Case 2:85-cv-04544-DMG-AGR Document 445 Filed 06/29/18 Page 1 of 7 Page ID #:17967

1
2
3
4
5
6
7
8
9
10
11

MICHAEL K.T. TAN*
mtan@aclu.org
JUDY RABINOVITZ*
jrabinovitz@aclu.org
ACLU IMMIGRANTS’ RIGHTS PROJECT
125 Broad Street, 18th Floor
New York, New York 10004-2400
Telephone: (212) 549-2618
Facsimile: (212) 549-2654
AHILAN T. ARULANANTHAM (SBN 237841)
aarulanantham@aclu-sc.org
ACLU FOUNDATION OF SOUTHERN CALIFORNIA
1313 West 8th Street
Los Angeles, CA 90017
Telephone: (213) 977-5232
Facsimile: (213) 977-5297
Attorneys for Amici Curiae
*Pro hac vice application forthcoming

12

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

13
14
15
16
17
18
19
20
21
22

JENNY LISETTE FLORES, et
al.,
Plaintiffs,
v.
JEFFERSON B. SESSIONS,
Attorney General, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

Case No. 85-4544-DMG (Px)
EX PARTE APPLICATION TO FILE
BRIEF OF AMICI CURIAE IN
SUPPORT OF PLAINTIFFS’
OPPOSITION TO THE
GOVERNMENT’S EX PARTE
APPLICATION FOR RELIEF

23
24
25
26
27
28
EX PARTE APPLICATION TO FILE BRIEF AS AMICI CURIAE

 Case 2:85-cv-04544-DMG-AGR Document 445 Filed 06/29/18 Page 2 of 7 Page ID #:17968

1

The American Civil Liberties Union Immigrants’ Rights Project (“IRP”) and

2

ACLU Foundation of Southern California hereby submit this ex parte application

3

for an order granting leave to participate as amici curiae in support of Plaintiffs’

4

Opposition to the government’s ex parte application for relief from the Flores

5

Settlement Agreement. See ECF No. 435. The proposed brief of amici curiae is

6

attached to this application as Exhibit A.

7

Pursuant to Local Civil Rules L.R. 7-19 and 7-19.1, amici contacted counsel

8

for Plaintiffs and the government in in order to ascertain the parties’ positions on

9

this application. Plaintiffs and the government both consented to the participation

10

of amici.1

11

Amici submit the following points in support of their application:

12

1.

13

from the Flores Settlement Agreement (hereinafter, “Flores Agreement” or

14

“Agreement”). ECF No. 435. In its brief in support of its motion, the government

15

argues, among other things, that the Flores Agreement and this Court’s July 2015

16

Order purportedly have “precipitated a destabilizing migratory crisis” by sending a

17

message to migrant families that they will not be detained and deported if they

18

come to the United States. ECF No. 435-1 at 2 (referring to ECF No. 177). The

19

government claims that modification of the Agreement to permit family detention

20

during the pendency of immigration proceedings is necessary to “dispel[] such

21

expectations, and deter[] others from unlawfully coming to the United States.”

22

ECF No. 435-1 at 13 (internal quotation marks and citation omitted). The

23

government asks that this Court (1) permit U.S. Immigration and Customs

24

1

25
26
27
28

On June 21, 2018, the government filed an ex parte application for relief

Amici contacted August E. Flentje, U.S. Department of Justice, Civil Division,
950 Pennsylvania Avenue NW Room 3613, Washington, DC 20530-0009, Phone:
202-514-3309, Email: august.flentje@usdoj.gov; and Peter A. Schey, Center For
Human Rights & Constitutional Law, 256 South Occidental Boulevard, Los
Angeles,
CA
90057,
Phone:
213-388-8693,
Email:
pschey@centerforhumanrights.org.
EX PARTE APPLICATION TO FILE BRIEF AS AMICI CURIAE

1

 Case 2:85-cv-04544-DMG-AGR Document 445 Filed 06/29/18 Page 3 of 7 Page ID #:17969

1

Enforcement (“ICE”) to detain parents and children in ICE family detention

2

centers pending their immigration proceedings and (2) waive the Flores

3

Agreement’s state licensure requirements for family detention facilities. ECF No.

