Case 3:18-cv-00428-DMS-MDD Document 149 Filed 07/24/18 PageID.2468 Page 1 of 8 1 CHAD A. READLER Acting Assistant Attorney General 2 Civil Division 3 WILLIAM C. PEACHEY Director, District Court Section 4 Office of Immigration Litigation 5 SARAH B. FABIAN Senior Litigation Counsel 6 District Court Section 7 Office of Immigration Litigation ANN M. WELHAF 8 Attorney 9 U.S. Department of Justice P.O. Box 868, Ben Franklin Station 10 Washington, D.C. 20044 11 Phone: (202) 532-4090 Fax: (202) 616-9366 12 Email: ann.welhaf@usdoj.gov 13 Attorneys for Federal Respondents 14 15 UNITED STATES DISTRICT COURT 16 SOUTHERN DISTRICT OF CALIFORNIA 17 18 N.T.C., et al. Case No. 18cv1626 DMS JLB 19 Petitioner-Plaintiff, 20 21 NOTICE OF RELATED CASES vs. 22 U.S. IMMIGRATION AND CUSTOMS 23 ENFORCEMENT, et al., 24 25 26 27 28 Respondents-Defendants. Case 3:18-cv-00428-DMS-MDD Document 149 Filed 07/24/18 PageID.2469 Page 2 of 8 1 2 MS. L,, et al. Petitioner-Plaintiff, 3 4 Case No. 18cv428 DMS MDD vs. 5 6 U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., 7 8 Respondents-Defendants. 9 10 11 The Government Respondents-Defendants in this case hereby notify the Court that the two captioned cases are related to each other. We also notify that Court that 12 13 plaintiffs’ attorneys in the N.T.C. case recently filed emergency habeas petitions in 14 the Southern District of New York seeking to prevent the reunification of certain 15 children with their parents – relief that in the Government’s view would be better 16 17 addressed by this Court in the N.T.C. matter. Plaintiffs’ attorneys have not been 18 appointed guardians ad litem for the children under Federal Rule 17, and do not 19 represent their parents. The relief which plaintiffs’ attorneys now seek in the 20 21 Southern District of New York would likely prevent reunifications under this 22 Court’s order in Ms. L., in direct conflict with the stated wishes of the Ms. L. class 23 members during HHS interviews to reunify with their children. The Government is 24 25 prepared to discuss these matters further at the status conference currently scheduled 26 in the Ms. L. case for 3:00pm Pacific, today, July 24, 2018. 27 28 1 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 149 Filed 07/24/18 PageID.2470 Page 3 of 8 1 N.T.C. was case was originally filed on July 16, 2018, in the United States 2 District Court, Southern District of New York. By order of the district court in the 3 Southern District of New York issued on July 19, 2018, venue in this case was 4 5 transferred to this Court on the following grounds: (1) “the classes in the two cases 6 concern the same families: Plaintiffs in this case seek relief on behalf of children 7 8 whose parents are class members in Ms. L;” (2) “the relief Plaintiffs seek in this case 9 is, at bottom, directly related to the reunification process being supervised by Judge 10 Sabraw” in Ms. L, and “Judge Sabraw is in a better position than [the S.D. N.Y.] to 11 12 decide those questions and to modify his own orders if appropriate;” and (3) “in the 13 absence of a single judge presiding over both cases, there is a real risk of inconsistent 14 decisions and conflicting orders — a particularly intolerable risk given the gravity 15 16 and urgency of the issues in these cases (and the prospect of similar litigation being 17 filed in other states where children separated from their parents are being held).” 18 N.T.C., ECF 20. 19 20 On that same date, July 19, 2018, this Court filed and docketed N.T.C. and 21 assigned it to Judge Sabraw, who is also presiding over the Ms. L. litigation. At the 22 time of the transfer and filing in this Court, a Temporary Restraining Order (TRO) 23 24 issued by the S.D. N.Y had been issued and remains in effect. See ECF 9 (TRO); 25 ECF 20 (extending TRO). The TRO prohibits the transfer of the children of class 26 27 28 2 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 149 Filed 07/24/18 PageID.2471 Page 4 of 8 1 members in Ms. L for the purpose of reunification with their parents unless certain 2 conditions are met – inducing 48 hour notice of transfer. See N.T.C., ECF 9. 3 Counsel in N.T.C. advised the government on July 23, 2018 that they would 4 5 be filing habeas petitions on behalf of nine individual children. The government 6 indicated that it believed relief should be sought in this Court in the N.T.C. matter, 7 8 and that the government had satisfied the requirements of the N.T.C. TRO by 9 providing 48 hour notice of transfer. The government also advised the NTC counsel 10 that the parents of the nine individuals continued to seek reunification – and 11 12 specifically requested it during their HHS interviews. On July 24, 2018, a group of 13 purported next friends – who are not the parents of the children -- filed an emergency 14 habeas petition seeking to halt the reunifications. See Petition (attached). A hearing 15 16 on that petition was held today at 2:30 p.m. EDT in the Southern District of New 17 York. 18 Because the claims in N.T.C. and Ms. L. are intertwined, the Government 19 20 hereby gives notice that these two cases are related. We believe it makes sense to 21 consolidate the two matters. In addition, we are prepared to discuss the implications 22 of the two actions, and the latest habeas filings in the Southern District of New York 23 24 and proceedings, during the status conference today in Ms. L. We submit that the 25 Court may want to consider inviting counsel in N.T.C. to also participate in the 26 conference. We have been complying with the TRO in N.T.C., but this Court may 27 28 3 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 149 Filed 07/24/18 PageID.2472 Page 5 of 8 1 want to consider whether it is consistent with the Ms. L. injunction. The individual 2 habeas petitions purportedly filed on behalf of the minors in New York may, 3 however, make it impossible to comply with this Court’s injunction. The 4 5 Government is prepared to discuss these matter further at the status conference 6 currently scheduled in the Ms. L. case for 3:00pm Pacific, today, July 24, 2018. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DATED: July 24, 2018 Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General SCOTT G. STEWART Deputy Assistant Attorney General /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 26 27 ADAM L. BRAVERMAN 28 4 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 149 Filed 07/24/18 PageID.2473 Page 6 of 8 1 United States Attorney 2 3 SAMUEL W. BETTWY Assistant U.S. Attorney 4 Attorneys for Respondents-Defendants 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 149 Filed 07/24/18 PageID.2474 Page 7 of 8 1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 4 N.T.C., et al. 5 Petitioner-Plaintiff, 6 7 Case No. 18cv1626 DMS JLB NOTICE OF RELATED CASES vs. 8 U.S. IMMIGRATION AND CUSTOMS 9 ENFORCEMENT, et al., 10 Respondents-Defendants. 11 12 13 MS. L., et al. 14 15 Case No. 18-cv-428 DMS MDD Petitioner-Plaintiff, vs. CERTIFICATE OF SERVICE 16 17 U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., 18 19 Respondents-Defendants. 20 21 IT IS HEREBY CERTIFIED THAT: 22 I, the undersigned, am a citizen of the United States and am at least eighteen years 23 of age. My business address is 950 Pennsylvania Avenue, NW, Washington, DC 24 20530. I am not a party to the above-entitled action. I have caused service of the 25 accompanying NOTICE OF RELATED CASES on all counsel of record, by 26 27 28 6 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 149 Filed 07/24/18 PageID.2475 Page 8 of 8 1 electronically filing the foregoing with the Clerk of the District Court using its ECF 2 System, which electronically provides notice. 3 I declare under penalty of perjury that the foregoing is true and correct. 4 5 6 7 8 9 10 11 DATED: July 24, 2018 /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 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 149-1 Filed 07/24/18 PageID.2476 Page 1 of 37 1 2 3 4 5 6 7 8 Scott Rosenberg, General Counsel Adriene Holder, Attorney-in-Charge, Civil Practice Judith Goldiner, Attorney-in-Charge, Law Reform Unit Hasan Shafiqullah, Attorney-in-Charge, Immigration Law Unit (“ILU”) Jennifer Williams, Deputy Attorney-in-Charge, ILU Gregory Copeland, Supervising Attorney, ILU Sarah Gillman, Supervising Attorney, ILU Beth Krause, Supervising Attorney, ILU Elizabeth Rieser-Murphy, Of Counsel, ILU THE LEGAL AID SOCIETY 199 Water Street – 3rd Floor New York, NY 10038 Tel: 212-577- 3968 Fax: 646-365-9369 gcopeland@legal-aid.org 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF NEW YORK 11 12 13 14 15 16 E.S.R.B. by and through his next friend Meryl Ranzer, J.E.C.M. by and through his next friend Carline Pinto, R.M.S.C.by and through his next friend Melissa Borja, K.M.G., K.D.G., S.G.G., and F.E.O.G. by and through their next friend Rev. Elizabeth G. Maxwell, I.M.Q.S. by and through her next friend Senator Brad Benjamin, Case No.: _________________ and K.C.A. by and through her next friend Letitia James, 17 Plaintiff-Petitioners, VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF & PETITION FOR WRIT OF HABEAS CORPUS 18 vs. 19 20 21 22 23 24 25 26 27 JEFFERSON B. SESSIONS III, Attorney General of the United States; DEPARTMENT OF HOMELAND SECURITY (“DHS”); KIRSTJEN NIELSEN, Secretary of DHS; U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); KEVIN K. MCALEENAN, Commissioner of CBP; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (“ICE”); RONALD D. VITIELLO, Acting Director of ICE; U.S. CITIZENSHIP AND IMMIGRATION SERVICES (“USCIS”); L. FRANCIS CISSNA, Director of USCIS; U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES (“HHS”); ALEX AZAR, Secretary 28 1 Case 3:18-cv-00428-DMS-MDD Document 149-1 Filed 07/24/18 PageID.2477 Page 2 of 37 1 2 3 of the Department of Health and Human Services; OFFICE OF REFUGEE RESETTLEMENT (“ORR”); and SCOTT LLOYD, Director of ORR,, Defendants-Respondents. 4 5 6 Preliminary Statement 1. The instant proceeding is a joint application for writs of habeas corpus and testificandum 7 on behalf of 9 children who were forcibly separated from their parents at the Southern border of 8 9 the United States. Most have received notice via counsel of their impending reunification with 10 their parents, but have not been told whether the purposes of the reunification is immediate 11 deportation or indefinite detention in a facility that is not meant, or permitted, to house children 12 and families. They seek the opportunity to consult, in a meaningful manner, with their parents. 13 Thus, they are asking the court to produce their parents to testify in their immigration matters. 14 Plaintiffs’ Facts 15 E.S.R.B. 16 17 18 2. E.S.R.B., A#xxx-xx1-843, is a 9 year-old boy who traveled from Honduras to the United States with his mother, Ms. C.L.B.C., A#xxx-xx1-147. See Rieser-Murphy Decl. ¶ 2. 19 3. E.S.R.B. is currently in the custody of the Office of Refugee Resettlement (“ORR”). He 20 21 22 23 24 resides with a foster family contracted through an ORR-licensed child care facility called Cayuga Center (“Cayuga”). See Rieser-Murphy Decl. ¶ 3. 4. In approximately May of 2018 near the U.S.-Mexico border, immigration officials took E.S.R.B. and Ms. C.L.B.C. into custody, and then, separated them from one another. E.S.R.B. 25 was 9 years old at the time that he was separated from his mother. See Rieser-Murphy Decl. ¶ 4. 