Case 2:18-cv-00632-WJ-KRS Document 11 Filed 07/27/18 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

SOUTHWEST ENVIRONMENTAL
CENTER and BORDER NETWORK FOR
HUMAN RIGHTS
Plaintiffs,
v.
JEFFERSON BEAUREGARD SESSIONS
III, in his official capacity as Attorney
General of the United States; KIRSTJEN
NIELSEN, in her official capacity as
Secretary of the U.S. Department of
Homeland Security; JAMES N. MATTIS, in
his official capacity as Secretary of the U.S.
Department of Defense; and ALEX M.
AZAR II, in his official capacity as Secretary
of the U.S. Department of Health and Human
Services.
Defendants.

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

AMENDED MOTION FOR
PRELIMINARY INJUNCTION

2:18-cv-00632-WJ-KRS

Oral Argument Requested

 Case 2:18-cv-00632-WJ-KRS Document 11 Filed 07/27/18 Page 2 of 15

TABLE OF CONTENTS
INTRODUCTION ......................................................................................................................................... 1
BACKGROUND ............................................................................................................................................ 2
STANDARD OF REVIEW ........................................................................................................................... 5
ARGUMENT.................................................................................................................................................. 5
A.

PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS ...................................................................... 5

B.

PLAINTIFFS’ MEMBERS WILL BE IRREPARABLY HARMED ABSENT AN INJUNCTION ......................... 8

C.

THE PUBLIC INTEREST AND BALANCE OF EQUITIES OVERWHELMINGLY FAVOR AN INJUNCTION ... 10

D.

THE INJUNCTION SHOULD APPLY N ATIONWIDE .............................................................................. 12

CONCLUSION ............................................................................................................................................ 13
CERTIFICATE OF SERVICE .................................................................................................................. 13

 Case 2:18-cv-00632-WJ-KRS Document 11 Filed 07/27/18 Page 3 of 15

INTRODUCTION
Defendants recently adopted a policy of initiating misdemeanor criminal proceedings
against any migrant detained along the U.S.-Mexico border, including many who have valid claims
for asylum. Around the same time, Defendants adopted a policy or practice of indefinitely
detaining any migrant charged with a misdemeanor immigration offense until resolution of that
charge. These policies (collectively, the “Family Detention Policy”) have resulted in a dramatic
increase in the number of individuals detained in facilities across the southwestern United States.
The Family Detention Policy is causing grave and irreparable humanitarian harm—
particularly, to families and children who are being detained for extended periods in prison-type
environments. In addition, the Policy is causing, or will imminently cause, irreparable harm to the
communities and environment of the Southwest, insofar as it will require Defendants to construct
and operate dozens of new detention facilities in this region.
The Family Detention Policy is illegal. Although the Policy constitutes a radical departure
from past practice and is being treated as binding authority, Defendants have not offered the public
notice or the opportunity to comment on it. Accordingly, Defendants stand in violation of their
obligations under the Administrative Procedure Act (“APA”). See Jean v. Nelson, 711 F.2d 1455,
1475 (11th Cir. 1983) (government violated APA by instituting “universal[] . . . detention policy”
for Haitian migrants without undertaking notice-and-comment rulemaking).
Plaintiffs—community organization whose members are being directly and irreparably
harmed by the Family Detention Policy—move to enjoin the Family Detention Policy until such
time as Defendants comply with bedrock requirements of administrative law.
…
…
1

 Case 2:18-cv-00632-WJ-KRS Document 11 Filed 07/27/18 Page 4 of 15

BACKGROUND
On April 6, 2018, Attorney General Jeff Sessions issued a memorandum entitled “ZeroTolerance for Offenses under 8 U.S.C. § 1325(a).”

The memorandum directed each U.S.

Attorney’s Office along the U.S.-Mexico border “to adopt immediately a zero-tolerance policy for
all offenses referred for prosecution under section 1325(a).” 1 In public statements, the Attorney
General explained that this policy was designed to ensure that “100 percent of illegal Southwest
Border crossings” would be criminally prosecuted.2
Following issuance of this memorandum, Defendants began referring every migrant
detained along the U.S.-Mexico border—including many who were lawfully seeking asylum—for
prosecution.

Defendants also adopted a policy or practice of detaining these individuals

indefinitely until resolution of these charges. Defendants’ actions resulted in an unprecedented
number of children being forcibly separated from their parents. In the first two months of this
policy, nearly 2,000 children were separated from their parents.3
The staggering increase in the number of children being held by U.S. immigration
authorities soon overwhelmed the capacity of existing detention facilities. On June 14, 2018, a
spokesperson for the U.S. Department of Health and Human Services confirmed that an
encampment for children separated from their parents pursuant to the Family Detention Policy

1

Memorandum from Jeff Sessions to Federal Prosecutors along the Southwest Border,
Zero-Tolerance for Offenses under 8 U.S.C. § 1325(a) (Apr. 6, 2018).
U.S. Dep’t of Justice, Attorney General Sessions Delivers Remarks Discussing the
Immigration Enforcement Actions of the Trump Administration (May 7, 2018).
2

3

PBS, How Trump Family Separation Policy Became What it is Today (Jun. 14, 2018).
2

 Case 2:18-cv-00632-WJ-KRS Document 11 Filed 07/27/18 Page 5 of 15

would be constructed at the Tornillo Land Port of Entry, near El Paso, Texas. 4 The spokesperson
stated that the facility would “take in 360 children in the coming days and expand from there.” 5
As of July 9, 2018, hundreds of children were still being held at the tent city in Tornillo. 6
On June 20, 2018, President Trump signed an Executive Order entitled “Affording
Congress an Opportunity to Address Family Separation.”7 The Family Separation Order codifies
Defendants’ policy of detaining migrants indefinitely pending the resolution of misdemeanor
charges, with the modification that, “to the extent permitted by law and subject to the availability
of appropriations,” families will now be detained together. Order § 3(a). The Order also requires
the Secretary of Defense to “to provide to the Secretary [of DHS], upon request, any existing
facilities available for the housing and care of alien families,” and to “construct such facilities if
necessary and consistent with law.” Id., § 3(c) (emphasis added).
Although the Order states that it is “the policy of this Administration to maintain family
unity,” (id., § 1), it does not actually end the practice of family separation. As a coalition of State
Attorneys General recently explained, the relief offered by the Order is “illusory” because “almost
every provision of the Order is subject to the availability of non-existent resources and legal
authority for indefinite detention [of children] that is contrary to settled law.” Washington v.
United States, 2:18-cv-00939 (W.D. Wash., Jun. 26, 2018) (Doc. 1, ¶ 77). The order is silent on

4

Claire Parker, Trump Administration Makes Site Selection for Tent City Near El Paso To
House Immigrant Children Separated from Parents, TEX. TRIBUNE (Jun. 14, 2018).
5

Id.

6

Jessica Gonzales, Tornillo Shelter to be Opened for Another 30 Days, KFOX 14 (July 9,

7

White House, Affording Congress an Opportunity to Address Family Separation (Jun. 20,

2018).
2018).
3

 Case 2:18-cv-00632-WJ-KRS Document 11 Filed 07/27/18 Page 6 of 15

how DHS should proceed if it is unable to incarcerate families together, either because of resource
constraints or because the government is unable to obtain modification of the Flores settlement,
which prohibits DHS from detaining children for more than 20 days. Moreover, nothing in the
Order required the government to reunite families it has already broken apart.
On June 26, 2018, Judge Dana M. Sabraw issued a preliminary injunction preventing the
government from separating children from their parents, and requiring the government to begin
reuniting families it had previously broken apart. See Ms. L. v. U.S. Immigration & Customs Enf’t,
No. 18-CV-0428-DMS (MDD), 2018 WL 3129486 (S.D. Cal. June 26, 2018).

