Case 1:18-cv-01759-PLF Document 18 Filed 08/01/18 Page 1 of 14 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA M.M.M., on behalf of his minor child, J.M.A., et al., CIVIL ACTION NO. 18-1759 (PLF) Plaintiffs, v. Jefferson Beauregard Sessions, III, Attorney General of the United States, et al., Defendants. PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER Plaintiffs submit this supplemental memorandum in support of their motion for a temporary restraining order, renewing their request that the Court stay removals of the persons impacted by the relief requested by Plaintiffs until the Court rules on Plaintiffs’ motion for a preliminary injunction. Defendants have agreed to stay such removals through Friday, August 3, 2018.1 At the July 31, 2018, hearing on Plaintiffs’ motion for a temporary restraining order, the 1 Defendants have agreed to continue to delay removals of the following persons through Friday, August 3, 2018: (a) “All adult parents who enter the United States at or between designated ports of entry who (1) have been, are, or will be detained in immigration custody by the DHS, and (2) have a minor child who is or will be separated from them by DHS and detained in ORR custody, ORR foster care, or DHS custody, absent a determination that the parent is unfit or presents a danger to the child,” as modified by the Court’s class definition in Ms. L v. ICE, No. 18-cv-428, ECF No. 82 (S.D. Cal. June 26, 2018) (Sabraw, J.), and their children; (b) all such parents who have already been reunified, and their children; (c) all such parents who have 1 Case 1:18-cv-01759-PLF Document 18 Filed 08/01/18 Page 2 of 14 Court indicated that it would determine, prior to Friday, whether to either: (a) issue a temporary restraining order, effective until 48 hours after the Court rules on Plaintiffs’ motion for a preliminary injunction, and set a schedule for the briefing and hearing of such motion, or (b) transfer this case to Judge Dana Sabraw who is presiding over Ms. L v. U.S. Immigration and Customs Enforcement, No. 18-cv-00428-DMS-MDD (S.D. Cal.). Defendants have not disputed (1) that Plaintiffs are likely to succeed on the merits of their claims; (2) that Plaintiffs will be irreparably harmed if an injunction is not granted; (3) that preliminary relief will not substantially injure Defendants; or (4) that preliminary relief furthers the public interest. Winter v. Natural Res. Def. Counsel, 555 U.S. 7, 20 (2008). Indeed, hundreds of children seeking asylum – who have been denied the ability to do so by Defendants’ unlawful policy – face the threat of imminent removal to countries where they could suffer physical harm or even death if this Court does not grant relief. Instead, Defendants’ “opposition” to Plaintiffs’ request for a temporary restraining order is based solely on their position that (a) the case should be transferred to Judge Sabraw, and (b) that no court – including Judge Sabraw – has jurisdiction to hear Plaintiffs’ claims. See ECF No. 15, Defs.’ Opp’n to Pls.’ Mot. for TRO (hereinafter “Opp’n”) at 6 (“The Immigration and Nationality Act (INA) deprives district courts of jurisdiction . . . foreclose[ing] the stay of removal that Plaintiffs request.”) (emphasis added). In other words, Defendants hope to transfer this case to Judge Sabraw, where they will argue Plaintiffs’ claims should die, due to that court’s lack of jurisdiction. This is not mere speculation; Defendants already have argued in Ms. L that Judge Sabraw lacks jurisdiction under the INA. (Defs.’ Opp. to Mot. for TRO in Ms. L) (arguing allegedly waived reunification, and their children; and (d) all such parents whose background checks or case file reviews have allegedly raised “red flags,” and their children. 2 Case 1:18-cv-01759-PLF Document 18 Filed 08/01/18 Page 3 of 14 that Judge Sabraw “lacks jurisdiction” to grant a stay of removal because the INA “strips district courts of jurisdiction to enjoin execution of a final expedited removal order”).2 Plaintiffs vigorously contest Defendants’ attempt to ensnare Plaintiffs in a jurisdictional Catch-22 that deprives them of statutory rights to petition for asylum.3 All Federal District Courts have federal question jurisdiction over Plaintiffs’ claims under 28 U.S.C. § 1331, including claims by children like certain Plaintiffs here who allege that they are not named in a removal order. See, e.g., Olivas v. Whitford, No. 14-cv-1434, 2015 WL 867350, at *8 (S.D. Cal. Mar. 2, 2015) (“There is no allegation that a removal proceeding took place or that an order was issued. Plaintiff's challenge is not subject to 8 U.S.C. section 1252(e)(3) because it is not a