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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LIDIA KARINE SOUZA; and her son, D.F.,
by and through his mother, LIDIA KARINE
SOUZA;
Plaintiffs,
v.
JEFFERSON BEAUREGARD SESSIONS
III, Attorney General of the United States;
U.S. DEPARTMENT OF HOMELAND
SECURITY (“DHS”); KIRSTJEN
NIELSEN, Secretary of DHS; U.S.
IMMIGRATION AND CUSTOMS
ENFORCEMENT (“ICE”); THOMAS
HOMAN, Acting Director of ICE;
RICARDO WONG, Director, ICE Field
Office for Enforcement Removal Operations
in Chicago, Illinois; U.S. CUSTOMS AND
BORDER PROTECTION (“CBP”); KEVIN
K. MCALEENAN, Acting Commissioner of
CBP; U.S. CITIZENSHIP AND
IMMIGRATION SERVICES (“USCIS”); L.
FRANCIS CISSNA, Director of USCIS;
U.S. DEPARTMENT OF HEALTH AND
HUMAN SERVICES (“HHS”); ALEX
AZAR, Secretary of the Department of
Health and Human Services; OFFICE OF
REFUGEE RESETTLEMENT (“ORR”);
SCOTT LLOYD, Director of the Office of
Refugee Resettlement; HEARTLAND
ALLIANCE INTERNATIONAL, LLC; and
CECILIA CONTRERAS, Program
Operations Manager, Heartland Human Care
Services;
Defendants.

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Civil Action No. _________

COMPLAINT

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INTRODUCTION
1.

This case arises out of the federal government’s controversial practice of forcibly

separating migrant parents and minor children who enter the United States without any finding
that the parent is unfit or presents a danger to the child. Last Wednesday, June 20, 2018,
President Trump issued an Executive Order that purports to address this policy. However, it is
estimated that several thousand minor children remain separated from their parents without any
clear path or timeline for reunification. This case involves one such parent and child.
2.

Nearly one month ago, Plaintiff Lidia Karine Souza (“Ms. Souza”) arrived in the

United States from Brazil, along with her then-eight-year-old son (“D.F.”). After voluntarily
presenting herself to U.S. immigration authorities, Ms. Souza was interviewed and found to
possess a credible fear of persecution in her home country entitling her to full consideration for
asylum here in the United States. Shortly after this interview, however, the federal government
forcibly separated Ms. Souza from her son, detained Ms. Souza in a federal Bureau of Prisons
facility in Texas, and transferred D.F. to the custody of the Department of Health and Human
Services (“HHS”), which subsequently transferred D.F. to a shelter in Chicago, Illinois.
3.

On June 9, 2018, Ms. Souza was released from custody. She currently has been

staying with family members in Massachusetts.
4.

Ms. Souza has not seen her son since May 30, 2018. D.F. currently is being held

in a facility in Chicago under the purported authority of Defendant Office of Refugee
Resettlement (“ORR”), a component of HHS.
5.

Over the past several weeks, Ms. Souza has only been able to communicate with

her son by telephone, and then only for a total of only 20 minutes per week. During these phone

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calls, D.F. frequently cries and begs Ms. Souza to do everything in her power to get him out of
the shelter and back into her care.
6.

With the assistance of counsel, Ms. Souza has undertaken every effort to have her

son returned to her. Upon her release, Ms. Souza immediately began to try to ascertain D.F.’s
whereabouts, but she was given no information about her son and only handed a toll-free number
she could call to try to get in touch with her son. Undeterred, Ms. Souza reached out to another
mother who had been forcibly separated from her child as a result of the government’s “zero
tolerance” policy and ultimately determined that D.F. was being housed at a Heartland Alliance
(“HA”) facility in Chicago.
7.

Upon reaching out to the HA facility, Ms. Souza was provided a packet of

documents and told that she would need only to fill out and return the documents in the packet in
order to be reunited with her son. Last week, Ms. Souza completed and submitted 36-pages of
materials. Rather than her son being promptly released from custody, however, Ms. Souza was
told that, due to recently amended ORR rules, the two other relatives in the household in which
she is staying would need to visit a designated location in Massachusetts to be fingerprinted and
that the earliest date they could be fingerprinted is July 6, 2018. She was told that, after the
fingerprints were submitted (along with other identifying information), ORR would require an
additional approximate 20+ days to process her release application—a process that included a
criminal background check and investigation of the household members’ immigration status.
8.

On the morning of June 25, 2018, after being informed that Ms. Souza was

planning to file this lawsuit in federal court, an ORR representative informed Ms. Souza’s
counsel that the fingerprinting of the two other relatives currently housing Ms. Souza could be
done on June 29, 2018 (one week earlier than the previously offered date of July 6). Regardless,

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ORR still would require the additional 20+ days after the fingerprinting to process the release
application. Accordingly, under the government’s timeline, Ms. Souza cannot be reunited with
her son until, at the earliest, late July 2018—nearly two months since their forcible separation.
9.

