Case 3:18-cv-00428-DMS-MDD Document 148 Filed 07/24/18 PageID.2429 Page 1 of 32

1 CHAD A. READLER
Acting Assistant Attorney General
2 SCOTT G. STEWART
3 Deputy Assistant Attorney General
AUGUST E. FLENTJE
4 Special Counsel
5 WILLIAM C. PEACHEY
Director
6
WILLIAM C. SILVIS
7 Assistant Director
SARAH B. FABIAN
8
Senior Litigation Counsel
9 NICOLE MURLEY
Trial Attorney
10
U.S. Department of Justice
11 Office of Immigration Litigation
Box 868, Ben Franklin Station
12
Washington, DC 20442
13 Telephone: (202) 532-4824

ADAM L. BRAVERMAN
United States Attorney
SAMUEL W. BETTWY
Assistant U.S. Attorney
California Bar No. 94918
Office of the U.S. Attorney
880 Front Street, Room 6293
San Diego, CA 92101-8893
619-546-7125
619-546-7751 (fax)
Attorneys for Federal RespondentsDefendants

14
15

UNITED STATES DISTRICT COURT

16

SOUTHERN DISTRICT OF CALIFORNIA

17
18

MS. L., et al.

Case No. 18-cv-428 DMS MDD

19
Petitioners-Plaintiffs,

20
21

vs.

22

U.S. IMMIGRATION AND CUSTOMS
23 ENFORCEMENT, et al.,
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25
26
27
28

Respondents-Defendants.

Hon. Dana M. Sabraw
RESPONDENTS-DEFENDANTS’
OPPOSITION TO PETITIONERSPLAINTIFFS’ MOTION FOR STAY
OF REMOVAL

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TABLE OF CONTENTS

1
2
3

I. INTRODUCTION ..................................................................................................... 1
II. LEGAL BACKGROUND ......................................................................................... 5

4
5
6

III. PROCEDURAL BACKGROUND ........................................................................... 7
IV. ARGUMENT.......................................................................................................... 10

7
8

A.

This Court’s Orders – and Defendants’ Compliance with Those Orders –
Address and Eliminate the Harms that Plaintiffs’ Allege ............................. 11

B.

The Court Lack Jurisdiction to Order the Relief Sought by Plaintiffs ......... 18

9
10
11

1. Federal Law precludes the Court from staying executions of
class members’ final orders of expedited removal ............................. 18

12
13

2. Section 1252(g) precludes the court from staying execution of a
final order of expedited removal or any other order of removal ........ 20

14
15

3. Even should the court determine it possesses such jurisdiction to
consider a stay, Plaintiffs have not even claimed to satisfy the
applicable legal standard articulated in Nken v. Holder. .................... 23

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17
18
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20
21
22
23
24
25
26
27
28

C.

Plaintiffs Have Sought No Relief With Respect to
Class Members Who Have Waived Reunification Under
this Court’s Injunction ................................................................................... 23

CONCLUSION .............................................................................................................. 25

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1

TABLE OF AUTHORITIES

2

CASES

3 Aguilar v. US ICE,
510 F.3d 1 (1st Cir. 2007) ............................................................................................... 20
4
Arizona v. United States,
567 U.S. 387 (2012) .......................................................................................................... 5
5
6 Avendano-Ramirez v. Ashcroft,
365 F.3d 813 (9th Cir. 2004) ........................................................................................... 20
7
Barahona-Gomez v. Reno,
167 F.3d 122 (9th Cir. 1999) ........................................................................................... 21
8
9 Chhoeun v. Marin,
No. 17-cv-01898, 2018 WL 566821 (C.D. Cal. Jan. 25, 2018) ...................................... 22
10
Diaz-Amezcua v. Johnson,
No. C14-1313 MJP, 2015 WL 419029 (W.D. Wash. Jan. 30, 2015) ............................. 22
11
12 Elgharib v. Napolitano,
600 F.3d 597 (6th Cir. 2010) ........................................................................................... 21
13
Garcia de Rincon v. DHS,
539 F.3d 1133 (9th Cir. 2008) ......................................................................................... 19
14
15 Jennings v. Rodriguez,
138 S. Ct. 830 (2018) .................................................................................................. 5, 21
16
Kucana v. Holder,
558 U.S. 233 (2010) .......................................................................................................... 6
17
18 Kwai Fun Wong v. United States,
373 F.3d 952 (9th Cir. 2004) ........................................................................................... 21
19
Mejia–Espinoza v. Mukasey,
Case No. CV 08–7984–FMC, 2009 WL 235625 (C.D. Cal. Jan. 27, 2009)................... 22
20
21 Nken v. Holder,
556 U.S. 418 (2009) ........................................................................................................ 23
22
Pena v. Lynch,
815 F.3d 452 (9th Circ. 2015) ......................................................................................... 20
23
24 Rosales v. Aitken,
No. 11–CV–4246, 2011 WL 4412654 ............................................................................ 22
25
Shaughnessy v. United States ex rel. Mezei,
345 U.S. 206 (1953) .......................................................................................................... 5
26
27 Sied v. Nielsen,
No. 17-cv-06785, 2018 WL 1142202 (N.D. Cal. Mar. 2, 2018)..................................... 22
28
ii

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1 Silva v. United States,
866 F.3d 938 (8th Cir. 2017) ........................................................................................... 21
2
United States v. Hovsepian,
359 F.3d 1144 (9th Cir. 2004) ......................................................................................... 22
3
4 Walters v. Reno,
145 F.3d 1032 (9th Cir. 1998) ......................................................................................... 21
5
6

STATUTES

7 6 U.S.C. § 278(b)(1)(H) ...................................................................................................... 14
8 6 U.S.C. § 279(g)(2)(C)(ii) ................................................................................................... 7
9 6 U.S.C. § 679(g) ................................................................................................................ 14
10 8 U.S.C. § 1182 ..................................................................................................................... 5
11 8 U.S.C. § 1225 ..................................................................................................................... 5
12 8 U.S.C. § 1225(b)(1)........................................................................................................ 5, 6
13 8 U.S.C. § 1225(b)(1)(A)(iii)(I) ............................................................................................ 6
14 8 U.S.C. § 1225(b)(1)(A)(iii)(II)........................................................................................... 6
15 8 U.S.C. § 1225(b)(1)(A)(iii)(III) ......................................................................................... 6
16 8 U.S.C. § 1225(b)(1)(B)(iii) ................................................................................................ 7
17 8 U.S.C. § 1225(b)(1)(B)(iii)(IV) ....................................................................................... 15
18 8 U.S.C. § 1225(b)(1)(B)(v) ................................................................................................. 6
19 8 U.S.C. § 1225(b)(1)(C) ...................................................................................................... 7
20 8 U.S.C. § 1225(b)(1)(D) ........................................................................................................
21 8 U.S.C. § 1226 ..................................................................................................................... 5
22 8 U.S.C. § 1229a ............................................................................................................... 6, 7
23 8 U.S.C. § 1231 ..................................................................................................................... 5
24 8 U.S.C. § 1231(a)(2) .......................................................................................................... 15
25 8 U.S.C. § 1231(a)(5) ............................................................................................................ 7
26 8 U.S.C. § 1232(a)(5)(D) ................................................................................................ 7, 14
27 8 U.S.C. § 1252(a) .............................................................................................................. 18
28 8 U.S.C. § 1252(a)(2)(A)(i) .................................................................................................. 5
iii

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1
2
3
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5
6
7
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9
10
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13
14
15
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17

8 U.S.C. § 1252(a)(2)(A)(iii) ................................................................................................ 7
8 U.S.C. 1252(e)(1) ............................................................................................................... 5
8 U.S.C. 1252(e)(2) ............................................................................................................... 5
8 U.S.C. 1252(e)(4) ............................................................................................................... 5
8 U.S.C. 1252(g) ............................................................................................... 10, 18, 20, 21
8 U.S.C. § 1357 ..................................................................................................................... 5
REGULATIONS
8 C.F.R. § 208.30(e)(2) ......................................................................................................... 6
8 C.F.R. § 208.30(f) .............................................................................................................. 6
8 C.F.R. § 208.30(g) ............................................................................................................. 6
8 C.F.R. § 208.30(g)(2)(1) .................................................................................................... 6
8 C.F.R. § 208.31 .................................................................................................................. 7
8 C.F.R. § 241.8 .................................................................................................................... 7
8 C.F.R. § 1003.42(d) ........................................................................................................... 6
8 C.F.R. § 1208.30(g)(2)(iv)(B)............................................................................................ 7
OTHER AUTHORITIES
H.R. Rep. No. 104-469 at 117 .............................................................................................. 6

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iv

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1
2

I.

