Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3922 Page 1 of 63 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 dgalindo@aclu.org Attorneys for Petitioner-Plaintiff *Admitted Pro Hac Vice 11 12 15 M.M.M., on behalf of his minor child, J.M.A., et al., 16 Plaintiffs, 17 v. 18 Jefferson Beauregard Sessions, III, Attorney General of the United States, et al., 19 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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA SAN DIEGO DIVISION 13 14 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 20 Case No. 3:18-cv-1832-DMS Honorable Dana M. Sabraw Defendants. 21 22 Case No. 3:18-cv-428-DMS Ms. L, et al., Honorable Dana M. Sabraw 23 Plaintiffs, 24 25 26 27 v. U.S. Immigration and Customs Enforcement, et al., Defendants. UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT; PRELIMINARY CERTIFICATION OF SETTLEMENT CLASSES; AND APPROVAL OF CLASS NOTICE UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3923 Page 2 of 63 1 I. INTRODUCTION1 2 This proposed settlement agreement (“the Agreement”), attached hereto as 3 Exhibit 68, arises out of litigation in several lawsuits involving the separation of 4 alien parents and children at or near the U.S. border: M.M.M. v. Sessions, Case No. 5 3:18-cv-1832-DMS (S.D. Cal.), M.M.M. v. Sessions, Case No. 1:18-cv-1835-PLF 6 (D.D.C.), Ms. L. v. ICE, Case No. 3:18-cv-428-DMS (S.D. Cal.), and Dora v. 7 Sessions, Case No. 18-cv-1938 (D.D.C.). 8 challenge the separation of families as a result of the government’s Zero-Tolerance 9 Policy and allege that Defendants failed to provide adequate opportunity to seek 10 asylum or other protection from removal in the United States. The Agreement 11 contemplates certification of separate classes of parents and their children (defined 12 more specifically below) (the “Settlement Classes”). Among other things, these lawsuits 13 If the Court approves the Agreement, Defendants will provide various 14 procedures to enable members of the Settlement Classes to seek asylum or other 15 protection from removal. Parents or children who seek to waive their rights under 16 this settlement agreement and be promptly removed to their country of origin, have 17 the right to do so. In such a case, the parent or child is not eligible for any 18 additional relief under the Agreement. In return, the M.M.M. class members and 19 Dora Plaintiffs agree to dismiss their existing cases in the District of Columbia, the 20 M.M.M. class members agree to refrain from seeking preliminary injunctive relief 21 in their pending litigation in the Southern District of California, and all class 22 members agree to refrain from additional litigation seeking immigration- or 23 asylum-related injunctive, declaratory, or equitable relief that arises from the facts 24 25 26 27 28 1 Defendants do not oppose the request for relief contained in this motion or the entry of the proposed order filed herewith. However, Defendants do not join in the motion itself and do not agree with all of the arguments and characterizations contained herein. To the extent any disputes arise over the agreement or implementation, the text of the agreement, and not any characterizations of the agreement contained in this motion, controls. -2- UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3924 Page 3 of 63 1 and circumstances set forth in the Ms. L, M.M.M., or Dora complaints relating to 2 those parents and children covered by this plan, accruing as of the date the 3 settlement is approved by the Court, including statutory claims. 4 Pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, Plaintiffs 5 now request that the Court preliminarily approve the Agreement, preliminarily 6 certify the proposed Settlement Classes, approve the form and plan of notice, and 7 schedule a final fairness hearing, as set forth in the attached stipulated order 8 (“Proposed Order”). The Agreement easily qualifies for preliminary approval, as 9 set forth below. The proposed Settlement Classes qualify for certification under 10 Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure. The Agreement 11 provides the Settlement Classes with the equitable relief sought, including access to 12 procedures to pursue asylum or other protection from removal. And the proposed 13 form and plan of notice provides the best notice that is practicable under the 14 circumstances. The Court should therefore preliminarily approve the Agreement, 15 preliminarily certify the proposed Settlement Classes, and approve the form and 16 plan of notice. 17 II. 18 BACKGROUND a. Ms. L and Dora Cases 19 The Ms. L. plaintiffs are two parents who were separated from their minor 20 children at or near the U.S. border and who sought injunctive relief on behalf of 21 themselves and a class of similarly situated parents. On June 26, 2018, this Court 22 certified a class of parents (the Ms. L. Class), defined as: 23 26 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. 27 The class does not include “migrant parents with criminal history or communicable 28 disease, or those who are in the interior of the United States or subject to the 24 25 -3- UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3925 Page 4 of 63 1 [executive order].” Ms. L. v. ICE, No. 18-428, ECF No. 82 at 17 n.10. On June 26, 2 2018, the Court also entered a class-wide preliminary injunction that, in relevant 3 part, enjoined the government from detaining Ms. L. Class Members in DHS 4 custody without and apart from their minor children, absent a determination that the 5 parent is unfit or presents a danger to the child, unless the parent affirmatively, 6 knowingly, and voluntarily declines to be reunited with the child in DHS custody, 7 and further ordered the reunification of Ms. L. Class Members already separated. 8 In litigation filed in the District of Columbia, in Dora v. Sessions, Case No. 9 18-cv-1938 (D.D.C.), twenty-nine named plaintiffs alleged that their separation 10 from their children denied them of a meaningful opportunity to apply for the 11 protections of asylum. 2 12 interview process while separated from their children and received negative 13 determinations. As a result of the negative determination, the Dora plaintiffs were 14 subject to removal pursuant to expedited removal orders. In the Dora litigation, the 15 plaintiffs alleged that the trauma caused by their family separation deprived them of 16 a reasonable opportunity to articulate a credible fear, in violation of the Due 17 Process Clause of the Fifth Amendment of the United States Constitution, the 18 Immigration and Nationality Act, the Rehabilitation Act, and the Administrative 19 Procedure Act. The Dora plaintiffs sought an injunction declaring the government’s 20 policies to be unlawful and allowing them to receive new credible fear interviews 21 after reunification with their children. 22 The Dora plaintiffs went through the credible fear b. The M.M.M. Case 23 The M.M.M. plaintiffs are six children who were separated from their 24 parents, who are Ms. L. class members, as a result of their parents’ referral for 25 26 27 28 2 Two named plaintiffs from the Dora case have been or soon will be added to the Ms. L action by way of an amended complaint in the Southern District of California, for the purpose of serving as class representatives for the class of parents for purposes of this settlement. -4- UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3926 Page 5 of 63 1 criminal prosecution under the government’s Zero-Tolerance Policy. The M.M.M. 2 plaintiffs (and the proposed Settlement Class of other separated children like them) 3 allege that, as a result, they were not given any opportunity to apply for asylum 4 where their parent was subject to a final order of removal and elected to be 5 reunified with their child, even following reunification with their parents. 6 particular, the U.S. government took the position that a decision by parents on an 7 “election form” to be reunified with their child for removal meant that the parent 8 was waiving the child’s right to independently pursue a claim for asylum. In 9 The M.M.M. plaintiffs filed a class action complaint seeking injunctive relief 10 on behalf of a putative class consisting of “all non-citizens under the age of 18 who 11 were separated from their parents or guardians upon (or after) entry into the United 12 States and who are, have been, or will be detained by the U.S. government at any 13 time since January 1, 2018.” The Complaint alleged four causes of action arising 14 under the Due Process Clause of the Fifth Amendment to the U.S. Constitution, 28 15 U.S.C. § 1361, the Administrative Procedure Act, and 8 U.S.C. § 1252(e)(3). 16 The M.M.M. complaint was originally filed in the U.S. District Court for the 17 District of Columbia on July 27, 2018. Judge Friedman entered an order severing 18 Counts I-III of the M.M.M. complaint and transferring those claims to this Court. 19 Judge Friedman retained jurisdiction over Count IV because the D.C. District Court 20 has exclusive jurisdiction over claims arising under 8 U.S.C. § 1252(e)(3). This 21 Court subsequently entered a temporary restraining order, staying the removal of all 22 putative class members and their parents pending a resolution of their preliminary 23 injunction motion. In entering the order, the Court found that plaintiffs were likely 24 to succeed on the merits because Section 235 of the INA, 8 U.S.C. § 1225, sets 25 forth a “nondiscretionary duty” to provide a credible fear interview to any alien 26 subject to expedited removal who indicates a fear of returning to their country of 27 origin. The Court also rejected the government’s argument that plaintiffs’ rights to 28 seek asylum or other protection from removal had been waived by their parents’ -5- UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3927 Page 6 of 63 1 signing of the “election form.” The Court expressed its preliminary view that 2 “Plaintiffs’ asylum claims would be more appropriately addressed under § 235 3 since Plaintiffs are not truly ‘unaccompanied’ minors warranting removal 4 proceedings under § 240,” but reserved final ruling on that issue. The Court 5 directed the parties to “meet and confer and propose a solution—one that follows 6 the law, and is equitable and reflective of ordered governance.” Id. Per the Court’s 7 instructions, counsel for Defendants and the Ms. L., M.M.M., and Dora Plaintiffs 8 met and conferred extensively over the ensuing four weeks. 