This delay is unacceptable, unnecessary, and unconstitutional. Ms. Souza’s son

is being held under the purported authority of the ORR to oversee the care and placement of an
“unaccompanied alien child.” However, because Ms. Souza is available to provide care and
custody, and has been available to do so since arriving in the United States, her son is not an
“unaccompanied alien child” under the relevant authority. Accordingly, ORR has no basis to
hold D.F.
10.

Moreover, the government’s baseless refusal to immediately release D.F. to Ms.

Souza’s custody represents a fundamental violation of the Fifth Amendment due process rights
of Ms. Souza and her son.
11.

In addition, this Court is empowered to issue a writ of mandamus requiring the

relevant government officials to ensure the immediate release of Ms. Souza’s son.
12.

Finally, the government’s actions in this case violate both the Administrative

Procedures Act (“APA”) and the settlement agreement in Flores v. Sessions, 85-cv-4544 (C.D.
Cal.).
13.

Ms. Souza came to the United States with her young son seeking asylum. The

federal government forcibly separated her from her son and has kept them apart for nearly one
month. The Executive Order issued on June 20, 2018 was intended to address this practice, but it
provides no relief for parents, like Ms. Souza, who have waited far too long to be reunited with
their minor children and have been given no clear assurance that any reunion is forthcoming.
For these reasons, and the reasons set forth below, the Court should enter an order requiring

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Defendants to immediately release Ms. Souza’s son into her custody, awarding attorneys’ fees
and costs incurred in bringing this case, and providing any other relief that is just and proper.
14.

As soon as practicable, Ms. Souza and her undersigned counsel intend to file a

motion seeking emergency relief to have Ms. Souza immediately reunited with her child.
JURISDICTION
15.

This Court has subject matter jurisdiction over this case pursuant to 28 U.S.C.

§ 1331 (federal question jurisdiction), the federal Declaratory Judgment Act (28 U.S.C. §§ 22012202), the Fifth Amendment to the United States Constitution, 28 U.S.C. § 2241 (habeas
jurisdiction), 28 U.S.C. § 1346 (United States as defendant), Art. I, § 9, cl. 2 of the United States
Constitution (“Suspension Clause”), the Administrative Procedures Act (5 U.S.C. § 704), and
¶ 24(B) of the Flores settlement agreement. Plaintiff D.F. is in custody for purposes of habeas
jurisdiction.
VENUE
16.

Venue is proper under 28 U.S.C. § 1391 because Plaintiff D.F. is presently

detained at a shelter located in Chicago, Illinois and a substantial portion of the relevant facts
occurred within this District.
PARTIES
17.

Plaintiff Lidia Karine Souza is a citizen of Brazil. She is the mother of Plaintiff

18.

Plaintiff D.F. is a citizen of Brazil. He brings suit by and through his mother, Ms.

19.

Defendant Jefferson Beauregard Sessions III is sued in his official capacity as the

D.F.

Souza.

Attorney General of the United States (“Attorney General”).

4

In this capacity, he has

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responsibility for the administration of the immigration laws pursuant to 8 U.S.C. § 1103,
oversees the Executive Office of Immigration Review, is empowered to grant asylum or other
relief, and is a legal custodian of Plaintiff D.F.
20.

Defendant U.S. Department of Homeland Security (“DHS”) has responsibility for

enforcing the immigration laws of the United States.
21.

Defendant Kirstjen Nielsen, is sued in her official capacity as the Secretary of the

Department of Homeland Security. In this capacity, she directs each of the component agencies
within DHS. As a result, Defendant Nielsen has responsibility for the administration of the
immigration laws pursuant to 8 U.S.C. § 1103, is empowered to grant asylum or other relief, and
is a legal custodian of Plaintiff D.F.
22.

Defendant U.S. Immigration and Customs Enforcement (“ICE”) is the sub-agency

of DHS that is responsible for carrying out removal orders and overseeing immigration
detention.
23.

Defendant Thomas Homan is sued in his official capacity as the Acting Director

of ICE, and is a legal custodian of Plaintiff D.F.
24.

Defendant Ricardo Wong is sued in his official capacity as the Director of the ICE

Field Office for Enforcement Removal Operations in Chicago, Illinois, and is a legal custodian
of Plaintiff D.F.
25.

Defendant U.S. Customs and Border Protection (“CBP”) is the sub-agency of

DHS that is responsible for the initial processing and detention of noncitizens who are
apprehended near the U.S. border.
26.

Defendant Kevin K. McAleenan is sued in his official capacity as the Acting

Commissioner of CBP.

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27.

Defendant U.S. Citizenship and Immigration Services (“USCIS”) is the sub-

agency of DHS that, through its Asylum Officers, conducts interviews of certain individuals
apprehended at the border to determine whether they have a credible fear of persecution in their
home countries and should be permitted to apply for asylum.
28.

Defendant L. Francis Cissna is sued in his official capacity as the Director of

USCIS.
29.

