Case 2:18-cv-00928-MJP Document 8 Filed 07/15/18 Page 1 of 42 The Honorable Marsha J. Pechman 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE YOLANY PADILLA, on behalf of herself and her 6-year-old son J.A.; IBIS GUZMAN, on behalf of herself and her 5-year-old son R.G.; BLANCA ORANTES, on behalf of herself and her 8-year-old son A.M.; BALTAZAR VASQUEZ, on behalf of himself; Plaintiffs-Petitioners, v. No. 2:18-cv-928 MJP AMENDED COMPLAINT: CLASS ACTION FOR INJUNCTIVE AND DECLARATORY RELIEF U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (“ICE”); U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); U.S. CITIZENSHIP AND IMMIGRATION SERVICES (“USCIS”); EXECUTIVE OFFICE FOR IMMIGRATION REVIEW (“EOIR”); U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES (“HHS”); OFFICE OF REFUGEE RESETTLEMENT (“ORR”); THOMAS HOMAN, Acting Director of ICE; KIRSTJEN NIELSEN, Secretary of DHS; KEVIN K. McALEENAN, Acting Commissioner of CBP; L. FRANCIS CISSNA, Director of USCIS; ALEX M. AZAR II, Secretary of HHS; SCOTT LLOYD, Director of ORR; MARC J. MOORE, Seattle Field Office Director;, ICE, JEFFERSON BEAUREGARD SESSIONS III, United States Attorney General; LOWELL CLARK, warden of the Northwest Detention Center in Tacoma, Washington; CHARLES INGRAM, warden of the Federal Detention Center in SeaTac, Washington; DAVID SHINN, warden of the Federal Correctional Institute in Victorville, California; Defendants-Respondents. 26 AMENDED COMPLAINT - 1 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 8 Filed 07/15/18 Page 2 of 42 1 I. 2 1. INTRODUCTION This lawsuit challenges the legality of the following three parts of the federal 3 government’s zero-tolerance policy with respect to persons fleeing for safety and asylum in the 4 United States: (1) family separations, (2) credible fear interviews and determinations, and (3) the 5 related bond hearings. 6 A. 7 Family Separations 2. This lawsuit challenges the legality of the government’s zero-tolerance practice of 8 forcibly ripping children away from parents seeking asylum. The day after plaintiffs filed this 9 suit in the Western District of Washington, however, a federal court in the Southern District of 10 California issued a nationwide preliminary injunction Order against this forcible separation. 11 (Ms. L v. ICE, S.D.Cal. case no. 18cv0428 DMS (MDD), docket no. 83). 12 3. With this Amended Complaint, plaintiffs confirm that they are not waiving their 13 previously-asserted claims for relief with respect to forcible separation, but will not further 14 pursue those claims in this case pending defendants’ promised compliance with the Ms. L v. ICE 15 Order. 16 B. 17 Credible Fear Interviews & Determinations 4. This lawsuit also challenges the legality of the government’s zero-tolerance 18 practice of excessively prolonging the detention of asylum seekers placed in expedited removal 19 proceedings by failing to promptly provide them their credible fear interview and determination. 20 Federal law requires that persons who have asked for asylum or expressed a fear of persecution 21 must be scheduled for a “credible fear interview” with a DHS official to determine whether that 22 person should be allowed to proceed with applying for asylum because he or she has a credible 23 fear of persecution. If the interviewer determines the asylum seeker does have a credible fear of 24 persecution, the government assigns the case to the federal immigration court for hearings to 25 adjudicate the merits of that person’s asylum claim. If the interviewer determines the asylum 26 seeker does not have a credible fear of persecution, the asylum seeker can appeal that AMENDED COMPLAINT - 2 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 8 Filed 07/15/18 Page 3 of 42 1 determination to a federal immigration judge. But in either case, the federal government detains 2 the asylum seeker until it determines that she or he has a credible fear of persecution. The Ms. L 3 v. ICE Order did not address the federal government’s lengthy delays in conducting these 4 statutorily required credible fear interviews and or determinations. 5. 5 With this Amended Complaint, plaintiffs clarify and confirm their full pursuit of 6 their claims with respect to defendants’ excessively prolonging the detention of asylum seekers 7 by failing to promptly provide the credible fear interviews and determinations required by 8 federal law. 9 C. 10 Bond Hearings 6. This lawsuit also challenges the legality of the government’s related 11 zero-tolerance practice of excessively prolonging the detention of asylum seekers by failing to 12 promptly conduct the bond hearings required by federal law after an asylum seeker’s positive 13 completion of their credible fear interview. Federal law requires that if an asylum seeker enters 14 the United States at a location other than a designated “Port Of Entry” and is determined to have 15 a credible fear of persecution in his or her credible fear interview, that asylum seeker is entitled 16 to an individualized bond hearing before an immigration judge to determine reasonable 17 conditions for that person’s release from federal detention while he or she awaits the many 18 months it takes to adjudicate his or her asylum claim (e.g., a reasonable bond amount or parole 19 without posting a monetary bond). This bond hearing must comport with constitutional 20 requirements. Yet the government does not establish any timeline for setting this hearing, and as 21 a matter of practice, does not even audio record or provide a transcript of this hearing for appeal 22 or appellate review (unlike other hearings in removal proceedings before the immigration judge). 23 The Ms. L v. ICE Order did not address the federal government’s failure to conduct prompt bond 24 hearings that comport with constitutional requirements. 25 26 AMENDED COMPLAINT - 3 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 8 Filed 07/15/18 Page 4 of 42 7. 1 With this Amended Complaint, plaintiffs specify their claims with respect to 2 defendants’ excessively prolonging the detention of asylum seekers by failing to promptly 3 conduct the bond hearings required by federal law. 4 D. United States Constitution 8. 5 The Bill of Rights prohibits the federal government from depriving any person of 6 their liberty without due process of law (U.S. Constitution, 5th Amendment). The Bill of Rights 7 also prohibits the federal government from imposing or inflicting on any person any excessive 8 bail or any cruel punishments. (U.S. Constitution, 8th Amendment). 9 9. Asylum seekers who cross the United States border are persons. They 10 accordingly have a constitutionally protected liberty interest in (1) remaining together as a 11 family, (2) not being imprisoned for an unreasonable time awaiting their credible fear interview 12 and determination, and (3) not being imprisoned without the opportunity for a prompt bond 13 hearing that comports with constitutional requirements. And especially with respect to the 14 federal government’s avowed zero-tolerance policy to deter criminal violations of federal 15 immigration laws, asylum seekers also have a constitutionally protected interest in (4) not being 16 subjected to prolonged imprisonment for deterrence or penalty reasons unrelated to adjudicating 17 the merits of their individual asylum claim, and (5) not being subjected to cruel punishments 18 though unreasonably delayed or denied bond or parole. 19 10. With this Amended Complaint, plaintiffs specify with more particularity how 20 defendants’ implementation of the federal government’s zero-tolerance policy with respect to 21 persons fleeing for safety and seeking asylum in the United States violates the United States 22 Constitution. 23 E. 24 25 Federal Law 11. Federal law prohibits final agency action that is arbitrary, capricious, unlawfully withheld, or unreasonably delayed (e.g., Administrative Procedures Act, 5 U.S.C. §706). Federal 26 AMENDED COMPLAINT - 4 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 8 Filed 07/15/18 Page 5 of 42 1 law also grants persons fleeing persecution the right to apply for safety and asylum in the United 2 States (e.g., 8 U.S.C. §§1225 &1158; 8 C.F.R. §§235.3, 208.30, & 1003.42). 12. 3 Federal law accordingly prohibits federal agencies from arbitrarily or capriciously 4 depriving an asylum seeker of their child, their prompt credible fear interview and determination, 5 or their prompt bond hearing. Federal law prohibits federal agencies from unlawfully 6 withholding or unreasonably delaying an asylum seeker’s reunification with their child, an 7 asylum seeker’s credible fear interview and determination, or an asylum seeker’s bond hearing. 8 And federal law prohibits federal agencies from impeding or seeking to deter an asylum seeker’s 9 legal right to apply for asylum. 13. 10 With this Amended Complaint, plaintiffs specify with more particularity how 11 defendants’ implementation of the federal government’s zero-tolerance policy with respect to 12 persons fleeing for safety and asylum in the United States violates federal law. 13 F. 14 Requested Relief 14. With respect to (1) family separations, (2) credible fear interviews and 15 determinations, and (3) the related bond hearings, plaintiffs request injunctive relief requiring 16 defendants to cease their policies and practices implementing the federal government’s zero- 17 tolerance policy in violation of the United States Constitution and federal law. Plaintiffs request 18 declaratory relief to terminate the parties’ disagreement with respect to whether (and how) 19 defendants’ implementation of the federal government’s zero-tolerance policy with respect to 20 persons fleeing for safety and asylum in the United States violates the United States Constitution 21 and federal law. Lastly, plaintiffs request whatever additional relief this Court finds warranted, 22 just, or equitable. 23 24 25 II. 15. JURISDICTION This case arises under the Fifth and Eighth Amendments of the United States Constitution, the Administrate Procedures Act (“APA”), and federal asylum statutes. This Court 26 AMENDED COMPLAINT - 5 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 8 Filed 07/15/18 Page 6 of 42 1 has jurisdiction under 28 U.S.C. §1331 (federal question jurisdiction); 28 U.S.C. §2241 (habeas 2 jurisdiction); and Article I, §9, clause 2 of the United States Constitution (“Suspension Clause”). 3 4 5 16. The original plaintiffs in this case were all in custody for purposes of habeas jurisdiction when this action was filed on June 25, 2018. 17. After this action was filed, plaintiff Padilla was eventually released from 6 detention after she was eventually provided her credible fear interview and individualized bond 7 hearing before an immigration judge. At the time this Amended Complaint is electronically filed 8 on July 15, 2018, plaintiffs Guzman, Orantes, and Vasquez are still in custody for purposes of 9 habeas jurisdiction. 