INTRODUCTION
Under a procedure proposed by Plaintiffs and adopted by the Court, class members

3 with final removal orders are given 48 hours prior to removal to decide whether they want
4
to reunify with their children and return to their home country as a family, or waive
5
6 reunification and be removed alone. 1 After Plaintiffs successfully persuaded this Court to
7

impose these requirements on Defendants, and Defendants began implementing them in

8
9

good faith, Plaintiffs now seek significant and unwarranted additional relief – namely, a

10 stay barring the government from removing class members from the United States until
11

seven days after being reunified with his or her child. This relief serves no purpose but

12
13

extending detention and delaying removal and, in any event, the Court lacks jurisdiction to

14 order the stay that Plaintiffs request.
15

A. The parties engaged in a lengthy meet and confer process pursuant to this Court’s

16
17

request to resolve this matter without Court intervention. During the meet and confer

18 process, and in spite of Plaintiffs obtaining the relief they had previously sought on this
19

issue with the 48 hour election form, the government made a reasonable offer to address

20
21 the new concerns raised by Plaintiffs raised: the possibility that after choosing to be
22 reunified with their minor children and returning to their home country together as a family,
23

some parents might consult with counsel further, change their minds, and leave their

24
25 children behind in the United States.
26
1
Joint Status Report Regarding Notice To Class Members at 2 (ECF No. 97)
27 (“Plaintiffs
propose a 48-hour time period.”); 7/10/18 Hearing Tr. 4:3-5 (ECF No. 103)
(“On
the
class
notice issue, I am going to adopt the Plaintiffs’ version, so that notice may
28 issue in accordance
with the plaintiffs’ proposal.”).

1

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1

First, the government proposed to delay removals until four days after reunification

2 – and three days after Plaintiffs’ counsel received formal notice of reunification – to permit
3
Plaintiffs’ counsel to meet with families to discuss potential immigration relief that the
4
5 child might have if the parent left him or her behind unaccompanied in the United States
6

and subject to ORR’s care. Second, the government proposed to agree to implement a

7
8

parent’s decision to leave their child behind in the United States, by transferring that child

9 back to ORR care and custody at the parent’s request. Third, the government offered to
10

use the Karnes Family Residential Center exclusively for the reunification of class

11
12

members subject to final removal orders, to allow Plaintiffs’ counsel to utilize all attorney-

13 client visitation space to meet with families, to extend hours for visitation to accommodate
14

those meetings, and to otherwise work with Plaintiffs to accommodate the needs to meet

15
16

with reunited families on an accelerated time frame. The government declined, however,

17 to agree to a stay of removal for the subset of class members who already waived
18

reunification pursuant to the process the Court approved – an issue that the Court resolved

19
20 just days before Plaintiffs’ motion was filed, and that was well beyond the scope of
21 Plaintiffs’ motion, this Court’s stay, and the Court-requested meet and confer regarding
22

Plaintiffs’ motion.

23
24

B. The government offered this solution as a way to resolve this without court

25 intervention. But an accommodation of this nature – or the longer seven day delay sought
26

by Plaintiffs – is not appropriate court-ordered relief in these circumstances for several

27
28 reasons.
2

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1

First, this Court’s orders—and Defendants’ compliance with those orders—already

2 fully address and eliminate the harms that Plaintiffs allege warrant a seven-day stay,
3
including the 48-hour delay of removal previously ordered by this Court. Plaintiffs’ stay
4
5 motion rests on the argument that “Class Members and their children face the real risk of
6

deportation without ever being properly advised as their rights” under the Court’s

7
8

injunction or “the effect of a waiver of the rights on their children.” Mot. 3 (emphasis

9 omitted). Plaintiffs are wrong—this Court’s orders address all of those concerns.
10

This Court already granted class-member parents who are subject to final removal

11
12

orders adequate time to make a sound choice regarding whether to exercise or waive the

13 reunification rights provided to them by the Court’s injunction—indeed, Plaintiffs
14

proposed the very 48-hour time period that the Court approved. See ECF No. 97 at 1-2 and

15
16

attachments; 7/10/18 Hearing Tr. 4:3-5; id. at 31:13-18. Moreover, once the parent is

17 identified, and has chosen using the Court-approved form to reunify with their child,
18

requiring a parent to again choose whether to leave their child in the United States is

19
20 inconsistent with this Court’s effort to return to the status quo and bring families back
21 together.
22

This is also consistent with this Court’s orders. Under paragraph 6 of this Court’s

23
24 preliminary-injunction order, a class member must be reunified prior to removal unless the
25 parent affirmatively, knowingly, and voluntarily “declines to be reunited” with their child.
26

ECF No. 83 at 24. In accordance with Plaintiffs’ position on how best to implement

27
28 paragraph 6, this Court approved a notice, election form, and 48-hour period prior to
3

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1 removal to consult with a lawyer and with their child before deciding whether to waive
2 reunification prior to removal. See ECF No. 97; Notice (attached as Exhibit 2). Thus, class
3
members with final removal orders are given this notice and provided with 48 hours to
4
5 make an election to take their child with them when they are removed or waive
6

reunification.

Moreover, this Court’s injunction gives class members the ability to

7
8

communicate with their children.

Paragraph 4 of this Court’s injunction required

9 Defendants to “immediately take all steps necessary to facilitate regular communication
10

between Class Members and their children who remain in ORR custody, ORR foster care,

11
12

or DHS custody.” ECF No. 83 at 23. Defendants have taken significant steps to implement

13 that directive. Jennings Declaration ¶¶ 6-7 (attached as Exhibit 1).
14

Further, the relief now requested is in tension with this Court’s Due Process Clause

15
16

directive that families be brought back together for immigration proceedings, and its

17 assurance that its rulings do not “implicate the Government’s discretionary authority to
18

enforce immigration . . . laws.” ECF 83, at 3. On top of these points, Plaintiffs claim

19
20 seems to be that their children should be able to utilize the procedural protections that are
21 designed for unaccompanied children, but here this Court held that these procedures do not
22

squarely fit the situation here where parents are seeking reunification, and they certainly

23
24 do not apply after the family is together.
25
26

Second, this Court lacks jurisdiction to grant the stay of removal that Plaintiffs
seek. The Immigration and Nationality Act (INA) strips district courts of jurisdiction to

27
28 enjoin execution of a final expedited removal order—the type of removal order applicable
4

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1 to many of the class members at issue. See 8 U.S.C. §§ 1252(a)(2)(A)(i), 1252(e)(1), (2),
2 (4). The INA more generally forbids district courts from enjoining any decision or action
3
by the government to execute removal orders. See id. § 1252(g). This Court lacks authority
4
5 to issue the requested relief, so it should deny Plaintiffs’ motion.
6

II.

LEGAL BACKGROUND

7
8

The political branches have “broad, undoubted power over the subject of

9 immigration and the status of aliens.” Arizona v. United States, 567 U.S. 387, 394 (2012).
10

That power includes the discretionary authority to determine who may enter the United

11
12

States and on what terms—and who may be removed from the country because of a

13 violation of law. See 8 U.S.C. §§ 1182, 1225, 1226, 1231, 1357. “[T]he power to expel
14

or exclude aliens [i]s a fundamental sovereign attribute exercised by the Government’s

15
16

political departments largely immune from judicial control.” Shaughnessy v. United States

17 ex rel. Mezei, 345 U.S. 206, 210 (1953); see also Jennings v. Rodriguez, 138 S. Ct. 830,
18

836 (2018) (“To implement its immigration policy, the Government must be able to decide

19
20 (1) who may enter the country and (2) who may stay here after entering.”).
21
22

Exercising its broad authority in this sphere, Congress has authorized the Executive
Branch to remove aliens from the country—including, in some situations, pursuant to

23
24 streamlined procedures. Under 8 U.S.C. § 1225(b)(1), certain inadmissible aliens arriving
25 at or encountered near the United States border may be “removed from the United States
26

without further hearing or review.” Section 1225(b)(1) ensures that the Executive can

27
28 “expedite removal of aliens lacking a legal basis to remain in the United States,” Kucana
5

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1 v. Holder, 558 U.S. 233, 249 (2010), and deter individuals from exposing themselves to
2 the dangers associated with illegal immigration. See H.R. Rep. No. 104-469, pt. 1, at 117
3
(1996).
4
5
6

The U.S. Department of Homeland Security (DHS) has authority over removal of
aliens, including over expedited removal. See, e.g., 8 U.S.C. § 1225(b)(l)(A)(iii)(I)–(II).