The court

determined that plaintiffs were likely to prevail on their claim that the Family Detention Policy
was “so egregious, so outrageous, that may fairly be said to shock the contemporary conscience.”
Id. at *8 (citation and quotation marks omitted). The government missed the most recent deadline
for reuniting families it had separated, and has acknowledged deporting hundreds of parents
without their children.8
Although Judge Sabraw’s order prevents the government from separating families going
forward, it does not prevent the government from continuing to enforce its zero-tolerance policy,
from detaining families together, or from constructing new detention facilities. The government
continues to move forward with plans to construct a massive network of new detention facilities
for the purpose of continuing to implement its Family Detention Policy. On June 21, 2018, the
Associated Press obtained a memorandum indicating that the U.S. Department of Defense
(“DOD”) was preparing to construct facilities to house up to 20,000 migrant children on four

8

Elliot Spagat & Colleen Long, 700 Kids Still Separated from their Families After
Government Misses Reunification Deadline, TIME (July 26, 2018).
4

 Case 2:18-cv-00632-WJ-KRS Document 11 Filed 07/27/18 Page 7 of 15

military bases, including Fort Bliss, an army base located in El Paso County, Texas and Doña Ana
County, New Mexico.9 On June 25, 2018, the El Paso Times reported that Fort Bliss had been
selected as one of two sites to house these children. 10 On June 27, 2018, it was reported that DOD
was prepared to house up to 12,000 individuals at Fort Bliss. 11 Plaintiffs bring this motion to
address the significant, irreparable harm Defendants’ policies continue to cause.
STANDARD OF REVIEW
“To obtain a preliminary injunction, a plaintiff must show (1) that he is likely to succeed
on the merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief,
(3) that the balance of equities tips in his favor, and (4) that an injunction is in the public interest.”
Planned Parenthood of Kansas v. Andersen, 882 F.3d 1205, 1223 (10th Cir. 2018) (quoting Winter
v. Natural Resources Defense Council, 555 U.S. 7, 20 (2008)).
ARGUMENT
A. Plaintiffs are Likely to Succeed on the Merits
The APA establishes certain procedures that federal agencies must comply with before
undertaking rulemaking—i.e., before adopting a “statement of general or particular applicability
and future effect designed to implement, interpret, or prescribe law or policy.” 5 U.S.C. §§ 551

9

Robert Burns, Pentagon Agrees to Provide Space For 20,000 Migrant Children, AP
NEWS (Jun. 21, 2018). More recent reports indicate that DOD is preparing to detain up to 32,000
migrants across the Southwest. W.J. Hennigan & Philip Elliott, The U.S. Military Is Preparing to
Hold 32,000 Immigrants in Detention Centers, TIME (Jun. 28, 2018).
10

Kyle Jones & Michelle Gaitan, Fort Bliss, Goodfellow Military Bases In Texas Will
House Immigrants, Pentagon Confirms, EL PASO TIMES (Jun. 25, 2018).
11

Tom Vanden Brook, Fort Bliss In Texas May House 12,000 Migrants Detained At The
Border, USA TODAY (Jun. 27, 2018).
5

 Case 2:18-cv-00632-WJ-KRS Document 11 Filed 07/27/18 Page 8 of 15

(4), (5). In general, federal agencies must provide members of the public with “[g]eneral notice”
of proposed rulemaking. Id., § 553(b). After notice is given, the agency must “give interested
persons an opportunity to participate in the rule making through submission of written data, views,
or arguments . . . .” Id., § 553(c). An agency must respond to any significant comments it receives
before finalizing the rule. See Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1203 (2015).
In deciding whether a policy must undergo notice and comment, the critical question is
whether the policy “‘genuinely leaves the agency and its decisionmakers free to exercise
discretion.’” Texas v. United States, 809 F.3d 134, 171 (2015) (quoting Gen. Elec. Co. v. EPA,
290 F.3d 377, 382 (D.C. Cir. 2002)). “‘An agency pronouncement will be considered binding as
a practical matter if it either appears on its face to be binding, or is applied by the agency in a way
that indicates it is binding.’” Id. (quoting Gen. Elec., 290 F.3d at 383).
Courts have repeatedly applied these principles to invalidate immigration policies adopted
without notice and comment. The most relevant precedent is Jean v. Nelson, 711 F.2d 1455 (11th
Cir. 1983). In May 1981, the Immigration and Naturalization Service (“INS”) adopted a new
policy of indefinitely detaining Haitian migrants arriving in Florida until it could determine
whether they were eligible for admission. The district court held that this policy was invalid
because it had been adopted without notice and comment, in violation of the APA. The Eleventh
Circuit affirmed. The court explained that “an announcement that INS will universally enforce a
detention policy while limiting parole is ‘an agency statement of general applicability and future
effect designed to implement, interpret, or prescribe law or policy,’ in other words, a rule.” Id. at
1475 (citing 5 U.S.C. § 551(4); ellipses omitted). Moreover, because the detention policy

6

 Case 2:18-cv-00632-WJ-KRS Document 11 Filed 07/27/18 Page 9 of 15

established a “binding norm” that was being rigidly enforced, it was a legislative rule that could
not be adopted without notice and comment. Id. at 1482–83.12
Other courts have invalidated immigration policies for failure to comply with the APA’s
notice-and-comment requirement. In Texas v. United States, the Fifth Circuit upheld a preliminary
injunction against the Deferred Action for Parents of Americans program based on its finding that
the policy did not “genuinely leave the [DHS] and its employees free to exercise discretion” in
deciding whether to grant deferred action to certain undocumented immigrants. 809 F.3d at 170–
176. And in U.S. ex rel. Parco v. Morris, the court held that INS’s “precipitous rescission” of a
policy allowing deportable aliens to obtain voluntary extended departure was void for lack of
notice and comment, where the policy left agency decisionmakers with “no discretion” in
responding to these applications. 426 F. Supp. 976, 984 (E.D. Pa. 1977).
Plaintiffs are likely to prevail on its claim that Defendants violated the APA by adopting
the Family Detention Policy without first offering the public notice and the opportunity to
comment on these policies. As in Jean, the government has committed to “universally enforce a
detention policy.” 711 F.2d at 1475. Defendants’ Policy involves “referring 100 percent of illegal
Southwest Border crossings” for prosecution, and detaining every migrant so referred. The stated
purpose of this Policy is to eliminate the discretion of agency decisionmakers. It unquestionably
creates a binding norm. Plaintiffs are likely to prevail on their APA claim.