26 27 28 5. When E.S.R.B’s mother was in Border Patrol custody, she was told by officials that there was a new policy that her son would be taken from her and the official could not tell her where 2 Case 3:18-cv-00428-DMS-MDD Document 149-1 Filed 07/24/18 PageID.2478 Page 3 of 37 1 2 the child would be taken. That evening, as Ms. C.L.B.C. slept with her child E.S.R.B. in her arms, Border Patrol officials entered the room and roused her awake. The officials told Ms. 3 C.L.B.C. that they had come to take her child. Ms. C.L.B.C. refused to let E.S.R.B. go until 4 5 officials told her where they were taking him. Border Patrol officials threatened to use physical 6 force to remove the child, and at one point, pried her arms open and pinning one arm back so 7 they could remove E.S.R.B. Ms. C.L.B.C. stated she was hysterically crying and so was her 8 child. E.S.R.B. has been unable to speak to me about the conditions of his removal because it is 9 too hard to talk about. See Rieser-Murphy Decl. ¶ 5. 10 11 12 13 14 6. When interviewed, E.S.R.B. expressed that he wanted to reunify with his mother and he was very sad without her. See Rieser-Murphy Decl. ¶ 6, Ex. A. 7. E.S.R.B.’s mother has indicated that she feared for her and her son’s life if they were to be returned to their home country and she wanted to be able to help her son fight his case in New 15 York, if possible. See Rieser-Murphy Decl. ¶ 7. 16 17 8. E.S.R.B.’s ORR file indicates that E.S.R.B. suffers from A.D.H.D. and was prescribed 18 Ritalin on May 22, 2018. The ORR file indicated that E.S.R.B. has been disciplined by ORR 19 staff due to his hyperactivity. The file also indicated that E.S.R.B. has repeatedly told staff that 20 he misses his mother. He is having trouble integrating with other children and, at times, 21 externalizes his frustration regarding his detention towards others, which is consistent with his 22 23 disability. See Rieser-Murphy Decl. ¶ 8, Ex. B. The ORR file indicated that on May 30, 2018, 24 E.S.R.B.’s mother told E.S.R.B.’s case manager that the mother wanted the child to remain at 25 Cayuga until she was either released or deported. See Rieser-Murphy Decl. ¶ 8. 26 9. On or about July 10, 2018, E.S.R.B’s mother’s attorney confirmed that he had filed a 27 motion to reopen Ms. C.L.R.C.’s underlying in absentia order. He also indicated that he would 28 3 Case 3:18-cv-00428-DMS-MDD Document 149-1 Filed 07/24/18 PageID.2479 Page 4 of 37 1 2 not oppose Ms. C.L.R.C.’s transfer to New York, if it were possible. See Rieser-Murphy Decl. ¶ 9. 3 10. On the afternoon of Sunday, July 22, 2018, the Legal Aid Society received notice that 4 5 6 7 8 ES.R.B. was to be reunified with his mother at South Texas Processing Center in Pearsall, Texas. See Rieser-Murphy Decl. ¶ 10. 11. On July 23, 2018, Ms. C.L.R.C.’s attorney confirmed that motion to reopen is still pending for Ms. C.L.R.C., a stay of removal is in force, and Ms. C.L.R.C. is still awaiting a 9 reasonable fear interview. He is unsure when she will see an Asylum Officer in South Texas. See 10 11 12 13 14 Rieser-Murphy Decl. ¶ 11. 12. E.S.R.B. wants to do what his mother wants. His mother is concerned for her child’s wellbeing due to his medical needs if he were to be transferred to family detention at this time and requested that a habeas petition be filed to prevent that outcome. See Rieser-Murphy Decl. ¶ 15 ¶ 12, 14. 16 17 18 19 20 J.E.C.M. 13. Plaintiff-Petitioner J.E.C.M. (“Plaintiff” or “J.E.C.M.”) is a 12-year-old boy from Honduras. J.E.C.M. fled persecution in Honduras with his father. J.E.C.M. and his father sought refuge from Honduras in the United States. On or about May 24, 2018, and his father arrived at 21 the southern border of the United States and were detained by Defendants-Respondents 22 23 24 25 26 (“Defendants”). Krause Dec. ¶ 16. 14. Despite there being no evidence of J.E.C.M.’s father being an unfit parent, on or about May 24,2018, pursuant to the Defendants’ unconscionable policy of separated families on the pretext of a “zero tolerance policy” subjecting migrants to prosecution for unlawful entry in an 27 28 4 Case 3:18-cv-00428-DMS-MDD Document 149-1 Filed 07/24/18 PageID.2480 Page 5 of 37 1 2 effort to deter those fleeing persecution from coming to the United States, J.E.C.M. and his were separated. Krause Dec. ¶ 16. 3 15. J.E.C.M. was transferred to an Office of Refugee Resettlement (ORR) Facility in New 4 5 6 7 8 York and his father is, upon information and belief, being held in custody at Bossier Medium Security Facility, 1400 miles away. 16. J.E.C.M. has been designated by Defendants as an “unaccompanied alien child” (“UAC”) under 6 U.S.C. § 279, as demonstrated by his detention by the Office of Refugee 9 Resettlement (“ORR”) under the 2008 Trafficking Victims Protection Reauthorization Act (the 10 11 “TVPRA”), 8 U.S.C. § 1232. 12 17. 13 representation from The Legal Aid Society (LAS Attorney). 14 18. On or about July 9, 2018, J.E.C.M. met with Mariella Martinez and obtained pro bono J.E.C.M. has expressed to his attorney his desire to remain in the United States if his 15 father is to be deported. See Krause Dec. ¶ ¶ 18, 20. 16 17 19. Since the separation, J.E.C.M. and his father have only been able to speak once on July 18 6, 2018. During that conversation, upon information and belief, J.E.C.M.’s father stated that 19 J.E.C.M. should seek to remain in the United States and claim any available relief if he, the 20 father, were deported. See Krause Dec. ¶ 17. 21 20. Upon information and belief, Defendants have taken no steps to reunite J.E.C.M. and his 22 23 father in a lawful manner. Defendants have provided J.E.C.M. no concrete information 24 concerning his father’s future custody, or prospective reunification. The sole information that 25 J.E.C.M. has is that he is being reunited and detained and that his father is subject to an order of 26 removal. This lack of process in providing even minimal information has further traumatized 27 and harmed J.E.C.M. 28 5 Case 3:18-cv-00428-DMS-MDD Document 149-1 Filed 07/24/18 PageID.2481 Page 6 of 37 1 2 R.M.S.C. 21. Plaintiff-Petitioner R.M.S.C. is currently being held in the custody of the Office of 3 Refugee Resettlement (“ORR”) at the Rising Ground facility. 4 5 6 7 8 22. R.M.S.C. is a ten-year-old boy from Guatemala and is not able to speak either English or Spanish. He is only able to speak K’iche. Krause Dec. ¶ 24. 23. R.M.S.C. was separated from his father, A.S.G.. It is unclear the exact date of separation but R.M.S.C. did come to the border with his father and at some time thereafter the parties were 9 separated. Krause Dec. ¶ 24. 10 11 12 13 14 24. R.M.S.C. has not been able to speak with his father for approximately two weeks. Krause Dec. ¶ 25. 25. R.M.S.C. would like to be reunified with his father and but does not want to do so if it means he must be detained with his father in a federal detention facility. Krause Dec. ¶ 26. 15 26. R.M.S.C. fears return to Guatemala. Krause Dec. ¶ 27. 16 17 27. R.M.S.C. has suffered trauma as a result of being forcibly removed from his family. Krause 18 Dec. ¶ 28. He reports significant trauma, difficulty sleeping, eating and concentrating. He 19 worries about his safety. 20 28. R.M.S.C. does not want to be sent to a Sponsor but would rather be reunified with his father. 21 Krause Dec. ¶ 29. 22 23 24 25 26 29. R.M.S.C does not know whether his Father is represented by an attorney. Krause Dec. ¶ 30. 30. Because of the separation from his Father, it has been difficult for R.M.S.C. Krause Dec. ¶ 31. 31. He would like to be reunified with his Father but does not want to do so if it means that he 27 has to be in a Federal Detention Facility. Krause Dec. ¶ 31. 28 6 Case 3:18-cv-00428-DMS-MDD Document 149-1 Filed 07/24/18 PageID.2482 Page 7 of 37 1 2 K.M.G., K.D.G., S.G.G., and F.E.O.G. 32. K.M.G., K.D.G., S.G.G., and F.E.O.G., are siblings who are currently being held in the 3 custody of the Office of Refugee Resettlement (“ORR”) at the Cayuga facility. See Krause Dec. 4 5 ¶ 32. 6 33. 7 English. They are only able to speak Spanish. K.M.G. is 17 years old, K.D.G. is 15 years old, 8 K.M.G., K.D.G., S.G.G., and F.E.O.G. are from Honduras and are not able to speak S.G.G. is 12 years old, and F.E.O.G. is 8 years old. Krause Dec. ¶ 33. 9 34. K.M.G., K.D.G., S.G.G., and F.E.O.G. were separated from their mother, O.G.. It is 10 11 unclear the exact date of separation but K.M.G., K.D.G., S.G.G., and F.E.O.G. did come to the 12 border with their mother and at some time thereafter the parties were separated. Krause Dec. ¶ 13 34. 14 35. K.M.G., K.D.G., S.G.G., and F.E.O.G. have been able to speak with their mother through 15 their case manager approximately six times. Krause Dec. ¶ 35. 16 17 36. K.M.G., K.D.G., S.G.G., and F.E.O.G. would like to be reunified with their mother but 18 do not want to do so if it means they must be detained with their mother in a federal detention 19 facility. Krause Dec. ¶ 36. 20 37. K.M.G., K.D.G., S.G.G., and F.E.O.G. fear return to Honduras. Krause Dec. ¶ 37. 21 I.M.Q.S. 22 23 38. I.M.Q.S. is currently being held in the custody of the Office of Refugee Resettlement 24 (“ORR”) at the Lutheran facility. I.M.Q.S. is from Honduras and is not able to speak English. 25 She is only able to speak Spanish. I.M.Q.S. is 14 years old. Krause Dec. ¶ ¶ 40–41. 26 27 28 7 Case 3:18-cv-00428-DMS-MDD Document 149-1 Filed 07/24/18 PageID.2483 Page 8 of 37 1 2 39. I.M.Q.S. was separated from her father, S.Q.G.. It is unclear the exact date of separation but I.M.Q.S. did come to the border with her father and at some time thereafter the parties were 3 separated. Krause Dec. ¶ 42. 4 5 6 7 8 40. I.M.Q.S. has only been able to speak with her father once since July 10, 2018. Krause Dec. ¶ 43. 41. I.M.Q.S. would like to be reunified with her father but does not want to do so if it means reunification in Texas. Krause Dec. ¶ 44. 9 K.C.A. 10 11 12 13 14 42. K.C.A., A#xxx-xx7-637, is a 9 year-old girl who traveled from El Salvador to the United States with her mother, Ms. R.V.A.L., A#xxx-xx7-636. 43. K.C.A. is currently in the custody of the Office of Refugee Resettlement (“ORR”). She resides with a foster family contracted through an ORR-licensed child care facility called 15 Lutheran Social Services (“LSS”). Krause Dec. ¶ 49. 16 17 44. In approximately May of 2018 near the U.S.-Mexico border, immigration officials took 18 K.C.A. and Ms. R.V.A.L. into custody, and then, separated them from one another. K.C.A. 19 was 9 years old at the time that she was separated from her mother. Krause Dec. ¶ 50. 20 45. K.C.A. said that when she first entered the United States she was taken to a facility that was 21 very cold and spent approximately two days there. She did not have a bed to sleep on and 22 23 was not given any clean clothes. She was then taken to another facility that was surrounded 24 by fences. She did not get enough food to eat at this facility and said that the little food she 25 was given was horrible, though she still ate it. She was not allowed to leave the facility for 26 any reason or go outside, which made her feel sad. Krause Dec. ¶ ¶ 51–52. 