Case 2:18-cv-00928-MJP Document 26 Filed 08/22/18 Page 1 of 35 The Honorable Marsha J. Pechman 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 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. 22 23 24 25 26 SECOND AMENDED COMPLAINT 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 26 Filed 08/22/18 Page 2 of 35 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 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 26 Filed 08/22/18 Page 3 of 35 1 the asylum seeker until it determines that she or he has a credible fear of persecution. The Ms. L 2 v. ICE Order did not address the federal government’s lengthy delays in conducting these 3 statutorily required credible fear interviews and or determinations. 4 C. 5 Bond Hearings 5. This lawsuit also challenges the legality of the government’s related policy or 6 practice of excessively prolonging the detention of asylum seekers by failing to promptly 7 conduct the bond hearings required by federal law after an asylum seeker’s positive completion 8 of their credible fear interview. Federal law requires that if an asylum seeker enters the United 9 States at a location other than a designated “Port Of Entry” and is determined to have a credible 10 fear of persecution in his or her credible fear interview, that asylum seeker is entitled to an 11 individualized bond hearing before an immigration judge to determine reasonable conditions for 12 that person’s release from federal detention while he or she awaits the many months it takes to 13 adjudicate his or her asylum claim (e.g., a reasonable bond amount or parole without posting a 14 monetary bond). This bond hearing must comport with constitutional requirements. Yet the 15 government does not establish any timeline for setting this hearing, and as a matter of practice, 16 does not even audio record or provide a transcript of this hearing for appeal or appellate review 17 (unlike other hearings in removal proceedings before the immigration judge). The government 18 also places the burden on asylum seekers to demonstrate in the bond hearing that they should not 19 continue to be detained throughout the lengthy immigration proceedings. When an immigration 20 judge denies bond, the immigration judge routinely fails to make specific findings but instead 21 simply checks a box on a template order. The Ms. L v. ICE Order did not address the federal 22 government’s failure to conduct prompt bond hearings that comport with constitutional 23 requirements. 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 26 Filed 08/22/18 Page 4 of 35 1 D. 2 3 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). 4 7. Asylum seekers who cross the United States border are persons. They 5 accordingly have a constitutionally protected liberty interest in (1) not being imprisoned for an 6 unreasonable time awaiting their credible fear interview and determination and (2) not being 7 imprisoned without the opportunity for a prompt bond hearing that comports with constitutional 8 requirements. And especially with respect to the federal government’s avowed policy or practice 9 to deter criminal violations of federal immigration laws, asylum seekers also have a 10 constitutionally protected interest in (3) not being subjected to prolonged imprisonment for 11 deterrence or penalty reasons unrelated to adjudicating the merits of their individual asylum 12 claim. 13 8. With this Second Amended Complaint, plaintiffs specify with more particularity 14 how defendants’ implementation of the federal government’s policies and practices with respect 15 to persons fleeing for safety and seeking asylum in the United States violates the United States 16 Constitution. 17 E. 18 Federal Law 9. Federal law prohibits final agency action that is arbitrary, capricious, unlawfully 19 withheld, or unreasonably delayed (e.g., Administrative Procedures Act, 5 U.S.C. §706). Federal 20 law also grants persons fleeing persecution the right to apply for safety and asylum in the United 21 States (e.g., 8 U.S.C. §§ 1225 & 1158; 8 C.F.R. §§ 235.3, 208.30, & 1003.42). 22 10. Federal law accordingly prohibits federal agencies from arbitrarily or capriciously 23 depriving an asylum seeker of their child, their prompt credible fear interview and determination, 24 or their prompt bond hearing. Federal law prohibits federal agencies from unlawfully 25 withholding or unreasonably delaying an asylum seeker’s reunification with their child, an 26 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 26 Filed 08/22/18 Page 5 of 35 1 asylum seeker’s credible fear interview and determination, or an asylum seeker’s bond hearing. 2 And federal law prohibits federal agencies from impeding or seeking to deter an asylum seeker’s 3 legal right to apply for asylum. 4 11. With this Second Amended Complaint, plaintiffs specify with more particularity 5 how defendants’ implementation of the federal government’s policies and practices with respect 6 to persons fleeing for safety and asylum in the United States violates federal law. 7 F. 8 9 Requested Relief 12. With respect to (1) credible fear interviews and determinations and (2) the related bond hearings, plaintiffs request injunctive relief requiring defendants to cease their policies and 10 practices implementing the federal government’s policy or practice in violation of the United 11 States Constitution and federal law. Plaintiffs request declaratory relief to terminate the parties’ 12 disagreement with respect to whether (and how) defendants’ implementation of the federal 13 government’s policies or practices with respect to persons fleeing for safety and asylum in the 14 United States violates the United States Constitution and federal law. Lastly, plaintiffs request 15 whatever additional relief this Court finds warranted, just, or equitable. 16 17 II. 13. JURISDICTION This case arises under the Fifth Amendment of the United States Constitution, the 18 Administrate Procedures Act (“APA”), and federal asylum statutes. This Court has jurisdiction 19 under 28 U.S.C. § 1331 (federal question jurisdiction); 28 U.S.C. § 2241 (habeas jurisdiction); 20 and Article I, § 9, clause 2 of the United States Constitution (“Suspension Clause”). 