challenge to the validity of expedited removal proceedings pursuant to section 1225(b)(1).”). Contrary to Defendants’ argument, these federal question claims can be brought on behalf of a class. Opp’n at 9-10. In addition, Plaintiffs brought their case in the District of Columbia because this Court – and this Court alone – is specifically empowered by Congress with jurisdiction to hear Plaintiffs’ claims challenging Defendants’ unlawful policy of depriving children of their statutory rights to petition for asylum under 8 U.S.C. § 1252(e)(3) (The “United States District Court for the District of Columbia” has jurisdiction to hear claims challenging the “validity of the system,” including whether the U.S. government’s policies are “not consistent with applicable provisions of this subchapter or is otherwise in violation of law.”). The statute thus directs that systemic challenges are to be brought here in D.C., not before Judge Sabraw. 2 When the Court asked counsel for Defendants at the July 31, 2018, hearing whether Judge Sabraw would have jurisdiction to hear Plaintiffs’ claims, counsel for Defendants was evasive, effectively conceding that Defendants intend to continue their unlawful policy of depriving children of their rights to petition for asylum by arguing that no court has jurisdiction to hear claims brought by those children. 3 See, e.g., 8 U.S.C. § 1158(a)(1) (“Any alien who is physically present in the United States or who arrives in the United States . . . irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.”). 3 Case 1:18-cv-01759-PLF Document 18 Filed 08/01/18 Page 4 of 14 Even if the other requirements of the venue transfer statute were satisfied (and they are not), that statute only permits courts to transfer cases to courts where the plaintiff’s claims “might have been brought.” See 28 U.S.C. § 1404. Therefore Defendants’ requested transfer is barred as a matter of law. Even if transfer was not barred by 28 U.S.C. § 1404, there is no reason to transfer Plaintiffs’ claims because Judge Sabraw is not already considering them. Judge Sabraw is considering claims brought by a class of parents seeking reunification in Ms. L – not claims brought by a class of children seeking access to asylum due process. Similarly, unlike this case, which involves children’s rights after reunification, the other cases that have been transferred to Judge Sabraw involve relief that could delay the reunification relief requested in Ms. L, making transfer far more appropriate in those cases than in this one. Moreover, none of the plaintiffs in those cases has asked Judge Sabraw to rule on the asylum rights of children post-reunification. Put simply, the questions Plaintiffs are raising in this Court are not before Judge Sabraw – in the Ms. L litigation or otherwise. Nor is there any risk that the claims and relief sought in this case will interfere with the Ms. L litigation. Defendants’ requested transfer, already precluded by statute, therefore serves no purpose other than to improperly deprive Plaintiffs of their choice of forum and, more importantly, to improperly foreclose their 1252(e)(3) claims. For these reasons, and those set forth below, Plaintiffs request that the Court issue a temporary restraining order until 48 hours after the Court rules on Plaintiffs’ motion for a preliminary injunction, and set a preliminary injunction hearing for August 17, 2018, with Defendants filing their opposition brief on or before August 9, 2018 and Plaintiffs filing their reply brief on or before August 16, 2018. 4 Case 1:18-cv-01759-PLF Document 18 Filed 08/01/18 Page 5 of 14 I. TRANSFER OF VENUE IS BARRED BY 28 U.S.C. § 1404. “Plaintiff’s choice of forum is given paramount consideration and the burden of demonstrating that an action should be transferred is on the movant.” Air Line Pilots Ass’n v. Eastern Air Lines, 672 F. Supp. 525, 526 (D.C. Cir. 1987) (internal citations omitted). Under 28 U.S.C.A. § 1404, courts have discretion to consider transferring venue “to any other district or division where it might have been brought” upon consideration of “the convenience of parties and witnesses, in the interest of justice.” However, the “movant must first show that the plaintiff could originally have brought the case in the transferee district.” Pres. Soc. of Charleston v. United States Army Corps of Eng’rs, 893 F. Supp. 2d 49, 53 (D.D.C. 2012) (citing Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)). “The movant must also show that considerations of convenience and the interest of justice weigh in favor of transfer. This second inquiry calls on the district court to weigh in the balance a number of