Case 2:18-cv-00928-MJP Document 25 Filed 08/22/18 Page 1 of 4 The Honorable Marsha J. Pechman 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 10 11 12 YOLANY PADILLA, on behalf of herself and her 6-year-old son J.A.; IBIS GUZMAN, on behalf of herself and her 5-year-old son R.G.; BLANCA ORANTES, on behalf of herself and her 8-year-old son A.M.; BALTAZAR VASQUEZ, on behalf of himself; Plaintiffs-Petitioners, v. 13 14 15 16 17 18 19 20 21 22 23 24 U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (“ICE”); U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); U.S. CITIZENSHIP AND IMMIGRATION SERVICES (“USCIS”); EXECUTIVE OFFICE FOR IMMIGRATION REVIEW (“EOIR”); U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES (“HHS”); OFFICE OF REFUGEE RESETTLEMENT (“ORR”); THOMAS HOMAN, Acting Director of ICE; KIRSTJEN NIELSEN, Secretary of DHS; KEVIN K. McALEENAN, Acting Commissioner of CBP; L. FRANCIS CISSNA, Director of USCIS; ALEX M. AZAR II, Secretary of HHS; SCOTT LLOYD, Director of ORR; MARC J. MOORE, Seattle Field Office Director;, ICE, JEFFERSON BEAUREGARD SESSIONS III, United States Attorney General; LOWELL CLARK, warden of the Northwest Detention Center in Tacoma, Washington; CHARLES INGRAM, warden of the Federal Detention Center in SeaTac, Washington; DAVID SHINN, warden of the Federal Correctional Institute in Victorville, California; No. 2:18-cv-928 MJP STIPULATION AND NOTICE REGARDING SECOND AMENDED COMPLAINT NOTE ON MOTION CALENDAR: AUGUST 22, 2018. 25 Defendants-Respondents. 26 STIPULATION AND NOTICE REGARDING SECOND AMENDED COMPLAINT NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25 Filed 08/22/18 Page 2 of 4 1 Pursuant to Local Civil Rules 7(d)(1) and 10(g), Fed. R. Civ. P. 15(a)(2), and the prior 2 stipulated schedule between the parties (Dkt. # 23) plaintiffs and defendants notify the Court that 3 plaintiffs are filing their second amended complaint with defendants’ written consent. For the 4 Court’s convenience, a copy of the second amended complaint is attached as Exhibit A and a 5 redline of the second amended complaint showing changes from the first amended complaint is 6 attached as Exhibit B. 7 8 Subsequent to this Notice, plaintiffs will file the second amended complaint with the Court’s ecf system. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 STIPULATION AND NOTICE REGARDING SECOND AMENDED COMPLAINT- 1 CASE NO. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25 Filed 08/22/18 Page 3 of 4 1 RESPECTFULLY SUBMITTED this 20th day of August, 2018. 2 3 4 s/ Matt Adams Matt Adams, WSBA No. 28287 Email: matt@nwirp.org s/ Thomas F. Ahearne Thomas F. Ahearne, WSBA #14844 Email: ahearne@foster.com s/ Glenda M. Aldana Madrid Glenda M. Aldana Madrid, WSBA No. 46987 Email: glenda@nwirp.org s/ William F. Abrams *William F. Abrams, CA Bar #88805 *Admitted pro hac vice *Email: bill.abrams@foster.com 5 6 7 8 9 10 11 12 13 14 s/ Leila Kang Leila Kang, WSBA No. 48048 Email: leila@nwirp.org NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone: (206) 957-8611 Facsimile: (206) 587-4025 Attorneys for Plaintiffs-Petitioners 15 17 18 CHAD A. READLER Acting Assistant Attorney General Civil Division 22 23 24 25 26 s/ Kevin Ormiston Kevin Ormiston, WSBA #49835 Email: kevin.ormiston@foster.com Attorneys for Plaintiffs-Petitioners 19 21 s/ Benjamin J. Hodges Benjamin J. Hodges, WSBA #49301 Email: ben.hodges@foster.com FOSTER PEPPER PLLC 1111 Third Avenue, Suite 3000 Seattle, Washington 98101-3292 Telephone: (206) 447-4400 Facsimile: (206) 447-9700 16 20 s/ Joanna Plichta Boisen Joanna Plichta Boisen, WSBA #38368 Email: Joanna.boisen@foster.com WILLIAM C. PEACHEY Director, District Court Section Office of Immigration Litigation EREZ REUVENI Assistant Director, District Court Section Office of Immigration Litigation STIPULATION AND NOTICE REGARDING SECOND AMENDED COMPLAINT- 2 CASE NO. 2:18-cv-928 MJP /s/ Lauren C. Bingham LAUREN C. BINGHAM, Fl. Bar #105745 Trial Attorney, District Court Section Office of Immigration Litigation Civil Division P.O. Box 868, Ben Franklin Station Washington, DC 20044 (202) 616-4458; (202) 305-7000 (fax) lauren.c.bingham@usdoj.gov Attorneys for Defendants-Respondents NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25 Filed 08/22/18 Page 4 of 4 1 [ CERTIFICATE OF SERVICE 2 3 I hereby certify that on August 22, 2018, I had the foregoing electronically filed with the 4 Clerk of the Court using the CM/ECF system, which will send notification of such filing to those 5 attorneys of record registered on the CM/ECF system. All other parties (if any) shall be served 6 in accordance with the Federal Rules of Civil Procedure. 7 8 s/ Benjamin J. Hodges Benjamin J. Hodges FOSTER PEPPER PLLC 1111 Third Avenue, Suite 3000 Seattle, Washington 98101-3292 Telephone: (206) 447-6282 Facsimile: (206) 447-9700 Email:ben.hodges@foster.com 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 STIPULATION AND NOTICE REGARDING SECOND AMENDED COMPLAINT- 3 CASE NO. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case Document 25-1 Filed 08/22/18 Page 1 of 85 EXHIBIT A Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 2 of 85 The Honorable Marsha J. Pechman 1 2 3 4 5 6 7 8 9 10 11 12 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SECOND AMENDED COMPLAINT - 1 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 3 of 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 YOLANY PADILLA; IBIS GUZMAN; BLANCA ORANTES; BALTAZAR VASQUEZ; Plaintiffs-Petitioners, No. 2:18-cv-928 MJP v. SECOND AMENDED U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT COMPLAINT: (“ICE”); U.S. DEPARTMENT OF HOMELAND CLASS ACTION FOR SECURITY (“DHS”); U.S. CUSTOMS AND BORDER INJUNCTIVE AND PROTECTION (“CBP”); U.S. CITIZENSHIP AND DECLARATORY RELIEF IMMIGRATION SERVICES (“USCIS”); EXECUTIVE OFFICE FOR IMMIGRATION REVIEW (“EOIR”); THOMAS HOMAN, Acting Director of ICE; KIRSTJEN NIELSEN, Secretary of DHS; KEVIN K. McALEENAN, Acting Commissioner of CBP; L. FRANCIS CISSNA, Director of USCIS; MARC J. MOORE, Seattle Field Office Director, ICE; JEFFERSON BEAUREGARD SESSIONS III, United States Attorney General; LOWELL CLARK, warden of the Northwest Detention Center in Tacoma, Washington; CHARLES INGRAM, warden of the Federal Detention Center in SeaTac, Washington; DAVID SHINN, warden of the Federal Correctional Institute in Victorville, California;JAMES JANECKA, warden of the Adelanto Detention Facility; Defendants-Respondents. 15 16 17 18 19 20 21 22 23 24 25 26 SECOND AMENDED COMPLAINT - 2 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 4 of 85 1 I. 2 1. INTRODUCTION This lawsuit initially challenged the legality of the following three parts of the 3 federal government’s zero-tolerance policy with respect to persons fleeing for safety and asylum 4 in the United States: (1) family separations, (2) credible fear interviews and determinations, and 5 (3) the related bond hearings. 6 A. 7 Family Separations 2. This lawsuit previously challenged the legality of the government’s zero-tolerance 8 practice of forcibly ripping children away from parents seeking asylum. The day after plaintiffs 9 filed this suit in the Western District of Washington, however, a federal court in the Southern 10 District of California issued a nationwide preliminary injunction Order against this forcible 11 separation. (Ms. L v. ICE, S.D.Cal. case no. 18cv0428 DMS (MDD), docket no. 83). 12 3. With this Second Amended Complaint, plaintiffs confirm that they will not 13 further pursue those claims in this case. 14 B. 15 Credible Fear Interviews & Determinations 4. This lawsuit challenges the legality of the government’s policy or practice of 16 excessively prolonging the detention of asylum seekers placed in expedited removal proceedings 17 by failing to promptly provide them their credible fear interview and determination. Federal law 18 requires that persons who have asked for asylum or expressed a fear of persecution must be 19 scheduled for a “credible fear interview” with a DHS official to determine whether that person 20 should be allowed to proceed with applying for asylum because he or she has a credible fear of 21 persecution. If the interviewer determines the asylum seeker does have a credible fear of 22 persecution, the government assigns the case to the federal immigration court for hearings to 23 adjudicate the merits of that person’s asylum claim. If the interviewer determines the asylum 24 seeker does not have a credible fear of persecution, the asylum seeker can appeal that 25 determination to a federal immigration judge. But in either case, the federal government detains 26 the asylum seeker until it determines that she or he has a credible fear of persecution. The Ms. L SECOND AMENDED COMPLAINT - 3 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 5 of 85 1 v. ICE Order did not address the federal government’s lengthy delays in conducting these 2 statutorily required credible fear interviews and or determinations. 3 C. Bond Hearings 5. 4 This lawsuit also challenges the legality of the government’s related policy or 5 practice of excessively prolonging the detention of asylum seekers by failing to promptly 6 conduct the bond hearings required by federal law after an asylum seeker’s positive completion 7 of their credible fear interview. Federal law requires that if an asylum seeker enters the United 8 States at a location other than a designated “Port Of Entry” and is determined to have a credible 9 fear of persecution in his or her credible fear interview, that asylum seeker is entitled to an 10 individualized bond hearing before an immigration judge to determine reasonable conditions for 11 that person’s release from federal detention while he or she awaits the many months it takes to 12 adjudicate his or her asylum claim (e.g., a reasonable bond amount or parole without posting a 13 monetary bond). This bond hearing must comport with constitutional requirements. Yet the 14 government does not establish any timeline for setting this hearing, and as a matter of practice, 15 does not even audio record or provide a transcript of this hearing for appeal or appellate review 16 (unlike other hearings in removal proceedings before the immigration judge). The government 17 also places the burden on asylum seekers to demonstrate in the bond hearing that they should not 18 continue to be detained throughout the lengthy immigration proceedings. When an immigration 19 judge denies bond, the immigration judge routinely fails to make specific findings but instead 20 simply checks a box on a template order. The Ms. L v. ICE Order did not address the federal 21 government’s failure to conduct prompt bond hearings that comport with constitutional 22 requirements. 23 D. 24 25 United States Constitution 6. The Bill of Rights prohibits the federal government from depriving any person of their liberty without due process of law (U.S. Constitution, 5th Amendment). 26 SECOND AMENDED COMPLAINT - 4 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 6 of 85 7. 1 Asylum seekers who cross the United States border are persons. They 2 accordingly have a constitutionally protected liberty interest in (1) not being imprisoned for an 3 unreasonable time awaiting their credible fear interview and determination and (2) not being 4 imprisoned without the opportunity for a prompt bond hearing that comports with constitutional 5 requirements. And especially with respect to the federal government’s avowed policy or practice 6 to deter criminal violations of federal immigration laws, asylum seekers also have a 7 constitutionally protected interest in (3) not being subjected to prolonged imprisonment for 8 deterrence or penalty reasons unrelated to adjudicating the merits of their individual asylum 9 claim. 8. 10 With this Second Amended Complaint, plaintiffs specify with more particularity 11 how defendants’ implementation of the federal government’s policies and practices with respect 12 to persons fleeing for safety and seeking asylum in the United States violates the United States 13 Constitution. 14 E. 15 Federal Law 9. Federal law prohibits final agency action that is arbitrary, capricious, unlawfully 16 withheld, or unreasonably delayed (e.g., Administrative Procedures Act, 5 U.S.C. §706). Federal 17 law also grants persons fleeing persecution the right to apply for safety and asylum in the United 18 States (e.g., 8 U.S.C. §§ 1225 & 1158; 8 C.F.R. §§ 235.3, 208.30, & 1003.42). 19 10. Federal law accordingly prohibits federal agencies from arbitrarily or capriciously 20 depriving an asylum seeker of their child, their prompt credible fear interview and determination, 21 or their prompt bond hearing. Federal law prohibits federal agencies from unlawfully 22 withholding or unreasonably delaying an asylum seeker’s reunification with their child, an 23 asylum seeker’s credible fear interview and determination, or an asylum seeker’s bond hearing. 24 And federal law prohibits federal agencies from impeding or seeking to deter an asylum seeker’s 25 legal right to apply for asylum. 26 SECOND AMENDED COMPLAINT - 5 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 7 of 85 11. 1 With this Second Amended Complaint, plaintiffs specify with more particularity 2 how defendants’ implementation of the federal government’s policies and practices with respect 3 to persons fleeing for safety and asylum in the United States violates federal law. 4 F. 5 Requested Relief 12. With respect to (1) credible fear interviews and determinations and (2) the related 6 bond hearings, plaintiffs request injunctive relief requiring defendants to cease their policies and 7 practices implementing the federal government’s policy or practice in violation of the United 8 States Constitution and federal law. Plaintiffs request declaratory relief to terminate the parties’ 9 disagreement with respect to whether (and how) defendants’ implementation of the federal 10 government’s policies or practices with respect to persons fleeing for safety and asylum in the 11 United States violates the United States Constitution and federal law. Lastly, plaintiffs request 12 whatever additional relief this Court finds warranted, just, or equitable. 13 14 II. 13. JURISDICTION This case arises under the Fifth Amendment of the United States Constitution, the 15 Administrate Procedures Act (“APA”), and federal asylum statutes. This Court has jurisdiction 16 under 28 U.S.C. § 1331 (federal question jurisdiction); 28 U.S.C. § 2241 (habeas jurisdiction); 17 and Article I, § 9, clause 2 of the United States Constitution (“Suspension Clause”). 18 19 20 14. The original plaintiffs in this case were all in custody for purposes of habeas jurisdiction when this action was filed on June 25, 2018. 15. After this action was filed, plaintiffs Padilla, Orantes, and Guzman were 21 eventually released from detention after they were eventually provided a credible fear interview 22 and individualized bond hearings before an immigration judge. At the time this Second 23 Amended Complaint is electronically filed on August 22, 2018, plaintiff Vasquez is still in 24 custody for purposes of habeas jurisdiction. 25 26 SECOND AMENDED COMPLAINT - 6 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 8 of 85 1 16. At the time this Second Amended Complaint is electronically filed on August 22, 2 2018, all the children that the federal government took away from plaintiffs have been returned 3 to their mothers after approximately two months of being separated. 4 5 III. 17. VENUE Venue lies in this District under 28 U.S.C. § 1391 because a substantial portion of 6 the relevant facts occurred within this District. Those facts include defendants’ detention of 7 plaintiffs Padilla, Guzman, and Orantes in this District while forcibly separated from their 8 children, failure in this District to promptly conduct a credible fear interview and determination 9 for their asylum claims, and failure in this District to promptly conduct bond hearings that 10 comport with constitutional requirements to set reasonable conditions for release pending 11 adjudication of their asylum claims. 12 13 14 15 16 17 18 19 20 21 IV. 18. PARTIES Plaintiff Yolany Padilla is a human being seeking asylum for herself and her 6-year-old son (J.A) in the United States. She is a citizen of Honduras. 19. Plaintiff Ibis Guzman is a human being seeking asylum for herself and her 5-year-old son (R.G.) in the United States. She is a citizen of Honduras. 20. Plaintiff Blanca Orantes is a human being seeking asylum for herself and her 8-year-old son (A.M.) in the United States. She is a citizen of El Salvador. 21. Plaintiff Baltazar Vasquez is a human being seeking asylum in the United States. He is a citizen of El Salvador. 22. Defendant U.S. Immigration and Customs Enforcement (“ICE”) is the federal 22 government agency that carries out removal orders and oversees immigration detention. ICE is 23 part of DHS. ICE’s responsibilities include determining whether an asylum seeker will be 24 released and how soon his or her case will be submitted for a credible fear interview and 25 subsequent proceedings on the merits before the immigration court. ICE’s local field office in 26 Tukwila, Washington, is responsible for determining whether plaintiffs detained in Washington SECOND AMENDED COMPLAINT - 7 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 9 of 85 1 will be released, and how soon their cases will be submitted for credible fear interview and 2 subsequent proceedings before the immigration court. 3 23. Defendant U.S. Department of Homeland Security (“DHS”) is the federal 4 government agency that enforces immigration laws of the United States. DHS’s responsibilities 5 include determining whether an asylum seeker will be released and how soon his or her case will 6 be submitted for a credible fear interview and subsequent proceedings before the immigration 7 court. DHS’s local field office in Tukwila, Washington, is responsible for determining whether 8 plaintiffs detained in Washington will be released, and how soon their cases will be submitted for 9 credible fear interview and subsequent proceedings before the immigration court. 10 24. Defendant U.S. Customs and Border Protection (“CBP”) is the federal 11 government agency that conducts the initial processing and detention of asylum seekers crossing 12 the U.S. border. CBP is part of DHS. CBP’s responsibilities include determining whether an 13 asylum seeker will be released and how soon his or her case will be submitted for a credible fear 14 interview and determination. 15 25. Defendant U.S. Citizenship and Immigration Services (“USCIS”) is the federal 16 government agency that, through its asylum officers, interviews asylum seekers to determine 17 whether they should be assigned to the immigration court to be allowed to proceed with applying 18 for asylum because they have a credible fear of persecution. USCIS is a part of DHS. 19 26. Defendant Executive Office for Immigration Review (“EOIR”) is the federal 20 government agency that is responsible for conducting immigration court proceedings, including 21 adjudicating plaintiffs’ asylum claims in removal proceedings and conducting individual bond 22 hearings for persons in removal proceedings. EOIR is a part of the Department of Justice. 23 24 25 26 27. Defendant Thomas Homan is sued in his official capacity as the Director of ICE, and is a legal custodian of plaintiff Vasquez and putative class members. 28. Defendant Marc J. Moore is sued in his official capacity as the ICE Seattle Field Office Director, and is a legal custodian of detained plaintiffs. SECOND AMENDED COMPLAINT - 8 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 10 of 85 29. 1 Defendant Kirstjen Nielsen, is sued in her official capacity as the Secretary of 2 DHS. In this capacity, she directs DHS, ICE, CBP, and USCIS. As a result, defendant Nielsen 3 has responsibility for the administration of immigration laws pursuant to 8 U.S.C. §1103 and is a 4 legal custodian of detained plaintiffs. 30. 5 6 Commissioner of CBP. 31. 7 8 Defendant Kevin K. McAleenan is sued in his official capacity as the Defendant L. Francis Cissna is sued in his official capacity as the Director of USCIS. 32. 9 Defendant Jefferson Beauregard Sessions III is sued in his official capacity as the 10 United States Attorney General. In this capacity, he directs agencies within the United States 11 Department of Justice, including EOIR. Defendant Sessions has responsibility for the 12 administration of immigration laws pursuant to 8 U.S.C. §1103, oversees defendant EOIR, and is 13 empowered to grant asylum or other relief, including custody determinations made for persons in 14 removal proceedings. 33. 15 16 Northwest Detention Center in Tacoma, Washington. 34. 17 18 35. Defendant David Shinn is sued in his official capacity as the warden of the Federal Correctional Institute in Victorville, California. 36. 21 22 Defendant Charles Ingram is sued in his official capacity as the warden of the Federal Detention Center in SeaTac, Washington. 19 20 Defendant Lowell Clark is sued in his official capacity as the warden of the Defendant James Janecka is sued in his official capacity as the warden of the Adelanto Detention Facility in Adelanto, California. 23 24 V. A. FACTS Seeking Asylum 25 37. Federal law allows a person to seek asylum in the United States. 26 38. Plaintiffs are persons seeking asylum in the United States. SECOND AMENDED COMPLAINT - 9 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 11 of 85 1 2 39. Plaintiff Yolany Padilla and her 6-year-old son J.A. are asylum seekers who fled physical danger and persecution in Honduras. 