12

There were subsequent proceedings in Jean, including rehearing en banc and review by
the Supreme Court. Because the government responded to the panel decision by undertaking
notice-and-comment rulemaking, however, this issue was mooted and the panel’s decision was left
undisturbed. See Jean v. Nelson, 727 F.2d 957, 984 (11th Cir. 1984) (en banc) (“the government’s
promulgation of regulations under the notice and comment provisions of 5 U.S.C. § 553 to govern
the new detention policy has mooted the issue of agency compliance with the APA”).
7

 Case 2:18-cv-00632-WJ-KRS Document 11 Filed 07/27/18 Page 10 of 15

B. Plaintiffs’ Members Will Be Irreparably Harmed Absent an Injunction
It is well established that the denial of a plaintiff’s procedural rights constitutes irreparable
harm if the denial deprives the plaintiff of the opportunity to defend its concrete interests. See
California v. Health & Human Servs., 281 F. Supp. 3d 806, 829–30 (N.D. Cal. 2017) (“A
procedural injury may serve as a basis for a finding of irreparable harm when a preliminary
injunction is sought.”); N. Mariana Islands v. United States, 686 F. Supp. 2d 7, 17 (D.D.C. 2009)
(finding irreparable harm because “DHS should have complied with the APA’s notice-andcomment provisions before promulgating the Rule, and its failure to do so impaired the
[plaintiff’s] ability to protect its interests”); cf. Sierra Club v. Marsh, 872 F.2d 497, 504 (1st Cir.
1989) (given “[t]he difficulty of stopping a bureaucratic steam roller, once started,” the agency’s
failure to comply with procedures required under the National Environmental Policy Act at the
appropriate stage in decisionmaking process was irreparable harm).
Each Plaintiff in this action has concrete interests that are adversely affected by the Family
Detention Policy, which they have been unable to defend as a result of Defendants’ refusal to
comply with the APA. Plaintiff Southwest Environmental Center (“SWEC”)’s members live,
work, and recreate near Tornillo, Texas and Fort Bliss, where new detention facilities have been
constructed, or will imminently be constructed, to house children and families detained under the
Family Detention Policy. See Bixby Decl. at ¶¶ 6–9. SWEC’s members have concrete health,
aesthetic, and recreational interests that will be adversely affected by the construction and
operation of these facilities. For example, many of SWEC’s members hike, hunt, and work on or
immediately adjacent to Fort Bliss. See Ferrary Decl. at ¶ 3; Guerrero Decl. at ¶ 3; Peña Decl. at
¶¶ 8–9; Scotten Decl. at ¶ 3; Vasquez Decl. at ¶ 3. Others enjoy recreating near the Tornillo Camp.
See Bixby Decl. at ¶ 8. Still others live in the immediate vicinity of Fort Bliss. See Parra Decl. at

8

 Case 2:18-cv-00632-WJ-KRS Document 11 Filed 07/27/18 Page 11 of 15

¶ 3. As these declarations show, SWEC’s members are being harmed by the operation of the
Tornillo Camp, and will be further harmed if new tent cities or permanent detention facilities are
constructed at Fort Bliss. Among other things, their health, aesthetic, recreational, and economic
interests will be harmed by the air pollution, noise pollution, traffic, garbage, land disturbance, and
conversion of wildlife habitat that will result from the construction and operation of these facilities.
See Bixby Decl. at ¶ 7; Guerrero Decl. at ¶ 4; Parra Decl. at ¶¶ 3–4; Scotten Decl. at ¶ 4; Peña
Decl. at ¶ 10; Vasquez Decl. at ¶¶ 3–6.
Plaintiffs’ members also have personal and dignitary interests that are being harmed by the
Family Detention Policy. One SWEC member is a U.S. Army veteran who benefits from the
“current congenial relationship between Fort Bliss” and the surrounding community. Ackerman
Decl. at ¶ 3. If Fort Bliss were to house new detention facilities, it would “create distrust” in the
community, harming veterans who would be stigmatized by the Army’s association with
Defendants’ policy. Id. Many members of SWEC and Border Network for Human Rights
(“BNHR”) are immigrants or the children and grandchildren of immigrants. See Garcia Decl. at
¶ 5; Guida Decl. at ¶ 4; Peña Decl. at ¶ 12; Scotten Decl. at ¶ 6. Seeing migrant families and
children detained in their own backyard causes these individuals to feel as though they have been
stamped with a badge of inferiority by their own government, causing them to experience severe
emotional distress. See Garcia Decl. at ¶ 5; Scotten Decl. at ¶ 6; Peña Decl. at ¶ 13.13

13

Recent medical research lends credibility to this testimony. See Kathleen M. Roche, et
al., Impacts of Immigration Actions and News and the Psychological Distress of U.S. Latino
Parents Raising Adolescents, 62 J. ADOLESCENT HEALTH 525 (May 2018) (finding that antiimmigrant policies caused certain lawful permanent residents to experience statistically significant
increases in depression, anxiety, and other types of psychological distress).
9

 Case 2:18-cv-00632-WJ-KRS Document 11 Filed 07/27/18 Page 12 of 15

Plaintiffs’ members have concrete health, aesthetic, recreational, personal, and dignitary
interests that are, or will be, adversely affected by the construction of new detention facilities in
the Las Cruces-El Paso region. If given the opportunity to do so, these individuals would share
comments, views, and arguments related to the Family Detention Policy and the construction of
these detention facilities. See Ackerman Decl. at ¶ 3; Bixby Decl. at ¶ 11; Ferrary Decl. at ¶ 5;
Garcia Decl. at ¶ 8; Guerrero Decl. at ¶ 5; Guida Decl. at ¶ 4; Parra Decl. at ¶ 5; Scotten Decl. at
¶ 5; Vasquez Decl. at ¶ 6. But Defendants have deprived these individuals and other members of
the public of the right to weigh in on Defendants’ radical overhaul of national immigration policy
and the massive construction program it will necessitate. These facts easily support a finding of
irreparable harm.
C. The Public Interest and Balance of Equities Overwhelmingly Favor an Injunction
Defendants will suffer no harm if an injunction is granted. An injunction would return
national immigration policy to where it was mere months ago, and where it had been for decades
before that. The United States was not experiencing irreparable harm in March of this year, or at
any other time during the preceding decades when it allowed immigration authorities to exercise
discretion in deciding whether to charge individuals detained at the border with immigration
offenses and whether to detain individuals once charged. The fact that Defendants waited more
than a year after taking office to enact the Family Detention Policy undermines any argument that
they would be significantly harmed if the Policy were to be put on hold. Cf. Fish v. Kobach, 840
F.3d 710, 753 (10th Cir. 2016) (“delay in seeking . . . relief cuts against finding irreparable injury”)
(citation omitted).

10

 Case 2:18-cv-00632-WJ-KRS Document 11 Filed 07/27/18 Page 13 of 15

As to the public interest, it militates overwhelmingly in favor of an injunction. The public
has a strong interest in making sure the government complies with notice-and-comment procedures
before enacting major policy changes. As the court explained in Jean:
This public participation assures that the agency will have before it the facts and
information relevant to a particular administrative problem, as well as suggestions
for alternative solutions. Public rulemaking procedures increase the likelihood of
administrative responsiveness to the needs and concerns of those affected. And the
procedure for public participation tends to promote acquiescence in the result even
when objections remain as to substance.
711 at 1480–81 (citation and quotation marks omitted).
Defendants’ departure from regular procedure has deprived Americans of the benefits these
procedures were designed to confer. As Judge Sabraw recently lamented, the Family Detention
Policy has not been an exercise in “measured and ordered governance,” but has instead represented
“reactive governance.” Ms. L., 2018 WL 3129486, at *11. Defendants were not prepared to deal
with the consequences of their new policy. There was no system in place for tracking children
separated from their parents, or for reuniting families once parents were released from detention.
See id. at *7.