27 28 8 Case 3:18-cv-00428-DMS-MDD Document 149-1 Filed 07/24/18 PageID.2484 Page 9 of 37 1 2 46. Officers told K.C.A. that her mother had to go to court. When K.C.A. asked when her mother would return, officers told her that it would be at around noon. K.C.A. kept looking at the 3 clock, waiting for her mother to return. She never saw her mother again. When K.C.A. asked 4 5 6 7 8 officers when her mother would return, the officers only responded by saying: “later.” Krause Dec. ¶ 53. 47. K.C.A. spent days in this facility after she was separated from her mother. K.C.A. cried herself to sleep and she was not able to sleep much at all. Other older children who were also 9 detained tried to comfort K.C.A., telling her that everything would be ok and that she would 10 11 12 13 14 see her mother again. K.C.A. was then placed in ORR custody and sent to New York. Krause Dec. ¶ 54. 48. At her first interview with her attorney, K.C.A. expressed that she very much wanted to reunify with her mother. Krause Dec. ¶ 55. 15 49. The ORR case manager assigned to K.C.A.’s case said that to her knowledge K.C.A.’s 16 17 mother wanted her to reunify and repatriate with K.C.A. She said that to her knowledge, 18 K.C.A.’s mother was unrepresented by counsel, had a credible fear interview, and had sought 19 review of a negative result. K.C.A. through counsel has not been able to verify the expressed 20 wishes of K.C.A.’s mother. Krause Dec. ¶ 56. 21 50. Two days later, K.C.A.’s ORR case manager said that she was not sure how or when the 22 23 24 25 26 reunification between K.C.A. and Ms. R.V.A.L. would take place, but that it would occur prior to July 26, 2018. Krause Dec. ¶ 57. 51. On the morning of July 16, 2018, counsel for K.C.A. made several attempts to contact K.C.A.’s mother through ICE, with no success. Krause Dec. ¶ 58. 27 28 9 Case 3:18-cv-00428-DMS-MDD Document 149-1 Filed 07/24/18 PageID.2485 Page 10 of 37 1 52. On the evening of July 16, 2018, K.C.A. counsel received notice that K.C.A. was being 2 transferred to an ICE detention center to be reunified with her parent. Krause Dec. ¶ 59. 3 53. K.C.A. does not wish to be reunified with her mother in the context of a detention facility. 4 She had very bad memories of her time spent in a detention facility and did not wish to be 5 returned to that context. Krause Dec. ¶ 60. 6 7 54. Counsel for K.C.A. has not been able to speak with Ms. R.V.A.L. since the time she began 8 representing K.C.A. on July 10, 2018. Krause Dec. ¶ 65. 9 55. During the time that K.C.A. has been in ORR custody, she has had weekly calls with her 10 mother, but she does not understand that legal posture of her mother’s case. The last call she 11 12 had with her mother was last week and she estimates that it lasted only about 5 minutes 13 because her mother said that she was running out of time on her account. Krause Dec. ¶ 66. 14 56. K.C.A. is desperate to see her mother, and she fears that she will never see her mother again. 15 K.C.A. said that if she sees her mother again, the first thing she will do is hug her mother and 16 cry with happiness. Krause Dec. ¶ 67. 17 Background Facts 18 19 20 57. On June 26, 2018, the District Court for the Southern District of California ordered that 21 Defendants reunite separated children with their parents by July 26, 2018 and take all steps 22 necessary to facilitate regular communication between the detained children and their parents. 23 See Ms. L. v. ICE, __ F. Supp. 3d __, 2018 WL 3129486, at *5 (S.D. Cal. June 26, 2018) 24 (internal quotations omitted). 25 26 27 58. As of July 20, 2018, Defendants represented during a status conference in the Ms. L litigation that approximately 450 of 2,551 children separated from parents had been reunited. 28 10 Case 3:18-cv-00428-DMS-MDD Document 149-1 Filed 07/24/18 PageID.2486 Page 11 of 37 1 2 59. On July 16, 2018, the District Court for the Southern District of New York ordered that children in New York State separated from their parents in Defendants custody be provided 48- 3 hours-notice in order to permit consultation among children, parents, and legal counsel for the 4 5 separated children who are clients of The Legal Aid Society in New York State, and information 6 concerning whether transfers of children represented by The Legal Aid Society out of the state in 7 which they are represented by counsel “is for the purpose of release, detention, and/or 8 repatriation[.]” N.T.C. v. ICE, 18-cv-6428, Order (J. Swain S.D.N.Y. July 16, 2018); see also id. 9 ECF No. 20, Memorandum and Order (J. Furman July 19, 2018) (extending the order, noting that 10 11 it is to provide “an opportunity for the Plaintiff class member to consult with a parent or close 12 family member and counsel in order to protect the child’s ability to make informed decisions 13 about his or her legal rights and potential claims.”) 14 60. Defendants have not provided that opportunity to consult with parents, and, upon 15 information and belief, seek to remove J.E.C.M. from New York without permitting (him/her) 16 17 the opportunity to consult with counsel and his parent. 18 61. Defendants conscience shocking offensive and unconstitutional conduct has and will 19 continue to cause J.E.C.M. irreparable harm in violation of the United States Constitution, 20 statutory and regulatory law, and the Flores settlement agreement.1. 21 JURISDICTION & VENUE 22 23 24 62. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331, 1346, 2201- 2202 2241, Art. I § 9, cl. 2 and Art. III of the United States Constitution. The action arises under 25 26 27 28 1 Flores v. Reno, No. CV-85-4544-RJK (C.D. Cal. Jan. 17, 1997), available at https://tinyurl.com/y9fxrbsp (hereinafter “Flores Settlement”). 11 Case 3:18-cv-00428-DMS-MDD Document 149-1 Filed 07/24/18 PageID.2487 Page 12 of 37 1 2 the Due Process Clause of the Fifth Amendment, Equal Protection under the Fifth Amendment, Section 504 of the Rehabilitation Act of 1973 (“Section 504”), the Administrative Procedure Act 3 (“APA”), the Eighth Amendment, and the Immigration and National Act of 1952 (“INA”). 4 5 63. The Court may grant relief under the habeas corpus statutes, 28 U.S.C. § 2241 et seq., the 6 Declaratory Judgment Act, 28 U.S.C. § 2201 et seq., and the All Writs Act, 28 U.S.C. § 1651. 7 64. 8 Plaintiff’s current detention as enforced by Defendants constitutes a “severe restraint[]” on [Petitioner’s] individual liberty,” such that Plaintiff is “in custody in violation of the . . . 9 laws . . . of the United States.” Hensley v. Municipal Court, 411 U.S. 345, 351 (1973); 28 U.S.C. 10 11 § 2241. 12 65. 13 substantial part of the events giving rise to the claim occurred in this District. It is also proper 14 Venue is proper in the Southern District of New York under 28 U.S.C. § 1391 because a because Plaintiff is presently detained under the authority of the Defendants within the 15 jurisdiction of the Southern District of New York. 16 EXHAUSTION OF REMEDIES 17 18 66. 19 administrative agency exists to entertain PLAINTIFFS constitutional challenges. See Howell v. 20 No exhaustion requirement applies to the claims raised in this proceeding, because no INS, 72 F.3d 288, 291 (2d Cir. 1995); Arango–Aradondo v. INS, 13 F.3d 610, 614 (2d Cir. 1994). 21 67. Any prudential exhaustion requirement may be excused where, as here, “requiring resort 22 23 to the administrative remedy may occasion undue prejudice[.]” McCarthy v. Madigan, 503 U.S. 24 140, 146–47 (1992). “[I]rreparable harm is presumed where there is an alleged deprivation of 25 constitutional rights.” Am. Civil Liberties Union v. Clapper, 804 F.3d 617, 622 (2d Cir. 2015) 26 (citing Statharos v. New York City Taxi & Limousine Comm’n, 198 F.3d 317, 322 (2d Cir. 1999) 27 (“Because plaintiffs allege deprivation of a constitutional right, no separate showing of 28 12 Case 3:18-cv-00428-DMS-MDD Document 149-1 Filed 07/24/18 PageID.2488 Page 13 of 37 1 2 irreparable harm is necessary”). The irreparable harm being needlessly inflicted on Plaintiff by the Defendants conduct is clear, invidious, and patently unconstitutional. 3 PARTIES 4 5 68. Plaintiff, E.S.R.B. is a E.S.R.B., A#xxx-xx1-843, is a 9 year-old boy who traveled from 6 Honduras to the United States with his mother. E.S.R.B. is currently in the custody of the Office 7 of Refugee Resettlement (“ORR”). He resides with a foster family contracted through an ORR- 8 licensed child care facility called Cayuga Center. He brings this lawsuit through a next friend 9 because of his incapacity due to his minor status. 10 11 12 69. Meryl Ranzer resides with her family in New York, New York, and volunteers at the New 13 Sanctuary Coalition of NYC. Previously, she worked for 30 years as a fashion designer and 14 taught as an adjunct professor at Parsons School of Design, the Fashion Institute of 15 Technology, and Kent State University. Ms. Ranzer brings this suit as next friend on behalf 16 of E.S.R.B. in order to protect E.S.R.B.’s rights. 17 18 70. 19 Defendants since May 24, 2018. J.E.C.M. brings this lawsuit through a next friend because of 20 Plaintiff, J.E.C.M. is a 12 year old national of Honduras. He has been in custody of the his incapacity due to his minor status and his inability – due to Defendants conduct – to speak to 21 his father. 22 23 71. Carline Pinto is an organizer and social justice advocate for immigration and criminal 24 justice reform, and is currently the Manager of Member Engagement for the New York 25 Immigration Coalition. Before joining the NYIC, Carlene worked with the Riverside Church as 26 the Coordinator of Mission and Social Justice Programming. Carlene also served as the outreach 27 liaison for the Justice League NYC. She has helped organize hundreds of direct actions and 28 13 Case 3:18-cv-00428-DMS-MDD Document 149-1 Filed 07/24/18 PageID.2489 Page 14 of 37 1 2 mobilizations. Ms. Pinto brings this suit as next friend on behalf of J.E.C.M. in order to protect J.E.C.M.’s rights. 3 72. PLAINTIFFS K.M.G., K.D.G., S.G.G., and F.E.O.G. are siblings who are currently being 4 5 held in the custody of the Office of Refugee Resettlement (“ORR”) at the Cayuga facility. They 6 bring this lawsuit through a next friend because of their incapacity due to their minor status. 7 73. Reverend Elizabeth G. Maxwell has served as the Rector of the Church of Ascension since 8 2015. She has lived in New York for nearly 30 years and previously worked at St. Michael’s 9 Church. Reverend Maxwell brings this suit as next friend on behalf of K.M.G., K.D.G., 10 S.G.G., and F.E.O.G. in order to protect K.M.G., K.D.G., S.G.G., and F.E.O.G.’s rights. 11 12 1. Plaintiff K.C.A. is a 9 year-old girl who traveled from El Salvador to the United States with 13 her mother. She brings this lawsuit through a next friend because of her incapacity due to her 14 minor status. 15 2. Letitia James is the Public Advocate for the City of New York, a city-wide elected official. 16 17 In this capacity, she is charged with overseeing the functions and efficacy of New York City 18 agencies. She brings this in her personal capacity. She has been a public defender, New York 19 City Council Member, and assistant attorney general. 