case-specific factors, related to both the public and private interests at stake.” Id. (quotations omitted) The private-interest factors include: “(1) the plaintiff’s choice of forum; (2) the defendant’s choice of forum; (3) whether the claim arose elsewhere; (4) the convenience of the parties; (5) the convenience of the witnesses; and (6) the ease of access to sources of proof.” Id. at 54 (citations omitted). The public-interest factors include: “(1) the transferee’s familiarity with the governing laws; (2) the relative congestion of the calendars of the transferor and transferee courts; and (3) the local interest in having local controversies decided at home.” Id. Defendants have made no showing as to these private- or public-interest factors. Plaintiffs are currently located in Texas, where their claims arose. Defendants, their counsel, and Plaintiff’s counsel, are located in the District of Columbia. None of the private- or public-interest factors support transfer to California. The fact that Judge Sabraw approved an “Election Form” to 5 Case 1:18-cv-01759-PLF Document 18 Filed 08/01/18 Page 6 of 14 notify parents in Ms. L of their reunification rights does not somehow prevent other Courts from considering the entirely different legal issue – that Judge Sabraw has not considered and has not been asked to consider – of whether the plain language of the Election Form somehow justifies Defendants’ policy of depriving children of the right to petition for asylum. Indeed, this Court has held that where, as here, plaintiffs challenge a policy issued by an agency headquartered in the District of Columbia, “this factor weighs against transfer.” Ravulapalli v. Napolitano, 773 F. Supp. 2d 41, 56 (D.D.C. 2011) (“[I]t appears that officials at the USCIS Texas Service Center denied Plaintiffs’ I-485 applications based on policy guidance issued from USCIS headquarters in the District of Columbia. Because Plaintiffs are challenging the application of those policies, this factor weighs against transfer.”). Id. More fundamentally, Defendants cannot cross the initial threshold of establishing that Plaintiffs’ claims “might have been brought” in the Southern District of California. 28 U.S.C.A. § 1404. The Supreme Court has held that courts’ discretion to transfer cases is “expressly limited by the final clause of § 1404(a) restricting transfer to those federal districts in which the action ‘might have been brought.’” Van Dusen, 376 U.S. at 616. The Supreme Court held that the words “where it might have been brought” “must be construed with reference to the federal laws delimiting the districts in which such an action ‘may be brought.’” Id. at 624. Here, among other claims, Plaintiffs assert claims based on the jurisdiction conferred by Congress in 8 U.S.C. § 1252(e)(3). That statute “delimit[s] the districts” in which such claims may be brought to a single court: “the United States District Court for the District of Columbia.” See 8 U.S.C. § 1252(e)(3)(A). In fact, Defendants themselves have argued in Ms. L that Judge Sabraw “lacks jurisdiction” to grant a stay of removal for Ms. L class members because the INA “strips district courts of jurisdiction to enjoin execution of a final expedited removal order.” Defs.’ Opp’n to 6 Case 1:18-cv-01759-PLF Document 18 Filed 08/01/18 Page 7 of 14 Mot. for TRO at 4-5, Ms. L. v. ICE, No. 18-cv-428 (S.D. Cal. July 24, 2018), ECF No. 148 (citing 8 U.S.C. §§ 1252(a)(2)(A)(i), 1252(e)(1), (2), (4)). They would no doubt make the same argument in this case if it is transferred to Judge Sabraw, who has no jurisdiction to hear Plaintiffs’ claims under the 8 U.S.C. § 1252(e)(3) exception. Plaintiffs’ claims based on this statute could not “have been brought” in the United States District Court for the Southern District of California, and therefore transfer is not authorized under 28 U.S.C.A. § 1404 without Plaintiffs’ consent, which Plaintiffs’ do not provide. Cf. Commercial Lighting Products, Inc. v. U.S. District Court, 537 F.2d 1078 (9th Cir.) (issuing writ of mandamus to vacate district court transfer order where plaintiff could not have brought the action in the transferee court). Because transfer is clearly barred under 28 U.S.C.A. § 1404, Plaintiffs anticipate that Defendants will attempt to contort this briefing, ostensibly on Defendants’ motion for a temporary restraining order, into an improper motion to dismiss Plaintiffs’ claims under 8 U.S.C. § 1252(e)(3). This Court should decline Defendants’ invitation to transfer this case because doing so would be tantamount to outright dismissal of Plaintiffs’ well-pleaded claims under 8 U.S.C. § 1252(e)(3), with no briefing