7
8

If an alien subject to expedited removal expresses an intent to apply for asylum or a fear of

9 persecution or torture, then he or she is referred to a U.S. Citizenship and Immigration
10

Services (USCIS) asylum officer who interviews the alien, reviews relevant facts, and

11
12

determines whether the alien has a “credible fear.” 8 U.S.C. § 1225(b)(1). An alien will

13 be found to have a credible fear where there is a “significant possibility” that the alien
14

could establish eligibility for asylum or withholding or deferral of removal under the

15
16

regulations implementing the Convention Against Torture. See id. §§ 1225(b)(1)(B)(v),

17 1158; 8 C.F.R. § 208.30(e)(2), (3). If the asylum officer determines the alien has a credible
18

fear, the alien is referred to an immigration court for removal proceedings. See 8 U.S.C.

19
20 § 1229a; 8 C.F.R. §§ 208.30(f), 1003.42(f). If the asylum officer concludes that the alien
21 has not satisfied the credible-fear standard, the alien may request de novo review by an
22

immigration

judge

of

the

negative

credible-fear

finding.

See

8

U.S.C.

23
24 § 1225(b)(1)(B)(iii)(III); 8 C.F.R. §§ 208.30(g), 1208.30(g)(2)(1), 1003.42(d).
25
26

If the immigration judge finds that a credible fear of persecution or torture exists,
the alien will be placed into removal proceedings and afforded the opportunity to seek

27
28 asylum in immigration court. 8 C.F.R. § 1208.30(g)(2)(iv)(B); see also 8 U.S.C. § 1229a.
6

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1 If the immigration judge concurs with the asylum officer that credible fear has not been
2 demonstrated, the case is returned to DHS for execution of the removal order. 8 U.S.C. §
3
1225(b)(1)(B)(iii). The alien is entitled to no further review of the negative credible-fear
4
5 determination or expedited-removal order (other than in circumstances inapplicable here).
6

8 U.S.C. §§ 1225(b)(1)(C)–(D), 1252(a)(2)(A)(iii).2

7
The TVPRA provides different immigration procedures for unaccompanied alien

8

9 children, specifically excluding expedited removal. 8 U.S.C. § 1232(a)(5)(D). But the
10

substantive immigration law on asylum is the same, and the TVPRA procedures apply only

11
12

when an alien is under 18 years of age and “no parent . . . in the United States is available

13 to provide care and physical custody.” 6 U.S.C. § 279(g)(2)(C)(ii).
14

III.

PROCEDURAL BACKGROUND

15
16

On June 26, 2018, this Court certified a class encompassing “adult parents who enter

17 the United States at or between designated ports of entry.” Order Granting in Part Plaintiffs’
18

Motion for Class Certification, ECF No. 82 at 17. The Court also issued a preliminary

19
20 injunction that generally requires Defendants to reunite class members with children from
21 whom they were separated. Preliminary Injunction Order, ECF No. 83, at 23-24. Because
22
23
24
25
26
27
28

2

A small number of class members may be subject to reinstatement of removal
because they previously were ordered removed from the United States. 8 U.S.C. §
1231(a)(5), 8 C.F.R. § 241.8. Reinstatement of removal applies to aliens who return to the
United States illegally after having been previously removed. Such aliens are generally
subject to having their prior removal orders “reinstated” and cannot collaterally attack
those orders other than to obtain a streamlined procedure to assess whether removal
should be withheld based on it being more likely than not the alien would suffer
persecution. See 8 C.F.R. §§ 208.31. The reinstatement is “not subject to being reopened
or reviewed.” 8 U.S.C. § 1231(a)(5).
7

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1 the class entered between ports of entry, they are a generally subject to expedited removal
2 procedures.
3
Under paragraph 4 of the Court’s injunction, Defendants must “immediately take all
4
5 steps necessary to facilitate regular communication between Class Members and their
6

children who remain in ORR custody, ORR foster care, or DHS custody.” Id. at 23 ¶ 4.

7
8

And under paragraph 6, Defendants are “enjoined from removing any Class Members

9 [from the United States] without their child, unless the Class Member affirmatively,
10

knowingly, and voluntarily declines to be reunited with the child prior to the Class

11
12

Member’s deportation, or there is a determination that the parent is unfit or presents a

13 danger to the child.” Id. at 24 ¶ 6.
14

The parties worked together to create a notice and election form that would ensure

15
16

that class members had notice of their rights under the Court’s order, and a form to comply

17 with paragraph 6 of the injunction regarding waiver of reunification for those class
18

members with final removal orders. At this Court’s July 7, 2018 hearing, the parties agreed

19
20 to submit to the Court by July 10 a proposed Notice to class members. See 7/7/18 Hearing
21 Tr. 51. On July 9, the parties filed a joint status report explaining that the parties had
22

largely reached agreement on a proposed Notice, which would be posted in English and

23
24 Spanish at ICE facilities to provide notice to class members, and on a proposed Election
25 Page, which would “be provided only to Class Members subject to a final order of removal
26

in order to ensure that the Class Member has the opportunity to make an affirmative,

27
28 knowing, and voluntary decision whether to be removed with or without the Class
8

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1 Member’s child or children.” Joint Status Report Regarding Notice to Class Members,
2 ECF No. 97 at 1-2. The parties agreed that, for class members with a final removal order,
3
Defendants would defer the execution of the final removal order for a reasonable time
4
5 period after receiving the class-wide notice and election form. This period would “allow
6

time for the Class Member to consult with a lawyer or otherwise consider his or her exercise

7
8

of these rights.” Id. at 2. The parties disagreed whether that time period should be 24 hours

9 (Defendants’ view) or 48 hours (Plaintiffs’ view). Id. at 2.
10

The Court ordered that Plaintiffs’ proposed language be adopted for the Notice and

11
12

Election Page. 7/10/18 Hearing Tr. 4:3-5 (“On the class notice issue, I am going to adopt

13 the plaintiffs’ version, so that notice may issue in accordance with the plaintiffs’
14

proposal.”). The approved notice gave class members the option to waive reunification, to

15
16

be reunified with their child, or to “talk with a lawyer before deciding.” Notice at 2. Only

17 class members who elected to “NOT . . . take my child with me” would waive reunification
18

under this Court’s injunction. Id. In accordance with and shortly after entry of the Court’s

19
20 order, Defendants posted the Notice in both English and Spanish at the ICE detention
21 facilities in which class members were held, and are using the Election Page to allow class
22

members with a final removal order to make an “affirmative, knowing, and voluntary

23
24 decision whether to be removed with or without the Class Member’s child or children.”
25 ECF No. 97 at 1-2. ICE is in the process of manually compiling the election forms of Class
26

Members as it works on reunifying families. To this point, it has identified 85 Class

27
28 Members who elected to be removed without their child, 316 Class Members who elected
9

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1 reunification prior to removal, and 16 who did not sign or requested to talk to an attorney.
2 See Jennings Declaration ¶ 5. ICE is continuing to gather the forms as reunification efforts
3
move forward toward Thursday, and will report the full data to the Court once it is
4
5 compiled.
6

On July 16, Plaintiffs filed with this Court a Motion for Stay of Removal and

7
8

Emergency TRO Pending Ruling on the Stay Motion, ECF No. 110 (“Mot.”). Plaintiffs

9 asked the Court to “order Defendants not to remove parents until one (1) week after they
10

have been reunited with their children,” given “rumors” that “mass deportations may be

11
12

carried out imminently and immediately upon reunification.” Id. at 1 (emphasis omitted).

13 Plaintiffs contended that “Class members and their children face the risk of deportation,
14

without ever being properly advised as to their rights under this [Court’s] injunction or the

15
16

effect of a waiver of the rights on their children.” Id. at 3; see also id. at 3-7. Plaintiffs

17 also maintained that this Court “has the authority to enter” the requested stay of removal
18

orders (id. at 8) despite Congress’s bar on district-court jurisdiction over claims challenging

19
20 the government’s action to “execute removal orders,” 8 U.S.C. 1252(g). See Mot. 8-10.
21 That same day, this Court issued an interim stay of removal to allow the government to
22

submit a response to Plaintiffs’ motion to stay. See ECF No. 116.

