . . . available to provide care and physical custody[,]” 6 U.S.C. § 279(g)(2), 24 and in accordance with the TVPRA, S.S. was transferred to the custody of ORR. 8 U.S.C. 25 § 1232(b)(3); Amended Complaint ¶ 42. 26 An inability to confirm a familial relationship is just one of many scenarios that could 27 cause ICE or CBP to question whether an adult and minor who are traveling together are, 28 in fact, a family unit. Sanders Decl. ¶ 6. Because it is not uncommon for individuals to use 15 Case 3:18-cv-00428-DMS-MDD Document 57 Filed 04/20/18 PageID.1057 Page 22 of 28 1 unrelated minors and attempt to pass themselves off as family units, it is critically important 2 that ICE and CBP are able to take actions that protect children from exploitation when they 3 have any doubt about the validity of a family unit. Id.. As Officer Ortiz explained, when the 4 Government is evaluating what to do with a purported family unit it must consider “first, 5 whether there is any doubt about whether they are parent and child and, second, whether 6 there is information that causes a concern about the welfare the child, such as the adult 7 having a significant criminal history.” Ortiz Decl. ¶ 3. Where concerns arise, CBP and ICE 8 must have the ability to exercise their discretion as to the most appropriate immigration 9 action to address these concerns, and such actions may, if the situation warrants, result in 10 the separation of the minor from the accompanying adult. 1 Sanders Decl. ¶ 6. 11 Additionally, as the case of Ms. C. demonstrates, separation of a parent and child may 12 occur where a parent is subject to prosecution for a criminal offense. As described above, 13 any individual in the custody of ICE or CBP who that agency has reason to believe has 14 committed a crime may be referred to DOJ, and may be subject to prosecution and criminal 15 custody for that crime in DOJ’s discretion. Here, DOJ exercised its discretion to prosecute 16 Ms. C. for illegally entering the United States. Ms. C. does not challenge the authority of 17 DOJ to prosecute her for that crime, nor does she challenge her attendant placement in 18 criminal custody. In such cases, it is clear that an accompanying child cannot also be placed 19 into criminal custody, and instead must, consistent with the TVPRA, be transferred into the 20 care and custody of ORR. See 6 U.S.C. § 279(g)(2); 8 U.S.C. § 1232(b)(3). DHS plainly 21 has a legitimate interest in maintaining its ability to refer for prosecution those who commit 22 crimes, and DOJ must retain its prosecutorial discretion to determine who it will prosecute. 23 1 Moreover, it is important to remember that the TVPRA was enacted specifically to protect 24 minors for whom there is no parent or legal guardian available to provide care and custody. 25 The TVPRA ensures that any such minor is: 1) transferred to ORR; 2) held in facilities specifically designed and licensed for the care of minors; and 3) released only to a custodian 26 who is determined to be suitable for his or her care. See 6 U.S.C. § 279(g)(2); 8 U.S.C. § 27 1232(b)(3); 8 U.S.C. § 1232(c)(3)(A). Thus, the transfer of a minor to ORR whose parent 28 or guardian is not available to provide care and custody is specifically done for the purpose of providing the protections that Congress deemed appropriate for those minors. 16 Case 3:18-cv-00428-DMS-MDD Document 57 Filed 04/20/18 PageID.1058 Page 23 of 28 1 This discretion exists even though prosecution of some individuals may result in the 2 separation of that individual from his or her child. This Court should not grant a preliminary 3 injunction that would interfere with the Government’s ability to enforce the criminal laws 4 of the United States. 5 Finally, the Government may have a legitimate basis to detain an adult parent 6 separately from a minor child, even where the Government can confirm the relationship 7 between the parent and child, because detention in an ICE family residential center is not 8 always an option. The existence of legal and operational challenges to ICE family 9 residential centers may limit ICE’s ability to detain individuals in those facilities. 