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.
30.

Defendant Alex Azar is sued in his official capacity as the Secretary of the HHS.

31.

Defendant Office of Refugee Resettlement (“ORR”) is the component of HHS

which provides care of and placement for “unaccompanied” noncitizen children.
32.

Defendant Scott Lloyd is sued in his official capacity as the Director of ORR.

33.

Defendant Heartland Alliance International, LLC (“HA”) is the entity operating

the Heartland Human Care Services shelter in Chicago, Illinois, a contracted ORR facility that
currently has physical custody of Plaintiff D.F.
34.

Defendant Cecilia Contreras is the Program Operations Manager of the Heartland

Human Care Services shelter in Chicago, Illinois, the contracted ORR facility that currently has
physical custody of Plaintiff D.F.
FACTS
A.

Background Facts on Forcible Separation of Migrant Families

35.

Over the past year, the federal government has separated thousands of migrant

families for no legitimate purpose. Many of these migrant families fled persecution and are

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seeking asylum.

The federal government has forcibly separated parents from their minor

children and detained the children, often far away, in shelters for “unaccompanied” minors. The
government has undertaken this forcible separation without any showing, or even any allegation,
that the parents are unfit or otherwise unable to take custody of their children.
36.

There is overwhelming medical evidence that the separation of a young child

from his or her parent will have a devastating negative impact on the child’s well-being,
especially where there are other traumatic factors at work, and that this damage can be
permanent.
37.

The American Association of Pediatrics has recently denounced the practice of

separating migrant children from their parents, noting that: “The psychological distress, anxiety,
and depression associated with separation from a parent would follow the children well after the
immediate period of separation—even after the eventual reunification with a parent or other
family.”
38.

On June 20, 2018, President Trump issued an Executive Order titled “Affording

Congress an Opportunity to Address Family Separation.” Whitehouse.gov, Executive Orders,
June 20, 2018 (available at https://www.whitehouse.gov/presidential-actions/affording-congressopportunity-address-family-separation/). Among other things, the Executive Order clarified that,
“[i]t is also the policy of this Administration to maintain family unity, including by detaining
alien families together where appropriate and consistent with law and available resources.”
B.

The Government Forcibly Separated Ms. Souza From Her Minor Son.

39.

On May 25, 2018, Ms. Souza and her then-eight-year-old son, D.F., fled their

home country of Brazil to escape an immediate threat to their physical well-being.

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40.

On May 29, 2018, Ms. Souza and her son arrived in Santa Theresa, New Mexico

(a town on the U.S.-Mexico border where New Mexico, Texas, and Mexico converge) and
presented themselves to immigration authorities. Ms. Souza expressed to the authorities that she
had a fear of returning to Brazil and was therefore referred for an initial screening before an
asylum officer, called a “credible fear interview.”
41.

The asylum officer determined that Ms. Souza had a credible fear that she would

be persecuted if she returned to Brazil, which entitled her to a full hearing before Immigration
Judge on her asylum claim.

See U.S. Citizenship and Immigration Services, Questions &

Answers: Credible Fear Screening (available at https://www.uscis.gov/humanitarian/refugeesasylum/asylum/questions-answers-credible-fear-screening) (“If the asylum officer finds you have
a credible fear of persecution or torture, the asylum officer will refer your case to an Immigration
Judge for a full hearing on your claim.”).
42.

On May 30, 2018, a CBP agent used Google Translate to explain to Ms. Souza

(whose native language is Portuguese) that, because she had not presented herself at an official
port of entry, she had entered the United States illegally and would go to jail. Ms. Souza’s son,
D.F., erupted in tears as his mother was handcuffed in front of him and taken away.
43.

On June 1, 2018, Ms. Souza was taken to the United States District Court in El

Paso, Texas. However, there was no Portuguese translator available, so she was sent back to
prison.
44.

On June 6, 2018, Ms. Souza was taken back to the United States District Court in

El Paso, Texas. After the hearing, Ms. Souza was transferred into ICE’s custody.

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C.

Ms. Souza Is Released From Government Custody.

45.

On June 9, 2018, ICE released Ms. Souza and dropped her off at the El Paso

Airport. During this drop-off, ICE provided her a paper with a phone number to call to reach her
son. Ms. Souza tried to call the number multiple times, but found that she could not get through
to anyone. Ms. Souza then flew to Dallas and subsequently to Boston, where she was met by
family members. ICE provided Ms. Souza with notice that she must report to an Enforcement
and Removal Operations Office in Burlington, Massachusetts on June 21, 2018.
46.

When she reached Massachusetts, Ms. Souza continued to try the telephone

number provided by ICE officials. However, she was unable to get through to anyone. During
this time, she was devastated, desperate, and crazed because she had not talked to her son since
they were separated on May 30, 2018.
47.