23
24 IV.

ARGUMENT

25

This Court should deny Plaintiffs’ motion to stay class members’ removals. This

26

Court’s orders already address and eliminate the harms that Plaintiffs allege. And even if

27
28 they did not, this Court would lack jurisdiction to stay removals as Plaintiffs request.
10

 Case 3:18-cv-00428-DMS-MDD Document 148 Filed 07/24/18 PageID.2444 Page 16 of 32

1
2
3

A. This Court’s Orders—and Defendants’ Compliance with Those Orders—
Address and Eliminate the Harms that Plaintiffs’ Allege.
The Court should deny Plaintiffs’ stay motion because this Court’s orders already

4 fully address and prevent the harms that Plaintiffs allege. In seeking a stay, Plaintiffs
5
contend that “Class Members and their children face the real risk of deportation” “without
6
7 ever being properly advised as their rights” under the Court’s injunction or “the effect of a
8

waiver on the rights on their children.” Mot. 3 (emphasis omitted). Plaintiffs are wrong:

9
10

this Court has granted them all the relief that they need to vindicate the rights that they

11 claim, and once reunited, they have been returned to the status quo this Court thought
12

appropriate. Of note, Plaintiffs were advised of their rights under this Court’s preliminary

13
14

injunction when the Court-ordered notice was posted over ten days ago, Jennings Decl. ¶

15 4, and that notice directs class members to contact class counsel with any questions. And
16

while the TVPRA provides procedural protections for unaccompanied alien children, this

17
18

Court concluded that those protections – which are designed for children who do not have

19 a parent or guardian in the United States – are not designed to address the reunifications
20

here. The statute certainly does not apply to provide parents the option – once together –

21
22 of obtaining further facilitation by this Court and DHS to break up their family so that their
23 children may utilize the TVPRA procedures. Plaintiffs’ proposal also seeks this Court’s
24

approval to putting parents a second time to the choice of leaving their children in the

25
26 United States after already electing to be removed to be a family using the Court approved
27
28
11

 Case 3:18-cv-00428-DMS-MDD Document 148 Filed 07/24/18 PageID.2445 Page 17 of 32

1 election – requiring this choice to be made a second time is not something this Court should
2 support.
3
1. First, this Court has already granted affected class members adequate time to
4
5 make a sound choice regarding whether to exercise or waive the reunification rights
6

provided to them by the Court’s injunction. Indeed, Plaintiffs proposed form and time

7
8

period was approved by the Court. This Court ordered that a class member who is subject

9 to a removal order may “affirmatively, knowingly, and voluntarily decline[] to be reunited
10

with [his or her] child prior to the Class Member’s deportation.” ECF 83, at 24. And this

11
12

Court approved the Notice, Election Form, and 48-hours period for class members to make

13 this election prior to removal. Class members with final removal orders are given this
14

notice and 48 hours to make an election. A class member can decide that, “[i]f I lose my

15
16

case and am going to be removed, I would like to take my child with me.” Notice at 2.

17 Alternatively, a class member can decide that, “[i]f I lose my case and am going to be
18

removed, I do NOT want to take my child with me.” Id. Class members can also choose

19
20 to “talk with a lawyer before deciding whether I want my child removed with me.” Id.
21 Class members are also permitted to communicate with their children before, during, and
22

after the 48-hour period when they can make this election. ECF 83, at 23 (defendants must

23
24 “immediately take all steps necessary to facilitate regular communications between Class
25 Members and their children”).
26

No further relief is warranted here. This Court’s resolution allows a class member

27
28 who must make a decision regarding removal with or without his or her child 48 hours in
12

 Case 3:18-cv-00428-DMS-MDD Document 148 Filed 07/24/18 PageID.2446 Page 18 of 32

1 which to consult with an attorney or speak to his or her child (or do both) in order to make
2 that decision in a knowing and voluntary manner. There is no need for a period longer than
3
48 hours; if there was, then Plaintiffs would have proposed one to Defendants and the Court
4
5 two weeks ago. And, most of these individuals have now already had more than a week to
6

discuss these issues with their children and counsel since posting of the class notice and

7
8

during the pendency of Plaintiffs’ motion. Nor is there a reason to put class members to a

9 choice a second time, after they have already made an affirmative, knowing, and voluntary
10

choice regarding reunification with their child before the family is returned home together

11
12

– the choice the vast majority of class members with removal orders are understandably

13 making using the election form proposed by Plaintiffs.
14

Second, this Court’s preliminary injunction already gives class members and their

15
16

families the opportunity to communicate with their children. Paragraph 4 of the injunction

17 required Defendants to “immediately take all steps necessary to facilitate regular
18

communication between Class Members and their children who remain in ORR custody,

19
20 ORR foster care, or DHS custody.” ECF 83 at 23. Defendants immediately took
21 significant steps to implement this portion of the Court’s order by deploying case workers
22

to ICE facilities and ORR shelters to facilitate the communications.

This includes

23
24 coordinated action to facilitate and conduct phone calls between parents detained in ICE
25 custody and children in HHS/ORR care. Defendants further used shared data sources to
26

identify and prioritize phone calls for ICE detainees who were unable to establish contact

27
28 with their children. Using continuously updated contact lists, Defendants collaborated to
13

 Case 3:18-cv-00428-DMS-MDD Document 148 Filed 07/24/18 PageID.2447 Page 19 of 32

1 establish contact between ICE facilities and case managers at ORR shelters nationwide.
2 To ensure that all ICE detainees were able to communicate with their children, each ICE
3
Field Office Director nationwide was required to certify that all detained parents in his or
4
5 her Area of Responsibility were able to communicate with their children. Following initial
6

communication, efforts have continued to ensure ongoing contact through telephone calls

7
8
9
10

or video visitation. See Jennings Declaration ¶¶ 6-7.
Third, Plaintiffs do not have a right to be re-separated from their children once
reunified. Plaintiffs appear to be claiming that parents should have the option, after

11
12

reunification, to re-separate the family so the child can invoke procedural rights under the

13 TVPRA that are designed to protect unaccompanied children. That type of claim would
14

be meritless.

15
16

This Court has held that the TVPRA is not well suited to this case given that parents

17 were separated by government action, and are seeking through this litigation to be reunited
18

with their children. It definitely was not designed to address family units that are together.

19
20 The TVPRA does not give parents the option to voluntarily separate their family in order
21 to invoke TVPRA protections for their children.3
22
23
24
25
26
27
28

3

Contrary to the claim at the heart of N.T.C. v. U.S. Immigration and Customs
Enforcement, which has been transferred to this Court, No. 18-cv-1626, the TVPRA would
also not confer a right to avoid reunification with a parent in order to avoid the impact on
available immigration procedures or the parent’s election to be removed with his or her
child. See 6 U.S.C. § 679(g) (child ceases to be UAC when “parent . . . is available to
provide care and physical custody”); 8 U.S.C. § 1232(a)(5)(D) (only an “unaccompanied
alien child” is put in removal proceedings); cf. 6 U.S.C. § 278(b)(1)(H) (HHS may
14

 Case 3:18-cv-00428-DMS-MDD Document 148 Filed 07/24/18 PageID.2448 Page 20 of 32

1

Nor does the Constitution confer a right to separation (or re-separation) of the family.

2 This Court’s injunction rests on a due-process entitlement to family integrity, see ECF No.
3
83 at 11-17, and even if such a right exists, a right of separation is in clear tension with
4
5 such an unprecedented theory. This Court should not be the arbiter of a seven-day waiting
6

period during which families would be charged with choosing a second time – after they

7
8

have already chosen to be together under this Court’s procedures – whether to leave their

9 children in the United States. Class member have no entitlement to such a waiting period,
10

and no entitlement to be re-separated at all.

11
12

2. Plaintiffs’ stay motion fails to adequately grapple with these critical features of

13 this Court’s orders that supply class members with the time and communication that they
14

need to make important decisions about removal and their children. Defendants actively

15
16

endeavor to minimize the length of detention, especially children in family detention.

17 Plaintiffs and their children have already had ample opportunity to communicate and
18

discuss their options. For many of them, any further delay only serves to prolong detention

19
20 following reunification. See 8 U.S.C. § 1225(b)(1)(B)(iii)(IV) (mandatory custody for
21
22

“reunit[e] . . . children with a parent abroad in appropriate cases”).