21 22 23 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 24 eventually released from detention after they were eventually provided a credible fear interview 25 and individualized bond hearings before an immigration judge. At the time this Second 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 26 Filed 08/22/18 Page 6 of 35 1 Amended Complaint is electronically filed on August 22, 2018, plaintiff Vasquez is still in 2 custody for purposes of habeas jurisdiction. 3 16. At the time this Second Amended Complaint is electronically filed on August 22, 4 2018, all the children that the federal government took away from plaintiffs have been returned 5 to their mothers after approximately two months of being separated. 6 7 III. 17. VENUE Venue lies in this District under 28 U.S.C. § 1391 because a substantial portion of 8 the relevant facts occurred within this District. Those facts include defendants’ detention of 9 plaintiffs Padilla, Guzman, and Orantes in this District while forcibly separated from their 10 children, failure in this District to promptly conduct a credible fear interview and determination 11 for their asylum claims, and failure in this District to promptly conduct bond hearings that 12 comport with constitutional requirements to set reasonable conditions for release pending 13 adjudication of their asylum claims. 14 15 16 17 18 19 20 21 22 23 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 24 government agency that carries out removal orders and oversees immigration detention. ICE is 25 part of DHS. ICE’s responsibilities include determining whether an asylum seeker will be 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 26 Filed 08/22/18 Page 7 of 35 1 released and how soon his or her case will be submitted for a credible fear interview and 2 subsequent proceedings on the merits before the immigration court. ICE’s local field office in 3 Tukwila, Washington, is responsible for determining whether plaintiffs detained in Washington 4 will be released, and how soon their cases will be submitted for credible fear interview and 5 subsequent proceedings before the immigration court. 6 23. Defendant U.S. Department of Homeland Security (“DHS”) is the federal 7 government agency that enforces immigration laws of the United States. DHS’s responsibilities 8 include determining whether an asylum seeker will be released and how soon his or her case will 9 be submitted for a credible fear interview and subsequent proceedings before the immigration 10 court. DHS’s local field office in Tukwila, Washington, is responsible for determining whether 11 plaintiffs detained in Washington will be released, and how soon their cases will be submitted for 12 credible fear interview and subsequent proceedings before the immigration court. 13 24. Defendant U.S. Customs and Border Protection (“CBP”) is the federal 14 government agency that conducts the initial processing and detention of asylum seekers crossing 15 the U.S. border. CBP is part of DHS. CBP’s responsibilities include determining whether an 16 asylum seeker will be released and how soon his or her case will be submitted for a credible fear 17 interview and determination. 18 25. Defendant U.S. Citizenship and Immigration Services (“USCIS”) is the federal 19 government agency that, through its asylum officers, interviews asylum seekers to determine 20 whether they should be assigned to the immigration court to be allowed to proceed with applying 21 for asylum because they have a credible fear of persecution. USCIS is a part of DHS. 22 26. Defendant Executive Office for Immigration Review (“EOIR”) is the federal 23 government agency that is responsible for conducting immigration court proceedings, including 24 adjudicating plaintiffs’ asylum claims in removal proceedings and conducting individual bond 25 hearings for persons in removal proceedings. EOIR is a part of the Department of Justice. 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 26 Filed 08/22/18 Page 8 of 35 1 2 3 4 5 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. 29. Defendant Kirstjen Nielsen, is sued in her official capacity as the Secretary of 6 DHS. In this capacity, she directs DHS, ICE, CBP, and USCIS. As a result, defendant Nielsen 7 has responsibility for the administration of immigration laws pursuant to 8 U.S.C. §1103 and is a 8 legal custodian of detained plaintiffs. 9 10 11 12 13 30. Defendant Kevin K. McAleenan is sued in his official capacity as the Commissioner of CBP. 31. Defendant L. Francis Cissna is sued in his official capacity as the Director of USCIS. 32. Defendant Jefferson Beauregard Sessions III is sued in his official capacity as the 14 United States Attorney General. In this capacity, he directs agencies within the United States 15 Department of Justice, including EOIR. Defendant Sessions has responsibility for the 16 administration of immigration laws pursuant to 8 U.S.C. §1103, oversees defendant EOIR, and is 17 empowered to grant asylum or other relief, including custody determinations made for persons in 18 removal proceedings. 19 20 21 22 23 24 33. Defendant Lowell Clark is sued in his official capacity as the warden of the Northwest Detention Center in Tacoma, Washington. 34. Defendant Charles Ingram is sued in his official capacity as the warden of the Federal Detention Center in SeaTac, Washington. 35. Defendant David Shinn is sued in his official capacity as the warden of the Federal Correctional Institute in Victorville, California. 25 26 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 26 Filed 08/22/18 Page 9 of 35 1 2 36. Defendant James Janecka is sued in his official capacity as the warden of the Adelanto Detention Facility in Adelanto, California. 3 4 FACTS V. A. Seeking Asylum 5 37. Federal law allows a person to seek asylum in the United States. 6 38. Plaintiffs are persons seeking asylum in the United States. 7 39. Plaintiff Yolany Padilla and her 6-year-old son J.A. are asylum seekers who fled 8 9 physical danger and persecution in Honduras. 40. On or about May 18, 2018, plaintiff Yolany Padilla and her 6-year-old son J.A 10 crossed the U.S.-Mexico border. They were arrested by a CBP agent as they were making their 11 way to the closest Port Of Entry. She informed the CBP agent that they were seeking asylum. 12 13 14 41. Plaintiff Ibis Guzman and her 5-year-old son R.G. are asylum seekers who fled physical danger and persecution in Honduras. 