9 negotiation, the parties reached final agreement on September 12, 2018 and 10 After extensive attached their agreement to a joint status report filed the same day. 11 c. Material Terms of the Proposed Settlement 12 The first part of the proposed agreement contemplates certification of 13 settlement classes of parents and children. The parent Settlement Class is defined 14 as follows: 15 All adult alien parents who entered the United States at or between designated ports of entry with their child(ren), and who, on or before the effective date of this agreement: (1) were detained in immigration custody by the DHS; (2) have a child who was or is separated from them by DHS and, on or after June 26, 2018, was housed in ORR custody, ORR foster care, or DHS custody, absent a determination that the parent is unfit or presents a danger to the child; and (3) have been (and whose child(ren) have been) continuously physically present within the United States since June 26, 2018, whether in detention or released. The class does not include alien parents with criminal histories or a communicable disease, or those encountered in the interior of the United States. 3 16 17 18 19 20 21 The class of children is defined as follows: 22 All alien children who are under the age of 18 on the effective date of this agreement who: (1) entered the United States at or between designated ports of entry with an alien parent, and who were separated from their parents, on or before the effective date of this settlement agreement; (2) have been or will be reunified with that parent pursuant to the preliminary injunction issued by the Court in Ms. L v. U.S. Immigration and Customs Enforcement, No. 18-428 (S.D. Cal. 23 24 25 26 27 28 3 In addition, references to “class” or “class member” in the Settlement Agreement include any parents who are not part of the Ms. L. class due to criminal history or communicable disease, but who the Court has ordered must be reunified. -6- UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3928 Page 7 of 63 1 2 3 4 5 6 7 June 26, 2018); and (3) have been continuously physically present in the United States since June 26, 2018. This section of the agreement provides significant benefits to the members of both proposed classes. The procedural mechanisms vary depending on class members’ circumstances, and do not affect the right of Ms. L. class members to seek reunification pursuant to the Court’s preliminary injunction during these processes. In particular, the agreement provides for the following relief: • For parent class members who have final expedited removal orders, USCIS will exercise its discretionary authority to sua sponte conduct a good faith, de novo review of the parent’s negative credible fear finding. For the limited purpose of this Agreement, the review process will include an opportunity to meet with an asylum officer for additional fact-gathering, and the parent will have the opportunity to present additional information that was not provided during their original credible fear interview (CFI). 4 Children will be treated as the parents’ dependents under 8 C.F.R. § 208.30(b). 8 9 10 11 12 o Based on that interview, USCIS may reconsider the parent’s negative credible fear finding. If USCIS does so, both the parent and the child will be issued NTAs and placed into removal proceedings under Section 240. 13 14 o If USCIS does not reconsider the parent’s negative credible fear finding, USCIS will provide the child with a CFI. The parent will be permitted to assist the child in the interview and offer testimony on the child’s behalf. If the child establishes a credible fear, then both the child and the parent will be issued NTAs and placed into removal proceedings under Section 240, notwithstanding the parent’s negative credible fear finding. 15 16 17 18 • For detained parents with reinstated removal orders, USCIS will exercise its discretionary authority to sua sponte conduct a good faith, de novo review of the parent’s negative reasonable fear finding. For the limited purpose of this Agreement, the review process will include an opportunity to meet with an asylum officer for additional fact-gathering, and the parent will have the opportunity to present additional information that was not provided during their original reasonable fear interview (RFI). The child will be, as described above, placed into expedited removal and screened for credible fear. 19 20 21 22 23 o If the parent establishes that he or she can meet the reasonable fear standard, the parent will be referred for withholding-only proceedings. 24 25 26 27 28 4 For any review of a parent’s credible fear or reasonable fear finding, and for any credible fear interview provided to a member of the child class, counsel for the parent or counsel for the child, respectively, will be able to participate in that interview in person unless ICE determines in good faith that in-person participation would adversely affect facility security or operations. If in-person attendance is not possible, counsel will be able to participate telephonically. -7- UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3929 Page 8 of 63 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 o Regardless of the parent’s ability to establish a reasonable fear upon further review, the parent’s child will be provided a credible fear interview. The parent will be permitted to assist the child in the interview and offer testimony on the child’s behalf. If the child establishes a credible fear, then the child will be issued an NTA and placed into removal proceedings under Section 240. The parent will remain in withholding-only proceedings if the parent’s reasonable fear finding is changed to positive. • For children who are currently detained with their parents and whose parents have received a final order of removal after going through removal proceedings under Section 240, and the child is an arriving alien or was initially encountered within 14 days of entry and 100 miles of the border, the child will be placed into expedited removal and, if the child asserts, or has already asserted, an intention to apply for asylum or a fear of persecution or torture, either directly or through counsel, will be provided with the same credible fear process described above. If the child establishes a credible fear, the child will be issued an NTA and be placed into Section 240 proceedings, and the government will move to reopen the parent’s Section 240 proceedings and consolidate them with the child’s proceedings. • For children who have been reunited with their parents and are detained, ICE will either exercise its discretion to cancel any issued NTA or will file a joint motion to dismiss any pending immigration proceedings, and will, upon a finding that the child is an arriving alien or was initially encountered within 14 days of entry and 100 miles of the border, initiate expedited removal proceedings against the child. If the child asserts, or has already asserted, an intention to apply for asylum or a fear of persecution or torture, the child will be referred to USCIS for a credible fear interview. For parents and children who have been released and were issued NTAs, such parents and children cannot be removed unless and until they receive final orders of removal after going through Section 240 removal proceedings. • For parents and children who have been released, are not subject to a final order of removal, and are not in Section 240 proceedings, such parents and children can affirmatively apply for asylum, and USCIS will adjudicate the application regardless of whether an unfiled NTA exists. • If a child has received a final removal order prior to reunification, the government will join a motion to reopen the Section 240 proceedings if requested within 45 days of court approval of the agreement. Counsel for the plaintiffs and the government will work together in good faith to identify any such children within 15 days of approval of the agreement. • For children who have not been reunified, they will maintain their classification as “unaccompanied alien children” and will receive the various procedures to which they are entitled, unless and until they are reunified with their parent, at which point the procedures described in the proposed settlement will apply. The second part of the agreement reflects the parties’ agreement with regard to individuals who fit the parent class description as defined above, but have been -8- UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3930 Page 9 of 63 1 removed from the United States, as well as the rights of members of the children 2 class whose parents have been removed. 5 For those individuals, the parties’ 3 agreement is as follows: • The Agreement states that the government does not intend or agree to return any removed parent to the United States. For parents who were removed without their child, Plaintiffs’ counsel may raise with the government individual “rare and unusual” cases in which Plaintiffs’ counsel believes the return of a particular removed Ms. L class member may be warranted. Plaintiffs’ counsel will present any such cases, including all evidence they would like considered by the government within 30 days of court approval of the agreement. Defendants will provide a reply to any case presented by Plaintiffs within 30 days of receiving Plaintiffs’ request to consider the case. 4 5 6 7 8 • For the children of removed parents who choose to remain in the United States and seek asylum or other protection from removal, the government will not oppose requests that the removed parent provide testimony or evidence telephonically or in writing in the child’s asylum or removal proceedings. In addition, ICE attorneys appearing in immigration court (1) will not object to the admission of documentary evidence (such as photocopied, scanned, or faxed documents) provided by the removed parent on the grounds that such documentary evidence does not bear an original signature or is not an original copy (ICE reserves the right to object based on other grounds), and (2) will not object to telephonic participation by the parent in the child’s Section 240 removal proceedings provided that the noncitizen (and his or her legal representative, if applicable) make appropriate motions to the immigration judge to permit telephonic testimony in advance of any merits hearing, that the alien is responsible for providing accurate contact information to permit the immigration judge to make contact with the parent, and that the parent’s unavailability and faulty connections or other technological impediments may not serve as the basis for delaying scheduled hearings. 9 10 11 12 13 14 15 16 17 18 19 If the proposed settlement becomes final, class members will be prohibited 20 from pursuing “any other immigration- or asylum-related injunctive, declaratory, or 21 equitable relief based on the allegations or claims made in any of the Ms. L, 22 M.M.M., or Dora complaints filed in any court accruing as of the date this plan is 23 approved by the Court, including statutory claims.” The proposed settlement does 24 not release claims for money damages, nor does it release claims for injunctive, 25 declaratory, or equitable relief that are not immigration- or asylum-related, or 26 27 28 5 For purposes of this section of the Agreement, the class definitions are the same as described above, except that the requirements of continuous physical presence do not apply, since this section addresses removed parents. -9- UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3931 Page 10 of 63 1 claims that are not based on the allegations made in the Ms. L, M.M.M., or Dora 2 complaints. 