10 18. At the time this Amended Complaint is electronically filed on July 15, 2018, all 11 but one of the children that the federal government took away from plaintiffs are still in custody 12 for purposes of habeas jurisdiction. (That one child, Yolany Padilla’s 6-year-old son, was finally 13 returned to his mother yesterday, July 14, 2018.) 14 15 III. 19. VENUE Venue lies in this District under 28 U.S.C. §1391 because a substantial portion of 16 the relevant facts occurred within this District. Those facts include defendants’ detention of 17 plaintiffs Padilla, Guzman, and Orantes in this District while forcibly separated from their 18 children, failure in this District to promptly conduct a credible fear interview and determination 19 for their asylum claims, and failure in this District to promptly conduct bond hearings that 20 comport with constitutional requirements to set reasonable conditions for release pending 21 adjudication of their asylum claims. 22 23 24 25 26 IV. 20. PARTIES Plaintiff Yolany Padilla is a human being seeking asylum for herself and her 6-year-old son (J.A) in the United States. She is a citizen of Honduras. 21. Plaintiff Ibis Guzman is a human being seeking asylum for herself and her 5-year-old son (R.G.) in the United States. She is a citizen of Honduras. AMENDED COMPLAINT - 6 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 8 Filed 07/15/18 Page 7 of 42 1 2 3 4 5 22. Plaintiff Blanca Orantes is a human being seeking asylum for herself and her 8-year-old son (A.M.) in the United States. She is a citizen of El Salvador. 23. Plaintiff Baltazar Vasquez is a human being seeking asylum in the United States. He is a citizen of El Salvador. 24. Defendant U.S. Immigration and Customs Enforcement (“ICE”) is the federal 6 government agency that carries out removal orders and oversees immigration detention. ICE is 7 part of DHS. ICE’s responsibilities include determining whether an asylum seeker will be 8 released and how soon his or her case will be submitted for a credible fear interview and 9 subsequent proceedings on the merits before the immigration court. ICE’s local field office in 10 Tukwila, Washington, is responsible for determining whether plaintiffs detained in Washington 11 will be released, and how soon their cases will be submitted for credible fear interview and 12 subsequent proceedings before the immigration court. 13 25. Defendant U.S. Department of Homeland Security (“DHS”) is the federal 14 government agency that enforces immigration laws of the United States. DHS’s responsibilities 15 include determining whether an asylum seeker will be released and how soon his or her case will 16 be submitted for a credible fear interview and subsequent proceedings before the immigration 17 court. DHS’s local field office in Tukwila, Washington, is responsible for determining whether 18 plaintiffs detained in Washington will be released, and how soon their cases will be submitted for 19 credible fear interview and subsequent proceedings before the immigration court. 20 26. Defendant U.S. Customs and Border Protection (“CBP”) is the federal 21 government agency that conducts the initial processing and detention of asylum seekers crossing 22 the U.S. border. CBP is part of DHS. CBP’s responsibilities include determining whether an 23 asylum seeker will be released and how soon his or her case will be submitted for a credible fear 24 interview and determination. 25 26 27. Defendant U.S. Citizenship and Immigration Services (“USCIS”) is the federal government agency that, through its asylum officers, interviews asylum seekers to determine AMENDED COMPLAINT - 7 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 8 Filed 07/15/18 Page 8 of 42 1 whether they should be assigned to the immigration court to be allowed to proceed with applying 2 for asylum because they have a credible fear of persecution. USCIS is a part of DHS. 28. 3 Defendant Executive Office for Immigration Review (“EOIR”) is the federal 4 government agency that is responsible for conducting immigration court proceedings, including 5 adjudicating plaintiffs’ asylum claims in removal proceedings and conducting individual bond 6 hearings for persons in removal proceedings. EOIR is a part of the Department of Justice. 29. 7 Defendant U.S. Department of Health and Human Services (“HHS”) is the federal 8 government agency that has been delegated authority to make custody determinations for 9 “unaccompanied” noncitizen children. 30. 10 Defendant Office of Refugee Resettlement (“ORR”) is the federal government 11 agency that that has been delegated responsibility to care for and place “unaccompanied” 12 noncitizen children. ORR is part of HHS. 31. 13 14 and is a legal custodian of detained plaintiffs. 32. 15 16 Defendant Thomas Homan is sued in his official capacity as the Director of ICE, Defendant Marc J. Moore is sued in his official capacity as the ICE Seattle Field Office Director, and is a legal custodian of detained plaintiffs. 33. 17 Defendant Kirstjen Nielsen, is sued in her official capacity as the Secretary of 18 DHS. In this capacity, she directs DHS, ICE, CBP, and USCIS. As a result, defendant Nielsen 19 has responsibility for the administration of immigration laws pursuant to 8 U.S.C. §1103 and is a 20 legal custodian of detained plaintiffs. 34. 21 22 Commissioner of CBP. 35. 23 24 Defendant L. Francis Cissna is sued in his official capacity as the Director of USCIS. 36. 25 26 Defendant Kevin K. McAleenan is sued in his official capacity as the Defendant Alex M. Azar II is sued in his official capacity as the Secretary of HHS. AMENDED COMPLAINT - 8 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 8 Filed 07/15/18 Page 9 of 42 1 37. Defendant Scott Lloyd is sued in his official capacity as the Director of ORR. 2 38. Defendant Jefferson Beauregard Sessions III is sued in his official capacity as the 3 United States Attorney General. In this capacity, he directs agencies within the United States 4 Department of Justice, including EOIR. Defendant Sessions has responsibility for the 5 administration of immigration laws pursuant to 8 U.S.C. §1103, oversees defendant EOIR, and is 6 empowered to grant asylum or other relief, including custody determinations made for persons in 7 removal proceedings. 39. 8 9 Northwest Detention Center in Tacoma, Washington. 40. 10 11 Defendant Charles Ingram is sued in his official capacity as the warden of the Federal Detention Center in SeaTac, Washington. 41. 12 13 Defendant Lowell Clark is sued in his official capacity as the warden of the Defendant David Shinn is sued in his official capacity as the warden of the Federal Correctional Institute in Victorville, California. 14 15 V. A. FACTS Seeking Asylum 16 42. Federal law allows a person to seek asylum in the United States. 17 43. Plaintiffs are persons seeking asylum in the United States. 18 44. Some asylum seekers cross the U.S.-Mexico border at one of the “Ports Of Entry” 19 20 21 22 23 24 designated by the United States government. 45. An asylum seeker who crosses the border at a designated Port Of Entry and openly declares them self to a CBP agent is referred to as being an “arriving” asylum seeker. 46. An asylum seeker who crosses the border at a Port Of Entry and does not openly declares them self to a CBP agent is referred to as “entering without inspection.” 47. An asylum seeker who crosses the U.S.-Mexico border at a location that is 25 between the Ports Of Entry designated by the United States government is also referred to as 26 “entering without inspection.” AMENDED COMPLAINT - 9 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 8 Filed 07/15/18 Page 10 of 42 1 2 48. Plaintiff Yolany Padilla and her 6-year-old son J.A. are asylum seekers who fled physical danger and persecution in Honduras. 49. 3 On or about May 18, 2018, plaintiff Yolany Padilla and her 6-year-old son J.A 4 crossed the U.S.-Mexico border at a location between Ports Of Entry designated by the United 5 States government. They were arrested by a CBP agent as they were making their way to the 6 closest Port Of Entry. She informed the CBP agent that they were seeking asylum. 7 8 50. Plaintiff Ibis Guzman and her 5-year-old son R.G. are asylum seekers who fled physical danger and persecution in Honduras. 51. 9 On or about May 16, 2018, plaintiff Ibis Guzman and her 5-year-old son R.G. 10 crossed the U.S.-Mexico border at a location between Ports Of Entry designated by the United 11 States government. They were arrested by a CBP agent. She informed the CBP agent that they 12 were seeking asylum. 13 14 52. Plaintiff Blanca Orantes and her 8-year-old son A.M. are asylum seekers who fled physical danger and persecution in El Salvador. 53. 15 On or about May 21, 2018, plaintiff Blanca Orantes and her 8-year-old son A.M. 16 crossed the U.S.-Mexico border at a location between Ports Of Entry designated by the United 17 States government. They immediately walked to the CBP station to request asylum, and were 18 arrested by a CBP agent. She informed the CBP agent that they were seeking asylum. 19 20 54. Plaintiff Baltazar Vasquez is an asylum seeker who fled physical danger and persecution in El Salvador. 55. 21 On or about June 1, 2018, Baltazar Vasquez crossed the U.S.-Mexico border at a 22 location between Ports Of Entry designated by the United States government. He was arrested 23 by a CBP agent, and informed the CBP agent that he was seeking asylum. 24 B. 25 26 Defendants’ Zero-Tolerance Policy 56. Defendant Attorney General Sessions made an announcement about the federal government’s “Zero-Tolerance Policy” on April 6, 2018, See AMENDED COMPLAINT - 10 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 8 Filed 07/15/18 Page 11 of 42 1 https://www.justice.gov/opa/pr/attorney-general-announces-zero-tolerance-policy-criminal- 2 illegal-entry 57. 3 The federal government’s zero-tolerance policy was designed to be a coordinated 4 effort to deter asylum seekers entering the country and exercising their right to apply for asylum 5 by criminally prosecuting them, forcibly separating them from their children, and imposing 6 prolonged, uncertain imprisonment (euphemistically called “detention”) on them. 58. 7 8 The federal government’s zero-tolerance policy has been implemented against asylum seekers who enter the country without inspection requesting asylum. 59. 9 The federal government’s zero-tolerance policy has also been implemented 10 against asylum seekers who appear at a Port Of Entry to request asylum. 11 C. 12 13 14 15 16 Promptly Taking Children Away From Parents Seeking Asylum 60. One part of the federal government’s zero-tolerance policy is to promptly take children away from parents seeking asylum in the United States. 61. The federal government sends the parent and child to separate federal detention facilities – often in different states thousands of miles away from each other. 