Case 3:18-cv-00428-DMS-MDD Document 244 Filed 10/05/18 PageID.3859 Page 1 of 6 1 2 3 4 5 6 7 8 9 10 Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* Daniel Galindo (SBN 292854) AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2660 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org 11 12 13 14 *Admitted Pro Hac Vice Attorneys for Petitioners-Plaintiffs Additional counsel on next page 15 18 Ms. L., et al, 21 Case No. 3:18-cv-428-DMS-MDD Petitioners-Plaintiffs, 19 20 v. U.S. Immigration and Customs 22 Enforcement (“ICE”); et al., 23 Respondents-Defendants. 24 25 26 27 28 Spencer E. Amdur (SBN 320069) Stephen B. Kang (SBN 292280) AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 samdur@aclu.org skang@aclu.org UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 16 17 Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 398-4485 F: (619) 232-0036 bvakili@aclusandiego.org JOINT MOTION FOR LEAVE TO FILE THIRD AMENDED CLASS ACTION COMPLAINT AND TO FILE UNDER PSEUDONYM Judge: Honorable Dana M. Sabraw Ctrm: 13A, Suite 1310 Complaint Filed: February 26, 2018 Trial: TBD Case 3:18-cv-00428-DMS-MDD Document 244 Filed 10/05/18 PageID.3860 Page 2 of 6 1 Pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure, Local Civil 2 Rule 7.2(b), and the Court’s Chamber Rules, Plaintiffs Ms. L., et al., (“Plaintiffs”) 3 and Defendants U.S. Immigration and Customs Enforcement, et al. (“Defendants”), 4 by and through their undersigned counsel of record (collectively, the “Parties”), 5 respectfully submit this Joint Motion for Leave to File a Third Amended Class 6 Action Complaint (“TAC”) and to File Under Pseudonym. 7 amending the complaint is to add “Dora” and “Alma” as named Plaintiffs, solely for 8 having them serve as class representatives for the proposed settlement of asylum- 9 related claims. See ECF No. 220. Otherwise, the nature of the action does not 10 change, and the amendment does not otherwise affect any other issues, claims, or 11 proceedings that are ongoing in the case. Defendants’ objections and arguments 12 regarding class certification are also preserved. Upon approval of the settlement, the 13 parties agree that Count III of the TAC will be dismissed, though this Court will 14 retain jurisdiction to enforce the settlement itself. The purpose of 15 A party may amend the party’s pleading only by leave of court or by written 16 consent of the adverse party; and leave shall be freely given when justice so 17 requires. 18 Defendants’ counsel and obtained confirmation that Defendants consent to filing the 19 TAC. The proposed TAC is attached as Exhibit “A” for filing on the public record. 20 Pursuant to Local Civil Rule 15.1(b), a version of the proposed TAC that shows a 21 redline of how the proposed pleading differs from the current operative pleading is 22 attached as Exhibit “B.” Fed. R. Civ. P. 15(a)(2). Here, Plaintiffs’ counsel conferred with 23 Plaintiffs also seek to add the named Plaintiffs to the TAC under pseudonyms, 24 and Defendants do not oppose this request. Specifically, Plaintiffs request that this 25 Court permit them to (1) proceed under pseudonyms, and (2) file under seal an 26 exhibit to this motion that matches the pseudonyms used in the publicly filed 27 complaint to the newly-added Plaintiffs’ actual names. Plaintiffs request leave to 28 file under seal the following document: Exhibit “C,” which includes Plaintiffs’ true 1 Case 3:18-cv-00428-DMS-MDD Document 244 Filed 10/05/18 PageID.3861 Page 3 of 6 1 names matched with the pseudonyms they seek to use in this lawsuit. Plaintiffs ask 2 (and Defendants do not oppose) that Plaintiffs’ names and any personal identifying 3 information that could lead to the identification of Plaintiffs by non-parties, shall not 4 be publicly disclosed, and that the Court confirm this agreement in an order. 5 Plaintiffs state that the basis for this motion is that the newly-added Plaintiffs and 6 their minor children are asylum applicants who fear persecution and possible death 7 both here and in their home countries if their identities are exposed. Plaintiffs also 8 state that because Plaintiffs would be at risk of great harm if their identities were 9 revealed, they respectfully request leave to proceed anonymously in this litigation. 10 Defendants do not concede these points, but do not oppose the request to proceed 11 under pseudonyms. 12 13 Dated: October 5, 2018 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 398-4485 F: (619) 232-0036 bvakili@aclusandiego.org Spencer E. Amdur (SBN 320069) Stephen B. Kang (SBN 292280) AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 samdur@aclu.org skang@aclu.org Respectfully Submitted, /s/ Lee Gelernt Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* Daniel Galindo (SBN 292854) AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2660 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org *Admitted Pro Hac Vice Attorneys for Petitioner-Plaintiffs Ms. L and Ms. C 2 Case 3:18-cv-00428-DMS-MDD Document 244 Filed 10/05/18 PageID.3862 Page 4 of 6 1 Dated: October 5, 2018 2 3 4 5 6 7 8 Sirine Shebaya* Johnathan Smith * MUSLIM ADVOCATES P.O. Box 34440 Washington, D.C. 20043 T: (202) 897-2622 F: (202) 508-1007 sirine@muslimadvocates.org johnathan@muslimadvocates.org Respectfully Submitted, /s/ Wilson G. Barmeyer Wilson G. Barmeyer* EVERSHEDS SUTHERLAND (US) LLP 700 Sixth Street NW, Suite 700 Washington, DC 20001 T: (202) 383-0100 F: (202) 637-3593 wilsonbarmeyer@evershedssutherland.co m 9 10 11 12 13 14 Aaron M. Olsen (SBN 259923) HAEGGQUIST & ECK, LLP 225 Broadway, Suite 2050 San Diego, CA 92101 T: (619) 342-8000 F: (619) 342-7878 aarono@haelaw.com *Pro Hac Vice to be filed Attorneys for Plaintiffs Dora and Alma as to Count III 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Case 3:18-cv-00428-DMS-MDD Document 244 Filed 10/05/18 PageID.3863 Page 5 of 6 1 Dated: October 5, 2018 2 3 SARAH B. FABIAN Senior Litigation Counsel 4 NICOLE MURLEY 5 Trial Attorney Office of Immigration Litigation 6 Civil Division 7 U.S. Department of Justice P.O. Box 868, Ben Franklin Station 8 Washington, DC 20044 9 T: (202) 532-4824 F: (202) 616-8962 10 sarah.b.fabian@usdoj.gov 11 12 ADAM L. BRAVERMAN United States Attorney 13 SAMUEL W. BETTWY 14 Assistant U.S. Attorney Respectfully Submitted, /s/ Joseph H. Hunt JOSEPH H. HUNT Assistant Attorney General SCOTT G. STEWART Deputy Assistant Attorney General WILLIAM C. PEACHEY Director WILLIAM C. SILVIS Assistant Director Attorneys for Respondents-Defendants 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Case 3:18-cv-00428-DMS-MDD Document 244 Filed 10/05/18 PageID.3864 Page 6 of 6 1 CERTIFICATE OF SERVICE 2 I hereby certify that on October 5, 2018, I electronically filed the foregoing 3 with the Clerk of the Court using the CM/ECF system which will send notification 4 of such filing to the e-mail addresses denoted on the Electronic Mail Notice List. 5 6 I certify under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on October 5, 2018. 7 /s/ Lee Gelernt Lee Gelernt, Esq. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Case Document 244-1 Filed 10/05/18 PagelD.3865 Pagelof 23 EX. A Case 3:18-cv-00428-DMS-MDD Document 244-1 Filed 10/05/18 PageID.3866 Page 2 of 23 1 2 3 4 5 6 7 8 9 10 Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* Daniel Galindo (SBN 292854) AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2660 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org 11 12 13 14 Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 398-4485 F: (619) 232-0036 bvakili@aclusandiego.org Spencer E. Amdur (SBN 320069) Stephen B. Kang (SBN 292280) AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 samdur@aclu.org skang@aclu.org 15 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 16 17 18 19 Ms. L. et al., Petitioners-Plaintiffs, 20 21 22 23 24 25 26 27 28 Case No. 18-cv-00428-DMS-MDD v. U.S. Immigration and Customs Enforcement (“ICE”); et al., Respondents-Defendants. Date Filed: October 5, 2018 THIRD AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF CLASS ACTION Case 3:18-cv-00428-DMS-MDD Document 244-1 Filed 10/05/18 PageID.3867 Page 3 of 23 1 Aaron M. Olsen (SBN 259923) 2 HAEGGQUIST & ECK 3 LLP 225 Broadway, Ste 2050 4 San Diego, CA 92101 5 T: 619.342.8000 F: 619.342.7878 6 aarono@haelaw.com 7 Wilson G. Barmeyer* EVERSHEDS SUTHERLAND (US) LLP 700 Sixth Street NW Suite 700 Washington, DC 20001 T: (202) 383-0100 F: (202)637-3593 wilsonbarmeyer@evershed s-sutherland.com Sirine Shebaya* Johnathan Smith* MUSLIM ADVOCATES P.O. Box 34440 Washington, D.C. 20043 T: (202) 897-2622 F: (202) 508-1007 sirine@muslimadvocates .org johnathan@muslimadvocates .org John H. Fleming* EVERSHEDS SUTHERLAND (US) LLP 999 Peachtree Street NE, Suite 2300 Atlanta, GA 30309 T: (404) 853-8000 F: (404) 853-8806 johnfleming@evershedssutherland.com Simon Y. SandovalMoshenberg* Sophia Gregg* LEGAL AID JUSTICE CENTER 6066 Leesburg Pike, Suite 520 Falls Church, VA 22041 T: (703) 778-3450 F: (703) 778-3454 simon@justice4all.org sophia@justice4all.org 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Counsel for Plaintiffs Dora and Alma and for Count 3 Only * Motion for Admission Pro Hac Vice Forthcoming Case 3:18-cv-00428-DMS-MDD Document 244-1 Filed 10/05/18 PageID.3868 Page 4 of 23 1 2 1. INTRODUCTION This case challenges the United States government’s forcible separation of parents from their young children for no legitimate reason and 3 notwithstanding the threat of irreparable damage that separation has been 4 universally recognized to cause young children. 5 2. Plaintiff Ms. L. is the mother of a seven (7) year-old daughter, who 6 was ripped away from her, and then sent halfway across the country to be detained 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 alone. Plaintiff Ms. C. is the mother of a fourteen (14) year-old son, who was also forcibly separated from his mother and detained more than a thousand miles away. Dora is the mother of a thirteen (13) year-old daughter who was forcibly separated from her. Alma is the mother of seven-year old and nine-year old sons who were forcibly separated from her. 3. Ms. L., Ms. C., Dora, and Alma bring this action on behalf of themselves and thousands of other parents whom the government has forcibly separated from their children. Like Ms. L., Ms. C., Dora, and Alma, many of these individuals have fled persecution and are seeking asylum in the United States. Without any allegations of abuse, neglect, or parental unfitness, and with no hearings of any kind, the government is separating these families and detaining their young children, alone and frightened, in facilities often thousands of miles from their parents. 4. Forced separation from parents causes severe trauma to young children, especially those who are already traumatized and are fleeing persecution in their home countries. The resulting cognitive and emotional damage can be permanent. 