40. 3 On or about May 18, 2018, plaintiff Yolany Padilla and her 6-year-old son J.A 4 crossed the U.S.-Mexico border . They were arrested by a CBP agent as they were making their 5 way to the closest Port Of Entry. She informed the CBP agent that they were seeking asylum. 6 7 41. physical danger and persecution in Honduras. 42. 8 9 10 On or about May 16, 2018, plaintiff Ibis Guzman and her 5-year-old son R.G. crossed the U.S.-Mexico border. They were arrested by a CBP agent. She informed the CBP agent that they were seeking asylum. 11 12 Plaintiff Ibis Guzman and her 5-year-old son R.G. are asylum seekers who fled 43. Plaintiff Blanca Orantes and her 8-year-old son A.M. are asylum seekers who fled physical danger and persecution in El Salvador. 44. 13 On or about May 21, 2018, plaintiff Blanca Orantes and her 8-year-old son A.M. 14 crossed the U.S.-Mexico border. They immediately walked to the CBP station to request 15 asylum, and were arrested by a CBP agent. She informed the CBP agent that they were seeking 16 asylum. 17 18 45. Plaintiff Baltazar Vasquez is an asylum seeker who fled physical danger and persecution in El Salvador. 46. 19 On or about June 1, 2018, Baltazar Vasquez crossed the U.S.-Mexico border. He 20 was arrested by a CBP agent, and informed the CBP agent that he was seeking asylum. 21 B. 22 Defendants’ Zero-Tolerance Policy or Practice 47. Defendant Sessions made an announcement about the federal government’s 23 “Zero-Tolerance Policy” on April 6, 2018, See https://www.justice.gov/opa/pr/attorney-general- 24 announces-zero-tolerance-policy-criminal-illegal-entry. 25 26 48. The federal government’s zero-tolerance policy was designed to be a coordinated effort to deter asylum seekers entering the country and exercising their right to apply for asylum SECOND AMENDED COMPLAINT - 10 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 12 of 85 1 by criminally prosecuting them, forcibly separating them from their children, and imposing 2 prolonged, uncertain imprisonment (euphemistically called “detention”) on them. 49. 3 4 The federal government’s zero-tolerance policy has been implemented against asylum seekers who enter the country without inspection requesting asylum. 50. 5 The federal government’s zero-tolerance policy has also been implemented 6 against asylum seekers who appear at a Port Of Entry to request asylum. 7 C. 8 9 10 11 12 Promptly Taking Children Away From Parents Seeking Asylum 51. One part of the federal government’s zero-tolerance policy or practice was to promptly take children away from parents seeking asylum in the United States. 52. The federal government would send the parent and child to separate federal detention facilities – often in different states thousands of miles away from each other. 53. A child’s forced separation from a parent causes the child severe trauma. This 13 damage is even worse for children who are already traumatized from fleeing danger and 14 persecution in their home country. The cognitive and emotional damage caused by a child’s 15 forced separation from a parent can be permanent. 16 54. A parent’s forced separation from their child is also deeply damaging to the 17 parent. This damage is even worse for parents who are already traumatized from fleeing danger 18 and persecution in their home country, are given little to no information regarding the well-being 19 or whereabouts of their child, and fear they may never see their child again. 20 55. he federal government promptly tooks children away from parents seeking asylum 21 in the United States without any demonstration in a hearing that that parent is unfit or presents 22 any danger to the child. 23 56. The federal government promptly took children away from parents seeking 24 asylum in the United States without any evidence or accusation that the parent seeking asylum is 25 an unfit parent, or presents a danger to the child, or is not acting in the child’s best interest, or is 26 a threat to the child’s safety, or abused the child, or neglected the child. SECOND AMENDED COMPLAINT - 11 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 13 of 85 57. 1 2 The federal government promptly took children away from parents seeking asylum in the United States to penalize and deter persons from seeking asylum. 58. 3 The federal government promptly took children away from parents seeking 4 asylum in the United States as part of its zero-tolerance policy against criminal violations of 5 federal immigration laws. 59. 6 Plaintiffs Yolany Padilla, Ibis Guzman, and Blanca Orantes are parents who 7 sought asylum and were (1) detained in immigration custody by defendants in Washington State 8 and (2) separated from a minor child by defendants without any demonstration in a hearing that 9 that parent is unfit or presents a danger to the child. 10 60. When plaintiff Yolany Padilla and her 6-year-old son J.A were taken into 11 custody, a federal agent promptly announced that Yolany Padilla’s son would be taken away 12 from her. Her 6-year-old son clutched his mother’s shirt and said, “no, mommy, I don’t want to 13 go.” She reassured her son that any separation would be short, and that everything would be 14 okay. She was able to stay with her son as they were transferred to one of the federal detention 15 buildings that detainees commonly refer to as “the hielera” (“the freezer”) because of its cold 16 temperatures. Once they arrived, Yolany Padilla’s 6-year-old son was forcibly taken away from 17 her without explanation. 61. 18 Yolany Padilla’s 6-year-old son was taken away from her without any hearing, 19 and without any accusation or evidence that she is in any way an unfit parent, or that she is in 20 any way not acting in his best interest fleeing for safety in the United States, or that she is in any 21 way a threat to his safety, or that she in any way abused him, or that she in any way neglected 22 him. 23 62. Yolany Padilla was then transferred to another federal facility in Laredo, Texas 24 about three days later. The federal officers in that facility took her son’s birth certificate from 25 her. When she asked for it back, she was told the immigration authorities had it. No one has 26 returned her son’s birth certificate to her. SECOND AMENDED COMPLAINT - 12 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 14 of 85 1 2 3 63. About twelve days later, Yolany Padilla was transferred to the Federal Detention Center in SeaTac, Washington. 64. Despite repeated inquiries into her son’s whereabouts, Yolany Padilla was not 4 provided any information about her son until about a month into her detention, when the 5 Honduran consul visited the detention center and she explained she had no news of her son. 6 Soon thereafter she was given a piece of paper saying her son had been put in a place called 7 “Cayuga Center” in New York. That piece of paper also had a phone number, but she was not 8 able to call her son that day because she did not have money to make a long distance phone call. 9 10 11 12 13 65. The next day, someone gave Yolany Padilla the opportunity to call her son for about ten minutes. Her 6-year-old son mostly cried quietly. 66. Yolany Padilla was not released from federal imprisonment until July 6, 2018, after an immigration judge finally granted her a bond. 67. Yolany Padilla’s 6-year-old son was not released from federal imprisonment until 14 July 14, 2018. That was almost two months after the federal government forcibly took him away 15 from his mom. 16 68. CBP transported plaintiff Ibis Guzman and her 5-year-old son R.G. to one of the 17 federal detention buildings in Texas that detainees commonly refer to as “the hielera” (“the 18 freezer”) because of its cold temperatures. One CBP agent questioned Ibis Guzman, and 19 another CBP agent forcibly took her son away stating she would see her son again in three days. 20 69. Ibis Guzman’s 5-year-old son was taken away from her without any hearing, and 21 without any accusation or evidence that she is in any way an unfit parent, or that she is in any 22 way not acting in his best interest fleeing for safety in the United States, or that she is in any way 23 a threat to his safety, or that she in any way abused him, or that she in any way neglected him. 24 70. After three days, Ibis Guzman was transferred to a different CBP facility in 25 Texas. When she asked the federal agents there about the reunification with her son that the 26 CBP agent had promised, they told her they did not know anything about her son’s whereabouts. SECOND AMENDED COMPLAINT - 13 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 15 of 85 71. 1 Ibis Guzman was then transferred to another federal facility in Laredo, Texas, 2 where she was detained without any knowledge of the whereabouts of her 5-year-old son and 3 without any means to contact him. She did not receive any information about him during this 4 time, despite her repeated attempts to obtain such information. 72. 5 6 About two weeks later, Ibis Guzman was transferred to the Federal Detention Center in SeaTac, Washington. 73. 7 Ibis Guzman was not provided any information about her 5-year-old son until 8 about a week later, when she was told that her son had been given to a place called “Baptist 9 Child and Family Services” in San Antonio, Texas. But she was still not able to contact him. 74. 10 11 Center in Tacoma, Washington. 75. 12 13 On June 20, 2018, Ibis Guzman was transferred to the Northwest Detention Ibis Guzman was denied bond by the immigration judge at her bond hearing on July 3, 2018. 76. 14 She was not released until on or about July 31, 2018, after the federal government 15 was forced to comply with the preliminary injunction in Ms. L., and thereafter reunited with her 16 child. 17 77. CBP transported plaintiff Blanca Orantes and her 8-year-old son A.M. to a 18 federal detention facility in Texas. CBP agents led Blanca Orantes into one of the federal 19 detention buildings that detainees commonly refer to as “the hielera” (“the freezer”) because of 20 its cold temperatures, and took her 8-year-old son to another part of that detention facility. 21 78. While a CBP agent was later interviewing Blanca Orantes, another agent brought 22 her 8-year-old son to her and told her to “say goodbye” to him because they were being 23 separated. Her 8-year-old son began crying and pleading for his mom not to leave him. 24 79. Blanca Orantes’ 8-year-old son was taken away from her without any hearing, 25 and without any accusation or evidence that she is in any way an unfit parent, or that she is in 26 any way not acting in his best interest fleeing for safety in the United States, or that she is in any SECOND AMENDED COMPLAINT - 14 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 16 of 85 1 way a threat to his safety, or that she in any way abused him, or that she in any way neglected 2 him. 80. 3 On or around May 24, 2018, Blanca Orantes was handcuffed and taken to court. 4 She pled guilty to improper entry under 8 U.S.C. §1325 and was sentenced to time served. She 5 was then returned to her cell. 81. 6 7 Center in SeaTac, Washington. 82. 8 9 10 About nine days later, Blanca Orantes was transported to the Federal Detention The federal government did not provide Blanca Orantes any information about her 8-year-old son until June 9, 2018, when an ICE officer handed her a slip of paper saying her son was being held at place called “Children’s Home of Kingston” in Kingston, New York. 83. 11 On June 20, 2018, Blanca Orantes was transferred to the Northwest Detention 12 Center in Tacoma, Washington, where she was finally allowed to speak to her 8-year-old son by 13 telephone. 14 84. 15 Blanca Orantes was denied bond by the immigration judge at her bond hearing on July 16, 2018. 85. 16 She was not released until on or about July 24, 2018, in order to comply with the 17 preliminary injunction in Ms. L., and thereafter reunited with her child. 18 D. 19 20 21 22 23 24 25 Failing To Promptly Provide The Credible Fear Interview & Determination Required By Federal Law 86. One part of the federal government’s policy or practice is to keep asylum seekers in limbo in federal detention by delaying the threshold credible fear interview to which asylum seekers are entitled under federal law. 87. Detained asylum seekers who are subject to expedited removal are not permitted to move forward with their asylum claims until a credible fear determination has been made by a DHS official. 26 SECOND AMENDED COMPLAINT - 15 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 17 of 85 1 2 3 4 5 6 7 88. The federal government keeps asylum seekers in limbo in federal detention by delaying their credible fear interview in part to penalize and deter persons from seeking asylum. 89. The federal government keeps asylum seekers in limbo in federal detention by delaying their credible fear interview. 90. The federal government has not established any procedural timeframes for providing asylum seekers the credible fear interview and determinations required by federal law. 91. Plaintiffs Yolany Padilla, Ibis Guzman, Blanca Orantes, and Baltazar Vasquez are 8 detained asylum seekers subject to expedited removal proceedings under 8 U.S.C. § 1225(b) who 9 were not provided a credible fear interview and determination within 10 days of requesting 10 11 12 13 14 15 16 17 asylum or expressing a fear of persecution to a DHS official. 92. When plaintiff Yolany Padilla first spoke with the CBP agent on or about May 18, 2018, she told the CBP agent that she and her son were requesting asylum. 93. Neither Yolany Padilla nor her son were provided a credible fear interview within 10 days of requesting asylum or expressing a fear of persecution to a DHS official. 94. Neither Yolany Padilla nor her son were provided a credible fear interview as of the date this lawsuit was originally filed on June 25, 2018. 95. Instead, Yolany Padilla was not provided her credible fear interview until July 2, 18 2018. That was more than a month after federal officials imprisoned her. The DHS official 19 conducting her credible fear interview determined that Yolany Padilla does have a credible fear 20 of persecution, and therefore assigned her asylum claim to immigration court for adjudication on 21 the merits 22 96. 23 24 25 When plaintiff Ibis Guzman first spoke with the CBP agent on or about May 16, 2018, she told the CBP agent that she and her son were requesting asylum. 97. Neither Ibis Guzman nor her son were provided a credible fear interview within 10 days of requesting asylum or expressing a fear of persecution to a DHS official. 26 SECOND AMENDED COMPLAINT - 16 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 18 of 85 1 2 3 98. Neither Ibis Guzman nor her son were provided a credible fear interview as of the date this lawsuit was originally filed on June 25, 2018. 99. Instead, Ibis Guzman was not provided her credible fear interview until June 27, 4 2018. That was more than a month after federal officials imprisoned her. The DHS official 5 conducting her credible fear interview determined that Ibis Guzman does have a credible fear of 6 persecution, and therefore assigned her asylum claim to immigration court for adjudication on 7 the merits. 8 9 10 11 12 13 14 100. When plaintiff Blanca Orantes first spoke with the CBP agent on or about May 21, 2018, she told the CBP agent that she and her son were requesting asylum. 101. Neither Blanca Orantes nor her son were provided a credible fear interview within 10 days of requesting asylum or expressing a fear of persecution to a DHS official. 102. Neither Blanca Orantes nor her son were provided a credible fear interview as of the date this lawsuit was originally filed on June 25, 2018. 103. Instead, Blanca Orantes was not provided her credible fear interview until 15 June 27, 2018. That was more than a month after federal officials imprisoned her. The DHS 16 official conducting her credible fear interview determined that Blanca Orantes does have a 17 credible fear of persecution, and therefore assigned her asylum claim to immigration court for 18 adjudication on the merits. 19 20 21 22 23 24 25 26 104. When plaintiff Baltazar Vasquez first spoke with the CBP agent on or about June 1, 2018, he told the CBP agent that he was requesting asylum. 105. Baltazar Vasquez was not provided a credible fear interview within 10 days of requesting asylum or expressing a fear of persecution to a DHS official. 106. Baltazar Vasquez was not provided a credible fear interview as of the date this lawsuit was originally filed on June 25, 2018. 107. Baltazar Vasquez was not scheduled for a credible fear interview until after the First Amended Complaint was electronically filed on July 15, 2018. SECOND AMENDED COMPLAINT - 17 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 19 of 85 108. 1 Baltazar Vasquez was not provided his credible fear interview until July 31, 2018. 2 That was almost two months after federal officials imprisoned him. The DHS official conducting 3 his credible fear interview determined that Baltazar Vasquez does have a credible fear of 4 persecution, and therefore referred his case to an immigration court for adjudication of the merits 5 of his asylum claim. 6 109. Baltazar Vasquez is currently imprisoned at the Adelanto Detention facility in 7 Adelanto, California. 8 E. 9 Failing To Promptly Provide The Bond Hearing Required By Federal Law 110. One part of the federal government’s policy or practice is to prolong 10 imprisonment without a proper bond hearing for asylum seekers who entered the United States 11 without inspection. 12 111. 13 14 15 16 The federal government keeps asylum seekers in limbo in federal detention by delaying their bond hearing in part to penalize and deter persons from seeking asylum. 112. The federal government keeps asylum seekers in limbo in federal detention by delaying their bond hearing. 113. The federal government has not established any procedural timeframes for timely 17 providing the bond hearings required by federal law. The federal government has not established 18 basic procedural safeguards for bond hearings such as verbatim transcripts or audio recordings of 19 bond hearings. The absence of such basic safeguards impedes an imprisoned asylum seeker’s 20 ability to meaningful appeal the denial of bond in their individual case as not being based on 21 evidence of legally relevant factors (i.e., being a flight risk or danger to the community) instead 22 of legally irrelevant factors (e.g., the zero-tolerance policy’s general goal of punishing and 23 deterring asylum seekers). Defendant EOIR maintains audio recordings of proceedings before 24 an Immigration Judge other than bond hearings, and provides verbatim transcripts on appeals to 25 the Board of Immigration Appeals. But Defendant EOIR does not maintain audio recordings of 26 an asylum seeker’s bond hearing or provide verbatim transcripts for appeal of bond hearing SECOND AMENDED COMPLAINT - 18 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 20 of 85 1 determinations. Indeed, when an immigration judge denies bond, they routinely do not make 2 specific, particularized findings, and instead simply check a box on a template order. Moreover, 3 Defendants place the burden of proof on the noncitizen to demonstrate that they should not 4 continue to be detained throughout their lengthy immigration proceedings. 5 114. Plaintiff Yolany Padilla is an asylum seeker who originally entered the United 6 States without inspection, was initially subject to expedited removal proceedings under 7 8 U.S.C. §1225(b) and detained, was determined to have a credible fear of persecution, but was 8 not provided a timely bond hearing with a verbatim transcript or audio recording. 9 115. The federal government did not provide Yolany Padilla a bond hearing until after 10 she filed this lawsuit. At the conclusion of that bond hearing, an order was issued allowing her 11 to be released from federal detention upon posting an $8,000 bond pending the adjudication of 12 her asylum claim on the merits. To her knowledge, there is no verbatim transcript or recording 13 of her bond hearing. At the bond hearing, the immigration judge placed the burden of proof on 14 Yolany Padilla to demonstrate that she qualified for a bond. 15 116. Plaintiffs Ibis Guzman is a detained asylum seeker who originally entered the 16 United States without inspection, was initially subject to expedited removal proceedings under 17 8 U.S.C. §1225(b), was determined to have a credible fear of persecution, but was not provided a 18 timely bond hearing with a verbatim transcript or audio recording. 19 117. The federal government did not provide Ibis Guzman a bond hearing until after 20 she filed this lawsuit. At the bond hearing, the immigration judge placed the burden of proof on 21 Ibis Guzman to demonstrate that she qualified for a bond. At the conclusion of that bond 22 hearing, an immigration judge issued an order denying her release on any bond amount pending 23 the adjudication of her asylum claim on the merits. 24 118. The immigration judge did not make specific, particularized findings for the basis 25 of the denial. The immigration judge circled the preprinted words “Flight Risk” on a form order, 26 rendering her ineligible for bond even though a DHS official had already determined she has a SECOND AMENDED COMPLAINT - 19 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 21 of 85 1 credible fear of persecution and even though the federal government has taken away her 2 6-year-old son. 119. 