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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
M.M.M., ON BEHALF OF HIS MINOR
CHILD, J.M.A., ET AL.,

)
)
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Plaintiffs,
)
)
v.
)
)
JEFFERSON BEAUREGARD SESSIONS, )
III, ATTORNEY GENERAL OF THE
)
UNITED STATES, ET AL.,
)
)
Defendants.
)
_____________________________________ )

No. 1:18-cv-1759 (PLF)

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION
FOR TEMPORARY RESTRAINING ORDER
The Court should deny a temporary restraining order and transfer this case to the Southern
District of California so that it can be considered together with Ms. L v. ICE, No. 18-428 (S.D.
Cal.) (Sabraw, J.), a certified class action involving claims, issues, relief, and parties that
substantially overlap with this case and in which, over a month ago, the district court issued a
preliminary injunction that the present case, if permitted to proceed, will undermine and obstruct.
In Ms. L, Judge Sabraw certified a nationwide class of parents of minor children separated at the
border and entered an order requiring that those families be reunified. That court-ordered
reunification process has progressed quickly under Judge Sabraw’s orders and oversight, and
multiple judges have recognized that cases raising claims and issues that overlap with Ms. L should
be transferred to Judge Sabraw. During the reunification ordered by Judge Sabraw, two groups of
children—including one putative class—filed suits in the Southern District of New York seeking
to halt reunifications due to the impact that those reunifications would have on the children’s
immigration proceedings. The Southern District of New York transferred those actions to the

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Southern District of California to be considered in conjunction with the interests of Ms. L class
member parents in pursuing the reunification order.
This Court should do the same thing here. In this case, a putative class of parents, on behalf
of their children, which essentially parallels the certified class of parents in Ms. L, seeks relief from
removal on behalf of themselves and their parents. This relief overlaps with the multiple suits now
before the Southern District of California—and indeed challenges the reunification requirements
and process ordered and authorized by that court. This Court should promptly transfer this case
so that the claims can be considered together with the claims of the certified class of parents in Ms.
L, and to avoid imposing inconsistent and conflicting obligations on the government. The relief
sought here is fundamentally inconsistent with the claims in Ms. L, where the parents pressed a
theory that they are entitled to be detained with, and have immigration-removal decisions made
together with, their children. Having received that relief, and there having been no showing that
reunified parents are unfit or otherwise not entitled to act on behalf of their children, claims that
are purportedly brought on behalf of their children should not be separately considered in this
action.
LEGAL STANDARD
Preliminary relief is appropriate only if a plaintiff demonstrates that: (1) he is substantially
likely to succeed on the merits; (2) he will be irreparably injured if an injunction is not granted;
(3) preliminary relief will not substantially injure the defendant; and (4) preliminary relief furthers
the public interest. Barton v. District of Colum., 131 F. Supp. 2d 236, 241 (D.D.C. 2001) (quoting
Mova Pharmaceutical Corp. v. Shalala, 140 F.3d 1060, 1066 (D.C. Cir. 1998)). When a plaintiff
seeks preliminary relief, he must “demonstrate that irreparable injury is likely in the absence of an
injunction.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (emphasis in original).

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The “D.C. Circuit ‘has set a high standard for irreparable injury.’” Jones v. D.C., 177 F. Supp. 3d
542, 545 (D.D.C. 2016) (quoting Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290,
297 (D.C. Cir. 2006)). To meet this standard, “[t]he injury must be both certain and great; it must
be actual and not theoretical.” Id. (quoting Chaplaincy, 454 F.3d at 297).
ARGUMENT
Plaintiffs seek a temporary restraining order barring Defendants from removing “all noncitizen children, and the parents or guardians of such children, who were separated upon entry into
the United States.” Mem. 27. This Court should deny that relief. First, this Court should not
entertain this suit at all because it would obstruct and undermine a class-wide preliminary
injunction, entered in the Southern District of California in Ms. L, that involves claims, issues,
relief, and parties that overlap with this case. 1 As other courts have done in recent days, this Court
should transfer this case to the Southern District of California to promote the orderly and consistent
administration of the issues and claims presented in these cases. Second, this Court lacks
jurisdiction to grant the stay of removals that Plaintiffs request. The Immigration and Nationality
Act (INA) bars district courts from enjoining the execution of removal orders.
A. This Court Should Deny a TRO and Immediately Transfer this Case Because the
Requested Relief Would Interfere with an Injunction in an Ongoing Case that
Involves Overlapping Claims, Issues, Relief, and Parties.
The TRO should be denied—and the case should be transferred to the Southern District of
California—because a TRO would overlap and interfere with the reunification process being
administered by Judge Sabraw in Ms. L. Judge Sabraw has ordered and is overseeing relief on the
claims of a certified class of the parents seeking relief on behalf of the putative class here with