5. Forced separation can also cause parents to experience symptom of acute stress response and corresponding cognitive impairments, which can in turn impair the ability to meaningfully participate in a credible fear interview. 28 1 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 244-1 Filed 10/05/18 PageID.3869 Page 5 of 23 6. 1 Defendants have ample ways to keep Plaintiffs together with their 2 children, as they have done for decades prior to their current practice. There are 3 shelters that house families (including asylum-seekers) while they await the final 4 adjudication of their immigration cases. If, however, the government lawfully 5 continues detaining these parents and young children, it must at a minimum detain 6 them together in one of its immigration family detention centers. 7. 7 The Due Process Clause of the Fifth Amendment does not permit the 8 government to forcibly take young children from their parents, without justification 9 or even a hearing. That separation also violates the asylum statutes, which 10 guarantee a meaningful right to apply for asylum, and the Administrative Procedure 11 Act (APA), which prohibits unlawful and arbitrary government action. 12 8. 13 JURISDICTION This case arises under the Fifth Amendment to the United States 14 Constitution, federal asylum statutes, and the APA. The court has jurisdiction under 15 28 U.S.C. § 1331 (federal question jurisdiction); 28 U.S.C. § 2241 (habeas 16 jurisdiction); and Art. I., § 9, cl. 2 of the United States Constitution (“Suspension 17 Clause”). Plaintiffs are in custody for purposes of habeas jurisdiction. 18 9. 19 VENUE Venue is proper under 28 U.S.C. § 1391(e) because Ms. L. was 20 detained in this District when this action commenced, Defendants reside in this 21 District, and a substantial portion of the relevant facts occurred within this District, 22 including the Defendants’ implementation of their practice of separating immigrant 23 parents from their children for no legitimate reason. 24 10. 25 26 (the “Congo” or “DRC”). She is the mother of 7 year-old S.S. 11. 27 28 PARTIES Plaintiff Ms. L. is a citizen of the Democratic Republic of the Congo Plaintiff Ms. C. is a citizen of Brazil. She is the mother of 14 year-old J. 2 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 244-1 Filed 10/05/18 PageID.3870 Page 6 of 23 12. 1 2 daughter. 3 4 5 6 7 Dora is a citizen of Honduras. She is the mother of a 13 year-old 13. Alma is a citizen of Honduras. She is the mother of 7 and 9 year-old 14. Defendants U.S. Department of Homeland Security (“DHS”) has sons. responsibility for enforcing the immigration laws of the United States. 15. Defendant U.S. Immigration and Customs Enforcement (“ICE”) is the 8 sub-agency of DHS that is responsible for carrying out removal orders and 9 overseeing immigration detention. 10 16. Defendant U.S. Customs and Border Protection (“CBP”) is the sub 11 agency of DHS that is responsible for the initial processing and detention of 12 noncitizens who are apprehended near the U.S. border. 13 17. Defendant U.S. Department of Health and Human Services (HHS) is a 14 department of the executive branch of the U.S. government which has been 15 delegated authority over “unaccompanied” noncitizen children. 16 18. Defendant Office of Refugee Resettlement (“ORR”) is the component 17 of HHS which provides care of and placement for “unaccompanied” noncitizen 18 children. 19 20 21 22 23 19. Defendant Thomas Homan is sued in his official capacity as the Director of ICE, and is a legal custodian of Plaintiffs. 20. Defendant Greg Archambeault is sued in his official capacity as the ICE San Diego Field Office Director, and is a legal custodian of Plaintiff Ms. L. 21. Defendant Joseph Greene is sued in his official capacity as the ICE 24 San Diego Assistant Field Office Director for the Otay Mesa Detention Center, and 25 is a legal custodian of Plaintiff Ms. L. 26 27 22. Defendant Adrian P. Macias is sued in his official capacity as the ICE El Paso Field Office Director, and is a legal custodian of Plaintiff Ms. C. 28 3 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 244-1 Filed 10/05/18 PageID.3871 Page 7 of 23 1 23. Defendant Frances M. Jackson is sued in his official capacity as the 2 ICE El Paso Assistant Field Office Director for the West Texas Detention Facility, 3 and is a legal custodian of Plaintiff Ms. C. 4 24. Defendant Kirstjen Nielsen, is sued in her official capacity as the 5 Secretary of the Department of Homeland Security. In this capacity, she directs 6 each of the component agencies within DHS: ICE, USCIS, and CBP. As a result, 7 Respondent Nielsen has responsibility for the administration of the immigration 8 laws pursuant to 8 U.S.C. § 1103, is empowered to grant asylum or other relief, and 9 is a legal custodian of the Plaintiffs. 10 25. Defendant Jefferson Beauregard Sessions III is sued in his official 11 capacity as the Attorney General of the United States. In this capacity, he has 12 responsibility for the administration of the immigration laws pursuant to 8 U.S.C. § 13 1103, oversees the Executive Office of Immigration Review, is empowered to grant 14 asylum or other relief, and is a legal custodian of the Plaintiffs. 15 16 17 18 19 20 21 22 23 24 25 26 26. Defendant L. Francis Cissna is sued in his official capacity as the Director of USCIS. 27. Defendant Kevin K. McAleenan is sued in his official capacity as the Acting Commissioner of CBP. 28. Defendant Pete Flores is sued in his official capacity as the San Diego Field Director of CBP. 29. Defendant Hector A. Mancha Jr. is sued in his official capacity as the El Paso Field Director of CBP. 30. Defendant Alex Azar is sued in his official capacity as the Secretary of the Department of Health and Human Services. 31. Defendant Scott Lloyd is sued in his official capacity as the Director of the Office of Refugee Resettlement. 27 28 4 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 244-1 Filed 10/05/18 PageID.3872 Page 8 of 23 1 2 32. FACTS Over the past year, the government has separated thousands of migrant 3 families for no legitimate purpose. The government’s true purpose in separating 4 these families was to deter future families from seeking refuge in the United States. 5 33. Many of these migrant families fled persecution and are seeking 6 asylum. Although there are no allegations that the parents are unfit or abusing their 7 children in any way, the government has forcibly separated them from their young 8 children and detained the children, often far away, in facilities for “unaccompanied” 9 minors. 10 34. There is overwhelming medical evidence that the separation of a 11 young child from his or her parent will have a devastating negative impact on the 12 child’s well-being, especially where there are other traumatic factors at work, and 13 that this damage can be permanent. 14 35. The American Association of Pediatrics has denounced the 15 Administration’s practice of separating migrant children from their parents, noting 16 that: “The psychological distress, anxiety, and depression associated with 17 separation from a parent would follow the children well after the immediate period 18 of separation—even after the eventual reunification with a parent or other family.” 19 20 21 36. Prior Administrations detained migrant families, but did not have a practice of forcibly separating fit parents from their young children. 37. There are non-governmental shelters that specialize in housing and 22 caring for families—including asylum seeking families—while their immigration 23 applications are adjudicated. 24 38. There are also government-operated family detention centers where 25 parents can be housed together with their children, should the government lawfully 26 decide not to release them. The government previously detained, and continues to 27 detain, numerous family units at those facilities. 28 5 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 244-1 Filed 10/05/18 PageID.3873 Page 9 of 23 39. 1 In April 2018, the New York Times reported that more than “700 2 children have been taken from adults claiming to be their parents since October [of 3 2016], including more than 100 children under the age of 4.” Caitlin Dickerson, 4 Hundreds of Children Have Been Taken from Parents at U.S. Border, N.Y. Times, 5 Apr. 20, 2018. 40. 6 On May 7, 2018, Defendant Sessions announced “a new initiative” to 7 refer “100 percent” of immigrants who cross the Southwest border for criminal 8 immigration prosecutions, also known as the “zero-tolerance policy.” Defendant 9 Sessions stated that as part of that prosecution, all parents who are prosecuted 10 would be separated from their children. U.S. Dep’t of Justice, Attorney General 11 Sessions Delivers Remarks to the Association of State Criminal Investigative 12 Agencies 2018 Spring Conference (May 7, 2018). The purpose of this new policy 13 was to separate families in the hope that it would deter other families from seeking 14 refuge in the United States. 41. 15 At a Senate Judiciary Committee hearing in May, a deputy chief of 16 Defendant U.S. Customs and Border Protection testified that between May 6 and 17 May 19 alone, a total of 658 children were separated from their family members 18 pursuant to this policy. The Washington Post reported that in the city of McAllen, 19 Texas, 415 children were taken from their parents during a two week period. 1 And 20 in June 2018, the Department of Homeland Security reported that in the six weeks 21 between April 19 and May 31, the administration took almost 2,000 children away 22 from their parents.2 42. 23 Defendant Sessions and other government officials, including 24 Defendant Nielsen, have repeatedly defended the separation of children from their 25 parents in speeches and interviews with various media outlets. Among other 26 1 27 https://www.washingtonpost.com/world/national-security/trumps-zero-tolerance- at-theborder-is-causing-child-shelters-to-fill-up-fast/2018/05/29/7aab0ae4-636b-11e8-a69cb944de66d9e7_story.html?utm_term=.d52d94c37d05. 28 2 https://ca.reuters.com/article/topNews/idCAKBN1JB2SF-OCATP. 6 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 244-1 Filed 10/05/18 PageID.3874 Page 10 of 23 1 justifications for the practice, they have stated that separating families would be a 2 way to “discourage parents from bringing their children here illegally,” 3 and that it 3 would help “deter more movement” to the United States by asylum seekers and 4 other migrants. 4 Administration officials told the New York Times in May, “[t]he 5 president and his aides in the White House had been pushing a family separation 6 policy for weeks as a way of deterring families from trying to cross the border 7 illegally.” 5 43. 8 9 Even if the separated child is released from custody and placed in a community setting or foster care, the trauma of the ongoing separation continues. 44. 10 By taking away their children, Defendants are coercing class members 11 into giving up their claims for asylum and other legal protection. Numerous class 12 members have been told by CBP and ICE agents that they will see their children 13 again sooner if they withdraw their asylum applications and accept earlier 14 deportation. 