42. On or about May 16, 2018, plaintiff Ibis Guzman and her 5-year-old son R.G. 15 crossed the U.S.-Mexico border. They were arrested by a CBP agent. She informed the CBP 16 agent that they were seeking asylum. 17 18 19 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. On or about May 21, 2018, plaintiff Blanca Orantes and her 8-year-old son A.M. 20 crossed the U.S.-Mexico border. They immediately walked to the CBP station to request 21 asylum, and were arrested by a CBP agent. She informed the CBP agent that they were seeking 22 asylum. 23 24 45. Plaintiff Baltazar Vasquez is an asylum seeker who fled physical danger and persecution in El Salvador. 25 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 26 Filed 08/22/18 Page 10 of 35 1 46. On or about June 1, 2018, Baltazar Vasquez crossed the U.S.-Mexico border. He 2 was arrested by a CBP agent, and informed the CBP agent that he was seeking asylum. 3 B. 4 Defendants’ Zero-Tolerance Policy or Practice 47. Defendant Sessions made an announcement about the federal government’s 5 “Zero-Tolerance Policy” on April 6, 2018, See https://www.justice.gov/opa/pr/attorney-general- 6 announces-zero-tolerance-policy-criminal-illegal-entry. 7 48. The federal government’s zero-tolerance policy was designed to be a coordinated 8 effort to deter asylum seekers entering the country and exercising their right to apply for asylum 9 by criminally prosecuting them, forcibly separating them from their children, and imposing 10 prolonged, uncertain imprisonment (euphemistically called “detention”) on them. 11 12 49. The federal government’s zero-tolerance policy has been implemented against asylum seekers who enter the country without inspection requesting asylum. 13 50. The federal government’s zero-tolerance policy has also been implemented 14 against asylum seekers who appear at a Port Of Entry to request asylum. 15 C. 16 17 18 19 20 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 21 damage is even worse for children who are already traumatized from fleeing danger and 22 persecution in their home country. The cognitive and emotional damage caused by a child’s 23 forced separation from a parent can be permanent. 24 25 54. A parent’s forced separation from their child is also deeply damaging to the parent. This damage is even worse for parents who are already traumatized from fleeing danger 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 26 Filed 08/22/18 Page 11 of 35 1 and persecution in their home country, are given little to no information regarding the well-being 2 or whereabouts of their child, and fear they may never see their child again. 3 55. The federal government promptly took children away from parents seeking 4 asylum in the United States without any demonstration in a hearing that that parent is unfit or 5 presents any danger to the child. 6 56. The federal government promptly took children away from parents seeking 7 asylum in the United States without any evidence or accusation that the parent seeking asylum is 8 an unfit parent, or presents a danger to the child, or is not acting in the child’s best interest, or is 9 a threat to the child’s safety, or abused the child, or neglected the child. 10 11 12 57. The federal government promptly took children away from parents seeking asylum in the United States to penalize and deter persons from seeking asylum. 58. The federal government promptly took children away from parents seeking 13 asylum in the United States as part of its zero-tolerance policy against criminal violations of 14 federal immigration laws. 15 59. Plaintiffs Yolany Padilla, Ibis Guzman, and Blanca Orantes are parents who 16 sought asylum and were (1) detained in immigration custody by defendants in Washington State 17 and (2) separated from a minor child by defendants without any demonstration in a hearing that 18 that parent is unfit or presents a danger to the child. 19 60. When plaintiff Yolany Padilla and her 6-year-old son J.A were taken into 20 custody, a federal agent promptly announced that Yolany Padilla’s son would be taken away 21 from her. Her 6-year-old son clutched his mother’s shirt and said, “No, mommy, I don’t want to 22 go.” She reassured her son that any separation would be short, and that everything would be 23 okay. She was able to stay with her son as they were transferred to one of the federal detention 24 buildings that detainees commonly refer to as “the hielera” (“the freezer”) because of its cold 25 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 26 Filed 08/22/18 Page 12 of 35 1 temperatures. Once they arrived, Yolany Padilla’s 6-year-old son was forcibly taken away from 2 her without explanation. 3 61. Yolany Padilla’s 6-year-old son was taken away from her without any hearing, 4 and without any accusation or evidence that she is in any way an unfit parent, or that she is in 5 any way not acting in his best interest fleeing for safety in the United States, or that she is in any 6 way a threat to his safety, or that she in any way abused him, or that she in any way neglected 7 him. 8 62. Yolany Padilla was then transferred to another federal facility in Laredo, Texas 9 about three days later. The federal officers in that facility took her son’s birth certificate from 10 her. When she asked for it back, she was told the immigration authorities had it. No one has 11 returned her son’s birth certificate to her. 12 13 14 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 15 provided any information about her son until about a month into her detention, when the 16 Honduran consul visited the detention center and she explained she had no news of her son. 17 Soon thereafter she was given a piece of paper saying her son had been put in a place called 18 “Cayuga Center” in New York. That piece of paper also had a phone number, but she was not 19 able to call her son that day because she did not have money to make a long distance phone call. 20 21 22 23 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. 