Case 1:18-cv-01458-PLF Document 37 Filed 07/12/18 Page 1 of 4

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

Civil Action No. 1:18-cv-1458 (PLF)

v.
KIRSTJEN NIELSEN, et al.,
Defendants.

PLAINTIFFS’ SUBMISSION REGARDING
THE JULY 2, 2018 OPINION IN DAMUS v. NIELSEN
Pursuant to the Court’s July 6, 2018 Order, Plaintiffs M.G.U., A.P.F., and E.F.
(“Plaintiffs”), by and through their undersigned counsel, herein address the relevance to this
action of Judge Boasberg’s opinion in Damus, et al. v. Nielsen, et al., No. 18-cv-578 (JEB), 2018
WL 3232515 (D.D.C.) (July 2, 2018) (the “Damus Opinion” or “Damus Op.”) as well as Judge
Contreras’s opinion in a similar case, Aracely, R. v. Nielsen et al., No. 17-cv-1976 (RC), 2018
WL 3243977 (D.D.C) (July 3, 2018) (the “Aracely, R. Opinion” or “Aracely, R. Op.”).
The Damus action alleges that the U.S. Department of Homeland Security
(“DHS”) has a policy of using detention of asylum seekers as a means of deterring others from
seeking refuge in the United States in violation of the Administrative Procedure Act and the Fifth
Amendment. Damus Compl., Dkt No. 1 at ¶¶ 1, 70, 74, 80. The Damus plaintiffs allege that to
deter immigration, five ICE field offices enforced this policy and engaged in “systematic

 Case 1:18-cv-01458-PLF Document 37 Filed 07/12/18 Page 2 of 4

detention,” rather than providing the individualized determinations required by the U.S. Customs
and Immigration Enforcement’s (“ICE”) Parole Directive. 1 Damus Op. at *1, *4.
On July 2, 2018, Judge Boasberg granted the Damus plaintiffs’ motions for
preliminary injunction and provisional class certification. Damus Order, Dkt. No. 33 at 1. Judge
Boasberg enjoined defendants from denying parole “absent an individualized determination,
through the parole process, that [a] provisional class member presents a flight risk or a danger to
the community.” Id. Judge Boasberg also ordered that parole determinations be based on
“specific facts of each . . . case,” and “conform to all of the substantive and procedural
requirements” of the Parole Directive. Id. at 2.
In Aracely, R., several asylum-seekers filed suit against DHS alleging that the
agency has an unwritten policy of considering immigration deterrence during the parole process.
Aracely, R. Op. at *4. On July 3, 2018, Judge Contreras granted in part Plaintiff’s application for
a preliminary injunction, noting that Defendants’ alleged policy of considering immigration
deterrence “likely played a significant role in the repeated denials of Plaintiffs’ parole requests”
in violation of the APA’s protections against arbitrary and capricious government action.
Aracely, R. Op. at *25.

1

ICE Directive 11002.1, Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture
(Dec. 8, 2009) (the “Parole Directive”), available at https://www.ice.gov/doclib/dro/pdf/11002.1-hdparole_of_arriving_aliens_found_credible_fear.pdf. Under federal law, an alien claiming asylum who
establishes a credible fear of persecution need not be detained, and can be paroled or released in the
discretion of the Attorney General. 8 U.S.C. § 1182(d)(5)(A). The Parole Directive explains ICE’s
interpretation of “public benefit” pursuant to 8 U.S.C. § 1182(d)(5)(A) and 8 C.F.R. § 212.5(b). Damus Op.
at *2. The Parole Directive provides that “[e]ach alien’s eligibility for parole should be considered and
analyzed on its own merits and based on the facts of the individual alien’s case,” and that if an asylumseeker establishes his identity and that he presents neither a flight risk nor a danger to the public, “[ICE]
should, absent additional factors . . . parole the alien on the basis that his or her continued detention is not in
the public interest.” Damus Op. at *2 (quoting Parole Directive at ¶ 6.2) (quotation marks omitted, emphasis
in original).

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Plaintiffs submit that the rulings in Damus and Aracely, R. are relevant to the
issues in this case in two ways. First, both cases contain allegations of and evidentiary support
for the Government’s improper motivation of deterring lawful immigration. See Damus Op. at
15, see also Aracely, R., at *25. Plaintiffs here allege that Defendants are improperly motivated
by the same deterrence consideration. See e.g. Dkt. No. 1, ¶ 93 (“Defendants expect reports of
[Plaintiffs’ agony] to deter . . . legal immigration from people who have a right to seek asylum . .
. .”); Dkt. No. 13 at 5-7 (evidence that family separation was intended to deter immigration);
Dkt. No. 13 at 14-16 (deterrence is punishment proscribed by Due Process). The Damus and
Aracely, R. cases support Plaintiffs’ contention that Defendant’s intend to punish asylum-seekers
by forcibly separating them from their children.
Second, the Damus and Aracely, R. opinions may impact how reunification occurs
in Plaintiffs’ cases. Defendants agree that reunification may be accomplished by releasing
parents on Alternatives to Detention. See ECF No. 27-3, ¶ 16. Where Defendants choose to
release parents over the option of family detention, to the extent Defendants are required to
determine whether parents are eligible for parole, Defendants are bound by the Parole Directive
described in Damus and Aracely, R. and prohibited from considering whether prolonged
detention and parole denial would further deter immigration. See Aracely, R., at *28 (“In
considering deterrence as a factor in parole determinations, ICE officials are therefore
circumventing the factors laid out in the binding [Parole Directive]” in violation of the APA.).
Respectfully submitted,
Dated: Washington, D.C.
July 11, 2018
TEXAS RIOGRANDE LEGAL AID, INC.
/s/ Jerome Wesevich
Jerome Wesevich (D.D.C. Bar No. TX0125)
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 Case 1:18-cv-01458-PLF Document 37 Filed 07/12/18 Page 4 of 4

Amanda Chisholm (Texas Bar No. 24040684)
Peter McGraw (Texas Bar No. 24081036)
1331 Texas Avenue
El Paso, Texas 79901
(915) 241-0534
jwesevich@trla.org
achisholm@trla.org
pmcgraw@trla.org

PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP
David J. Ball (DC Bar No. 460055)
2001 K Street, NW
Washington, DC 20006-1047
(202) 223-7352
dball@paulweiss.com
Steven C. Herzog (admitted pro hac vice)
Meredith A. Arfa (admitted pro hac vice)
Anand Sithian (admitted pro hac vice)
Katherine Kelly Fell (admitted pro hac vice)
1285 Avenue of the Americas
New York, NY 10019-6064
(212) 373-3000
sherzog@paulweiss.com
marfa@paulweiss.com
asithian@paulweiss.com
kfell@paulweiss.com
Attorneys for Plaintiffs

CERTIFICATE OF SERVICE
Pursuant to LCvR 5.3, I hereby certify that, on July 11, 2018, I caused to be
electronically filed a copy of the foregoing Plaintiffs’ Submission Regarding the July 2, 2018
Opinion in Damus v. Nielsen to be served on all counsel of record using the Court’s CM/ECF
system.
/s/ Jerome Wesevich
Jerome Wesevich (D.D.C. Bar No. TX0125)
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