3 III. LEGAL STANDARD 4 The Ninth Circuit has a “strong judicial policy that favors settlements, 5 particularly where complex class action litigation is concerned.” Class Plaintiffs v. 6 Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992). Under Rule 23(e) of the Federal 7 Rules of Civil Procedure, a class action settlement that is binding on absent class 8 members requires court approval. “Court approval requires a two-step process: (1) 9 preliminary approval of the settlement; and (2) following a notice period to the 10 class, final approval of the settlement at a fairness hearing.” Nwabueze v. AT&T 11 Inc., 2013 U.S. Dist. LEXIS 169270 (N.D. Cal. Nov. 27, 2013). This case is at the 12 first step. Accordingly, Plaintiffs move for an order preliminarily approving the 13 settlement. 14 As part of the preliminary approval process, the Court must “determine 15 whether the class is proper for settlement purposes,” and, if so, preliminarily certify 16 the class. Amchem Products, Inc. v. Windsor, 521 U.S. 591, 620 (1997). To 17 support certification, a court must find each of Fed. R. Civ. P. 23(a)’s requirements 18 (i.e. numerosity, commonality, typicality, and adequacy of representation) satisfied. 19 In addition, the party seeking certification must show that the proposed class 20 satisfies “one of the subsections of Rule 23(b)” – here, 23(b)(2), which “permits 21 certification where ‘the party opposing the class has acted or refused to act on 22 grounds that apply generally to the class, so that final injunctive relief or 23 corresponding declaratory relief is appropriate respecting the class as a whole.’” 24 Kamakahi v. Am. Soc’y for Reprod. Med., 305 F.R.D. 164, 175 (N.D. Cal. 2015) 25 (quoting Fed. R. Civ. P. 23(b)(2)). In conducting the certification analysis, “a 26 district court need not inquire whether the case, if tried, would present intractable 27 management problems . . . for the proposal is that there be no trial.” Id. (citations 28 omitted). - 10 - UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3932 Page 11 of 63 1 In deciding on preliminary approval, the court determines whether the 2 proposed settlement warrants consideration by members of the class and a later, full 3 examination by the court at a final approval hearing. 4 Litigation (Fourth) § 13.14 at 173. This does not require the Court to perform a 5 full-blown analysis of the settlement, but rather merely to determine whether the 6 settlement falls “within the range of possible approval.” In re Tableware Antitrust 7 Litig., 484 F. Supp. 2d 1078, 1080 (N.D. Cal. 2007). 8 IV. 9 Manual for Complex ANALYSIS a. The Requirements of Rule 23(a) Are Satisfied 10 Rule 23(a) provides four baseline requirements for certifying a class: 11 numerosity, commonality, typicality, and adequacy. 12 satisfied here. All four requirements are 13 Numerosity. Rule 23(a)(1) requires the class to be “so numerous that joinder 14 of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). The plaintiff need not 15 state the exact number of potential class members; nor is a specific minimum 16 number required. Perez-Funez v. Dist. Dir., I.N.S., 611 F. Supp. 990, 995 (C.D. 17 Cal. 1984); Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439, 448 18 (N.D. Cal. 1994). “[C]ourts have routinely found the numerosity requirement 19 satisfied when the class comprises 40 or more members.” Kamakahi, 305 F.R.D. at 20 183. 21 numerosity “requirement is relaxed and plaintiffs may rely on [] reasonable 22 inference[s] arising from plaintiffs’ other evidence that the number of unknown and 23 future members of [the] proposed []class . . . is sufficient to make joinder 24 impracticable.” Arnott v. U.S. Citizenship & Immigration Servs., 290 F.R.D. 579, 25 586 (C.D. Cal. 2012) (quoting Sueoka v. United States, 101 Fed. App’x 649, 653 26 (9th Cir. 2004)). Moreover, where a plaintiff seeks injunctive and declaratory relief, the 27 The numerosity requirement is easily satisfied for the Settlement Classes. 28 The parent class includes hundreds of parents. Cf. Dkt. No. 82 at 8 n. 7. The child - 11 - UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3933 Page 12 of 63 1 class is necessarily at least as large because it includes the children of all parents 2 who are in the parent classes. 3 numerosity requirement. 4 Both Settlement Classes therefore satisfy the Commonality. The second element of Rule 23(a) requires the existence of 5 “questions of law or fact common to the class[.]” 6 Commonality is satisfied where the plaintiff alleges the existence of a “common 7 contention” that is “capable of classwide resolution[.]” Wal-Mart Stores, Inc. v. 8 Dukes, 564 U.S. 338, 350 (2011). 9 construed permissively,’ and ‘[a]ll questions of fact and law need not be common to 10 satisfy the rule.’” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 11 2011) (quoting Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998)). 12 Indeed, “commonality only requires a single significant question of law or fact[,]” 13 Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 589 (9th Cir. 2012) (citing 14 Dukes, 564 U.S. at 359), and that is particularly so where a suit “challenges a 15 system-wide practice or policy that affects all of the putative class members.” 16 Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001). Fed. R. Civ. P. 23(a)(2). The commonality requirement has “‘been 17 The proposed Settlement Classes present claims that raise common questions 18 of fact and law. With respect to the parent classes, the claims raise the common 19 question of whether separation of parents and children at the border deprived those 20 individuals of a meaningful opportunity to pursue asylum claims, in violation of the 21 Due Process Clause of the Fifth Amendment and other federal laws.6 This claim is 22 common to all parent class members, and this Court previously found that due 23 process claims arising from the separation raise common questions sufficient to 24 satisfy the commonality requirement. See Dkt. No 82 at 12:5-13:16 (quoting 25 26 27 28 6 In Dora v. Sessions, 18-cv-1938 (D.D.C. 2018), these parents alleged that they were deprived of meaningful access to apply for asylum, in violation of due process, the Rehabilitation Act (29 U.S.C. § 701), the Administration Procedure Act, and the Immigration and Nationality Act. - 12 - UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3934 Page 13 of 63 1 Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014) (“‘[P]olicies and practices are 2 the ‘glue’ that holds together the putative class . . .; either each of the policies and 3 practices is unlawful as to every inmate or it is not. That inquiry does not require us 4 to determine the effect of those policies and practices upon any individual class 5 member (or class members) or to undertake any other kind of individualized 6 determination.’”)). As the Court acknowledged in its prior class certification Order 7 in Ms. L., the reasoning in Parsons is applicable to the current matter. As a result, 8 the due process claims are sufficiently common to satisfy Rule 23(a)(2)’s 9 permissive standard regarding commonality. See Mazza v. Am. Honda Motor Co., 10 Inc., 666 F.3d 581, 589 (9th Cir. 2012) (citing Dukes, 564 U.S. at 359). 11 Likewise, the central legal question presented by the claims of the child class 12 is whether the Government’s separation of parents and children – and removal of 13 the parent and child together following reunification without providing the child 14 with an independent opportunity to apply for asylum– violated the Due Process 15 Clause of the Fifth Amendment and other federal laws. Thus, the common legal 16 questions include: (1) whether class members can be removed before receiving an 17 opportunity to seek asylum or otherwise assert defenses to removal, (2) whether 18 their parents can and did waive their rights to seek asylum, (3) what process, if any, 19 is due prior to removal, and (4) whether class members have a right to be 20 accompanied by their parent as they go through that process. Commonality is 21 therefore satisfied. Cf. Parsons, 754 F.3d at 678 (finding commonality and noting 22 “although a presently existing risk may ultimately result in different future harm for 23 different inmates—ranging from no harm at all to death—every inmate suffers 24 exactly the same constitutional injury when he is exposed to a single statewide 25 ADC policy or practice that creates a substantial risk of serious harm.”). 26 Typicality. The next requirement of Rule 23(a) is typicality, which focuses 27 on the relationship of facts and issues between the class and its representatives. 28 “[R]epresentative claims are ‘typical’ if they are reasonably co-extensive with those - 13 - UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3935 Page 14 of 63 1 of absent class members; they need not be substantially identical.” Hanlon, 150 2 F.3d at 1020. “The test of typicality is whether other members have the same or 3 similar injury, whether the action is based on conduct which is not unique to the 4 named plaintiffs, and whether other class members have been injured by the same 5 course of conduct.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 6 1992) (citation and internal quotation marks omitted). The typicality requirement 7 will occasionally merge with the commonality requirement. See Parsons, 754 F.3d 8 at 687. 9 The typicality requirement is met for the parent class. This Court previously 10 found the typicality element was satisfied for the parent classes because: (1) the 11 named plaintiffs and absent class members were subject to the same practice – 12 family separation; (2) the due process claims raised by the plaintiffs and the absent 13 class members were the same; and (3) the plaintiffs and absent class members 14 suffered the same or similar injury. See Dkt. No. 82 at 14:8-18. Just as with the 15 issues raised by the named plaintiffs in Ms. L., the proposed named plaintiffs 7 and 16 Settlement Class members share a set of legal claims – that the parent class 17 members were deprived of a meaningful opportunity to pursue asylum or other 18 protection from removal. Similarly, the alleged injury – denial of the named 19 plaintiffs’ Settlement Class members’ right to a meaningful opportunity to pursue 20 asylum procedures or other protection from removal – is the same for all class 21 members. Accordingly, the typicality requirement is met. 22 The typicality requirement is also met for the child class, because the claims 23 of the M.M.M. plaintiffs are “reasonably co-extensive” with the claims of members 24 of the Settlement Class. As noted above, all members of the proposed Settlement 25 Class were separated from their parents and were subsequently subject to 26 27 28 7 For purposes of this Motion, the named plaintiffs include individuals from the Dora action who have been or will be added to the Ms. L action by way of an amended complaint in the Southern District of California. - 14 - UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3936 Page 15 of 63 1 reunification with their parents, leaving their ability to seek asylum in doubt to the 2 extent their parents had received any removal order during the period of separation 3 and selected the option of being reunified via an “election form.” 4 members thus were at risk of the same or similar injury (i.e., being removed 5 without an opportunity to seek asylum). Because the action is not based on conduct 6 unique to the named plaintiffs, and because all class members were subject to the 7 same course of conduct, typicality is satisfied for the child class. All class 8 Adequacy. The final requirement of Rule 23(a) is adequacy. Rule 23(a)(4) 9 requires a showing that “the representative parties will fairly and adequately protect 10 the interests of the class.” Fed. R. Civ. P. 23(a)(4). The adequacy requirement is 11 satisfied “if the proposed representative plaintiffs do not have conflicts of interest 12 with the proposed class and are represented by qualified and competent counsel.” 