6 45. 15 16 Many class members have given up their asylum claims and stipulated to removal as a way to be reunited with their children faster. 46. 17 For class members who have not been coerced into giving up their 18 asylum claims, separation from their children has made those applications much 19 more difficult. Separation prevents parents from helping their children apply for 20 asylum and navigate removal proceedings. Separation also makes it harder for 21 3 22 http://transcripts.cnn.com/TRANSCRIPTS/1801/16/cnr.04.html. 4 23 24 https://www.cnn.com/2017/03/06/politics/john-kelly-separating-children-from- parents-immigrationborder/ 5 https://www.nytimes.com/2018/05/10/us/politics/trump-homeland-security- secretary-resign.html 6 25 26 27 28 This practice has been widely reported. See, e.g., Dara Lind, Trump Will Reunite Separated Families— But Only if They Agree to Deportation, Vox.com (June 25, 2018), https://www.vox.com/2018/6725/17484042/children-parents-separate- reunite-plan-trump; Jay Root & Shannon Najmabadi, Kids in Exchange for Deportation: Detained Migrants Say They Were Told They Could Get Kids Back on Way Out of U.S., Texas Tribune (June 24, 2018), https://www.texastribune.org/2018/06/24/kids-exchange-deportation-migrants-claim-they-were-promisedthey-could/?utm_campaign=tribsocial&utm_medium=social&utm_source=twitter&utm_content=1529859032. 7 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 244-1 Filed 10/05/18 PageID.3875 Page 11 of 23 1 parents to present facts involving their children which support their own asylum 2 claims. 47. 3 The trauma of separation also renders asylum-seeking class members 4 too distraught to effectively pursue their asylum applications. See, e.g., Angelina 5 Chapin, Separated Parents Are Failing Asylum Screenings Because They’re So 6 Heartbroken, Huffington Post (June 30, 2018).7 48. 7 Defendants have deported class members without their separated 8 children. Their children are now stranded in the United States alone. Many of these 9 parents are now struggling to make contact with their children, who are being 10 detained thousands of miles away across multiple international borders. See Miriam 11 Jordan, “I Can’t Go Without My Son, “a Mother Pleaded as She Was Deported to 12 Guatemala, N.Y. Times (June 17, 2018). 8 49. 13 On June 20, 2018, President Trump signed an Executive Order (“EO”) 14 purporting to end certain family separations going forward.9 The EO directs DHS to 15 “maintain custody of alien families during the pendency of any criminal improper 16 entry or immigration proceedings.” 50. 17 The EO directs DHS to separate families any time DHS determines 18 that separation would protect “the child’s welfare.” It does not, however, set forth 19 how that standard will be applied. In prior cases the government has applied that 20 standard in a manner that is inconsistent with the child’s best interest, including in 21 Ms. L’s case. 51. 22 The EO makes no provision for reunifying the thousands of families 23 who were separated prior to its issuance. 24 7 25 26 27 https://www.huffingtonpost.com/entry/separated-parents-too-grief-stricken-to-seek-asylum-expertssay_us_5b379974e4b08c3a8f6ad5d9. 8 https://www.nytimes.com/2018/06/17/us/immigration-deported-parents.html. See also Nelson Renteria, El Salvador Demands U.S. Return Child Taken from Deported Father, Reuters (June 21, 2018), https://www.reuters.com/article/us-usa- immigration-el-salvador/el-salvador-demands-us-return-childtaken-from-deported- father-idU SKBN1JH3ER. 9 28 https://www.whitehouse.gov/presidential-actions/affording-congress-opportunity- address-familyseparation/. 8 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 244-1 Filed 10/05/18 PageID.3876 Page 12 of 23 1 2 52. who have been already been deported without their children. 3 4 5 The EO makes no provision for returning separated children to parents 53. NAMED PLAINTIFFS Ms. L. and her daughter S.S. are one of the many families that have recently been separated by the government. 6 54. Ms. L. and her daughter are seeking asylum in the United States. 7 55. Ms. L. is Catholic and sought shelter in a church until she was able to 8 9 escape the Congo with S.S. 56. Upon reaching the United States, Ms. L. and S.S. presented themselves 10 at the San Ysidro, California Port of Entry on November 1, 2017. Although their 11 native language is Lingala, they were able to communicate to the border guards that 12 they sought asylum. 13 57. Based on her expression of a fear of returning to the Congo, Ms. L. 14 was referred for an initial screening before an asylum officer, called a “credible fear 15 interview.” She subsequently passed the credible fear screening but, until March 6, 16 2018, remained detained in the Otay Mesa Detention Center in the San Diego area. 17 58. On or about November 5, immigration officials forcibly separated 18 then-6 year-old S.S. from her mother and sent S.S. to Chicago. There she was 19 housed in a detention facility for “unaccompanied” minors run by the Office of 20 Refugee Resettlement (ORR). 21 59. When S.S. was taken away from her mother, she was screaming and 22 crying, pleading with guards not to take her away from her mother. While detained, 23 Ms. L. spoke to her daughter approximately 6 times by phone, never by video. For 24 months she was terrified that she would never see her daughter again. The few 25 times Ms. L. was able to speak to her daughter on the phone, her daughter was 26 crying and scared. 27 28 60. In December, S.S. turned 7 and spent her birthday in the Chicago facility, without her mother. 9 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 244-1 Filed 10/05/18 PageID.3877 Page 13 of 23 61. 1 In detention, Ms. L. was distraught and depressed because of her 2 separation from her daughter. As a result, she did not eat properly, lost weight, and 3 was not sleeping due to worry and nightmares. 62. 4 In one moment of extreme despair and confusion, Ms. L. told an 5 immigration judge that she wanted to withdraw her application for asylum, 6 realizing her mistake only a few days later. She is seeking to reopen her case before 7 the Board of Immigration Appeals. 8 9 10 11 12 13 14 63. The government had no legitimate interest in separating Ms. L. and her 64. There has been no evidence, or even accusation, that S.S. was abused child. or neglected by Ms. L. 65. There is no evidence that Ms. L. is an unfit parent or that she is not acting in the best interests of her child. 66. After Ms. L. filed this lawsuit and moved for a preliminary injunction, 15 Defendants abruptly released her from custody on March 6, 2018, due to the filing 16 of the lawsuit. Defendants informed her that she would be released mere hours in 17 advance, with no arrangements for where she would stay. S.S. was released to Ms. 18 L.’s custody several days later. Both are now pursuing their claims for legal 19 protection. 20 67. Ms. C. and her 14 year-old son, J., are another one of the families who 21 have been separated by the government. Like Ms. L. and her daughter, Ms. C. and 22 her son are seeking asylum in the United States. 23 68. Ms. C. and J. fled Brazil and came to the United States to seek asylum. 24 A few feet after Ms. C. entered the United States, a border guard approached her, 25 and she explained that she was seeking asylum. Ms. C. subsequently passed a 26 credible fear interview, and was put in removal proceedings, where she is applying 27 for asylum. 28 10 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 244-1 Filed 10/05/18 PageID.3878 Page 14 of 23 1 69. Despite having communicated her fear of persecution to border guards, 2 the government prosecuted Ms. C. for entering the country illegally, took her son J. 3 away from her, and sent him to a facility for “unaccompanied” children in Chicago. 4 70. The government continued to separate Ms. C. from her son even after 5 she completed serving her criminal misdemeanor sentence on September 22, 2017, 6 and was sent to an immigration detention facility, the El Paso Processing Center. In 7 early January 2018, she was transferred again, to another immigration facility, the 8 West Texas Detention Facility (also known as Sierra Blanca), but still was not 9 reunited with her son. Even after Ms. C was released from immigration detention 10 on April 5, 2018, the government did not reunify her with her son for another two 11 months, until June 9. 12 71. While separated from J., Ms. C. was desperate to be reunited with him. 13 She worried about him constantly and did not know when she would be able to see 14 him. They spoke on the phone only a handful of times while they were separated by 15 Defendants. 16 72. 17 from his mother. 18 73. 19 20 21 22 23 24 J. had a difficult time emotionally during the months he was separated The government had no legitimate interest for the separation of Ms. C. and her child. 74. There is no evidence, or even accusation, that J. was abused or neglected by Ms. C. 75. There is no evidence that Ms. C. is an unfit parent or that she is not acting in the best interests of her child. 76. Dora fled Honduras with her thirteen-year-old daughter due to 25 persecution on account of her political opinion. She was separated from her 26 daughter when she arrived in the United States in May 2018. It was the first time in 27 their lives that they had been separated. Dora was unable to obtain information 28 about her daughter’s whereabouts. 11 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 244-1 Filed 10/05/18 PageID.3879 Page 15 of 23 1 77. Dora was terrified for her daughter after being separated from her. She 2 became so distraught that she had to be given medication—antidepressants and 3 sleeping pills—to treat the depression she suffered as a result of having been 4 separated from her daughter. The medication did not work and actually made her 5 feel worse. Dora suffered side effects from the medications. 6 78. Dora received a negative determination in a credible fear interview 7 conducted during the separation. She has been reunited with her children and is 8 currently detained at the South Texas Family Residential Center in Dilley, Texas. 9 79. Alma fled Honduras with her two boys, aged seven and nine, because 10 of violence and persecution she and her family members endured. She arrived in the 11 United States in June 2018 and was separated from her children. She received no 12 information about them for twenty-eight days. 13 80. At the time of her credible fear interview, Alma was separated from 14 her children and unable to focus on anything other than that separation. She was 15 later diagnosed with post-traumatic stress disorder ("PTSD") because of this 16 separation, with strong indications that she was suffering from acute, debilitating 17 trauma at the time of her interview, including alterations in mood and cognition, 18 hyperarousal, and dissociation. 