3 The immigration judge provided no written explanation for circling “Flight Risk” 4 or the factors and evidence considered in making that conclusion to deny bond. Per defendant 5 EOIR’s practice, there is no verbatim transcript or recording of her bond hearing. She was not 6 released until on or about July 31, 2018, in order to comply with the preliminary injunction in 7 Ms. L. 8 9 120. Plaintiff Blanca Orantes is a detained asylum seeker who originally entered the United States without inspection, was initially subject to expedited removal proceedings under 10 8 U.S.C. §1225(b), was determined to have a credible fear of persecution once she was 11 eventually provided her credible fear interview and determination, but was not provided a bond 12 hearing with a verbatim transcript or recording of the hearing within 7 days of requesting a bond 13 hearing. 14 121. Blanca Orantes was not provided a bond hearing until July 16, 2018. At the bond 15 hearing, the immigration judge placed the burden of proof on Blanca Orantes to demonstrate that 16 she qualified for a bond. At the conclusion of that bond hearing, an immigration judge issued an 17 order denying her release on any bond amount pending the adjudication of her asylum claim on 18 the merits. 19 122. The immigration judge did not make specific, particularized findings for the basis 20 of the denial, and even failed to check the box indicating why she was denied bond on the 21 template order. Per defendant EOIR’s practice, there is no verbatim transcript or recording of her 22 bond hearing. At the bond hearing the immigration judge placed the burden on Blanca Orantes 23 to demonstrate that she was qualified for a bond. 24 123. She was not released until on or about July 23, 2018, after the federal government 25 was forced to comply with the preliminary injunction in Ms. L., and thereafter reunited her with 26 her child. SECOND AMENDED COMPLAINT - 20 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 22 of 85 1 124. Plaintiff Baltazar Vasquez is a detained asylum seeker who originally entered 2 the United States without inspection, was initially subject to expedited removal proceedings 3 under 8 U.S.C. §1225(b), was determined to have a credible fear of persecution once he was 4 eventually provided his credible fear interview and determination, but was not provided a bond 5 hearing with a verbatim transcript or recording of the hearing within 7 days of requesting a bond 6 hearing. 125. 7 The federal government did not provide Baltazar Vasquez a bond hearing until 8 August 20, 2018. At the bond hearing, the immigration judge placed the burden of proof on 9 Baltazar Vasquez to demonstrate that he qualified for a bond. At the conclusion of that bond 10 hearing, an order was issued allowing him to be released from federal detention upon posting a 11 $9,000 bond pending the adjudication of his asylum claim on the merits. There is no verbatim 12 transcript or recording of his bond hearing. 13 VI. 14 15 126. CLASS ALLEGATIONS The named plaintiffs are asylum seekers who filed this suit on behalf of themselves and their family members being detained in federal detention. 16 127. The named plaintiffs also bring this suit as a class action under Fed.R.Civ.P. 23(b) 17 on behalf of the other similarly situated persons specified in the two classes of asylum seekers 18 specified in Part VI of this Second Amended Complaint. 19 A. 20 “Credible Fear Interview Class” 128. With respect to plaintiffs’ claims concerning defendants’ failure to promptly 21 provide asylum seekers a credible fear interview and determination, plaintiffs seek to represent 22 the following class (the “credible fear interview class”): 23 24 25 All detained asylum seekers in the United States subject to expedited removal proceedings under 8 U.S.C. §1225(b) who are not provided a credible fear determination within 10 days of requesting asylum or expressing a fear of persecution to a DHS official, absent a request by the asylum seeker for a delayed credible fear interview. 26 SECOND AMENDED COMPLAINT - 21 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 23 of 85 1 129. Plaintiffs allege the following on information and belief: At least several hundred 2 asylum seekers currently fit within the credible fear interview class. Defendants should know 3 the precise number since the members of this class should be readily ascertainable through 4 defendants’ records. 5 130. 6 7 The credible fear interview class satisfies Rule 23(a)(1). This class is so numerous that joinder of all class members is impracticable. 131. The credible fear interview class satisfies Rule 23(a)(2). There are questions of 8 law or fact common to this class. Given the definition of this class, its members all share the 9 same common factual situation of being a detained asylum seeker subject to defendants’ practice 10 of failing to provide a credible fear interview and determination within 10 days of their 11 expressing a fear of persecution or a request for asylum to a DHS official, despite the fact they 12 have been placed in expedited removal proceedings under 8 USC § 1225(b), which requires 13 immediate action. The members of this class share common questions of law governing whether 14 defendants’ practice of failing to provide class members a credible fear interview and 15 determination within 10 days of their expressing a fear of persecution or a request for asylum to 16 a DHS official is legal under the Fifth Amendment, APA, or federal asylum statutes. 17 132. The credible fear interview class satisfies Rule 23(a)(3). Plaintiffs’ claims 18 concerning the legality of defendants’ practice of failing to provide a credible fear interview and 19 determination within 10 days of their expressing a fear of persecution or a request for asylum to 20 a DHS official are typical of the claims of class members. As noted in the prior paragraph, the 21 definition of this class dictates that plaintiffs share with the other class members the same 22 common factual situation and the same common questions of law under the Fifth Amendment, 23 APA, and federal asylum statutes. 24 133. The credible fear interview class satisfies Rule 23(a)(4). Plaintiffs will fairly 25 and adequately protect the interests of that class. They are represented by counsel from the 26 Northwest Immigrant Rights Project and the American Immigration Council, who have extensive SECOND AMENDED COMPLAINT - 22 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 24 of 85 1 experience litigating class action lawsuits and other complex cases in federal court, including 2 civil rights lawsuits on behalf of noncitizens. 3 134. The credible fear interview class satisfies Rule 23(b)(1). Requiring separate 4 actions by the members of this class would create the risk of inconsistent or varying 5 adjudications with respect to individual class members that would establish incompatible 6 standards of conduct for defendants. Requiring separate actions by the members of this class 7 would create the risk of adjudications with respect to individual class members that, as a 8 practical matter, would be dispositive of the interests of the other class members not parties to 9 the individual adjudications, or would at least substantially impair or impede their ability to 10 11 protect their interests. 135. The credible fear interview class satisfies Rule 23(b)(2). Defendants have acted 12 or refused to act on grounds that apply generally to this class. Final injunctive relief or 13 corresponding declaratory relief is appropriate with respect to the class as a whole, especially as 14 it involves uniform, federal immigration law and plaintiffs are transferred across the country by 15 defendants. Moreover, requiring separate actions by the members of this class would create the 16 risk of inconsistent or varying adjudications with respect to individual class members that would 17 establish incompatible standards of conduct for defendants. 18 136. The credible fear interview class satisfies Rule 23(b)(3). Questions of law or 19 fact common to members of this class predominate over questions affecting only individual 20 members. A class action is superior to other available methods for fairly and efficiently 21 adjudicating the legality of defendants’ practice of failing to provide a credible fear interview 22 and determination within 10 days of a person’s expressing a fear of persecution or requesting 23 asylum. 24 B. “Bond Hearing Class” 25 137. With respect to plaintiffs’ claims concerning defendants’ failure to promptly 26 conduct a bond hearing to set reasonable conditions for the asylum seeker’s release pending the SECOND AMENDED COMPLAINT - 23 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 25 of 85 1 lengthy proceedings to adjudicate his or her asylum claim, and to provide a bond hearing that 2 comports with the requirements of due process, plaintiffs seek to represent the following class 3 (the “bond hearing class”): 4 5 6 All detained asylum seekers who entered the United States without inspection, who were initially subject to expedited removal proceedings under 8 U.S.C. §1225(b), who were determined to have a credible fear of persecution, but who are not provided a bond hearing with a verbatim transcript or recording of the hearing within 7 days of requesting a bond hearing. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 138. Plaintiffs allege the following on information and belief: At least several hundred asylum seekers currently fit within the bond hearing class. Defendants should know the precise number since the members of this class should be readily ascertainable through defendants’ records. 139. The bond hearing class satisfies Rule 23(a)(1). This class is so numerous that joinder of all class members is impracticable. 140. The bond hearing class satisfies Rule 23(a)(2). There are questions of law or fact common to this class. Given the definition of this class, its members all share the same common factual situation of being asylum seekers who entered the United States without inspection, were initially subject to expedited removal proceedings, were found to have a credible fear of persecution, but were then subject to defendants’ practice of failing to provide a bond hearing with a transcript or recording of the hearing within 7 days of their requesting a bond hearing. Moreover, defendant EOIR placed the burden on class members to demonstrate in bond hearings that plaintiffs are eligible for release, and defendants EOIR failed to make any specific, particularized findings of fact when denying release. The members of this class share common questions of law governing whether defendants’ practice of failing to provide a bond hearing with a transcript or recording of the proceeding within 7 days of their requesting a bond hearing, Defendant EOIR’s practice of placing the burden of proof on the detained asylum seeker to demonstrate their eligibility for release, and Defendant EOIR’s failure to make specific, SECOND AMENDED COMPLAINT - 24 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 26 of 85 1 particularized findings when denying release, is legal under the Fifth Amendment, APA, or 2 federal asylum statutes. 3 141. The bond hearing class satisfies Rule 23(a)(3). Plaintiffs’ claims concerning the 4 legality of defendants’ practice of failing to provide a bond hearing with a transcript or recording 5 of the proceeding within 7 days of an asylum seeker’s requesting a bond hearing, Defendant 6 EOIR’s practice of placing the burden of proof on the detained asylum seeker to demonstrate 7 they are eligible for release , and Defendant EOIR’s failure to make specific findings when 8 denying release, are typical of the claims of class members. As noted in the prior paragraph, the 9 definition of this class dictates that plaintiffs share with the other class members the same 10 common factual situation and the same common questions of law under the Fifth Amendment, 11 APA, and federal asylum statutes. 12 142. The bond hearing class satisfies Rule 23(a)(4). Plaintiffs will fairly and 13 adequately protect the interests of that class. They are represented by counsel from the 14 Northwest Immigrant Rights Project and the American Immigration Council, who have extensive 15 experience litigating class action lawsuits and other complex cases in federal court, including 16 civil rights lawsuits on behalf of noncitizens. 17 143. The bond hearing class satisfies Rule 23(b)(1). Requiring separate actions by 18 the members of this class would create the risk of inconsistent or varying adjudications with 19 respect to individual class members that would establish incompatible standards of conduct for 20 defendants. Requiring separate actions by the members of this class would create the risk of 21 adjudications with respect to individual class members that, as a practical matter, would be 22 dispositive of the interests of the other class members not parties to the individual adjudications, 23 or would at least substantially impair or impede their ability to protect their interests. 24 144. The bond hearing class satisfies Rule 23(b)(2). Defendants have acted or 25 refused to act on grounds that apply generally to this class. Final injunctive relief or 26 corresponding declaratory relief is appropriate with respect to the class as a whole especially as it SECOND AMENDED COMPLAINT - 25 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 27 of 85 1 involves uniform, federal immigration law and plaintiffs are transferred across the country by 2 defendants. Moreover, requiring separate actions by the members of this class would create the 3 risk of inconsistent or varying adjudications with respect to individual class members that would 4 establish incompatible standards of conduct for defendants. 5 145. The bond hearing class satisfies Rule 23(b)(3). Questions of law or fact 6 common to members of this class predominate over questions affecting only individual 7 members. A class action is superior to other available methods for fairly and efficiently 8 adjudicating the legality of defendants’ practice of failing to provide a bond hearing with a 9 transcript or recording of the proceeding within 7 days of an asylum seeker’s requesting a bond 10 hearing, defendant EOIR’s practice of placing the burden of proof on the detained asylum seeker 11 to demonstrate they are eligible for release, and Defendant EOIR’s failure to make specific, 12 particularized findings when denying release. 13 VII. COUNT I (Violation of Due Process) 14 15 16 17 18 19 20 21 22 23 24 25 CAUSES OF ACTION 146. All of the foregoing allegations are repeated and re-alleged as though fully set forth herein. 147. The Due Process Clause of the Fifth Amendment applies to all “persons” on United States soil and thus applies to Mss. Guzman, Orantes, Mr. Vasquez and all proposed class members. 148. The named plaintiffs and proposed class members have a constitutionally protected liberty interest in (1) not being imprisoned in federal detention for an unreasonable time awaiting their credible fear interview and determination, (2) not being imprisoned in federal detention for an unreasonable time awaiting their bond hearing, and (3) having a bond hearing that is fair and comports with due process. 26 SECOND AMENDED COMPLAINT - 26 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 28 of 85 1 149. The federal government’s imprisoning plaintiffs and members of the Credible 2 Fear Interview Class in federal detention for an unreasonable time awaiting their credible fear 3 interview and determination violates their substantive due process rights. The government’s 4 prolonging these asylum seekers’ federal detention by delaying their credible fear interview and 5 determination more than 10 days does not further a legitimate purpose. The government’s 6 prolonging these asylum seekers’ federal detention by delaying their credible fear interview and 7 determination more than 10 days does not further a compelling governmental interest. 8 Defendants’ prolonging their federal detention by delaying their credible fear interview and 9 determination more than 10 days is a violation of the constitutional substantive due process 10 11 rights of plaintiffs and their children as well as of members of the Credible Fear Interview Class. 150. The federal government’s imprisoning plaintiffs and members of the Credible 12 Fear Class in federal detention for an unreasonable time awaiting their credible fear interview 13 and determination violates their procedural due process rights. That ongoing imprisonment 14 awaiting a credible fear interview and determination is contrary to the law governing expedited 15 removal proceedings and is imposed without any hearing. Defendants’ imprisoning plaintiffs 16 and members of the Credible Fear Interview Class in federal detention for an unreasonable time 17 awaiting their credible fear interview and determination is a violation of the constitutional due 18 process rights of plaintiffs and their children as well as of members of the Credible Fear 19 Interview Class. 20 151. The federal government’s imprisoning plaintiffs and members of the Bond 21 Hearing Class in federal detention for an unreasonable time awaiting a bond hearing to assess 22 their eligibility for release pending the lengthy proceedings to adjudicate their asylum claim 23 violates substantive due process. The government’s prolonging these asylum seekers’ federal 24 detention by delaying their bond hearing more than 7 days does not further a legitimate purpose. 25 The government’s prolonging these asylum seekers’ federal detention by delaying their bond 26 hearing more than 7 days does not further a compelling governmental interest. Moreover, SECOND AMENDED COMPLAINT - 27 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 29 of 85 1 denying release for general deterrence or punishment goals unrelated to the specific factors of 2 whether the individual presents a flight risk or danger to the community unlawfully deprives 3 these asylum seekers of their constitutional right to liberty. Defendants’ prolonging plaintiffs’ 4 and members of the Bond Hearing Class’s federal detention by delaying their bond hearing more 5 than 7 days is a violation of the constitutional substantive process rights of plaintiffs and 6 members of the Bond Hearing Class. 152. 7 The federal government’s imprisoning plaintiffs and members of the Bond 8 Hearing Class in federal detention for an unreasonable time awaiting a bond hearing to assess 9 their eligibility for release pending the lengthy proceedings to adjudicate their asylum claim 10 violates procedural due process. That ongoing detention is imposed without providing a bond 11 hearing with a transcript or recording of the hearing and specific, particularized findings with 12 respect to any denial of release, denies plaintiffs and members of the Bond Hearing Class an 13 adequate record to file an administrative appeal or habeas petition. Moreover, denying release 14 for general deterrence goals unrelated to the specific factors of whether the individual presents a 15 flight risk or danger to the community strips detained asylum seekers of a fair hearing. What is 16 more, placing the burden on the noncitizen to demonstrate their eligibility for release also 17 constitutes a violation of their due process rights. Defendants’ prolonging plaintiffs’ and 18 members of the Bond Hearing Class’s federal detention by failing to provide a bond hearing 19 where the burden of proof is on the government and with a verbatim transcript or recording of 20 the hearing within 7 days of requesting a bond is a is a violation of the constitutional substantive 21 due process rights of plaintiffs and their children as well as of members of the Bond Hearing 22 Class. COUNT II (Administrative Procedure Act) 23 24 25 153. 26 forth herein. All of the foregoing allegations are repeated and re-alleged as though fully set SECOND AMENDED COMPLAINT - 28 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 30 of 85 1 154. Defendants’ decision to detain plaintiffs and members of the Credible Fear 2 Interview Class for an unreasonable time awaiting their credible fear interview, without a 3 compelling justification and without a mechanism, protocol, or system to assure a prompt and 4 fair credible fear interview and determination, is a final agency action. That action violates 5 5 U.S.C. §§706(1) and (2)(A) and (B). 6 155. Defendants’ decision to detain plaintiffs and members of the Bond Hearing Class 7 for an unreasonable time awaiting a bond hearing to set reasonable conditions for their release 8 pending the lengthy proceedings to adjudicate their asylum claim, without a compelling 9 justification and without a mechanism, protocol, or system to assure a prompt and fair bond 10 hearing, is a final agency action. That action violates 5 U.S.C. §§706(1) and (2)(A) and (B). 11 12 156. Defendants’ decision to deny plaintiffsand members of the Bond Hearing Class a 13 bond hearing with adequate procedural protections, specifically a hearing where the burden of 14 proof is on the government, a recording or transcript of the hearing available for any subsequent 15 administrative appeal or habeas petition, and specific, particularized findings of any denial of 16 release, is a final agency action. That action violates 5 U.S.C. §§706(1) and (2)(A) and (B). 17 18 19 20 21 157. The APA imposes on federal agencies the duty to conclude matters presented to it within a “reasonable time.” 5 U.S.C. §555(b). 