13 Kamakahi, 305 F.R.D. at 183. Class counsel are deemed qualified when they can 14 establish their experience in previous class actions and cases involving the same 15 area of law. Lynch v. Rank, 604 F. Supp. 30, 37 (N.D. Cal. 1984), aff’d 747 F.2d 16 528 (9th Cir. 1984), amended on reh’g, 763 F.2d 1098 (9th Cir. 1985). 17 Regarding the parent settlement class, proposed class counsel are attorneys 18 from a prominent law firm and with expertise in class actions, together with 19 attorneys from non-profit organizations that specialize in civil rights and 20 immigration law. See Ex. 69 (Decl. of Wilson Barmeyer); Ex. 70 (Decl. of Sirine 21 Shebaya); Ex. 71 (Decl. of Simon Sandoval-Moshenberg). 22 attorneys have extensive background in litigating class actions, and have extensive 23 experience in the underlying issues of immigration law, constitutional law, and 24 administrative law. See id. Likewise, the proposed named plaintiffs will fairly and 25 adequately protect the interests of the proposed class. Named plaintiffs’ interests 26 are aligned with the remaining putative class. Plaintiffs have alleged—on behalf of 27 themselves and the class—that the family separation impacted their ability to 28 meaningfully pursue asylum rights. - 15 - Collectively, these UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3937 Page 16 of 63 1 As discussed above, there is a separate parent class identified in the 2 Agreement consisting of the same parent class definition, except that the 3 requirements of continuous physical presence in the United States do not apply. All 4 parent classes are sub-classes of the certified Ms. L. class. Class counsel for the Ms. 5 L. Plaintiffs will continue to act as class counsel for the reunification claims for all 6 parents, including the reunification claims of this separate parent subclass. 7 Regarding the child class, proposed class counsel are attorneys from a 8 prominent law firm with expertise in class actions who have been working closely 9 with attorneys from non-profit organizations that specialize immigration law and in 10 representing individuals and families in immigration proceedings. Ex. 72 (Decl. of 11 Justin Bernick). 12 litigating class actions, and have extensive experience in the underlying issues of 13 immigration law, constitutional law, and administrative law. Id. The attorneys 14 have prosecuted the M.M.M. case vigorously on behalf of the proposed class, 15 pursuing the interests of M.M.M. plaintiffs and class members in securing 16 injunctive relief that will allow them to pursue asylum with the assistance of their 17 parents. Cf. Walters v. Reno, 145 F.3d 1032, 1046 (9th Cir. 1998) (adequacy 18 satisfied when “the district court specifically found that the attorneys for the class 19 representatives were well qualified and that the class representatives themselves 20 were adequate because they were not antagonistic to the interests of the class and 21 were ‘interested and involved in obtaining relief.’”). In addition, the interests of the 22 M.M.M. named plaintiffs and the child class are aligned. All class members, 23 including the M.M.M. plaintiffs, have been subjected to a similar course of conduct 24 and have a strong interest in (1) securing meaningful access to asylum procedures, 25 and (2) securing their parents’ assistance with those procedures. That is exactly the 26 interest the M.M.M. plaintiffs have represented in this case. 27 28 Collectively, these attorneys have extensive background in b. The Requirements of Rule 23(b)(2) Are Satisfied Having analyzed the requirements of Rule 23(a), the next issue is whether - 16 - UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3938 Page 17 of 63 1 Plaintiffs have shown that at least one of the requirements of Rule 23(b) is met. 2 Amchem Products, Inc. v. Windsor, 521 U.S. 591, 614-15 (1997). Under Rule 3 23(b)(2), class certification may be appropriate where the defendant “has acted or 4 refused to act on grounds that apply generally to the class, so that final injunctive 5 relief or corresponding declaratory relief is appropriate respecting the class as a 6 whole.” Parsons, 754 F.3d at 674. “That inquiry does not require an examination 7 of the viability or bases of the class members’ claims for relief, does not require 8 that the issues common to the class satisfy a Rule 23(b)(3)-like predominance test, 9 and does not require a finding that all members of the class have suffered identical 10 injuries.” Id. at 688. 11 Thus, “Rule 23(b)(2)‘s requirement that a defendant have acted consistently 12 towards the class is plainly more permissive than 23(b)(3)’s requirement that 13 questions common to the class predominate over individual issues.” Pecover v. 14 Elec. Arts Inc,, 2010 U.S. Dist. LEXIS 140632, at *40 (N.D. Cal. Dec. 21, 2010). 15 It is “‘almost automatically satisfied in actions primarily seeking injunctive relief.’” 16 Gray v. Golden Gate Nat’l Rec. Area, 279 F.R.D. 501, 520 (N.D. Cal. 2011) 17 (quoting Baby Neal for and by Kanter v. Casey, 43 F.3d 48, 58 (3rd Cir. 1994)). 18 Moreover, it is settled that “[e]ven if some class members have not been injured by 19 the challenged practice, a class may nevertheless be appropriate” under 23(b)(2). 20 Walters, 145 F.3d at 1047. 21 Rule 23(b)(2) is met here for the proposed classes. Both the M.M.M. 22 plaintiffs and the Ms. L and Dora plaintiffs have sought relief from Defendants’ 23 policies that resulted in family separation, which were applied to the classes as a 24 whole, and which they contend denied plaintiffs and class members with a 25 reasonable opportunity to pursue asylum or other protection from removal prior to 26 removal. Defendants thus acted on grounds that “apply generally to the class.” 27 Through litigation in M.M.M. and Ms. L/Dora, Plaintiffs sought to enjoin the 28 government from further unlawful interference with Plaintiffs’ and the absent class - 17 - UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3939 Page 18 of 63 1 members right to meaningfully pursue asylum or other protection from removal, 2 and the proposed settlement plan resolves these claims for the class “as a whole” by 3 seeking to restore each class member to a position that reasonably approximates the 4 position each class member would have occupied but for the Defendants’ conduct. 5 6 c. The Proposed Settlement Falls Within the Range of Possible Approval 7 As explained above, once the Court determines that the proposed classes 8 meet the requirements of Rule 23(a) and Rule 23(b)(2), it must determine whether 9 the proposed settlement warrants consideration by members of the class and full 10 examination by the court at a final approval hearing. 11 Litigation (Fourth) § 13.14 at 173. 12 appropriate if ‘the proposed settlement appears to be the product of serious, 13 informed, non-collusive negotiations, has no obvious deficiencies, does not 14 improperly grant preferential treatment to class representatives or segments of the 15 class, and falls within the range of possible approval.’” Lilly v. Jamba Juice Co., 16 No. 13-cv-02998-JST, 2015 U.S. Dist. LEXIS 34498, at *18 (N.D. Cal. Mar. 18, 17 2015) (citations omitted). In considering whether the settlement falls within the 18 range of possible approval, courts look to “plaintiffs’ expected recovery balanced 19 against the value of the settlement offer,” as well as the “risk and [ ] anticipated 20 expense and complexity of further litigation.” Id. The proposed settlement easily 21 satisfies this requirement. Manual for Complex “Preliminary approval of a settlement is 22 First, the Agreement is the product of hard-fought, non-collusive negotiations 23 between the government and the M.M.M., Dora, and Ms. L plaintiffs. Prior to those 24 negotiations, the M.M.M. plaintiffs had vigorously litigated a motion for TRO in 25 two different jurisdictions (D.D.C. and S.D. Cal.) and a motion for preliminary 26 injunction in one (D.D.C.). The parties engaged in significant briefing on the 27 merits, including the issue of jurisdiction, with the government hotly contesting the 28 court’s jurisdiction to hear the M.M.M. plaintiffs’ claims or award the requested - 18 - UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3940 Page 19 of 63 1 relief. This litigation, and the views expressed by this Court and Judge Friedman, 2 informed those arm’s-length negotiations. 3 Moreover, when considering a proposed settlement, “the value of the 4 assessment of able counsel negotiating at arm’s length cannot be gainsaid.” Reed v. 5 Gen. Motors Corp., 703 F.2d 170, 175 (5th Cir. 1983). Here, counsel for all parties 6 are well versed in class actions and immigration law and are fully capable of 7 weighing the facts, law, and risks of continued litigation. Thus, “experienced 8 counsel on both sides, each with a comprehensive understanding of the strengths 9 and weaknesses of each party’s respective claims and defenses, negotiated this 10 settlement over an extended period of time.” Tableware, 484 F. Supp. 2d at 1080. 11 No evidence suggests the proposed settlement is collusive and, indeed, the 12 extensive negotiation process would disprove any such claim. 13 Additionally, the “substantive fairness and adequacy of the settlement 14 confirms this view of the fair procedures used to reach the settlement.” Tableware, 15 484 F. Supp. 2d at 1080. 