Defendants did not adequately explain their policy to those charged with

implementing it, which resulted in subordinates taking actions that were plainly illegal—like
separating families who lawfully presented at ports of entry to petition for asylum. See id. at *1.
This chaos has been compounded by the fact that Defendants have kept the American
people in the dark about the nature of the Family Detention Policy. Defendants have repeatedly
denied that Policy exists, or sought to evade responsibility for it by falsely claiming that it is
mandated by existing law.14 Defendants frequently contradicted themselves in public statements

See Salvador Rizzo, The Facts about Trump’s Policy of Separating Families at the
Border, WASH. POST (Jun. 19, 2018). Defendant Nielsen’s statement that
14

11

 Case 2:18-cv-00632-WJ-KRS Document 11 Filed 07/27/18 Page 14 of 15

about the Policy. 15 This lack of candor has made it virtually impossible for elected officials to
respond to the damage the Policy has wrecked on their communities. See Garrett Decl. at ¶ 5.
In addition to restoring “measured and ordered governance,” an injunction would serve
critical humanitarian interests. Nothing in the Family Separation Order or Judge Sabraw’s
preliminary injunction prevents Defendants from enforcing their zero-tolerance policy or detaining
children together with their parents. Absent a broader injunction, thousands of children will
continue to suffer under Defendants’ unlawful policy.
This is not a close call. Issuing an injunction would reinstate the immigration policies that
were in effect on April 5, 2018—and that had been in effect for decades before that. Such an
outcome would harm no one. By contrast, failure to issue an injunction would result in grave,
irreparable harm to thousands of children and parents, and to the communities forced to contribute
to their suffering by hosting new detention facilities.
D. The Injunction Should Apply Nationwide
“It is not beyond the power of a court, in appropriate circumstances, to issue a nationwide
injunction.” Texas, 809 F.3d at 188. In fact, because the Constitution and federal law require a
uniform immigration policy, a nationwide injunction is the preferred remedy where the executive
branch adopts an immigration policy that is contrary to law. See, e.g., NAACP v. Trump, 298 F.
Supp. 3d 209, 243 (D.D.C. 2018) (“the immigration context counsels strongly in favor of
nationwide relief”) (citing Texas, 809 F.3d at 187–88).

15

JM Rieger, The Trump Administration Changed its Story on Family Separation No
Fewer than 14 Times Before Ending the Policy, WASH. POST (Jun. 20, 2018).
12

 Case 2:18-cv-00632-WJ-KRS Document 11 Filed 07/27/18 Page 15 of 15

A nationwide injunction is necessary here. Plaintiffs’ procedural injury cannot be cured
unless Defendants provide Plaintiffs and their members the opportunity to submit data, views, and
arguments with respect to the Family Detention Policy. Such a notice-and-comment rulemaking
could not reasonably be limited to individuals residing in this district. Moreover, Plaintiffs’
members will continue to suffer personal and dignitary injuries as long as the Policy remains in
effect anywhere in the United States.
CONCLUSION
Plaintiff respectfully requests that the Court enter a preliminary injunction preventing
Defendants from taking any action to implement the Zero-Tolerance Memorandum, the Family
Detention Policy, or the Family Separation Order, until resolution of this lawsuit.

DATED: July 27, 2018

Respectfully submitted,
/s/ David Baake
DAVID R. BAAKE
New Mexico Bar # 150522
275 Downtown Mall
Las Cruces, NM 88001
Telephone: (575) 343-2782
david.baake@gmail.com

CERTIFICATE OF SERVICE
I hereby certify that on July 27, 2018, the foregoing Amended Motion for Preliminary
Injunction was served upon Defendants via certified mail.

DATED: July 27, 2018

/s/ David Baake

13

 Case 2:18-cv-00632-WJ-KRS Document 11-1 Filed 07/27/18 Page 1 of 30

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
)
SOUTHWEST ENVIRONMENTAL
)
CENTER and BORDER NETWORK
)
FOR HUMAN RIGHTS
)
)
Plaintiff, )
)
v.
)
)
JEFFERSON BEAUREGARD
)
SESSIONS III, in his official capacity as
)
Attorney General of the United States;
)
KIRSTJEN NIELSEN, in her official
)
capacity as Secretary of the U.S.
)
Department of Homeland Security;
)
JAMES N. MATTIS, in his official
)
capacity as Secretary of the U.S.
)
Department of Defense; and ALEX M.
)
AZAR II, in his official capacity as
)
Secretary of the U.S. Department of
)
Health and Human Services.
)
)
Defendants. )
)

APPENDIX TO
AMENDED MOTION FOR
PRELIMINARY INJUNCTION

2:18-cv-00632-WJ-KRS

Plaintiffs Southwest Environmental Center and Border Network for Human Rights
respectfully submits the following in support of Motion for Preliminary Injunction:
•

Declaration of Judith P. Ackerman

•

Declaration of Kevin Bixby

•

Declaration of Joanne Ferrary

•

Declaration of Fernando Garcia

•

Declaration of Billy G. Garrett

•

Declaration of Luis Guerrero

•

Declaration of Marilyn Rose Guida

 Case 2:18-cv-00632-WJ-KRS Document 11-1 Filed 07/27/18 Page 2 of 30

•

Declaration of Rodolfo A. Parra, Jr.

•

Declaration of Angel Peña

•

Declaration of Ali G. Scotten

•

Declaration of Gabriel Vasquez

DATED: July 27, 2018

Respectfully submitted,
/s/ David Baake

 Case Document 11-1 Filed 07/27/18 Page 3 of 30

DECLARATION OF JUDITH P. ACKERMAN
I, Judith P. Ackerman, declare as follows:

1. I am a retired Sergeant Major with 26 years of service in the Army National
Guard. I have personal knowledge of the following facts, and if called as a witness could
and would testify competently to them. As to those matters which re?ect an opinion,
they re?ect my personal opinion and judgment on the matter.

2. I have been a member of the Southwest Environmental Center (SWEC) for at least ten
years and actively support SWEC in many of their activities.

3. If given the opportunity to do so, I would share comments, views, and arguments related
to the Family Detention Policy, the construction of new detention camps, and any
environmental analysis done in conjunction with this Policy. However, it is my
understanding that the government is not considering public comments on the Family
Detention Policy. If the government continues to implement this divisive policy without
undertaking notice-and?comment rulemaking, I fear that our community will be
irreparably harmed. Fort Bliss is a worldwide premier military base. The relationship
between Fort Bliss and the surrounding community of El Paso is exceptionally mutually
bene?cial. Elected of?cials of El Paso, individuals and organizations have resoundingly
condemned the current Family Detention Policy. Construction of new detention camps
on Fort Bliss will damage the current congenial relationship between Fort Bliss and the
El Paso community and create distrust.

4. If given the opportunity to comment on the Family Detention Policy, I would say: the
current Family Detention Policy is despicable and immoral and brings great shame to our
United States of America. Bringing new detention camps to Fort Bliss brings shame on
the US Army.

I declare under penalty of perjury that the foregoing is true and correct. Executed on June
26, 2018 in El Paso X.

 

ith P. Ackerman, SGM (Ret)

Case Document 11-1 Filed 07/27/18 Page 4 of 30

DECLARATION OF KEVIN BIXBY
1, Kevin Bixby, declare as follows:
1. I am over 18 years of age and competent to give this declaration. I have personal
knowledge of the following facts, and if called as a witness could and would testify competently
to them. As to those matters which re?ect an opinion, they re?ect my personal opinion and

judgment on the matter.

2. I am the founder and Executive Director of Southwest Environmental Center

3. SWEC is a non- pro?t conservation organization dedicated to the protection and

restoration of native wildlife and their habitats in the Southwest. SWEC has more than 10,000

members and online activists. SWEC is headquartered in Las Cruces, New Mexico.

4. members and staff live in or regularly visit the U.S.-Mexico borderlands
region in New Mexico and Texas. members and staff regularly use the myriad federal,
state, and local protected lands along the U.S.?Mexico border in New Mexico and Texas for hiking,
camping, viewing and studying wildlife, photography, hunting, horseback riding and other
scienti?c, vocational and recreational activities. members and staff derive recreational,
spiritual, professional, scienti?c, educational, and aesthetic bene?t from their activities in these
areas. SWEC has a long history of environmental advocacy within the borderlands region.
members and staff have speci?c intentions to continue to use 'and enjoy these areas

5
frequently and on an ongoing basis in the future.