62. A child’s forced separation from a parent causes the child severe trauma. This 17 damage is even worse for children who are already traumatized from fleeing danger and 18 persecution in their home country. The cognitive and emotional damage caused by a child’s 19 forced separation from a parent can be permanent. 20 63. A parent’s forced separation from their child is also deeply damaging to the 21 parent. This damage is even worse for parents who are already traumatized from fleeing danger 22 and persecution in their home country, are given little to no information regarding the well-being 23 or whereabouts of their child, and fear they may never see their child again. 24 64. The federal government promptly takes children away from parents seeking 25 asylum in the United States without any demonstration in a hearing that that parent is unfit or 26 presents any danger to the child. AMENDED COMPLAINT - 11 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 8 Filed 07/15/18 Page 12 of 42 65. 1 The federal government promptly takes children away from parents seeking 2 asylum in the United States without any evidence or accusation that the parent seeking asylum is 3 an unfit parent, or presents a danger to the child, or is not acting in the child’s best interest, or is 4 a threat to the child’s safety, or abused the child, or neglected the child. 66. 5 6 The federal government promptly takes children away from parents seeking asylum in the United States to penalize and deter persons from seeking asylum. 67. 7 The federal government promptly takes children away from parents seeking 8 asylum in the United States as part of its zero-tolerance policy against criminal violations of 9 federal immigration laws. 68. 10 Plaintiffs Yolany Padilla, Ibis Guzman, and Blanca Orantes are parents who 11 sought asylum and were (1) detained in immigration custody by defendants in Washington State 12 and (2) separated from a minor child by defendants without any demonstration in a hearing that 13 that parent is unfit or presents a danger to the child. 14 69. When plaintiff Yolany Padilla and her 6-year-old son J.A were taken into 15 custody, a federal agent promptly announced that Yolany Padilla’s son would be taken away 16 from her. Her 6-year-old son clutched his mother’s shirt and said, “no, mommy, I don’t want to 17 go.” She reassured her son that any separation would be short, and that everything would be 18 okay. She was able to stay with her son as they were transferred to one of the federal detention 19 buildings that detainees commonly refer to as “the hielera” (“the freezer”) because of its cold 20 temperatures. Once they arrived, Yolany Padilla’s 6-year-old son was forcibly taken away from 21 her without explanation. 70. 22 Yolany Padilla’s 6-year-old son was taken away from her without any hearing, 23 and without any accusation or evidence that she is in any way an unfit parent, or that she is in 24 any way not acting in his best interest fleeing for safety in the United States, or that she is in any 25 way a threat to his safety, or that she in any way abused him, or that she in any way neglected 26 him. AMENDED COMPLAINT - 12 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 8 Filed 07/15/18 Page 13 of 42 1 71. Yolany Padilla was then transferred to another federal facility in Laredo, Texas 2 about three days later. The federal officers in that facility took her son’s birth certificate from 3 her. When she asked for it back, she was told the immigration authorities had it. No one has 4 returned her son’s birth certificate to her. 5 6 7 72. About twelve days later, Yolany Padilla was transferred to the Federal Detention Center in SeaTac, Washington. 73. Despite repeated inquiries into her son’s whereabouts, Yolany Padilla was not 8 provided any information about her son until about a month into her detention, when the 9 Honduran consul visited the detention center and she explained she had no news of her son. 10 Soon thereafter she was given a piece of paper saying her son had been put in a place called 11 “Cayuga Center” in New York. That piece of paper also had a phone number, but she was not 12 able to call her son that day because she did not have money to make a long distance phone call. 13 14 15 16 17 74. The next day, someone gave Yolany Padilla the opportunity to call her son for about ten minutes. Her 6-year-old son mostly cried quietly. 75. Yolany Padilla was not released from federal imprisonment until July 6, 2018, after an immigration judge finally granted her a bond. 76. Yolany Padilla’s 6-year-old son was not released from federal imprisonment until 18 July 14, 2018. That was almost two months after the federal government forcibly took him away 19 from his mom. 20 77. CBP transported plaintiff Ibis Guzman and her 5-year-old son R.G. to one of the 21 federal detention buildings in Texas that detainees commonly refer to as “the hielera” (“the 22 freezer”) because of its cold temperatures. One CBP agent questioned Ibis Guzman, and 23 another CBP agent forcibly took her son away stating she would see her son again in three days. 24 25 78. Ibis Guzman’s 5-year-old son was taken away from her without any hearing, and without any accusation or evidence that she is in any way an unfit parent, or that she is in any 26 AMENDED COMPLAINT - 13 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 8 Filed 07/15/18 Page 14 of 42 1 way not acting in his best interest fleeing for safety in the United States, or that she is in any way 2 a threat to his safety, or that she in any way abused him, or that she in any way neglected him. 79. 3 After three days, Ibis Guzman was transferred to a different CBP facility in 4 Texas. When she asked the federal agents there about the reunification with her son that the 5 CBP agent had promised, they told her they did not know anything about her son’s whereabouts. 80. 6 Ibis Guzman was then transferred to another federal facility in Laredo, Texas, 7 where she was detained without any knowledge of the whereabouts of her 5-year-old son and 8 without any means to contact him. She did not receive any information about him during this 9 time, despite her repeated attempts to obtain such information. 81. 10 11 About two weeks later, Ibis Guzman was transferred to the Federal Detention Center in SeaTac, Washington. 82. 12 Ibis Guzman was not provided any information about her 5-year-old son until 13 about a week later, when she was told that her son had been given to a place called “Baptist 14 Child and Family Services” in San Antonio, Texas. But she was still not able to contact him. 83. 15 On June 20, 2018, Ibis Guzman was transferred to the Northwest Detention 16 Center in Tacoma, Washington, where she continues to be held, separated from her 5-year-old 17 son. 18 84. CBP transported plaintiff Blanca Orantes and her 8-year-old son A.M. to a 19 federal detention facility in Texas. CBP agents led Blanca Orantes into one of the federal 20 detention buildings that detainees commonly refer to as “the hielera” (“the freezer”) because of 21 its cold temperatures, and took her 8-year-old son to another part of that detention facility. 22 85. While a CBP agent was later interviewing Blanca Orantes, another agent brought 23 her 8-year-old son to her and told her to “say goodbye” to him because they were being 24 separated. Her 8-year-old son began crying and pleading for his mom not to leave him. She has 25 not seen her son since then. 26 AMENDED COMPLAINT - 14 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 8 Filed 07/15/18 Page 15 of 42 86. 1 Blanca Orantes’ 8-year-old son was taken away from her without any hearing, 2 and without any accusation or evidence that she is in any way an unfit parent, or that she is in 3 any way not acting in his best interest fleeing for safety in the United States, or that she is in any 4 way a threat to his safety, or that she in any way abused him, or that she in any way neglected 5 him. 87. 6 On or around May 24, 2018, Blanca Orantes was handcuffed and taken to court. 7 She pled guilty to improper entry under 8 U.S.C. §1325 and was sentenced to time served. She 8 was then returned to her cell. 88. 9 10 About nine days later, Blanca Orantes was transported to the Federal Detention Center in SeaTac, Washington. 89. 11 The federal government did not provide Blanca Orantes any information about 12 her 8-year-old son until June 9, 2018, when an ICE officer handed her a slip of paper saying her 13 son was being held at place called “Children’s Home of Kingston” in Kingston, New York. 90. 14 On June 20, 2018, Blanca Orantes was transferred to the Northwest Detention 15 Center in Tacoma, Washington, where she was finally allowed to speak to her 8-year-old son by 16 telephone. To date, she has not been allowed to see her 8-year-old son, and has rarely been 17 allowed to speak to him by phone. 18 D. 19 20 21 22 23 24 25 Failing To Promptly Provide The Credible Fear Interview & Determination Required By Federal Law 91. One part of the federal government’s zero-tolerance policy is to keep asylum seekers in limbo in federal detention by delaying the threshold credible fear interview to which asylum seekers are entitled under federal law. 92. Detained asylum seekers who are subject to expedited removal are not permitted to move forward with their asylum claims until a credible fear determination has been made by a DHS official. 26 AMENDED COMPLAINT - 15 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 8 Filed 07/15/18 Page 16 of 42 1 2 3 93. The federal government keeps asylum seekers in limbo in federal detention by delaying their credible fear interview in part to penalize and deter persons from seeking asylum. 94. The federal government keeps asylum seekers in limbo in federal detention by 4 delaying their credible fear interview as part of its zero-tolerance policy against criminal 5 violations of federal immigration laws. 6 7 8 9 95. The federal government has not established any procedural timeframes for providing asylum seekers the credible fear interview and determinations required by federal law. 96. Plaintiffs Yolany Padilla, Ibis Guzman, Blanca Orantes, and Baltazar Vasquez are detained asylum seekers subject to expedited removal proceedings under 8 U.S.C. §1225(b) who 10 were not provided a credible fear interview and determination within 10 days of requesting 11 asylum or expressing a fear of persecution to a DHS official. 12 13 14 15 16 17 18 97. When plaintiff Yolany Padilla first spoke with the CBP agent on or about May 18, 2018, she told the CBP agent that she and her son were requesting asylum. 98. Neither Yolany Padilla nor her son were provided a credible fear interview within 10 days of requesting asylum or expressing a fear of persecution to a DHS official. 