16 meaningful procedures for the government to consider any claims of fear of return 17 made by parents and children who were separated. Under the proposed settlement, 18 members of the parent class who are still in the United States and who initially 19 received a negative finding related to their claims of fear will have an opportunity 20 for de novo review of their cases, with the opportunity to present testimony and 21 new evidence and the potential opportunity to pursue asylum or other protection 22 from removal as a family unit. This is significant and meaningful relief compared 23 to what was sought in Ms. L and Dora v. Sessions, 18-cv-1938 (D.D.C. 2018), and 24 what could have been achieved in litigation. Similarly, the proposed settlement 25 ensures that all members of the M.M.M. Class – children who were separated from 26 their parents – will have an opportunity to pursue asylum or other protection from 27 removal with the participation of a parent. This is relief that would not have been 28 achieved but for the M.M.M. litigation. Importantly, the settlement also “protects The proposed settlement would provide fair and - 19 - UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3941 Page 20 of 63 1 the rights of class members by ensuring that class members retain their individual 2 damages claims.” Lilly v. Jamba Juice Co., 2015 U.S. Dist. LEXIS 58451 (N.D. 3 Cal. May 1, 2015). 4 Further litigation would have presented significant risks and burdens to both 5 sides. Defendants have pressed complex jurisdictional and procedural defenses, 6 contested the merits of Plaintiffs’ claims, and heavily disputed whether Plaintiffs’ 7 requested relief is an appropriate remedy for the harms alleged. 8 statements of this Court and Judge Friedman regarding these issues, Plaintiffs 9 would have assumed a degree of risk if they continued litigating these claims. Given the 10 In contrast, the proposed settlement provides significant, meaningful, and 11 certain relief to members of both proposed classes, and does so within a fast time 12 period. The Plaintiff Classes are vulnerable parents and children, many of whom 13 are subject to final removal orders. As a result, the Plaintiff Classes have a powerful 14 interest in obtaining the relief the Agreement affords. In addition, many members of 15 the Plaintiff Classes are currently detained, and have a particular interest in 16 obtaining finality in their removal proceedings and to avoid prolonging their 17 custody. Moreover, the proposed settlement was also a result of a detailed and 18 intensive negotiation process, involving many stakeholders on both sides, and after 19 hard-fought litigation in both the Ms. L and M.M.M. cases. By any measure, it is 20 sufficiently fair to warrant preliminary approval. 21 d. The Proposed Notice Form and Notice Plan is Appropriate 22 The parties have agreed to provide notice to the Settlement Classes through 23 several methods. Unless otherwise indicated, notice will be provided by October 24 12, 2018. 25 First, the parties propose that counsel for Settlement Class members will 26 provide direct notice to the non-detained Settlement Class members who are within 27 the United States by providing them with the attached notice form in English and 28 Spanish and obtaining any waiver as appropriate. Defendants will provide counsel - 20 - UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3942 Page 21 of 63 1 for Settlement Class members with any known contact information for all non- 2 detained Settlement Class members. 8 3 Second, because many of the Settlement Class members are or recently have 4 been represented by counsel in connection with their immigration proceedings, 5 Plaintiffs’ counsel will coordinate the dissemination of the attached notice form and 6 the Agreement via electronic mail to list-serves and other electronic locations where 7 the notice is reasonably likely to be observed by class members’ counsel. Notice 8 will be disseminated within 48 hours of the Court’s preliminary approval of the 9 proposed settlement. The list-serves and other electronic locations include: 10 • The Association of Pro Bono Counsel list-serve.9 11 • The Association of Pro Bono Counsel’s password-protected SalesForce site. 10 12 13 • A private list-serve of organizations and individuals who have been 14 providing legal and other services to individuals affected by family 15 separation. 11 16 Third, Plaintiffs’ counsel will disseminate the attached notice and the 17 Agreement directly to legal services providers (“LSPs”) that subcontract with the 18 Vera Institute of Justice to provide legal services to unaccompanied alien children 19 20 21 22 23 24 25 26 27 28 8 The parties continue to discuss which party will bear the costs of notice and will raise the issue with the Court during the status conference scheduled for October 9, 2018 if they are unable to reach agreement by that time. 9 The Association of Pro Bono Counsel is an organization of over 200 attorneys and practice group managers who administer pro bono practices in over 100 of the world’s largest law firms. The Association includes a network of attorneys who are attempting to make contact with, and provide legal services for, reunified families who have been released and are residing in their geographic area. Plaintiffs’ counsel will disseminate the notice and Agreement to the list-serve. 10 Plaintiffs’ counsel will post the notice and Agreement to the password protected SalesForce site. 11 Manoj Govindaiah, Director of Family Detention at RAICES, will disseminate the notice and Agreement to the private list-serve. RAICES is a nonprofit organization that provides legal services to immigrant families in Texas, including families detained at the family residential center in Karnes, Texas. - 21 - UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3943 Page 22 of 63 1 and detained adults and children.12 Notice will be disseminated within 48 hours of 2 the Court’s preliminary approval of the proposed settlement. The 35 LSPs that 3 subcontract with the Vera Institute of Justice are: 4 • Al Justice 5 • Ayuda 6 • Cabrini 7 • CAIR Coalition 8 • Central American Resource Center (CARECEN) 9 • Casa Cornelia Law Center 10 • Catholic Charities, Archdiocese of New Orleans (CCANO) 11 • Catholic Charities of Baltimore (Esperanza Center) 12 • Catholic Charities Community Services New York (CCCS-NY) 13 • Catholic Charities, Archdiocese of Washington (CCDC) 14 • Charlotte Immigration Law Firm (CILF) 15 • Catholic Legal Services, Archdiocese of Miami (CLS Miami) 16 • Connecticut Legal Services (CTLS) 17 • Diocesan Migrant & Refugee Services, Inc. (DMRS) 18 • Erie County Bar Association, Volunteer Lawyers Project (ECBA- 19 VLP) 20 • Florence Immigrant and Refugee Rights Project (FIRRP) 21 • Hebrew Immigrant Aid Society Pennsylvania (HIAS PA) 22 • Human Rights Initiative (HRI) 23 • Hogar (Catholic Charities, Diocese of Arlington) 24 • Immigrant Legal Advocacy Project (ILAP) 25 • Immigration Counseling Services 26 27 28 12 Notice to these legal services providers will be disseminated by Plaintiffs’ counsel via electronic mail. The Vera Institute of Justice has provided at least one point of contact at each LSP. - 22 - UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3944 Page 23 of 63 1 • Immigrant Defenders Law Center (IDLC/ImmDef) 2 • Jewish Family and Community Services of Pittsburgh (JFCSP) 3 • Kids in Need of Defense (KIND) 4 • Latino Memphis 5 • Legal Services for Children (LSC) 6 • Legal Services of New Jersey (LSNJ) 7 • Mid-South Immigration Advocates Memphis (MIA Memphis) 8 • Michigan Immigrant Rights Center (MIRC) 9 • National Immigrant Justice Center (NIJC) 10 • ProBAR 11 • Public Counsel 12 • Refugee and Immigrant Center for Education and Legal Services 13 (RAICES) • YMCA International 14 15 Fourth, Plaintiffs’ counsel will disseminate the attached notice and 16 Agreement to a list of over 100 legal services organizations that provide direct 17 representation to aliens in connection with immigration proceedings, a subset of 18 which previously identified themselves as having capacity to represent reunited 19 families who have been released. 13 See Ex. 73. The list of organizations was 20 compiled in part by the Vera Institute of Justice, Kids in Need of Defense (KIND), 21 and the American Bar Association, and in part by Plaintiffs’ counsel. Notice will 22 be disseminated within 48 hours of the Court’s preliminary approval of the 23 proposed settlement. There is some overlap between this list of organizations and 24 the 35 LSPs listed above, though it is uncertain how many of these organizations 25 have actually undertaken representation of any reunified families. 26 27 28 13 Notice to these organizations will be disseminated by Plaintiffs’ counsel via electronic mail. - 23 - UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3945 Page 24 of 63 1 Fifth, organizations working at the family residential centers at Karnes and 2 Dilley, Texas where reunified families are detained will hand deliver notices to 3 Settlement Class members in English or Spanish. 14 Notices can be delivered to 4 Settlement Class members within 48 hours of preliminary approval of this 5 agreement. Defendants will provide Plaintiffs with a list of all Settlement Class 6 members who are currently detained in Karnes and Dilley in order to effectuate this 7 notice. 8 The parties have engaged in extensive outreach to interested persons and 9 organizations as part of the process of reaching the Agreement, and have had ample 10 communication with these interested persons and organizations since the 11 Agreement was reached. The proposed notice plan easily satisfies the Advisory 12 Committee’s standards for effecting class notice under Rule 23(b)(2) of the Federal 13 Rules of Civil Procedure. 15 Moreover, the content of the proposed notice form is 14 appropriate. The form explains the basis of the lawsuits, the contours of the 15 Settlement Classes, the relief to which Settlement Class members are entitled, the 16 rights of Settlement Class members (including the right to object), and the date for 17 submitting such objections and for the fairness hearing. See, e.g., Stott v. Capital 18 Fin. Servs., Inc., 277 F.R.D. 316, 342 (N.D. Tex. 2011) (notice was appropriate 19 under Rule 23(c)(2)(A) where, as here, it “clearly provided the nature of the action, 20 the definition of the Settlement Class, the terms of the settlement, the class 21 22 23 24 25 26 27 28 14 The organization that works at Karnes is RAICES. The organization that works at Dilley is the CARA Family Detention Pro Bono Project. Representatives from both organizations have committed to carrying out this portion of the notice plan. 15 “When the court does direct certification notice in a (b)(1) or (b)(2) class action, the discretion and flexibility established by subdivision (c)(2)(A) extend to the method of giving notice. Notice facilitates the opportunity to participate. Notice calculated to reach a significant number of class members often will protect the interests of all. Informal methods may prove effective. A simple posting in a place visited by many class members, directing attention to a source of more detailed information, may suffice. The court should consider the costs of notice in relation to the probable reach of inexpensive methods.” Fed. R. Civ. P. 23(c)(2) (2003 Advisory Committee Notes). - 24 - UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3946 Page 25 of 63 1 members’ options, including the fact that they could not exclude themselves, the 2 claims, defenses, and the procedures surrounding the settlement;” “Class members 3 were further provided with the date of the fairness hearing and were given the 4 opportunity to object to the settlement, which was described in clear terms;” and 5 “[t]he scope of the class and effect of the Court’s potential approval of the 6 settlement were clearly explained to the recipients of the notice”). 