23

In addition, the Flores Settlement Agreement—which addresses detention of minors,
24 length of detention, and detention conditions—would not be implicated here, except that
25 the seven-day period requested by plaintiffs might contradict the requirement in the Flores
26 Agreement that efforts be made to release children promptly. As this Court knows,
however, the parties have agreed that these rights may be waived in order to ensure the
27 family remains to together—which is the functional election class members have made in
28 these circumstances.
15

 Case 3:18-cv-00428-DMS-MDD Document 148 Filed 07/24/18 PageID.2449 Page 21 of 32

1 aliens pending determination of a credible fear of persecution); 8 U.S.C. § 1231(a)(2)
2 (mandatory custody after issuance of a final order of removal). A bar on removal for a
3
seven days post-reunification serves only to unnecessarily extend the detention of families
4
5 prior to their removal, wasting resources, and overburdening the government’s limited
6

family detention space, and subjecting the family to unnecessary detention that does not

7
8
9
10

serve a proper purpose. See Jennings Declaration ¶¶ 8-9.
Plaintiffs make several arguments for their requested stay. See Mot. 3-7. Plaintiffs
raised none of these before the parties’ joint filing about the Notice and Election Form.

11
12

Indeed, Plaintiffs had not previously raised most of the issues in their motion directly with

13 Defendants to attempt to resolve them together informally, as this Court has encouraged.
14

And Plaintiffs’ arguments are otherwise unsound.

15
16

First, Plaintiffs contend that Defendants have not given them useable class lists. See

17 Mot. 5. In fact, Defendants have provided Plaintiffs with the list of all class members
18

detained by ICE as ordered by this Court, and are working on providing lists of class

19
20 members in other categories—and any other requests for lists Plaintiffs may believe they
21 need. And class counsel’s role in this case relates to appropriate reunification procedures
22

on a class-wide basis, not securing individualized immigration advice and counsel for all

23
24 class members. Second, Plaintiffs have never before notified Defendants about their claims
25 of impediments to visits by lawyers to class members. See Mot. 6. Defendants dispute
26

that class members are denied access to legal counsel because ICE policies allow for visits

27
28
16

 Case 3:18-cv-00428-DMS-MDD Document 148 Filed 07/24/18 PageID.2450 Page 22 of 32

1 from counsel. ICE’s existing Family Residential Standard for visitation 4 permits residents
2 to meet privately with current or prospective legal representatives and their legal assistants.
3
Interpreters are also permitted to accompany legal representatives and legal assistants.
4
5 Visitation is permitted seven days a week, including holidays. ICE’s adult facilities are
6

subject to one of the three legal standards. 5 All allow for attorney access. While each

7
8

facility establishes its own set of visiting hours, they all allow for attorney visitation, pre-

9 representational consults and visits, phone calls, and possession of legal materials.6
10

Plaintiffs provide no evidence to the contrary. Third, contrary to Plaintiffs’ suggestion (see

11
12

Mot. 6), Defendants have confirmed that class members in ICE custody have spoken with

13 their children, and Plaintiffs have not previously raised to Defendants the concerns
14

regarding communication alleged in their motion. Fourth, Defendants are providing all

15
16

class members subject to removal orders with the opportunity to decide whether to take

17 their children with them when they are removed, using the election form proposed by
18

Plaintiffs, and approved by this Court. Contra Mot. 6-7. Plaintiffs have never before

19
20 requested to have those completed election forms provided to them, and they have provided
21 no reason to question Defendants’ good faith in interpreting and applying the simple
22

election made on the form. Fifth, Defendants are providing notice to Plaintiffs’ counsel

23
24
25
26
27
28

4

https://www.ice.gov/doclib/dro/family-residential/pdf/rs_visitation.pdf
See https://www.ice.gov/detention-standards/2000#wcm-survey-target-id;
https://www.ice.gov/detention-standards/2008; https://www.ice.gov/detentionstandards/2011.
6
The Port Isabel Detention Center (PIDC), for example, adheres to the 2011
PBNDS. Pursuant to those standards, detainees are entitled to attorney visits in private
meeting rooms and exchange of legal materials. See PBNDS 2011 Standard 5.7, Part V.J.
Visits are permitted every day from 8:00am to 9:30pm.
5

17

 Case 3:18-cv-00428-DMS-MDD Document 148 Filed 07/24/18 PageID.2451 Page 23 of 32

1 about upcoming reunifications, and can continue meeting and conferring on this issue if
2 Plaintiffs need more information. In sum, to the extent that Plaintiffs are seeking additional
3
relief from this Court based on these allegations of concern, the appropriate avenue for
4
5 addressing Plaintiffs’ concerns is for Plaintiffs to work with Defendants—not for Plaintiffs
6

to bypass Defendants and put this Court in the spot of issuing an injunction that needlessly

7
8

delays the Executive Branch’s removal of aliens who are already subject to a final order of

9 removal.
10

B. The Court Lacks Jurisdiction to Order the Relief Sought by Plaintiffs.

11
12

Even if Plaintiffs had identified some need for relief, this Court would not be able to

13 grant that relief. The INA strips district courts of jurisdiction to enjoin execution of a final
14

order of expedited removal. See 8 U.S.C. §§ 1252(a)(2)(A)(i), 1252(e)(1), (2), (4). The

15
16

INA more generally forbids district courts from enjoining any action by the government to

17 execute removal orders. See id. § 1252(g). Because this Court lacks authority to issue the
18

requested stay, it should deny Plaintiffs’ motion. In any event, these statutes preventing

19
20 judicial intrusion into the execution of removal orders should, at a minimum, counsel
21 caution in interfering with that important sovereign prerogative, and thus counsel in favor
22

of minimally intrusive relief even if the Court does not believe they bar relief entirely.

23
24

1. Federal law precludes the Court from staying execution of class
members’ final orders of expedited removal

25
26

This Court does not have jurisdiction to enjoin the execution of a final order of

27 expedited removal—to which many affected class members are subject. Under 8 U.S.C.
28
18

 Case 3:18-cv-00428-DMS-MDD Document 148 Filed 07/24/18 PageID.2452 Page 24 of 32

1 § 1252(a), “[n]otwithstanding any other provision of law (statutory or nonstatutory), . . .
2 no court shall have jurisdiction to review” (among other things) “any individual
3
determination or to entertain any other cause or claim arising from or relating to the
4
5 implementation or operation of” an order of expedited removal.
6

8 U.S.C.

§ 1252(a)(2)(A)(i)–(iv). Section 1252(e) provides a limited exception to that jurisdictional

7
8

bar—but only for habeas review over issues not relevant here. Id. § 1252(e)(2)(A)–(C).

9 Even where a court has jurisdiction under section 1252(e)(2), the court may not “enter
10

declaratory, injunctive, or other equitable relief in any action pertaining to an order to

11
12

exclude an alien in accordance with section 1225(b)(1)” or “certify a class under Rule 23

13 of the Federal Rules of Civil Procedure.” Id. § 1252(e)(1).
14

Under these provisions, this Court lacks jurisdiction to grant the seven-day post-

15
16

reunification stay of expedited removal orders that Plaintiffs seek. Section 1252(a) bars

17 district-court review over DHS’s actions “relating to the implementation or operation of”
18

expedited removal order; accordingly “this [C]ourt lacks jurisdiction over” their request to

19
20 stay execution of the final orders of expedited removal. Garcia de Rincon v. DHS, 539
21 F.3d 1133, 1140 (9th Cir. 2008) (“the limitations in § 1252(e)(2) could not be much clearer
22

in [their] intent to restrict [] review”).

23
24

Plaintiffs do not address section 1252’s jurisdictional bar or the authorities invoked

25 above. Their stay motion can be denied on this ground alone. And they cannot circumvent
26

Section 1252(a) by arguing that the challenge here does not “arise from” the decision to

27
28 execute those orders, but instead “arise[s] from the government’s decision to separate them
19

 Case 3:18-cv-00428-DMS-MDD Document 148 Filed 07/24/18 PageID.2453 Page 25 of 32

1 from their children.” Mot. 9. That limit on the jurisdictional bar applies only to Section
2 1252(g), not § 1252(a), which precludes jurisdiction over any cause or claim “arising from
3
or relating to the implementation or operation of an order of” expedited removal. 8 U.S.C.
4
5 § 1252(a)(2)(A)(i) (emphasis added). The “relating to” language “sweep[s] within its
6

scope claims with [even] only a remote or attenuated connection to the [underlying]

7
8

removal of an alien.” Aguilar v. US ICE, 510 F.3d 1, 10 (1st Cir. 2007). A request to stay

9 execution of a final order of expedited removal clearly “relates to” a final order of
10

expedited removal. See Avendano-Ramirez v. Ashcroft, 365 F.3d 813, 818 (9th Cir. 2004).