2 Thus, in 10 some situations, if ICE determines to detain a parent who is a member of a family unit, ICE 11 must detain him or her in an adult detention facility, and place the accompanying child with 12 ORR. 13 DHS cannot be precluded from detaining adult parents who arrive as members of a 14 family unit, even if this results in separation of the parent and child, because this conflicts 15 with the use of expedited removal, which is one of DHS’ most important tools provided by 16 Congress to manage the apprehension and removal of aliens encountered at or near the U.S. 17 border. See 8 U.S.C. § 1225(b)(1)(A)(i) (If an applicant for admission is inadmissible under 18 8 U.S.C. § 1182(a)(7), an immigration officer “shall order the alien removed from the 19 United States without further hearing or review unless the alien indicates either an intention 20 21 22 23 24 25 26 27 28 2 ICE family residential centers are necessarily limited to the detention of verified family units, and are subject to restrictions on who can be housed together at any given time based on the ages and genders of the children being housed there. Moreover, the Government’s ability to hold family units in ICE family residential centers is subject to the limitations of the Flores Settlement Agreement, as interpreted recently in a series of decisions by the U.S. District Court for the Central District of California and the U.S Court of Appeals for the Ninth Circuit. See Flores v. Johnson, 212 F. Supp. 3d 864 (C.D. Cal. 2015); Flores v. Lynch, 212 F. Supp. 3d 907 (C.D. Cal. 2015); Flores v. Lynch, 828 F.3d 898 (9th Cir. 2016); Flores v. Lynch, 2017 WL 6049373 (C.D. Cal., Jan. 20, 2017). The most recent district court decision in that case is currently on appeal to the Ninth Circuit. See Flores v. Lynch, Case No. 17-56297 (9th Cir.). These court decisions restrict ICE’s ability to detain family units together at ICE family residential centers in all instances. 17 Case 3:18-cv-00428-DMS-MDD Document 57 Filed 04/20/18 PageID.1059 Page 24 of 28 1 to apply for asylum under section 1158 of this title or a fear of persecution.”) (emphasis 2 added). Expedited removal requires detention unless and until an individual has been found 3 to have a credible fear of return, and an injunction that effectively required DHS to release 4 all individuals claiming to be members of family units before such determination has been 5 made would conflict with the statutory provisions governing detention and removal of 6 aliens. See 8 U.S.C. § 1225(b)(1)(B)(iii)(IV) (“Any alien subject to the procedures under 7 this clause shall be detained pending a final determination of credible fear of persecution 8 and, if found not to have such a fear, until removed.”); 8 C.F.R. §§ 235.3(b)(2)(iii) and 9 235.3(b)(4)(ii) (parole of aliens in the expedited removal-credible fear process “may be 10 permitted only when the [Secretary of Homeland Security] determines, in the exercise of 11 discretion, that parole is required to meet a medical emergency or is necessary for a 12 legitimate law enforcement objective.”). In the same vein, were DHS required to parole all 13 those individuals who are members of a family unit but also subject to reinstatement of 14 removal, pursuant to 8 U.S.C. § 1231(a)(5), DHS would be forced to act contrary to the 15 mandatory detention authority provided to it by 8 U.S.C. § 1231(a). 16 Because these statutory tools are an important part of the Government’s legitimate 17 immigration enforcement activities, Plaintiffs are incorrect to contend that any resulting 18 separation of a parent and child is without a legitimate basis on the part of the Government. 19 In fact, a ruling that precludes such action would effectively reward individuals who are 20 immigration recidivists and who endanger their children by seeking to enter the United 21 States illegally. Thus, contrary to Plaintiffs’ assertions, it is clear that the Government does 22 have legitimate bases for the immigration and law enforcement actions that it undertakes 23 relative to family separation. Accordingly, Plaintiffs have not shown that they are likely to 24 succeed on the merits of their Fifth Amendment or APA claims, even if those claims are 25 allowed to proceed on the merits. As a result, this Court should decline to enter a preliminary 26 injunction. 27 28 18 Case 3:18-cv-00428-DMS-MDD Document 57 Filed 04/20/18 PageID.1060 Page 25 of 28 1 2 C. Plaintiffs Cannot Show a Likelihood of Irreparable Harm. To establish irreparable harm, the movant must first “demonstrate that irreparable 3 injury is likely in the absence of an injunction;” it “will not issue if the person or entity 4 seeking injunctive relief shows a mere possibility of some remote future injury.” Park 5 Village Apartment Tenants Association v. Foster, 636 F.3d 1150 (9th Cir. 2011) (internal 6 citation and quotation marks omitted). The relief being sought “must be tailored to remedy 7 the specific harm alleged.” Id. (internal citation and quotation marks omitted). 