While the majority of the Ms. L. class members have been reunified either in ICE custody or in
the interior of the United States, the federal government is still reunifying some class members,
including those removed from the United States, as they become eligible or available.
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respect to their custody and removal. Absent a severing of parental rights, those parents are entitled
to act on behalf of their children in litigation—including by seeking reunification and departure
from the United States as a family unit rather than separate immigration proceedings for the parent
and child, as a UAC. Judge Sabraw is also considering the very issues presented here in connection
with a putative class action filed on behalf of children in New York that directly overlaps with the
putative class here. This class claim must also be promptly transferred to Judge Sabraw’s court to
consider the request for injunctive relief.
The “usual rule” in this Circuit is that ‘[w]here two cases between the same parties on the
same cause of action are commenced in two different Federal courts, the one which is commenced
first is to be allowed to proceed to its conclusion first.” UtahAmerican Energy, Inc. v. Dep’t of
Labor, 685 F.3d 1118, 1124 (D.C. Cir. 2012) (quoting Wash. Metro. Area Transit Auth. v.
Ragonese, 617 F.2d 828, 830 (D.C. Cir. 1980)). The D.C. Circuit follows this rule because
“[c]onsiderations of comity and orderly administration of justice dictate that two courts of equal
authority should not hear the same case simultaneously.” Id. (quoting Wash. Metro., 617 F.2d at
830); see Colo. River Water Conservation District v. United States, 424 U.S. 800, 817 (1976) (“As
between federal district courts . . . the general principle is to avoid duplicative litigation.”);
Crawford v. Bell, 599 F.2d 890, 892 (9th Cir. 1979) (dismissal appropriate where “the complainant
is a member in a class action seeking the same relief”).
That rule supports transferring this case to the Southern District of California. Plaintiffs
seek an order that, if granted, would interfere with ongoing litigation in another court. In Ms. L.,
the Southern District of California approved the use of an “Election Form,” which allows an alien
parent to elect that, “[i]f I lose my case and am going to be removed, I would like to take my child
with me.” Notice at 2, ECF No. 97. In approving the use of the Election Form, which the class

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plaintiffs proposed in Ms. L, the Ms. L court accepted the established principle that a parent can
lawfully waive her child’s potential rights to relief, including under the immigration laws. See,
e.g., Fed. R. Civ. P. 17(c)(1). And because this action has been brought by the parents of the minor
children—see Compl. 1 & ¶ 10—who are class members in Ms. L. and have waived the rights of
their children through their class counsel and pursuant to a reunification form, the parents must
seek relief in the Southern District of California. The parents cannot seek to link their removal
orders to their children’s putative asylum claims by filing an action in another federal court. That
is, they cannot seek relief that is inconsistent with what they have already received in the Southern
District of California, and so their claims here should be rejected.
Here, Plaintiffs allege that the government has implemented a policy that unlawfully allows
a parent to waive her child’s “independent asylum and other statutory protection rights.” Mem. 7.
But the Ms. L. court has already approved the use of an Election Form—which was proposed by
the parents themselves through class counsel—under which a parent can waive her child’s separate
immigration rights. So if this Court enjoined the government from allowing a parent to waive her
child’s rights, the injunction would interfere with the Ms. L. litigation, violate principles of comity,
and undermine the orderly administration of justice.
At least two other judges have refused to hear claims that overlapped with the Ms. L claims.
In N.T.C. v. ICE, No. 18-cv-6428 (S.D.N.Y. July 19, 2018), the court found that the plaintiffs’
claims were, “at bottom, directly related to the reunification process being supervised by Judge
Sabraw [in Ms. L].” Order at 3. The court accordingly transferred the case to Judge Sabraw. And
in E.S.R.B. v. Sessions, No. 18-cv-6654 (S.D.N.Y. July 24, 2018), another judge in the Southern
District of New York reached the same conclusion and transferred the case to Judge Sabraw.