11
12

To the extent that Plaintiffs suggest that they may challenge the determination that

13 they lack a credible fear of persecution or torture if returned to their native country, or may
14

seek a stay of their removal to research whether they have any further claims to make on

15
16

their children’s behalf, the INA makes clear that no court has jurisdiction over such claims

17 either. Instead, the INA precludes any court from reviewing the final determination as to
18

credible fear made by an asylum officer or an immigration judge. See, e.g., Pena v. Lynch,

19
20 815 F.3d 452, 455 (9th Circ. 2015) (relying on section 1252(a)(2)(A)(iii) to hold that “no
21 court may review a direct challenge to an expedited removal order”).
22
23
24

2. Section 1252(g) precludes the court from staying execution of a final
order of expedited removal or any other order of removal
Even without sections 1252(a) and (e), this Court would still not be able to enjoin

25
26 execution of Plaintiffs’ removal orders. Under 8 U.S.C. § 1252(g), “[e]xcept as provided
27 in this section and notwithstanding any other provision of law (statutory or nonstatutory)
28
20

 Case 3:18-cv-00428-DMS-MDD Document 148 Filed 07/24/18 PageID.2454 Page 26 of 32

1 . . . no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien
2 arising from the decision or action by the Attorney General to commence proceedings,
3
adjudicate cases, or execute removal orders against any alien under this chapter.” 8 U.S.C.
4
5 § 1252(g) (emphasis added); see Jennings, 138 S. Ct. at 839–41 (plurality) (district court
6

lacks jurisdiction over challenge to “decision to . . . seek removal.”); id. at 854–59

7
8

(Thomas, J., concurring in judgment) (stating that the INA bars any “aliens’ claims related

9 to their removal” unless raised in accordance with the rest of section 1252). Because
10

Plaintiffs’ motion is in substance a “challenge to the execution of the removal” of class

11
12

members, section 1252(g) bars the Court from issuing a stay other than as permitted

13 elsewhere by section 1252 (e.g., by seeking a stay from a court of appeals). Kwai Fun
14

Wong v. United States, 373 F.3d 952, 964 (9th Cir. 2004) (equal-protection claim not barred

15
16

by section 1252(g) because plaintiff “disclaim[ed] any challenge to the execution of the

17 removal itself”). 7
18
19

7

Plaintiffs’ rely on Walters v. Reno, 145 F.3d 1032, 1053 (9th Cir. 1998) and
20 Barahona-Gomez v. Reno, 167 F.3d 122, 1234 (9th Cir. 1999), in contending that this Court
21 has jurisdiction. See Mot. 8. That reliance is misplaced because both cases preceded the
2005 amendments to the INA that added the explicit reference to “statutory or nonstatutory”
22 law. See REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231. Compare 8 U.S.C. §
23 1252(g), with Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”), Pub. L. No. 104-208, § 306, 110 Stat. 3009. So insofar as Walter or Barahona24 Gomez suggests that a stay of removal is not forbidden by section 1252(g), they are bad law.
25 See, e.g., Silva v. United States, 866 F.3d 938, 940–41 (8th Cir. 2017) (section 1252(g)
applies to constitutional claims arising from the execution of a final order of removal, and
26 language barring “any cause or claim” made it “unnecessary for Congress to enumerate
27 every possible cause or claim”); Elgharib v. Napolitano, 600 F.3d 597, 602 (6th Cir. 2010)
(“[A] natural reading of ‘any other provision of law (statutory or nonstatutory)’ includes the
28 U.S. Constitution.” (quoting 8 U.S.C. § 1252(g))).
21

 Case 3:18-cv-00428-DMS-MDD Document 148 Filed 07/24/18 PageID.2455 Page 27 of 32

1

In contending that this Court has jurisdiction, Plaintiffs rely on Sied v. Nielsen, No.

2 17-cv-06785, 2018 WL 1142202, at *21 (N.D. Cal. Mar. 2, 2018), and Chhoeun v. Marin,
3
No. 17-cv-01898, 2018 WL 566821, at *8-9 (C.D. Cal. Jan. 25, 2018). But both cases
4
5 acknowledge that section 1252(g) bars district-court jurisdiction over claims challenging
6

the government’s “discretionary authority to . . . execute removal orders”—claims that

7
8

“directly challenge [execution of] their orders of removal,” as opposed requests for relief

9 “where the gravamen of the claim does not challenge” such “discretionary authority.”
10

Chhoeun, 306 F. Supp. 3d at 1158; see Sied, 2018 WL 1142202 (acknowledging that

11
12

1252(g) bars jurisdiction over “challenge[s to] the Attorney General’s discretionary

13 authority”).
14

A request to stay removal is the very “constraint[] upon prosecutorial

discretion,” including the discretionary decision to execute final orders of removal, that

15
16

section 1252(g) prohibits, see United States v. Hovsepian, 359 F.3d 1144, 1155 (9th Cir.

17 2004) (en banc), and nothing in Sied or Chouen holds otherwise. Rather, as other district
18

courts in this Circuit have found, Plaintiffs’ “request to stay [their] removal arises from the

19
20 decision or action by the Attorney General to execute [their] removal order, and this Court
21 therefore lacks jurisdiction to hear such a claim, even if the claim is for a short stay while
22

he seeks additional administrative remedies.” Diaz-Amezcua v. Johnson, No. C14-1313

23
24 MJP, 2015 WL 419029, at *3 (W.D. Wash. Jan. 30, 2015); see, e.g., Rosales v. Aitken, No.
25 11–CV–4246, 2011 WL 4412654, *3, 2011 U.S. Dist. LEXIS 108256, *7 (N.D. Cal. Sep.
26

21, 2011) (similar); Mejia–Espinoza v. Mukasey, Case No. CV 08–7984–FMC, 2009 WL

27
28 235625, *3 (C.D. Cal. Jan. 27, 2009) (similar).
22

 Case 3:18-cv-00428-DMS-MDD Document 148 Filed 07/24/18 PageID.2456 Page 28 of 32

1

Because Plaintiffs seek to enjoin execution of final orders of expedited removal,

2 section 1252(g) applies and independently forecloses their request.
3
3. Even should the court determine it possesses such jurisdiction to consider a stay,
4
Plaintiffs have not even claimed to satisfy the applicable legal standard
articulated in Nken v. Holder.
5
6

The Supreme Court’s decision in Nken v. Holder, 556 U.S. 418 (2009), which

7
8

instructed that courts must consider four basic factors when evaluating whether to issue a

9 stay of removal:
10
11
12
13
14

(1) whether the stay applicant has made a strong showing that he is likely to
succeed on the merits; (2) whether the applicant will be irreparably injured
absent a stay; (3) whether issuance of the stay will substantially injure the
other parties interested in the proceeding; and (4) where the public interest
lies.
556 U.S. at 434. Plaintiffs here have not, and appear not to have even attempted to

15
16

address the factors relevant to any judicial stay determination in the immigration context.

17 And, these factors necessarily require an individualized assessment. Id. at 434 (internal
18

citations omitted) (A stay is “an exercise of judicial discretion, and the propriety of its

19
20 issue is dependent upon the circumstances of the particular case.”). No such showing has
21 been made in this case. Accordingly, Plaintiffs’ class-wide stay motion should be denied.
22
23
24

C.

Plaintiffs Have Sought No Relief With Respect to Class Members Who
Have Waived Reunification Under this Court’s Injunction.

Paragraph 6 of this Court’s preliminary injunction allows a class member who is

25
26 subject to a removal order to waive reunification when he or she “affirmatively, knowingly,
27 and voluntarily declines to be reunited with the child prior to the Class Member’s
28
23

 Case 3:18-cv-00428-DMS-MDD Document 148 Filed 07/24/18 PageID.2457 Page 29 of 32

1 deportation.” ECF 83, at 24. The form approved by this Court – and the 48 hour period
2 for a class member with a removal order to consider the form and consult with counsel and
3
family – was designed to implement this aspect of this Court’s order.
4
5
6

Plaintiffs do not seek to alter the procedures that apply when a parent has
affirmatively waived the right to be reunited with their child, under paragraph 6 of this

7
8

Court’s preliminary-injunction order, using the election form endorsed by Plaintiffs and

9 approved by the Court. See ECF No. 83 at 24; 7/10 Tr. 30, 33 (Mr. Gelernt) (for those with
10

removal orders, asking that “no further removals of class members occur until they have

11
12

been able to sign the new notice” and explaining that “if the parents genuinely want to be

13 removed and knew what they were doing they are just simply going to check the new notice
14

form box”).