24 25 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 26 Filed 08/22/18 Page 13 of 35 1 67. Yolany Padilla’s 6-year-old son was not released from federal imprisonment until 2 July 14, 2018. That was almost two months after the federal government forcibly took him away 3 from his mom. 4 68. CBP transported plaintiff Ibis Guzman and her 5-year-old son R.G. to one of the 5 federal detention buildings in Texas that detainees commonly refer to as “the hielera” (“the 6 freezer”) because of its cold temperatures. One CBP agent questioned Ibis Guzman, and 7 another CBP agent forcibly took her son away stating she would see her son again in three days. 8 9 69. Ibis Guzman’s 5-year-old son was taken away from her without any hearing, and without any accusation or evidence that she is in any way an unfit parent, or that she is in any 10 way not acting in his best interest fleeing for safety in the United States, or that she is in any way 11 a threat to his safety, or that she in any way abused him, or that she in any way neglected him. 12 70. After three days, Ibis Guzman was transferred to a different CBP facility in 13 Texas. When she asked the federal agents there about the reunification with her son that the 14 CBP agent had promised, they told her they did not know anything about her son’s whereabouts. 15 71. Ibis Guzman was then transferred to another federal facility in Laredo, Texas, 16 where she was detained without any knowledge of the whereabouts of her 5-year-old son and 17 without any means to contact him. She did not receive any information about him during this 18 time, despite her repeated attempts to obtain such information. 19 20 21 72. About two weeks later, Ibis Guzman was transferred to the Federal Detention Center in SeaTac, Washington. 73. Ibis Guzman was not provided any information about her 5-year-old son until 22 about a week later, when she was told that her son had been given to a place called “Baptist 23 Child and Family Services” in San Antonio, Texas. But she was still not able to contact him. 24 25 74. On June 20, 2018, Ibis Guzman was transferred to the Northwest Detention Center in Tacoma, Washington. 26 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 26 Filed 08/22/18 Page 14 of 35 1 2 75. Ibis Guzman was denied bond by the immigration judge at her bond hearing on July 3, 2018. 3 76. She was not released until on or about July 31, 2018, after the federal government 4 was forced to comply with the preliminary injunction in Ms. L., and thereafter reunited with her 5 child. 6 77. CBP transported plaintiff Blanca Orantes and her 8-year-old son A.M. to a 7 federal detention facility in Texas. CBP agents led Blanca Orantes into one of the federal 8 detention buildings that detainees commonly refer to as “the hielera” (“the freezer”) because of 9 its cold temperatures, and took her 8-year-old son to another part of that detention facility. 10 78. While a CBP agent was later interviewing Blanca Orantes, another agent brought 11 her 8-year-old son to her and told her to “say goodbye” to him because they were being 12 separated. Her 8-year-old son began crying and pleading for his mom not to leave him. 13 79. Blanca Orantes’ 8-year-old son was taken away from her without any hearing, 14 and without any accusation or evidence that she is in any way an unfit parent, or that she is in 15 any way not acting in his best interest fleeing for safety in the United States, or that she is in any 16 way a threat to his safety, or that she in any way abused him, or that she in any way neglected 17 him. 18 80. On or around May 24, 2018, Blanca Orantes was handcuffed and taken to court. 19 She pled guilty to improper entry under 8 U.S.C. §1325 and was sentenced to time served. She 20 was then returned to her cell. 21 22 23 81. About nine days later, Blanca Orantes was transported to the Federal Detention Center in SeaTac, Washington. 82. The federal government did not provide Blanca Orantes any information about 24 her 8-year-old son until June 9, 2018, when an ICE officer handed her a slip of paper saying her 25 son was being held at place called “Children’s Home of Kingston” in Kingston, New York. 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 26 Filed 08/22/18 Page 15 of 35 1 83. On June 20, 2018, Blanca Orantes was transferred to the Northwest Detention 2 Center in Tacoma, Washington, where she was finally allowed to speak to her 8-year-old son by 3 telephone. 4 84. 5 Blanca Orantes was denied bond by the immigration judge at her bond hearing on July 16, 2018. 6 85. She was not released until on or about July 24, 2018, in order to comply with the 7 preliminary injunction in Ms. L., and thereafter reunited with her child. 8 D. 9 10 11 12 13 14 15 16 17 18 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. 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 detained asylum seekers subject to expedited removal proceedings under 8 U.S.C. § 1225(b) who were not provided a credible fear interview and determination within 10 days of requesting asylum or expressing a fear of persecution to a DHS official. 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 26 Filed 08/22/18 Page 16 of 35 1 2 3 4 5 6 7 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, 8 2018. That was more than a month after federal officials imprisoned her. The DHS official 9 conducting her credible fear interview determined that Yolany Padilla does have a credible fear 10 of persecution, and therefore assigned her asylum claim to immigration court for adjudication on 11 the merits 12 96. 13 14 15 16 17 18 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. 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, 19 2018. That was more than a month after federal officials imprisoned her. The DHS official 20 conducting her credible fear interview determined that Ibis Guzman does have a credible fear of 21 persecution, and therefore assigned her asylum claim to immigration court for adjudication on 22 the merits. 23 24 100. 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. 25 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 26 Filed 08/22/18 Page 17 of 35 1 2 3 4 5 101. 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 6 June 27, 2018. That was more than a month after federal officials imprisoned her. The DHS 7 official conducting her credible fear interview determined that Blanca Orantes does have a 8 credible fear of persecution, and therefore assigned her asylum claim to immigration court for 9 adjudication on the merits. 10 11 12 13 14 15 16 17 18 104. 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. 