19 20 21 81. Alma received a negative credible fear determination, which was affirmed by an immigration judge. 82. Alma was reunited with her children, and was released on an order of 22 supervision. She is required to check in regularly with ICE and is subject to 23 deportation at any time. 24 25 83. CLASS ALLEGATIONS Plaintiffs bring this action under Federal Rule of Civil Procedure 26 23(b)(2) on behalf of themselves and a nationwide class of all other persons 27 similarly situated. 28 84. Plaintiffs seek to represent the following class: 12 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 244-1 Filed 10/05/18 PageID.3880 Page 16 of 23 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 27 28 All adult parents who enter the United States at or between designated ports of entry who (1) have been, are, or will be detained in immigration custody by the DHS, and (2) have a minor child who is or will be separated from them by DHS and detained in ORR custody, ORR foster care, or DHS custody, absent a determination that the parent is unfit or presents a danger to the child. 85. Ms. L., Ms. C., Dora, and Alma are each adequate representatives of the proposed class. 86. The proposed class satisfies the requirements of Rule 23(a)(1) because the class is so numerous that joinder of all members is impracticable. There are at a minimum hundreds of parents who fit within the class. 87. The class meets the commonality requirements of Federal Rule of Civil Procedure 23(a)(2). The members of the class are subject to a common practice: forcibly separating detained parents from their minor children absent any determination that the parent is unfit or presents a danger to the child. By definition, all class members have experienced that practice, and none has been given an adequate hearing regarding the separation. The lawsuit raises numerous questions of law common to members of the proposed class, including: whether Defendants’ family separation practice violates class members’ substantive due process right to family integrity; whether the practice violates class members’ procedural due process rights; whether the practice violates the federal asylum statute; and whether these separations are unlawful or arbitrary and capricious under the APA. 88. The proposed class meets the typicality requirements of Federal Rule of Civil Procedure 23(a)(3), because the claims of the representative Plaintiffs are typical of the claims of the class. Ms. L., Ms. C., Dora, and Alma, and the proposed class members are all individuals who have had or will have their children forcibly taken away from them despite there being no proven allegations of abuse, neglect, or any other danger or unfitness. Plaintiffs and the proposed class also share the same legal claims, which assert the same substantive and procedural rights under the Due Process Clause, the asylum statute, and the APA. 13 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 244-1 Filed 10/05/18 PageID.3881 Page 17 of 23 1 89. The proposed class meets the adequacy requirements of Federal Rule 2 of Civil Procedure 23(a)(4). The representative Plaintiffs seek the same relief as the 3 other members of the class—namely, an order that they be reunified with their 4 children, whether through release or in family detention facilities. In defending their 5 own rights, Ms. L., Ms. C., Dora, and Alma will defend the rights of all proposed 6 class members fairly and adequately. 7 90. The proposed class is represented by counsel from the American Civil 8 Liberties Union Immigrants’ Rights Project and the ACLU of San Diego and 9 Imperial Counties. Counsel have extensive experience litigating class action 10 lawsuits and other complex cases in federal court, including civil rights lawsuits on 11 behalf of noncitizens. 12 13 14 91. The members of the class are readily ascertainable through Defendants’ records. 92. The proposed class also satisfies Federal Rule of Civil Procedure 15 23(b)(2). Defendants have acted on grounds generally applicable to the class by 16 unlawfully separating parents from their young children. Injunctive and declaratory 17 relief is thus appropriate with respect to the class as a whole. 18 19 20 21 22 93. CAUSES OF ACTION COUNT I (Violation of Due Process: Right to Family Integrity) All of the foregoing allegations are repeated and realleged as though fully set forth herein. 94. The Due Process Clause of the Fifth Amendment applies to all 23 “persons” on United States soil and thus applies to Ms. L., Ms. C., their children 24 S.S. and J., and all proposed class members. 25 26 95. Plaintiffs, their children, and all class members have liberty interests under the Due Process Clause in remaining together as families. 27 28 14 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 244-1 Filed 10/05/18 PageID.3882 Page 18 of 23 1 96. The separation of the class members from their children violates 2 substantive due process because it furthers no legitimate purpose and was designed 3 to deter. 4 5 6 97. The separation of the class members from their children also violates procedural due process because it was undertaken without any hearing. 7 COUNT II (Administrative Procedure Act: Arbitrary and Capricious Practice) 8 98. 9 10 11 All of the foregoing allegations are repeated and realleged as though fully set forth herein. 99. The APA prohibits agency action that is arbitrary and capricious or violates a person’s legal or constitutional rights. 12 100. Defendants’ separation practice is final agency action for which there 13 is no other adequate remedy in a court. Defendants’ decision to separate parents is 14 not tentative or interlocutory, because Defendants have already separated thousands 15 of families and continue to do so, and the policy was announced by high-level 16 officials. And Defendants’ decision to separate gravely impacts class members’ 17 rights to remain together as families. 18 101. Defendants’ separation of Ms. L., Ms. C., and the other class members 19 from their children without any explanation or legitimate justification is arbitrary 20 and capricious and accordingly violates the APA. 5 U.S.C. § 706. 21 102. Among other things, Defendants failed to offer adequate reasons for 22 adopting their unprecedented new separation practice; they failed to explain why 23 they were not using alternatives to separation, including supervised release and 24 family detention; and for parents like Ms. L., Defendants have never explained why 25 they cannot verify parentage before imposing traumatic separation on both parent 26 and child. 27 28 15 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 244-1 Filed 10/05/18 PageID.3883 Page 19 of 23 1 2 3 4 COUNT III (Violation of Right to Seek Protection Under the Asylum and Withholding of Removal Statutes, and the Convention Against Torture) 103. All of the foregoing allegations are repeated and realleged as though fully set forth herein. 104. Under United States law, noncitizens with a well-founded fear of 5 6 persecution shall have the opportunity to apply for asylum in the United States. 8 7 U.S.C. § 1158(a). In addition, noncitizens have a mandatory statutory entitlement to 8 withholding of removal where they would face a probability of persecution if 9 removed to their country of nationality, 8 U.S.C. § 1231(b)(3), or withholding or 10 deferral of removal where they would face a probability of torture. Foreign Affairs 11 Reform and Restructuring Act (“FARRA”), Pub. L. No. 105-277, Div. G., Title 12 XXII, § 2242, 112 Stat. 2681-822 (Oct. 21, 1998) (codified as Note to 8 U.S.C.§ 13 1231). 14 105. Class members have a private right of action to challenge violations of 15 their right to apply for asylum under § 1158(a). That right is not barred by 8 U.S.C. 16 § 1158(d)(7), which applies to only certain procedural requirements set out in 17 Section 1158(d). 18 106. Defendants’ separation of families violates federal law that provides 19 for asylum and other protection from removal, as well as their due process right to 20 seek such relief. Separation severely impedes their ability to pursue their asylum 21 and other protection claims in a number of ways, including by denying them the 22 ability to coordinate their applications with their children, present facts related to 23 themselves and their children, and creating trauma that hinders their ability to 24 navigate the complex process. This is in violation of due process and other federal 25 law, including the Rehabilitation Act, 29 U.S.C. § 701 et seq. and Immigration and 26 Nationality Act, 8 U.S.C. § 1101. 27 28 107. The government is also using the trauma of separation to coerce parents into giving up their asylum and protection claims in order to be reunited 16 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 244-1 Filed 10/05/18 PageID.3884 Page 20 of 23 1 with their children. 2 3 4 5 6 PRAYER FOR RELIEF Plaintiffs request that the Court enter a judgment against Defendants and award the following relief: A. Certify a class of all adult parents nationwide who enter the United 7 States at or between designated ports of entry who (1) have been, are, or will be 8 detained in immigration custody by the DHS, and (2) have a minor child who is or 9 will be separated from them by DHS and detained in ORR custody, ORR foster 10 care, or DHS custody, absent a determination that the parent is unfit or presents a 11 danger to the child. 12 13 14 15 16 17 18 19 20 B. Name Ms. L., and Ms. C., Dora, and Alma as representatives of the class, and appoint Plaintiffs’ counsel as class counsel; C. Declare the separation of Ms. L., Ms. C., Dora, and Alma, and the other class members from their children unlawful; D. Preliminarily and permanently enjoin Defendants from continuing to separate the class members from their children; E. Order Defendants either to release class members along with their children, or to detain them together in the same facility; F. Enjoin Defendants from removing any class members from the country 21 who have received final removal orders until they are reunited with their children, 22 unless the class members knowingly and voluntarily decide that they do not want 23 their children removed with them; 24 G. Enjoin Defendants from removing any class member who received a 25 final removal order prior to the issuance of this Court’s preliminary injunction on 26 June 26, 2018, or prior to receiving notice of their rights under the injunction, until 27 they have had an opportunity to consult with class counsel, or a delegate of class 28 counsel, to insure that these class members have knowingly and voluntarily chosen 17 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 244-1 Filed 10/05/18 PageID.3885 Page 21 of 23 1 to forego any further challenges to removal, rather than feeling coerced into doing 2 so as a result of separation from their children. 3 4 H. Order Defendants to provide Ms. L, Ms. C., Dora, Alma, and the other class members with a reasonable opportunity to pursue claims for asylum. 