20 3. Defendant Jefferson B. Sessions III is named in his official capacity as the Attorney 21 General of the United States. In this capacity, he is responsible for the administration of the 22 23 immigration laws pursuant to 8 U.S.C. § 1103 as exercised by the Executive Office for 24 Immigration Review. Respondent Sessions routinely transacts business in the Southern District 25 of New York, is legally responsible for administering Petitioner’s removal proceedings and the 26 standards used in those proceedings, and as such is a legal custodian of Petitioner. Respondent 27 28 14 Case 3:18-cv-00428-DMS-MDD Document 149-1 Filed 07/24/18 PageID.2490 Page 15 of 37 1 2 Sessions’ address is Attorney General of the United States, U.S. Department of Justice, 950 Pennsylvania Avenue, N.W., Washington, District of Columbia 20530. 3 4. Defendant U.S. Department of Homeland Security (“DHS”) has responsibility for 4 5 enforcing the immigration laws of the United States. 6 5. 7 She directs each of the component agencies within DHS, including ICE. Defendant Nielsen is 8 Defendant Kirstjen Nielsen is the Secretary of DHS and is sued in her official capacity. responsible for implementing U.S. immigration laws and policies, including policies related to 9 family separation and family detention at the U.S. southern border. 10 11 6. Defendant U.S. Customs and Border Protection (“CBP”) is the sub-agency of DHS that is 12 responsible for enforcement operations along the borders of the United States, including the 13 southern border. 14 7. Defendant Kevin K. McAleenan is the Commissioner of CBP and is sued in his official 15 capacity. He oversees the apprehension and detention of individuals, including asylum seekers, 16 17 who enter the United States at or near the U.S. border. 18 8. 19 DHS that is responsible for the detention and removal operations of DHS. 20 9. Defendant U.S. Immigration and Customs Enforcement (“ICE”) is the sub-agency of Defendant Ronald D. Vitiello is the Acting Director of ICE and is sued in his official 21 capacity. He directs the nation’s immigration detention system and oversees the removal of 22 23 families ordered deported at ICE detention facilities. Defendant Vitiello plays a critical role in 24 setting detention policies that affect asylum seekers who are held in detention while they await 25 the first steps of the asylum process. 26 10. Defendant U.S. Citizenship and Immigration Services (“USCIS”) is the sub-agency of 27 DHS that, through its asylum officers, conducts interviews of certain individuals apprehended at 28 15 Case 3:18-cv-00428-DMS-MDD Document 149-1 Filed 07/24/18 PageID.2491 Page 16 of 37 1 2 or near the border to determine whether they have a credible fear of persecution and must be permitted to apply for asylum. 3 11. Defendant L. Francis Cissna is the Director of USCIS and is sued in his official capacity. 12. Defendant U.S. Department of Health and Human Services (“HHS”) is a department of 4 5 6 the executive branch that is responsible for “unaccompanied” non-citizen minor children. 7 13. Alex Azar is the Secretary of HHS and is sued in his official capacity. 14. Defendant Office of Refugee Resettlement (“ORR”) is the component of HHS which 8 9 provides placement and care for “unaccompanied” non-citizen minor children and holds legal 10 11 12 custody of J.E.C.M. . 15. Scott Lloyd is the director of ORR and is sued in his official capacity. 13 FACTUAL BACKGROUND 14 Family Separation Policy 15 16. The Defendants have separated thousands of families pursuant to a “zero tolerance 16 17 policy,” a policy expressly designed to deter future asylum-seekers from coming to the United 18 States by subjecting them to criminal prosecution and separation from their children. 19 17. 20 In March 2017, then-DHS Secretary John Kelly stated that the government was considering separating arriving children from their parents “in order to deter more movement” 21 into the United States. See Copeland Decl. Ex. A, (NPR All things considered, How The Trump 22 23 Administration's Family Separation Policy Is Playing Out (May 28, 2018)). 24 18. 25 tolerance policy” of prosecution of all asylum seekers and other migrants entering the country 26 On May 7, 2018, Defendant Attorney General Jefferson Sessions announced the “zero without inspection and coercive family separation of parents and children in order to deter 27 asylum seekers and other migrants from crossing into the United States. Defendant Sessions 28 16 Case 3:18-cv-00428-DMS-MDD Document 149-1 Filed 07/24/18 PageID.2492 Page 17 of 37 1 2 explained, “If you cross this border unlawfully, then we will prosecute you. It’s that simple. . . . If you are smuggling a child, then we will prosecute you and that child will be separated from 3 you . . . .” Copeland Decl. Ex. B. 4 5 19. The policy, by design, targeted only those family units crossing the southern U.S. border, 6 not families entering the U.S. by other means, virtually all of whom are Latino, and a growing 7 share of whom have origins in the “Northern Triangle” countries of Honduras, El Salvador, and 8 Guatemala. Defendants have forcibly separated over 2,550 children from their parents while 9 crossing the border, some only months old. See Ms. L v. ICE, 18-cv-428 ECF No. 124, Joint 10 11 Status Report (S.D. Cal. July 19, 2018). Children forcibly separated from their parents were 12 transferred to the custody of Defendant Office of Refugee Resettlement (“ORR”), a component 13 of Defendant U.S. Department of Health and Human Services, and sent to shelters and temporary 14 housing. 15 20. Overwhelmingly, psychological experts warn that separating children from parents at the 16 17 border causes both immediate and long-lasting psychological harm to children. Copeland 18 Decl., Ex. C (Dylan Gee, I study kids who were separated from their parents. The trauma 19 could change their brains forever. The psychological impact is well-documented, VOX.COM 20 (June 20, 2018)). 21 21. When a child is initially separated from a parent at the border, the child’s brain goes into 22 23 fight or flight mode causing a surge in stress hormones. Id. Over time after a child is 24 separated from a parent, the child’s “body and brain are being shaped to anticipate danger 25 and prepare for the worst. This state of hypervigilance, often accompanied by alterations in 26 cognition and emotion, makes healthy functioning a major challenge.” Id. The long-term 27 effects of this early childhood trauma include becoming “at risk for academic or occupational 28 17 Case 3:18-cv-00428-DMS-MDD Document 149-1 Filed 07/24/18 PageID.2493 Page 18 of 37 1 failure, substance abuse, and health problems such as heart disease and diabetes.” Already, 2 recently reunified parents have indicated concerns regarding the mental health and well- 3 being of their children. Copeland Decl., Ex. D (Michael E. Miller, How Children are Still 4 Suffering the Trauma of Trump’s Family Separation Policy, THE IND. (July 21, 2018)). For 5 6 instance, some children have anxiety about return to detention and do not recognize their 7 parents. Id. Experts agree that these separated children may be deeply traumatized by forced 8 separation. Id. 9 22. In the face of widespread public condemnation of coerced family separation, President 10 11 Trump purportedly retracted the “zero tolerance policy” by Executive Order on June 20, 2018. 12 Copeland Decl. Ex. E, Executive Order called “Affording Congress an Opportunity to Address 13 Family Separation,” issued on June 20, 2018. The EO continued the policy of initiating criminal 14 proceedings for all individuals who crossed the border without authorization; however, in place 15 of systematic separation of families, the EO called for indefinite detention of families in camps 16 17 and makeshift facilities. Id. The EO did not include any provisions to reunite families that had 18 been separated at the border, nor did it purport to remediate the trauma or other harms caused by 19 family separation. 20 Court Orders 21 23. In litigation in the U.S. District Court for the Southern District of California, 22 23 representatives for Defendant Immigration and Customs Enforcement (“ICE”) did not dispute 24 that they had “no plans or procedures to reunify the parent with the child other than arranging for 25 them to be deported together after the parent’s immigration case is concluded.” Ms. L. v. ICE, __ 26 F. Supp. 3d __, 2018 WL 3129486, at *5 (S.D. Cal. June 26, 2018) (internal quotations omitted). 27 28 18 Case 3:18-cv-00428-DMS-MDD Document 149-1 Filed 07/24/18 PageID.2494 Page 19 of 37 1 2 The court found that “under the present system migrant children are not accounted for with the same efficiency and accuracy as property.” Id. at *7 (emphasis in original). 3 24. The court in Ms. L. ordered, inter alia, that the government reunify all class members 4 5 with their minor children by July 26, 2018 and take all steps necessary to facilitate regular 6 communication between a detained parent and child. However, the court did not itself require 7 the government to release any parent or child from federal custody. More importantly, the Ms. L 8 class was not comprised of detained children, and as such, the court order did not address any 9 issues relating to the release of children from federal custody altogether; any process to involve 10 11 the parent in decisions regarding placement of their child; or any process for expediting release 12 of children to relatives or other caretakers where the parent together with the child determines 13 that is in the best interest of the child. 14 25. On July 16, 2018, District Judge Laura Taylor Swain of the Southern District of New 15 York, ordered that children in New York State separated from their parents in Defendants’ 16 17 custody be provided 48-hours-notice in order to permit consultation among children, parents, and 18 legal counsel for the separated children who are clients of The Legal Aid Society in New York 19 State, and information concerning whether transfers of children represented by The Legal Aid 20 Society out of the state in which they are represented by counsel “is for the purpose of release, 21 detention, and/or repatriation[.]” N.T.C. v. ICE, 18-cv-6428, Order (J. Swain S.D.N.Y. July 16, 22 23 2018); see also id. ECF No. 20, Memorandum and Order (J. Furman July 19, 2018) (extending 24 the order, noting that it is to provide “an opportunity for the Plaintiff class member to consult 25 with a parent or close family member and counsel in order to protect the child’s ability to make 26 informed decisions about his or her legal rights and potential claims.”) 27 28 19 Case 3:18-cv-00428-DMS-MDD Document 149-1 Filed 07/24/18 PageID.2495 Page 20 of 37 1 2 26. In the case of Plaintiff-Petitioner, the government has failed to take all steps necessary to facilitate regular communication between the detained children and his parent, and in 3 communications relating to transferring J.E.C.M. have failed to offer concrete information as to 4 5 the purpose of the reunification. LEGAL FRAMEWORK 6 7 8 Right to Seek Asylum 27. Under United States law, noncitizens with a well-founded fear of persecution shall have 9 the opportunity to obtain asylum in the United States. 8 U.S.C. § 1158(a). In addition, 10 11 noncitizens have a mandatory statutory entitlement to withholding of removal where the 12 noncitizen would face a probability of persecution if removed to his or her country of nationality, 13 8 U.S.C. § 1231(b)(3). 