or hearing as to the legal merit of those claims, and prior to the discovery Plaintiffs ultimately will seek to prove those claims. Surprisingly, Defendants argued at the July 31, 2018, hearing that Plaintiffs could not establish the existence of a written document reflecting Defendants’ written policy. Yet just the day before the hearing, Defendants submitted written briefs to this Court and to Judge Sabraw that concede the existence of that unlawful policy. See, e.g., Resp. to July 30, 2018 Letter at 4, ECF No. 169, Ms. L. v. ICE, No. 18-cv-428 (S.D. Cal. July 30, 2018) (“Such an election to take my child with me clearly reflects a decision by the parent that they are to be removed with their child, which necessarily includes 7 Case 1:18-cv-01759-PLF Document 18 Filed 08/01/18 Page 8 of 14 not separately asserting immigration claims for their child.”) (emphasis added) (internal quotations omitted). There is no dispute as to the existence of Defendants’ policy, which is memorialized in numerous written documents referenced in the Complaint, and confirmed through a uniform and consistent course of conduct of affirmatively denying asylum process to Plaintiffs and hundreds of other children like them. See, e.g., Compl., ECF No. 4, at ¶¶ 41-44, 59-62. A motion for a temporary restraining order is not the proper procedural posture to litigate dismissal, particularly without any briefing on the legal merit of Plaintiffs’ claims. Plaintiffs cannot anticipate in advance what legal arguments Defendants might raise in the brief they will submit today to attempt to convince the Court that Plaintiffs’ well-pleaded claims under 8 U.S.C. § 1252(e)(3) should be dismissed for lack of jurisdiction. There should be no real dispute that this Court has jurisdiction to consider Plaintiffs’ claims under 8 U.S.C. § 1252(e)(3). Nevertheless, if the Court is willing to entertain argument as to the jurisdiction or legal merit of those claims, Plaintiffs submit that the proper course of action is to issue a temporary restraining order so that the parties can properly brief and argue those issues. Plaintiffs also would request the Court to order expedited jurisdictional discovery prior to such briefing, as other courts have recently done in removal cases. See Alam v. Nielsen, No. 4:18-CV-680, 2018 WL 1531732, at *3 (S.D. Tex. Mar. 26, 2018); Hamama v. Adducci, No. 17-CV-11910, 2017 WL 2684477, at *3 (E.D. Mich. June 22, 2017); see also United States v. United Mine Workers of Amer., 330 U.S. 258, 290 (1947) (Courts have “the power to issue a restraining order for the purpose of preserving existing conditions pending a decision upon its own jurisdiction.”). 8 Case 1:18-cv-01759-PLF Document 18 Filed 08/01/18 Page 9 of 14 II. PLAINTIFFS’ CLAIMS ARE NOT BEFORE JUDGE SABRAW. Defendants ignore the fact that transfer is barred by 28 U.S.C. § 1404, and instead cite the “first to file” rule. Setting aside the fact that the “first to file” rule does not supersede federal law, the rule simply does not apply here in any event. The “first to file rule” applies “only when two cases between the same parties and on the same cause of action are commenced in two different Federal courts.” Nat’l Indus. for Blind v. Dep’t of Veterans Affairs, 296 F. Supp. 3d 131, 138 (D.D.C. 2017) (internal quotations omitted) (rejecting application of the rule). Ms. L is fundamentally different than this case, with entirely different plaintiffs and entirely different claims. Ms. L involves a class of parents seeking an injunction requiring Defendants to provide reunification with their children. This case involves a class of children4 seeking an injunction requiring Defendants to provide asylum rights after reunification – an issue not presently before Judge Sabraw. The relief requested here, moreover, is perfectly consistent with the relief in Ms. L. And contrary to the government’s claim, there is no risk that this case would “affirmatively interfere with the Ms. L litigation.” See Opp’n at 6. Ms. L is a case about reunification. There, a class of migrant parents challenged the forcible separation from their children and sought a preliminary injunction requiring reunification. Ms. L v. U.S. Immigration and Customs Enforcement, et al., 310 F. Supp. 3d 1133, at *2 (S.D. Cal., June 26, 2018). The Court agreed that the separation likely violated the parents’ due process rights to family integrity and entered a preliminary injunction for the entire class. Id. at *8-9. Consistent with the parents’ claims, that injunction dealt with reunification only. Specifically, it provided the following relief: 4 The fact that the Plaintiff children in this case are bringing the lawsuit through a parent does not change result. See Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 16 (D.D.C. 2010) (finding that a next friend does not become a party to the action, but instead pursues the cause on behalf of the real party in interest). 