108. Baltazar Vasquez was not provided his credible fear interview until July 31, 2018. 19 That was almost two months after federal officials imprisoned him. The DHS official conducting 20 his credible fear interview determined that Baltazar Vasquez does have a credible fear of 21 persecution, and therefore referred his case to an immigration court for adjudication of the merits 22 of his asylum claim. 23 109. 24 Baltazar Vasquez is currently imprisoned at the Adelanto Detention facility in Adelanto, California. 25 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 26 Filed 08/22/18 Page 18 of 35 1 2 E. 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 3 imprisonment without a proper bond hearing for asylum seekers who entered the United States 4 without inspection. 5 111. 6 7 8 9 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 10 providing the bond hearings required by federal law. The federal government has not established 11 basic procedural safeguards for bond hearings such as verbatim transcripts or audio recordings of 12 bond hearings. The absence of such basic safeguards impedes an imprisoned asylum seeker’s 13 ability to meaningful appeal the denial of bond in their individual case as not being based on 14 evidence of legally relevant factors (i.e., being a flight risk or danger to the community) instead 15 of legally irrelevant factors (e.g., the zero-tolerance policy’s general goal of punishing and 16 deterring asylum seekers). Defendant EOIR maintains audio recordings of proceedings before 17 an Immigration Judge other than bond hearings, and provides verbatim transcripts on appeals to 18 the Board of Immigration Appeals. But Defendant EOIR does not maintain audio recordings of 19 an asylum seeker’s bond hearing or provide verbatim transcripts for appeal of bond hearing 20 determinations. Indeed, when an immigration judge denies bond, they routinely do not make 21 specific, particularized findings, and instead simply check a box on a template order. Moreover, 22 Defendants place the burden of proof on the noncitizen to demonstrate that they should not 23 continue to be detained throughout their lengthy immigration proceedings. 24 25 114. Plaintiff Yolany Padilla is an asylum seeker who originally entered the United States without inspection, was initially subject to expedited removal proceedings under 26 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 26 Filed 08/22/18 Page 19 of 35 1 8 U.S.C. §1225(b) and detained, was determined to have a credible fear of persecution, but was 2 not provided a timely bond hearing with a verbatim transcript or audio recording. 3 115. The federal government did not provide Yolany Padilla a bond hearing until after 4 she filed this lawsuit. At the conclusion of that bond hearing, an order was issued allowing her 5 to be released from federal detention upon posting an $8,000 bond pending the adjudication of 6 her asylum claim on the merits. To her knowledge, there is no verbatim transcript or recording 7 of her bond hearing. At the bond hearing, the immigration judge placed the burden of proof on 8 Yolany Padilla to demonstrate that she qualified for a bond. 9 116. Plaintiffs Ibis Guzman is a detained asylum seeker who originally entered the 10 United States without inspection, was initially subject to expedited removal proceedings under 11 8 U.S.C. §1225(b), was determined to have a credible fear of persecution, but was not provided a 12 timely bond hearing with a verbatim transcript or audio recording. 13 117. The federal government did not provide Ibis Guzman a bond hearing until after 14 she filed this lawsuit. At the bond hearing, the immigration judge placed the burden of proof on 15 Ibis Guzman to demonstrate that she qualified for a bond. At the conclusion of that bond 16 hearing, an immigration judge issued an order denying her release on any bond amount pending 17 the adjudication of her asylum claim on the merits. 18 118. The immigration judge did not make specific, particularized findings for the basis 19 of the denial. The immigration judge circled the preprinted words “Flight Risk” on a form order, 20 rendering her ineligible for bond even though a DHS official had already determined she has a 21 credible fear of persecution and even though the federal government has taken away her 22 6-year-old son. 23 119. The immigration judge provided no written explanation for circling “Flight Risk” 24 or the factors and evidence considered in making that conclusion to deny bond. Per defendant 25 EOIR’s practice, there is no verbatim transcript or recording of her bond hearing. She was not 26 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 26 Filed 08/22/18 Page 20 of 35 1 released until on or about July 31, 2018, in order to comply with the preliminary injunction in 2 Ms. L. 3 120. Plaintiff Blanca Orantes is a detained asylum seeker who originally entered the 4 United States without inspection, was initially subject to expedited removal proceedings under 5 8 U.S.C. §1225(b), was determined to have a credible fear of persecution once she was 6 eventually provided her credible fear interview and determination, but was not provided a bond 7 hearing with a verbatim transcript or recording of the hearing within 7 days of requesting a bond 8 hearing. 9 121. Blanca Orantes was not provided a bond hearing until July 16, 2018. At the bond 10 hearing, the immigration judge placed the burden of proof on Blanca Orantes to demonstrate that 11 she qualified for a bond. At the conclusion of that bond hearing, an immigration judge issued an 12 order denying her release on any bond amount pending the adjudication of her asylum claim on 13 the merits. 14 122. The immigration judge did not make specific, particularized findings for the basis 15 of the denial, and even failed to check the box indicating why she was denied bond on the 16 template order. Per defendant EOIR’s practice, there is no verbatim transcript or recording of her 17 bond hearing. At the bond hearing the immigration judge placed the burden on Blanca Orantes 18 to demonstrate that she was qualified for a bond. 19 123. She was not released until on or about July 23, 2018, after the federal government 20 was forced to comply with the preliminary injunction in Ms. L., and thereafter reunited her with 21 her child. 