99. Neither Yolany Padilla nor her son were provided a credible fear interview as of the date this lawsuit was filed on June 25, 2018. 100. Instead, Yolany Padilla was not provided her credible fear interview until July 2, 19 2018. That was more than a month after federal officials imprisoned her. The DHS official 20 conducting her credible fear interview determined that Yolany Padilla does have a credible fear 21 of persecution, and therefore assigned her asylum claim to immigration court for adjudication on 22 the merits 23 24 25 26 101. When plaintiff Ibis Guzman first spoke with the CBP agent on or about May 16, 2018, she told the CBP agent that she and her son were requesting asylum. 102. Neither Ibis Guzman nor her son were provided a credible fear interview within 10 days of requesting asylum or expressing a fear of persecution to a DHS official. AMENDED COMPLAINT - 16 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 8 Filed 07/15/18 Page 17 of 42 1 2 3 103. Neither Ibis Guzman nor her son were provided a credible fear interview as of the date this lawsuit was filed on June 25, 2018. 104. Instead, Ibis Guzman was not provided her credible fear interview until June 27, 4 2018. That was more than a month after federal officials imprisoned her. The DHS official 5 conducting her credible fear interview determined that Ibis Guzman does have a credible fear of 6 persecution, and therefore assigned her asylum claim to immigration court for adjudication on 7 the merits. 8 9 10 11 12 13 14 105. When plaintiff Blanca Orantes first spoke with the CBP agent on or about May 21, 2018, she told the CBP agent that she and her son were requesting asylum. 106. Neither Blanca Orantes nor her son were provided a credible fear interview within 10 days of requesting asylum or expressing a fear of persecution to a DHS official. 107. Neither Blanca Orantes nor her son were provided a credible fear interview as of the date this lawsuit was filed on June 25, 2018. 108. Instead, Blanca Orantes was not provided her credible fear interview until 15 June 27, 2018. That was more than a month after federal officials imprisoned her. The DHS 16 official conducting her credible fear interview determined that Blanca Orantes does have a 17 credible fear of persecution, and therefore assigned her asylum claim to immigration court for 18 adjudication on the merits. . 19 20 21 22 23 24 25 26 109. When plaintiff Baltazar Vasquez first spoke with the CBP agent on or about June 1, 2018, he told the CBP agent that he was requesting asylum. 110. Baltazar Vasquez was not provided a credible fear interview within 10 days of requesting asylum or expressing a fear of persecution to a DHS official. 111. Baltazar Vasquez was not provided a credible fear interview as of the date this lawsuit was filed on June 25, 2018. 112. Baltazar Vasquez was not provided a credible fear interview as of the date this Amended Complaint is electronically filed on July 15, 2018. AMENDED COMPLAINT - 17 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 8 Filed 07/15/18 Page 18 of 42 113. 1 Baltazar Vasquez is currently imprisoned in the Bureau of Prison’s Federal 2 Correctional Institute in Victorville, California. 3 E. 4 Failing To Promptly Provide The Bond Hearing Required By Federal Law 114. One part of the federal government’s zero-tolerance policy is to prolong 5 imprisonment without a proper bond hearing for asylum seekers who entered the United States 6 without inspection. 7 115. 8 9 The federal government keeps asylum seekers in limbo in federal detention by delaying their bond hearing in part to penalize and deter persons from seeking asylum. 116. The federal government keeps asylum seekers in limbo in federal detention by 10 delaying their bond hearing as part of its zero-tolerance policy against criminal violations of 11 federal immigration laws. 12 117. The federal government has not established any procedural timeframes for timely 13 providing the bond hearings required by federal law. The federal government has not established 14 basic procedural safeguards for bond hearings such as verbatim transcripts or audio recordings of 15 bond hearings. The absence of such basic safeguards impedes an imprisoned asylum seeker’s 16 ability to meaningful appeal the denial of bond in their individual case as not being based on 17 evidence of legally relevant factors (their being a flight risk or danger to the community) instead 18 of legally irrelevant factors (e.g., the zero-tolerance policy’s general goal of punishing and 19 deterring asylum seekers). Defendant EOIR maintains audio recordings of proceedings before 20 an Immigration Judge other than bond hearings, and provides verbatim transcripts on appeals to 21 the Board of Immigration Appeals. But defendants do not maintain audio recordings of an 22 asylum seeker’s bond hearing or provide verbatim transcripts for appeal of bond hearing 23 determinations. 24 25 118. Plaintiff Yolany Padilla is an asylum seeker who originally entered the United States without inspection, was initially subject to expedited removal proceedings under 26 AMENDED COMPLAINT - 18 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 8 Filed 07/15/18 Page 19 of 42 1 8 U.S.C. §1225(b) and detained, was determined to have a credible fear of persecution, but was 2 not provided a timely bond hearing with a verbatim transcript or audio recording. 3 119. The federal government did not provide Yolany Padilla a bond hearing until after 4 she filed this lawsuit. At the conclusion of that bond hearing, an order was issued allowing her 5 to be released from federal detention on bond pending the adjudication of her asylum claim on 6 the merits. To her knowledge, there is no verbatim transcript or recording of her bond hearing. 7 120. Plaintiffs Ibis Guzman is a detained asylum seeker who originally entered the 8 United States without inspection, was initially subject to expedited removal proceedings under 9 8 U.S.C. §1225(b), was determined to have a credible fear of persecution, but was not provided a 10 11 timely bond hearing with a verbatim transcript or audio recording. 121. The federal government did not provide Ibis Guzman a bond hearing until after 12 she filed this lawsuit. At the conclusion of that bond hearing, an immigration judge issued an 13 order denying her release on any bond amount pending the adjudication of her asylum claim on 14 the merits. 15 122. The immigration judge circled the preprinted words “Flight Risk” on a form 16 order, rendering her ineligible for bond even though a DHS official had already determined she 17 has a credible fear of persecution and even though the federal government has taken away her 18 6-year-old son. 19 123. The immigration judge provided no written explanation for circling “Flight Risk” 20 or the factors and evidence considered in making that conclusion to deny bond. Per defendant 21 EOIR’s practice, there is no verbatim transcript or recording of her bond hearing. 22 23 24 124. At the time this Amended Complaint is electronically filed on July 15, 2018, Ibis Guzman is still imprisoned in federal detention. 125. Plaintiff Blanca Orantes is a detained asylum seeker who originally entered the 25 United States without inspection, was initially subject to expedited removal proceedings under 26 8 U.S.C. §1225(b), was determined to have a credible fear of persecution once she was AMENDED COMPLAINT - 19 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 8 Filed 07/15/18 Page 20 of 42 1 eventually provided her credible fear interview and determination, but was not provided a bond 2 hearing with a verbatim transcript or recording of the hearing within 7 days of requesting a bond 3 hearing. 126. 4 Blanca Orantes has now been told she will be provided a bond hearing on July 16, 5 2018. She accordingly still has not been provided a bond hearing with a verbatim transcript or 6 recording of the hearing. 7 127. Plaintiff Baltazar Vasquez is a detained asylum seeker who originally entered 8 the United States without inspection (thus initially triggering potential expedited removal 9 proceedings under 8 U.S.C. §1225(b)), but as of the time this Amended Complaint is 10 electronically filed still has not been provided his credible fear interview and determination, and 11 accordingly still has not been provided a bond hearing with a verbatim transcript or recording of 12 the hearing. 13 VI. 14 15 128. CLASS ALLEGATIONS The named plaintiffs are asylum seekers who filed this suit on behalf of themselves and their family members being detained in federal detention. 16 129. The named plaintiffs also bring this suit as a class action under Fed.R.Civ.P. 23(b) 17 on behalf of the other similarly situated persons specified in the three classes of asylum seekers 18 specified in Part VI of this Amended Complaint. 19 F. 20 “Family Separation Class” 130. As previously noted, plaintiffs will not be currently pursuing their family 21 separation claim in this case pending defendants’ promised compliance with the Ms. L v. ICE 22 Order noted in paragraph 2 of this Amended Complaint. This Amended Complaint nonetheless 23 identifies the following class in case defendants’ obligations are modified in that Order or their 24 compliance falls short. 25 26 AMENDED COMPLAINT - 20 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 8 Filed 07/15/18 Page 21 of 42 1 131. With respect to plaintiffs’ claims concerning the legality of the government’s 2 practice of taking children away from parents seeking asylum, plaintiffs seek to represent the 3 following class (the “family separation class”): 4 5 6 7 All parents who sought asylum and were (1) detained in immigration custody by defendants in Washington State and (2) separated from a minor child by defendants absent a demonstration in a hearing that that parent is unfit or presents a danger to the child. 132. Plaintiffs allege the following on information and belief: At least fifty parents 8 currently fit within the family separation class. Defendants should know the precise number 9 since the members of this class should be readily ascertainable through defendants’ records. 10 11 12 133. The family separation class satisfies Rule 23(a)(1). This class is so numerous that joinder of all class members is impracticable. 134. The family separation class satisfies Rule 23(a)(2). There are questions of law 13 or fact common to this class. Given the definition of this class, its members all share the same 14 common factual situation of being subject to defendants’ practice of separating asylum-seeking 15 parents from their minor child absent a demonstration in a hearing that that parent is unfit or 16 presents a danger to their child. The members of this class share common questions of law 17 governing whether defendants’ practice of taking children away from class members seeking 18 asylum is legal under the Fifth Amendment, Eighth Amendment, APA, or federal asylum 19 statutes. 