9 Case 1:18-cv-01759-PLF Document 18 Filed 08/01/18 Page 10 of 14 (1) enjoined the government from detaining Ms. L class members apart from their minor children (unless there was a determination that the parent was unfit or presented a danger to the child), (2) required the release of minor children to the custody of their parents to the extent the parent was released from DHS custody; (3) required the reunification of all class members and their minor children within either 14 or 30 days, depending on the age of the child (unless there was a determination the parent was unfit or presented a danger to the child); (4) required the government to take all steps necessary to facilitate communication between class members and their children; (5) required the government take all steps necessary to facilitate the regular communication between all agency responsible for the custody of class members and their children; and (6) enjoined the government from removing class members without their child, unless the class member voluntarily declined to be reunited prior to the class member’s deportation (or unless there was a determination the parent was unfit or presented a danger to the child). Id. at *11-12, ¶¶ (1)-(6). The preliminary injunction order gave no indication of what asylum procedures should be required after reunification. This was not a mere oversight; the issue simply was not before the court. The sole focus was on reunifying parents and children and vindicating the right to family integrity. Cf. Opp’n at 9 (“[W]hat [Ms. L] has always been about is the due process right to family integrity.” (quoting July 28, 2018 Status Conf. Tr. 39:19-40:2, Exhibit 1 to Defs.’ Opp’n)). Unlike Ms. L, this is a case about the asylum rights of children after reunification. The plaintiffs in this case claim that, after reunification, they and other children are legally entitled to certain procedures before being deported. See, e.g., Compl. ¶ 51, 59, 112. This is a new claim that is not at issue in Ms. L. But nothing about this claim is inconsistent with the claims in Ms. L or the preliminary injunction entered by Judge Sabraw. In fact, the plaintiffs in this case seek to 10 Case 1:18-cv-01759-PLF Document 18 Filed 08/01/18 Page 11 of 14 have parents and children remain together while the children access the required asylum procedures. Id. at 40-41, ¶¶ (a)-(c). This is perfectly consistent with both the letter and spirit of the preliminary injunction in Ms. L. This is also what distinguishes this case from N.T.C. and E.S.R.B., two cases that were recently transferred to Judge Sabraw from the Southern District of New York. Both N.T.C. and E.S.R.B. were filed by minor children prior to reunification and sought relief before reunification. The plaintiffs in N.T.C. were minor children who had been separated from their parents but were still in the custody of the Office of Refugee Resettlement (“ORR”) within New York State. In other words, they had not yet been reunified pursuant to Ms. L. The N.T.C. complaint sought an order “enjoining Defendants from taking any action to remove children from New York State” without meaningful notice, so that the plaintiffs could consult with family and counsel “before a relocation is effectuated.” Class Action Compl. at 4, N.T.C. v. ICE, No. 1:18-cv-06428-JMF (S.D.N.Y. July 18, 2018), ECF No. 1 (emphasis added). Since being transferred to the Southern District of California, the N.T.C. plaintiffs have not filed any motions before Judge Sabraw. See N.T.C. v. ICE, 3:18-cv-1626-DMS-JLB (S.D. Cal.).5 Similarly, the plaintiffs in E.S.R.B. were children in the custody of ORR who had “received notice via counsel of their impending reunification with the parents.” See Ex. 1 ¶ 1 (Complaint in E.S.R.B. v. Sessions, No. 3:18-cv-1699-DMS-MDD). Like the plaintiffs in N.T.C., they had not yet been reunified pursuant to Ms. L. The E.S.R.B. complaint asked that the plaintiffs get “the opportunity to consult, in a meaningful manner, with their parents,” id., and 5 It appears that a third case was also transferred to Judge Sabraw, though it does not yet appear on the docket. A recent docket entry in both N.T.C. and E.S.R.B. indicates that the parties in the third case are to work on a “stipulation to provide that [the plaintiffs] not be removed from New York.” See Minute Entry, ECF No. 38, N.T.C. v. ICE, 3:18-cv-1626-DMS-JLB (S.D. Cal. July 27, 2018). Thus, the third case also appears to involve plaintiffs who have yet to be reunified. 