158. The APA prohibits agency action that is “unlawfully withheld or unreasonably delayed.” 5 U.S.C. §706(1). 159. Defendant DHS and its sub-agencies are required to conduct an interview to 22 assess whether an asylum seeker has a credible fear of persecution. This obligation is triggered 23 when Defendants learn of an individual’s fear of persecution. See 8 U.S.C. §1225(b)(1)(A)(ii). 24 Asylum seekers are only permitted to raise their claims before an immigration judge after the 25 asylum officer’s credible fear determination. See 8 C.F.R. § 208.30(f), (g). 26 SECOND AMENDED COMPLAINT - 29 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 31 of 85 160. 1 Conducting a credible fear interview to determine whether a person seeking 2 asylum has a credible fear of persecution is a discrete, final agency action that DHS is required to 3 take. 4 161. Defendants’ failure to expeditiously conduct a credible fear interview after 5 detaining plaintiffs and members of the Credible Fear Interview class constitutes “an agency 6 action unlawfully withheld or unreasonably delayed” under the APA. See 5 U.S.C. § 706(1). 7 162. If the asylum officer determines that an asylum seeker has a credible fear of 8 persecution, the case is transferred to EOIR for adjudication of the asylum claim by an 9 immigration judge. 10 163. An asylum seeker in the Bond Hearing Class is entitled to a bond hearing to 11 assess eligibility for his or her release from DHS custody pending the lengthy proceedings to 12 adjudicate his or her asylum claim. 13 164. Defendant EOIR’s failure to promptly conduct a bond hearing for plaintiffs and 14 members of the Bond Hearing Class within 7 days violates defendant’s legal duty under the APA 15 to conclude matters presented to it within a reasonable time. 16 165. Defendant EOIR’s failure to conduct a bond hearing for plaintiffs and members of 17 the Bond Hearing Class with appropriate procedural safeguards constitutes an agency action 18 unlawfully withheld or unreasonably delayed in violation of the APA. COUNT III (Violation of Asylum Statute) 19 20 21 22 23 24 25 166. All of the foregoing allegations are repeated and re-alleged as though fully set forth herein. 167. The Immigration and Nationality Act grants noncitizens fleeing persecution the opportunity to apply for asylum in the United States. 8 U.S.C. §1225(b)(1) (expedited removal); 8 C.F.R. §§ 235.3(b)(4), 208.30, & 1003.42; 8 U.S.C. §1158(a)(1). 26 SECOND AMENDED COMPLAINT - 30 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 32 of 85 1 2 3 4 5 168. International law likewise recognizes the fundamental human right to asylum of persons fleeing for safety from persecution and torture. 169. Noncitizens fleeing persecution have a private right of action to vindicate their right to apply for and receive asylum in the United States. 170. Defendants’ failure to promptly conduct a credible fear interview for plaintiffs 6 and members of the Credible Fear Interview Class violates the asylum statute because it 7 unlawfully infringes on their ability to pursue their asylum claims. 8 9 10 171. Defendants’ failure to promptly conduct a bond hearing to assess eligibility for the release of plaintiffs and members of the Bond Hearing Class violates the asylum statute because it unlawfully infringes on their ability to pursue their asylum claims. 11 12 13 14 VIII. PRAYER FOR RELIEF Plaintiffs respectfully request that this Court enter judgment against defendants granting the following relief: A. Certify the following Credible Fear Interview Class: “All detained asylum seekers 15 in the United States subject to expedited removal proceedings under 16 8 U.S.C. §1225(b) who are not provided a credible fear determination within 10 days 17 of requesting asylum or expressing a fear of persecution to a DHS official.” 18 19 20 B. Name plaintiffs as representatives of the Credible Fear Interview Class, and appoint their counsel as class counsel. C. Declare that defendants have an obligation to provide Credible Fear Interview Class 21 members their credible fear interview and determination within 10 days of that 22 person’s requesting asylum or expressing a fear of persecution to any DHS official. 23 D. Preliminarily and permanently enjoin defendants from not providing Credible Fear 24 Interview Class members their credible fear determination within 10 days of that 25 person’s requesting asylum or expressing a fear of persecution to any DHS official. 26 SECOND AMENDED COMPLAINT - 31 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 33 of 85 1 E. Certify the following Bond Hearing Class: “All detained asylum seekers who 2 entered the United States without inspection, were initially subject to expedited 3 removal proceedings under 8 U.S.C. §1225(b), were determined to have a credible 4 fear of persecution, but are not provided a bond hearing with a verbatim transcript or 5 recording of the hearing within 7 days of requesting a bond hearing.” 6 7 8 9 10 11 F. Name plaintiffs as representatives of the Bond Hearing Class, and appoint their counsel as class counsel. G. Declare that defendants have an obligation to provide Bond Hearing Class members a bond hearing within 7 days of their requesting a hearing to set reasonable conditions for their release pending adjudication of their asylum claim. H. Declare that defendants have an obligation to provide Bond Hearing Class members 12 (including plaintiffs) a bond hearing with adequate procedural safeguards, including a 13 verbatim transcript or recording of their bond hearing. 14 15 I. Declare that defendant DHS must bear the burden of proof to show continued detention is necessary in civil immigration proceedings. 16 J. Declare that in bond hearings immigration judges must make specific, particularized 17 written findings as to the basis for denying release from detention, including findings 18 identifying the basis for finding that the individual is a flight risk or a danger to the 19 community. 20 K. Preliminarily and permanently enjoin defendants from not providing Bond Hearing 21 Class members their bond hearing with a verbatim transcript or recording of their 22 bond hearing. 23 L. Preliminarily and permanently enjoin defendants from not providing Bond Hearing 24 Class members their bond hearing within 7 days of the asylum seeker’s request. 25 26 SECOND AMENDED COMPLAINT - 32 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 34 of 85 1 M. Preliminarily and permanently enjoin defendants from not providing Bond Hearing 2 Class members bond hearings where defendant DHS bears the burden of proof to 3 show continued detention is necessary. 4 N. N. Preliminarily and permanently enjoin defendants from not providing Bond 5 Hearing Class members where immigration judges make specific, particularized 6 written findings as to the basis for denying release from detention, including findings 7 identifying the basis for finding that the individual is a flight risk or a danger to the 8 community. 9 10 O. Order defendants to pay reasonable attorneys’ fees and costs. P. Order all other relief that is just and proper. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SECOND AMENDED COMPLAINT - 33 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 35 of 85 1 2 3 Dated this 15th day of July, 2018. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 s/ Matt Adams Matt Adams, WSBA No. 28287 Email: matt@nwirp.org s/ Thomas F. Ahearne Thomas F. Ahearne, WSBA #14844 Email: ahearne@foster.com Glenda M. Aldana Madrid, WSBA No. 46987 Email: glenda@nwirp.org *William F. Abrams, CA Bar #88805 *Admitted pro hac vice *Email: bill.abrams@foster.com Leila Kang, WSBA No. 48048 Email: leila@nwirp.org Joanna Plichta Boisen, WSBA #38368 Email: Joanna.boisen@foster.com NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone: (206) 957-8611 Facsimile: (206) 587-4025 Attorneys for Plaintiffs-Petitioners Trina Realmuto* Kristin Macleod-Ball* AMERICAN IMMIGRATION COUNCIL 100 Summer Street, 23rd Floor Boston, MA 02110 (857) 305-3600 trealmuto@immcouncil.org kmacleod-ball@immcouncil.org Benjamin J. Hodges, WSBA #49301 Email: ben.hodges@foster.com Kevin Ormiston, WSBA #49835 Email: kevin.ormiston@foster.com FOSTER PEPPER PLLC 1111 Third Avenue, Suite 3000 Seattle, Washington 98101-3292 Telephone: (206) 447-4400 Facsimile: (206) 447-9700 Attorneys for Plaintiffs-Petitioners *Application for pro hac vice admission forthcoming 21 22 23 24 25 26 SECOND AMENDED COMPLAINT - 34 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 36 of 85 1 2 3 4 CERTIFICATE OF SERVICE I hereby certify that on July 15, 2018, I had the foregoing electronically filed with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to those attorneys of record registered on the CM/ECF system. All other parties (if any) shall be served 5 6 7 in accordance with the Federal Rules of Civil Procedure. DATED this 15th day of July, 2018. 8 s/ Thomas F. Ahearne FOSTER PEPPER PLLC 1111 Third Avenue, Suite 3000 Seattle, Washington 98101-3292 Telephone: (206) 447-8934 Facsimile: (206) 447-9700 Email: ahearne@foster.com 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SECOND AMENDED COMPLAINT - 35 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case Document 25-1 Filed 08/22/18 Page 37 of 85 EXHIBIT Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 38 of 85 1 The Honorable Marsha J. Pechman 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE YOLANY PADILLA, on behalf of herself and her 6-year-old son J.A.; IBIS GUZMAN, on behalf of herself and her 5-year-old son R.G.; BLANCA ORANTES, on behalf of herself and her 8-year-old son A.M.; BALTAZAR VASQUEZ, on behalf of himself; Plaintiffs-Petitioners, v. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (“ICE”); U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); U.S. CITIZENSHIP AND IMMIGRATION SERVICES (“USCIS”); EXECUTIVE OFFICE FOR IMMIGRATION REVIEW (“EOIR”); U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES (“HHS”); OFFICE OF REFUGEE RESETTLEMENT (“ORR”); THOMAS HOMAN, Acting Director of ICE; KIRSTJEN NIELSEN, Secretary of DHS; KEVIN K. McALEENAN, Acting Commissioner of CBP; L. FRANCIS CISSNA, Director of USCIS; ALEX M. AZAR II, Secretary of HHS; SCOTT LLOYD, Director of ORR; MARC J. MOORE, Seattle Field Office Director;, ICE;, JEFFERSON BEAUREGARD SESSIONS III, United States Attorney General; LOWELL CLARK, warden of the Northwest Detention Center in Tacoma, Washington; CHARLES INGRAM, warden of the Federal Detention Center in SeaTac, Washington; DAVID SHINN, warden of the Federal Correctional Institute in Victorville, California;JAMES JANECKA, warden of the Adelanto Detention Facility; No. 2:18-cv-928 MJP SECOND AMENDED COMPLAINT: CLASS ACTION FOR INJUNCTIVE AND DECLARATORY RELIEF Defendants-Respondents. 26 SECOND AMENDED COMPLAINT - 1 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 39 of 85 1 I. 2 1. INTRODUCTION This lawsuit initially challengeds the legality of the following three parts of the 3 federal government’s zero-tolerance policy with respect to persons fleeing for safety and asylum 4 in the United States: (1) family separations, (2) credible fear interviews and determinations, and 5 (3) the related bond hearings. 6 A. 7 Family Separations 2. This lawsuit previously challengeds the legality of the government’s 8 zero-tolerance practice of forcibly ripping children away from parents seeking asylum. The day 9 after plaintiffs filed this suit in the Western District of Washington, however, a federal court in 10 the Southern District of California issued a nationwide preliminary injunction Order against this 11 forcible separation. (Ms. L v. ICE, S.D.Cal. case no. 18cv0428 DMS (MDD), docket no. 83). 12 3. With this Second Amended Complaint, plaintiffs confirm that they are not 13 waiving their previously-asserted claims for relief with respect to forcible separation, but will not 14 further pursue those claims in this case pending defendants’ promised compliance with the Ms. L 15 v. ICE Order. 16 B. 17 Credible Fear Interviews & Determinations 4. This lawsuit also challenges the legality of the government’s policy or 18 zero-tolerance practice of excessively prolonging the detention of asylum seekers placed in 19 expedited removal proceedings by failing to promptly provide them their credible fear interview 20 and determination. Federal law requires that persons who have asked for asylum or expressed a 21 fear of persecution must be scheduled for a “credible fear interview” with a DHS official to 22 determine whether that person should be allowed to proceed with applying for asylum because 23 he or she has a credible fear of persecution. If the interviewer determines the asylum seeker does 24 have a credible fear of persecution, the government assigns the case to the federal immigration 25 court for hearings to adjudicate the merits of that person’s asylum claim. If the interviewer 26 determines the asylum seeker does not have a credible fear of persecution, the asylum seeker can SECOND AMENDED COMPLAINT - 2 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 40 of 85 1 appeal that determination to a federal immigration judge. But in either case, the federal 2 government detains the asylum seeker until it determines that she or he has a credible fear of 3 persecution. The Ms. L v. ICE Order did not address the federal government’s lengthy delays in 4 conducting these statutorily required credible fear interviews and or determinations. 1. 5 With this Second Amended Complaint, plaintiffs clarify and confirm their full 6 pursuit of their claims with respect to defendants’ excessively prolonging the detention of 7 asylum seekers by failing to promptly provide the credible fear interviews and determinations 8 required by federal law. 9 D.C. 10 Bond Hearings 5. This lawsuit also challenges the legality of the government’s related policy or 11 zero-tolerance practice of excessively prolonging the detention of asylum seekers by failing to 12 promptly conduct the bond hearings required by federal law after an asylum seeker’s positive 13 completion of their credible fear interview. Federal law requires that if an asylum seeker enters 14 the United States at a location other than a designated “Port Of Entry” and is determined to have 15 a credible fear of persecution in his or her credible fear interview, that asylum seeker is entitled 16 to an individualized bond hearing before an immigration judge to determine reasonable 17 conditions for that person’s release from federal detention while he or she awaits the many 18 months it takes to adjudicate his or her asylum claim (e.g., a reasonable bond amount or parole 19 without posting a monetary bond). This bond hearing must comport with constitutional 20 requirements. Yet the government does not establish any timeline for setting this hearing, and as 21 a matter of practice, does not even audio record or provide a transcript of this hearing for appeal 22 or appellate review (unlike other hearings in removal proceedings before the immigration judge). 23 The government also places the burden on asylum seekers to demonstrate in the bond hearing 24 that they should not continue to be detained throughout the lengthy immigration proceedings. 25 When an immigration judge denies bond, the immigration judge routinely fails to even make 26 specific findings but instead simply checks a box on a template order. The Ms. L v. ICE Order SECOND AMENDED COMPLAINT - 3 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 41 of 85 1 did not address the federal government’s failure to conduct prompt bond hearings that comport 2 with constitutional requirements. 1. 3 With this Second Amended Complaint, plaintiffs specify their claims with respect 4 to defendants’ excessively prolonging the detention of asylum seekers by failing to promptly 5 conduct the bond hearings required by federal law. 6 F.D. 7 United States Constitution 6. The Bill of Rights prohibits the federal government from depriving any person of 8 their liberty without due process of law (U.S. Constitution, 5th Amendment). The Bill of Rights 9 also prohibits the federal government from imposing or inflicting on any person any excessive 10 11 bail or any cruel punishments. (U.S. Constitution, 8th Amendment). 7. Asylum seekers who cross the United States border are persons. They 12 accordingly have a constitutionally protected liberty interest in (1) remaining together as a 13 family, (2) not being imprisoned for an unreasonable time awaiting their credible fear interview 14 and determination, and (32) not being imprisoned without the opportunity for a prompt bond 15 hearing that comports with constitutional requirements. And especially with respect to the 16 federal government’s avowed zero-tolerance policy or practice to deter criminal violations of 17 federal immigration laws, asylum seekers also have a constitutionally protected interest in 18 (34) not being subjected to prolonged imprisonment for deterrence or penalty reasons unrelated 19 to adjudicating the merits of their individual asylum claim, and (54) not being subjected to cruel 20 punishments though unreasonably delayed or denied bond or parole. 21 8. With this Second Amended Complaint, plaintiffs specify with more particularity 22 how defendants’ implementation of the federal government’s zero-tolerance policypolicies and 23 practices with respect to persons fleeing for safety and seeking asylum in the United States 24 violates the United States Constitution. 25 26 SECOND AMENDED COMPLAINT - 4 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 42 of 85 1 G.E. 2 Federal Law 9. Federal law prohibits final agency action that is arbitrary, capricious, unlawfully 3 withheld, or unreasonably delayed (e.g., Administrative Procedures Act, 5 U.S.C. §706). Federal 4 law also grants persons fleeing persecution the right to apply for safety and asylum in the United 5 States (e.g., 8 U.S.C. §§ 1225 & 1158; 8 C.F.R. §§ 235.3, 208.30, & 1003.42). 6 10. Federal law accordingly prohibits federal agencies from arbitrarily or capriciously 7 depriving an asylum seeker of their child, their prompt credible fear interview and determination, 8 or their prompt bond hearing. Federal law prohibits federal agencies from unlawfully 9 withholding or unreasonably delaying an asylum seeker’s reunification with their child, an 10 asylum seeker’s credible fear interview and determination, or an asylum seeker’s bond hearing. 11 And federal law prohibits federal agencies from impeding or seeking to deter an asylum seeker’s 12 legal right to apply for asylum. 13 11. With this Second Amended Complaint, plaintiffs specify with more particularity 14 how defendants’ implementation of the federal government’s zero-tolerance policy policies and 15 practices with respect to persons fleeing for safety and asylum in the United States violates 16 federal law. 17 H.F. 18 Requested Relief 12. With respect to (1) family separations, (2) credible fear interviews and 19 determinations, and (32) the related bond hearings, plaintiffs request injunctive relief requiring 20 defendants to cease their policies and practices implementing the federal government’s zero- 21 tolerance policy or practice in violation of the United States Constitution and federal law. 22 Plaintiffs request declaratory relief to terminate the parties’ disagreement with respect to whether 23 (and how) defendants’ implementation of the federal government’s zero-tolerance policy policies 24 or practices with respect to persons fleeing for safety and asylum in the United States violates the 25 United States Constitution and federal law. Lastly, plaintiffs request whatever additional relief 26 this Court finds warranted, just, or equitable. SECOND AMENDED COMPLAINT - 5 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 43 of 85 1 2 II. 13. JURISDICTION This case arises under the Fifth and Eighth Amendments of the United States 3 Constitution, the Administrate Procedures Act (“APA”), and federal asylum statutes. This Court 4 has jurisdiction under 28 U.S.C. § 1331 (federal question jurisdiction); 28 U.S.C. § 2241 (habeas 5 jurisdiction); and Article I, § 9, clause 2 of the United States Constitution (“Suspension Clause”). 6 7 8 9 14. The original plaintiffs in this case were all in custody for purposes of habeas jurisdiction when this action was filed on June 25, 2018. 15. After this action was filed, plaintiffs Padilla, Orantes, and Guzman waeres eventually released from detention after tshey wasere eventually provided a her credible fear 10 interview and individualized bond hearings before an immigration judge. At the time this 11 Second Amended Complaint is electronically filed on August 22July 15, 2018, plaintiffs 12 Guzman, Orantes, and Vasquez isare still in custody for purposes of habeas jurisdiction. 13 16. At the time this Second Amended Complaint is electronically filed on August 14 22July 15, 2018, all but one of the children that the federal government took away from plaintiffs 15 have been returned to their mothers after roughlyapproximately two months of being 16 separated.are still in custody for purposes of habeas jurisdiction. (That one child, Yolany 17 Padilla’s 6-year-old son, was finally returned to his mother yesterday, July 14, 2018.) 18 III. 19 17. VENUE Venue lies in this District under 28 U.S.C. § 1391 because a substantial portion of 20 the relevant facts occurred within this District. Those facts include defendants’ detention of 21 plaintiffs Padilla, Guzman, and Orantes in this District while forcibly separated from their 22 children, failure in this District to promptly conduct a credible fear interview and determination 23 for their asylum claims, and failure in this District to promptly conduct bond hearings that 24 comport with constitutional requirements to set reasonable conditions for release pending 25 adjudication of their asylum claims. 