Although the phone number ICE provided Ms. Souza proved to be a dead-end,

Ms. Souza, on her own, located her child. On June 12, 2018, Ms. Souza searched Facebook for a
Brazilian woman she had met in detention whose child had also been removed from her. The
woman told Ms. Souza that her daughter had been at an ORR shelter in Chicago called “Casa
Guadalupe” and had befriended a Brazilian boy there with the same name as D.F. The woman
gave Ms. Souza the number for the “Casa Guadalupe” shelter.
D.

The Government Refuses To Release Ms. Souza’s Son To Her Custody.

48.

On June 12, 2018, Ms. Souza called the number she had been given for the “Casa

Guadalupe” shelter, also known as the Heartland Human Care Services shelter, located in
Chicago, Illinois. For the first time in twelve days, Ms. Souza was able to speak with her son.
On the call, her son sobbed and pled with her to come and get him. Since this time, Ms. Souza
has called and spoken with her son as often as is allowed. However, Ms. Souza has been

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allowed to speak with her son for no more than 20 minutes a week (either through one 20-minute
call or through two 10-minute calls each week).
49.

On the same day, June 12, 2018, Ms. Souza spoke with an ORR case manager at

the ORR shelter. The case manager told Ms. Souza that she would need to fill out certain
paperwork to secure her son’s release. On June 14, 2018, the case manager sent Ms. Souza an
email with certain paperwork to fill out in order to have her son released into her custody.
50.

On June 15 and 16, 2018, the same ORR case manager called Ms. Souza and told

her that D.F. was very upset, was crying. Ms. Souza was able to talk to her son and help him to
calm down.
51.

On June 18, 2018, Ms. Souza retained undersigned counsel, Mr. Bless, an

attorney at the Law Offices of Jeff Goldman. It was the same day that D.F. experienced his ninth
birthday, separated from his mother by hundreds of miles, in an unfamiliar place, and surrounded
by people he does not know. Ms. Souza called the facility in Chicago but was not permitted to
speak with D.F. on his birthday.
52.

On June 20, 2018, Ms. Souza’s counsel sent to the ORR case manager the full 36-

pages of completed materials that she had emailed to Ms. Souza on June 14, 2018. On the same
day, Ms. Souza spoke to her son and wished him a happy belated birthday.
53.

On June 21, 2018, Ms. Souza reported to the Enforcement and Removal

Operations Office in Burlington, Massachusetts, as ordered by ICE. The officials at the office
told her to return in one year for further proceedings.
54.

That same day, the ORR case manager called Ms. Souza and told her that ORR

had recently amended its rules regarding the paperwork required to release an “unaccompanied
alien child.” The case manager explained that ORR now required additional documents to

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complete the application for her son’s release. Specifically, the amended ORR rules purportedly
require Ms. Souza to provide a release form signed by the two other relatives currently housing
Ms. Souza. In addition, the amended ORR rules purportedly require fingerprints from Ms. Souza
and these same relatives.
55.

Ms. Souza was told that the earliest available date to obtain the required

fingerprints was July 6, 2018. An ORR agent also explained to Ms. Souza that it would take an
additional approximate 20+ days after the fingerprints were submitted to process her request for
the return of her son, during which time criminal background checks, as well as verification of
the other household members’ immigration status, would be conducted.
56.

On June 23, 2018, Ms. Souza signed a release allowing U.S. Senator Edward

Markey to use her information to help in expediting the release of her son. On the same day,
Senator Markey’s office contacted ORR and its agents seeking to secure the immediate release of
Ms. Souza’s son.
57.

On June 24, 2018, Ms. Souza and her counsel met with U.S. Representative

Joseph Kennedy III. After hearing her story, Congressman Kennedy called representatives at
ORR and its agents asking that Ms. Souza’s son be released immediately.
58.

On the morning of June 25, 2018, after being informed that Ms. Souza was

planning to file this lawsuit in federal court, an ORR representative informed Ms. Souza’s
counsel that the fingerprinting of the two other relatives currently housing Ms. Souza could be
done on June 29, 2018 (one week earlier than the previously offered date of July 6). Regardless,
ORR still would require the additional approximate 20+ days after the fingerprinting to process
the release application. Accordingly, under the government’s timeline, Ms. Souza cannot be

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reunited with her son, at the earliest, until late July 2018—nearly two months since their forcible
separation.
59.

Desperate for a solution, Ms. Souza has also shared her story with media outlets

including the New York Times,1 the Boston Globe,2 and others3 in hopes that broader attention
may help bring about the return of her child.
60.

Ms. Souza has not seen her son since he was taken from her on May 30, 2018.

She worries about him constantly and does not know when she will see him again. She is
desperate to be reunited with him.
61.

D.F. has been having a difficult time emotionally and psychologically since being

separated from his mother. Each day they are separated causes him greater harm and could
potentially lead to permanent emotional trauma.
62.

The government has no legitimate interest in separating Ms. Souza from her son.

There is no evidence, or even allegation, that Ms. Souza is an unfit parent. To the contrary, all of
the evidence and the efforts undertaken by Ms. Souza and her counsel demonstrate that she is
acting in the best interests of her child. She should be reunited with her son immediately.
63.

