Case 3:18-cv-00428-DMS-MDD Document 168 Filed 07/30/18 PageID.3018 Page 1 of 3

Honorable Judge Sabraw
333 West Broadway
San Diego, Ca 92101
Courtroom 13A
Dear Judge Sabraw:
We write to inform you of very recent information we just learned
regarding a class action lawsuit filed in the district court in
Washington, D.C. on behalf of the children of Ms. L. Class Members
with final removal orders. See M.M.M. v. Sessions, No. 18-1759
(D.D.C.). A TRO hearing is scheduled to take place tomorrow before
Judge Paul Friedman, in which the plaintiffs will seek a stay of
removal for both the children and parents until the court resolves the
merits of the plaintiffs’ claims that they are entitled to asylum
proceedings. We have just learned from counsel for the plaintiffs in
that case that the parties have reached an agreement that the
Government will not remove Ms. L. Class Members or their children
prior to the TRO hearing before Judge Friedman. As the Government
has also just indicated in a filing in Ms. L., it seeks to have that case
transferred to this Court. See Dkt. 166, at 2.
It appears that the Government intends to argue, in this Court and
before Judge Friedman, that the election forms signed by Ms. L.
parents not only preclude a stay, but also, remarkably, waive
substantive asylum rights for both the parents and children. See Gov’t
TRO Opp., M.M.M. v. Sessions, Dkt. 15, at 5. Plaintiffs believe that is
an incorrect reading of the scope of the election form approved by this
Court and would raise profound questions under domestic and
international asylum laws. Most particularly, it would allow the
Government to accomplish precisely what this Court said it would not
allow: conditioning reunification on giving up asylum rights. We
therefore write to ensure that anything this Court might say in its stay
ruling about the election forms does not unnecessarily prejudge or
preclude the type of relief sought before Judge Friedman by the Ms. L.
children. Plaintiffs also believe that there is currently no reason why
transfer to this Court is necessary.
As the Court is aware, the form was created in a very specific context.
The government was using a different form that suggested to parents
that they needed to waive their right to contest removal in order to
obtain reunification. The current form approved by the Court was
adopted to dispel that impression, and nothing more. Indeed, if parents
were forced to sign the forms before reunification and could be
removed immediately upon reunification, it would mean that the
parents, in order to be reunified, would have to give up challenges to

 Case 3:18-cv-00428-DMS-MDD Document 168 Filed 07/30/18 PageID.3019 Page 2 of 3

their removal orders and waive their children’s asylum rights as well.
But until pro bono counsel can consult with the families as a group,
there will be no way of knowing what options the family retains. See
Manning Declaration, Ex. 59, ¶ 5-7 (filed July 28) (noting how asylum
process works in the absence of family separation).

In short, the Government upended the normal asylum process by
separating families. It must now give the families it harmed the
opportunity to seek the relief they would have been entitled to seek
had they never been separated. 1 And it should not be able to deny
Class Members the consultation necessary to understand these options,
especially given how individualized asylum cases are.
0F

Accordingly, Plaintiffs respectfully request that the Court not offer a
view on the scope of the election form in ruling on the stay.
Addressing that issue is not necessary to resolve the stay motion;
indeed, Plaintiffs’ current stay motion does not ask this Court to
determine what procedural or substantive rights either parents or
especially children are entitled to.
Alternatively, the Court can defer ruling on the stay motion at this
point given the Government’s agreement not to remove children or
their parents until Judge Friedman hears argument on the stay request
in M.M.M. At a minimum, Plaintiffs respectfully request the
opportunity to file a brief further explaining their view of the election
form. Plaintiffs would also request that the Court permit amicus briefs
by national asylum groups and leading academics to explain the
danger of reading the form as precluding any opportunity for the child
to apply for asylum or for the parent to exercise his or her right to a
joint CFI hearing or some other remedy that would have been
available had the families not been separated.

1

Dated: July 30, 2018

Respectfully Submitted,

Bardis Vakili (SBN 247783)
ACLU FOUNDATION OF SAN
DIEGO & IMPERIAL
COUNTIES
P.O. Box 87131
San Diego, CA 92138-7131
T: (619) 398-4485
F: (619) 232-0036
bvakili@aclusandiego.org

/s/Lee Gelernt
Lee Gelernt*
Judy Rabinovitz*
Anand Balakrishnan*
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
IMMIGRANTS’ RIGHTS
PROJECT
125 Broad St., 18th Floor
New York, NY 10004

This is apparently the relief sought by plaintiffs in the M.M.M. case.

 Case 3:18-cv-00428-DMS-MDD Document 168 Filed 07/30/18 PageID.3020 Page 3 of 3

Spencer E. Amdur (SBN 320069)
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
IMMIGRANTS’ RIGHTS
PROJECT
39 Drumm Street
San Francisco, CA 94111
T: (415) 343-1198
F: (415) 395-0950
samdur@aclu.org

T: (212) 549-2660
F: (212) 549-2654
lgelernt@aclu.org
jrabinovitz@aclu.org
abalakrishnan@aclu.org
*Admitted Pro Hac Vice