15
16

In addition, this Court’s TRO does not affect this Court’s implementation of this

17 aspect of Paragraph 6.
18

This Court’s order provides that Plaintiffs’ motion “for an

emergency TRO pending a ruling on their motion to stay is granted.” Dkt. 116, Order at 1

19
20 (July 16, 2018). Plaintiffs’ motion, in turn, requested an order that this Court “prohibit
21 Defendants from removing parents until 7 days after reunification and, if necessary, enter
22

a [TRO] staying such removals until this motion is decided.” Dkt. 110, Mot. at 10. A

23
24 parent who has waived reunification using the election form proposed by Plaintiffs and
25 approved by this Court has waived reunification and therefore is not subject to the
26

Plaintiff’s stay request or this Court’s TRO.

27
28
24

 Case 3:18-cv-00428-DMS-MDD Document 148 Filed 07/24/18 PageID.2458 Page 30 of 32

1

Moreover, a class member who “affirmatively, knowingly, and voluntarily declines

2 to be reunited with the child prior to the Class Member’s deportation” (ECF 83, at 24) need
3
not be reunified, involuntarily, with a child to again make this difficult decision. Indeed,
4
5 if a person could decline to be reunified using the Court-mandated form, and yet could not
6

be removed until seven days after reunification, a class member could avoid removal

7
8

altogether, and if Plaintiffs made such a request it would be illogical with respect to this

9 group who have executed the Court-ordered waiver. Such a waiver presents no risk that
10

the class member’s child will lose access to the TVPRA – if the parent waives reunification,

11
12

the child will remain subject to the TVPRA procedures. And that knowing waiver—using

13 the procedures approved by this Court—obviates the need for HHS to determine if the
14

person is in fact the parent of the child with whom they were apprehended pursuant to the

15
16

reunification plan. Removals of individuals who have waived the right to be reunified are

17 therefore not implicated by Plaintiffs’ request for relief or this Court’s interim stay and
18

removals of such class members are moving forward consistent with Section 6 of this

19
20 Court’s injunction.
21
22

CONCLUSION

23

For these reasons, the Court should deny Plaintiffs’ motion to stay removals.

24
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 Case 3:18-cv-00428-DMS-MDD Document 148 Filed 07/24/18 PageID.2459 Page 31 of 32

1 DATED: July 24, 2018

Respectfully submitted,

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CHAD A. READLER
Acting Assistant Attorney General
SCOTT G. STEWART
Deputy Assistant Attorney General

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/s/ August E. Flentje
AUGUST E. FLENTJE
Special Counsel
Civil Division, U.S. Department of Justice
950 Pennsylvania Avenue, Room 3613
Washington, D.C. 20530
Phone: (202) 514-3309
Fax: (202) 307-6777
Email: august.flentje@usdoj.gov
WILLIAM C. PEACHEY
Director
WILLIAM C. SILVIS
Assistant Director
SARAH B. FABIAN
Senior Litigation Counsel
NICOLE MURLEY
Trial Attorney
Office of Immigration Litigation
Civil Division, U.S. Department of Justice
P.O. Box 868, Ben Franklin Station
Washington, DC 20044
(202) 532-4824
(202) 616-8962 (facsimile)
sarah.b.fabian@usdoj.gov
ADAM L. BRAVERMAN
United States Attorney

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SAMUEL W. BETTWY
Assistant U.S. Attorney

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Attorneys for Respondents-Defendants

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 Case 3:18-cv-00428-DMS-MDD Document 148 Filed 07/24/18 PageID.2460 Page 32 of 32

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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4 MS. L., et al.
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Case No. 18-cv-428 DMS MDD
Petitioner-Plaintiff,

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vs.

CERTIFICATE OF SERVICE

8 U.S. IMMIGRATION AND CUSTOMS
ENFORCEMENT, et al.,
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Respondents-Defendants.

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12 IT IS HEREBY CERTIFIED THAT:
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I, the undersigned, am a citizen of the United States and am at least eighteen years of age.
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My business address is 450 Fifth Street, NW, Washington, DC 20001. I am not a party to
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the above-entitled action. I have caused service of the accompanying RESPONDENTS16
DEFENDANTS’ OPPOSITION TO PETITIONERS-PLAINTIFFS’ MOTION FOR STAY
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OF REMOVAL on all counsel of record, by electronically filing the foregoing with the
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Clerk of the District Court using its ECF System, which electronically provides notice.
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I declare under penalty of perjury that the foregoing is true and correct.
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21 DATED: July 24, 2018
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/s/ August E. Flentje
AUGUST E. FLENTJE
Special Counsel
Civil Division, U.S. Department of Justice
950 Pennsylvania Avenue, Room 3613
Washington, D.C. 20530
Phone: (202) 514-3309
Email: august.flentje@usdoj.gov
Attorney for Respondents-Defendants
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 Case 3:18-cv-00428-DMS-MDD Document 148-1 Filed 07/24/18 PageID.2461 Page 1 of 5

1 CHAD A. READLER
Acting Assistant Attorney General
2 WILLIAM C. PEACHEY
Director, Office of Immigration Litigation (OIL)
3 U.S. Department of Justice
WILLIAM C. SILVIS
4 Assistant Director, OIL District Court Section
SARAH B. FABIAN
5 Senior Litigation Counsel
NICOLE MURLEY
6 Trial Attorney
Office of Immigration Litigation
7 U.S. Department of Justice
Box 868, Ben Franklin Station
8 Washington, DC 20442
Telephone: (202) 532-4824
9 Fax: (202) 616-8962
10 ADAM L. BRAVERMAN
United States Attorney
11 SAMUEL W. BETTWY
Assistant U.S. Attorney
12 California Bar No. 94918
Office of the U.S. Attorney
13 880 Front Street, Room 6293
San Diego, CA 92101-8893
14 619-546-7125
619-546-7751 (fax)
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Attorneys for Federal Respondents-Defendants
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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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20 MS. L, et al.,
Petitioners-Plaintiffs,

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Case No. 18-cv-428 DMS MDD

vs.

23 U.S. IMMIGRATION AND CUSTOMS
ENFORCEMENT, et al.,
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Respondents-Defendants.
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Declaration of David W. Jennings

 Case 3:18-cv-00428-DMS-MDD Document 148-1 Filed 07/24/18 PageID.2462 Page 2 of 5

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DECLARATION OF DAVID W. JENNINGS

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I, David W. Jennings, hereby make the following declaration with respect to the

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above-captioned matter:

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1. I am the Acting Assistant Director for Headquarters Field Operations within

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the U.S. Department of Homeland Security (DHS), U.S. Immigration and

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Customs Enforcement (ICE), Enforcement and Removal Operations (ERO).

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Headquarters Field Operations consists of three divisions, Domestic

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Operations, Special Operations, and Law Enforcement Systems and Analysis,

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all of which provide guidance, implement and inform policy and procedures,

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and facilitate enhanced coordination between Headquarters and 24 Field

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Offices across the country. In this position, I supervise all field operations,

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providing guidance and coordination in support of ERO's enforcement and

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removal efforts conducted by its Field Offices.

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2. I have been employed with ICE and the former Immigration and

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Naturalization Service since 1994. I have performed duties in both ERO

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(1994-2001; 2005 to present) and the legacy Office of Investigations, now

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Homeland Security Investigations (2001-2005). From June 26, 2016 to

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present, I have been employed as the Field Office Director (FOD) for the

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San Francisco Field Office. I served as the Acting Deputy Assistant

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Director for Domestic Operations, covering Western Operations, from

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September 2017 until April 2018. From May 2018 to present, I have

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served as Acting Assistant Director for Field Operations. Prior to this

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assignment, I served as the FOD for the Los Angeles Field Office. During

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my career, I have also served as a Supervisory Detention and Deportation

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Officer in the San Francisco Field Office; an Assistant Field Office Director

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18cv428 DMS MDD

 Case 3:18-cv-00428-DMS-MDD Document 148-1 Filed 07/24/18 PageID.2463 Page 3 of 5

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for the Seattle Field Office; a Deputy Field Office Director (DFOD) for the

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San Francisco Field Office; and the FOD for the Houston Field Office.