On June 25, 2018, agents from Defendant ICE allowed Ms. Souza to fly from

Boston to Chicago for the express purpose of picking up her “minor child from ORR.” Ms.
1

Miriam Jordan, “Torn Apart by Zero Tolerance, Kept Apart by Red Tape,” New York Times
(June 24, 2018) (available at https://www.nytimes.com/2018/06/24/us/family-separation-brazil.html).
2

Akilah Johnson, “A Brazilian mother seeking asylum was freed from detention. Her son was not,”
Boston
Globe
(June
22,
2018)
(available
at
https://www.bostonglobe.com/news/nation/2018/06/22/brazilian-mother-seeking-asylum-was-freed-fromdetention-her-son-was-not/kIYT1F4fHTsHxdkfmHh73I/story.html).
3

Ted Daniel, “Mother, 9-year-old son separated after fleeing Brazil for United States,” Fox25
Boston (June 21, 2018) (available at https://www.fox25boston.com/news/mother-9-year-old-sonseparated-after-fleeing-brazil-for-united-states/774619018); Malcolm Johnson, “'He Cries a Lot': Woman
Separated From Her Son at Border Shares Their Story,” (June 21, 2018) (available at
https://www.nbcboston.com/news/local/Woman-Separated-From-Her-Son-at-Border-Shares-Her-Story486212351.html).

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Souza arrived in Chicago on the night of June 25, 2018 for the sole purpose of reuniting with her
son and returning with him to Massachusetts.
CAUSES OF ACTION
COUNT I
(Declaratory Judgment Act)
64.

All of the foregoing allegations are repeated and realleged as though fully set

forth herein.
65.

The federal Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, provides that

“[i]n a case of actual controversy within its jurisdiction . . . any court of the United States . . .
may declare the rights and other legal relations of any interested party seeking such declaration,
whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a).
66.

As part of the Homeland Security Act, Congress delegated to the ORR the

responsibility for the care of “unaccompanied alien children.” The statute defines such children
as those under the age of 18, who have no lawful immigration status in the United States, and for
whom “there is no parent or legal guardian in the United States” or “no parent or legal guardian
in the United States is available to provide care and physical custody.” 6 U.S.C. §§ 279(a),
279(g)(2).
67.

The ORR’s own internal procedures define “unaccompanied minors” as persons

who have “not yet attained 18 years of age” and “who entered the United States unaccompanied
by and not destined to [] a parent.” 45 C.F.R. § 400.111.
68.

As explained above, Plaintiff D.F. currently is being held at a shelter under the

purported authority of the ORR. However, D.F. is not an “unaccompanied alien child” under the
relevant statute or an “unaccompanied minor” under the ORR’s own internal procedures.

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69.

To the contrary, when he arrived in this country, D.F. was accompanied by his

mother, Ms. Souza. At the time of their arrival in the United States, Ms Souza was available to
provide care and physical custody to D.F.
70.

Even when federal agents seized and imprisoned Ms. Souza on May 30, 2018, she

was still willing, able, and available to provide care and physical custody to D.F.

If the

government had held D.F. and Ms. Souza in custody together, rather than forcibly separating
them, Ms. Souza would have continued to provide care and physical custody to D.F.
Accordingly, D.F. was never an “unaccompanied alien child” or an “unaccompanied minor.”
71.

Even assuming, for the sake of argument, that Ms. Souza was not available to

provide care and physical custody to D.F. while in custody, she was released from such custody
on June 9, 2018. Since that time, Ms. Souza has unquestionably been available to provide care
and physical custody to D.F. Accordingly, since at least June 9, 2018, D.F. has not been an
unaccompanied minor.
72.

The ORR and the other Defendants thus have no basis to hold or maintain custody

over D.F. Defendants should immediately release D.F. into the custody of his mother, Ms.
Souza.
73.

There is an actual controversy between the parties because Defendants have

refused to immediately release D.F. into his mother’s custody. The Court should exercise its
authority under the Declaratory Judgment Act to issue an order setting forth the following
declarations of law: (1) D.F. is not an “unaccompanied alien child” under 6 U.S.C. §§ 279(a),
279(g)(2) or an “unaccompanied minor” under 45 C.F.R. § 400.111; (2) the ORR and the other
Defendants have no basis to hold or maintain custody over D.F., and (3) Defendants must
immediately release D.F. into the custody of his mother, Ms. Souza.

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COUNT II
(Violation of Due Process)
74.

All of the foregoing allegations are repeated and realleged as though fully set

forth herein.
75.

The Due Process Clause of the Fifth Amendment applies to all “persons” on

United States soil and thus applies to Ms. Souza and her son, D.F.
76.

Ms. Souza and her son, D.F., have a liberty interest under the Due Process Clause

in remaining together as a family.
77.