26 SECOND AMENDED COMPLAINT - 6 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 44 of 85 1 2 3 4 5 6 7 8 9 10 IV. 18. PARTIES Plaintiff Yolany Padilla is a human being seeking asylum for herself and her 6-year-old son (J.A) in the United States. She is a citizen of Honduras. 19. Plaintiff Ibis Guzman is a human being seeking asylum for herself and her 5-year-old son (R.G.) in the United States. She is a citizen of Honduras. 20. Plaintiff Blanca Orantes is a human being seeking asylum for herself and her 8-year-old son (A.M.) in the United States. She is a citizen of El Salvador. 21. Plaintiff Baltazar Vasquez is a human being seeking asylum in the United States. He is a citizen of El Salvador. 22. Defendant U.S. Immigration and Customs Enforcement (“ICE”) is the federal 11 government agency that carries out removal orders and oversees immigration detention. ICE is 12 part of DHS. ICE’s responsibilities include determining whether an asylum seeker will be 13 released and how soon his or her case will be submitted for a credible fear interview and 14 subsequent proceedings on the merits before the immigration court. ICE’s local field office in 15 Tukwila, Washington, is responsible for determining whether plaintiffs detained in Washington 16 will be released, and how soon their cases will be submitted for credible fear interview and 17 subsequent proceedings before the immigration court. 18 23. Defendant U.S. Department of Homeland Security (“DHS”) is the federal 19 government agency that enforces immigration laws of the United States. DHS’s responsibilities 20 include determining whether an asylum seeker will be released and how soon his or her case will 21 be submitted for a credible fear interview and subsequent proceedings before the immigration 22 court. DHS’s local field office in Tukwila, Washington, is responsible for determining whether 23 plaintiffs detained in Washington will be released, and how soon their cases will be submitted for 24 credible fear interview and subsequent proceedings before the immigration court. 25 26 24. Defendant U.S. Customs and Border Protection (“CBP”) is the federal government agency that conducts the initial processing and detention of asylum seekers crossing SECOND AMENDED COMPLAINT - 7 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 45 of 85 1 the U.S. border. CBP is part of DHS. CBP’s responsibilities include determining whether an 2 asylum seeker will be released and how soon his or her case will be submitted for a credible fear 3 interview and determination. 4 25. Defendant U.S. Citizenship and Immigration Services (“USCIS”) is the federal 5 government agency that, through its asylum officers, interviews asylum seekers to determine 6 whether they should be assigned to the immigration court to be allowed to proceed with applying 7 for asylum because they have a credible fear of persecution. USCIS is a part of DHS. 8 26. Defendant Executive Office for Immigration Review (“EOIR”) is the federal 9 government agency that is responsible for conducting immigration court proceedings, including 10 adjudicating plaintiffs’ asylum claims in removal proceedings and conducting individual bond 11 hearings for persons in removal proceedings. EOIR is a part of the Department of Justice. 12 27. Defendant U.S. Department of Health and Human Services (“HHS”) is the federal 13 government agency that has been delegated authority to make custody determinations for 14 “unaccompanied” noncitizen children. 15 28.27. Defendant Office of Refugee Resettlement (“ORR”) is the federal government 16 agency that that has been delegated responsibility to care for and place “unaccompanied” 17 noncitizen children. ORR is part of HHS. 18 19 20 21 22 29.28. Defendant Thomas Homan is sued in his official capacity as the Director of ICE, and is a legal custodian of plaintiff Vasquez and putative class membersdetained plaintiffs. 30.29. Defendant Marc J. Moore is sued in his official capacity as the ICE Seattle Field Office Director, and is a legal custodian of detained plaintiffs. 31.30. Defendant Kirstjen Nielsen, is sued in her official capacity as the Secretary of 23 DHS. In this capacity, she directs DHS, ICE, CBP, and USCIS. As a result, defendant Nielsen 24 has responsibility for the administration of immigration laws pursuant to 8 U.S.C. §1103 and is a 25 legal custodian of detained plaintiffs. 26 SECOND AMENDED COMPLAINT - 8 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 46 of 85 32.31. Defendant Kevin K. McAleenan is sued in his official capacity as the 1 2 Commissioner of CBP. 3 4 33.32. Defendant L. Francis Cissna is sued in his official capacity as the Director of USCIS. 5 34. Defendant Alex M. Azar II is sued in his official capacity as the Secretary of 7 35. Defendant Scott Lloyd is sued in his official capacity as the Director of ORR. 8 36.33. Defendant Jefferson Beauregard Sessions III is sued in his official capacity as the 6 9 HHS. United States Attorney General. In this capacity, he directs agencies within the United States 10 Department of Justice, including EOIR. Defendant Sessions has responsibility for the 11 administration of immigration laws pursuant to 8 U.S.C. §1103, oversees defendant EOIR, and is 12 empowered to grant asylum or other relief, including custody determinations made for persons in 13 removal proceedings. 14 15 37.34. Defendant Lowell Clark is sued in his official capacity as the warden of the Northwest Detention Center in Tacoma, Washington. 16 17 38.35. Defendant Charles Ingram is sued in his official capacity as the warden of the Federal Detention Center in SeaTac, Washington. 18 19 36. Federal Correctional Institute in Victorville, California. 39.37. Defendant James Janecka is sued in his official capacity as the warden of the 20 21 Defendant David Shinn is sued in his official capacity as the warden of the Adelanto Detention Facility in Adelanto, California. 22 23 V. A. FACTS Seeking Asylum 24 40.38. Federal law allows a person to seek asylum in the United States. 25 41.39. Plaintiffs are persons seeking asylum in the United States. 26 SECOND AMENDED COMPLAINT - 9 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 47 of 85 1 2 3 4 5 6 7 42. Some asylum seekers cross the U.S.-Mexico border at one of the “Ports Of Entry” designated by the United States government. 43. An asylum seeker who crosses the border at a designated Port Of Entry and openly declares them self to a CBP agent is referred to as being an “arriving” asylum seeker. 44. An asylum seeker who crosses the border at a Port Of Entry and does not openly declares them self to a CBP agent is referred to as “entering without inspection.” 45. An asylum seeker who crosses the U.S.-Mexico border at a location that is 8 between the Ports Of Entry designated by the United States government is also referred to as 9 “entering without inspection.” 10 11 12 46.40. Plaintiff Yolany Padilla and her 6-year-old son J.A. are asylum seekers who fled physical danger and persecution in Honduras. 47.41. On or about May 18, 2018, plaintiff Yolany Padilla and her 6-year-old son J.A 13 crossed the U.S.-Mexico border at a location between Ports Of Entry designated by the United 14 States government. They were arrested by a CBP agent as they were making their way to the 15 closest Port Of Entry. She informed the CBP agent that they were seeking asylum. 16 17 18 48.42. Plaintiff Ibis Guzman and her 5-year-old son R.G. are asylum seekers who fled physical danger and persecution in Honduras. 49.43. On or about May 16, 2018, plaintiff Ibis Guzman and her 5-year-old son R.G. 19 crossed the U.S.-Mexico border at a location between Ports Of Entry designated by the United 20 States government. They were arrested by a CBP agent. She informed the CBP agent that they 21 were seeking asylum. 22 23 24 25 50.44. Plaintiff Blanca Orantes and her 8-year-old son A.M. are asylum seekers who fled physical danger and persecution in El Salvador. 51.45. On or about May 21, 2018, plaintiff Blanca Orantes and her 8-year-old son A.M. crossed the U.S.-Mexico border at a location between Ports Of Entry designated by the United 26 SECOND AMENDED COMPLAINT - 10 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 48 of 85 1 States government. They immediately walked to the CBP station to request asylum, and were 2 arrested by a CBP agent. She informed the CBP agent that they were seeking asylum. 3 4 52.46. Plaintiff Baltazar Vasquez is an asylum seeker who fled physical danger and persecution in El Salvador. 5 53.47. On or about June 1, 2018, Baltazar Vasquez crossed the U.S.-Mexico border at a 6 location between Ports Of Entry designated by the United States government. He was arrested 7 by a CBP agent, and informed the CBP agent that he was seeking asylum. 8 B. 9 Defendants’ Zero-Tolerance Policy or Practice 54.48. Defendant Attorney General Sessions made an announcement about the federal 10 government’s “Zero-Tolerance Policy” on April 6, 2018, See 11 https://www.justice.gov/opa/pr/attorney-general-announces-zero-tolerance-policy-criminal- 12 illegal-entry. 13 55.49. The federal government’s zero-tolerance policy was designed to be a coordinated 14 effort to deter asylum seekers entering the country and exercising their right to apply for asylum 15 by criminally prosecuting them, forcibly separating them from their children, and imposing 16 prolonged, uncertain imprisonment (euphemistically called “detention”) on them. 17 18 56.50. The federal government’s zero-tolerance policy has been implemented against asylum seekers who enter the country without inspection requesting asylum. 19 57.51. The federal government’s zero-tolerance policy has also been implemented 20 against asylum seekers who appear at a Port Of Entry to request asylum. 21 C. 22 23 24 25 Promptly Taking Children Away From Parents Seeking Asylum 58.52. One part of the federal government’s zero-tolerance policy or practice is was to promptly take children away from parents seeking asylum in the United States. 59.53. The federal government would sends the parent and child to separate federal detention facilities – often in different states thousands of miles away from each other. 26 SECOND AMENDED COMPLAINT - 11 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 49 of 85 1 60.54. A child’s forced separation from a parent causes the child severe trauma. This 2 damage is even worse for children who are already traumatized from fleeing danger and 3 persecution in their home country. The cognitive and emotional damage caused by a child’s 4 forced separation from a parent can be permanent. 5 61.55. A parent’s forced separation from their child is also deeply damaging to the 6 parent. This damage is even worse for parents who are already traumatized from fleeing danger 7 and persecution in their home country, are given little to no information regarding the well-being 8 or whereabouts of their child, and fear they may never see their child again. 9 62.56. The federal government promptly tookakes children away from parents seeking 10 asylum in the United States without any demonstration in a hearing that that parent is unfit or 11 presents any danger to the child. 12 63.57. The federal government promptly tookakes children away from parents seeking 13 asylum in the United States without any evidence or accusation that the parent seeking asylum is 14 an unfit parent, or presents a danger to the child, or is not acting in the child’s best interest, or is 15 a threat to the child’s safety, or abused the child, or neglected the child. 16 17 18 64.58. The federal government promptly tookakes children away from parents seeking asylum in the United States to penalize and deter persons from seeking asylum. 65.59. The federal government promptly tookakes children away from parents seeking 19 asylum in the United States as part of its zero-tolerance policy against criminal violations of 20 federal immigration laws. 21 66.60. Plaintiffs Yolany Padilla, Ibis Guzman, and Blanca Orantes are parents who 22 sought asylum and were (1) detained in immigration custody by defendants in Washington State 23 and (2) separated from a minor child by defendants without any demonstration in a hearing that 24 that parent is unfit or presents a danger to the child. 25 26 67.61. When plaintiff Yolany Padilla and her 6-year-old son J.A were taken into custody, a federal agent promptly announced that Yolany Padilla’s son would be taken away SECOND AMENDED COMPLAINT - 12 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 50 of 85 1 from her. Her 6-year-old son clutched his mother’s shirt and said, “no, mommy, I don’t want to 2 go.” She reassured her son that any separation would be short, and that everything would be 3 okay. She was able to stay with her son as they were transferred to one of the federal detention 4 buildings that detainees commonly refer to as “the hielera” (“the freezer”) because of its cold 5 temperatures. Once they arrived, Yolany Padilla’s 6-year-old son was forcibly taken away from 6 her without explanation. 7 68.62. Yolany Padilla’s 6-year-old son was taken away from her without any hearing, 8 and without any accusation or evidence that she is in any way an unfit parent, or that she is in 9 any way not acting in his best interest fleeing for safety in the United States, or that she is in any 10 way a threat to his safety, or that she in any way abused him, or that she in any way neglected 11 him. 12 69.63. Yolany Padilla was then transferred to another federal facility in Laredo, Texas 13 about three days later. The federal officers in that facility took her son’s birth certificate from 14 her. When she asked for it back, she was told the immigration authorities had it. No one has 15 returned her son’s birth certificate to her. 16 17 18 70.64. About twelve days later, Yolany Padilla was transferred to the Federal Detention Center in SeaTac, Washington. 71.65. Despite repeated inquiries into her son’s whereabouts, Yolany Padilla was not 19 provided any information about her son until about a month into her detention, when the 20 Honduran consul visited the detention center and she explained she had no news of her son. 21 Soon thereafter she was given a piece of paper saying her son had been put in a place called 22 “Cayuga Center” in New York. That piece of paper also had a phone number, but she was not 23 able to call her son that day because she did not have money to make a long distance phone call. 24 25 72.66. The next day, someone gave Yolany Padilla the opportunity to call her son for about ten minutes. Her 6-year-old son mostly cried quietly. 26 SECOND AMENDED COMPLAINT - 13 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 51 of 85 1 2 73.67. Yolany Padilla was not released from federal imprisonment until July 6, 2018, after an immigration judge finally granted her a bond. 3 74.68. Yolany Padilla’s 6-year-old son was not released from federal imprisonment until 4 July 14, 2018. That was almost two months after the federal government forcibly took him away 5 from his mom. 6 75.69. CBP transported plaintiff Ibis Guzman and her 5-year-old son R.G. to one of the 7 federal detention buildings in Texas that detainees commonly refer to as “the hielera” (“the 8 freezer”) because of its cold temperatures. One CBP agent questioned Ibis Guzman, and 9 another CBP agent forcibly took her son away stating she would see her son again in three days. 10 76.70. Ibis Guzman’s 5-year-old son was taken away from her without any hearing, and 11 without any accusation or evidence that she is in any way an unfit parent, or that she is in any 12 way not acting in his best interest fleeing for safety in the United States, or that she is in any way 13 a threat to his safety, or that she in any way abused him, or that she in any way neglected him. 14 77.71. After three days, Ibis Guzman was transferred to a different CBP facility in 15 Texas. When she asked the federal agents there about the reunification with her son that the 16 CBP agent had promised, they told her they did not know anything about her son’s whereabouts. 17 78.72. Ibis Guzman was then transferred to another federal facility in Laredo, Texas, 18 where she was detained without any knowledge of the whereabouts of her 5-year-old son and 19 without any means to contact him. She did not receive any information about him during this 20 time, despite her repeated attempts to obtain such information. 21 22 23 79.73. About two weeks later, Ibis Guzman was transferred to the Federal Detention Center in SeaTac, Washington. 80.74. Ibis Guzman was not provided any information about her 5-year-old son until 24 about a week later, when she was told that her son had been given to a place called “Baptist 25 Child and Family Services” in San Antonio, Texas. But she was still not able to contact him. 26 SECOND AMENDED COMPLAINT - 14 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 52 of 85 75. 1 On June 20, 2018, Ibis Guzman was transferred to the Northwest Detention 2 Center in Tacoma, Washington., where she continues to be held, separated from her 5-year-old 3 son. 4 5 76. Ibis Guzman was denied bond by the immigration judge at her bond hearing on July 3, 2018. 6 81.77. She was not released until on or about July 31, 2018, after the federal government 7 was forced in order to comply with the preliminary injunction in Ms. L., and thereafter reunited 8 with her child. 9 82.78. CBP transported plaintiff Blanca Orantes and her 8-year-old son A.M. to a 10 federal detention facility in Texas. CBP agents led Blanca Orantes into one of the federal 11 detention buildings that detainees commonly refer to as “the hielera” (“the freezer”) because of 12 its cold temperatures, and took her 8-year-old son to another part of that detention facility. 13 83.79. While a CBP agent was later interviewing Blanca Orantes, another agent brought 14 her 8-year-old son to her and told her to “say goodbye” to him because they were being 15 separated. Her 8-year-old son began crying and pleading for his mom not to leave him. She has 16 not seen her son since then. 17 84.80. Blanca Orantes’ 8-year-old son was taken away from her without any hearing, 18 and without any accusation or evidence that she is in any way an unfit parent, or that she is in 19 any way not acting in his best interest fleeing for safety in the United States, or that she is in any 20 way a threat to his safety, or that she in any way abused him, or that she in any way neglected 21 him. 22 85.81. On or around May 24, 2018, Blanca Orantes was handcuffed and taken to court. 23 She pled guilty to improper entry under 8 U.S.C. §1325 and was sentenced to time served. She 24 was then returned to her cell. 25 26 86.82. About nine days later, Blanca Orantes was transported to the Federal Detention Center in SeaTac, Washington. SECOND AMENDED COMPLAINT - 15 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 53 of 85 87.83. The federal government did not provide Blanca Orantes any information about 1 2 her 8-year-old son until June 9, 2018, when an ICE officer handed her a slip of paper saying her 3 son was being held at place called “Children’s Home of Kingston” in Kingston, New York. 4 84. On June 20, 2018, Blanca Orantes was transferred to the Northwest Detention 5 Center in Tacoma, Washington, where she was finally allowed to speak to her 8-year-old son by 6 telephone. To date, she has not been allowed to see her 8-year-old son, and has rarely been 7 allowed to speak to him by phone. 8 9 85. Blanca Orantes was denied bond by the immigration judge at her bond hearing on July 16, 2018. 10 88.86. She was not released until on or about July 24, 2018, in order to comply with the 11 preliminary injunction in Ms. L., and thereafter reunited with her child. 12 D. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Failing To Promptly Provide The Credible Fear Interview & Determination Required By Federal Law 89.87. One part of the federal government’s zero-tolerance policy or practice is to keep asylum seekers in limbo in federal detention by delaying the threshold credible fear interview to which asylum seekers are entitled under federal law. 90.88. Detained asylum seekers who are subject to expedited removal are not permitted to move forward with their asylum claims until a credible fear determination has been made by a DHS official. 91.89. The federal government keeps asylum seekers in limbo in federal detention by delaying their credible fear interview in part to penalize and deter persons from seeking asylum. 92.90. The federal government keeps asylum seekers in limbo in federal detention by delaying their credible fear interview as part of its zero-tolerance policy against criminal violations of federal immigration laws. 93.91. The federal government has not established any procedural timeframes for providing asylum seekers the credible fear interview and determinations required by federal law. SECOND AMENDED COMPLAINT - 16 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 54 of 85 1 94.92. Plaintiffs Yolany Padilla, Ibis Guzman, Blanca Orantes, and Baltazar Vasquez are 2 detained asylum seekers subject to expedited removal proceedings under 8 U.S.C. § 1225(b) who 3 were not provided a credible fear interview and determination within 10 days of requesting 4 asylum or expressing a fear of persecution to a DHS official. 