5 H. Require Defendants to pay reasonable attorneys’ fees and costs; 6 I. Order all other relief that is just and proper. 7 8 Dated: October 5, 2018 Respectfully Submitted, 9 Bardis Vakili ISBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 398-4485 F: (619) 232-0036 bvakili@aclusandiego.org /s/ Lee Gelernt Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* Daniel Galindo (SBN 292854) AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2616 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org dgalindo@aclu.org 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Stephen B. Kang (SBN 292280) Spencer E. Amdur (SBN 320069) AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 skang@aclu.org samdur@aclu.org Counsel for Plaintiffs Ms. L. and Ms. C. 24 25 26 27 28 18 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 244-1 Filed 10/05/18 PageID.3886 Page 22 of 23 1 Aaron M. Olsen (SBN 259923) 2 HAEGGQUIST & ECK 3 LLP 225 Broadway, Ste 2050 4 San Diego, CA 92101 5 T: 619.342.8000 F: 619.342.7878 6 aarono@haelaw.com 7 Wilson G. Barmeyer* EVERSHEDS SUTHERLAND (US) LLP 700 Sixth Street NW Suite 700 Washington, DC 20001 T: (202) 383-0100 F: (202)637-3593 wilsonbarmeyer@evershed s-sutherland.com Sirine Shebaya* Johnathan Smith* MUSLIM ADVOCATES P.O. Box 34440 Washington, D.C. 20043 T: (202) 897-2622 F: (202) 508-1007 sirine@muslimadvocates .org johnathan@muslimadvocates .org John H. Fleming* EVERSHEDS SUTHERLAND (US) LLP 999 Peachtree Street NE, Suite 2300 Atlanta, GA 30309 T: (404) 853-8000 F: (404) 853-8806 johnfleming@evershedssutherland.com Simon Y. SandovalMoshenberg* Sophia Gregg* LEGAL AID JUSTICE CENTER 6066 Leesburg Pike, Suite 520 Falls Church, VA 22041 T: (703) 778-3450 F: (703) 778-3454 simon@justice4all.org sophia@justice4all.org 8 9 10 11 12 13 14 15 16 17 18 Counsel for Plaintiffs Dora and Alma and for Count 3 Only * Motion for Admission Pro Hac Vice Forthcoming 19 20 21 22 23 24 25 26 27 28 19 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 244-1 Filed 10/05/18 PageID.3887 Page 23 of 23 1 2 CERTIFICATE OF SERVICE I hereby certify that on October 5, 2018, I electronically filed the foregoing 3 with the Clerk for the United States District Court for the Southern District of 4 5 California by using the appellate CM/ECF system. A true and correct copy of this 6 brief has been served via the Court’s CM/ECF system on all counsel of record. 7 /s/ Lee Gelernt Lee Gelernt, Esq. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20 18cv0428 Case Document 244-2 Filed 10/05/18 PageID.3888 Pagelof 27 EX. Case 3:18-cv-00428-DMS-MDD Document 244-2 Filed 10/05/18 PageID.3889 Page 2 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* Anand Balakrishnan*Daniel Galindo (SBN 292854) AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2660 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org dgalindo@aclu.org Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 398-4485 F: (619) 232-0036 bvakili@aclusandiego.org Attorneys forPetitioner-Plaintifffor Petitioners-Plaintiffs Ms. L. and Ms. C. *Admitted Pro Hac Vice Additional counsel on next page 15 16 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES DISTRICT COURT 17 18 19 Case No. 18-cv00428-DMSMDD Ms. L. and Ms. C., 20 Petitioners-Plaintiffs, Dated Filed: July 3, 2018 21 22 23 24 25 26 27 28 v. SECONDTHIRD AMENDED 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”); U.S. Department of Health and Human Services (“HHS”); Office of Refugee Resettlement (“ORR”); Thomas Homan, Acting Director of ICE; Greg Archambeault, San Diego Field Office COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF CLASS ACTION Case 3:18-cv-00428-DMS-MDD Document 244-2 Filed 10/05/18 PageID.3890 Page 3 of 27 1 2 3 4 5 6 7 8 9 Director, ICE; Joseph Greene, San Diego Assistant Field Office Director, ICE; Adrian P. Macias, El Paso Field Director, ICE; Frances M. Jackson, El Paso Assistant Field Office Director, ICE; Kirstjen Nielsen, Secretary of DHS; Jefferson Beauregard Sessions III, Attorney General of the United States; L. Francis Cissna, Director of USCIS; Kevin K. McAleenan, Acting Commissioner of CBP; Pete Flores, San Diego Field Director, CBP; Hector A. Mancha Jr El Paso Field Director, CBP, Alex Azar, Secretary of the Department of Health and Human Services; Scott Lloyd, Director of the Office of Refugee Resettlement, 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Respondents-Defendants Case 3:18-cv-00428-DMS-MDD Document 244-2 Filed 10/05/18 PageID.3891 Page 4 of 27 1 2 3 4 5 6 7 8 Stephen B. Kang (SBN 292280) Spencer E. Amdur (SBN 320069) AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 skang@aclu.org samdur@aclu.org 9 10 Counsel for Plaintiffs Ms. L. and Ms. C. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Aaron M. Olsen (259923) HAEGGQUIST & ECK LLP 225 Broadway, Ste 2050 San Diego, CA 92101 phone: 619.342.8000 fax: 619.342.7878 aarono@haelaw.com Wilson G. Barmeyer+ EVERSHEDS SUTHERLAND (US) LLP 700 Sixth Street NW Suite 700 Washington, DC 20001 (202) 383-0100 (202)637-3593 (facsimile) wilsonbarmeyer@evershed s-sutherland.com John H. Fleming+ EVERSHEDS SUTHERLAND (US) LLP 999 Peachtree Street NE, Suite 2300 Atlanta, GA 30309 (404) 853-8000 (404) 853-8806 (facsimile) johnfleming@evershedssutherland.com Sirine Shebaya+ Johnathan Smith+ MUSLIM ADVOCATES P.O. Box 34440 Washington, D.C. 20043 (202) 897-2622 (202) 508-1007 (facsimile) sirine@muslimadvocates.org johnathan@muslimadvocates.o rg Simon Y. SandovalMoshenberg+ Sophia Gregg+ LEGAL AID JUSTICE CENTER 6066 Leesburg Pike, Suite 520 Falls Church, VA 22041 (703) 778-3450 (703) 778-3454 (facsimile) simon@justice4all.org sophia@justice4all.org Counsel for Plaintiffs Dora and Alma and for Count 3 Only +Motion for Admission Pro Hac Vice Forthcoming Case 3:18-cv-00428-DMS-MDD Document 244-2 Filed 10/05/18 PageID.3892 Page 5 of 27 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 27 28 Case 3:18-cv-00428-DMS-MDD Document 244-2 Filed 10/05/18 PageID.3893 Page 6 of 27 1 2 INTRODUCTION 1. This case challenges the United States government’s forcible separation 3 of parents from their young children for no legitimate reason and notwithstanding 4 the threat of irreparable damage that separation has been universally recognized to 5 cause young children. 6 2. Plaintiff Ms. L. is the mother of a seven (7) year-old daughter, who 7 was ripped away from her, and then sent halfway across the country to be detained 8 alone. Plaintiff Ms. C. is the mother of a fourteen (14) year-old son, who was also 9 forcibly separated from his mother and detained more than a thousand miles away. 10 Dora is the mother of a thirteen (13) year-old daughter who was forcibly separated 11 from her. Alma is the mother of seven-year old and nine-year old sons who were 12 forcibly separated from her. 13 3. Ms. L. and, Ms. C., Dora, and Alma bring this action on behalf of 14 themselves and thousands of other parents whom the government has forcibly 15 separated from their children. Like Ms. L. and, Ms. C., Dora, and Alma, many of 16 these individuals have fled persecution and are seeking asylum in the United States. 17 Without any allegations of abuse, neglect, or parental unfitness, and with no 18 19 20 21 22 23 24 hearings of any kind, the government is separating these families and detaining their young children, alone and frightened, in facilities often thousands of miles from their parents. 4. Forced separation from parents causes severe trauma to young children, especially those who are already traumatized and are fleeing persecution in their home countries. The resulting cognitive and emotional damage can be permanent. 25 26 27 28 1 Case 3:18-cv-00428-DMS-MDD Document 244-2 Filed 10/05/18 PageID.3894 Page 7 of 27 1 5. Forced separation can also cause parents to experience symptom of 2 acute stress response and corresponding cognitive impairments, which can in turn 3 impair the ability to meaningfully participate in a credible fear interview. 4 56. Defendants have ample ways to keep Plaintiffs together with their 5 children, as they have done for decades prior to their current practice. There are 6 shelters that house families (including asylum-seekers) while they await the final 7 adjudication of their immigration cases. If, however, the government lawfully 8 continues detaining these parents and young children, it must at a minimum detain 9 them together in one of its immigration family detention centers. 10 67. The Due Process Clause of the Fifth Amendment does not permit the 11 government to forcibly take young children from their parents, without justification 12 or even a hearing. That separation also violates the asylum statutes, which guarantee 13 a meaningful right to apply for asylum, and the Administrative Procedure Act 14 (APA), which prohibits unlawful and arbitrary government action. 15 16 JURISDICTION 78. This case arises under the Fifth Amendment to the United States 17 Constitution, federal asylum statutes, and the APA. The court has jurisdiction under 18 28 U.S.C. § 1331 (federal question jurisdiction); 28 U.S.C. § 2241 (habeas 19 jurisdiction); and Art. I., § 9, cl. 2 of the United States Constitution (“Suspension 20 Clause”). Plaintiffs are in custody for purposes of habeas jurisdiction. 21 22 VENUE 89. Venue is proper under 28 U.S.C. § 1391(e) because Ms. L. was 23 24 25 26 27 detained in this District when this action commenced, Defendants reside in this District, and a substantial portion of the relevant facts occurred within this District, including the Defendants’ implementation of their practice of separating immigrant parents from their children for no legitimate reason. 28 2 Case 3:18-cv-00428-DMS-MDD Document 244-2 Filed 10/05/18 PageID.3895 Page 8 of 27 1 PARTIES 2 3 910. Plaintiff Ms. L. is a citizen of the Democratic Republic of the Congo (the “Congo” or “DRC”). She is the mother of 7 year-old S.S. 4 5 1011. Plaintiff Ms. C. is a citizen of Brazil. She is the mother of 14 year-old J. 6 7 12. daughter. 8 9 10 11 12 13 14 15 Dora is a citizen of Honduras. She is the mother of a 13 year-old 13. Alma is a citizen of Honduras. She is the mother of 7 and 9 year-old sons. 1114. Defendants U.S. Department of Homeland Security (“DHS”) has responsibility for enforcing the immigration laws of the United States. 1215. Defendant U.S. Immigration and Customs Enforcement (“ICE”) is the sub-agency of DHS that is responsible for carrying out removal orders and overseeing immigration detention. 1316. Defendant U.S. Customs and Border Protection (“CBP”) is the sub- 16 17 18 19 20 21 22 agency of DHS that is responsible for the initial processing and detention of noncitizens who are apprehended near the U.S. border. 1417. Defendant U.S. Department of Health and Human Services (HHS) is a department of the executive branch of the U.S. government which has been delegated authority over “unaccompanied” noncitizen children. 1518. Defendant Office of Refugee Resettlement (“ORR”) is the component 23 of HHS which provides care of and placement for “unaccompanied” noncitizen 24 children. 