14 28. Noncitizens have a further mandatory statutory entitlement to withholding or deferral of 15 removal where they would face a probability of torture. Foreign Affairs Reform and 16 17 Restructuring Act (“FARRA”), Pub. L. No. 105-277, Div. G., Title XXII, § 2242, 112 Stat. 18 2681-822 (Oct. 21, 1998) (codified as Note to 8 U.S.C. § 1231). 19 29. 20 Since 1996, immigration law has provided authority for “expedited removal,” or the removal of certain individuals from the United States without a removal hearing. 21 Id. § 1225(b)(1)(A)(i). 22 23 30. Even an individual subject to expedited removal, however, must receive a removal 24 hearing if the person “indicates either an intention to apply for asylum . . . or a fear of 25 persecution.” Id. Under such circumstances, an asylum officer evaluates whether the individual 26 has a “credible fear” of persecution in their home country. Id. § 1225(b)(1)(A)(ii). If an asylum 27 officer determines that there is a “significant possibility” that such an individual could prove 28 20 Case 3:18-cv-00428-DMS-MDD Document 149-1 Filed 07/24/18 PageID.2496 Page 21 of 37 1 2 eligibility for fear-based relief, id. § 1225(b)(1)(B)(v), then the asylum seeker is placed into regular – non-expedited – removal proceedings. Id. § 1225(b)(1)(B)(ii). 3 Flores Settlement 4 5 31. When the government decides to detain children for immigration purposes, it is subject to 6 the Flores Settlement, which implements a “general policy favoring release” of minors. The 7 Flores Settlement “unambiguously applies both to accompanied and unaccompanied minors” in 8 DHS custody. Flores v. Lynch, 828 F.3d 898, 901 (9th Cir. 2016), and requires the government 9 to “place each detained minor in the least restrictive setting appropriate to the minor’s age and 10 11 special needs . . .” Flores Settlement ¶ 11. 12 32. 13 ¶14, and, for those who are detained, a placement in “the least restrictive setting appropriate to 14 The Flores Settlement provides minors with a presumption of release, Flores Settlement the minor's age and special needs,” and those are required to be state-licensed. Flores Settlement, 15 ¶11, ¶19. 16 17 33. Under the settlement, children must be released from detention within five days, or 18 within twenty days in certain emergency circumstances, to a parent, legal guardian, adult 19 relative, adult designated by a legal guardian, or (if none of these individuals are available) a 20 licensed program willing to accept legal custody. See id. ¶¶ 12, 14. 21 34. Immigrant children in the custody of the government are entitled to holistic services 22 23 including educational services appropriate to the development of the child, legal services, 24 recreational time, routine medical & dental care as well as mental health services on a weekly 25 basis (individual counseling at least once a week and group counseling at least twice a week). 26 See id. ¶¶ 2, 4, 5, 6, 7, 14. The Flores Settlement guarantees a child’s reasonable right to privacy, 27 28 21 Case 3:18-cv-00428-DMS-MDD Document 149-1 Filed 07/24/18 PageID.2497 Page 22 of 37 1 2 including the ability to wear one’s own clothes, talk privately on the phone, and receive uncensored mail. Id. ¶ 12. 3 The TVPRA 4 5 35. In 2008, Congress recognized the vulnerability of unaccompanied children and created 6 special statutory protections for these children through the TVPRA. The TVPRA provided 7 important protections for unaccompanied children. The TVPRA also codified portions of the 8 Flores Settlement, e.g. 8 U.S.C. § 1232(c)(2)(A), requiring that an unaccompanied alien child 9 “shall be promptly placed in the least restrictive setting that is in the best interest of the child[.]” 10 11 36. The TVPRA also provided important legal venue for unaccompanied children. The 12 TVPRA gave USCIS initial jurisdiction of unaccompanied children’s asylum cases which allows 13 unaccompanied children to pursue their asylum claims in a non-adversarial, child-friendly 14 setting. See TVPRA § 235(d)(7)(B). It also exempts unaccompanied children from the one-year 15 asylum filing deadline to unaccompanied children. TVPRA § 235(d)(7)(A). The TVPRA also 16 17 requires the government to promulgate “regulations which take into account the specialized 18 needs of unaccompanied alien children and which address both procedural and substantive 19 aspects of handling unaccompanied alien children’s cases.” the government to issue regulations 20 that take into account the “specialized needs” of unaccompanied children and address both 21 substantive and procedural aspects of UAC asylum claims.” 8 U.S.C.§ 1232 (d)(8). Placing 22 23 initial jurisdiction with USCIS gives unaccompanied children two opportunities to pursue 24 asylum: first before USCIS in a non-adversarial setting, with adjudicators who have been trained 25 on interviewing children and then de novo before an immigration judge, should the child not be 26 successful before USCIS. This is important because it often takes traumatized children time to 27 open up about the harmful experiences they have had. 28 22 Case 3:18-cv-00428-DMS-MDD Document 149-1 Filed 07/24/18 PageID.2498 Page 23 of 37 1 2 37. According to a 2013 USCIS memo, once a child was deemed unaccompanied by DHS, that determination would remain in place for jurisdictional purposes unless there was an 3 affirmative act by ICE, HHS, or CBP which removed the unaccompanied child status. In 4 5 practice, the government has interpreted the transfer of a child from HHS custody to DHS 6 custody as an affirmative act terminating unaccompanied child status. Thus, once a separated 7 child is reunified with his/her parents in ICE detention, the child will lose the opportunity to 8 pursue his/her claim before USCIS, and perhaps even before a judge , thereby decreasing the 9 chances that he/she will win asylum. 10 Procedural Due Process 11 12 38. 13 individuals of “liberty” or “property” interests within the meaning’ of the Fifth Amendment.” 14 “The Due Process Clause ‘imposes constraints on governmental decisions which deprive Barrows v. Burwell, 777 F.3d 106, 113 (2d Cir. 2015) (quoting Mathews v. Eldridge, 424 U.S. 15 319, 332 (1976)). The Due Process Clause “applies to all ‘persons’ within the United States, 16 17 including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” 18 Zavydas v. Davis, 533 U.S. 678, 693 (2001). 19 39. 20 The determination of what procedures are required under the Fifth Amendment requires consideration of: (1) the private interest that will be affected by the official action; (2) the risk of 21 erroneous deprivation of that interest through the procedures used; and (3) the government’s 22 23 24 interest, including the fiscal and administrative burdens that the additional or substitute procedures would entail. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976). 25 26 Substantive Due Process 40. The substantive component of due process “bar[s] certain government actions regardless 27 of the fairness of the procedures used to implement them.” See Daniels v. Williams, 474 U.S. 28 23 Case 3:18-cv-00428-DMS-MDD Document 149-1 Filed 07/24/18 PageID.2499 Page 24 of 37 1 2 327, 331 (1986). There are “two strands of the substantive due process doctrine.” See Seegmiller v. LaVerkin City, 528 F.3d 762, 767 (10th Cir. 2008). The first strand protects rights that are 3 “fundamental,” whereas the second “protects against the exercise of governmental power that 4 5 shocks the conscience.” Id. 6 41. 7 rights that implicate substantive due process “has not been reduced to any formula.” Obergefell 8 For the fundamental rights strand of substantive due process, the identification of those v. Hodges, ––– U.S. ––––, 135 S.Ct. 2584, 2598, (2015) (internal quotation marks omitted). At 9 minimum, however, they include those “deeply rooted in this Nation’s history and tradition.” 10 11 See Washington v. Glucksberg, 521 U.S. 702, 721, (1997) (internal quotation marks omitted). 12 42. 13 Court is “the interest of parents in the care, custody, and control of their children.” See Troxel v. 14 “[P]erhaps the oldest of the fundamental liberty interests recognized by” the Supreme Granville, 530 U.S. 57, 65 (2000). In 1923, the Supreme Court in Meyer v. Nebraska, 262 U.S. 15 390, 399 (1923), held that the “liberty” protected by the Due Process Clause includes the right of 16 17 parents to raise their children. The Supreme Court has also recognized the fundamental right of 18 parents to make decisions concerning the care, custody, and control of their children. See, e.g., 19 Stanley v. Illinois, 405 U.S. 645, 651 (1972). 20 43. The “right to the preservation of family integrity encompasses the reciprocal rights of 21 both parent and children.” Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir. 1977). Children 22 23 have a “constitutionally protected liberty interest in not being dislocated from the emotional 24 attachments that derive from the intimacy of daily family association.” Kia P. v. McIntyre, 235 25 F.3d 749, 759 (2d Cir. 2000) (internal quotation marks and alteration omitted); see also 26 Southerland v. City of New York, 680 F.3d 127, 142 (2d Cir. 2012) (parents “have a 27 28 24 Case 3:18-cv-00428-DMS-MDD Document 149-1 Filed 07/24/18 PageID.2500 Page 25 of 37 1 2 constitutionally protected liberty interest in the care, custody and management of their children” (quoting Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999)). 3 44. The Due Process Clause of the Fifth Amendment also protects the substantive right to be 4 5 free from unjustified deprivations of liberty. Zadvydas, 533 U.S. at 690. This right extends to 6 both “removable and inadmissible” non-citizens. Id. at 721 (Kennedy, J. dissenting) (holding that 7 both “removable and inadmissible aliens are entitled to be free from detention that is arbitrary or 8 capricious”). 9 45. The “freedom from imprisonment—from government custody, detention, or other forms 10 11 of physical restraint—lies at the heart of the liberty” that the Due Process Clause protects. Id. at 12 690; see also id. at 718 (Kennedy, J., dissenting) (“Liberty under the Due Process Clause 13 includes protection against unlawful or arbitrary personal restraint or detention.”). 14 46. Conduct that shocks the judicial conscience is deliberate government action that is 15 “arbitrary” and “unrestrained by the established principles of private right and distributive 16 17 justice.” Cty of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (quoting Hurtado v. California, 18 110 U.S. 516, 527 (1884)). This strand of substantive due process is concerned with preventing 19 government officials from “abusing their power, or employing it as an instrument of oppression.” 20 Id. (internal marks omitted). 21 The APA 22 23 47. Under the Administrative Procedures Act, a “final agency action for which there is no 24 other adequate remedy in a court [is] subject to judicial review.” 5 U.S.C. § 704. The reviewing 25 court “shall ... hold unlawful and set aside agency action, findings, and conclusions found to 26 be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” or 27 “unsupported by substantial evidence.” 5 U.S.C. §§ 706(2)(A), (E). 