20 135. The family separation class satisfies Rule 23(a)(3). The claims of plaintiffs 21 Padilla, Guzman, and Orantes concerning the legality of defendants’ practice of taking children 22 away from parents seeking asylum are typical of the claims of class members. As noted in the 23 prior paragraph, the definition of this class dictates that plaintiffs Padilla, Guzman, and Orantes 24 share with the other class members the same common factual situation and the same common 25 questions of law under the Fifth Amendment, Eighth Amendment, APA, and federal asylum 26 statutes. AMENDED COMPLAINT - 21 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 8 Filed 07/15/18 Page 22 of 42 1 136. The family separation class satisfies Rule 23(a)(4). Plaintiffs Padilla, Guzman, 2 and Orantes will fairly and adequately protect the interests of that class. They are represented by 3 counsel from the Northwest Immigrant Rights Project, who have extensive experience litigating 4 class action lawsuits and other complex cases in federal court, including civil rights lawsuits on 5 behalf of noncitizens. They are also represented by counsel from the Foster Pepper law firm, 6 who have extensive experience litigating constitutional and statutory rights lawsuits in the 7 federal and state courts, including civil rights lawsuits on behalf of a variety of plaintiffs. 8 137. The family separation class satisfies Rule 23(b)(1). Requiring separate actions 9 by the members of this class would create the risk of inconsistent or varying adjudications with 10 respect to individual class members that would establish incompatible standards of conduct for 11 defendants. Requiring separate actions by the members of this class would create the risk of 12 adjudications with respect to individual class members that, as a practical matter, would be 13 dispositive of the interests of the other class members not parties to the individual adjudications, 14 or would at least substantially impair or impede their ability to protect their interests. 15 138. The family separation class satisfies Rule 23(b)(2). Defendants have acted or 16 refused to act on grounds that apply generally to this class. Final injunctive relief or 17 corresponding declaratory relief is appropriate with respect to the class as a whole because 18 requiring separate actions by the members of this class would create the risk of inconsistent or 19 varying adjudications with respect to individual class members that would establish incompatible 20 standards of conduct for defendants. 21 139. The family separation class satisfies Rule 23(b)(3). Questions of law or fact 22 common to members of this class predominate over questions affecting only individual 23 members. A class action is superior to other available methods for fairly and efficiently 24 adjudicating the legality of defendants’ practice of taking children away from parents seeking 25 asylum as part of their implementation of the government’s zero-tolerance policy. 26 AMENDED COMPLAINT - 22 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 8 Filed 07/15/18 Page 23 of 42 1 2 G. “Credible Fear Interview Class” 140. With respect to plaintiffs’ claims concerning defendants’ failure to promptly 3 provide asylum seekers a credible fear interview and determination, plaintiffs seek to represent 4 the following class (the “credible fear interview class”): 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 All detained asylum seekers in the United States subject to expedited removal proceedings under 8 U.S.C. §1225(b) who are not provided a credible fear determination within 10 days of requesting asylum or expressing a fear of persecution to a DHS official. 141. Plaintiffs allege the following on information and belief: At least several hundred asylum seekers currently fit within the credible fear interview class. Defendants should know the precise number since the members of this class should be readily ascertainable through defendants’ records. 142. The credible fear interview class satisfies Rule 23(a)(1). This class is so numerous that joinder of all class members is impracticable. 143. The credible fear interview class satisfies Rule 23(a)(2). There are questions of law or fact common to this class. Given the definition of this class, its members all share the same common factual situation of being a detained asylum seeker subject to defendants’ practice of failing to provide a credible fear interview and determination within 10 days of their expressing a fear of persecution or a request for asylum to a DHS official, despite the fact they have been placed in expedited removal proceedings under 8 USC 1225(b), which requires immediate action. The members of this class share common questions of law governing whether defendants’ practice of failing to provide class members a credible fear interview and determination within 10 days of their expressing a fear of persecution or a request for asylum to a DHS official is legal under the Fifth Amendment, Eighth Amendment, APA, or federal asylum statutes. 144. The credible fear interview class satisfies Rule 23(a)(3). Plaintiffs’ claims concerning the legality of defendants’ practice of failing to provide a credible fear interview and AMENDED COMPLAINT - 23 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 8 Filed 07/15/18 Page 24 of 42 1 determination within 10 days of their expressing a fear of persecution or a request for asylum to 2 a DHS official are typical of the claims of class members. As noted in the prior paragraph, the 3 definition of this class dictates that plaintiffs share with the other class members the same 4 common factual situation and the same common questions of law under the Fifth Amendment, 5 Eighth Amendment, APA, and federal asylum statutes. 6 145. The credible fear interview class satisfies Rule 23(a)(4). Plaintiffs will fairly 7 and adequately protect the interests of that class. They are represented by counsel from the 8 Northwest Immigrant Rights Project, who have extensive experience litigating class action 9 lawsuits and other complex cases in federal court, including civil rights lawsuits on behalf of 10 noncitizens. They are also represented by counsel from the Foster Pepper law firm, who have 11 extensive experience litigating constitutional and statutory rights lawsuits in the federal and state 12 courts, including civil rights lawsuits on behalf of a variety of plaintiffs. 13 146. The credible fear interview class satisfies Rule 23(b)(1). Requiring separate 14 actions by the members of this class would create the risk of inconsistent or varying 15 adjudications with respect to individual class members that would establish incompatible 16 standards of conduct for defendants. Requiring separate actions by the members of this class 17 would create the risk of adjudications with respect to individual class members that, as a 18 practical matter, would be dispositive of the interests of the other class members not parties to 19 the individual adjudications, or would at least substantially impair or impede their ability to 20 protect their interests. 21 147. The credible fear interview class satisfies Rule 23(b)(2). Defendants have acted 22 or refused to act on grounds that apply generally to this class. Final injunctive relief or 23 corresponding declaratory relief is appropriate with respect to the class as a whole, especially as 24 it involves uniform, federal immigration law and plaintiffs are transferred across the country by 25 defendants. Moreover, requiring separate actions by the members of this class would create the 26 AMENDED COMPLAINT - 24 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 8 Filed 07/15/18 Page 25 of 42 1 risk of inconsistent or varying adjudications with respect to individual class members that would 2 establish incompatible standards of conduct for defendants. 3 148. The credible fear interview class satisfies Rule 23(b)(3). Questions of law or 4 fact common to members of this class predominate over questions affecting only individual 5 members. A class action is superior to other available methods for fairly and efficiently 6 adjudicating the legality of defendants’ practice of failing to provide a credible fear interview 7 and determination within 10 days of a person’s expressing a fear of persecution or requesting 8 asylum. 9 H. 10 “Bond Hearing Class” 149. With respect to plaintiffs’ claims concerning defendants’ failure to promptly 11 conduct a bond hearing to set reasonable conditions for the asylum seeker’s release pending the 12 lengthy proceedings to adjudicate his or her asylum claim, plaintiffs seek to represent the 13 following class (the “bond hearing class”): 14 15 16 All detained asylum seekers who entered the United States without inspection, were initially subject to expedited removal proceedings under 8 U.S.C. §1225(b), were determined to have a credible fear of persecution, but are not provided a bond hearing with a verbatim transcript or recording of the hearing within 7 days of requesting a bond hearing. 17 18 19 20 21 22 23 24 25 26 150. Plaintiffs allege the following on information and belief: At least several hundred asylum seekers currently fit within the bond hearing class. Defendants should know the precise number since the members of this class should be readily ascertainable through defendants’ records. 151. The bond hearing class satisfies Rule 23(a)(1). This class is so numerous that joinder of all class members is impracticable. 152. The bond hearing class satisfies Rule 23(a)(2). There are questions of law or fact common to this class. Given the definition of this class, its members all share the same common factual situation of being asylum seekers who entered the United States without AMENDED COMPLAINT - 25 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 8 Filed 07/15/18 Page 26 of 42 1 inspection, were initially subject to expedited removal proceedings, were found to have a 2 credible fear of persecution, but were then subject to defendants’ practice of failing to provide a 3 bond hearing with a transcript or recording of the hearing within 7 days of their requesting a 4 bond hearing. The members of this class share common questions of law governing whether 5 defendants’ practice of failing to provide a bond hearing with a transcript or recording of the 6 proceeding within 7 days of their requesting a bond hearing is legal under the Fifth Amendment, 7 Eighth Amendment, APA, or federal asylum statutes. 8 9 153. The bond hearing class satisfies Rule 23(a)(3). Plaintiffs’ claims concerning the legality of defendants’ practice of failing to provide a bond hearing with a transcript or recording 10 of the proceeding within 7 days of an asylum seeker’s requesting a bond hearing are typical of 11 the claims of class members. As noted in the prior paragraph, the definition of this class dictates 12 that plaintiffs share with the other class members the same common factual situation and the 13 same common questions of law under the Fifth Amendment, Eighth Amendment, APA, and 14 federal asylum statutes. 