7 V. CONCLUSION 8 For the foregoing reasons, Plaintiffs respectfully request that the Court enter 9 the attached proposed order preliminarily approving the Agreement, preliminarily 10 certifying the proposed Settlement Classes, and approving the proposed notice form 11 and notice plan. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 25 - UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3947 Page 26 of 63 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 October 5, 2018 Respectfully Submitted, /s/ Lee Gelernt Lee Gelernt Judy Rabinovitz Anand Balakrishnan Stephen Kang Spencer Amdur Daniel Galindo AMERICAN CIVIL UNION FOUNDATION 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 skang@aclu.org samdur@aclu.org dgalindo@aclu.org LIBERTIES Proposed Class Counsel For Removed Parents Michael Maddigan (Cal. Bar No. 163450) 1999 Avenue of the Stars, Suite 1400 Los Angeles, CA 90067 Telephone: (310) 785-4727 Facsimile: (310) 785-4601 michael.maddigan@hoganlovells.com Justin W. Bernick* Zachary W. Best* T. Clark Weymouth* 555 Thirteenth Street, NW Washington, DC 20004 Telephone: (202) 637-5600 Facsimile: (202) 637-5910 justin.bernick@hoganlovells.com t.weymouth@hoganlovells.com zachary.best@hoganlovells.com 27 Oliver J. Armas* Ira M. Feinberg (Cal. Bar No. 064066) 875 Third Avenue New York, NY 10022 Telephone: (212) 918-3000 Facsimile: (212) 918-3100 oliver.armas@hoganlovells.com ira.feinberg@hoganlovells.com 28 Katherine A. Nelson* 24 25 26 - 26 - UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3948 Page 27 of 63 1 2 3 4 1601 Wewatta Street, Suite 900 Denver, CO 80202 Telephone: (303) 899-7300 Facsimile: (303) 899-7333 katherine.nelson@hoganlovells.com 7 Haley K. Costello Essig* Park Place II, Ninth Floor 7930 Jones Branch Drive McLean, VA 22102-3302 Telephone: (703) 610-6100 Facsimile: (703) 610-6200 haley.essig@hoganlovells.com 8 *Admitted pro hac vice 9 Proposed Class Counsel for Child Class 5 6 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Aaron M. Olsen Haeggquist and 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@evershedssutherland.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@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 - 27 - UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3949 Page 28 of 63 1 2 3 4 5 6 7 8 Simon Y. Sandoval-Moshenberg** 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 ** Pro hac vice admission applications forthcoming Proposed Class Counsel for Parent Class 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 28 - UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3950 Page 29 of 63 1 CERTIFICATE OF SERVICE 2 3 I hereby certify that I filed the foregoing UNOPPOSED MOTION FOR 4 CLASS CERTIFICATION AND PRELIMINARY APPROVAL OF CLASS 5 SETTLEMENT, with the Clerk of the Court through the ECF system on October 5 6 2018. This system provided a copy to and effected service of this document on all 7 parties. 8 Dated: 9 October 5, 2018 ACLU IMMIGRANTS’ RIGHTS PROJECT 10 11 By: 12 /s/ Lee Gelernt Lee Gelernt Attorney for Plaintiffs 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 29 - UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3951 Page 30 of 63 1 Ms. L. et al., v. U.S. Immigration and Customs Enforcement, et al. 2 3 4 EXHIBITS TO UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT; PRELIMINARY CERTIFICATION OF SETTLEMENT CLASSES; AND APPROVAL OF CLASS NOTICE 5 TABLE OF CONTENTS 6 7 8 EXHIBIT 9 68 DOCUMENT Final Agreement 10 69 Declaration of Wilson G. Barmeyer 39-42 11 70 Declaration of Sirine Shebaya 43-47 12 71 Declaration of Simon Y. Sandoval-Moshenberg 48-52 13 72 Declaration of Justin W. Bernick 53-59 14 73 Organization List 60-63 PAGES 31-38 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 30 - UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3952 Page 31 of 63 EXHIBIT 68 Exhibit 68, Page 31 Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3953 Page 32 of 63 Plan to address the asylum claims of class-member parents and children who are physically present in the United States The government is willing to agree to the following procedures for addressing the asylum claims of M.M.M. agreed class members and the claims of Ms. L class members (and Dora plaintiffs), other than those class members who agree to waive these procedures (and thus to waive any further claims or relief).1 (In this document, references to Ms. L class members encompass Dora plaintiffs.) Class counsel are responsible for determining a class member’s intentions related to waiver of the procedures set forth below. Upon approval of this agreed-upon plan by the U.S. District Court for the Southern District of California, M.M.M. agreed class members agree to dismiss their pending litigation in the U.S. District Court for the District of Columbia, and to refrain from seeking preliminary injunctive relief in their litigation pending in the U.S. District Court for the Southern District of California; Dora plaintiffs agree to dismiss their pending litigation in the U.S. District Court for the District of Columbia; and M.M.M. agreed class members and Ms. L class members agree to refrain from additional litigation seeking immigration- or asylum-related injunctive, declaratory, or equitable relief that arises from the facts and circumstances set forth in the Ms. L, M.M.M., and Dora complaints relating to those parents and children covered by this plan, including statutory claims. This plan applies only to Ms. L class members and M.M.M. agreed class members who have been continuously physically present in the United States since June 26, 2018, and does not set any precedent for any additional group of aliens, and any exercise of legal authority or discretion taken pursuant to this plan is exercised only to effectuate the implementation of this plan in relation to this group of individuals. The Court’s approval of this agreement will resolve the pending preliminaryinjunction motion in M.M.M. and will also lift the TRO issued in that matter. The Court will retain jurisdiction to enforce the provisions of this plan, which represents the substantive terms for the implementation of a settlement agreement and supersedes the prior written or oral communications between the parties regarding this plan. 1 The classes of individuals to whom this plan relates include: Ms. L Class Members and Dora Plaintiffs: All adult alien parents who entered the United States at or between designated ports of entry with their child(ren), and who, on or before the effective date of this agreement: (1) were detained in immigration custody by the DHS; (2) have a child who was or is separated from them by DHS and, on or after June 26, 2018, was housed in ORR custody, ORR foster care, or DHS custody, absent a determination that the parent is unfit or presents a danger to the child; and (3) have been (and whose child(ren) have been) continuously physically present within the United States since June 26, 2018, whether in detention or released. The class does not include alien parents with criminal histories or a communicable disease, or those encountered in the interior of the United States. M.M.M. Agreed Class Members: All alien children who are under the age of 18 on the effective date of this agreement who: (1) entered the United States at or between designated ports of entry with an alien parent, and who were separated from their parents, on or before the effective date of this settlement agreement; (2) have been or will be reunified with that parent pursuant to the preliminary injunction issued by the Court in Ms. L v. U.S. Immigration and Customs Enforcement, No. 18-428 (S.D. Cal. June 26, 2018); and (3) have been continuously physically present in the United States since June 26, 2018. All references to a “class” or “class member” in this document refer to the classes described above, as well as alien parents who are not part of the Ms. L class due to criminal history or communicable disease, but who the Court has ordered must be reunified. 1 Exhibit 68, Page 32 Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3954 Page 33 of 63 1. a. Ms. L class members and M.M.M. agreed class members who are not currently detained in DHS custody (and are not currently in HHS custody) and who have been issued Notices to Appear (NTAs) will not be removed by DHS prior to issuance of a final removal order in their resulting removal proceedings conducted under Section 240 of the Immigration and Nationality Act (INA). If a Ms. L class member or M.M.M. agreed class member was released from DHS or ORR custody, is not currently in Section 240 removal proceedings, and is not subject to a final removal order, that individual can affirmatively apply for asylum before U.S. Citizenship and Immigration Services (USCIS), USCIS will adjudicate such an application regardless of whether an unfiled NTA exists, and USCIS will follow its established procedures concerning a parent’s involvement in his or her minor child’s asylum application process. If an M.M.M. agreed class member (whether currently detained or released) received a final removal order in Section 240 removal proceedings prior to reunification, DHS and HHS will work in good faith with M.M.M. counsel to identify such children within 15 days of approval of this agreement, and DHS will join in a motion to reopen those proceedings if requested by the M.M.M. agreed class member no later than 45 days from approval of this agreement. M.M.M. agreed class members who have not been reunified with their parent(s) as of the effective date of this agreement will be afforded existing procedures for unaccompanied alien children pursuant to governing statutes and regulations, including but not limited to Section 240 removal proceedings, unless and until they are reunified with a parent, in which case the procedures described below will apply. b. If a detained, reunited M.M.M. agreed class member child has been served with an NTA, but the NTA has not been filed with an immigration court, DHS will exercise its discretion under 8 C.F.R. § 239.2(a) to cancel the NTA within 15 days of the Court’s approval of this agreement. For such a child who either had an NTA cancelled in this way, or who has never been served with an NTA, if the child is an arriving alien or was initially