The separation of Ms. Souza from her son violates substantive due process

because it furthers no legitimate purpose and no compelling governmental interest.
78.

Moreover, Ms. Souza and her son were denied procedural due process when they

were forcibly separated and Ms. Souza was not allowed to be reunited with her son.
79.

On June 6, 2018, District Judge Dana M. Sabraw of the United States District

Court for the Southern District of California denied a motion brought by ICE to dismiss similar
due process claims brought on behalf of parents who had been forcibly separated from their
children. See Ms. L. v. U.S. Immigration and Customs Enforcement, --- F. Supp. 3d ---, 2018
WL 2725736, at *12 (S.D. Cal. June 6, 2018) (describing allegations of “brutal, offensive”
governmental conduct that “shocks the conscience” and “violates Plaintiffs’ constitutional right
to family integrity”). For the same reasons identified by Judge Sabraw, the facts alleged above
demonstrate that Defendants violated the due process rights of Ms. Souza and her son.

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COUNT III
(Petition for Writ of Mandamus)
80.

All of the foregoing allegations are repeated and realleged as though fully set

forth herein.
81.

Federal district courts have original jurisdiction to hear “any action in the nature

of mandamus to compel an officer or employee of the United States or any agency thereof to
perform a duty owed to the plaintiff.” 28 U.S.C. § 1361; see also Samirah v. Holder, 627 F.3d
652, 661 (7th Cir. 2010) (remanding case to district court to issue writ of mandamus
commanding Attorney General to take necessary steps to enable alien to reenter United States).
82.

Here, as explained above, Defendants owe a duty to Ms. Souza and her son to

immediately release D.F. into Ms. Souza’s custody. It is therefore appropriate for this Court to
issue a writ of mandamus commanding the Defendants to immediately release Ms. Souza’s son.
COUNT IV
(Violation of Administrative Procedures Act)
83.

All of the foregoing allegations are repeated and realleged as though fully set

forth herein.
84.

Defendants have violated the APA on two separate grounds, set forth below as

Count IV(a) and Count IV(b).
Count IV(a) – Treatment of D.F. As An “Unaccompanied Alien Child”
85.

Under the APA, “final agency action for which there is no other adequate remedy

in court [is] subject to judicial review.” 5 U.S.C. § 704. Upon judicial review, “agency action,
findings, and conclusions” shall be “h[e]ld unlawful and set aside” when they are “arbitrary,

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capricious, an abuse of discretion, or otherwise not in accordance with law,” or “unsupported by
substantial evidence.” 5 U.S.C. §§ 706(2)(A), (E).
86.

The ORR’s decision to classify D.F. as an “unaccompanied minor,” as well as its

decision to continue to detain D.F. as if he were an “unaccompanied minor,” are final decisions
for purposes of the APA. And because the ORR erroneously classified D.F.—who entered the
United States accompanied by a parent—as an “unaccompanied minor,” and continues to subject
him to procedures intended only for children who enter this country without parents, Plaintiffs
suffer consequences that only this Court can rectify.
87.

These decisions and actions are arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with the law because, among other reasons, they go beyond the
ORR’s statutory grant of authority provided by Congress and do not comply with the ORR’s
internal procedures.
88.

Plaintiffs respectfully request that this Court enter an order compelling

Defendants to immediately cease characterizing D.F. as an “unaccompanied minor,” to
immediately cease subjecting D.F. to procedures intended for children who do not have a parent
in the United States, and immediately release D.F. into the custody of his mother, Ms. Souza.
Count IV(b) – Application of ORR’s Rules
89.

Because the ORR has improperly classified D.F. as an “unaccompanied minor,”

ORR is requiring that Ms. Souza satisfy the ORR’s rules for the release of unaccompanied
minors before the ORR will return D.F. to his mother. But the ORR rules being applied were
never intended to address situations where an accompanied minor is removed from a parent
while that parent remains in the United States pending an asylum hearing. Accordingly, ORR’s
decision to apply its rules for the return of “unaccompanied minors” to D.F, an accompanied
minor, violates the APA.
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90.

Congress has charged HHS and, by extension, ORR, with “promptly placing”

unaccompanied minors in its custody “in the least restrictive setting that is in the best interest of
the child[.]” 8 U.S.C. § 1232(c). In turn, ORR has established rules and procedures (hereafter
“ORR Rules”) for the purported “Safe and Timely Release Process” for “Children Entering the
United States Unaccompanied.”4
91.

Certain ORR Rules were amended in June 2018 in connection with a so-called

“zero tolerance” policy implemented by the HHS.5 Purportedly pursuant to those amended rules,
ORR has refused to return D.F. to his mother unless, among other things, Ms. Souza, and the two
relatives she is currently staying with, submit to a fingerprinting process. See ORR Rules 2.5.1.
92.

Ms. Souza was initially informed by ORR or its agents that the earliest available

appointment for fingerprinting was July 6, 2018, and that after the fingerprinting is completed, it
will take approximately 20+ days to process her application.