Case Document 11-1 Filed 07/27/18 Page 5 of 30

5. SWEC and its members are increasingly concerned about how the militarization of
the U.S.-Mexico border is harming our communities and our environment. In particular, we are
concerned about how the construction of a border wall will fragment wildlife habitat, threatening
endangered species such as pronghorn, ocelots, mountain lions, javelina, coatimundis, deer, bears,
wolves, and jaguar. Information about our efforts to resist the border wall and border militarization
more generally can be found at 

0
wildli fe/border-wal l.

6. members and staff regularly engage in recreational activities on lands

located on, or immediately adjacent to, Fort Bliss, including Castner Range, the Franklin

Mountains State Park, Hueco Tanks State Park, the Organ Mountains, Otero Mesa, and White

Sands. Other SWEC members live immediately adjacent to the base.

7. I am aware that Defendants previously held unaccompanied minors at the Do?a
Ana Range Complex, which abuts the Organ Mountains-Desert Peaks National Monument in
southern New Mexico. I do not know for sure whether Defendants intends to use the same area
for additional construction, because Defendants? decisionmaking process has been completely
opaque. But SWEC would be extremely concerned about any new construction adjacent to the
Organ Mountains-Desert Peaks National Monument. Our conservation community has worked
for many years to protect this magni?cent landscape. Any construction activity adjacent to this
protected land could cause signi?cant harm to SWEC users who recreate on the monument?for
example, by causing dust and other air pollution, destruction of scenic vistas, destruction of

wildlife and their habitat, increased traf?c, and increased garbage.

Case Document 11-1 Filed 07/27/18 Page 6 of 30

8. Some of members recreate near Tornillo, Texas. This area provides
important riparian habitat for a number of migratory birds and other wildlife species. The
University of Cornell?s eBird database lists a ?Birding Hotspots? in the immediate vicinity of the
Tornillo Land Port of Entry. A review of this database
indicates that at least one SWEC member regularly goes birdwatching at this location.
Construction and operation of a ?tent camp? in Tornillo is already negatively impacting the local
environment, as a result of increased traf?c, garbage, noise, and land-use disturbance. Some of
these impacts are associated with Defendants? operation of the camp itself, and others are

associated with the large protests that have been held there.

9. Some of members live in the City of El Paso, including in the vicinity of
Fort Bliss. These individuals are likely to be negatively affected by any construction that happens
within the City limits?as a result of increased air pollution, noise, garbage, and traf?c. According
to the American Lung Association, El Paso has some of the worst air pollution in the United States.
See 
quality 20160921. 105658579/89137620. Any new construction would contribute to this problem,
as the result of exhaust from construction vehicles and dust emissions resulting from land use
changes. Operation of such a facility would also contribute to air pollution resulting from heavy-

duty vehicle traf?c carrying detained individuals to-and-from the base.

10. The Family Detention Policy is incredibly controversial in the Las Cruces-El Paso
community. I personally have attended numerous protests, demonstrations, and meetings?
including one with US. Senators Tom Udall and Martin Heinrich?where hundreds of individuals
from our region have gathered to express their outrage about the humanitarian catastrophe that is

happening in our backyard. Many SWEC members have also attended protests at the Tornillo

Case Document 11-1 Filed 07/27/18 Page 7 of 30

Camp, where they have witnessed the prison-like nature of this facility and its negative

environmental impacts.

11. If Defendants were to undertake rulemaking with respect to the Family Separation
Policy, SWEC and its members would participate in the rulemaking by submitting comments, data,
and arguments. SWEC and its members would also submit comments, data, and arguments in

response to any environmental analysis performed by Defendants in connection with this Policy.

12. SWEC and its members are being irreparably harmed by the Family Detention
Policy and by the militarization of the U.S.-Mexico border more generally. At minimum, I believe
Defendants have an obligation to listen to individuals in our community before moving forward

with additional projects that will affect quality of life in our region.

I declare under penalty of perjury that the foregoing is true and correct, Executed July 26,

2018 in Las Cruces, New Mexico.

 

Case 2:18-cv-00632-WJ-KRS Document 11-1 Filed 07/27/18 Page 8 of 30

Declaration of Joanne Ferrary
I, Joanne Ferrary, declare as follows:
1. I am over 18 years of age and competent to give this declaration. I have personal
knowledge of the following facts, and if called as a witness could and would testify
competently to them. As to those matters which reflect an opinion, they reflect my
personal opinion and judgment on the matter.
2. I am a member of the Southwest Environmental Center and I support our taking action
against the construction of new detention facilities and the militarization of the border.
3. I hike, camp, and birdwatch on lands located on, or immediately adjacent to, Fort Bliss,
including Castner Range, Culp Canyon Wilderness Study Area, the Franklin Mountains,
Hueco Tanks, the Organ Mountains, Otero Mesa, and White Sands. I have enjoyed
recreating on these lands since the early 1980s and have taken my children to these
special places.
4. I am very concerned that the construction of a new detention facility or the operation of a
“tent city” at Fort Bliss would negatively impact these recreational opportunities by
creating air pollution, destroying wildlife habitat, and converting Chihuahuan Desert land
into a built environment. I am also worried that my community will experience increased
traffic due to construction and operation of the facility.
5. If given the opportunity to do so, I would share comments, views, and arguments related
to the Family Detention Policy, the construction of new detention camps, and any
environmental analysis done in conjunction with this Policy. However, it is my

 Case 2:18-cv-00632-WJ-KRS Document 11-1 Filed 07/27/18 Page 9 of 30

understanding that the government is not considering public comments on the Family
Detention Policy.
6. If the government continues to implement this divisive policy without undertaking
notice-and-comment rulemaking, I fear that our community and Country will be
irreparably harmed. The inhumane treatment of women, their children, and families who
are seeking asylum in order to escape horrific life-threatening conditions in their
homeland is traumatic to many in our community and creates a slippery slope that may
lead to even worse human rights abuses in the future.
7. If given the opportunity to comment on the Family Separation Policy, I would say: Please
reunite the children with their families immediately, as adverse childhood experiences,
such as what they are going through, will harm their emotional, social, and educational
development critical for their success in life. Expedite and expand the opportunities for
asylum seekers as well as for those who seek to work and live in our Country. We were
all immigrants at some point in our family history and there is still plenty of room for
more!
I declare under penalty of perjury that the foregoing is true and correct. Executed on June
28th, 2018 in Las Cruces, New Mexico.

 Case 2:18-cv-00632-WJ-KRS Document 11-1 Filed 07/27/18 Page 10 of 30

DECLARATION OF FERNANDO GARCIA
EXECUTIVE DIRECTOR OF BORDER NETWORK FOR HUMAN RIGHTS
1.

I am over 18 years of age and competent to give this declaration. I have personal

knowledge of the following facts, and if called as a witness could and would testify competently
to them. As to those matters which reflect an opinion, they reflect my personal opinion and
judgment on the matter.
2.

I am the Founder and Executive Director of Border Network for Human Rights

(BNHR). BNHR is a non-profit human rights organization that has worked for 20 years to
organize marginalized border communities in the region around El Paso, Texas and Las Cruces,
New Mexico. BNHR works to facilitate community education, organizing, and participation to
defend and promote human and civil rights in the border region.
3.

BNHR has hundreds of member families living in far west Texas and southern

New Mexico. BNHR’s members are being irreparably harmed by the Trump Administration’s
Zero-Tolerance and Family Detention Policies. Broadly, BNHR is concerned about the way that
Zero-Tolerance and Family Detention in practice creates a de-facto criminalization of immigrant
populations, uses this criminalization to justify mass detention and efforts to undercut protections
of civil and constitutional rights such as the Flores Settlement, and uses the effects of mass
detention—alleged ‘overcrowding’—to justify denial of the legal asylum process as a means to
further criminalize arriving immigrants.
4.