encountered by DHS within 14 days of entry and 100 miles of the border, ICE will then initiate expedited removal (ER) proceedings under Section 235 of the INA against the child. Where such a class member child asserts, or has already asserted, an intention to apply for asylum or a fear of persecution or torture, either directly or through counsel, they shall be referred to USCIS for a credible fear determination. c. If a detained, reunited M.M.M. agreed class member child has been issued an NTA that has been filed with an immigration court and the child is an arriving alien or was initially encountered by DHS within 14 days of entry and 100 miles of the border, DHS will file a motion to dismiss the pending Section 240 proceeding, seeking to do so jointly with the child’s immigration attorney of record, as practicable. Such a motion shall be filed within 30 days of the Court’s approval of this agreement and shall request expedited consideration by the immigration court. Upon dismissal of the Section 240 proceeding, ICE will initiate expedited removal proceedings under Section 235 of the INA against the child. Where such a class member child asserts, or has already asserted, an intention to apply for asylum or a fear of persecution or torture, either directly or through counsel, they shall be referred to USCIS for a credible fear determination. d. For Ms. L class members who have not been issued an NTA and have final ER orders that have not been cancelled by DHS, USCIS will exercise its discretionary authority to sua sponte conduct in good faith a de novo review of the credible fear finding of the parent to 2 Exhibit 68, Page 33 Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3955 Page 34 of 63 determine if reconsideration of the negative determination is warranted. During that review process for Ms. L class members, USCIS will review the parent’s case and the information provided and determine whether the individual has a credible fear of persecution or torture. For the limited purpose of this settlement agreement, USCIS will speak with the individual again for additional fact-gathering and the individual may present new or additional information at this time, with the assistance of the individual’s counsel in-person unless ICE determines in good faith that in-person participation would adversely impact facility security or operations due to facility staffing, configuration, or access policies, in which case counsel will be permitted to participate telephonically, provided that counsel’s attendance is at no expense to the government and does not unreasonably delay the process. In determining whether any factual inconsistencies between the original interview and the subsequent fact-gathering impact the credibility of the parent, due consideration will be given to the psychological state of the parent at the time of the initial interview. If the parent establishes that he or she can meet the credible fear standard, as it is described at Section 235(b)(1)(B)(v) of the INA and 8 C.F.R. § 208.30(e)(2) and (3), then DHS will issue and subsequently file an NTA. The children will be treated as the parent’s dependents under 8 C.F.R. § 208.30(b). If the parent’s credible fear determination remains negative, USCIS will screen the child individually for credible fear. The parent will be permitted to participate in the child(ren)’s credible fear interview and provide testimony on behalf of the child(ren), in addition to any testimony from the child(ren). Counsel for the child will be permitted to attend the interview in person unless ICE determines in good faith that in-person participation would adversely impact facility security or operations due to facility staffing, configuration, or access policies, in which case counsel will be permitted to participate telephonically, so long as it does not unreasonably delay the process and any attorney assistance is at no expense to the government. e. For Ms. L class members who are currently detained 2 with their M.M.M. agreed class member child(ren) at an ICE FRC and are subject to reinstated orders of removal, ICE will initiate ER proceedings under Section 235 against the minor child(ren), upon a determination that the child was initially encountered within 14 days of entry and 100 miles of the border. During those proceedings, the child(ren) will be referred for a credible fear determination if the child(ren) asserts, or has already asserted, a fear of return, either directly or through counsel. The credible fear claim will then be considered under the standards of 8 C.F.R. § 208.30, as described above. USCIS will conduct the credible fear interview of the child(ren) in coordination with a sua sponte review of the reasonable fear determination for the parents to determine whether reconsideration of the negative reasonable fear determination is warranted. USCIS will review the parent’s case and the information provided and determine whether the individual has a reasonable fear of persecution or torture. For the limited purpose of this settlement agreement, USCIS will speak with the individual again for additional factgathering and the individual may present new or additional information at this time, with the assistance of the individual’s counsel in-person unless ICE determines in good faith 2 This agreement does not impact the ability of Ms. L class members with reinstated orders of removal who are not detained to pursue any available appeal of such an order under existing law and subject to statutory time periods. 3 Exhibit 68, Page 34 Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3956 Page 35 of 63 that in-person participation is impracticable or would adversely impact facility security or operations due to facility staffing, configuration, or access policies, in which case counsel will be permitted to participate telephonically, provided that counsel’s attendance is at no expense to the government and does not unreasonably delay the process. In determining whether any factual inconsistencies between the original interview and the subsequent fact-gathering impact the credibility of the parent, due consideration will be given to the psychological state of the parent at the time of the initial interview. If the parent establishes that he or she can meet the reasonable fear standard, as it is described at 8 C.F.R. § 208.31(c), then DHS will place the parent in withholding-only proceedings. The parent will be permitted to participate in the child(ren)’s credible fear interview and provide testimony on behalf of the child(ren), in addition to any testimony from the child(ren). Counsel for the child will be permitted to attend the interview in person unless ICE determines in good faith that in-person participation is impracticable or would adversely impact facility security or operations due to facility staffing, configuration, or access, in which case counsel will be permitted to participate telephonically, so long as it does not unreasonably delay the process and any attorney assistance is at no expense to the government. f. If the parent’s credible fear or reasonable fear finding remains negative upon review, USCIS will notify the parent in writing that USCIS declines to reconsider the existing negative credible fear or reasonable fear determination. If the child receives a separate negative credible fear determination, the child may seek review by an immigration judge. g. For purposes of the reviews and interviews of detained parents and/or children described in this proposal, the government shall provide the parent and/or child with the orientation that is normally provided for credible fear interviews, and shall provide at least 5 days’ notice of such orientation. Notice of the orientation shall be provided no later than 3 days following the parent and/or child’s execution of a document reflecting his or her decision pursuant to paragraph 8 of this agreement, and the notice shall state the purpose of the notice (orientation for an interview or review) and the date, time, and location of the orientation. Such reviews and interviews will be conducted at least 48 hours after the orientation, with due consideration given to any reasonable requests to continue the interview. The notice and time periods described in this paragraph will not apply if a parent affirmatively requests, in writing, that the review or interview take place on an expedited basis. 2. In the case of a parent and child(ren) both in ER proceedings under the process described above, if either the parent or the child establishes a credible fear of persecution or torture, USCIS will issue NTAs to both parent and child and place the family in Section 240 removal proceedings. See 8 C.F.R. §§ 208.30(f) (positive credible fear finding made by USCIS), 1208.30(g)(2)(iv)(B) (positive credible fear finding made by immigration judge). 3. In the case of a parent and child(ren) both in ER proceedings under the process described above, if none of the family members establish credible fear of persecution or torture (and in the case of a child who seeks review of the credible fear finding by an immigration judge, such finding is upheld by an immigration judge), the ER orders may immediately be executed. 4 Exhibit 68, Page 35 Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3957 Page 36 of 63 4. In the case of a parent who is subject to a reinstated order of removal, if the child(ren) establishes credible fear and the parent does not establish a reasonable fear, the child(ren) would be placed in Section 240 removal proceedings and the parent would at that time be subject to continued detention or release, in DHS’s discretion, consistent with paragraph 7 below. DHS will not remove a Ms. L class member who received a negative reasonable fear finding while his or her M.M.M. agreed class member child goes through the credible fear process and, if applicable, Section 240 removal proceedings. Plaintiffs concede, however, that removal of any Ms. L class member with a reinstated removal order under this agreement is significantly likely to occur in the reasonably foreseeable future and that, if a parent initiates legal proceedings challenging their continued detention, DHS may immediately proceed with that Ms. L class member’s removal, regardless of any injunctive orders issued in Ms. L and M.M.M., provided that DHS gives the parent at least 7 days’ advance notice to the parent that he or she will be removed. 5. In the case of a parent who is subject to a reinstated order of removal, if the child(ren) establish credible fear and the parent establishes a reasonable fear, the child(ren) would be issued NTAs and placed in Section 240 removal proceedings, and the parent would be referred for withholding-only proceedings pursuant to 8 C.F.R. §§ 1208.2(c)(2) and 1208.31(e). 