Ms. Souza was already

fingerprinted when she was first taken into custody, but was informed that her relatives must also
submit to fingerprinting before her son can be released. After ORR learned this Complaint
would be filed, the ORR continued to insist that Ms. Souza’s relatives also be fingerprinted, but
offered to start the fingerprinting process one week earlier: June 29, 2018. Still, the earliest that
ORR could reunite Ms. Souza with her nine year-old son is late July 2018.
4

See Office of Refuge Resettlement, Children Entering the United States Unaccompanied, Section
Two,
available
at
https://www.acf.hhs.gov/orr/resource/children-entering-the-united-statesunaccompanied-section-2#2.2.3. “These policies are posted on ORR's website but are not promulgated
through any formal agency rule-making process and do not appear to have any binding effect.” Flores v.
Sessions, 862 F.3d 863, 871 (9th Cir. 2017).
5

HHS’s Deputy Secretary’s statement from May 28, 2018 announced: “[F]amilies with children
that enter into the United States illegally will be separated when the parent is transferred to federal
custody for breaking United States law. If parents do not wish to be separated from their children, they
should not violate the laws of the United States[.]” United States Department Of Health and Human
Services, Statement by HHS Deputy Secretary on Unaccompanied Alien Children Program (available at
https://www.hhs.gov/about/news/2018/05/28/statement-hhs-deputy-secretary-unaccompanied-alienchildren-program.html).

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93.

Given that D.F. was not an “unaccompanied minor” in the first instance, and in

light of the ORR’s mission to “promptly place” minors into “the least restrictive setting that is in
the best interest of the child,” as well as the terms of the Flores Settlement (infra), the ORR’s
insistence that the D.F. remain separated from his mother while Ms. Souza (and other relatives)
complete a month-long fingerprinting process is arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with the law.
94.

ORR’s decision to impose this requirement is a final decision for purposes of the

APA. As a result of the ORR’s unlawful decision, Plaintiffs suffer consequences that only this
Court can rectify.
95.

Plaintiffs respectfully request that this Court enter an order compelling

Defendants to immediately refrain from imposing amended ORR Rule 2.5.1’s fingerprinting
requirement as a condition of returning D.F. to his mother.
96.

Alternatively, Plaintiffs request that the Court require ORR to apply the ORR

Rules as they were at the time Plaintiffs were taken into custody—May 30, 2018—rather than
the amended rules implemented in connection with the so-called “zero tolerance” policy. While
the pre-amendment rules also contained a fingerprinting requirement, that requirement was more
narrowly focused and, for that reason, may not result in an additional 30-day (or more) delay to
in the family reunification process.
COUNT V
(Violation of the Flores Settlement Agreement)
97.

All of the foregoing allegations are repeated and realleged as though fully set

forth herein.

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98.

D.F.’s detention in Chicago, Illinois at a HA facility violates the Settlement

Agreement in Flores v. Sessions, No. 85-cv-4544 (C.D. Cal) (“Flores Settlement” or
“Settlement”). The United States Department of Justice entered into the Flores Settlement in
January 1997 and it continues to be binding upon U.S. government agencies, including ICE.
99.

The Flores Settlement relates to an agreement that sets forth a “nationwide policy

for the detention, release, and treatment of minors in the custody of [Immigration and
Naturalization Services] INS” which requires INS to treat “all minors in its custody with dignity,
respect and special concern for their particular vulnerability as minors.” See Flores Settlement at
¶¶ 9-11. A “minor” is “any person under the age of eighteen (18) years who is detained in the
legal custody of the INS.” See id. ¶ 4; see Flores v. Lynch, 828 F.3d 898, 905-6 (9th Cir. 2016).
100.

Paragraph 24(B) of the Flores Settlement sets forth a minor’s right to challenge a

determination to place the minor in a particular facility when in government custody. The minor
may seek judicial review in “any United States District Court with jurisdiction and venue over
the matter to challenge the placement determination.” See Flores Settlement at ¶ 24(B).
101.

This action is brought on behalf of D.F., by D.F.’s next friend and mother, Ms.

Souza, to enforce the Flores Settlement, to secure D.F.’s release, and to allow the reunification
of D.F. and his mother.
102.

Defendants’ policies, practices, acts, and omissions with respect to D.F.’s

continued detention deprive D.F. and his mother of their rights under the Flores Settlement.
103.

Paragraph 14 of the Flores Settlement requires that “[w]here the INS determines

that the detention of the minor is not required either to secure his or her timely appearance before
the INS or the immigration court, or to ensure the minor's safety or that of others, the INS shall
release a minor from its custody without unnecessary delay[.]” See Flores Settlement at ¶ 14.

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104.