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Like the claims in the Southern District of New York cases, the claims in this case directly
relate to the reunification process that Judge Sabraw is supervising in Ms. L. If this Court were to
grant a temporary restraining order, it would affirmatively interfere with the Ms. L litigation. In
accordance with the principles of comity and orderly administration of justice, the Court should
not enter an order that would interfere with the Ms. L litigation. UtahAmerican Energy, 685 F.3d
at 1124. Instead, the Court should transfer this case to Judge Sabraw.
B. This Court Lacks Jurisdiction Over This Case.
As discussed above, the Court should decline jurisdiction because “a complaint involving
the same parties and issues has already been filed in another district.” Apple Inc. v. Psystar Corp.,
658 F.3d 1150, 1161 (9th Cir. 2011). “The well-established rule is that, in cases of concurrent
jurisdiction, the first court in which jurisdiction attaches has priority to consider the case.” Entines
v. United States, 495 F. Supp. 2d 84, 85 (D.D.C. 2007). Because the Ms. L case was filed before
this one, and because it raises the same issues and involves many of the same parties as this case,
the Court should decline jurisdiction pursuant to the first-to-file rule.
Even if the Court did not decline jurisdiction pursuant to the first-to-file rule, it would lack
jurisdiction to grant the stay of removal that Plaintiffs request. The Immigration and Nationality
Act (INA) deprives district courts of jurisdiction to enjoin the execution of a final expedited
removal order, see 8 U.S.C. §§ 1252(a)(2)(A)(i), 1252(e)(1), (2), (4), and more generally forbids
district courts from hearing any cause or claim that arises from the government’s “decision or
action . . . [to] execute removal orders,” id. § 1252(g). These provisions foreclose the stay of
removal that Plaintiffs request.
Plaintiffs allege that the government has implemented an unlawful “policy of denying
[them] their rights to pursue asylum in the United States.” Mem. 11. Plaintiffs claim that they are

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challenging this alleged new policy under 8 U.S.C. § 1252(e)(3). Under that provision, a party
may assert a claim that “a written policy directive, written policy guideline, or written procedure
. . . to implement [8 U.S.C. § 1225(b)], is not consistent with applicable [law].” Such a claim must
be brought “no later than 60 days after the date the challenged . . . directive, guideline, or procedure
. . . is implemented.” 8 U.S.C. § 1252(e)(3)(B).
Plaintiffs do not identify any specific written document that implements § 1225(b) and was
issued in the past 60 days. Because section 1252(e)(3) applies only with respect to a written
document that was issued in the past 60 days, Plaintiffs do not properly invoke section 1252(e)(3).
And to the extent that Plaintiffs challenge an unwritten policy or practice, section 1252(e)(3) does
not apply. AILA v. Reno, 18 F. Supp. 2d 38, 58 (D.D.C. 1998) (“[B]ased on the clear language of
the jurisdictional provision of § 242(e)(3)(A)(ii), this Court cannot review unwritten policies or
practices . . . .”). Plaintiffs’ § 1252(e)(3) claim is not likely to succeed on the merits.
Plaintiffs also allege that “DHS, ICE and other Defendants promulgated, at some point
after June, 2018, internal written directives implementing the reunification order in Ms. L and
Executive Order 13841.” Compl. ¶ 62. Plaintiffs go on to allege that these directives “ordered
DHS and ICE personnel to effectuate the deportation of families as soon as practically possible
following reunification by securing the parent’s agreement to be deported with their child,
extracting the child from removal proceedings under Section 240, and placing the child back in
the custody of the parent so that they could be prepared for immediate deportation.” Id. The
complaint further alleges that the challenged policy “of denying Plaintiffs their rights to pursue
asylum . . . is reflected in written statements and directives included but not limited to the DHS
Fact Sheet . . . .” Compl. ¶ 132. In substance, Plaintiffs challenge: (1) the fact that after Defendants
reunified alien minors with their parents, Defendants cancelled notices to appear that it had issued

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to the minors on the premise that they were “unaccompanied;” and (2) the process by which a
parent with a final expedited order of removal may elect to be removed from the United States
with her child, notwithstanding the child’s assertion that she has a credible fear. Mem. 5, 8.
Plaintiffs fail to state a claim under section 1252(e)(3), and are not likely to succeed on the
merits of that claim. Other than issuing documents needed to implement the injunction – which
can’t form the basis of a case under section 1252(a)(3) – Plaintiffs do not allege that there are any
guidance or policies that have been issued in the last 60 days under the Executive Order or
otherwise, and there are none. The DHS Fact Sheet that Plaintiffs reference is not new guidance.
Indeed, Defendants’ compliance with the court’s Order in Ms. L is not the type of new policy or
directive that is subject to challenge only in this district under section 1252(e)(3). Allowing
Plaintiffs’ claim to proceed on that basis only opens the door to improper horizontal appeals of the
decisions of other district courts.
The practices that Plaintiffs now challenge derive from two separate and hardly novel
policies.