25 26 1619. Defendant Thomas Homan is sued in his official capacity as the Director of ICE, and is a legal custodian of Plaintiffs. 27 28 3 Case 3:18-cv-00428-DMS-MDD Document 244-2 Filed 10/05/18 PageID.3896 Page 9 of 27 1 1720. Defendant Greg Archambeault is sued in his official capacity as the 2 ICE San Diego Field Office Director, and is a legal custodian of Plaintiff Ms. L. 3 1821. Defendant Joseph Greene is sued in his official capacity as the ICE San 4 Diego Assistant Field Office Director for the Otay Mesa Detention Center, and is a 5 legal custodian of Plaintiff Ms. L. 6 7 8 9 10 1922. Defendant Adrian P. Macias is sued in his official capacity as the ICE El Paso Field Office Director, and is a legal custodian of Plaintiff Ms. C. 2023. Defendant Frances M. Jackson is sued in his official capacity as the ICE El Paso Assistant Field Office Director for the West Texas Detention Facility, and is a legal custodian of Plaintiff Ms. C. 11 2124. Defendant Kirstjen Nielsen, is sued in her official capacity as the 12 Secretary of the Department of Homeland Security. In this capacity, she directs each 13 of the component agencies within DHS: ICE, USCIS, and CBP. As a result, 14 Respondent Nielsen has responsibility for the administration of the immigration laws 15 pursuant to 8 U.S.C. § 1103, is empowered to grant asylum or other relief, and is a 16 legal custodian of the Plaintiffs. 17 18 2225. Defendant Jefferson Beauregard Sessions III is sued in his official capacity as the Attorney General of the United States. In this capacity, he has 19 responsibility for the administration of the immigration laws pursuant to 8 U.S.C. § 20 1103, oversees the Executive Office of Immigration Review, is empowered to grant 21 22 23 24 25 26 asylum or other relief, and is a legal custodian of the Plaintiffs. 2326. Defendant L. Francis Cissna is sued in his official capacity as the Director of USCIS. 2427. Defendant Kevin K. McAleenan is sued in his official capacity as the Acting Commissioner of CBP. 27 28 4 Case 3:18-cv-00428-DMS-MDD Document 244-2 Filed 10/05/18 PageID.3897 Page 10 of 27 1 2 3 4 5 6 7 8 2528. Defendant Pete Flores is sued in his official capacity as the San Diego Field Director of CBP. 2629. Defendant Hector A. Mancha Jr. is sued in his official capacity as the El Paso Field Director of CBP. 2730. Defendant Alex Azar is sued in his official capacity as the Secretary of the Department of Health and Human Services. 2831. Defendant Scott Lloyd is sued in his official capacity as the Director of the Office of Refugee Resettlement. 9 10 FACTS 2932. Over the past year, the government has separated thousands of migrant 11 families for no legitimate purpose. The government’s true purpose in separating 12 these families was to deter future families from seeking refuge in the United States. 13 3033. Many of these migrant families fled persecution and are seeking 14 asylum. Although there are no allegations that the parents are unfit or abusing their 15 children in any way, the government has forcibly separated them from their young 16 children and detained the children, often far away, in facilities for “unaccompanied” 17 18 19 20 minors. 3134. There is overwhelming medical evidence that the separation of a young child from his or her parent will have a devastating negative impact on the child’s well-being, especially where there are other traumatic factors at work, and 21 that this damage can be permanent. 22 23 24 25 26 27 3235. The American Association of Pediatrics has denounced the Administration’s practice of separating migrant children from their parents, noting that: “The psychological distress, anxiety, and depression associated with separation from a parent would follow the children well after the immediate period of separation—even after the eventual reunification with a parent or other family.” 28 5 Case 3:18-cv-00428-DMS-MDD Document 244-2 Filed 10/05/18 PageID.3898 Page 11 of 27 1 2 3336. Prior Administrations detained migrant families, but did not have a practice of forcibly separating fit parents from their young children. 3 3437. There are non-governmental shelters that specialize in housing and 4 caring for families—including asylum seeking families—while their immigration 5 applications are adjudicated. 6 3538. There are also government-operated family detention centers where 7 parents can be housed together with their children, should the government lawfully 8 decide not to release them. The government previously detained, and continues to 9 detain, numerous family units at those facilities. 10 3639. In April 2018, the New York Times reported that more than “700 11 children have been taken from adults claiming to be their parents since October [of 12 2016], including more than 100 children under the age of 4.” Caitlin Dickerson, 13 Hundreds of Children Have Been Taken from Parents at U.S. Border, N.Y. Times, 14 Apr. 20, 2018. 15 16 17 18 3740. On May 7, 2018, Defendant Sessions announced “a new initiative” to refer “100 percent” of immigrants who cross the Southwest border for criminal immigration prosecutions, also known as the “zero-tolerance policy.” Defendant 19 Sessions stated that as part of that prosecution, all parents who are prosecuted 20 would be separated from their children. U.S. Dep’t of Justice, Attorney General 21 Sessions Delivers Remarks to the Association of State Criminal Investigative 22 Agencies 2018 Spring Conference (May 7, 2018). The purpose of this new policy 23 was to separate families in the hope that it would deter other families from seeking 24 refuge in the United States. 25 3841. At a Senate Judiciary Committee hearing in May, a deputy chief of 26 Defendant U.S. Customs and Border Protection testified that between May 6 and 27 May 19 alone, a total of 658 children were separated from their family members 28 6 Case 3:18-cv-00428-DMS-MDD Document 244-2 Filed 10/05/18 PageID.3899 Page 12 of 27 1 pursuant to this policy. The Washington Post reported that in the city of McAllen, 2 Texas, 415 children were taken from their parents during a two week period.1 And 3 in June 2018, the Department of Homeland Security reported that in the six weeks 4 between April 19 and May 31, the administration took almost 2,000 children away 5 from their parents.2 6 3942. Defendant Sessions and other government officials, including 7 Defendant Nielsen, have repeatedly defended the separation of children from their 8 parents in speeches and interviews with various media outlets. Among other 9 justifications for the practice, they have stated that separating families would be a 10 way to “discourage parents from bringing their children here illegally,”3 and that it 11 would help “deter more movement” to the United States by asylum seekers and 12 other migrants.4 Administration officials told the New York Times in May, “[t]he 13 14 15 president and his aides in the White House had been pushing a family separation policy for weeks as a way of deterring families from trying to cross the border illegally.”5 16 4043. Even if the separated child is released from custody and placed in a 17 18 community setting or foster care, the trauma of the ongoing separation continues. 4144. By taking away their children, Defendants are coercing class members 19 20 into giving up their claims for asylum and other legal protection. Numerous class 21 22 23 1 https://www.washingtonpost.com/world/national-security/trumps-zero-tolerance- at-theborder-is-causing-child-shelters-to-fill-up-fast/2018/05/29/7aab0ae4-636b-11e8-a69cb944de66d9e7_story.html?utm_term=.d52d94c37d05. 24 2 https://ca.reuters.com/article/topNews/idCAKBN1JB2SF-OCATP. 25 3 http://transcripts.cnn.com/TRANSCRIPTS/1801/16/cnr.04.html. 26 4 27 https://www.cnn.com/2017/03/06/politics/john-kelly-separating-children-from- parents-immigrationborder/ 5 https://www.nytimes.com/2018/05/10/us/politics/trump-homeland-security- secretary-resign.html 28 7 Case 3:18-cv-00428-DMS-MDD Document 244-2 Filed 10/05/18 PageID.3900 Page 13 of 27 1 members have been told by CBP and ICE agents that they will see their children 2 again sooner if they withdraw their asylum applications and accept earlier 3 deportation.6 4 5 4245. Many class members have given up their asylum claims and stipulated to removal as a way to be reunited with their children faster. 6 4346. For class members who have not been coerced into giving up their 7 asylum claims, separation from their children has made those applications much 8 more difficult. Separation prevents parents from helping their children apply for 9 asylum and navigate removal proceedings. Separation also makes it harder for 10 parents to present facts involving their children which support their own asylum 11 claims. 12 4447. The trauma of separation also renders asylum-seeking class members 13 too distraught to effectively pursue their asylum applications. See, e.g., Angelina 14 Chapin, Separated Parents Are Failing Asylum Screenings Because They‘reThey’re 15 So Heartbroken, Huffington Post (June 30, 2018).7 16 17 18 19 4548. Defendants have deported class members without their separated children. Their children are now stranded in the United States alone. Many of these parents are now struggling to make contact with their children, who are being detained thousands of miles away across multiple international borders. See Miriam 20 21 22 23 24 25 26 6 This practice has been widely reported. See, e.g., Dara Lind, Trump Will Reunite Separated Families—But Only if They Agree to Deportation, Vox.com (June 25, 2018), https://www.vox.com/2018/6725/17484042/children-parents-separate- reunite-plan-trump; Jay Root & Shannon Najmabadi, Kids in Exchange for Deportation: Detained Migrants Say They Were Told They Could Get Kids Back on Way Out of U.S., Texas Tribune (June 24, 2018), https://www.texastribune.org/2018/06/24/kids-exchange-deportation-migrants-claim-they-were-promisedthey-could/?utm_campaign=tribsocial&utm_medium=social&utm_source=twitter&utm_content=1529859032. 7 27 https://www.huffingtonpost.com/entry/separated-parents-too-grief-stricken-to-seek-asylum-expertssay_us_5b379974e4b08c3a8f6ad5d9. 28 8 Case 3:18-cv-00428-DMS-MDD Document 244-2 Filed 10/05/18 PageID.3901 Page 14 of 27 1 Jordan, “I Can’t Go Without My Son, “a Mother Pleaded as She Was Deported to 2 Guatemala, N.Y. Times (June 17, 2018).8 4649. On June 20, 2018, President Trump signed an Executive Order (“EO”) 3 4 purporting to end certain family separations going forward.9 The EO directs DHS to 5 “maintain custody of alien families during the pendency of any criminal improper 6 entry or immigration proceedings.” 7 4750. The EO directs DHS to separate families any time DHS determines 8 9 10 11 12 that separation would protect “the child’s welfare.” It does not, however, set forth how that standard will be applied. In prior cases the government has applied that standard in a manner that is inconsistent with the child’s best interest, including in Ms. L’s case. 4851. The EO makes no provision for reunifying the thousands of families 13 14 who were separated prior to its issuance. 