Over the course of its two decades in existence, BNHR has worked, and continues

to work, to document violations of civil and human rights by agencies such as ICE and CBP—
and, moreover, to address the systemic causes of those violations through engagement in

 Case 2:18-cv-00632-WJ-KRS Document 11-1 Filed 07/27/18 Page 11 of 30

productive dialogue with said agencies aimed at changing policy and practice. These violations
have increased during the period that Zero-Tolerance, Family Separation, and Family Detention
have been in effect in the El Paso region. This past spring alone, BNHR documented several
cases where Border Patrol agents entered private property without permission, conducted
searches without a warrant, repeatedly disturbed residents as the slept by shining bright lights
into home windows, and other problematic practices—none of which we had documented in the
five years prior. The secrecy and lack of public accountability in the implementation of ZeroTolerance and Family Detention fuel a sense of impunity in these and other relevant agencies
that further corrodes the rights of border residents and crossers alike, causing direct degradation
in the quality of life of BNHR staff and members.

Likewise, Zero-Tolerance and Family

Detention supports a destructive de-facto criminalization of immigrant and Latino populations on
the part of law enforcement agents that leads them to undertake actions that undermine the civil,
constitutional, and human rights of persons residing in the U.S.
5.

Many of BNHR’s members are immigrants or the children and grandchildren of

immigrants. Seeing migrant families and children detained in their own backyard causes these
individuals to feel as though they have been stamped by their own government with a badge of
inferiority, and/or feeling of criminality, just because of their shared heritage, language, or skin
tone, causing them to experience severe emotional and psychological distress that affects
performance at work or school, and deters participation in civic life such as attending community
events.
6.

Furthermore, many BNHR member families have experienced family separation

of their own through the enforcement of U.S. immigration law. In the experience of our families,
the detention and/or deportation of a family member puts immense psychological strain on those

 Case 2:18-cv-00632-WJ-KRS Document 11-1 Filed 07/27/18 Page 12 of 30

remaining family members who describe barely knowing how they can survive without each
other. Often performance at work or school suffers immensely, and the family withdraws from
community life. It often also presents significant financial and quality of life burdens on these
families as key providers of income or services such as child care are no longer there to help
provide the day-to-day material sustenance of the family.
7.

Finally, in addressing these harms BNHR has had to divert resources away from

opportunities to proactively improve the living conditions of border residents to instead respond
to the crisis that Defendants have created by adopting the Zero-Tolerance and Family Detention
Policies.
8.

If Defendants were to undertake rulemaking with respect to the Zero Tolerance

and Family Detention Policies, BNHR and its members would participate in the rulemaking by
submitting comments, data, and arguments showing that these policies are immensely harmful to
individuals who live in border communities.
I declare under penalty of perjury that the foregoing is true and correct. Executed July
27, 2018 in El Paso, Texas.

Fernando Garcia

 Case Document 11-1 Filed 07/27/18 Page 13 of 30

DECLARATION OF BILLY G. GARRETT

 

1, Billy G. Garrett, declare as follows:

1. I am over 18 years of age and competent to give this declaration. I have personal
knowledge of the following facts, and if called as a witness could and would testify competently
to them. As to those matters that re?ect an opinion, they re?ect my personal opinion and

judgment on the matter.

2. I am a member of the Southwest Environmental Center.

3. I am serving my second term as a County Commissioner on the Do?a Ana County
Board of Commissioners. The Commission has jurisdiction over a wide variety of matters
affecting Do?a Ana County. Principal among these is the health and welfare of county residents.
We have a special obligation to look out for the wellbeing of children and families. We also

have a duty to protect the environment for the bene?t of everyone who lives in our region.

4. I am appalled with the Family Detention Policy. Use of governmental powers to
separate children from their parents and to incarcerate immigrant children is unjust and morally
repugnant. As an elected of?cial, I believe that County government should respond to the
humanitarian crisis created by the Trump Administration. At a minimum we must stand up for
fair treatment, respect, and dignity for all. All families in Do?a Ana County, including those that
include undocumented residents, must be able to go about their lives knowing their civil and

human rights will be respected and protected.

 

Case Document 11-1 Filed 07/27/18 Page 14 of 30

5. Even the suspicion that civil and human rights are being compromised
undermines trust between people and their government. Yet the Federal Government has kept
our community and its leaders in the dark about the Family Detention Policy and plans to
implement it. Most of what we have learned has come from media reports, some of which rely
on leaks and other unof?cial sources of information. Members of the Trump Administration
have repeatedly contradicted themselves in public statements about the Policy. This lack of
candor has made it virtually impossible for elected of?cials like myself to respond to the damage
the Policy has caused?or could cause?in our communities, the social order, and the

environment.

I declare under penalty of perjury that the foregoing is true and correct. Executed June

30, 2018 in Las Cruces, New Mexico.

Billy G. Garrett

6805 Cottontail Lane
Las Cruces, NM 88005

 

Case 2:18-cv-00632-WJ-KRS Document 11-1 Filed 07/27/18 Page 15 of 30

Declaration of Luis Guerrero
I, Luis Guerrero, declare as follows:
1.

I am over 18 years of age and competent to give this declaration. I

have personal knowledge of the following facts, and if called as a witness could
and would testify competently to them. As to those matters which reflect an
opinion, they reflect my personal opinion and judgment on the matter.
2.

I recently became a member of Southwest Environmental Center

because I heard they were taking action against the construction of new detention
facilities and the militarization of the border, and I wanted to support this work.
3.

I live in Las Cruces, New Mexico. I enjoy hiking on lands located on,

or immediately adjacent to, Fort Bliss, including the Organ Mountains, Otero Mesa
and White Sands.
4.

I am very concerned that the construction of a new detention facility

or the operation of a “tent city” at Fort Bliss would negatively impact our local
environment by causing increased traffic, garbage, and disturbance of public land.
I am worried that these impacts could harm me and my family by reducing our
ability to enjoy public lands, and by increasing air pollution, as trucks and buses
bring migrants to and from the detention facility. I think construction of a new

 Case 2:18-cv-00632-WJ-KRS Document 11-1 Filed 07/27/18 Page 16 of 30

detention facility or a tent city would lead to an overall reduction of the quality of
life for New Mexican families.
5.

If given the opportunity to do so, I would share comments, views, and

arguments related to the Family Detention Policy, the construction of new
detention camps, and any environmental analysis done in conjunction with this
Policy. However, it is my understanding that the government is not considering
public comments on the Family Detention Policy. If the government continues to
implement this divisive policy without undertaking notice-and-comment
rulemaking, I fear that our community will be irreparably harmed.

Our

Government should be open to listening to what the public has to say, especially
the people that live along the border, who will be most affected by these facilities.
The current administration has been painting a false picture of what the border and
our immigrant communities are about. We live in an area of rich diversity, both in
its people and in its lands, and these facilities would completely change our way of
life. Sadly, our views are not being listened to.
6.

If given the opportunity to comment on the Family Detention Policy, I

would say that it is wrong and it is not what this country should be about.
Immigrants who come to this country are seeking a better life for their loved ones
and for future generations, in many cases running away from dangerous situations.

 ase Document 11-1 Filed 07/27/18 Page 17 of 30

We should be a nation that welcomes them and welcomes diversity. Jeff Sessions
and the Trump administration have made it their mission to persecute our
immigrant family based on racist and xenophobic ideologies that are not true and
that do not represent our values, especially here at the border. Separating families
is cruel and inhumane. Locking children of all ages in cages is inhumane and
morally wrong. We need to ?x our broken immigration system that makes it

dif?cult for people to go through the right channels to gain citizenship.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on June 27, 2018, in Las Cruces, New Mexico.