5 6 7 8 9 10 11 95.93. When plaintiff Yolany Padilla first spoke with the CBP agent on or about May 18, 2018, she told the CBP agent that she and her son were requesting asylum. 96.94. Neither Yolany Padilla nor her son were provided a credible fear interview within 10 days of requesting asylum or expressing a fear of persecution to a DHS official. 97.95. Neither Yolany Padilla nor her son were provided a credible fear interview as of the date this lawsuit was originally filed on June 25, 2018. 98.96. Instead, Yolany Padilla was not provided her credible fear interview until July 2, 12 2018. That was more than a month after federal officials imprisoned her. The DHS official 13 conducting her credible fear interview determined that Yolany Padilla does have a credible fear 14 of persecution, and therefore assigned her asylum claim to immigration court for adjudication on 15 the merits 16 17 18 19 20 21 22 99.97. When plaintiff Ibis Guzman first spoke with the CBP agent on or about May 16, 2018, she told the CBP agent that she and her son were requesting asylum. 100.98. Neither Ibis Guzman nor her son were provided a credible fear interview within 10 days of requesting asylum or expressing a fear of persecution to a DHS official. 101.99. Neither Ibis Guzman nor her son were provided a credible fear interview as of the date this lawsuit was originally filed on June 25, 2018. 102.100. Instead, Ibis Guzman was not provided her credible fear interview until 23 June 27, 2018. That was more than a month after federal officials imprisoned her. The DHS 24 official conducting her credible fear interview determined that Ibis Guzman does have a credible 25 fear of persecution, and therefore assigned her asylum claim to immigration court for 26 adjudication on the merits. SECOND AMENDED COMPLAINT - 17 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 55 of 85 1 2 103.101. When plaintiff Blanca Orantes first spoke with the CBP agent on or about May 21, 2018, she told the CBP agent that she and her son were requesting asylum. 3 104.102. Neither Blanca Orantes nor her son were provided a credible fear 4 interview within 10 days of requesting asylum or expressing a fear of persecution to a DHS 5 official. 6 7 105.103. interview as of the date this lawsuit was originally filed on June 25, 2018. 8 9 Neither Blanca Orantes nor her son were provided a credible fear 106.104. Instead, Blanca Orantes was not provided her credible fear interview until June 27, 2018. That was more than a month after federal officials imprisoned her. The DHS 10 official conducting her credible fear interview determined that Blanca Orantes does have a 11 credible fear of persecution, and therefore assigned her asylum claim to immigration court for 12 adjudication on the merits. 13 14 107.105. about June 1, 2018, he told the CBP agent that he was requesting asylum. 15 16 108.106. Baltazar Vasquez was not provided a credible fear interview within 10 days of requesting asylum or expressing a fear of persecution to a DHS official. 17 18 When plaintiff Baltazar Vasquez first spoke with the CBP agent on or 109.107. Baltazar Vasquez was not provided a credible fear interview as of the date this lawsuit was originally filed on June 25, 2018. 110.108. 19 Baltazar Vasquez was not scheduled for provided a credible fear interview 20 until afteras of the date theis First Amended Complaint wais electronically filed on July 15, 21 2018. 22 111.109. Baltazar Vasquez was not provided his credible fear interview until July 23 31, 2018. That was almost two months after federal officials imprisoned him. The DHS official 24 conducting his credible fear interview determined that Baltazar Vasquez does have a credible 25 fear of persecution, and therefore referred his case assigned his asylum claim to an immigration 26 court for adjudication on of the merits of his asylum claim. SECOND AMENDED COMPLAINT - 18 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 56 of 85 112.110. 1 Baltazar Vasquez is currently imprisoned at the Adelanto Detention 2 facility in the Bureau of Prison’s Federal Correctional Institute in AdelantoVictorville, 3 California. 4 E. 5 Failing To Promptly Provide The Bond Hearing Required By Federal Law 113.111. One part of the federal government’s zero-tolerance policy or practice is to 6 prolong imprisonment without a proper bond hearing for asylum seekers who entered the United 7 States without inspection. 8 9 10 11 114.112. The federal government keeps asylum seekers in limbo in federal detention by delaying their bond hearing in part to penalize and deter persons from seeking asylum. 115.113. The federal government keeps asylum seekers in limbo in federal 12 detention by delaying their bond hearing as part of its zero-tolerance policy against criminal 13 violations of federal immigration laws. 14 116.114. The federal government has not established any procedural timeframes for 15 timely providing the bond hearings required by federal law. The federal government has not 16 established basic procedural safeguards for bond hearings such as verbatim transcripts or audio 17 recordings of bond hearings. The absence of such basic safeguards impedes an imprisoned 18 asylum seeker’s ability to meaningful appeal the denial of bond in their individual case as not 19 being based on evidence of legally relevant factors (i.e., their being a flight risk or danger to the 20 community) instead of legally irrelevant factors (e.g., the zero-tolerance policy’s general goal of 21 punishing and deterring asylum seekers). Defendant EOIR maintains audio recordings of 22 proceedings before an Immigration Judge other than bond hearings, and provides verbatim 23 transcripts on appeals to the Board of Immigration Appeals. But Ddefendant EOIRs does not 24 maintain audio recordings of an asylum seeker’s bond hearing or provide verbatim transcripts for 25 appeal of bond hearing determinations. Indeed, when an immigration judge denies bond, they 26 routinely do not even make specific, particularized findings, and instead simply checking a box SECOND AMENDED COMPLAINT - 19 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 57 of 85 1 on a template order. Moreover, Defendants place the burden of proof on the 2 immigrantnoncitizen to demonstrate that they should not continue to be detained throughout their 3 lengthy immigration proceedings. 4 117.115. Plaintiff Yolany Padilla is an asylum seeker who originally entered the 5 United States without inspection, was initially subject to expedited removal proceedings under 6 8 U.S.C. §1225(b) and detained, was determined to have a credible fear of persecution, but was 7 not provided a timely bond hearing with a verbatim transcript or audio recording. 8 9 118.116. The federal government did not provide Yolany Padilla a bond hearing until after she filed this lawsuit. At the conclusion of that bond hearing, an order was issued 10 allowing her to be released from federal detention upon posting an $8,000on bond pending the 11 adjudication of her asylum claim on the merits. To her knowledge, there is no verbatim 12 transcript or recording of her bond hearing. At the bond hearing, the immigration judge placed 13 the burden of proof on Yolany Padilla to demonstrate that she was qualified for a bond. 14 119.117. Plaintiffs Ibis Guzman is a detained asylum seeker who originally entered 15 the United States without inspection, was initially subject to expedited removal proceedings 16 under 8 U.S.C. §1225(b), was determined to have a credible fear of persecution, but was not 17 provided a timely bond hearing with a verbatim transcript or audio recording. 18 120.118. The federal government did not provide Ibis Guzman a bond hearing until 19 after she filed this lawsuit. At the bond hearing, the immigration judge placed the burden of 20 proof on Ibis Guzman to demonstrate that she qualified for a bond. At the conclusion of that 21 bond hearing, an immigration judge issued an order denying her release on any bond amount 22 pending the adjudication of her asylum claim on the merits. 23 121.119. The immigration judge did not make specific, particularized findings for 24 the basis of the denial. The immigration judge circled the preprinted words “Flight Risk” on a 25 form order, rendering her ineligible for bond even though a DHS official had already determined 26 SECOND AMENDED COMPLAINT - 20 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 58 of 85 1 she has a credible fear of persecution and even though the federal government has taken away 2 her 6-year-old son. 3 122. The immigration judge provided no written explanation for circling “Flight Risk” 4 or the factors and evidence considered in making that conclusion to deny bond. Per defendant 5 EOIR’s practice, there is no verbatim transcript or recording of her bond hearing. At the bond 6 hearing, the immigration judge placed the burden on Ibis Guzman to demonstrate that she was 7 qualified for a bond. 8 123. 9 10 11 12 At the time this Amended Complaint is electronically filed on July 15, 2018, Ibis Guzman is still imprisoned in federal detention. 120. She was not released until on or about July 31, 2018, in order to comply with the preliminary injunction in Ms. L..L. 124.121. Plaintiff Blanca Orantes is a detained asylum seeker who originally 13 entered the United States without inspection, was initially subject to expedited removal 14 proceedings under 8 U.S.C. §1225(b), was determined to have a credible fear of persecution once 15 she was eventually provided her credible fear interview and determination, but was not provided 16 a bond hearing with a verbatim transcript or recording of the hearing within 7 days of requesting 17 a bond hearing. 18 122. Blanca Orantes was not has now been told she will be provided a bond hearing 19 untilon July 16, 2018. At the bond hearing, the immigration judge placed the burden of proof on 20 Blanca Orantes to demonstrate that she qualified for a bond. At the conclusion of that bond 21 hearing, an immigration judge issued an order denying her release on any bond amount pending 22 the adjudication of her asylum claim on the merits. 23 123. The immigration judge did not make specific, particularized findings for the basis 24 of the denial, and even failed to check the box indicating why she was denied bond on the 25 template order. Per defendant EOIR’s practice, there is no verbatim transcript or recording of her 26 SECOND AMENDED COMPLAINT - 21 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 59 of 85 1 bond hearing. At the bond hearing the immigration judge placed the burden on Blanca Orantes 2 to demonstrate that she was qualified for a bond. 3 124. She was not released until on or about July 23, 2018, after the federal government 4 was forced in order to comply with the preliminary injunction in Ms. L., and thereafter reunited 5 her with her child. 6 125. 7 8 9 She accordingly still has not been provided a bond hearing with a verbatim transcript or recording of the hearing. 125. Plaintiff Baltazar Vasquez is a detained asylum seeker who originally entered the United States without inspection (thus initially triggering potential expedited removal 10 proceedings under 8 U.S.C. §1225(b)), , was initially subject to expedited removal proceedings 11 under 8 U.S.C. §1225(b), was determined to have a credible fear of persecution once he was 12 eventually provided his credible fear interview and determination, but was not provided a bond 13 hearing with a verbatim transcript or recording of the hearing within 7 days of requesting a bond 14 hearing.but as of the time this Amended Complaint is electronically filed still has not been 15 provided his credible fear interview and determination, and accordingly still has not been 16 provided a bond hearing with a verbatim transcript or recording of the hearing. 17 126. The federal government did not provide Baltazar Vasquez a bond hearing until 18 August 20, 2018. At the bond hearing, the immigration judge placed the burden of proof on 19 Baltazar Vasquez to demonstrate that he qualified for a bond. At the conclusion of that bond 20 hearing, an order was issued allowing him to be released from federal detention upon posting a 21 $9,000 bond pending the adjudication of his asylum claim on the merits. There is no verbatim 22 transcript or recording of his bond hearing. 23 24 25 VI. 127. CLASS ALLEGATIONS The named plaintiffs are asylum seekers who filed this suit on behalf of themselves and their family members being detained in federal detention. 26 SECOND AMENDED COMPLAINT - 22 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 60 of 85 1 128. The named plaintiffs also bring this suit as a class action under Fed.R.Civ.P. 23(b) 2 on behalf of the other similarly situated persons specified in the twohree classes of asylum 3 seekers specified in Part VI of this Second Amended Complaint. 4 5 . “Family Separation Class” 130. As previously noted, plaintiffs will not be currently pursuing their 6 family separation claim in this case pending defendants’ promised 7 compliance with the Ms. L v. ICE Order noted in paragraph 2 of this 8 Amended Complaint. This Amended Complaint nonetheless identifies the 9 following class in case defendants’ obligations are modified in that Order 10 11 or their compliance falls short. 131. With respect to plaintiffs’ claims concerning the legality of the 12 government’s practice of taking children away from parents seeking 13 asylum, plaintiffs seek to represent the following class (the “family 14 separation class”): 15 All parents who sought asylum and were (1) detained in immigration 16 custody by defendants in Washington State and (2) separated from a minor 17 child by defendants absent a demonstration in a hearing that that parent is 18 unfit or presents a danger to the child. 19 133. Plaintiffs allege the following on information and belief: At least 20 fifty parents currently fit within the family separation class. Defendants 21 should know the precise number since the members of this class should be 22 readily ascertainable through defendants’ records. 23 24 25 26 134. The family separation class satisfies Rule 23(a)(1). This class is so numerous that joinder of all class members is impracticable. 135. The family separation class satisfies Rule 23(a)(2). There are questions of law or fact common to this class. Given the definition of this SECOND AMENDED COMPLAINT - 23 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 61 of 85 1 class, its members all share the same common factual situation of being 2 subject to defendants’ practice of separating asylum-seeking parents from 3 their minor child absent a demonstration in a hearing that that parent is 4 unfit or presents a danger to their child. The members of this class share 5 common questions of law governing whether defendants’ practice of 6 taking children away from class members seeking asylum is legal under 7 the Fifth Amendment, Eighth Amendment, APA, or federal asylum 8 statutes. 9 136. The family separation class satisfies Rule 23(a)(3). The claims of 10 plaintiffs Padilla, Guzman, and Orantes concerning the legality of 11 defendants’ practice of taking children away from parents seeking asylum 12 are typical of the claims of class members. As noted in the prior 13 paragraph, the definition of this class dictates that plaintiffs Padilla, 14 Guzman, and Orantes share with the other class members the same 15 common factual situation and the same common questions of law under 16 the Fifth Amendment, Eighth Amendment, APA, and federal asylum 17 statutes. 18 137. The family separation class satisfies Rule 23(a)(4). Plaintiffs 19 Padilla, Guzman, and Orantes will fairly and adequately protect the 20 interests of that class. They are represented by counsel from the 21 Northwest Immigrant Rights Project, who have extensive experience 22 litigating class action lawsuits and other complex cases in federal court, 23 including civil rights lawsuits on behalf of noncitizens. They are also 24 represented by counsel from the Foster Pepper law firm, who have 25 extensive experience litigating constitutional and statutory rights lawsuits 26 SECOND AMENDED COMPLAINT - 24 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 62 of 85 1 in the federal and state courts, including civil rights lawsuits on behalf of a 2 variety of plaintiffs. 3 138. The family separation class satisfies Rule 23(b)(1). Requiring 4 separate actions by the members of this class would create the risk of 5 inconsistent or varying adjudications with respect to individual class 6 members that would establish incompatible standards of conduct for 7 defendants. Requiring separate actions by the members of this class 8 would create the risk of adjudications with respect to individual class 9 members that, as a practical matter, would be dispositive of the interests of 10 the other class members not parties to the individual adjudications, or 11 would at least substantially impair or impede their ability to protect their 12 interests. 13 139. The family separation class satisfies Rule 23(b)(2). Defendants 14 have acted or refused to act on grounds that apply generally to this class. 15 Final injunctive relief or corresponding declaratory relief is appropriate 16 with respect to the class as a whole because requiring separate actions by 17 the members of this class would create the risk of inconsistent or varying 18 adjudications with respect to individual class members that would 19 establish incompatible standards of conduct for defendants. 20 140.128. The family separation class satisfies Rule 23(b)(3). Questions of law or 21 fact common to members of this class predominate over questions affecting only individual 22 members. A class action is superior to other available methods for fairly and efficiently 23 adjudicating the legality of defendants’ practice of taking children away from parents seeking 24 asylum as part of their implementation of the government’s zero-tolerance policy. 25 26 SECOND AMENDED COMPLAINT - 25 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 63 of 85 1 2 F. A. “Credible Fear Interview Class” 141.129. With respect to plaintiffs’ claims concerning defendants’ failure to 3 promptly provide asylum seekers a credible fear interview and determination, plaintiffs seek to 4 represent the following class (the “credible fear interview class”): 5 6 7 8 9 All detained asylum seekers in the United States subject to expedited removal proceedings under 8 U.S.C. §1225(b) who are not provided a credible fear determination within 10 days of requesting asylum or expressing a fear of persecution to a DHS official, absent a request by the asylum seeker for a delayed credible fear interview. 142.130. Plaintiffs allege the following on information and belief: At least several hundred asylum seekers currently fit within the credible fear interview class. Defendants 10 should know the precise number since the members of this class should be readily ascertainable 11 through defendants’ records. 12 13 14 143.131. The credible fear interview class satisfies Rule 23(a)(1). This class is so numerous that joinder of all class members is impracticable. 144.132. The credible fear interview class satisfies Rule 23(a)(2). There are 15 questions of law or fact common to this class. Given the definition of this class, its members all 16 share the same common factual situation of being a detained asylum seeker subject to 17 defendants’ practice of failing to provide a credible fear interview and determination within 18 10 days of their expressing a fear of persecution or a request for asylum to a DHS official, 19 despite the fact they have been placed in expedited removal proceedings under 8 USC § 1225(b), 20 which requires immediate action. The members of this class share common questions of law 21 governing whether defendants’ practice of failing to provide class members a credible fear 22 interview and determination within 10 days of their expressing a fear of persecution or a request 23 for asylum to a DHS official is legal under the Fifth Amendment, Eighth Amendment, APA, or 24 federal asylum statutes. 25 145.133. 26 The credible fear interview class satisfies Rule 23(a)(3). Plaintiffs’ claims concerning the legality of defendants’ practice of failing to provide a credible fear SECOND AMENDED COMPLAINT - 26 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 64 of 85 1 interview and determination within 10 days of their expressing a fear of persecution or a request 2 for asylum to a DHS official are typical of the claims of class members. As noted in the prior 3 paragraph, the definition of this class dictates that plaintiffs share with the other class members 4 the same common factual situation and the same common questions of law under the Fifth 5 Amendment, Eighth Amendment, APA, and federal asylum statutes. 6 146.134. The credible fear interview class satisfies Rule 23(a)(4). Plaintiffs will 7 fairly and adequately protect the interests of that class. They are represented by counsel from the 8 Northwest Immigrant Rights Project and the American Immigration Council, who have extensive 9 experience litigating class action lawsuits and other complex cases in federal court, including 10 civil rights lawsuits on behalf of noncitizens. They are also represented by counsel from the 11 Foster Pepper law firm, who have extensive experience litigating constitutional and statutory 12 rights lawsuits in the federal and state courts, including civil rights lawsuits on behalf of a variety 13 of plaintiffs. 