28 25 Case 3:18-cv-00428-DMS-MDD Document 149-1 Filed 07/24/18 PageID.2501 Page 26 of 37 1 2 48. The Supreme Court explained in Bowen v. Massachusetts that judicial review of administrative actions “should not be construed to defeat the central purpose of providing a 3 broad spectrum of judicial review of agency action” and that any alternative remedy advanced by 4 5 the agency will not be adequate under § 704 where the remedy offers only “doubtful and limited 6 relief.” 487 U.S. 879, 901 (1988). 7 49. 8 As to finality of agency action, the “core question” is “whether the agency has completed its decisionmaking process, and whether the result of that process is one that will directly affect 9 the parties.” Lunney v. United States, 319 F.3d 550, 554 (2d Cir. 2003) (quoting Dalton v. 10 11 Specter, 511 U.S. 462, 470 (1994) ). 12 50. 13 the action must mark the consummation of the agency’s decision-making process-it must not be 14 “As a general matter, two conditions must be satisfied for agency action to be final: First, of a merely tentative or interlocutory nature. And second, the action must be one by which rights 15 or obligations have been determined or from which legal consequences will flow.” See Bennett v. 16 17 Spear, 520 U.S. 154, 177-78 (1997). 18 51. 19 its position, determining the rights and obligations of the parties, the agency’s action is final 20 The Supreme Court has provided that “if an agency has issued a definitive statement of notwithstanding the possibility of further proceedings in the agency on related issues, so long as 21 judicial review at the time would not disrupt the administrative process.” Sharkey v. Quarantillo, 22 23 541 F.3d 75, 88 (2d Cir. 2008) (citing Bell v. New Jersey, 461 U.S. 773, 779-80 (1983) ) (internal 24 quotation marks and alterations omitted). 25 Section 504 of the Rehabilitation Act 26 52. Section 504 provides that “no otherwise qualified individual with a disability . . . shall, 27 solely by reason of his or her disability, be excluded from the participation in, be denied the 28 26 Case 3:18-cv-00428-DMS-MDD Document 149-1 Filed 07/24/18 PageID.2502 Page 27 of 37 1 2 benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.” 29 U.S.C. § 794(a). 3 53. Disability is defined to include “(A) a physical or mental impairment that substantially 4 5 limits one or more major life activities . . .” 29 U.S.C. § 705(20)(B); 42 U.S.C. § 12102. Writs of Habeas Corpus Ad Testificandum 6 7 8 54. Federal statute and the common law authorize this Court to issue a writ of habeas corpus ad testificandum, a “lesser writ” that directs a witness’s custodian to permit or bring that witness 9 to appear at a proceeding and give testimony. 28 U.S.C. §§ 2241(c)(1), (c)(5); Barber v. Page, 10 11 390 U.S. 719, 724 (1968) (noting that “federal courts [have] the power to issue writs of habeas 12 corpus ad testificandum” in “case of a prospective witness currently in federal custody” where 13 testimony is necessary); Rivera v. Santirocco, 814 F.2d 859, 860, 864 (2d Cir. 1987) 14 (recognizing authority of federal courts to issue testificandum writ). Issuance of a writ of habeas 15 corpus ad testificandum does not challenge or disturb the underlying custodial order, but merely 16 17 facilitates testimony from or the presence of a person who remains in custody. 18 55. 19 state or federal custody into court. U.S. v. Cruz-Jiminez, 977 F.2d 95 (3d Cir. 1992); Sampley v. 20 A federal court may issue a writ of habeas corpus ad testificandum to bring a witness in Duckworth, 72 F.3d 528 (7th Cir. 1995); Bistram v. U.S., 248 F.2d 343 (8th Cir. 1957). 21 56. Second, the reach of the writ of habeas corpus ad testificandum is not subject to 22 23 geographical constraints in the same manner as is the writ of habeas corpus ad subjiciendum, the 24 more familiar “Great Writ” that inquires into the lawfulness of the underlying custody itself. 25 Because the ad testificandum writ is an administrative writ that does not contest the lawfulness 26 of custody, it is more flexible and is not dependent on the geographic location of the physical 27 custodian. As the Fourth Circuit explained in United States v. Moussaoui, “[i]t is . . . clear that a 28 27 Case 3:18-cv-00428-DMS-MDD Document 149-1 Filed 07/24/18 PageID.2503 Page 28 of 37 1 2 district court can reach beyond the boundaries of its own district in order to issue a testimonial writ.” 382 F.3d 453, 466 (4th Cir. 2004); see also Barnes v. Black, 544 F.3d 807, 809 (7th Cir. 3 2008) (“Section 2241(c)(5) of the Judicial Code authorizes the district court to issue a writ of 4 5 habeas corpus commanding that the prisoner be delivered to the court ‘to testify or for trial.’ The 6 section codifies the common law authority of federal courts to issue writs of habeas corpus ad 7 testificandum and ad prosequendum. . . These writs can be used to get a prisoner into the district 8 court from anywhere in the country.”). The writ enables the Court to obtain an individual in the 9 State’s custody from both state and federal facilities. Barnes, 544 F.3d at 809 (collecting cases). 10 11 This Court therefore has jurisdiction to reach all of the Defendants here, and to compel 12 Defendants to produce the father of J.E.C.M. 13 57. 14 The Supreme Court has similarly explained that the usual “the territorial limitation” on habeas petitions “refers solely to issuance of the Great Writ.” See, e.g., Carbo v. United States, 15 364 U.S. 611, 619 (1961) (emphasis added) (finding no geographical limit for habeas corpus ad 16 17 prosequendum). “A consensus among the courts [thus] indicates support for the extraterritorial 18 issuance of writs of habeas corpus ad testificandum.” Williams v. Beauregard Par., No. 2:08- 19 CV-355, 2014 WL 1030042, at *3 (W.D. La. Mar. 17, 2014); see also ITEL Capital Corp. v. 20 Dennis Mining Supply and Equip., Inc., 651 F.2d 405, 406–07 (5th Cir. 1981); Roe v. Operation 21 Rescue, 920 F.2d 213, 218 n. 4 (3d Cir. 1990); Atkins v. City of New York, 856 F. Supp. 755, 22 23 758-59 (E.D.N.Y. 1994); Greene v. Prunty, 938 F. Supp. 637, 638-39 (S.D. Cal. 1996). 24 Defendant Nielsen, as well as the physical custodians of the father of J.E.C.M., are thus within 25 the ad testificandum writ jurisdiction of this Court. 26 58. This Court’s power to issue the writ of habeas corpus ad testificandum is also derived 27 from the common law, for this writ is a “common law writ of ancient origin.” Gilmore v. United 28 28 Case 3:18-cv-00428-DMS-MDD Document 149-1 Filed 07/24/18 PageID.2504 Page 29 of 37 1 2 States, 129 F.2d 199, 202 (10th Cir. 1942). The Supreme Court has indicated that federal courts today must look to the historic usage of habeas corpus writs when defining their authority to 3 issue such writs. See, e.g., Carbo v. United States, 364 U.S. 611, 617-620 (1961) (tracing 4 5 common law and subsequent history of writ of habeas corpus ad prosequendum). Immediate Release Under Mapp v. Reno 6 7 8 59. The Court’s authority to release habeas corpus petitioners during the pendency of their petitions is governed by Mapp v. Reno, 241 F.3d 221 (2d Cir. 2001); see also Elkimya v. Dep’t of 9 Homeland Sec., 484 F.3d 151, 153 (2d Cir. 2007) (explaining the REAL ID Act of 2005 “did not 10 11 qualify our inherent authority to admit to bail petitioners in immigrations cases”). 12 60. 13 whether ‘the habeas petition raises substantial claims and whether extraordinary circumstances 14 Under Mapp, “a court considering a habeas petitioner’s fitness for bail must inquire into exist that make the grant of bail necessary to make the habeas remedy effective.’” Id. at 230 15 (alterations omitted) (quoting Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir. 1981)). 16 17 61. For the purposes of a Mapp inquiry, “the Court considers three factors: (1) whether 18 substantial claims are set forth in the habeas corpus petition; (2) whether the petitioner has 19 demonstrated a likelihood of success on the merits of his or her petition; and (3) whether there 20 are extraordinary circumstances attending the petitioner’s situation which would require release 21 on bail in order to make the writ of habeas corpus effective.” Boddie v. New York State Div. of 22 23 Parole, No 08 Civ. 9287, 2009 WL 1531595, at *1 (S.D.N.Y. May 28, 2009). 24 62. 25 multitude of constitutional violations caused by Defendants’ extraordinary conscience shocking 26 Plaintiff has demonstrated substantial constitutional claims, a likelihood of success on the conduct – such that Plaintiff should be immediately released, into the custody of (his/her) fit 27 parent pending adjudication of these proceedings. 28 29 Case 3:18-cv-00428-DMS-MDD Document 149-1 Filed 07/24/18 PageID.2505 Page 30 of 37 1 CLAIMS FOR RELIEF 2 FIRST CAUSE OF ACTION 3 (Violation of Substantive Due Process) 4 5 63. 6 herein. 7 64. 8 All of the foregoing allegations are repeated and re-alleged as though fully set forth The Due Process Clause of the Fifth Amendment applies to all “persons” on United States soil and thus applies to PLAINTIFFS. 9 65. PLAINTIFFS have a liberty interest under the Due Process Clause in family unity, and 10 11 remaining united with his fit parent, part of the reciprocal rights to family unity, and 12 PLAINTIFFS’ right to remain free from unjustified deprivation of liberty. 13 66. 14 The separation of PLAINTIFFS from their fit parents violates substantive due process because it furthers no legitimate purpose, much less a compelling governmental interest, and it 15 shocks the judicial conscience. 16 SECOND CAUSE OF ACTION 17 (Violation of Procedural Due Process) 18 19 20 67. All of the foregoing allegations are repeated and re-alleged as though fully set forth herein. 21 68. The Due Process Clause of the Fifth Amendment applies to all “persons” on United 22 23 States soil and thus applies to PLAINTIFFS. 24 69. 25 remaining united with his fit parent, part of the reciprocal rights to family unity, and 26 PLAINTIFFS have a liberty interest under the Due Process Clause in family unity, and PLAINTIFFS’ right to remain free from unjustified deprivation of liberty. 27 28 30 Case 3:18-cv-00428-DMS-MDD Document 149-1 Filed 07/24/18 PageID.2506 Page 31 of 37 1 2 70. The separation of PLAINTIFFS from their parents violates procedural due process because it deprived PLAINTIFFS of their protected liberty interests without notice or any 3 opportunity to be heard – let alone a meaningful opportunity to be heard at a meaningful time. 4 5 71. PLAINTIFFS are being deprived of his rights to seek asylum under the INA, rights 6 under the Flores Settlement, and the TVPRA, and violated PLAINTIFFS’ procedural due 7 process rights. 8 9 THIRD CAUSE OF ACTION 10 (Violation of Section 504 of the Rehabilitation Act) 11 12 72. 13 herein. 14 73. All of the foregoing allegations are repeated and re-alleged as though fully set forth PLAINTIFFS are “otherwise qualified” to participate in any removal proceedings 15 currently pending against him and in affirmative asylum proceedings, as well as in the programs 16 17 and activities of his temporary placement by ORR in a children’s shelter. 18 74. 19 received substantial federal financial assistance. Immigration proceedings, including asylum 20 The children’s shelter at which PLAINTIFFS are currently detained by ORR has adjudications before USCIS and removal proceedings prosecuted by ICE before an Immigration 21 Judge, are federal programs. 