4

435-1 at 4.

5

2.

6

government’s motion. This Court has authority to allow a nonparty to participate as

7

amicus in a case and broad discretion in deciding whether to permit such

8

participation. See, e.g., Hoptowit v. Ray, 682 F.2d 1237, 1260 (9th Cir. 1982),

9

overruled on other grounds by Sandin v. Conner, 515 U.S. 472 (1995); Ellsworth

10

Assocs., Inc. v. United States, 917 F. Supp. 841, 846 (D.D.C. 1996); In re Roxford

11

Foods Litig., 790 F. Supp. 987, 997 (E.D. Cal. 1991). “Generally, courts have

12

exercised great liberality in permitting an amicus curiae to file a brief in a pending

13

case . . . .” Id. (quoting United States v. Louisiana, 751 F. Supp. 608, 620 (E.D. La.

14

1990)). Courts typically permit amicus participation if the information offered is

15

“timely and useful.” Ellsworth Assocs., 917 F. Supp. at 846.

16

3.

17

constitutional and legal limits on immigration detention, and on the government’s

18

use of family detention in particular. See id. (granting amici’s request to participate

19

because they “have a special interest in this litigation as well as a familiarity and

20

knowledge of the issues raised therein that could aid in the resolution of this

21

case”). The ACLU is a nationwide, nonprofit, nonpartisan organization with more

22

than 1.75 million members dedicated to the principles of liberty and equality

23

embodied in the Constitution and this nation’s civil rights laws. IRP engages in a

24

nationwide program of litigation and advocacy to enforce and protect the

25

constitutional and civil rights of immigrants. The ACLU Foundation of Southern

26

California is the Southern California affiliate of the ACLU. IRP and the ACLU of

27

Southern California have litigated numerous major cases on immigration detention,

Amici submit the proposed brief to assist the Court in adjudication of the

Amici have a longstanding interest and expertise in matters regarding the

28
EX PARTE APPLICATION TO FILE BRIEF AS AMICI CURIAE

2

 Case 2:85-cv-04544-DMG-AGR Document 445 Filed 06/29/18 Page 4 of 7 Page ID #:17970

1

either as counsel of record or counsel for amicus curiae. See, e.g., Jennings v.

2

Rodriguez, 138 S. Ct. 830 (2018). IRP has particular interest in and experience

3

with family detention. IRP serves as class counsel in RILR v. Johnson, 80 F. Supp.

4

3d 164 (D.D.C. 2015), a nationwide class action lawsuit challenging the

5

government’s detention of migrant families (including many Flores class

6

members) for the purpose of deterring future migration to the United States, and

7

won a preliminary injunction forbidding the government from detaining

8

individuals on deterrence grounds. See RILR v. Johnson, 80 F. Supp. 3d 164

9

(D.D.C 2015).
Amici’s proposed brief offers information and legal argument that will assist

10

4.

11

this Court’s evaluation of the government’s motion. The proposed brief makes two

12

main points:

13

5.

14

were correct—general deterrence is not a permissible purpose for family detention

15

because this form of detention is civil rather than criminal in nature. The U.S.

16

District Court for the District of Columbia held exactly that, in the context of

17

family detention, in RILR. Based on controlling Supreme Court precedent, RILR

18

concluded that the detention of individuals for the purpose of the deterring the

19

migration of others to the United States raises serious due process concerns and

20

violates the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1226(a). The

21

Due Process Clause and the INA permit detention based only on individualized

22

characteristics such as flight risk and danger to the community. Where the

23

government lacks an individualized basis to detain, incarceration in this context is

24

impermissible. See RILR, 80 F. Supp. 3d at 186-90. Moreover, the government

25

itself agreed not to detain families based on general deterrence as a condition of

First, amici explain that—even assuming the government’s factual claims

26
27
28
EX PARTE APPLICATION TO FILE BRIEF AS AMICI CURIAE

3

 Case 2:85-cv-04544-DMG-AGR Document 445 Filed 06/29/18 Page 5 of 7 Page ID #:17971

1

dissolving the RILR injunction and administratively closing the case.2 Thus, even if

2

the government were correct that Flores and this Court’s July 2015 Order have

3

impacted migration patterns, it still would be prohibited—by the Constitution, the

4

immigration laws, and its own policy—from imprisoning families to deter other

5

migrants from coming to the United States. See Ex. A, Proposed Br. of Amici

6

Curiae, Point I.A.