Z155 Que)

Case Document 11-1 Filed 07/27/18 Page 18 of 30

1, Marilyn Rose Guida, declare as follows:

1. I am over 18 years of age and competent to give this declaration. I have personal
knowledge of the following facts, and if called as a witness could and would testify
competently to them. As to those matters which re?ect an opinion, they re?ect my personal
opinion and judgment on the matter.

2. I am a member of the Southwest Environmental Center and have been for several
years.

3. If given the opportunity to do so, I would share comments, views, and arguments
related to the Family Detention Policy, the construction of new detention camps, and any
environmental analysis done in conjunction with this Policy. However, it is my
understanding that the government is not considering public comments on the Family
Detention Policy. If the government continues to implement this divisive policy without
undertaking notice-and-comment rulemaking, I fear that our community will be irreparably
harmed. In El Paso Texas we are a bilingual, English/ Spanish community. Many, possibly
the majority of our individuals and families, have family ties to the countries of Mexico and
Central America which are the origin points for people asking for asylum in the United States
and people seeking to rejoin family in the United States. El Paso families are either recent
immigrants or descended from immigrants to the United States over a period of over 400
years. Family detention is personal here. It is not remote, it is not happening to someone else,
it is happening to our families, our friends, our neighbors who are US citizens.

4. If given the opportunity to comment on the Family Detention Policy, I would say that
it is unclear how this policy is going to be implemented. How long will families be held? Will
families have access to support services? Will social service groups not connected with the
government be able to provide support to families in detention? How will families with
medical issues be taken care of? If held for any length of time in detention family life will be
affected in many ways that a could explain. Just as anyone denied freedom of
movement, freedom to work, freedom to make their own way in the world, families would
become depressed, would lose hope, would start to fall apart. As a US citizen I do not want
my country to warehouse people over some minor infractions of law or policy. Such an
action will harm the United States, bring shame on the United States. We will lose our status
in the world as a country that welcomes immigrants. A status we have had for almost 400
years. We are a strong country because of our immigrant history. My grandparents were
immigrants. Family detention will reverse our proud history and lead the United States into
a decline.

I declare under penalty of perjury that the foregoing is true and correct. Executed on June 24,
2018 in El Paso Texas.

WW?mm

Case Document 11-1 Filed 07/27/18 Page over l8 years of age and competent to give this declaration. have

personal knowledge of the following facts, and if called as a witness could and would
testify competently to them. As to those matters which re?ect an opinion. they
re?ect my personal opinion and judgment on the matter.

2. I recently became a member of Southwest Environmental Center
because I heard they were taking action against the construction of new detention

facilities and the militarization of the border. and I wanted to support this work.

3. I live directly south of Fort Bliss in El Paso. Texas. in the 79905 Zip
Code. This Zip Code is already known for its high levels of air pollutants. I am very
concerned that the construction of a new detention facility or the operation of a ?tent
city? at Fort Bliss would negatively impact the environment. Among other things. I
am worried that construction and operation of these facilities would result in
increased air pollution. land-use changes. destruction of wildlife habitat. and

destruction of scenic areas.

4. I am also worried that my community?which almdy experiences
heavy traf?c associated with the international bridge?will experience even more

traf?c if thousands or tens-of-thousands of migrants are transported to a new

Case Document 11-1 Filed 07/27/18 Page 20 of 30

detention facility on Fort Bliss. I am also worried about increased garbage and

disturbance of the land.

5. If given the opportunity to do so, I would share comments, views, and
arguments related to the Family Detention Policy, the construction of new detention
facility, and any environmental analysis done in conjunction with this Policy.
However, it is my understanding that the government is not accepting comments and

is not performing an environmental analysis.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on July 1, 2018 in Santa Teresa, New Mexico.



Case 2:18-cv-00632-WJ-KRS Document 11-1 Filed 07/27/18 Page 21 of 30

Declaration of Angel Peña
I, Angel Peña, declare as follows:
1. My name is Angel Peña and I currently reside in Las Cruces, New Mexico. I was born and raised
in El Paso, TX. The following facts are personally known to me through my personal and
professional experiences and my research. If called as a witness I would and could truthfully
testify thereto.
2. I submit this declaration as a member of Southwest Environmental Center (SWEC). I have
partnered personally and professionally with SWEC, I have aligned values with the mission to
protect and restore native wildlife and their habitats in the Southwest.
3. I have resided in this borderland region my entire life—from 1988 until now. I hike, hunt,
birdwatch, camp, educate, work and learn on lands located on, or immediately adjacent to, Fort
Bliss, including Castner Range, the Franklin Mountains, Hueco Tanks, the Organ Mountains,
Otero Mesa, and White Sands.
4. I am currently employed as the Rio Bravo Regional Director for a national conservation
organization, Conservation Lands Foundation (CLF). In this role, I oversee, for my organization,
work in Southern Colorado, New Mexico, Arizona, and Texas, and my work emphasizes
engaging youth and minority communities in experiencing and protecting public lands and
cultural heritage. Some constituencies include faith-based groups, youth groups, scientists,
professional and avocational groups, and families looking for affordable ways to recreate and
enjoy their public lands. Prior to my current position, I worked with as a National Monument
Campaign Associate engaging underprivileged and underserved communities in Nevada,
Colorado, Utah, Texas and New Mexico.

 Case 2:18-cv-00632-WJ-KRS Document 11-1 Filed 07/27/18 Page 22 of 30

5. Prior to joining CLF in 2014, I worked as the Cultural Resource Specialist for the New Mexico
Wilderness Alliance, where I also advocated for the permanent protection of the nearly halfmillion acres that comprise the Organ Mountains-Desert Peaks National Monument.
6. Prior to that position, I worked for the City of Las Cruces as Community Liaison intern for a City
Councilor and served as a Bureau of Land Management (“BLM”) Archaeologist intern. In those
positions, I worked on outreach, communications, and research.
7. I have spent the better part of the last decade working in or immediately adjacent to lands of Fort
Bliss, including Castner Range, the Franklin Mountains, Hueco Tanks, the Organ Mountains,
Otero Mesa, and White Sands. I have worked to highlight the wildlife, recreational, and cultural
benefits of these places, including for youth, minority, and underserved communities. I have
personally led scores of communities and community members on site visits and recreational trips
through this region.
8. Professionally, personally, and as a member of SWEC, I work to further our shared commitment
to preserving the history, culture, and spirit of the American West for future generations. I connect
local youth and minority communities to environmental and cultural heritage studies. Lands of and
adjacent to Fort Bliss, including Castner Range, the Franklin Mountains, Hueco Tanks, the Organ
Mountains, Otero Mesa, and White Sands all play a critical role in my work.
9. I have invested significant personal time and made it my professional career to advocate for
protected lands across the country and in the borderland regions, including Hueco Tanks, Organ
Mountains–Desert Peaks National Monument, the Castner Range, the Franklin Mountain State
Park, and White Sands National Monument.
10. I am very concerned that the construction of a new detention facility or the operation of a “tent
city” at Fort Bliss would negatively impact these recreational opportunities and potentially hinder

