Case 1:18-cv-01458-PLF Document 16 Filed 06/27/18 Page 1 of 6

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
M.G.U, et al.

)
)
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Plaintiff,
)
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v.
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Kirstjen Nielsen, et al.,
)
)
Defendants.
)
)
_________________________________________ )

No. 1:18-cv-01458 (PLF)

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION
FOR TEMPORARY RESTRAINING ORDER
INTRODUCTION
Plaintiffs’ motion for a temporary restraining order (“TRO”) is addressed to a limited
issue; specifically, to request that the Court order Defendants to provide them with certain
information regarding their children who are currently in the custody of the U.S. Department of
Health and Human Service, Office of Refugee Resettlement (“ORR”), as well as regular
communication with their children. As discussed below, ORR already has agreed to provide
Plaintiffs with most of the relief requested in their motion. Accordingly, Defendants submit that
there is no basis at this time for the Court to issue a temporary restraining order and request that
the Court instead afford ORR the opportunity to implement the proposal that it has made to
Plaintiffs for providing information about their children and regular communication with them.
The parties currently are scheduled to appear at a hearing on July 12, 2018, to address the
distinct issue raised in Plaintiffs’ motion for preliminary injunction, 1 and, to the extent Plaintiffs

The motion for preliminary injunction seeks Plaintiffs’ reunification with their children. For the
Court’s awareness, the issue of reunification may be affected by the preliminary injunction order

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remain dissatisfied with the information and frequency of communication they are receiving,
they can request that the Court revisit the issue at that time. In the interim, in light Defendants’
agreement to provide most of the relief requested, Plaintiffs cannot show that they would suffer
any irreparable harm in the absence of a TRO. Thus, the motion for TRO should not be granted
or, at a minimum, should be held in abeyance at this time.
ARGUMENT
As stated in their motion, Plaintiffs seek a temporary restraining order requiring
Defendants to provide “reliable, daily information to each Plaintiff concerning the well-being of
each of Plaintiff’s children, either orally or in writing with reasonable specificity, as follows: a.
the complete address where each child is currently located; b. the government’s most accurate
estimate of the date that it anticipates reuniting each parent with each child; c. a description of
the setting where each child resides, whether home or institutional; d. the name, age, and gender
of each person primarily responsible for each child’s care; e. whether the child has suffered any
accident or illness; [and] f. a description of each child’s activities during that day[.]” (Pl. Mot. at
2.) Plaintiffs also seek “frequent and meaningful access to or communication with each child
via telephone or video link.” (Id.)
By email dated June 27, 2018 to Plaintiffs’ counsel, counsel for Defendants confirmed a
prior conversation in which defense counsel had advised that the government would endeavor to
provide most of the relief that Plaintiffs have requested. See, June 27, 2018 email from Sarah B.
Fabian to Jerry Wesevich, attached hereto as Exhibit 1. Specifically, in that email, Plaintiffs were

issued in Ms. L., et al. v. ICE, Case No. 18-cv-0428 (S.D. Cal.) last evening, which orders the
reunification of parents separated from a child who do not have a criminal history, and who are
not unfit or pose a danger to their child. Defendants are still assessing that order and its
implementation, but expect that it may impact the resolution of this case.
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provided with (1) the name of the facility where each child is being held, and the city in which
that facility is located (the email also advised that Defendants would be willing to provide the
address for each facility if Plaintiffs will agree to keep that information confidential subject to
the entry of a protective order) and (2) an offer to provide the name and phone number of the
case manager for each child (if Plaintiffs will agree to keep that information confidential subject
to the entry of a protective order), who will be available to provide regular updates to each
parent. (Id.) As explained in that email, case managers also will provide parents with information
regarding the reunification process and any estimated time periods that may be known for
completion of that process, descriptions of the facilities where the children are living and the
individuals caring for the children, and information regarding activities and programs available
at those facilities and updates regarding the children’s participation in those activities. (Id.)
Defendants also agreed in that email to provide the Plaintiffs with reports of any significant
incident in the event their children suffer any accident or illness. (Id.)
Thus, in light of the above, Defendants have largely provided Plaintiffs with the
information they have requested and/or access to that information by providing the contact
information for each child’s case manager. In addition, Defendants also have agreed to provide
Plaintiffs with regular, consistent communication with their children. Consequently, at this time,
the alleged irreparable harm identified in Plaintiffs’ motion has been addressed and there is no
basis for a TRO to issue.
Regardless of the presence of other equitable factors, “plaintiffs seeking preliminary
relief [must] demonstrate that irreparable injury is likely in the absence of an injunction.” Winter
v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (emphasis in original). Further, the “D.C.
Circuit ‘has set a high standard for irreparable injury.’” Jones v. D.C., 177 F. Supp. 3d 542, 545