11 Case 1:18-cv-01759-PLF Document 18 Filed 08/01/18 Page 12 of 14 asked the court to “[e]njoin [the government] from moving the Petitioners form the New York City area while habeas proceedings are pending.” Id. at 35. Since being transferred to the Southern District of California, the E.S.R.B. plaintiffs have not filed any motions before Judge Sabraw. E.S.R.B. v. Sessions, 3:18-cv-1699-DMS-MDD (S.D. Cal.). Both N.T.C. and E.S.R.B. were filed by minor children before they were reunified with their parents. And both cases sought relief that could delay the principal relief ordered in Ms. L: immediate reunification. Because the relief sought directly affected the relief ordered in Ms. L, it made sense that the cases should be transferred to Judge Sabraw. This case is different. Plaintiffs already have been reunified. They are seeking different relief than what was being sought in N.T.C. and E.S.R.B. And the relief they seek is entirely consistent with what the Ms. L court has ordered. The government’s attempt to use the “Election Form” to bar Plaintiffs’ claims in this case does nothing to change this analysis. As the government conceded in a Ms. L filing last week, the Election Form has nothing to do with children’s asylum rights. The government’s filing says that the Election Form was intended as a way to “implement paragraph 6” of the preliminary injunction order, which allows parents to voluntarily waive their rights to reunification. Defs.’ Opp. to Mot. for Stay of Removal, ECF No. 148 at 3, Ms. L v. ICE, 3:18-cv-428-DMS-MDD. As the government itself acknowledged, the Election Form was part of a process – including class notice – that would allow parents to decide “whether to waive reunification prior to removal” (emphasis added). Id. at 3-4. This is consistent with the form itself, which says nothing about the waiver of children’s rights to asylum, or even what those rights might be. Plaintiffs in this case do not challenge using the Election Form to determine whether a parent waived their own right to reunification. 12 Rather, Plaintiffs simply dispute the Case 1:18-cv-01759-PLF Document 18 Filed 08/01/18 Page 13 of 14 government’s untenable position that the Election Form somehow constitutes a knowing and voluntary waiver of children’s rights that are not mentioned anywhere on the face of the document.6 That issue is not before Judge Sabraw. The issue before this Court is whether Defendants’ policy of denying Plaintiffs, and the hundreds of children like them, their statutory right to petition for asylum is unlawful. Because that issue is not before Judge Sabraw, there is no risk of inconsistent rulings, and no reason that adjudication of Plaintiffs’ claims by this Court would “interfere with the Ms. L litigation.” Opp’n, ECF No. 15, at 6. CONCLUSION For the reasons set forth above, Plaintiffs request that the Court issue a temporary restraining order until 48 hours after the Court rules on Plaintiffs’ motion for a preliminary injunction, and set a preliminary injunction hearing for August 17, 2018, with Defendants filing their opposition brief on or before August 9, 2018 and Plaintiffs filing their reply brief on or before August 16, 2018. August 1, 2018 HOGAN LOVELLS US LLP /s/ Justin Bernick Justin W. Bernick (DC Bar No. 988245) 555 Thirteenth Street, NW Washington, DC 20004 Telephone: (202) 637-5600 Facsimile: (202) 637-5910 justin.bernick@hoganlovells.com 6 Waivers must be knowing and voluntary. “Knowing” requires “full awareness of the nature of the right being abandoned and the consequences of the decision to waive it.” United States v. Yunis, 859 F.2d 953, 965 (D.C. Cir. 1988). “Voluntary” means “the product of a free and deliberate choice rather than intimidation, coercion, or deception.” Id. The notices here do not even mention waiving children’s rights. At least as to waiver of a child’s asylum rights, the notice is “not worth the paper it is written on.” Cf. M.G.U., et al., v. Kirstjen Nielsen, et al., Civ. No. 18-cv-1458 (PLF), ECF No. 44 at 5 (D.D.C. July 16, 2018). 