15 154. The bond hearing class satisfies Rule 23(a)(4). Plaintiffs will fairly and 16 adequately protect the interests of that class. They are represented by counsel from the 17 Northwest Immigrant Rights Project, who have extensive experience litigating class action 18 lawsuits and other complex cases in federal court, including civil rights lawsuits on behalf of 19 noncitizens. They are also represented by counsel from the Foster Pepper law firm, who have 20 extensive experience litigating constitutional and statutory rights lawsuits in the federal and state 21 courts, including civil rights lawsuits on behalf of a variety of plaintiffs. 22 155. The bond hearing class satisfies Rule 23(b)(1). Requiring separate actions by 23 the members of this class would create the risk of inconsistent or varying adjudications with 24 respect to individual class members that would establish incompatible standards of conduct for 25 defendants. Requiring separate actions by the members of this class would create the risk of 26 adjudications with respect to individual class members that, as a practical matter, would be AMENDED COMPLAINT - 26 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 8 Filed 07/15/18 Page 27 of 42 1 dispositive of the interests of the other class members not parties to the individual adjudications, 2 or would at least substantially impair or impede their ability to protect their interests. 3 156. The bond hearing class satisfies Rule 23(b)(2). Defendants have acted or 4 refused to act on grounds that apply generally to this class. Final injunctive relief or 5 corresponding declaratory relief is appropriate with respect to the class as a whole especially as it 6 involves uniform, federal immigration law and plaintiffs are transferred across the country by 7 defendants. Moreover, requiring separate actions by the members of this class would create the 8 risk of inconsistent or varying adjudications with respect to individual class members that would 9 establish incompatible standards of conduct for defendants. 10 157. The bond hearing class satisfies Rule 23(b)(3). Questions of law or fact 11 common to members of this class predominate over questions affecting only individual 12 members. A class action is superior to other available methods for fairly and efficiently 13 adjudicating the legality of defendants’ practice of failing to provide a bond hearing with a 14 transcript or recording of the proceeding within 7 days of an asylum seeker’s requesting a bond 15 hearing. 16 VII. COUNT I (Constitutional Violations) 17 18 158. 19 20 159. The Fifth Amendment of the United States Constitution prohibits the federal government from depriving any person of their liberty without due process of law. 160. 23 24 All allegations in this Amended Complaint that are not inconsistent with this Count are repeated and re-alleged as though fully set forth in this numbered paragraph. 21 22 CAUSES OF ACTION The Fifth Amendment’s due process clause applies to all persons in the United States. 25 26 AMENDED COMPLAINT - 27 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 8 Filed 07/15/18 Page 28 of 42 161. 1 The Eighth Amendment of the United States Constitution prohibits the federal 2 government from imposing or inflicting on any person any excessive bail or any cruel 3 punishments. 4 162. The Eighth Amendment’s protections apply to all persons in the United States. 5 163. Asylum seekers who cross the United States border are persons. 6 164. The named plaintiffs are persons are in the United States. Their children in 7 federal government custody are persons are in the United States. The proposed class members 8 identified in Section VI of this Amended Complaint are persons in the United States. 165. 9 The named plaintiffs, their children, and proposed class members have a 10 constitutionally protected liberty interest in (1) remaining together as a family, (2) not being 11 imprisoned in federal detention for an unreasonable time awaiting their credible fear interview 12 and determination, and (3) not being imprisoned in federal detention for an unreasonable time 13 awaiting their bond hearing. 166. 14 Especially with respect to the federal government’s zero-tolerance policy to deter 15 criminal violations of federal immigration laws, the plaintiffs, their children, and proposed class 16 members have a constitutionally protected interest in (4) not being subjected to unreasonable 17 bond conditions, and (5) not being subjected to cruel punishments. 18 A. 19 “Family Separation Class” 167. The federal government’s forcibly separating plaintiffs Padilla, Guzman, and 20 Orantes from their children violated the substantive due process rights of plaintiffs and their 21 children. That forced separation did not further a legitimate purpose. That forced separation did 22 not further a compelling governmental interest. Defendants’ forcibly separating plaintiffs 23 Padilla, Guzman, and Orantes from their children violated the constitutional substantive due 24 process rights of plaintiffs and their children. 25 26 168. The federal government’s forcibly separating plaintiffs Padilla, Guzman, and Orantes from their children violated the procedural due process rights of plaintiffs and their AMENDED COMPLAINT - 28 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 8 Filed 07/15/18 Page 29 of 42 1 children. The government did not make any accusation that plaintiffs were unfit parents, were 2 not acting in the best interest of their child, were a threat to their child’s safety, abused their 3 child, or neglected their child. The government did not have any evidence of plaintiffs being 4 unfit parents, or not acting in the best interest of their child, or being a threat to their child’s 5 safety, or abusing their child, or neglecting their child. Defendants’ forcibly separating 6 plaintiffs Padilla, Guzman, and Orantes from their children without any hearing violated the 7 constitutional procedural due process rights of plaintiffs and their children. 169. 8 9 The federal government’s forcibly separating plaintiffs Padilla, Guzman, and Orantes from their children violated the Eighth Amendment. That forced separation was cruel 10 and excessive. It was deliberately done to penalize and deter persons from seeking asylum. And 11 it was deliberately done as part of the federal government’s zero-tolerance policy against 12 criminal violations of federal immigration laws. Defendants’ forcibly separating plaintiffs 13 Padilla, Guzman, and Orantes from their children violated the constitutional Eighth Amendment 14 rights of plaintiffs and their children. 170. 15 As with plaintiffs Padilla, Guzman, and Orantes, defendants’ forcibly separating 16 members of the family separation class from their children violated substantive due process, 17 procedural due process, and the Eighth Amendment. 18 B. 19 “Credible Fear Interview Class” 171. The federal government’s imprisoning plaintiffs in federal detention for an 20 unreasonable time awaiting their credible fear interview and determination violates their 21 substantive due process rights. The government’s prolonging these asylum seekers’ federal 22 detention by delaying their credible fear interview and determination more than 10 days does not 23 further a legitimate purpose. The government’s prolonging these asylum seekers’ federal 24 detention by delaying their credible fear interview and determination more than 10 days does not 25 further a compelling governmental interest. Defendants’ prolonging plaintiffs’ federal detention 26 AMENDED COMPLAINT - 29 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 8 Filed 07/15/18 Page 30 of 42 1 by delaying their credible fear interview and determination more than 10 days is a violation of 2 the constitutional substantive due process rights of plaintiffs and their children. 3 172. The federal government’s imprisoning plaintiffs in federal detention for an 4 unreasonable time awaiting their credible fear interview and determination violates their 5 procedural due process rights. That ongoing imprisonment awaiting a credible fear interview 6 and determination is contrary to the law governing expedited removal proceedings and is 7 imposed without any hearing. Defendants’ imprisoning plaintiffs in federal detention for an 8 unreasonable time awaiting their credible fear interview and determination is a violation of the 9 constitutional due process rights of plaintiffs and their children 10 173. The federal government’s imprisoning plaintiffs in federal detention for an 11 unreasonable time awaiting their credible fear interview and determination violates the Eighth 12 Amendment. The government’s actions maintaining plaintiffs in limbo in federal detention by 13 deliberately delaying the threshold credible fear interview to which they are entitled is excessive. 14 It is deliberately done as part of the government’s effort to penalize and deter persons from 15 seeking asylum. It is deliberately done as part of the federal government’s zero-tolerance policy 16 against criminal violations of federal immigration laws. Deliberately confining asylum seekers 17 in limbo by delaying the credible fear interview to which they are entitled is cruel. Defendants’ 18 imprisoning plaintiffs in federal detention for an unreasonable time awaiting their credible fear 19 interview and determination is a violation of the constitutional Eighth Amendment rights of 20 plaintiffs and their children. 21 174. As with plaintiffs, defendants’ imprisoning members of the credible fear 22 interview class in federal detention for an unreasonable time awaiting their credible fear 23 interview and determination violates substantive due process, procedural due process, and the 24 Eighth Amendment. 25 26 AMENDED COMPLAINT - 30 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 8 Filed 07/15/18 Page 31 of 42 1 2 C. “Bond Hearing Class” 175. The federal government’s imprisoning plaintiffs in federal detention for an 3 unreasonable time awaiting a bond hearing to set reasonable conditions for their release pending 4 the lengthy proceedings to adjudicate their asylum claim violates substantive due process. The 5 government’s prolonging these asylum seekers’ federal detention by delaying their bond hearing 6 more than 7 days does not further a legitimate purpose. The government’s prolonging these 7 asylum seekers’ federal detention by delaying their bond hearing more than 7 days does not 8 further a compelling governmental interest. Moreover, denying bonds for general deterrence or 9 punishment goals unrelated to the specific factors of whether the individual presents a flight risk 10 or danger to the community unlawfully deprives these asylum seekers of their constitutional right 11 to liberty. Defendants’ prolonging plaintiffs’ federal detention by delaying their bond hearing 12 more than 7 days is a violation of the constitutional substantive process rights of plaintiffs and 13 their children. 