22 23 75. The regulations implementing Section 504 prohibit entities receiving federal financial 24 assistance from utilizing “criteria or methods of administration (i) that have the effect of 25 subjecting qualified handicapped persons to discrimination on the basis of handicap, (ii) that 26 have the purpose or effect of defeating or substantially impairing the accomplishment of the 27 28 31 Case 3:18-cv-00428-DMS-MDD Document 149-1 Filed 07/24/18 PageID.2507 Page 32 of 37 1 2 objectives of the recipient’s program or activity with respect to handicapped persons.” 34 C.F.R. § 104.4(b)(4). 3 76. In separating PLAINTIFFS from their parents them a thousand miles apart, the 4 5 Defendants have interfered with their ability to meaningfully participate in immigration 6 proceedings, excluded them from the protections afforded by the asylum statutes, and 7 discriminated against PLAINTIFFS on the basis of a disability created by them. 8 77. Defendants have a legal duty to provide reasonable accommodations to PLAINTIFFS to 9 ensure their meaningful access to the federal program of asylum and removal proceedings. 10 11 78. PLAINTIFFS have provided Defendants with notice of his disabilities and requested 12 reasonable accommodations no later than service of this pleading. Defendants have not granted 13 these requests. 14 79. There are effective reasonable accommodations that Defendants could implement. In 15 particular, Defendants could immediately cease the forced separation of PLAINTIFFS from 16 17 their parents. Defendants have failed to implement any reasonable accommodations. 18 80. 19 burdensome nor would it require a fundamental alteration in the program. The burden of 20 The reasonable accommodation requested by PLAINTIFFS would not be unduly showing that any such relief or accommodation would require a fundamental alteration or pose 21 an undue burden rests with Defendants. 6 C.F.R. § 15.50(a)(2). 22 23 81. By forcibly separating PLAINTIFFS from their parents, Defendants have denied 24 PLAINTIFFS equal and effective access to a federal program. 25 82. 26 As a result of this discrimination and failure to reasonably accommodate PLAINTIFFS’s disabilities, and solely based on his disability, PLAINTIFFS cannot receive the benefits of the 27 asylum process or the placement by Defendants in a children’s shelter in New York. 28 32 Case 3:18-cv-00428-DMS-MDD Document 149-1 Filed 07/24/18 PageID.2508 Page 33 of 37 1 FOURTH CAUSE OF ACTION 2 (Violation of Administrative Procedure Act) 3 4 5 83. All of the foregoing allegations are repeated and re-alleged as though fully set forth herein. 6 84. The Administrative Procedure Act (“APA”) prohibits agency action that is arbitrary and 7 8 9 10 11 capricious. 85. The forcible separation of PLAINTIFFS from their parents and the decision to detain them thousands of miles from one another constitutes final agency action under the APA. 86. Defendants’ separation of PLAINTIFFS from their parents without a legitimate 12 justification is arbitrary and capricious and accordingly violates the APA. 5 U.S.C. § 706. 13 14 15 87. Defendants’ decision to detain PLAINTIFFS at an unlicensed facility is in violation of Flores. 16 FIFTH CAUSE OF ACTION 17 (Violation of Equal Protection Guarantee) 18 88. All of the foregoing allegations are repeated and re-alleged as though fully set forth 19 20 herein. 21 89. 22 any official action that in part reflects a racially discriminatory intent or purpose. Classifications 23 The Fifth Amendment contains an implicit guarantee of equal protection that invalidates based on race or national origin receive exacting scrutiny, and even facially neutral policies and 24 practices will be held unconstitutional when they reflect a pattern unexplainable on grounds 25 26 other than race or national origin. 27 28 33 Case 3:18-cv-00428-DMS-MDD Document 149-1 Filed 07/24/18 PageID.2509 Page 34 of 37 1 2 90. Defendants’ decisions to separate families from Central and South America arriving at the southern border seeking asylum, and to isolate children in detention facilities separate from 3 their parents, are unconstitutional because they were motivated, at least in part, by intentional 4 5 discrimination based on race, ethnicity, and/or national origin. This intentional discrimination 6 includes bias against immigrants perceived to come from Central or South American countries. 7 91. 8 As a result of these decisions, including the decisions that have caused the separation of PLAINTIFFS from their parents, PLAINTIFFS have been and are being denied equal 9 protection. 10 SIXTH CAUSE OF ACTION 11 (Declaratory Judgment Act) 12 13 14 92. All of the foregoing allegations are repeated and re-alleged as though fully set forth herein. 15 93. The Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, provides that “[i]n a case of 16 17 actual controversy within its jurisdiction . . . any court of the United States . . . may declare the 18 rights and other legal relations of any interested party seeking such declaration, whether or not 19 further relief is or could be sought.” 28 U.S.C. § 2201(a). 20 94. There is an actual controversy between the parties because Defendants have refused to 21 immediately release PLAINTIFFS The Court should exercise its authority under the Declaratory 22 23 Judgment Act to declare that Defendants have no basis to refuse to release PLAINTIFFS and to 24 order Defendants to immediately release PLAINTIFFS, into the custody of their parents or 25 another suitable relative as directed by J.S.G. 26 27 28 34 Case 3:18-cv-00428-DMS-MDD Document 149-1 Filed 07/24/18 PageID.2510 Page 35 of 37 1 2 PRAYER FOR RELIEF WHEEFORE, Plaintiffs respectfully requests that the Court enter a judgment against 3 Defendants and award the following relief: 4 5 6 7 8 1. Assume jurisdiction over this matter; 2. Enjoin Respondents from moving the Petitioners from the New York City area while habeas proceedings are pending; 3. Declare that Defendants’ failure to reasonably accommodate Plaintiffs’ disabilities, or their 9 failure to provide Plaintiffs equal and effective access to a federal program, violates Section 10 11 12 13 14 504 of the Rehabilitation Act of 1973; 4. Declare that Defendants must immediately release PLAINTIFFS into the custody of their parents or to such other suitable adult as their parents may direct; 5. Order PLAINTIFFS’ immediate release into the custody of their parents pursuant to Mapp v. 15 Reno pending resolution of these proceedings; 16 17 6. Order Defendants to produce PLAINTIFFS’ parents in the Southern District of New York, 18 on a writ of habeas corpus ad testificandum or otherwise, so that they may visit in person 19 with PLAINTIFFS so as to advise this Court whether the parents request their immediate 20 release to another suitable relative or continued detention, together, for as long as Defendants 21 detain them both; 22 23 7. Preliminarily and permanently enjoin Defendants from continuing to separate PLAINTIFFS 24 from their parents and from refusing to release PLAINTIFFS into the custody of their 25 parents, or to such other suitable adult as their parents may direct; 26 8. Grant a writ of Habeas Corpus requiring Defendants to release PLAINTIFFS immediately to 27 the custody of their parents or such other suitable relative as their parents may direct, or issue 28 35 Case 3:18-cv-00428-DMS-MDD Document 149-1 Filed 07/24/18 PageID.2511 Page 36 of 37 1 2 an order directing the Defendants to show cause within three days why the writ should not be granted, pursuant to 28 U.S.C. § 2243; 3 9. Require Defendants to pay Plaintiffs’ reasonable attorneys’ fees and costs; and 4 5 6 10. Grant all other relief that is just and proper. Dated this 23rd of July, 2018. 7 8 9 10 11 12 13 14 15 16 17 Respectfully submitted, /s/ Gregory P. Copeland (GC 1931) Scott Rosenberg, General Counsel Adriene Holder, Attorney-in-Charge, Civil Practice Judith Goldiner, Attorney-in-Charge, Law Reform Unit Hasan Shafiqullah, Attorney-in-Charge, Immigration Law Unit (“ILU”) Jennifer Williams, Deputy Attorney-in-Charge, ILU Gregory Copeland, Supervising Attorney, ILU Sarah Gillman, Supervising Attorney, ILU Beth Krause, Supervising Attorney, ILU Jennifer Levy, Supervising Attorney, Law Reform Unit Elizabeth Rieser-Murphy, Of Counsel, ILU THE LEGAL AID SOCIETY 199 Water Street – 3rd Floor New York, NY 10038 Tel: 212-577- 3968 Fax: 646-365-9369 gcopeland@legal-aid.org 18 19 20 21 22 23 24 25 26 27 28 36 Case 3:18-cv-00428-DMS-MDD Document 149-1 Filed 07/24/18 PageID.2512 Page 37 of 37 1 VERIFICATION PURSUANT TO 28 U.S.C. § 2242 2 3 I am submitting this verification on behalf of the Petitioner because I am one of the 4 Petitioner’s attorneys. I have discussed with the Petitioner’s legal team the events described 5 in this Petition. On the basis of those discussions, on information and belief, I hereby verify 6 that the factual statements made in the attached Verified Complaint for Declaratory and 7 Injunctive Relief & Petition for Writ of Habeas Corpus are true and correct to the best of my 8 9 10 knowledge. Dated July 23, 2018 11 12 13 /s/ Gregory P. Copeland (GC 1931) Gregory P. Copeland Counsel for Plaintiff-Petitioner 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 37 CaseCase 3:18-cv-00428-DMS-MDD 3:18-cv-01626-DMS-JLBDocument Document 149-2 9 Filed Filed07/17/18 07/24/18 PageID.66 PageID.2513 Page Page 1 of 12 of 2 ·-LSDC -·--====:::;:::=-=====~ SONY . • i, joocUMENT UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK : -------------------------------------------------------x N.T.C. 1 I ELECTRONICALLY FILED . . DOC#: 1 et~ • :r· 1·:: ED: --~-1-.~11---1013 Plaintiffs, -v- US Immigration and Customs Enforcement et al., Defendants. -------------------------------------------------------x ORDER This case, in which the Complaint was filed in Chambers of the undersigned this evening, came before the Court on Plaintiffs' application for an order to show cause as to why injunctive relief ought not to be entered, with an application for a temporary restraining order. The Court reviewed the complaint, Plaintiffs' memorandum of law, declarations and exhibits and proposed order to show cause, and heard representations and arguments from counsel for Plaintiffs and counsel for the government Defendants. The Court having determined that limited injunctive relief is warranted based on Plaintiffs' representations that minor children who have been forcibly separated from their parents, are in New York in the custody of the federal Office of Refugee Resettlement ("ORR") and have been referred for representation by the Legal Aid Society have been, and are expected to be, removed from New York without notice to their counsel and thereby deprived of the ability to receive legal advice and consult with counsel regarding their rights to make applications for asylum and enforce other substantive rights, and prosecute such claims and applications on their own behalf, and that parents are being solicited to consent on behalf of such children to removal without due process, and in order to afford the parties time to make further factual and legal investigations and to afford the judge to whom this case will be assigned tomorrow time to hold necessary proceedings, it is hereby ORDERED, that Defendants ARE HEREBY RESTRAINED from taking any action to remove minor children clients of the Legal Aid Society from New York State who are in ORR custody without providing forty-eight (48) hours' advance notice of such forthcoming action to children and their counsel (including, without limitation, the location to which the minor child client will be moved, the location where the child's parent or parents currently reside, and whether the movement is for the purpose of release, detention, and/or repatriation), in order to permit consultation among the child, the child's parent or other close family member(s), and counsel to protect the child's ability to make informed decisions about his or her legal rights and potential claims. It is further NTC v ICETRO JULY 16, 2018 CaseCase 3:18-cv-00428-DMS-MDD 3:18-cv-01626-DMS-JLBDocument Document 149-2 9 Filed Filed07/17/18 07/24/18 PageID.67 PageID.2514 Page Page 2 of 22 of 2 ORDERED, that the injunction set forth in the foregoing paragraph is in effect from the time of issuance of this order until 10:00 a.m. on Thursday, July 19, 2018, subject to extension, other modification or vacatur by further order of the assigned judge. It is further ORDERED, that Plaintiffs' counsel shall deliver to Defendants' counsel a list of the names of the client children by 9:00 a.m. on Tuesday, July 17, 2018, and that, pending such delivery, Defendants shall assume that all minor children in New York in ORR custody who have been forcibly separated from their parents are clients of the Legal Aid Society. It is further ORDERED, that no bond is required. It is further ORDERED, that Plaintiffs shall file their Complaint in the office of the Clerk of Court by 9:30 a.m. on Tuesday July 17, 2018, and promptly inform Defendants' counsel of the name of the assigned judge. SO ORDERED. Dated: New York, New York July 16, 2018 Issued: 9: 15 p.m. L~ United States District Judge Part I 2 NTCv ICETRO JULY 16.2018 Case Case 3:18-cv-00428-DMS-MDD 3:18-cv-01626-DMS-JLB Document Document149-3 20 Filed Filed07/19/18 07/24/18 PageID.502 PageID.2515Page Page 1 of1 5of 5 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ---------------------------------------------------------------------- X : N.T.C. et al., : : Plaintiffs, : : -v: : U.S. IMMIGRATION AND CUSTOMS : ENFORCEMENT et al., : : Defendants. : : ---------------------------------------------------------------------- X 07/19/2018 18-CV-6428 (JMF) MEMORANDUM OPINION AND ORDER JESSE M. FURMAN, United States District Judge: This case, which was filed on the evening of July 16, 2018, arises out of the Government’s much-criticized decision earlier this year to separate immigrant parents who enter the United States from their children. The policy has been the subject of intense political debate and litigation, most prominently in a class action brought on behalf of immigrant parents in the Southern District of California captioned Ms. L. v. U.S. Immigration and Customs Enforcement, No. 18-CV-0428 (S.D. Cal.). On June 6, 2018, the Honorable Dana M. Sabraw, who is ably presiding over that litigation, concluded that the plaintiffs stated a legally cognizable claim for violation of their substantive due process rights to family integrity, and on June 26, 2018, he granted a class-wide preliminary injunction requiring the Government to reunite parents with their minor children by July 26, 2018. Since that time, Judge Sabraw has closely supervised the reunification process and related matters. Most relevant for present purposes, on July 16, 2018, he temporarily imposed a seven-day waiting period before members of reunified families could be removed from the country, relief that had been sought by the plaintiffs to ensure that parents Case Case 3:18-cv-00428-DMS-MDD 3:18-cv-01626-DMS-JLB Document Document149-3 20 Filed Filed07/19/18 07/24/18 PageID.503 PageID.2516Page Page 2 of2 5of 5 could consult with their children and counsel about legal options prior to removal. This case differs from Ms. L. in at least one significant respect: It is brought on behalf of children who were separated from their parents and are now being held in New York State. Plaintiffs in this case argue that the Government plans to detain them in facilities that do not meet applicable legal standards or to repatriate them as a family unit with their parents, “thereby depriving each child of his or her ability to pursue [his or her own] individual asylum and other child immigrant claims.” (Docket No. 1 (“Compl.”), ¶ 3). Plaintiffs further claim that the Government has taken to moving children across state lines without warning to counsel and coercing parents into signing insufficiently informative waivers of their children’s due process, asylum, and child immigrant rights. (Id.). Plaintiffs ultimately seek to ensure that each class member has a meaningful opportunity to pursue asylum or other claims or, in the alternative, that each class member has the opportunity to voluntarily, intelligently, and knowingly waive those claims; they also seek to preserve class members’ ability to consult with their parents, close family, and counsel about these decisions. More immediately, they seek injunctive relief barring Defendants from removing any Plaintiff from New York State without providing (1) forty-eight hours’ notice of the pending transfer and certain related information to the Plaintiff and his or her counsel; and (2) an opportunity for the Plaintiff class member to consult with a parent or close family member and counsel in order to protect the child’s ability to make informed decisions about his or her legal rights and potential claims.1 1 On the evening of July 16, 2018, Judge Laura Taylor Swain, sitting in Part I, held a hearing on Plaintiffs’ application for emergency relief and granted the application in part, prohibiting the Government from removing putative class members represented by Legal Aid from New York State without providing forty-eight hours’ notice of the forthcoming removal to Plaintiffs and their counsel. The temporary restraining order expires today at 10 a.m. absent 2 Case Case 3:18-cv-00428-DMS-MDD 3:18-cv-01626-DMS-JLB Document Document149-3 20 Filed Filed07/19/18 07/24/18 PageID.504 PageID.2517Page Page 3 of3 5of 5 These are substantial claims, but the question right now is not whether they have merit. Instead, the question is whether they should considered in this forum or by Judge Sabraw in the Southern District of California. Having considered the parties’ arguments — made during a hearing held on the record on July 17, 2018, and in letters submitted the next day, (Docket Nos. 14-16; see also Docket No. 11) — and (with the parties’ consent) having consulted with Judge Sabraw, the Court concludes for several reasons that Plaintiffs’ claims should be transferred to the Southern District of California to be considered in conjunction with the claims in Ms. L. First, the classes in the two cases concern the same families: Plaintiffs in this case seek relief on behalf of children whose parents are class members in Ms. L. (Compare Order, Ms. L., ECF No. 82, at 17, with Compl., ¶ 66). Second, the relief Plaintiffs seek in this case is, at bottom, directly related to the reunification process being supervised by Judge Sabraw. In essence, Plaintiffs here contend that they have rights and interests distinct from the rights and interests of their parents and that the reunification process, and Judge Sabraw’s own orders, do not adequately take their distinct rights and interests into account.2 That may or may not be the case, but Judge Sabraw is in a better position than this Court to decide those questions and to modify his own orders if appropriate. And third, in the absence of a single judge presiding over both cases, there is a real extension, modification, or vacatur by the undersigned. 2 For example, Plaintiffs claim that the mere act of reunification mandated by Judge Sabraw’s orders may deprive them of access to protections set forth in the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 110-457, 122 Stat. 5044, as those protections apply only to unaccompanied minors (which they are now) and not to accompanied minors (which they would become upon reunification). (See Docket No. 14 (“Pls.’ Letter”), at 3-4). Further, Plaintiffs contend that they “have independent rights . . . that are being extinguished, through apparent waivers” being signed by their parents — waivers that may have been approved by the Ms. L. Court. (Id. at 7-8). 3 Case Case 3:18-cv-00428-DMS-MDD 3:18-cv-01626-DMS-JLB Document Document149-3 20 Filed Filed07/19/18 07/24/18 PageID.505 PageID.2518Page Page 4 of4 5of 5 risk of inconsistent decisions and conflicting orders — a particularly intolerable risk given the gravity and urgency of the issues in these cases (and the prospect of similar litigation being filed in other states where children separated from their parents are being held). The Court is, of course, mindful of the deference that is owed to a plaintiff’s choice of forum. See, e.g., D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 106-07 (2d Cir. 2006). The Court is also aware that transferring this case will cause some inconvenience to Plaintiffs and Plaintiffs’ counsel, who are located in New York. (See Pls.’ Letter 9). Nevertheless, the Court is confident that Judge Sabraw can and will take steps to mitigate that inconvenience. And in any event, the inconvenience to Plaintiffs and Plaintiffs’ counsel is vastly outweighed by the interests of justice, fairness, efficiency, and avoidance of conflict advanced by having a single judge presiding over both cases. Accordingly, pursuant to Title 28, United States Code, Section 1404(a), the Court transfers this case to the Southern District of California. See, e.g., Cont’l Grain Co. v. The Barge FBL-585, 364 U.S. 19, 26 (1960) (“To permit a situation in which two cases involving precisely the same issues are simultaneously pending in different District Courts leads to the wastefulness of time, energy and money that § 1404(a) was designed to prevent.”); Wyndham Assocs. v. Bintliff, 398 F.2d 614, 619 (2d Cir. 1968) (recognizing a “strong policy favoring the litigation of related claims in the same tribunal”); Stroud Prods. & Enters. v. Castle Rock Entm’t, No. 07-CV-8638 (HB), 2009 WL 2391676, at *3 (S.D.N.Y. Aug. 4, 2009) (“[T]rial efficiency and the interests of justice weigh heavily in favor of litigating all related causes of action . . . in a single forum.” (citation omitted)). Further, to preserve the status quo, the temporary relief granted by this Court on July 17, 2018, (Docket No. 9), is extended to give Judge Sabraw an opportunity to consider Plaintiffs’ request for broader emergency relief. The 4 Case Case 3:18-cv-00428-DMS-MDD 3:18-cv-01626-DMS-JLB Document Document149-3 20 Filed Filed07/19/18 07/24/18 PageID.506 PageID.2519Page Page 5 of5 5of 5 parties should promptly present those issues to Judge Sabraw so that he can decide whether to maintain, modify, or vacate the order granting temporary relief. The Clerk of Court is directed to transfer this action forthwith to the United States District Court for the Southern District of California, to be assigned to Judge Sabraw. The Clerk of Court is directed to effectuate the transfer immediately, notwithstanding Local Rule 83.1, and then to close the case in this Court. SO ORDERED. Dated: July 19, 2018 New York, New York __________________________________ JESSE M. FURMAN United States District Judge 5