8 While the Government does not deny that separation of a parent and child creates 9 some hardship, it must be considered that this separation is the result of lawful immigration 10 enforcement actions. To the extent that Plaintiffs allege that they suffer harm from being 11 separated from their children, this is the same harm suffered by any individual subject to 12 lawful detention by the Government who is separated from family members as a result of 13 that detention. Where Plaintiffs are seeking to remedy a harm that flows from lawful 14 immigration detention, the preliminary injunction that they seek is too broad and should be 15 denied. 16 Moreover, it must be remembered that the transfer of Plaintiffs’ minor children to 17 ORR custody occurs through the operation of the TVPRA, which is designed to protect 18 children in Government custody who have no parent or legal guardian available in the 19 United States to provide care or custody by ensuring that they are housed in facilities that 20 are designed and licensed for that purpose. 6 U.S.C. § 279(g)(2); 8 U.S.C. § 1232(b)(3). 21 Thus, the facilities in which these minor children are housed provide numerous services 22 designed to ensure the well-being of minors in their custody. See Sualog Decl. ¶¶ 9, 10. 23 24 D. The Government’s Interests Would be Harmed, and the Public Interest Would Not Be Served by the Grant of Injunctive Relief. 25 It is well-settled that the public interest in enforcement of United States immigration 26 laws is significant. Blackie’s House of Beef, Inc. v. Castillo, 659 F.2d 1211, 1221 (D.C. Cir. 27 1981) (citing United States v. Martinez-Fuerte, 428 U.S. 543, 556-58 (1976); United States 28 19 Case 3:18-cv-00428-DMS-MDD Document 57 Filed 04/20/18 PageID.1061 Page 26 of 28 1 v. Brignoni-Ponce, 422 U.S. 873, 878-79 (1975) (additional citation omitted)). “When a 2 statute is enjoined, the State necessarily suffers the irreparable harm of denying the public 3 interest in the enforcement of its laws.” Planned Parenthood, 734 F.3d at 419 (citing 4 Maryland v. King, 567 U.S. 1301, 1301 (2012)). The relief requested by Plaintiffs would 5 severely impact the ability of DHS to conduct multiple lawful and important aspects of its 6 operations, including immigration enforcement, criminal enforcement, and the disruption 7 of smuggling operations. See Sanders Decl. ¶ 6. These various operational tasks have been 8 assigned to DHS by statute, and in many cases have been delegated to DHS’s unreviewable 9 discretion. Thus, granting the requested injunctive relief over the express wishes of 10 Congress would not be in the public interest, and would harm the Government’s strong 11 interest in continued enforcement of the immigration laws. 12 V 13 CONCLUSION 14 For all of the above reasons, Plaintiffs’ Motion for Preliminary Injunction should be 15 denied. 16 17 18 19 20 21 22 23 24 25 26 27 28 20 Case 3:18-cv-00428-DMS-MDD Document 57 Filed 04/20/18 PageID.1062 Page 27 of 28 1 DATED: April 20, 2018 Respectfully submitted, 2 CHAD A. READLER Acting Assistant Attorney General WILLIAM C. PEACHEY Director WILLIAM C. SILVIS Assistant Director 3 4 5 6 7 8 9 10 11 12 13 14 /s/ Sarah B. Fabian SARAH B. FABIAN Senior Litigation Counsel NICOLE MURLEY Trial Attorney Office of Immigration Litigation Civil Division, U.S. Department of Justice P.O. Box 868, Ben Franklin Station Washington, DC 20044 (202) 532-4824 (202) 616-8962 (facsimile) sarah.b.fabian@usdoj.gov 15 16 ADAM L. BRAVERMAN United States Attorney 17 18 19 20 s/ Samuel W. Bettwy SAMUEL W. BETTWY Assistant U.S. Attorney Attorneys for Respondents-Defendants 21 22 23 24 25 26 27 28 21 Case 3:18-cv-00428-DMS-MDD Document 57 Filed 04/20/18 PageID.1063 Page 28 of 28 1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 4 MS. L., et al. 5 Case No. 18-cv-428 DMS MDD Petitioner-Plaintiff, 6 7 vs. CERTIFICATE OF SERVICE 8 U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., 9 10 Respondents-Defendants. 11 12 IT IS HEREBY CERTIFIED THAT: 13 I, the undersigned, am a citizen of the United States and am at least eighteen years of age. 14 My business address is 450 Fifth Street, NW, Washington, DC 20001. I am not a party to 15 the above-entitled action. I have caused service of the accompanying RESPONDENTS16 DEFENDANTS’ OPPOSITION TO PETITIONERS-PLAINTIFFS’ MOTION FOR 17 CLASSWIDE PRELIMINARY INJUNCTION on all counsel of record, by electronically 18 filing the foregoing with the Clerk of the District Court using its ECF System, which 19 electronically provides notice. 20 I declare under penalty of perjury that the foregoing is true and correct. 21 22 DATED: April 20, 2018 23 24 25 26 27 /s/ Sarah B. Fabian SARAH B. FABIAN Senior Litigation Counsel Office of Immigration Litigation Civil Division, U.S. Department of Justice Attorney for Respondents-Defendants 28 22