14 176. The federal government’s imprisoning plaintiffs in federal detention for an 15 unreasonable time awaiting a bond hearing to set reasonable conditions for their release pending 16 the lengthy proceedings to adjudicate their asylum claim violates procedural due process. That 17 ongoing detention is imposed without providing basic procedural protections, such as a bond 18 hearing with a transcript or recording of the hearing, and denying plaintiffs an adequate record to 19 file an administrative appeal or habeas petition. Moreover, denying bonds for general deterrence 20 goals unrelated to the specific factors of whether the individual presents a flight risk or danger to 21 the community strips detained asylum seekers of a fair hearing. Defendants’ prolonging 22 plaintiffs’ federal detention by failing to provide a bond hearing with a verbatim transcript or 23 recording of the hearing within 7 days of requesting a bond is a is a violation of the constitutional 24 substantive due process rights of plaintiffs and their children. 25 26 177. The federal government’s imprisoning plaintiffs for an unreasonable time pending the lengthy proceedings to adjudicate their asylum claim violates the Eighth Amendment. The AMENDED COMPLAINT - 31 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 8 Filed 07/15/18 Page 32 of 42 1 government’s keeping their detention in limbo by deliberately delaying the bond hearing to 2 which they are entitled is excessive. Moreover, the government’s determinations to deny bond 3 for general deterrence policy purposes, rather than based on individual determinations based on 4 evidence that the person presents a flight risk or threat to the community, violates the Eighth 5 Amendment. It is deliberately done as part of the government’s effort to penalize and deter 6 persons from seeking asylum. It is deliberately done as part of the federal government’s 7 zero-tolerance policy against criminal violations of federal immigration laws. Deliberately 8 confining detained asylum seekers by delaying bond hearings and denying bond for general 9 deterrence and policy measures unrelated to their individual cases is cruel. Defendants’ 10 imprisoning plaintiffs in federal detention for an unreasonable time pending the lengthy 11 proceedings to adjudicate their asylum claim by failing to provide a bond hearing with a 12 verbatim transcript or recording of the hearing within 7 days of plaintiffs requesting a bond 13 hearing is a violation of the constitutional Eighth Amendment rights of plaintiffs and their 14 children. 15 178. As with plaintiffs, defendants’ imprisoning members of the bond hearing class in 16 federal detention for an unreasonable time awaiting a bond hearing to set reasonable conditions 17 for their release pending the lengthy proceedings to adjudicate their asylum claim violates 18 substantive due process, procedural due process, and the Eighth Amendment. COUNT II (Administrative Procedure Act - Arbitrary and Capricious Practice) 19 20 21 22 23 24 179. All allegations in this Amended Complaint that are not inconsistent with this Count are repeated and re-alleged as though fully set forth in this numbered paragraph. 180. The APA prohibits agency action that is arbitrary and capricious. 181. The APA prohibits agency action that is contrary to a constitutional right. 25 26 AMENDED COMPLAINT - 32 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 8 Filed 07/15/18 Page 33 of 42 1 A. “Family Separation Class” 182. 2 Defendants’ decision to separate plaintiffs Padilla, Guzman, and Orantes from 3 their children without a compelling justification, and without a mechanism, protocol, or system 4 to guarantee their reunification, is a final agency action. That action is arbitrary and capricious. 5 It violates the APA. 5 U.S.C. §706(2)(A). 183. 6 As with plaintiffs Padilla, Guzman, and Orantes, defendants’ decision to separate 7 members of the family separation class from their children without a compelling justification, 8 and without a mechanism, protocol, or system to guarantee their reunification, is a final agency 9 action. That action is arbitrary and capricious. It violates the APA. 5 U.S.C. §706(2)(A). 10 B. “Credible Fear Interview Class” 184. 11 Defendants’ decision to detain plaintiffs for an unreasonable time awaiting their 12 credible fear interview, without a compelling justification and without a mechanism, protocol, or 13 system to assure a prompt and fair credible fear interview and determination, is a final agency 14 action. That action is arbitrary and capricious. It violates the APA. 5 U.S.C. §706(2)(A). 185. 15 As with plaintiffs, defendants’ decision to detain members of the credible fear 16 interview class for an unreasonable time awaiting their credible fear interview, without a 17 compelling justification and without a mechanism, protocol, or system to assure a prompt and 18 fair credible fear interview and determination, is a final agency action. That action is arbitrary 19 and capricious. It violates the APA. 5 U.S.C. §706(2)(A). 20 C. 21 “Bond Hearing Class” 186. Defendants’ decision to detain plaintiffs for an unreasonable time awaiting a bond 22 hearing to set reasonable conditions for their release pending the lengthy proceedings to 23 adjudicate their asylum claim, without a compelling justification and without a mechanism, 24 protocol, or system to assure a prompt and fair bond hearing, is a final agency action. That 25 action is arbitrary and capricious. It violates the APA. 5 U.S.C. §706(2)(A). 26 AMENDED COMPLAINT - 33 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 8 Filed 07/15/18 Page 34 of 42 187. 1 As with plaintiffs, defendants’ decision to detain members of the bond hearing 2 class for an unreasonable time awaiting a bond hearing to set reasonable conditions for their 3 release pending the lengthy proceedings to adjudicate their asylum claim, without a compelling 4 justification and without a mechanism, protocol, or system to assure a prompt and fair bond 5 hearing, is a final agency action. That action is arbitrary and capricious. It violates the APA. 6 5 U.S.C. §706(2)(A). 188. 7 Defendants’ decision to deny plaintiffs a bond hearing with adequate procedural 8 protections, specifically a recording or transcript of the hearing available for any subsequent 9 administrative appeal or habeas petition, is a final agency action. That action is arbitrary and 10 capricious. It violates the APA. 5 U.S.C. §706(2)(A). 189. 11 As with plaintiffs, defendants’ decision to deny members of the bond hearing 12 class a bond hearing with adequate procedural protections, specifically a recording or transcript 13 of the hearing available for any subsequent administrative appeal or habeas petition, is, is a final 14 agency action. That action is arbitrary and capricious. It violates the APA. 15 5 U.S.C. §706(2)(A). COUNT III (Administrative Procedure Act Agency Action Unlawfully Withheld or Unreasonably Delayed) 16 17 18 19 190. Count are repeated and re-alleged as though fully set forth in this numbered paragraph. 20 21 All allegations in this Amended Complaint that are not inconsistent with this 191. The APA imposes on federal agencies the duty to conclude matters presented to it within a “reasonable time.” 5 U.S.C. §555(b). 22 192. The APA prohibits agency action that is “unlawfully withheld or unreasonably 23 delayed.” 5 U.S.C. §706(1). 24 A. 25 26 “Family Separation Class” 193. Defendants’ failure to promptly reunify plaintiffs Padilla, Guzman, and Orantes with their children violates defendants’ legal duty under the APA to conclude matters within a AMENDED COMPLAINT - 34 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 8 Filed 07/15/18 Page 35 of 42 1 reasonable time, and constitutes an agency action unlawfully withheld or unreasonably delayed 2 in violation of the APA. 5 U.S.C. §706(2)(A). 194. 3 As with plaintiffs Padilla, Guzman, and Orantes, defendants’ failure to promptly 4 reunify members of the family separation class with their children violates defendants’ legal duty 5 under the APA to conclude matters within a reasonable time, and constitutes an agency action 6 that is unlawfully withheld or unreasonably delayed in violation of the APA. 7 5 U.S.C. §706(2)(A). 8 B. “Credible Fear Interview Class” 195. 9 A person placed in expedited removal proceedings who is seeking asylum is 10 allowed to present their asylum claim to an immigration judge only after DHS conducts a 11 credible fear interview to determine if the person seeking asylum has a “credible fear of 12 persecution.” 8 C.F.R. §208.30(f), (g). 196. 13 Conducting a credible fear interview to determine whether a person seeking 14 asylum has a credible fear of persecution is a discrete, final agency action that DHS is required to 15 take. 16 197. DHS’s obligation to conduct a credible fear interview to determine whether the 17 person seeking asylum has a credible fear of persecution is triggered when that person requests 18 asylum or expresses a fear of persecution to any DHS official. 8 U.S.C. §1225(b)(1)(A)(ii). 19 198. DHS’s failure to promptly conduct a credible fear interview for the credible fear 20 determination after plaintiffs requested asylum or expressed a fear of persecution violated DHS’s 21 legal duty under the APA to conclude matters presented to it within a reasonable time. 22 199. DHS’s failure to promptly conduct a credible fear interview for the credible fear 23 determination after plaintiffs requested asylum or expressed a fear of persecution constituted an 24 agency action that was unlawfully withheld or unreasonably delayed in violation of the APA. 25 26 200. As with plaintiffs, DHS’s failure to promptly conduct a credible fear interview for the credible fear determination after members of the credible fear interview class requested AMENDED COMPLAINT - 35 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 8 Filed 07/15/18 Page 36 of 42 1 asylum or expressed a fear of persecution violates its legal duty under the APA to conclude 2 matters presented to it within a reasonable time, and constituted an agency action that is 3 unlawfully withheld or unreasonably delayed in violation of the APA. 4 C. “Bond Hearing Class” 201. 5 If the credible fear interview conducted by DHS determines that an asylum seeker 6 has a credible fear of persecution, DHS assigns the case to EOIR to initiate immigration court 7 proceedings for that asylum seeker to adjudicate his or her asylum claim before an immigration 8 judge. 