22 124. Plaintiff Baltazar Vasquez is a detained asylum seeker who originally entered 23 the United States without inspection, was initially subject to expedited removal proceedings 24 under 8 U.S.C. §1225(b), was determined to have a credible fear of persecution once he was 25 eventually provided his credible fear interview and determination, but was not provided a bond 26 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 26 Filed 08/22/18 Page 21 of 35 1 hearing with a verbatim transcript or recording of the hearing within 7 days of requesting a bond 2 hearing. 3 125. The federal government did not provide Baltazar Vasquez a bond hearing until 4 August 20, 2018. At the bond hearing, the immigration judge placed the burden of proof on 5 Baltazar Vasquez to demonstrate that he qualified for a bond. At the conclusion of that bond 6 hearing, an order was issued allowing him to be released from federal detention upon posting a 7 $9,000 bond pending the adjudication of his asylum claim on the merits. There is no verbatim 8 transcript or recording of his bond hearing. 9 VI. 10 11 126. 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. 12 127. The named plaintiffs also bring this suit as a class action under Fed.R.Civ.P. 23(b) 13 on behalf of the other similarly situated persons specified in the two classes of asylum seekers 14 specified in Part VI of this Second Amended Complaint. 15 A. 16 “Credible Fear Interview Class” 128. With respect to plaintiffs’ claims concerning defendants’ failure to promptly 17 provide asylum seekers a credible fear interview and determination, plaintiffs seek to represent 18 the following class (the “credible fear interview class”): 19 20 21 22 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. 129. Plaintiffs allege the following on information and belief: At least several hundred 23 asylum seekers currently fit within the credible fear interview class. Defendants should know 24 the precise number since the members of this class should be readily ascertainable through 25 defendants’ records. 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 26 Filed 08/22/18 Page 22 of 35 1 2 3 130. 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 4 law or fact common to this class. Given the definition of this class, its members all share the 5 same common factual situation of being a detained asylum seeker subject to defendants’ practice 6 of failing to provide a credible fear interview and determination within 10 days of their 7 expressing a fear of persecution or a request for asylum to a DHS official, despite the fact they 8 have been placed in expedited removal proceedings under 8 USC § 1225(b), which requires 9 immediate action. The members of this class share common questions of law governing whether 10 defendants’ practice of failing to provide class members a credible fear interview and 11 determination within 10 days of their expressing a fear of persecution or a request for asylum to 12 a DHS official is legal under the Fifth Amendment, APA, or federal asylum statutes. 13 132. The credible fear interview class satisfies Rule 23(a)(3). Plaintiffs’ claims 14 concerning the legality of defendants’ practice of failing to provide 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 are typical of the claims of class members. As noted in the prior paragraph, the 17 definition of this class dictates that plaintiffs share with the other class members the same 18 common factual situation and the same common questions of law under the Fifth Amendment, 19 APA, and federal asylum statutes. 20 133. The credible fear interview class satisfies Rule 23(a)(4). Plaintiffs will fairly 21 and adequately protect the interests of that class. They are represented by counsel from the 22 Northwest Immigrant Rights Project and the American Immigration Council, who have extensive 23 experience litigating class action lawsuits and other complex cases in federal court, including 24 civil rights lawsuits on behalf of noncitizens. 25 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 26 Filed 08/22/18 Page 23 of 35 1 134. The credible fear interview class satisfies Rule 23(b)(1). Requiring separate 2 actions by the members of this class would create the risk of inconsistent or varying 3 adjudications with respect to individual class members that would establish incompatible 4 standards of conduct for defendants. Requiring separate actions by the members of this class 5 would create the risk of adjudications with respect to individual class members that, as a 6 practical matter, would be dispositive of the interests of the other class members not parties to 7 the individual adjudications, or would at least substantially impair or impede their ability to 8 protect their interests. 9 135. The credible fear interview class satisfies Rule 23(b)(2). Defendants have acted 10 or refused to act on grounds that apply generally to this class. Final injunctive relief or 11 corresponding declaratory relief is appropriate with respect to the class as a whole, especially as 12 it involves uniform, federal immigration law and plaintiffs are transferred across the country by 13 defendants. Moreover, requiring separate actions by the members of this class would create the 14 risk of inconsistent or varying adjudications with respect to individual class members that would 15 establish incompatible standards of conduct for defendants. 16 136. The credible fear interview class satisfies Rule 23(b)(3). Questions of law or 17 fact common to members of this class predominate over questions affecting only individual 18 members. A class action is superior to other available methods for fairly and efficiently 19 adjudicating the legality of defendants’ practice of failing to provide a credible fear interview 20 and determination within 10 days of a person’s expressing a fear of persecution or requesting 21 asylum. 22 B. 23 “Bond Hearing Class” 137. With respect to plaintiffs’ claims concerning defendants’ failure to promptly 24 conduct a bond hearing to set reasonable conditions for the asylum seeker’s release pending the 25 lengthy proceedings to adjudicate his or her asylum claim, and to provide a bond hearing that 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 26 Filed 08/22/18 Page 24 of 35 1 comports with the requirements of due process, plaintiffs seek to represent the following class 2 (the “bond hearing class”): 3 4 5 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. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 138. 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, 26 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 26 Filed 08/22/18 Page 25 of 35 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 25 144. The bond hearing class satisfies Rule 23(b)(2). Defendants have acted or refused to act on grounds that apply generally to this class. Final injunctive relief or 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 26 Filed 08/22/18 Page 26 of 35 1 corresponding declaratory relief is appropriate with respect to the class as a whole especially as it 2 involves uniform, federal immigration law and plaintiffs are transferred across the country by 3 defendants. Moreover, requiring separate actions by the members of this class would create the 4 risk of inconsistent or varying adjudications with respect to individual class members that would 5 establish incompatible standards of conduct for defendants. 6 145. The bond hearing class satisfies Rule 23(b)(3). Questions of law or fact 7 common to members of this class predominate over questions affecting only individual 8 members. A class action is superior to other available methods for fairly and efficiently 9 adjudicating the legality of defendants’ practice of failing to provide a bond hearing with a 10 transcript or recording of the proceeding within 7 days of an asylum seeker’s requesting a bond 11 hearing, defendant EOIR’s practice of placing the burden of proof on the detained asylum seeker 12 to demonstrate they are eligible for release, and Defendant EOIR’s failure to make specific, 13 particularized findings when denying release. 14 VII. COUNT I (Violation of Due Process) 15 16 17 18 19 20 21 22 23 24 25 26 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. 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 26 Filed 08/22/18 Page 27 of 35 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 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 26 Filed 08/22/18 Page 28 of 35 1 hearing more than 7 days does not further a compelling governmental interest. Moreover, 2 denying release for general deterrence or punishment goals unrelated to the specific factors of 3 whether the individual presents a flight risk or danger to the community unlawfully deprives 4 these asylum seekers of their constitutional right to liberty. Defendants’ prolonging plaintiffs’ 5 and members of the Bond Hearing Class’s federal detention by delaying their bond hearing more 6 than 7 days is a violation of the constitutional substantive process rights of plaintiffs and 7 members of the Bond Hearing Class. 8 9 152. 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 release pending the lengthy proceedings to adjudicate their asylum claim 11 violates procedural due process. That ongoing detention is imposed without providing a bond 12 hearing with a transcript or recording of the hearing and specific, particularized findings with 13 respect to any denial of release, denies plaintiffs and members of the Bond Hearing Class an 14 adequate record to file an administrative appeal or habeas petition. Moreover, denying release 15 for general deterrence goals unrelated to the specific factors of whether the individual presents a 16 flight risk or danger to the community strips detained asylum seekers of a fair hearing. What is 17 more, placing the burden on the noncitizen to demonstrate their eligibility for release also 18 constitutes a violation of their due process rights. Defendants’ prolonging plaintiffs’ and 19 members of the Bond Hearing Class’s federal detention by failing to provide a bond hearing 20 where the burden of proof is on the government and with a verbatim transcript or recording of 21 the hearing within 7 days of requesting a bond is a is a violation of the constitutional substantive 22 due process rights of plaintiffs and their children as well as of members of the Bond Hearing 23 Class. 24 25 26 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 26 Filed 08/22/18 Page 29 of 35 COUNT II (Administrative Procedure Act) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 153. All of the foregoing allegations are repeated and re-alleged as though fully set forth herein. 154. Defendants’ decision to detain plaintiffs and members of the Credible Fear Interview Class for an unreasonable time awaiting their credible fear interview, without a compelling justification and without a mechanism, protocol, or system to assure a prompt and fair credible fear interview and determination, is a final agency action. That action violates 5 U.S.C. §§706(1) and (2)(A) and (B). 155. Defendants’ decision to detain plaintiffs and members of the Bond Hearing Class for an unreasonable time awaiting a bond hearing to set reasonable conditions for their release 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 hearing, is a final agency action. That action violates 5 U.S.C. §§706(1) and (2)(A) and (B). 156. Defendants’ decision to deny plaintiffs and members of the Bond Hearing Class a bond hearing with adequate procedural protections, specifically a hearing where the burden of proof is on the government, a recording or transcript of the hearing available for any subsequent administrative appeal or habeas petition, and specific, particularized findings of any denial of release, is a final agency action. That action violates 5 U.S.C. §§706(1) and (2)(A) and (B). 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 assess whether an asylum seeker has a credible fear of persecution. This obligation is triggered when Defendants learn of an individual’s fear of persecution. See 8 U.S.C. §1225(b)(1)(A)(ii). 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 26 Filed 08/22/18 Page 30 of 35 1 Asylum seekers are only permitted to raise their claims before an immigration judge after the 2 asylum officer’s credible fear determination. See 8 C.F.R. § 208.30(f), (g). 3 160. Conducting a credible fear interview to determine whether a person seeking 4 asylum has a credible fear of persecution is a discrete, final agency action that DHS is required to 5 take. 6 161. Defendants’ failure to expeditiously conduct a credible fear interview after 7 detaining plaintiffs and members of the Credible Fear Interview class constitutes “an agency 8 action unlawfully withheld or unreasonably delayed” under the APA. See 5 U.S.C. § 706(1). 