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3. This declaration is based upon my personal knowledge, information obtained

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from other individuals employed by ICE, and information obtained from

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DHS records.

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4. On July 11, 2018, pursuant to the direction of this Court, I directed all ICE

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ERO field offices to immediately post copies of the Notice of Potential

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Rights for Certain Detained Alien Parents Separated from their Minor

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Children, in English and Spanish, in all facilities in which Ms. L class

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members are detained. I directed that the Notice be posted in areas in which

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it would be accessible to detainees, such as housing areas, dining halls, and

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law libraries. I directed that the Notice be posted by close of business on July

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12, 2018, and have confirmed that the Notices have been posted.

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5. I also directed all ICE ERO Field Offices to provide the Election page with

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the Notice printed on the back to each class member with an executable final

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order of removal. I directed that an officer read the Election page to the class

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member in a language that the class member understands, using an interpreter

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if necessary, and fill out the certificate of service. ICE is in the process of

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manually compiling the Election forms of class members. To date, 417

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Election forms have been compiled. Of those, ICE has identified 85 class

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members who elected to be removed without their child, 316 class members

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who elected reunification prior to removal, and 16 class members who either

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declined to sign the form or requested time to talk to an attorney.

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6. I am aware of the Preliminary Injunction ordered by this Court on June 26,

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2018. I am aware that pursuant to a preliminary injunction issued by this

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Court on June 26, 2018, the Court ordered ICE and other Defendants to

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facilitate regular communication between class members detained in ICE

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18cv428 DMS MDD

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custody and their children in the custody of U.S. Department of Health and

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Human Services, Office of Refugee Resettlement (HHS/ORR), HHS/ORR

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foster care, or DHS custody. Prior to the Court’s order, on June 23, 2018, I

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instructed FODs and DFODs to facilitate communication between separated

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parents and their children. First line supervisors were required to ensure that

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telephone calls had occurred and that they were documented accordingly.

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7. Upon issuance of the Court’s June 26, 2018 order, ICE continued to take

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significant steps to implement this portion of the Court’s order, including

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coordinated action to facilitate and conduct phone calls between parents

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detained in ICE custody and children in HHS/ORR care. ICE further used

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shared data sources to identify and prioritize phone calls for ICE detainees

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who were unable to establish contact with their children. Using continuously

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updated contact lists, ICE collaborated with HHS/ORR to establish contact

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between ICE facilities and case managers at ORR shelters nationwide. To

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ensure that all ICE detainees were able to communicate with their children,

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each ICE FOD nationwide was required to certify that all detained parents in

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his or her Area of Responsibility were able to communicate with their

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children. Following initial communication, efforts have continued to ensure

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ongoing contact through telephone calls or video visitation

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8. ICE currently maintains three Family Residential Centers. Due to current

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demands, ICE requested and received appropriations to house up to 2,500

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aliens in family detention. Although the Family Residential Centers have a

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total capacity of 3,326, family composition and other factors limit the total

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usable family beds to between approximately 2,500 and 2,700. ICE’s current

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family detention population is a fixed cost of $319.00 per person, per day.

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Although ICE pays a fixed rate for family detention space, maintaining

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custody of certain aliens for a longer period than necessary to effectuate

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removal diverts detention resources away from other cases, impeding ICE’s

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ability to carry out the core mission of efficiently enforcing the nation’s

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immigration laws.

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9. A valid passport or other travel document is required to effectuate an alien’s

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removal from the United States. The majority of aliens currently detained in

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ICE’s Family Residential Centers are from Central America. Most of them

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arrive without a valid passport. ICE has agreements with Central American

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countries to facilitate expedited issuance of electronic travel documents.

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After a travel document is issued, the alien (or family unit) can be added to a

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manifest on charter aircraft for removal. A brief delay of up to two days

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would allow Class Members to consult with counsel while ICE

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simultaneously initiates the process of obtaining travel documents for

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removal. A longer timeframe would create inefficiencies, increase cost, and

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significantly hamper ICE’s efforts to expeditiously enforce removal orders.

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Each addition day delay in removal would not only deplete limited taxpayer

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resources, but they also extend aliens’ time in detention and exclude

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detention beds being used during the delay. As a result, family units engaged

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earlier in the process would wait longer for their cases to be completed,

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further exacerbating the already backlogged removal process.

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Pursuant to 28 U.S.C. §1746, I declare under penalty of perjury that the foregoing is

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true and correct.

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Executed this 24th day of July 2018, in Washington, D.C.

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_____________________
David W. Jennings
Assistant Director
Enforcement and Removal Operations
U.S. Immigration and Customs Enforcement

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18cv428 DMS MDD

 Case 3:18-cv-00428-DMS-MDD Document 148-2 Filed 07/24/18 PageID.2466 Page 1 of 2

Notice of Potential Rights for
Certain Detained Alien Parents Separated from their Minor Children
On June 26, 2018, a federal court issued a nationwide preliminary injunction in the case of Ms. L
v. I.C.E., ---F. Supp. 3d---, 2018 WL 3129486 (S.D. Cal. June 26, 2018).
You may be a class member who has rights under this lawsuit if:
•
•

You are or were detained in custody by the U.S. Department of Homeland Security
(DHS); and
Your minor child was separated from you by DHS and is detained in the custody of the
U.S. Department of Health and Human Services, Office of Refugee Resettlement (ORR),
ORR foster care, or DHS custody.

If you are determined to be a class member:
•
•
•

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The government must reunify you with your child.
You do NOT need to take any action to be reunified with your child.
The government must reunify you by the following dates unless otherwise ordered by the
Court:
a.
If your child is younger than 5 years old, he or she must be reunified with you by
July 10, 2018.
b.
If your child is 5 or older, he or she must be reunified with you by July 26, 2018.
You do NOT need to agree to removal from the United States in order to be reunified
with your child. You may continue to fight your case. You should NOT be pressured to
agree to removal in order to be reunified with your child.

You are not a class member if:
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•
•
•

You were apprehended by DHS in the interior of the United States;
You have a criminal history other than illegal entry;
You have a communicable disease;
A determination is or has been made that you are unfit or present a danger to your minor
child.

IMPORTANT: Even if you are not a class member, if you were separated from your children,
you may still have a right to be reunified with your child, and should contact the lawyers in this
case by phone or by writing a letter.
If you have any questions about your potential rights, please contact the lawyers for the case at
646-905-8892 or write to the lawyers at this address:
Ms. L. Class Counsel
American Civil Liberties Union
125 Broad Street, 18th Floor
New York, NY 10004

 Case 3:18-cv-00428-DMS-MDD Document 148-2 Filed 07/24/18 PageID.2467 Page 2 of 2

IMPORTANT
Instructions: This information on this page must be read to the alien parent in a language that he/she
understands. The Notice must be given to the alien parent at the same time as this form. The alien parent
should indicate which option he/she is choosing by signing the appropriate box below.

You DO NOT have to agree to removal from the United States in order to be reunified with your
child. Even if you continue to fight your case, the government must still reunify you.
IF YOU LOSE YOUR CASE AND THE GOVERNMENT IS GOING TO REMOVE YOU
FROM THE UNITED STATES, you must decide at that time whether you want your child to
leave the United States with you.
Parent Name / Nombre de Padre:________________________________________________________
Parent A # / A # de Padre: ______________________________________________________________
Country of Citizenship / Pais de Ciudadania: ______________________________________________
Detention Facility / El Centro de Detención: _______________________________________________
Child(ren) Name(s) / Nombre de Hijo: ___________________________________________________
Child(ren) A # / A # de Hijo: ____________________________________________________________

CHOOSE ONE OPTION:
_____ If I lose my case and am going to be removed, I would like to take my child with me.
_____ If I lose my case and am going to be removed, I do NOT want to take my child with me.
_____ I do not have a lawyer, and I want to talk with a lawyer before deciding whether I want
my child removed with me.

Certificate of Service
I hereby certify that this form was served by me at________________________
(Location)

on ___________________________ on _____________________________, and the contents of this
(Name of Alien)

(Date of Service)

notice were read to him or her in the __________________________ language.
(Language)

___________________________________ __________________________________________
Name and Signature of Officer

Name or Number of Interpreter (if applicable)