13 Case 1:18-cv-01759-PLF Document 18 Filed 08/01/18 Page 14 of 14 *Oliver J. Armas *Ira M. Feinberg 875 Third Avenue New York, NY 10022 Telephone: (212) 918-3000 Facsimile: (212) 918-3100 oliver.armas@hoganlovells.com ira.feinberg@hoganlovells.com *Katherine A. Nelson 1601 Wewatta Street, Suite 900 Denver, CO 80202 Telephone: (303) 899-7300 Facsimile: (303) 899-7333 katherine.nelson@hoganlovells.com *admitted pro hac vice Counsel for Plaintiffs 14 Case Document 18-1 Filed 08/01/18 Page 1 of 38 EXHIBIT 1 Case 1:18-cv-01759-PLF Document 18-1 Filed 08/01/18 Page 2 of 38 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 1:18-cv-01759-PLF Document 18-1 Filed 08/01/18 Page 3 of 38 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 1:18-cv-01759-PLF Document 18-1 Filed 08/01/18 Page 4 of 38 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 1:18-cv-01759-PLF Document 18-1 Filed 08/01/18 Page 5 of 38 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 1:18-cv-01759-PLF Document 18-1 Filed 08/01/18 Page 6 of 38 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 1:18-cv-01759-PLF Document 18-1 Filed 08/01/18 Page 7 of 38 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 1:18-cv-01759-PLF Document 18-1 Filed 08/01/18 Page 8 of 38 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 1:18-cv-01759-PLF Document 18-1 Filed 08/01/18 Page 9 of 38 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 1:18-cv-01759-PLF Document 18-1 Filed 08/01/18 Page 10 of 38 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 1:18-cv-01759-PLF Document 18-1 Filed 08/01/18 Page 11 of 38 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 1:18-cv-01759-PLF Document 18-1 Filed 08/01/18 Page 12 of 38 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 1:18-cv-01759-PLF Document 18-1 Filed 08/01/18 Page 13 of 38 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 1:18-cv-01759-PLF Document 18-1 Filed 08/01/18 Page 14 of 38 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 1:18-cv-01759-PLF Document 18-1 Filed 08/01/18 Page 15 of 38 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 1:18-cv-01759-PLF Document 18-1 Filed 08/01/18 Page 16 of 38 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 1:18-cv-01759-PLF Document 18-1 Filed 08/01/18 Page 17 of 38 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 1:18-cv-01759-PLF Document 18-1 Filed 08/01/18 Page 18 of 38 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 1:18-cv-01759-PLF Document 18-1 Filed 08/01/18 Page 19 of 38 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 1:18-cv-01759-PLF Document 18-1 Filed 08/01/18 Page 20 of 38 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 1:18-cv-01759-PLF Document 18-1 Filed 08/01/18 Page 21 of 38 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 1:18-cv-01759-PLF Document 18-1 Filed 08/01/18 Page 22 of 38 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 1:18-cv-01759-PLF Document 18-1 Filed 08/01/18 Page 23 of 38 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 1:18-cv-01759-PLF Document 18-1 Filed 08/01/18 Page 24 of 38 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 1:18-cv-01759-PLF Document 18-1 Filed 08/01/18 Page 25 of 38 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 1:18-cv-01759-PLF Document 18-1 Filed 08/01/18 Page 26 of 38 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 1:18-cv-01759-PLF Document 18-1 Filed 08/01/18 Page 27 of 38 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 1:18-cv-01759-PLF Document 18-1 Filed 08/01/18 Page 28 of 38 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 1:18-cv-01759-PLF Document 18-1 Filed 08/01/18 Page 29 of 38 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 1:18-cv-01759-PLF Document 18-1 Filed 08/01/18 Page 30 of 38 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 1:18-cv-01759-PLF Document 18-1 Filed 08/01/18 Page 31 of 38 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 1:18-cv-01759-PLF Document 18-1 Filed 08/01/18 Page 32 of 38 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 1:18-cv-01759-PLF Document 18-1 Filed 08/01/18 Page 33 of 38 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 1:18-cv-01759-PLF Document 18-1 Filed 08/01/18 Page 34 of 38 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 1:18-cv-01759-PLF Document 18-1 Filed 08/01/18 Page 35 of 38 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 1:18-cv-01759-PLF Document 18-1 Filed 08/01/18 Page 36 of 38 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 1:18-cv-01759-PLF Document 18-1 Filed 08/01/18 Page 37 of 38 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 1:18-cv-01759-PLF Document 18-1 Filed 08/01/18 Page 38 of 38 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 Case 1:18-cv-01759-PLF Document 18-2 Filed 08/01/18 Page 1 of 1 CERTIFICATE OF SERVICE I hereby certify that I filed the foregoing PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER with the Clerk of the Court through the ECF system on August 1, 2018. This system provided a copy to and effected service of this document on all parties. By: /s/ Justin Bernick Justin Bernick (DC Bar No. 988245)