4952. The EO makes no provision for returning separated children to parents 15 16 who have been already been deported without their children. NAMED PLAINTIFFS 17 5053. Ms. L. and her daughter S.S. are one of the many families that have 18 19 recently been separated by the government. 5154. Ms. L. and her daughter are seeking asylum in the United States. 20 21 22 23 24 25 26 8 https://www.nytimes.com/2018/06/17/us/immigration-deported-parents.html. See also Nelson Renteria, El Salvador Demands U.S. Return Child Taken from Deported Father, Reuters (June 21, 2018), https://www.reuters.com/article/us-usa- immigration-el-salvador/el-salvador-demands-us-return-childtaken-from-deported- father-idU SKBN1JH3ER. 9 27 https://www.whitehouse.gov/presidential-actions/affording-congress-opportunity- address-familyseparation/. 28 9 Case 3:18-cv-00428-DMS-MDD Document 244-2 Filed 10/05/18 PageID.3902 Page 15 of 27 1 2 3 5255. Ms. L. is Catholic and sought shelter in a church until she was able to escape the Congo with S.S. 5356. Upon reaching the United States, Ms. L. and S.S. presented themselves 4 at the San Ysidro, California Port of Entry on November 1, 2017. Although their 5 native language is Lingala, they were able to communicate to the border guards that 6 they sought asylum. 7 5457. Based on her expression of a fear of returning to the Congo, Ms. L. 8 was referred for an initial screening before an asylum officer, called a “credible 9 fear interview.” She subsequently passed the credible fear screening but, until 10 March 6, 2018, remained detained in the Otay Mesa Detention Center in the San 11 Diego area. 12 5558. On or about November 5, immigration officials forcibly separated then- 13 6 year-old S.S. from her mother and sent S.S. to Chicago. There she was housed in 14 a detention facility for “unaccompanied” minors run by the Office of Refugee 15 16 17 18 19 20 21 22 23 24 Resettlement (ORR). 5659. When S.S. was taken away from her mother, she was screaming and crying, pleading with guards not to take her away from her mother. While detained, Ms. L. spoke to her daughter approximately 6 times by phone, never by video. For months she was terrified that she would never see her daughter again. The few times Ms. L. was able to speak to her daughter on the phone, her daughter was crying and scared. 5760. In December, S.S. turned 7 and spent her birthday in the Chicago facility, without her mother. 5861. In detention, Ms. L. was distraught and depressed because of her 25 separation from her daughter. As a result, she did not eat properly, lost weight, and 26 was not sleeping due to worry and nightmares. 27 28 10 Case 3:18-cv-00428-DMS-MDD Document 244-2 Filed 10/05/18 PageID.3903 Page 16 of 27 1 5962. In one moment of extreme despair and confusion, Ms. L. told an 2 immigration judge that she wanted to withdraw her application for asylum, 3 realizing her mistake only a few days later. She is seeking to reopen her case before 4 the Board of Immigration Appeals. 5 6 7 8 9 10 6063. The government had no legitimate interest in separating Ms. L. and her child. 6164. There has been no evidence, or even accusation, that S.S. was abused or neglected by Ms. L. 6265. There is no evidence that Ms. L. is an unfit parent or that she is not acting in the best interests of her child. 11 6366. After Ms. L. filed this lawsuit and moved for a preliminary injunction, 12 Defendants abruptly released her from custody on March 6, 2018, due to the filing 13 of the lawsuit. Defendants informed her that she would be released mere hours in 14 advance, with no arrangements for where she would stay. S.S. was released to Ms. 15 L.’s custody several days later. Both are now pursuing their claims for legal 16 protection. 17 18 19 20 21 22 23 24 6467. Ms. C. and her 14 year-old son, J., are another one of the families who have been separated by the government. Like Ms. L. and her daughter, Ms. C. and her son are seeking asylum in the United States. 6568. Ms. C. and J. fled Brazil and came to the United States to seek asylum. A few feet after Ms. C. entered the United States, a border guard approached her, and she explained that she was seeking asylum. Ms. C. subsequently passed a credible fear interview, and was put in removal proceedings, where she is applying for asylum. 25 26 27 28 11 Case 3:18-cv-00428-DMS-MDD Document 244-2 Filed 10/05/18 PageID.3904 Page 17 of 27 1 6669. Despite having communicated her fear of persecution to border guards, 2 the government prosecuted Ms. C. for entering the country illegally, took her son J. 3 away from her, and sent him to a facility for “unaccompanied” children in Chicago. 4 6770. The government continued to separate Ms. C. from her son even after 5 she completed serving her criminal misdemeanor sentence on September 22, 2017, 6 and was sent to an immigration detention facility, the El Paso Processing Center. In 7 early January 2018, she was transferred again, to another immigration facility, the 8 West Texas Detention Facility (also known as Sierra Blanca), but still was not 9 reunited with her son. Even after Ms. C was released from immigration detention on 10 April 5, 2018, the government did not reunify her with her son for another two 11 months, until June 9. 12 6871. While separated from J., Ms. C. was desperate to be reunited with him. 13 She worried about him constantly and did not know when she would be able to see 14 him. They spoke on the phone only a handful of times while they were separated by 15 Defendants. 16 17 18 19 20 21 22 23 24 25 26 6972. J. had a difficult time emotionally during the months he was separated from his mother. 7073. The government had no legitimate interest for the separation of Ms. C. and her child. 7174. There is no evidence, or even accusation, that J. was abused or neglected by Ms. C. 7275. There is no evidence that Ms. C. is an unfit parent or that she is not acting in the best interests of her child. 76. Dora fled Honduras with her thirteen-year-old daughter due to persecution on account of her political opinion. She was separated from her daughter when she arrived in the United States in May 2018. It was the first time in 27 28 12 Case 3:18-cv-00428-DMS-MDD Document 244-2 Filed 10/05/18 PageID.3905 Page 18 of 27 1 their lives that they had been separated. Dora was unable to obtain information 2 about her daughter’s whereabouts. 3 77. Dora was terrified for her daughter after being separated from her. She 4 became so distraught that she had to be given medication—antidepressants and 5 sleeping pills—to treat the depression she suffered as a result of having been 6 separated from her daughter. The medication did not work and actually made her 7 feel worse. Dora suffered side effects from the medications. 8 78. Dora received a negative determination in a credible fear interview 9 conducted during the separation. She has been reunited with her children and is 10 currently detained at the South Texas Family Residential Center in Dilley, Texas. 11 79. Alma fled Honduras with her two boys, aged seven and nine, because 12 of violence and persecution she and her family members endured. She arrived in the 13 United States in June 2018 and was separated from her children. She received no 14 information about them for twenty-eight days. 15 80. At the time of her credible fear interview, Alma was separated from 16 her children and unable to focus on anything other than that separation. She was 17 later diagnosed with post-traumatic stress disorder ("PTSD") because of this 18 separation, with strong indications that she was suffering from acute, debilitating 19 trauma at the time of her interview, including alterations in mood and cognition, 20 hyperarousal, and dissociation. 21 22 23 81. Alma received a negative credible fear determination, which was affirmed by an immigration judge. 82. Alma was reunited with her children, and was released on an order of 24 supervision. She is required to check in regularly with ICE and is subject to 25 deportation at any time. 26 CLASS ALLEGATIONS 27 28 13 Case 3:18-cv-00428-DMS-MDD Document 244-2 Filed 10/05/18 PageID.3906 Page 19 of 27 1 7383. Plaintiffs bring this action under Federal Rule of Civil Procedure 2 23(b)(2) on behalf of themselves and a nationwide class of all other persons 3 similarly situated. 4 7484. Plaintiffs seek to represent the following class: 5 All adult parents who enter the United States at or between designated ports of entry who (1) have been, are, or will be detained in immigration custody by the DHS, and (2) have a minor child who is or will be separated from them by DHS and detained in ORR custody, ORR foster care, or DHS custody, absent a determination that the parent is unfit or presents a danger to the child. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 7585. Ms. L. and, Ms. C., Dora, and Alma are each adequate representatives of the proposed class. 7686. The proposed class satisfies the requirements of Rule 23(a)(1) because the class is so numerous that joinder of all members is impracticable. There are at a minimum hundreds of parents who fit within the class. 7787. The class meets the commonality requirements of Federal Rule of Civil Procedure 23(a)(2). The members of the class are subject to a common practice: forcibly separating detained parents from their minor children absent any determination that the parent is unfit or presents a danger to the child. By definition, all class members have experienced that practice, and none has been given an adequate hearing regarding the separation. The lawsuit raises numerous questions of 21 law common to members of the proposed class, including: whether Defendants’ 22 family separation practice violates class members’ substantive due process right to 23 family integrity; whether the practice violates class members’ procedural due 24 process rights; whether the practice violates the federal asylum statute; and whether 25 these separations are unlawful or arbitrary and capricious under the APA. 26 27 28 14 Case 3:18-cv-00428-DMS-MDD Document 244-2 Filed 10/05/18 PageID.3907 Page 20 of 27 1 7888. The proposed class meets the typicality requirements of Federal Rule 2 of Civil Procedure 23(a)(3), because the claims of the representative Plaintiffs are 3 typical of the claims of the class. Ms. L., Ms. C., Dora, and Alma, and the proposed 4 class members are all individuals who have had or will have their children forcibly 5 taken away from them despite there being no proven allegations of abuse, neglect, 6 or any other danger or unfitness. Plaintiffs and the proposed class also share the 7 same legal claims, which assert the same substantive and procedural rights under the 8 Due Process Clause, the asylum statute, and the APA. 9 7989. The proposed class meets the adequacy requirements of Federal Rule 10 of Civil Procedure 23(a)(4). The representative Plaintiffs seek the same relief as the 11 other members of the class—namely, an order that they be reunified with their 12 children, whether through release or in family detention facilities. In defending their 13 own rights, Ms. L. and, Ms. C., Dora, and Alma will defend the rights of all 14 proposed class members fairly and adequately. 