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(D.D.C. 2016) (quoting Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297
(D.C. Cir. 2006)). To meet this standard, “[t]he injury ‘must be both certain and great; it must be
actual and not theoretical.’” Id. (quoting Chaplaincy, 454 F.3d at 297). Further, the injury must
“be ‘of such imminence that there is a ‘clear and present’ need for equitable relief to prevent
irreparable harm.’” Id. (quoting Wisc. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1989))
(emphasis in original).
Some courts, moreover, have recognized that the standard for irreparable injury is
heightened when, as here, “a plaintiff seeks an injunction that would alter the status quo rather
than merely preserve it (i.e., a mandatory injunction).” English v. Trump, 279 F. Supp. 3d 307,
316 (D.D.C. 2018) (citing Elec. Privacy Info. Ctr. v. DOJ, 15 F. Supp. 3d 32, 39 (D.D.C. 2014)
(collecting cases)). Under that heightened standard, “the moving party must “clearly” show that
“he or she is entitled to relief or that extreme or very serious damage will result from the denial
of the injunction.” Columbia Hosp. for Women Found., Inc. v. Bank of Tokyo–Mitsubishi Ltd., 15
F. Supp. 2d 1, 4 (D.D.C. 1997), aff'd, 1998 U.S. App. LEXIS 7871, at *2 (D.C. Cir. 1998) (“we
need not reach the question of whether the district court erred in holding that the standard
applicable to a mandatory preliminary injunction is higher than that applicable to a prohibitory
preliminary injunction because, as the district court also held, the appellants fail even under the
lower standard that they advocate”).
In any event, even under the ordinary standard, the alleged irreparable harm identified by
Plaintiffs has been addressed by the information that Defendant has provided and agreed to
provide, including facilitating telephonic communication between Plaintiffs and their children on
a regular basis.

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CONCLUSION
For the foregoing reasons, the Court should deny Plaintiff’s request for a TRO or,
alternatively, hold it in abeyance at this time.
DATE: June 27, 2018

Respectfully submitted,
CHAD A. READLER
Acting Assistant Attorney General
WILLIAM C. PEACHEY
Director
WILLIAM C. SILVIS
Assistant Director
By: Sarah B Fabian
SARAH B. FABIAN
Senior Litigation Counsel
U.S. Department of Justice
Office of Immigration Litigation
District Court Section
Box 868, Ben Franklin Station
Washington, DC 20442
Telephone: (202) 532-4824
Fax: (202) 616-8962
E-mail: Sarah.B.Fabian@usdoj.gov
and
JESSIE K. LIU, D.C. Bar #472845
United States Attorney
DANIEL F. VAN HORN
D.C. BAR # 924092
Civil Chief
JEREMY S. SIMON, D.C. BAR #447956
Assistant United States Attorney
555 4th Street, N.W.
Washington, D.C. 20530
(202) 252-2528
Jeremy.simon@usdoj.gov
Counsel for Respondents

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CERTIFICATE OF SERVICE

I hereby certify that on June 27, 2018, I served the foregoing pleading on all counsel of
record by means of the District Clerk’s CM/ECF electronic filing system.

/s/ Sarah B. Fabian
SARAH B. FABIAN
U.S. Department of Justice
District Court Section
Office of Immigration Litigation
Attorney for Respondents

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