9 202. If an asylum seeker in the bond hearing class is found to have a credible fear of 10 persecution and is in federal detention, that asylum seeker is entitled to a bond hearing to set 11 reasonable conditions for his or her release from federal detention pending the lengthy 12 proceedings to adjudicate his or her asylum claim. 13 203. Defendant EOIR’s failure to promptly conduct a bond hearing to set reasonable 14 conditions for a detained asylum seeker’s release pending the lengthy proceedings to adjudicate 15 his or her asylum claim violates defendant’s legal duty under the APA to conclude matters 16 presented to it within a reasonable time. 17 204. Defendant EOIR’s failure to conduct a bond hearing with appropriate procedural 18 safeguards to set reasonable conditions for a detained asylum seeker’s release pending the 19 lengthy proceedings to adjudicate his or her asylum claim constitutes an agency action 20 unlawfully withheld or unreasonably delayed in violation of the APA. 21 205. As with plaintiffs, defendant EOIR’s failure to promptly conduct a bond hearing 22 with appropriate procedural safeguards to set reasonable conditions for a detained asylum 23 seeker’s release pending the lengthy proceedings to adjudicate his or her asylum claim violates 24 its legal duty under the APA to conclude matters presented to it within a reasonable time, and 25 constitutes an agency action that is unlawfully withheld or unreasonably delayed in violation of 26 the APA. AMENDED COMPLAINT - 36 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 8 Filed 07/15/18 Page 37 of 42 COUNT IV (Violation of Asylum Law) 1 2 206. 3 4 Count are repeated and re-alleged as though fully set forth in this numbered paragraph. 207. 5 6 7 8 C.F.R. §§ 235.3(b)(4), 208.30, & 1003.42; 8 U.S.C. §1158(a)(1). 208. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 International law likewise recognizes the fundamental human right to asylum of persons fleeing for safety from persecution and torture. 209. 10 11 United States law grants noncitizens fleeing persecution the opportunity to apply for asylum in the United States. 8 U.S.C. §1225(b)(1) (expedited removal); 8 9 All allegations in this Amended Complaint that are not inconsistent with this Noncitizens fleeing persecution have a private right of action to vindicate their right to apply for and receive asylum in the United States. A. “Family Separation Class” 210. When plaintiffs Padilla, Guzman, and Orantes requested asylum, defendants promptly took their minor child away from them (1) without any evidence or accusation that they were unfit parents, or were not acting in the best interest of their child, or were a threat to their child’s safety, or abused their child, or neglected their child, and (2) without any hearing. 211. Defendants’ promptly taking away the minor children of asylum seekers Padilla, Guzman, and Orantes unlawfully infringed on their legal right to pursue their asylum claims. 212. As with plaintiffs Padilla, Guzman, and Orantes, defendants separated members of the family separation class from their child (1) without any evidence or accusation that they were unfit parents, or were not acting in the best interest of their child, or were a threat to their child’s safety, or abused their child, or neglected their child, and (2) without any hearing. 213. As with plaintiffs Padilla, Guzman, and Orantes, defendants’ promptly taking away the minor children of members of the family separation class unlawfully infringed on their legal right to pursue their asylum claims. 26 AMENDED COMPLAINT - 37 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 8 Filed 07/15/18 Page 38 of 42 1 B. “Credible Fear Interview Class” 214. 2 Defendants’ failure to promptly conduct a credible fear interview for the credible 3 fear determination after plaintiffs requested asylum or expressed a fear of persecution unlawfully 4 infringed on their legal right to pursue their asylum claims. 215. 5 As with plaintiffs, defendants’ failure to promptly conduct a credible fear 6 interview for the credible fear determination after credible fear interview class members 7 requested asylum or expressed a fear of persecution unlawfully infringes on their legal right to 8 pursue their asylum claims. 9 C. 10 “Bond Hearing Class” 216. Defendants’ failure to promptly conduct a bond hearing to set reasonable 11 conditions for the release of plaintiffs pending the lengthy proceedings to adjudicate their asylum 12 claims unlawfully infringes on their legal right to pursue their asylum claims. 13 217. As with plaintiffs, defendants’ failure to promptly conduct a bond hearing to set 14 reasonable conditions for the release of members of the bond hearing class pending the lengthy 15 proceedings to adjudicate their asylum claims unlawfully infringes on their legal right to pursue 16 their asylum claims. 17 18 19 VIII. PRAYER FOR RELIEF Plaintiffs respectfully request that this Court enter judgment against defendants granting the following relief: 20 A. Certify the following Family Separation Class: “All parents who sought asylum and 21 were (1) detained in immigration custody by defendants in Washington State and 22 (2) separated from a minor child by defendants absent a demonstration in a hearing 23 that that parent is unfit or presents a danger to the child.” 24 25 B. Name plaintiffs Padilla, Guzman, and Orantes as representatives of the Family Separation Class, and appoint their counsel as Family Separation Class counsel. 26 AMENDED COMPLAINT - 38 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 8 Filed 07/15/18 Page 39 of 42 1 2 3 4 C. Declare that defendants’ separation of plaintiffs Padilla, Guzman, and Orantes from their children is unlawful. D. Declare that defendants’ separation of Family Separation Class members from their children is unlawful. 5 E. Preliminarily and permanently enjoin defendants from detaining Family Separation 6 Class members (including plaintiffs Padilla, Guzman, and Orantes) in separate 7 locations from where their children are detained; and enjoin defendants from 8 removing Family Separation Class members (including plaintiffs Padilla, Guzman, 9 and Orantes) from the country until they are reunited with their children (in the event 10 they are not permitted to remain in the United States), absent the parent’s permission 11 or a hearing before a court where the government demonstrates that it is not in the 12 child’s best interest to be reunified with their parent. 13 F. Certify the following Credible Fear Interview Class: “All detained asylum seekers 14 in the United States subject to expedited removal proceedings under 15 8 U.S.C. §1225(b) who are not provided a credible fear determination within 10 days 16 of requesting asylum or expressing a fear of persecution to a DHS official.” 17 18 G. Name plaintiffs as representatives of the Credible Fear Interview Class, and appoint their counsel as class counsel. 19 H. Declare that defendants have an obligation to provide Credible Fear Interview Class 20 members (including plaintiffs) their credible fear interview and determination within 21 10 days of that person’s requesting asylum or expressing a fear of persecution to any 22 DHS official. 23 I. Preliminarily and permanently enjoin defendants from not providing Credible Fear 24 Interview Class members (including plaintiff Vasquez) their credible fear 25 determination within 10 days of that person’s requesting asylum or expressing a fear 26 of persecution to any DHS official. AMENDED COMPLAINT - 39 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 8 Filed 07/15/18 Page 40 of 42 1 J. Certify the following Bond Hearing Class: “All detained asylum seekers who 2 entered the United States without inspection, were initially subject to expedited 3 removal proceedings under 8 U.S.C. §1225(b), were determined to have a credible 4 fear of persecution, but are not provided a bond hearing with a verbatim transcript or 5 recording of the hearing within 7 days of requesting a bond hearing.” 6 7 8 9 10 11 K. Name plaintiffs as representatives of the Bond Hearing Class, and appoint their counsel as class counsel. L. Declare that defendants have an obligation to provide Bond Hearing Class members (including plaintiffs ) a bond hearing within 7 days of their requesting a hearing to set reasonable conditions for their release pending adjudication of their asylum claim. M. Declare that defendants have an obligation to provide Bond Hearing Class members 12 (including plaintiffs) a bond hearing with adequate procedural safeguards, including a 13 verbatim transcript or recording of their bond hearing. 14 N. Preliminarily and permanently enjoin defendants from not providing Bond Hearing 15 Class members (including plaintiffs Guzman, Orantes, and Vasquez) their bond 16 hearing with a verbatim transcript or recording of their bond hearing. 17 O. Preliminarily and permanently enjoin defendants from not providing Bond Hearing 18 Class members (including plaintiffs Orantes and Vasquez) their bond hearing within 19 7 days of the asylum seeker’s request. 20 P. Order defendants to pay reasonable attorneys’ fees and costs. 21 Q. Order all other relief that is just and proper. 22 23 24 25 26 AMENDED COMPLAINT - 40 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 8 Filed 07/15/18 Page 41 of 42 1 2 3 Dated this 15th day of July, 2018. 4 5 6 7 8 9 10 11 12 13 14 s/ Matt Adams Matt Adams, WSBA No. 28287 Email: matt@nwirp.org s/ Thomas F. Ahearne Thomas F. Ahearne, WSBA #14844 Email: ahearne@foster.com Glenda M. Aldana Madrid, WSBA No. 46987 Email: glenda@nwirp.org *William F. Abrams, CA Bar #88805 *Admitted pro hac vice *Email: bill.abrams@foster.com Leila Kang, WSBA No. 48048 Email: leila@nwirp.org Joanna Plichta Boisen, WSBA #38368 Email: Joanna.boisen@foster.com NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone: (206) 957-8611 Facsimile: (206) 587-4025 Attorneys for Plaintiffs-Petitioners Benjamin J. Hodges, WSBA #49301 Email: ben.hodges@foster.com Kevin Ormiston, WSBA #49835 Email: kevin.ormiston@foster.com FOSTER PEPPER PLLC 1111 Third Avenue, Suite 3000 Seattle, Washington 98101-3292 Telephone: (206) 447-4400 Facsimile: (206) 447-9700 Attorneys for Plaintiffs-Petitioners 15 16 17 18 19 20 21 22 23 24 25 26 AMENDED COMPLAINT - 41 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 8 Filed 07/15/18 Page 42 of 42 CERTIFICATE OF SERVICE 1 2 3 4 I hereby certify that on July 15, 2018, I had the foregoing electronically filed with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to those attorneys of record registered on the CM/ECF system. All other parties (if any) shall be served 5 6 7 in accordance with the Federal Rules of Civil Procedure. DATED this 15th day of July, 2018. 8 s/ Thomas F. Ahearne FOSTER PEPPER PLLC 1111 Third Avenue, Suite 3000 Seattle, Washington 98101-3292 Telephone: (206) 447-8934 Facsimile: (206) 447-9700 Email: ahearne@foster.com 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AMENDED COMPLAINT - 42 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611