 Case 2:18-cv-00632-WJ-KRS Document 11-1 Filed 07/27/18 Page 23 of 30

the economic benefit that outdoor recreation brings to our region. The construction and operation
of these facilities will adversely affect the air quality, water quality, wildlife habitat of our region,
and contribute to the destruction of scenic areas that facilitate affordable outdoor recreational
opportunities for families.
11. I have always enjoyed volunteering and working with SWEC because of my deep passion for
public lands, wide-open spaces, and wildlife, especially those along my borderland hometown
where my family and I live, work and recreate. I am always humbled to work with SWEC on
wildlife education, cultural resources conservation, and education. my educational background in
anthropology and archaeology makes these issues very important to me personally and
professionally. I continue to volunteer proudly in these roles because I support the mission of
SWEC and want to protect and restore the native wildlife and their habitats in the Southwest for
the benefit of local communities and my family.
12. I have a strong personal and professional commitment to preserving the history, culture, wildlife
and spirit of the American West for future generations and communities around the nation. I
developed my love of, and unwavering commitment to, our nation’s special public places when I
became a father at twenty-years old. At this time, I discovered federal public lands offer inspiring,
affordable, and family-friendly activities. I grew up in El Paso, Texas as a first-generation
American and the son of a single, immigrant mother; my mother and I did not have the luxury of
hiking, camping, and being outside because we could not easily access public lands. I now gain
deep satisfaction and excitement when I visit, explore, and discover public lands with my daughters
because these visits benefit my family’s health, happiness, and wellbeing. I work to protect public
lands in my personal and professional capacities because I want to ensure that my family and all
parents have such opportunities. With the construction and operation of tent cities or detention
facilities on or near Fort Bliss, my life’s work would be directly damaged and affected.

 Case Document 11-1 Filed 07/27/18 Page 24 of 30

13. As a child of an immigrant who grew up, and currently lives, in a community of immigrants, the
Family Separation Policy, the Family Separation Policy directly affects me personally. Seeing
immigrants demonized causes me to feel as though our community is not respected by the

government. The govemment?s policies are traumatizing to me and my community.

14. If given the opportunity to do so, I would share comments, views, and arguments related to the
Family Separation Policy, the construction of new detention camps, and any environmental analysis
done in conjunction with this Policy. However, it is my understanding that the government is not

accepting comments and is not performing an environmental analysis.

I declare under penalty of perjury that the foregoing is true and correct. Executed on July

2, 2018, in El Paso, Texas. I 

 

Case Document 11-1 Filed 07/27/18 Page 25 of 30

Declaration of Ali G. Scotten

1. Ali G. Scotten. declare as follows:

1. I am over 18 years of age and competent to give this declaration. I have
personal knowledge of the following facts, and if called as a witness could and would
testify competently to them. As to those matters which re?ect an opinion, they
re?ect my personal opinion and judgment on the matter.

2. I recently became a member of Southwest Environmental Center
because I heard they were taking action against the construction of new detention

facilities and the militarization of the border.

3. I hike on lands located on, or immediately adjacent to, Fort Bliss,

including the Organ Mountains and White Sands.

4. I am very concerned that the construction of a new detention facility or
the operation of a ?tent city? at Fort Bliss would negatively impact these recreational
opportunities. Among other things, I am worried that construction and operation of
these facilities would result in air pollution, water pollution, land-use changes,
increased ?ooding risk, destruction of wildlife habitat, destruction of wetlands,
and/or destruction of scenic areas. I am also worried that my community will
experience increased traffic, garbage, and disturbance of public and private land.

The environmental impact of such a facility would harm me and my family by

Case Document 11-1 Filed 07/27/18 Page 26 of 30

decreasing property values. As a property owner, I was anticipating the rapid
development of Las Cruces due to an in?ux in tourism revolving around our public
lands. However, tent camps for children would be such an ugly stain on the

landscape that tourists will choose to avoid the area.

5. If given the opportunity to do so, I would share comments, views, and
arguments related to the Family Separation Policy, the construction of new detention
camps, and any environmental analysis done in conjunction with this Policy.
However, it is my understanding that the government is not considering public
comments on the Family Separation Policy. If the government continues to
implement this divisive policy without undertaking notice-and-comment
rulemaking, I fear that our community will be irreparably harmed. In addition to the
blow to tourism revenue, the divisiveness of the policy will trickle down into our
community, emboldening anti-immigrant sentiment at the local level and destroying

the fabric of our society.

6. If given the opportunity to comment on the Family Separation Policy,
I would say: As the child of an Iranian immigrant, I am deeply disturbed by the
administration?s assault on immigration, both legal and illegal. If the
administration?s current policies had been in place several decades ago, my mother

would not have been allowed to enter the country and I would never have been born.

Case Document 11-1 Filed 07/27/18 Page 27 of 30

Throughout its history, our nation has been blessed by the contributions of
immigrants. Without immigrants, our country?s economy and society will stagnate.
Moreover, the administration?s abuse of undocumented children has caused me great
mental anguish and has interfered in my ability to perform my obligations as a small

business owner.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on June 29, 2018 in Las Cruces, NM.

Printed Name: Ali G. Scotten

Signature: WM

 7

Case Document 11-1 Filed 07/27/18 Page 28 of 30

Declaration of Gabriel Vasquez
I, Gabriel Vasquez, declare as follows:

1. I am over 18 years of age and competent to give this declaration. I
have personal knowledge of the following facts, and if called as a witness could
and would testify competently to them. As to those matters which re?ect an
opinion, they re?ect my personal opinion and judgment on the matter.

2. I am a member of the Southwest Environmental Center and have
followed their work closely over the last decade because of my interest in
recreating and conserving public lands for the bene?t of our local youth, families,
wildlife, and economy.

3. I hike, hunt, camp, birdwatch, and scout on lands located on, or
immediately adjacent to, Fort Bliss, including Castner Range, the Franklin
Mountains, Hueco Tanks, the Organ Mountains, Otero Mesa, and White Sands. I

have recreated on these lands since I was a young child and continue to enjoy the
public lands of our Chihuahuan Desert with friends and family. My identity and
culture are inextricably tied to these special places, as is the identity of the

surrounding communities of El Paso, Las Cruces, Chaparral, Alamogordo,

Tomillo, Fabens, and surrounding colonias in both Texas and New Mexico.

4. I am highly concerned that the construction of a new detention facility

or the operation of a ?tent city? at Fort Bliss would negatively impact these

Case Document 11-1 Filed 07/27/18 Page 29 of 30

recreational opportunities for me and for future generations. Among other things, I
am worried that construction and operation of these facilities would result in
increased and unmanageable air pollution,ipotential water pollution, incompatible
land-use changes. increased flooding risk, destruction of wildlife habitat,
destruction of wetlands, and further the decline of the pristine Chihuahuan Desert
landscape that we enjoy. I am also worried that my community will experience
increased traffic due to transportation and construction, many more tons of
garbage, and the disturbance of public and private land.

5. The lands around Fort Bliss provide some of the most pristine
baekcountry hunting opportunities for species such as oryx, barbary sheep, scaled
and gambel?s quail, various species of dove, mule deer, mountain lion, and
javelina. Building a new detention facility here would reduce the footprint of the
already limited opportunities for hunting in this area.

6. The environmental impact of such a facility would harm me and my
family by having limited and uncertain opportunities to recreate on public land,
which we as taxpayers, are heir to and pay to maintain. If given the opportunity to
do so, 1 would share comments, views, and arguments related to the Family
Detention Policy, the construction of new detention camps or permanent detention

centers, and any environmental analysis done in conjunction with this Policy.

Case Document 11-1 Filed 07/27/18 Page 30 of 30

However, it is my understanding that the government is not accepting comments

and is not performing an environmental analysis.

7. Many members of our community vigorously oppose the Family

Detention Policy and the construction of new detention facilities. I feel strongly
that the government should not proceed with this Policy without offering our

community the chance to voice its concerns.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on June&, 2018, in Las ruces, New Mexico.

01448