14 147.135. The credible fear interview class satisfies Rule 23(b)(1). Requiring 15 separate actions by the members of this class would create the risk of inconsistent or varying 16 adjudications with respect to individual class members that would establish incompatible 17 standards of conduct for defendants. Requiring separate actions by the members of this class 18 would create the risk of adjudications with respect to individual class members that, as a 19 practical matter, would be dispositive of the interests of the other class members not parties to 20 the individual adjudications, or would at least substantially impair or impede their ability to 21 protect their interests. 22 148.136. The credible fear interview class satisfies Rule 23(b)(2). Defendants 23 have acted or refused to act on grounds that apply generally to this class. Final injunctive relief 24 or corresponding declaratory relief is appropriate with respect to the class as a whole, especially 25 as it involves uniform, federal immigration law and plaintiffs are transferred across the country 26 by defendants. Moreover, requiring separate actions by the members of this class would create SECOND AMENDED COMPLAINT - 27 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 65 of 85 1 the risk of inconsistent or varying adjudications with respect to individual class members that 2 would establish incompatible standards of conduct for defendants. 3 149.137. The credible fear interview class satisfies Rule 23(b)(3). Questions of 4 law or fact common to members of this class predominate over questions affecting only 5 individual members. A class action is superior to other available methods for fairly and 6 efficiently adjudicating the legality of defendants’ practice of failing to provide a credible fear 7 interview and determination within 10 days of a person’s expressing a fear of persecution or 8 requesting asylum. 9 10 B. “Bond Hearing Class” 150.138. With respect to plaintiffs’ claims concerning defendants’ failure to 11 promptly conduct a bond hearing to set reasonable conditions for the asylum seeker’s release 12 pending the lengthy proceedings to adjudicate his or her asylum claim, and to provide a bond 13 hearing that comports with the requirements of due process, plaintiffs seek to represent the 14 following class (the “bond hearing class”): 15 16 17 All detained asylum seekers who entered the United States without inspection, who were initially subject to expedited removal proceedings under 8 U.S.C. §1225(b), who were determined to have a credible fear of persecution, but who are not provided a bond hearing with a verbatim transcript or recording of the hearing within 7 days of requesting a bond hearing. 18 19 20 21 22 23 24 25 26 151.139. Plaintiffs allege the following on information and belief: At least several hundred asylum seekers currently fit within the bond hearing class. Defendants should know the precise number since the members of this class should be readily ascertainable through defendants’ records. 152.140. The bond hearing class satisfies Rule 23(a)(1). This class is so numerous that joinder of all class members is impracticable. 153.141. The bond hearing class satisfies Rule 23(a)(2). There are questions of law or fact common to this class. Given the definition of this class, its members all share the SECOND AMENDED COMPLAINT - 28 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 66 of 85 1 same common factual situation of being asylum seekers who entered the United States without 2 inspection, were initially subject to expedited removal proceedings, were found to have a 3 credible fear of persecution, but were then subject to defendants’ practice of failing to provide a 4 bond hearing with a transcript or recording of the hearing within 7 days of their requesting a 5 bond hearing. Moreover, defendant EOIR placed the burden on class members to demonstrate in 6 bond hearings that plaintiffs are eligible for release, and defendants EOIR failed to make any 7 specific, particularized findings of fact when denying bondrelease. The members of this class 8 share common questions of law governing whether defendants’ practice of failing to provide a 9 bond hearing with a transcript or recording of the proceeding within 7 days of their requesting a 10 bond hearing, and Defendant EOIR’s practice of placing the burden of proof on the detained 11 asylum seeker to demonstrate their eligibility for release , and Defendant EOIR’s failure to make 12 specific, particularized findings when denying release, is legal under the Fifth Amendment, 13 Eighth Amendment, APA, or federal asylum statutes. 14 154.142. The bond hearing class satisfies Rule 23(a)(3). Plaintiffs’ claims 15 concerning the legality of defendants’ practice of failing to provide a bond hearing with a 16 transcript or recording of the proceeding within 7 days of an asylum seeker’s requesting a bond 17 hearing hearing, and Defendant EOIR’s practice of placing the burden of proof on the detained 18 asylum seeker to demonstrate they are eligible for release should be granted a bond, and 19 Defendant EOIR’s failure to make specific findings when denying a bondrelease, are typical of 20 the claims of class members. As noted in the prior paragraph, the definition of this class dictates 21 that plaintiffs share with the other class members the same common factual situation and the 22 same common questions of law under the Fifth Amendment, Eighth Amendment, APA, and 23 federal asylum statutes. 24 155.143. The bond hearing class satisfies Rule 23(a)(4). Plaintiffs will fairly and 25 adequately protect the interests of that class. They are represented by counsel from the 26 Northwest Immigrant Rights Project and the American Immigration Council, who have extensive SECOND AMENDED COMPLAINT - 29 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 67 of 85 1 experience litigating class action lawsuits and other complex cases in federal court, including 2 civil rights lawsuits on behalf of noncitizens. They are also represented by counsel from the 3 Foster Pepper law firm, who have extensive experience litigating constitutional and statutory 4 rights lawsuits in the federal and state courts, including civil rights lawsuits on behalf of a variety 5 of plaintiffs. 6 156.144. The bond hearing class satisfies Rule 23(b)(1). Requiring separate 7 actions by the members of this class would create the risk of inconsistent or varying 8 adjudications with respect to individual class members that would establish incompatible 9 standards of conduct for defendants. Requiring separate actions by the members of this class 10 would create the risk of adjudications with respect to individual class members that, as a 11 practical matter, would be dispositive of the interests of the other class members not parties to 12 the individual adjudications, or would at least substantially impair or impede their ability to 13 protect their interests. 14 157.145. The bond hearing class satisfies Rule 23(b)(2). Defendants have acted or 15 refused to act on grounds that apply generally to this class. Final injunctive relief or 16 corresponding declaratory relief is appropriate with respect to the class as a whole especially as it 17 involves uniform, federal immigration law and plaintiffs are transferred across the country by 18 defendants. Moreover, requiring separate actions by the members of this class would create the 19 risk of inconsistent or varying adjudications with respect to individual class members that would 20 establish incompatible standards of conduct for defendants. 21 158.146. The bond hearing class satisfies Rule 23(b)(3). Questions of law or fact 22 common to members of this class predominate over questions affecting only individual 23 members. A class action is superior to other available methods for fairly and efficiently 24 adjudicating the legality of defendants’ practice of failing to provide a bond hearing with a 25 transcript or recording of the proceeding within 7 days of an asylum seeker’s requesting a bond 26 hearing, defendant EOIR’s . practice of placing the burden of proof on the detained asylum SECOND AMENDED COMPLAINT - 30 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 68 of 85 1 seeker to demonstrate they are eligible for releaseshould be granted a bond, and Defendant 2 EOIR’s failure to make specific, particularized findings when denying a bondrelease. 3 VII. COUNT I (Violation of Due Process)Constitutional Violations) 4 5 159.147. 6 7 8 11 12 13 numbered paragraphherein. 160. The Due Process Clause of the Fifth Amendment applies to all “persons” on United States soil and thus applies to Mss. Guzman, Orantes, and Padilla and their children as well as Mr. Vasquez and all proposed class members. The Fifth Amendment of the United States Constitution prohibits the federal government from depriving any person of their liberty without due process of law. 161. 14 15 The Fifth Amendment’s due process clause applies to all persons in the United States. 162. 16 excessive bail or any cruel punishments. 18 163. 19 164. 21 24 25 26 The Eighth Amendment’s protections apply to all persons in the United States. 20 23 The Eighth Amendment of the United States Constitution prohibits the federal government from imposing or inflicting on any person any 17 22 All of the foregoing allegations in this Amended Complaint that are not inconsistent with this Count are repeated and re-alleged as though fully set forth in this 9 10 CAUSES OF ACTION 165.148. Asylum seekers who cross the United States border are persons. The named plaintiffs are persons are in the United States. Their children in federal government custody are persons are in the United States. The proposed class members identified in Section VI of this Amended Complaint are persons in the United States. 166. The named plaintiffs, their children, and proposed class members have a constitutionally protected liberty interest in (1) remaining together as a family, (2) not being SECOND AMENDED COMPLAINT - 31 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 69 of 85 1 imprisoned in federal detention for an unreasonable time awaiting their credible fear interview 2 and determination, and (23) not being imprisoned in federal detention for an unreasonable time 3 awaiting their bond hearing, and (3) having a bond hearing that is fair and comports with due 4 process.. 5 167.149. Especially with respect to the federal government’s zero-tolerance policy 6 to deter criminal violations of federal immigration laws, the plaintiffs, their children, and 7 proposed class members have a constitutionally protected interest in (4) not being subjected to 8 unreasonable bond conditions[ga1], and (5) not being subjected to cruel punishments. 9 A. 10 “Family Separation Class” 168. The federal government’s forcibly separating plaintiffs Padilla, Guzman, and 11 Orantes from their children violated the substantive due process rights of plaintiffs and their 12 children. That forced separation did not further a legitimate purpose. That forced separation did 13 not further a compelling governmental interest. Defendants’ forcibly separating plaintiffs 14 Padilla, Guzman, and Orantes from their children violated the constitutional substantive due 15 process rights of plaintiffs and their children. 16 169. The federal government’s forcibly separating plaintiffs Padilla, Guzman, and 17 Orantes from their children violated the procedural due process rights of plaintiffs and their 18 children. The government did not make any accusation that plaintiffs were unfit parents, were 19 not acting in the best interest of their child, were a threat to their child’s safety, abused their 20 child, or neglected their child. The government did not have any evidence of plaintiffs being 21 unfit parents, or not acting in the best interest of their child, or being a threat to their child’s 22 safety, or abusing their child, or neglecting their child. Defendants’ forcibly separating 23 plaintiffs Padilla, Guzman, and Orantes from their children without any hearing violated the 24 constitutional procedural due process rights of plaintiffs and their children. 25 26 170. The federal government’s forcibly separating plaintiffs Padilla, Guzman, and Orantes from their children violated the Eighth Amendment. That forced separation was cruel SECOND AMENDED COMPLAINT - 32 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 70 of 85 1 and excessive. It was deliberately done to penalize and deter persons from seeking asylum. And 2 it was deliberately done as part of the federal government’s zero-tolerance policy against 3 criminal violations of federal immigration laws. Defendants’ forcibly separating plaintiffs 4 Padilla, Guzman, and Orantes from their children violated the constitutional Eighth Amendment 5 rights of plaintiffs and their children. 6 171. As with plaintiffs Padilla, Guzman, and Orantes, defendants’ forcibly separating 7 members of the family separation class from their children violated substantive due process, 8 procedural due process, and the Eighth Amendment. 9 B. 10 “Credible Fear Interview Class” 172.150. The federal government’s imprisoning plaintiffs and members of the 11 Credible Fear Interview Class in federal detention for an unreasonable time awaiting their 12 credible fear interview and determination violates their substantive due process rights. The 13 government’s prolonging these asylum seekers’ federal detention by delaying their credible fear 14 interview and determination more than 10 days does not further a legitimate purpose. The 15 government’s prolonging these asylum seekers’ federal detention by delaying their credible fear 16 interview and determination more than 10 days does not further a compelling governmental 17 interest. Defendants’ prolonging theirplaintiffs’ federal detention by delaying their credible fear 18 interview and determination more than 10 days is a violation of the constitutional substantive due 19 process rights of plaintiffs and their children as well as of members of the Credible Fear 20 Interview Class. 21 173. The federal government’s imprisoning plaintiffs and members of the Credible 22 Fear Class in federal detention for an unreasonable time awaiting their credible fear interview 23 and determination violates their procedural due process rights. That ongoing imprisonment 24 awaiting a credible fear interview and determination is contrary to the law governing expedited 25 removal proceedings and is imposed without any hearing. Defendants’ imprisoning plaintiffs 26 and members of the Credible Fear Interview Class in federal detention for an unreasonable time SECOND AMENDED COMPLAINT - 33 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 71 of 85 1 awaiting their credible fear interview and determination is a violation of the constitutional due 2 process rights of plaintiffs and their children as well as of members of the Credible Fear 3 Interview Class. 4 7. The federal government’s imprisoning plaintiffs in federal detention for an 5 unreasonable time awaiting their credible fear interview and determination violates the Eighth 6 Amendment. The government’s actions maintaining plaintiffs in limbo in federal detention by 7 deliberately delaying the threshold credible fear interview to which they are entitled is excessive. 8 It is deliberately done as part of the government’s effort to penalize and deter persons from 9 seeking asylum. It is deliberately done as part of the federal government’s zero-tolerance policy 10 against criminal violations of federal immigration laws. Deliberately confining asylum seekers 11 in limbo by delaying the credible fear interview to which they are entitled is cruel. Defendants’ 12 imprisoning plaintiffs in federal detention for an unreasonable time awaiting their credible fear 13 interview and determination is a violation of the constitutional Eighth Amendment rights of 14 plaintiffs and their children. 15 7. As with plaintiffs, defendants’ imprisoning members of the credible fear 16 interview class in federal detention for an unreasonable time awaiting their 17 credible fear interview and determination violates substantive due process, 18 procedural due process, and the Eighth Amendment. 19 E.151. “Bond Hearing Class” 20 174.152. The federal government’s imprisoning plaintiffs and members of the Bond 21 Hearing Class in federal detention for an unreasonable time awaiting a bond hearing to assess 22 their eligibility for release set reasonable conditions for their release pending the lengthy 23 proceedings to adjudicate their asylum claim violates substantive due process. The 24 government’s prolonging these asylum seekers’ federal detention by delaying their bond hearing 25 more than 7 days does not further a legitimate purpose. The government’s prolonging these 26 asylum seekers’ federal detention by delaying their bond hearing more than 7 days does not SECOND AMENDED COMPLAINT - 34 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 72 of 85 1 further a compelling governmental interest. Moreover, denying bonds release for general 2 deterrence or punishment goals unrelated to the specific factors of whether the individual 3 presents a flight risk or danger to the community unlawfully deprives these asylum seekers of 4 their constitutional right to liberty. Defendants’ prolonging plaintiffs’ and members of the Bond 5 Hearing Class’s federal detention by delaying their bond hearing more than 7 days is a violation 6 of the constitutional substantive process rights of plaintiffs and their children as well as of 7 members of the Bond Hearing Class. 8 9 175. The federal government’s imprisoning plaintiffs and members of the Bond Hearing Class in federal detention for an unreasonable time awaiting a bond hearing to assess 10 their eligibility for set reasonable conditions for their release pending the lengthy proceedings to 11 adjudicate their asylum claim violates procedural due process. That ongoing detention is 12 imposed without providing basic procedural protections, such as a bond hearing with a transcript 13 or recording of the hearing and specific, particularized findings with respect to any denial of 14 release, therebyand denies ying plaintiffs and members of the Bond Hearing Class an adequate 15 record to file an administrative appeal or habeas petition. Moreover, denying bonds release for 16 general deterrence goals unrelated to the specific factors of whether the individual presents a 17 flight risk or danger to the community strips detained asylum seekers of a fair hearing. What is 18 more, placing the burden on the noncitizen to demonstrate their eligibility for release entitlement 19 to bond also constitutes a violation of their due process rights. Defendants’ prolonging plaintiffs’ 20 and members of the Bond Hearing Class’s federal detention by failing to provide a bond hearing 21 where the burden of proof is on the government and with a verbatim transcript or recording of 22 the hearing within 7 days of requesting a bond is a is a violation of the constitutional substantive 23 due process rights of plaintiffs and their children as well as of members of the Bond Hearing 24 Class. 25 26 176.153. The federal government’s imprisoning plaintiffs for an unreasonable time pending the lengthy proceedings to adjudicate their asylum claim violates the Eighth SECOND AMENDED COMPLAINT - 35 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 73 of 85 1 Amendment. The government’s keeping their detention in limbo by deliberately delaying the 2 bond hearing to which they are entitled is excessive. Moreover, the government’s 3 determinations to deny bond for general deterrence policy purposes, rather than based on 4 individual determinations based on evidence that the person presents a flight risk or threat to the 5 community, violates the Eighth Amendment. It is deliberately done as part of the government’s 6 effort to penalize and deter persons from seeking asylum. It is deliberately done as part of the 7 federal government’s zero-tolerance policy against criminal violations of federal immigration 8 laws. Deliberately confining detained asylum seekers by delaying bond hearings and denying 9 bond for general deterrence and policy measures unrelated to their individual cases is cruel. 10 Defendants’ imprisoning plaintiffs in federal detention for an unreasonable time pending the 11 lengthy proceedings to adjudicate their asylum claim by failing to provide a bond hearing with a 12 verbatim transcript or recording of the hearing within 7 days of plaintiffs requesting a bond 13 hearing is a violation of the constitutional Eighth Amendment rights of plaintiffs and their 14 children. 15 177. As with plaintiffs, defendants’ imprisoning members of the bond hearing class in 16 federal detention for an unreasonable time awaiting a bond hearing to set reasonable conditions 17 for their release pending the lengthy proceedings to adjudicate their asylum claim violates 18 substantive due process, procedural due process, and the Eighth Amendment. COUNT II (Administrative Procedure Act - Arbitrary and Capricious Practice) 19 20 21 22 23 24 25 1. All allegations in this Amended Complaint that are not inconsistent with this Count are repeated and re-alleged as though fully set forth in this numbered paragraph. All of the foregoing allegations are repeated and re-alleged as though fully set forth herein. 1. The APA prohibits agency action that is arbitrary and capricious ands. 26 SECOND AMENDED COMPLAINT - 36 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 74 of 85 1. The APA prohibits agency action that is contrary to a constitutional right. 