7

6.

8

here. It is unclear why the government has any legitimate interest in deterring the

9

families who primarily benefit from the release provisions of the Flores

10

Agreement—namely, asylum seekers whom the immigration authorities have

11

found to have credible asylum claims that must be heard in full immigration court

12

hearings inside the United States. And the government has failed to provide any

13

probative evidence either of the “migratory crisis” supposedly precipitated by

14

Flores and this Court’s July 2015 Order, or that long-term family detention—if

15

permitted by this Court—would effectively deter migrants from seeking asylum in

16

the United States. In short, the government has failed to show that modification of

17

the Flores Agreement is warranted. See Ex. A, Proposed Br. of Amici Curiae,

18

Point I.B.

19

7.

20

Agreement did not require that children be released promptly from custody, then

21

the government could subject the parents and children to prolonged detention

22

pending completion of their removal proceedings, and thereby avoid the need for

23

family separation. See, e.g., ECF No. 435-1 at 13. However, the government may

24

not subject families to such categorical detention. Instead, the Due Process Clause,

25

INA, and its implementing regulations all require that the government make an

In any event, the government has failed to justify its interest in deterrence

Second, the government’s motion appears to assume that if the Flores

26
27
28

2

See Notice to the Court, 1 (ECF No. 40) and Order, 1 (ECF No. 43), RILR v.
Johnson, 80 F. Supp. 3d 164 (D.D.C. 2015) (No. 1:15-cv-00011-JEB).
EX PARTE APPLICATION TO FILE BRIEF AS AMICI CURIAE

4

 Case 2:85-cv-04544-DMG-AGR Document 445 Filed 06/29/18 Page 6 of 7 Page ID #:17972

1

individualized determination that detention is warranted based on flight risk and

2

danger. See Ex. A, Proposed Br. of Amici Curiae, Point II.

3

8.

4

proposed brief the same day that Plaintiffs filed their opposition to the

5

government’s ex parte motion. The government therefore has the same amount of

6

time to review the brief and respond before any oral argument or ruling on the

7

motion.

8

9.

9

application for leave to file the proposed brief in support of Plaintiffs’ opposition

10

The proposed brief is timely. Amici have filed this ex parte application and

Accordingly, amici respectfully request that this Court grant their ex parte

to the government’s ex parte application for relief.

11
12

Respectfully submitted,

13

ACLU IMMIGRANTS’ RIGHTS

14

PROJECT

15

ACLU FOUNDATION OF SOUTHERN

16

CALIFORNIA

17
18
19
20

Dated: June 29, 2018

By:

/s/ Michael K.T. Tan
MICHAEL K.T. TAN
JUDY RABINOVITZ
AHILAN T. ARULANANTHAM
Attorneys for Amici Curiae

21
22
23
24
25
26
27
28
EX PARTE APPLICATION TO FILE BRIEF AS AMICI CURIAE

5

 Case 2:85-cv-04544-DMG-AGR Document 445 Filed 06/29/18 Page 7 of 7 Page ID #:17973

1
2

CERTIFICATE OF SERVICE

3

I hereby certify that on June 29, 2018, I electronically filed the foregoing

4

documents and attachments with the Clerk for the United States District Court for

5

the Central District of California by using the CM/ECF system. A true and correct

6

copy of this brief has been served via the Court’s CM/ECF system on all counsel

7

of record.

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

/s/ Michael K.T. Tan
Michael K.T. Tan