Paragraph 14 also sets forth the following “order of preference” for custodianship

of a released minor:
a. a parent;
b. a legal guardian;
c. an adult relative (brother, sister, aunt, uncle, or grandparent);
d. an adult individual or entity designated by the parent or legal guardian as capable
and willing to care for the minor's well-being in (i) a declaration signed under
penalty of perjury before an immigration or consular officer or (ii) such other
document(s) that establish(es) to the satisfaction of the INS, in its discretion, the
affiant's paternity or guardianship;
e. a licensed program willing to accept legal custody; or
f. an adult individual or entity seeking custody, in the discretion of the INS, when it
appears that there is no other likely alternative to long term detention and family
reunification does not appear to be a reasonable possibility.
105.

Moreover, the Flores Settlement requires INS to “place each detained minor in

the least restrictive setting appropriate to the minor's age and special needs, provided that such
setting is consistent with its interests to ensure the minor's timely appearance before the INS and
the immigration courts and to protect the minor's well-being and that of others.” See Flores
Settlement at ¶ 11 (emphasis added).
106.

Ms. Souza has been and continues to be available to provide care and custody for

D.F. To date, the government has made no attempts to reunite D.F. and his mother.
107.

On June 25, 2018, undersigned counsel contacted the Office of the U.S. Attorney

in Chicago, Illinois via telephone and facsimile and provided notice of Flores Settlement
violations pursuant to Paragraph 37 of the Flores Settlement. See Flores Settlement at ¶ 37.
108.

There are three categories for Defendants’ violations of the Flores Settlement.

First, the government forcibly separated D.F. from his mother in violation of Paragraph 14 of the

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Flores Settlement which gives priority to placing a child with a parent, regardless of the parent’s
immigration status, over placing the child in a licensed program. See Flores Settlement at ¶ 14.
109.

Second, there have been no attempts to reunify D.F. with his mother, nor have

Defendants engaged in any individualized custody determinations concerning D.F. with regards
to family unity. Despite D.F.’s mother being capable and willing to take custody of her child,
and where detention of D.F. with the ORR is neither required nor authorized by law, the
government has taken no action towards—and therefore, has unnecessarily delayed in—reuniting
D.F. with his mother. See id.
110.

Third, INS has failed to place D.F. in the “least restrictive setting” that is in the

best interests of the child—i.e., with his mother—in violation of Paragraph 11 of the Flores
Settlement. See id. at ¶ 11.
111.

The forcible separation of D.F. from his mother is an intentional interference with

parental rights. See Flores Settlement at ¶ 24. State laws provide substantive and procedural
protections of the rights of parents to care for their children, and of children to be with their
parents, such that children may only be separated from their parents as a matter of last resort.
112.

The Flores Settlement permits a child to contest the placement decision of

Defendants. D.F., by and through his mother, asserts this right and alleges that his placement
thousands of miles away from his accompanying parent is improper. Flores Settlement at ¶ 24.
113.

As a proximate result of defendants’ policies, practices, acts, and omissions, D.F.

has suffered and will continue to suffer immediate and irreparable injury, including physical,
psychological, and emotional injury. The injunctive relief sought by D.F. is necessary to prevent
continued and further injury.

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PRAYER FOR RELIEF
Plaintiffs respectfully request that the Court enter a judgment against Defendants and
award the following relief:
A.

Declare that D.F. is not an “unaccompanied alien child” under 6 U.S.C. §§ 279(a),

279(g)(2) or an “unaccompanied minor” under 45 C.F.R. § 400.111;
B.

Declare that Defendants have no basis to hold or maintain custody over D.F.;

C.

Declare that Defendants must immediately release D.F. into the custody of his

mother, Ms. Souza;
D.

Hold that Defendants violated the due process rights of Ms. Souza and D.F.;

E.

Issue a writ of mandamus requiring that Defendants immediately release D.F. into

the custody of his mother, Ms. Souza;
F.

Hold that Defendants violated the Administrative Procedures Act;

G.

Hold that Defendants violated the Flores Settlement Agreement;

H.

Preliminarily and permanently enjoin Defendants from continuing to separate Ms.

Souza from her minor son, D.F.;
I.

Enjoin Defendants from removing Ms. Souza from the country until she is

reunited with her minor son, D.F.;
J.

Damages in an amount to be determined at trial;

K.

Require Defendants to pay Plaintiffs’ reasonable attorneys’ fees and costs; and

L.

Order all relief that is just and proper.

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Dated: June 26, 2018

Respectfully submitted,
/s/ Britt M. Miller
Britt M. Miller
Christopher S. Comstock
Michael Bornhorst
Priya A. Desai
MAYER BROWN LLP
71 South Wacker Drive
Chicago, IL 60606
(312) 782-0600
(312) 701-7711
bmiller@mayerbrown.com
ccomstock@mayerbrown.com
mbornhorst@mayerbrown.com
pdesai@mayerbrown.com

Jesse M. Bless (pro hac vice forthcoming)
LAW OFFICES OF JEFF GOLDMAN
125 Washington Street, Suite 204
Salem, MA 01970
(987) 219-5040
(617) 977-0928
jesse@jeffgoldmanimmigration.com

Counsel for Plaintiffs

24