1 2 5 U.S.C. §706(2). 3 D. “Family Separation Class” 4 1. Defendants’ decision to separate plaintiffs Padilla, Guzman, and Orantes 5 from their children without a compelling justification, and without a 6 mechanism, protocol, or system to guarantee their reunification, is a final 7 agency action. That action is arbitrary and capricious. It violates the 8 APA. 5 U.S.C. §706(2)(A). 9 1. As with plaintiffs Padilla, Guzman, and Orantes, defendants’ decision to 10 decision to separate members of the family separation class from their 11 children without a compelling justification, and without a mechanism, 12 protocol, or system to guarantee their reunification, is a final agency 13 action. That action is arbitrary and capricious. It violates the APA. 14 5 U.S.C. §706(2)(A). 15 A.154. “Credible Fear Interview Class” 16 178. Defendants’ decision to detain plaintiffs and members of the Credible Fear 17 Interview Class for an unreasonable time awaiting their credible fear interview, without a 18 compelling justification and without a mechanism, protocol, or system to assure a prompt and 19 fair credible fear interview and determination, is a final agency action. That action is arbitrary 20 and capricious. It violates the APA. 5 U.S.C. §§706(1) and (2)(A) and (B). 21 1. As with plaintiffs, defendants’ decision to detain members of the credible fear 22 interview class for an unreasonable time awaiting their credible fear interview, without a 23 compelling justification and without a mechanism, protocol, or system to assure a prompt and 24 fair credible fear interview and determination, is a final agency action. That action is arbitrary 25 and capricious. It violates the APA. 5 U.S.C. §706(2)(A). 26 C.155. “Bond Hearing Class” SECOND AMENDED COMPLAINT - 37 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 75 of 85 179.156. 1 Defendants’ decision to detain plaintiffs and members of the Bond 2 Hearing Class for an unreasonable time awaiting a bond hearing to set reasonable conditions for 3 their release pending the lengthy proceedings to adjudicate their asylum claim, without a 4 compelling justification and without a mechanism, protocol, or system to assure a prompt and 5 fair bond hearing, is a final agency action. That action is arbitrary and capricious. It violates the 6 APA. 5 U.S.C. §§706(1) and (2)(A) and (B). 7 180. 8 an unreasonable time awaiting a bond hearing to set reasonable conditions for their release 9 10 As with plaintiffs, defendants’ decision to detain members of the bond hearing class for pending the lengthy proceedings to adjudicate their asylum claim, without a compelling justification and without a mechanism, protocol, or system to assure a prompt and fair bond 11 12 13 14 hearing, is a final agency action. That action is arbitrary and capricious. It violates the APA. 5 U.S.C. §706(2)(A). 181.157. Defendants’ decision to deny plaintiffsand members of the Bond Hearing 15 Class a bond hearing with adequate procedural protections, specifically a hearing where the 16 burden of proof is on the government, and a recording or transcript of the hearing is available 17 for any subsequent administrative appeal or habeas petition, and specific, particularized findings 18 of any denial of release, is a final agency action. That action is arbitrary and capricious. It 19 violates the APA. 5 U.S.C. §§706(1) and (2)(A) and (B). 20 182. As with plaintiffs, defendants’ decision to deny members of the bond hearing 21 class a bond hearing with adequate procedural protections, specifically a recording or transcript 22 of the hearing available for any subsequent administrative appeal or habeas petition, is, is a final 23 agency action. That action is arbitrary and capricious. It violates the APA. 24 5 U.S.C. §706(2)(A). 25 26 SECOND AMENDED COMPLAINT - 38 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 76 of 85 COUNT III (Administrative Procedure Act Agency Action Unlawfully Withheld or Unreasonably Delayed) 1 2 3 4 5 6 7 8 9 10 11 185. All allegations in this Amended Complaint that are not inconsistent with this Count are repeated and re-alleged as though fully set forth in this numbered paragraph.All of the foregoing allegations are repeated and re-alleged as though fully set forth herein. 186.158. The APA imposes on federal agencies the duty to conclude matters presented to it within a “reasonable time.” 5 U.S.C. §555(b). 7. The APA prohibits agency action that is “unlawfully withheld or unreasonably delayed.” 5 U.S.C. §706(1). B. 12 “Family Separation Class” 7. Defendants’ failure to promptly reunify plaintiffs Padilla, Guzman, and 13 Orantes with their children violates defendants’ legal duty under the APA 14 to conclude matters within a reasonable time, and constitutes an agency 15 action unlawfully withheld or unreasonably delayed in violation of the 16 APA. 5 U.S.C. §706(2)(A). 17 7. As with plaintiffs Padilla, Guzman, and Orantes, defendants’ failure to 18 failure to promptly reunify members of the family separation class with 19 their children violates defendants’ legal duty under the APA to conclude 20 matters within a reasonable time, and constitutes an agency action that is 21 unlawfully withheld or unreasonably delayed in violation of the APA. 22 5 U.S.C. §706(2)(A). 23 A.159. “Credible Fear Interview Class” 24 187. 25 A person placed in expedited removal proceedings who is seeking asylum is allowed to present their asylum claim to an immigration judge only after DHS conducts a 26 SECOND AMENDED COMPLAINT - 39 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 77 of 85 1 credible fear interview to determine if the person seeking asylum has a “credible fear of 2 persecution.” 8 C.F.R. §208.30(f), (g). 3 188. Defendant DHS and its sub-agencies are required to conduct an interview to 4 assess whether an asylum seeker has a credible fear of persecution. Conducting a credible fear 5 interview to determine whether a person seeking asylum has a credible fear of persecution is a 6 discrete, final agency action that DHS is required to take. 7 160. DHS’s obligation to conduct a credible fear interview to determine whether the 8 person seeking asylum has a credible fear of persecutionThis obligation is triggered when that 9 person requests asylum or expresses a fear of persecution to any DHS official.Defendants learn 10 of an individual’s fear of persecution. See 8 U.S.C. §1225(b)(1)(A)(ii). Asylum seekers are only 11 permitted to raise their claims before an immigration judge after the asylum officer’s credible 12 fear determination. See 8 C.F.R. § 208.30(f), (g). 13 189.161. Conducting a credible fear interview to determine whether a person 14 seeking asylum has a credible fear of persecution is a discrete, final agency action that DHS is 15 required to take. 16 190. DHS’s Defendants’ failure to promptly expeditiously conduct a credible fear 17 interview after detaining plaintiffs and members of the Credible Fear Interview class for the 18 credible fear determination after plaintiffs requested asylum or expressed a fear of persecution 19 violated DHS’s legal dutyconstitutes “an agency action unlawfully withheld or unreasonably 20 delayed” under the APA., Ssee 5 U.S.C. § 706(1) to conclude matters presented to it within a 21 reasonable time. 22 7. DHS’s failure to promptly conduct a credible fear interview for the credible fear 23 determination after plaintiffs requested asylum or expressed a fear of persecution constituted an 24 agency action that was unlawfully withheld or unreasonably delayed in violation of the APA. 25 26 7. As with plaintiffs, DHS’s failure to promptly conduct a credible fear interview for the credible fear determination after members of the credible SECOND AMENDED COMPLAINT - 40 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 78 of 85 1 fear interview class requested asylum or expressed a fear of persecution 2 violates its legal duty under the APA to conclude matters presented to it 3 within a reasonable time, and constituted an agency action that is 4 unlawfully withheld or unreasonably delayed in violation of the APA. 5 D.162. “Bond Hearing Class” 6 191.163. If the credible fear interview conducted by DHSasylum officer determines 7 that an asylum seeker has a credible fear of persecution, DHS assigns the case is transferred to 8 EOIR to initiate immigration court proceedings for thatfor adjudication of the asylum claim by 9 asylum seeker to adjudicate his or her asylum claim before an immigration judge. 10 192.164. If an asylum seeker in the bond hearing class is found to have a credible 11 fear of persecution and is in federal detention, thatAn asylum seeker is in the Bond Hearing 12 Class is entitled to a bond hearing to assess eligibility set reasonable conditions for his or her 13 release from federal DHS custodydetention pending the lengthy proceedings to adjudicate his or 14 her asylum claim. 15 193.165. Defendant EOIR’s failure to promptly conduct a bond hearing for 16 plaintiffs and members of the Bond Hearing Class within 7 days to set reasonable conditions for 17 a detained asylum seeker’stheir release pending the lengthy proceedings to adjudicate his or her 18 asylum claim violates defendant’s legal duty under the APA to conclude matters presented to it 19 within a reasonable time. 20 194.166. Defendant EOIR’s failure to conduct a bond hearing for plaintiffs and 21 members of the Bond Hearing Class with appropriate procedural safeguards to set reasonable 22 conditions for a detained asylum seeker’s release pending the lengthy proceedings to adjudicate 23 his or her asylum claim constitutes an agency action unlawfully withheld or unreasonably 24 delayed in violation of the APA. 25 26 195. As with plaintiffs, defendant EOIR’s failure to promptly conduct a bond hearing with appropriate procedural safeguards to set reasonable conditions for a detained asylum SECOND AMENDED COMPLAINT - 41 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 79 of 85 1 seeker’s release pending the lengthy proceedings to adjudicate his or her asylum claim violates 2 its legal duty under the APA to conclude matters presented to it within a reasonable time, and 3 constitutes an agency action that is unlawfully withheld or unreasonably delayed in violation of 4 the APA. COUNT IIIV (Violation of Asylum LawStatute) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 196.167. AAll of the foregoing allegations are repeated and re-alleged as though fully set forth hereinll allegations in this Amended Complaint that are not inconsistent with this Count are repeated and re-alleged as though fully set forth in this numbered paragraph. 197.168. United States lawThe Immigration and Nationality Act grants noncitizens fleeing persecution the opportunity to apply for asylum in the United States. 8 U.S.C. §1225(b)(1) (expedited removal); 8 C.F.R. §§ 235.3(b)(4), 208.30, & 1003.42; 8 U.S.C. §1158(a)(1). 198.169. International law likewise recognizes the fundamental human right to asylum of persons fleeing for safety from persecution and torture. 1. Noncitizens fleeing persecution have a private right of action to vindicate their right to apply for and receive asylum in the United States. B. “Family Separation Class” 1. When plaintiffs Padilla, Guzman, and Orantes requested asylum, defendants promptly took their minor child away from them (1) without any evidence or accusation that they were unfit parents, or were not acting in the best interest of their child, or were a threat to their child’s safety, or abused their child, or neglected their child, and (2) without any hearing. 1. Defendants’ promptly taking away the minor children of asylum seekers seekers Padilla, Guzman, and Orantes unlawfully infringed on their legal right to pursue their asylum claims. SECOND AMENDED COMPLAINT - 42 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 80 of 85 1. As with plaintiffs Padilla, Guzman, and Orantes, defendants separated 1 2 members of the family separation class from their child (1) without any 3 evidence or accusation that they were unfit parents, or were not acting in 4 the best interest of their child, or were a threat to their child’s safety, or 5 abused their child, or neglected their child, and (2) without any hearing. 6 1. As with plaintiffs Padilla, Guzman, and Orantes, defendants’ promptly 7 promptly taking away the minor children of members of the family 8 separation class unlawfully infringed on their legal right to pursue their 9 asylum claims. 10 G.170. “Credible Fear Interview Class” 11 199. Defendants’ failure to promptly conduct a credible fear interview for the credible 12 fear determination after plaintiffs requested asylum or expressed a fear of persecutionplaintiffs 13 and members of the Credible Fear Interview Class violates the asylum statute because it 14 unlawfully infringed infringes on their legal rightability to pursue their asylum claims. 15 1. As with plaintiffs, defendants’ failure to promptly conduct a credible fear 16 interview for the credible fear determination after credible fear interview class members 17 requested asylum or expressed a fear of persecution unlawfully infringes on their legal right to 18 pursue their asylum claims. 19 I.171. “Bond Hearing Class” 20 200.172. Defendants’ failure to promptly conduct a bond hearing to assess 21 eligibility for set reasonable conditions for the release of plaintiffs and members of the Bond 22 Hearing Class pending the lengthy proceedings to adjudicate their asylum claims violates the 23 asylum statute because it unlawfully infringes on their legal rightability to pursue their asylum 24 claims. 25 26 8. As with plaintiffs, defendants’ failure to promptly conduct a bond hearing to set reasonable conditions for the release of members of the bond hearing class pending the lengthy SECOND AMENDED COMPLAINT - 43 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 81 of 85 1 proceedings to adjudicate their asylum claims unlawfully infringes on their legal right to pursue 2 their asylum claims. 3 4 5 IX.VIII. PRAYER FOR RELIEF Plaintiffs respectfully request that this Court enter judgment against defendants granting the following relief: 6 A. Certify the following Family Separation Class: “All parents who sought asylum and 7 were (1) detained in immigration custody by defendants in Washington State and 8 (2) separated from a minor child by defendants absent a demonstration in a hearing 9 that that parent is unfit or presents a danger to the child.” 10 B. Name plaintiffs Padilla, Guzman, and Orantes as representatives of the Family 11 Separation Class, and appoint their counsel as Family Separation Class counsel. 12 C. Declare that defendants’ separation of plaintiffs Padilla, Guzman, and Orantes from 13 14 15 their children is unlawful. D. Declare that defendants’ separation of Family Separation Class members from their children is unlawful. 16 E. Preliminarily and permanently enjoin defendants from detaining Family Separation 17 Class members (including plaintiffs Padilla, Guzman, and Orantes) in separate 18 locations from where their children are detained; and enjoin defendants from 19 removing Family Separation Class members (including plaintiffs Padilla, Guzman, 20 and Orantes) from the country until they are reunited with their children (in the event 21 they are not permitted to remain in the United States), absent the parent’s permission 22 or a hearing before a court where the government demonstrates that it is not in the 23 child’s best interest to be reunified with their parent. 24 25 F.A. Certify the following Credible Fear Interview Class: “All detained asylum seekers in the United States subject to expedited removal proceedings under 26 SECOND AMENDED COMPLAINT - 44 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 82 of 85 1 8 U.S.C. §1225(b) who are not provided a credible fear determination within 10 days 2 of requesting asylum or expressing a fear of persecution to a DHS official.” 3 4 5 G.B. Name plaintiffs as representatives of the Credible Fear Interview Class, and appoint their counsel as class counsel. H.C. Declare that defendants have an obligation to provide Credible Fear Interview 6 Class members (including plaintiffs) their credible fear interview and determination 7 within 10 days of that person’s requesting asylum or expressing a fear of persecution 8 to any DHS official. 9 I.D. Preliminarily and permanently enjoin defendants from not providing Credible 10 Fear Interview Class members (including plaintiff Vasquez) their credible fear 11 determination within 10 days of that person’s requesting asylum or expressing a fear 12 of persecution to any DHS official. 13 J.E.Certify the following Bond Hearing Class: “All detained asylum seekers who 14 entered the United States without inspection, were initially subject to expedited 15 removal proceedings under 8 U.S.C. §1225(b), were determined to have a credible 16 fear of persecution, but are not provided a bond hearing with a verbatim transcript or 17 recording of the hearing within 7 days of requesting a bond hearing.” 18 19 20 K.F. Name plaintiffs as representatives of the Bond Hearing Class, and appoint their counsel as class counsel. L.G. Declare that defendants have an obligation to provide Bond Hearing Class 21 members (including plaintiffs ) a bond hearing within 7 days of their requesting a 22 hearing to set reasonable conditions for their release pending adjudication of their 23 asylum claim. 24 H. Declare that defendants have an obligation to provide Bond Hearing Class members 25 (including plaintiffs) a bond hearing with adequate procedural safeguards, including a 26 verbatim transcript or recording of their bond hearing. SECOND AMENDED COMPLAINT - 45 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 83 of 85 1 2 3 I. Declare that defendant DHS must bear the burden of proof to show continued detention is necessary in civil immigration proceedings. M.J. Declare that in bond hearings immigration judges must make specific, 4 particularized written findings as to the basis for denying release from detention, 5 including findings identifying the basis for finding that the individual is a flight risk 6 or a danger to the community. 7 N.K. Preliminarily and permanently enjoin defendants from not providing Bond 8 Hearing Class members (including plaintiffs Guzman, Orantes, and Vasquez) their 9 bond hearing with a verbatim transcript or recording of their bond hearing. 10 L. Preliminarily and permanently enjoin defendants from not providing Bond Hearing 11 Class members (including plaintiffs Orantes and Vasquez) their bond hearing within 12 7 days of the asylum seeker’s request. 13 M. Preliminarily and permanently enjoin defendants from not providing Bond Hearing 14 Class members bond hearings where defendant DHS bears the burden of proof to 15 show continued detention is necessary. 16 N. Preliminarily and permanently enjoin defendants from not providing Bond Hearing 17 Class members where immigration judges make specific, particularized written 18 findings as to the basis for denying release from detention, including findings 19 identifying the basis for finding that the individual is a flight risk or a danger to the 20 communityfor any determination that the individual is a flight risk or a danger to the 21 community when denying bond. 22 O.N. 23 P.O. Order defendants to pay reasonable attorneys’ fees and costs. 24 Q.P. Order all other relief that is just and proper. 25 26 SECOND AMENDED COMPLAINT - 46 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 84 of 85 1 2 3 Dated this 15th day of July, 2018. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 s/ Matt Adams Matt Adams, WSBA No. 28287 Email: matt@nwirp.org s/ Thomas F. Ahearne Thomas F. Ahearne, WSBA #14844 Email: ahearne@foster.com Glenda M. Aldana Madrid, WSBA No. 46987 Email: glenda@nwirp.org *William F. Abrams, CA Bar #88805 *Admitted pro hac vice *Email: bill.abrams@foster.com Leila Kang, WSBA No. 48048 Email: leila@nwirp.org Joanna Plichta Boisen, WSBA #38368 Email: Joanna.boisen@foster.com NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone: (206) 957-8611 Facsimile: (206) 587-4025 Attorneys for Plaintiffs-Petitioners Trina Realmuto* Kristin Macleod-Ball* AMERICAN IMMIGRATION COUNCIL 100 Summer Street, 23rd Floor Boston, MA 02110 (857) 305-3600 trealmuto@immcouncil.org kmacleod-ball@immcouncil.org Benjamin J. Hodges, WSBA #49301 Email: ben.hodges@foster.com Kevin Ormiston, WSBA #49835 Email: kevin.ormiston@foster.com FOSTER PEPPER PLLC 1111 Third Avenue, Suite 3000 Seattle, Washington 98101-3292 Telephone: (206) 447-4400 Facsimile: (206) 447-9700 Attorneys for Plaintiffs-Petitioners *Application for pro hac vice admission forthcoming 22 23 24 25 26 SECOND AMENDED COMPLAINT - 47 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611 Case 2:18-cv-00928-MJP Document 25-1 Filed 08/22/18 Page 85 of 85 1 2 3 4 CERTIFICATE OF SERVICE I hereby certify that on July 15, 2018, I had the foregoing electronically filed with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to those attorneys of record registered on the CM/ECF system. All other parties (if any) shall be served in 5 6 7 accordance with the Federal Rules of Civil Procedure. DATED this 15th day of July, 2018. 8 s/ Thomas F. Ahearne FOSTER PEPPER PLLC 1111 Third Avenue, Suite 3000 Seattle, Washington 98101-3292 Telephone: (206) 447-8934 Facsimile: (206) 447-9700 Email: ahearne@foster.com 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SECOND AMENDED COMPLAINT - 48 Case No. 2:18-cv-928 MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611