9 162. If the asylum officer determines that an asylum seeker has a credible fear of 10 persecution, the case is transferred to EOIR for adjudication of the asylum claim by an 11 immigration judge. 12 163. An asylum seeker in the Bond Hearing Class is entitled to a bond hearing to 13 assess eligibility for his or her release from DHS custody pending the lengthy proceedings to 14 adjudicate his or her asylum claim. 15 164. Defendant EOIR’s failure to promptly conduct a bond hearing for plaintiffs and 16 members of the Bond Hearing Class within 7 days violates defendant’s legal duty under the APA 17 to conclude matters presented to it within a reasonable time. 18 165. Defendant EOIR’s failure to conduct a bond hearing for plaintiffs and members of 19 the Bond Hearing Class with appropriate procedural safeguards constitutes an agency action 20 unlawfully withheld or unreasonably delayed in violation of the APA. COUNT III (Violation of Asylum Statute) 21 22 23 24 166. All of the foregoing allegations are repeated and re-alleged as though fully set forth herein. 25 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 26 Filed 08/22/18 Page 31 of 35 1 167. The Immigration and Nationality Act grants noncitizens fleeing persecution the 2 opportunity to apply for asylum in the United States. 8 U.S.C. §1225(b)(1) (expedited removal); 3 8 C.F.R. §§ 235.3(b)(4), 208.30, & 1003.42; 8 U.S.C. §1158(a)(1). 4 5 6 7 8 9 10 11 168. 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 and members of the Credible Fear Interview Class violates the asylum statute because it unlawfully infringes on their ability to pursue their asylum claims. 171. Defendants’ failure to promptly conduct a bond hearing to assess eligibility for 12 the release of plaintiffs and members of the Bond Hearing Class violates the asylum statute 13 because it unlawfully infringes on their ability to pursue their asylum claims. VIII. PRAYER FOR RELIEF 14 15 16 17 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 18 in the United States subject to expedited removal proceedings under 19 8 U.S.C. §1225(b) who are not provided a credible fear determination within 10 days 20 of requesting asylum or expressing a fear of persecution to a DHS official.” 21 22 B. Name plaintiffs as representatives of the Credible Fear Interview Class, and appoint their counsel as class counsel. 23 C. Declare that defendants have an obligation to provide Credible Fear Interview Class 24 members their credible fear interview and 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 - 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 26 Filed 08/22/18 Page 32 of 35 1 D. Preliminarily and permanently enjoin defendants from not providing Credible Fear 2 Interview Class members their credible fear determination within 10 days of that 3 person’s requesting asylum or expressing a fear of persecution to any DHS official. 4 E. Certify the following Bond Hearing Class: “All detained asylum seekers who 5 entered the United States without inspection, were initially subject to expedited 6 removal proceedings under 8 U.S.C. §1225(b), were determined to have a credible 7 fear of persecution, but are not provided a bond hearing with a verbatim transcript or 8 recording of the hearing within 7 days of requesting a bond hearing.” 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 12 bond hearing within 7 days of their requesting a hearing to set reasonable conditions 13 for their release pending adjudication of their asylum claim. 14 H. Declare that defendants have an obligation to provide Bond Hearing Class members 15 (including plaintiffs) a bond hearing with adequate procedural safeguards, including a 16 verbatim transcript or recording of their bond hearing. 17 18 I. Declare that defendant DHS must bear the burden of proof to show continued detention is necessary in civil immigration proceedings. 19 J. Declare that in bond hearings immigration judges must make specific, particularized 20 written findings as to the basis for denying release from detention, including findings 21 identifying the basis for finding that the individual is a flight risk or a danger to the 22 community. 23 K. Preliminarily and permanently enjoin defendants from not providing Bond Hearing 24 Class members their bond hearing with a verbatim transcript or recording of their 25 bond hearing. 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 26 Filed 08/22/18 Page 33 of 35 1 L. Preliminarily and permanently enjoin defendants from not providing Bond Hearing 2 Class members their bond hearing within 7 days of the asylum seeker’s request. 3 M. Preliminarily and permanently enjoin defendants from not providing Bond Hearing 4 Class members bond hearings where defendant DHS bears the burden of proof to 5 show continued detention is necessary. 6 N. N. Preliminarily and permanently enjoin defendants from not providing Bond 7 Hearing Class members where immigration judges make specific, particularized 8 written findings as to the basis for denying release from detention, including findings 9 identifying the basis for finding that the individual is a flight risk or a danger to the 10 community. 11 O. Order defendants to pay reasonable attorneys’ fees and costs. 12 P. Order all other relief that is just and proper. 13 14 15 16 17 18 19 20 21 22 23 24 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 26 Filed 08/22/18 Page 34 of 35 1 Dated this 22nd 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 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 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 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 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 26 Filed 08/22/18 Page 35 of 35 1 2 3 4 CERTIFICATE OF SERVICE I hereby certify that on August 22, 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 22nd day of August, 2018. 8 s/ Matt Adams NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, Washington 98104 Telephone: (206) 957-8611 Facsimile: (206) 587-4025 Email: matt@nwirp.org 9 10 11 12 13 14 15 16 17 18 19 20 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