15 16 17 18 19 20 8090. The proposed class is represented by counsel from the American Civil Liberties Union Immigrants’ Rights Project and the ACLU of San Diego and Imperial Counties. Counsel have extensive experience litigating class action lawsuits and other complex cases in federal court, including civil rights lawsuits on behalf of noncitizens. 8191. The members of the class are readily ascertainable through Defendants’ 21 22 23 24 25 26 27 records. 8292. The proposed class also satisfies Federal Rule of Civil Procedure 23(b)(2). Defendants have acted on grounds generally applicable to the class by unlawfully separating parents from their young children. Injunctive and declaratory relief is thus appropriate with respect to the class as a whole. CAUSES OF ACTION 28 15 Case 3:18-cv-00428-DMS-MDD Document 244-2 Filed 10/05/18 PageID.3908 Page 21 of 27 1 COUNT I 2 (Violation of Due Process: Right to Family Integrity) 3 4 5 8393. All of the foregoing allegations are repeated and realleged as though fully set forth herein. 8494. The Due Process Clause of the Fifth Amendment applies to all 6 “persons” on United States soil and thus applies to Ms. L., Ms. C., their children 7 S.S. and J., and all proposed class members. 8 9 8595. Plaintiffs, their children, and all class members have liberty interests under the Due Process Clause in remaining together as families. 10 8696. The separation of the class members from their children violates 11 substantive due process because it furthers no legitimate purpose and was designed 12 to deter. 13 14 8797. The separation of the class members from their children also violates procedural due process because it was undertaken without any hearing. 15 COUNT II 16 (Administrative Procedure Act: Arbitrary and Capricious Practice) 17 8898. All of the foregoing allegations are repeated and realleged as though 18 19 20 21 fully set forth herein. 8999. The APA prohibits agency action that is arbitrary and capricious or violates a person’s legal or constitutional rights. 90100. Defendants’ separation practice is final agency action for which 22 there is no other adequate remedy in a court. Defendants’ decision to separate 23 24 25 26 27 parents is not tentative or interlocutory, because Defendants have already separated thousands of families and continue to do so, and the policy was announced by highlevel officials. And Defendants’ decision to separate gravely impacts class members’ rights to remain together as families. 28 16 Case 3:18-cv-00428-DMS-MDD Document 244-2 Filed 10/05/18 PageID.3909 Page 22 of 27 1 91101. Defendants’ separation of Ms. L., Ms. C., and the other class 2 members from their children without any explanation or legitimate justification is 3 arbitrary and capricious and accordingly violates the APA. 5 U.S.C. § 706. 4 92102. Among other things, Defendants failed to offer adequate reasons 5 for adopting their unprecedented new separation practice; they failed to explain why 6 they were not using alternatives to separation, including supervised release and 7 family detention; and for parents like Ms. L., Defendants have never explained why 8 9 they cannot verify parentage before imposing traumatic separation on both parent and child. 10 11 12 13 14 15 16 17 18 19 20 21 COUNT III (Violation of Right to Seek Protection Under the Asylum and Withholding of Removal Statutes, and the Convention Against Torture) 93103. All of the foregoing allegations are repeated and realleged as though fully set forth herein. 94104. Under United States law, noncitizens with a well-founded fear of persecution shall have the opportunity to apply for asylum in the United States. 8 U.S.C. § 1158(a). In addition, noncitizens have a mandatory statutory entitlement to withholding of removal where they would face a probability of persecution if removed to their country of nationality, 8 U.S.C. § 1231(b)(3), or withholding or deferral of removal where they would face a probability of torture. Foreign Affairs 22 Reform and Restructuring Act (“FARRA”), Pub. L. No. 105-277, Div. G., Title XXII, § 23 2242, 112 Stat. 2681-822 (Oct. 21, 1998) (codified as Note to 8 U.S.C.§ 1231). 24 25 95105. Class members have a private right of action to challenge violations of their right to apply for asylum under § 1158(a). That right is not 26 27 28 17 Case 3:18-cv-00428-DMS-MDD Document 244-2 Filed 10/05/18 PageID.3910 Page 23 of 27 1 barred by 8 U.S.C. § 1158(d)(7), which applies to only certain procedural 2 requirements set out in Section 1158(d). 3 96106. Defendants’ separation of families violates federal law that 4 provides for asylum and other protection from removal, as well as their due process 5 right to seek such relief. Separation severely impedes their ability to pursue their 6 asylum and other protection claims in a number of ways, including by denying them 7 the ability to coordinate their applications with their children, present facts related to 8 themselves and their children, and creating trauma that hinders their ability to 9 navigate the complex process. This is in violation of due process and other federal 10 law, including the Rehabilitation Act, 29 U.S.C. § 701 et seq. and Immigration and 11 Nationality Act, 8 U.S.C. § 1101. 12 13 14 15 97107. The government is also using the trauma of separation to coerce parents into giving up their asylum and protection claims in order to be reunited with their children. PRAYER FOR RELIEF 16 17 18 19 20 21 22 23 24 25 26 Plaintiffs request that the Court enter a judgment against Defendants and award the following relief: A. Certify a class of all adult parents nationwide who enter the United States at or between designated ports of entry who (1) have been, are, or will be detained in immigration custody by the DHS, and (2) have a minor child who is or will be separated from them by DHS and detained in ORR custody, ORR foster care, or DHS custody, absent a determination that the parent is unfit or presents a danger to the child. B. Name Ms. L., and Ms. C., Dora, and Alma as representatives of the class, and appoint Plaintiffs’ counsel as class counsel; 27 28 18 Case 3:18-cv-00428-DMS-MDD Document 244-2 Filed 10/05/18 PageID.3911 Page 24 of 27 1 2 3 4 5 6 7 C. Declare the separation of Ms. L., Ms. C., Dora, and Alma, and the other class members from their children unlawful; D. Preliminarily and permanently enjoin Defendants from continuing to separate the class members from their children; E. Order Defendants either to release class members along with their children, or to detain them together in the same facility; F. Enjoin Defendants from removing any class members from the country 8 who have received final removal orders until they are reunited with their children, 9 unless the class members knowingly and voluntarily decide that they do not want 10 11 their children removed with them; G. Enjoin Defendants from removing any class member who received a 12 final removal order prior to the issuance of this Court’s preliminary injunction on 13 June 26, 2018, or prior to receiving notice of their rights under the injunction, until 14 they have had an opportunity to consult with class counsel, or a delegate of class 15 counsel, to insure that these class members have knowingly and voluntarily chosen 16 to forego any further challenges to removal, rather than feeling coerced into doing so 17 18 19 20 21 22 as a result of separation from their children. H. Order Defendants to provide Ms. L, Ms. C., Dora, Alma, and the other class members with a reasonable opportunity to pursue claims for asylum. H. Require Defendants to pay reasonable attorneys’ fees and costs; I. Order all other relief that is just and proper. Dated: July 3September ____, 2018 Respectfully Submitted, /s/Lee Gelernt /s/Lee Gelernt 26 Bardis Vakili ISBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES 27 P.O. Box 87131 Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* Daniel Galindo (SBN 292854) AMERICAN CIVIL LIBERTIES 23 24 25 Anand Balakrishnan* 28 19 Case 3:18-cv-00428-DMS-MDD Document 244-2 Filed 10/05/18 PageID.3912 Page 25 of 27 1 2 3 San Diego, CA 92138-7131 T: (619) 398-4485 F: (619) 232-0036 bvakili@aclusandiego.org 11 Stephen B. Kang (SBN 292280) Spencer E. Amdur (SBN 320069) AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 skang@aclu.org samdur@aclu.org 12 Counsel for Plaintiffs Ms. L. and Ms. C. 4 5 6 7 8 9 10 UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2616 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org dgalindo@aclu.org 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Aaron M. Olsen (259923) HAEGGQUIST & ECK LLP 225 Broadway Ste 2050 San Diego, CA 92101 phone: 619.342.8000 fax: 619.342.7878 aarono@haelaw.com Wilson G. Barmeyer+ EVERSHEDS SUTHERLAND (US) LLP 700 Sixth Street NW Suite 700 Washington, DC 20001 (202) 383-0100 (202) 637-3593 (facsimile) wilsonbarmeyer@eversheds -sutherland.com Sirine Shebaya+ Johnathan Smith+ MUSLIM ADVOCATES P.O. Box 34440 Washington, D.C. 20043 (202) 897-2622 (202) 508-1007 (facsimile) sirine@muslimadvocates.org johnathan@muslimadvocates. org John H. Fleming+ EVERSHEDS SUTHERLAND (US) LLP 999 Peachtree Street NE, Suite 2300 Atlanta, GA 30309 (404) 853-8000 (404) 853-8806 (facsimile) johnfleming@evershedssutherland.com Simon Y. SandovalMoshenberg+ Sophia Gregg+ LEGAL AID JUSTICE CENTER 6066 Leesburg Pike, Suite 520 Falls Church, VA 22041 (703) 778-3450 (703) 778-3454 (facsimile) 28 20 Case 3:18-cv-00428-DMS-MDD Document 244-2 Filed 10/05/18 PageID.3913 Page 26 of 27 simon@justice4all.org sophia@justice4all.org 1 2 3 Counsel for Plaintiffs Dora and Alma for Count 3 Only. + Motion for Admission Pro Hac Vice Forthcoming 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 Case 3:18-cv-00428-DMS-MDD Document 244-2 Filed 10/05/18 PageID.3914 Page 27 of 27 Summary report: Litéra® Change-Pro TDC 10.1.0.200 Document comparison done on 9/27/2018 12:17:08 PM Style name: WGB Intelligent Table Comparison: Active Original filename: Ms. L - SECOND Amended Complaint.docx Modified filename: Ms. L - THIRD Amended Complaint.DOCX Changes: Add 144 Delete 110 Move From 0 Move To 0 Table Insert 2 Table Delete 5 Table moves to 0 Table moves from 0 Embedded Graphics (Visio, ChemDraw, Images etc.) 0 Embedded Excel 0 Format changes 0 261 Total Changes: Case 3:18-cv-00428-DMS-MDD Document 244-3 Filed 10/05/18 PageID.3915 Page 1 of 2 Ex. C Confidential File Under Seal Case 3:18-cv-00428-DMS-MDD Document 244-3 Filed 10/05/18 PageID.3916 Page 2 of 2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA SAN DIEGO DIVISION Ms. L, et al., CASE NO. 3:18-cv-428-DMS Plaintiff, EXHIBIT C v. CONFIDENTIAL U.S. Immigration and Customs Enforcement, et al., TO BE FILED UNDER SEAL Defendant. EXHIBIT C 1 2 40965957.2 Plaintiff’s First / Last Name Pseudonym Alma Dora