First, permitting parents to make decisions on behalf of their children reflects

longstanding precepts regarding parental rights. In fact, recognition of those parental rights is what
permits the parents of the six named Plaintiffs to bring this lawsuit on the Plaintiffs’ behalf. See
Fed. R. Civ. P. 17. Such parental rights were also recognized by a now rescinded August 23, 2013
Immigration and Customs Enforcement internal directive entitled “Facilitating Parental Interests
in the Course of Civil Immigration Enforcement Activities,” which defined parental rights as “[t]he
fundamental rights of parents to make decisions concerning the care, custody, and control of their
minor children without regard to the child’s citizenship, as provide for and limited by applicable
law.” United States v. Dominguez-Portillo, No. EP-17-MJ-4409-MAT, 2018 WL 315759, at *11

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(W.D. Tex. Jan. 5, 2018).2 Judge Sabraw’s own statements reflect his acknowledgment of parental
rights in this very context. See Exhibit 1, Ms. L, No. 18-cv-428, July 28, 2018 Status Conf. Tr.
39:19-40:2 (“But under the law what matters in the parent. I mean, what this case has always been
about is the due process right to family integrity. . . . And it is the parent that makes the decisions.
In a perfect world it could be a family decision, but the child’s view, under the law, doesn’t matter.
It is the parent’s view, ultimately, whether to remove together or separately.”). In any event, the
UAC provisions and procedures were designed to address unaccompanied minors, and are not
appropriate when a parent has custody of, and to act for and make decisions on behalf of, the child.
See 6 U.S.C. § 279(g) (UAC provisions apply only when “no parent or legal guardian is available
to provide care and physical custody”). And Judge Sabraw is currently considering the impact of
his injunction with respect to children, given the requests before him with respect to a stay of
removal to permit reunified families to confer and the transferred class action from New York.
These are issues that relate to injunction compliance and implementation; accordingly, Plaintiffs’
§ 1252(e)(3) claim is not likely to succeed on the merits.
C. Plaintiffs Are Not Entitled to Classwide Relief.
Here, Plaintiffs’ only attempt to distinguish this action from Ms. L is Plaintiffs’ claim under
§ 1252(e)(3). Even if Plaintiffs properly invoked § 1252(e)(3), they would not be entitled to relief
beyond the named Plaintiffs. Section 1252(e)(1)(B) provides that “no court may . . . certify a class
under Rule 23 of the Federal Rules of Civil Procedure in any action for which judicial review is
authorized under a subsequent paragraph of this subsection.” Accordingly, for a § 1252(e)(3)
claim (a claim for which judicial review is authorized under a paragraph of subsection (e) that is

2

That directive was superseded on August 29, 2017 by a directive entitled “Detention and Removal
of Alien Parents or Legal Guardians.” See https://www.ice.gov/doclib/detentionreform/pdf/directiveDetainedParents.pdf (last visited July 29, 2018).
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subsequent to paragraph (e)(1)), a court may not certify a class action. If the Court issues a
temporary restraining order, the order should grant relief only to the named Plaintiffs. 8 U.S.C.
§ 1252(e)(1)(B).
Dated: July 30, 2018

Respectfully submitted,

CHAD A. READLER
Acting Assistant Attorney General
Civil Division

/s/ Jeffrey S. Robins
JEFFREY S. ROBINS
Assistant Director
U.S. Department of Justice, Civil Division
Office of Immigration Litigation
District Court Section
P.O. Box 868, Washington, DC 20044
Telephone: (202) 616-1246
Facsimile: (202) 305-7000
jeffrey.robins@usdoj.gov

SCOTT G. STEWART
Deputy Assistant Attorney General
AUGUST E. FLENTJE
Special Counsel
WILLIAM C. PEACHEY
Director, Office of Immigration Litigation
District Court Section

Attorneys for Defendants

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