6. If a Ms. L. class member who is currently detained3 in an ICE FRC with his or her M.M.M. agreed class member child is subject to a final removal order issued in proceedings conducted under Section 240 (other than a reinstated order) and the child is an arriving alien or was initially encountered by DHS within 14 days of entry and 100 miles of the border, ICE would initiate ER proceedings under Section 235 against the child within 7 days of the Court’s approval of this agreement, and refer the child for a credible fear interview. While the final order parent would not be a party to the child’s credible fear adjudication, the parent would be available to consult with and assist the child in the course of that process. The parent would be permitted to participate in the child(ren)’s credible fear interview and provide testimony on behalf of the child(ren), in addition to any testimony from the child(ren). Counsel for the child will be permitted to attend the interview in person, so long as it does not unreasonably delay the process and any attorney assistance is at no expense to the government, and the timing of the interview will be in accordance with Paragraph 1.g. above. If the child establishes a credible fear of persecution or torture, USCIS will place the child in Section 240 removal proceedings, and ICE will move for reopening of the parent’s prior removal proceedings and consolidation of the parent’s case with the child’s before the immigration court. If the child does not establish credible fear of persecution or torture, the removal orders may immediately be executed. 7. Detention and custody decisions for aliens covered by this plan will be made consistent with DHS’s authorities under Sections 235, 236, and 241, and the Order Granting Joint Motion Regarding Scope Of The Court’s Preliminary Injunction in Ms. L. v. ICE, No. 18428 (S.D. Cal.) (Aug. 16, 2018) (ECF 192) (recognizing that class members may be 3 This agreement does not impact the ability of Ms. L class members with final removal orders issued in Section 240 removal proceedings, other than a reinstated order of removal, and who are not detained, to pursue individual appeals of such orders under existing law and subject to statutory time periods for challenging any such order. 5 Exhibit 68, Page 36 Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3958 Page 37 of 63 required to choose whether to waive their own right not to be separated from their minor child(ren) or to waive their child(ren)’s right under the Flores Settlement Agreement to be released, including the rights with regard to placement in the least restrictive setting appropriate to the minor’s age and special needs, and the right to release or placement in a “licensed program.”). 8. Ms. L counsel, M.M.M. counsel, or Dora counsel may identify class members who wish to waive the procedures described herein and be promptly removed to their country of origin. Ms. L counsel, M.M.M. counsel, and Dora counsel will promptly develop a process for obtaining and documenting such a choice through a knowing and voluntary waiver. Defendants will not engage with class members on such matters, but will seek to effectuate such waiver decisions when communicated and documented by Ms. L counsel, M.M.M. counsel, or Dora counsel. Class members may either pursue the relief described in this agreement or elect prompt removal, but may not pursue any other immigration- or asylum-related injunctive, declaratory, or equitable relief based on the allegations or claims made in any of the Ms. L, M.M.M., or Dora complaints filed in any court accruing as of the date this plan is approved by the Court, including statutory claims. This agreement does not affect the right of Ms. L class members to seek reunification under the June 26, 2018 preliminary injunction in Ms. L. The return of removed parents to the United States4 The government does not intend to, nor does it agree to, return any removed parent to the United States or to facilitate any return of such removed parents. The classes agree not to pursue any right or claim of removed parents to return to the United States other than as specifically set forth in this paragraph. Plaintiffs’ counsel may raise with the government individual cases in which plaintiffs’ counsel believes the return of a particular removed Ms. L class member may be warranted. Plaintiffs’ counsel represent that they believe that such individual cases will be rare and unusual and that they have no basis for believing that such individual cases will be other than rare and unusual. Plaintiffs’ counsel agree to present any such cases, including all evidence they would like considered by the government within 30 days of the approval of this agreement. In light of plaintiffs’ counsel’s representation that such cases will be rare and unusual, Defendants agree to provide a reply to any case presented by Plaintiffs within 30 days of receiving Plaintiffs’ request to consider the case. Except as specifically set forth herein, the classes agree that existing law, existing procedures, and the Court-approved reunification plan address all interests that such parents or their children may have. With respect to M.M.M. agreed class members who seek asylum and who have removed parents, the government agrees not to oppose requests that the removed parent provide testimony or evidence telephonically or in writing in the child’s asylum or removal proceedings and that ICE attorneys appearing in immigration court (1) will not object to the admission of documentary evidence (such as photocopied, scanned, or faxed documents) provided by the removed parent on 4 For this section of this agreement, the classes are the same as in footnote 1 above except that the requirements of continuous physical presence in the United States do not apply to this section of the agreement, since this section addresses removed parents. 6 Exhibit 68, Page 37 Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3959 Page 38 of 63 the grounds that such documentary evidence does not bear an original signature or is not an original copy (ICE reserves the right to object based on other grounds), and (2) will not object to telephonic participation by the parent in the M.M.M. agreed class member’s Section 240 removal proceedings provided that the alien (and his or her legal representative, if applicable) make appropriate motions to the immigration judge to permit telephonic testimony in advance of any merits hearing, that the alien is responsible for providing accurate contact information to permit the immigration judge to make contact with the parent, and that the parent’s unavailability and faulty connections or other technological impediments may not serve as the basis for delaying scheduled hearings. Class members, however, recognize that ICE has no control over the technology or logistics of the Executive Office for Immigration Review. 7 Exhibit 68, Page 38 Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3960 Page 39 of 63 EXHIBIT 69 Exhibit 69, Page 39 Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3961 Page 40 of 63 Exhibit 69, Page 40 Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3962 Page 41 of 63 Exhibit 69, Page 41 Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3963 Page 42 of 63 Exhibit 69, Page 42 Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3964 Page 43 of 63 Exhibit 69, Page 43 Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3965 Page 44 of 63 EXHIBIT 70 Exhibit 70, Page 44 Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3966 Page 45 of 63 Exhibit 70, Page 45 Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3967 Page 46 of 63 Exhibit 70, Page 46 Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3968 Page 47 of 63 Exhibit 70, Page 47 Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3969 Page 48 of 63 EXHIBIT 71 Exhibit 71, Page 48 Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3970 Page 49 of 63 Exhibit 71, Page 49 Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3971 Page 50 of 63 Exhibit 71, Page 50 Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3972 Page 51 of 63 Exhibit 71, Page 51 Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3973 Page 52 of 63 Exhibit 71, Page 52 Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3974 Page 53 of 63 EXHIBIT 72 Exhibit 72, Page 53 Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3975 Page 54 of 63 1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 SAN DIEGO DIVISION 4 5 6 M.M.M., on behalf of his minor child, J.M.A., et al., 7 8 9 10 11 Plaintiffs, v. Jefferson Beauregard Sessions, III, Attorney General of the United States, et al., Defendant. 12 13 14 Case No. 3:18-cv-428-DMS Ms. L, et al., 15 Plaintiffs, 16 v. 17 U.S. Immigration and Customs Enforcement, et al., 18 Case No. 3:18-cv-1832-DMS Defendants. 19 DECLARATION OF JUSTIN W. BERNICK IN SUPPORT OF PLAINTIFFS’ UNOPPOSED MOTION FOR PRELIMINARY APPROVAL; PRELIMINARY CERTIFICATION OF SETTLEMENT CLASSES; AND APPROVAL OF CLASS NOTICE 20 21 22 I, Justin W. Bernick, hereby state as follows: 1. I am a Partner at the international law firm Hogan Lovells LLP. I have 23 personal knowledge of the matters set forth in this declaration and, if called to 24 testify to them, would be competent to do so. 25 26 27 28 2. I am one of several attorneys at Hogan Lovells who represent the six named plaintiffs (“M.M.M. Plaintiffs”) in the above-captioned case (“M.M.M.”). I, along with my colleagues Zachary Best, T. Weymouth, and Ira Feinberg, have led the litigation of M.M.M. before and after the case was filed. Exhibit 72, Page 54 Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3976 Page 55 of 63 1 3. The Hogan Lovells team filed and has been litigating M.M.M. in close 2 consultation with immigration attorneys who specialize in the representation of 3 noncitizen children and families, including Manoj Govindaiah and Shalyn Fluharty. 4 4. Mr. Govindaiah is Director of Family Detention Services at the 5 Refugee and Immigrant Center for Education and Legal Services (RAICES), and he 6 oversees RAICES’ representation of noncitizen families at Texas family detention 7 centers. RAICES is one of 35 legal services providers that subcontracts with the 8 Vera Institute of Justice and the federal government to provide legal services to 9 noncitizens in connection with their immigration proceedings. 10 5. Ms. Fluharty is the Managing Attorney of the Dilley Pro Bono Project, 11 where she provides legal services to families who are detained in Dilley, Texas in 12 collaboration with a national volunteer network and seven full-time staff. Together, 13 Mr. Govindaiah and Ms. Fluharty have represented thousands of asylum-seeking 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 families in credible fear and other immigration proceedings. 6. The Hogan Lovells team, and Hogan Lovells more broadly, have extensive experience litigating class actions in federal court. For example, Hogan Lovells was named Law360’s Class Action Group of the Year, 2018. Attorneys on the Hogan Lovells team or other attorneys at the firm have litigated (or are currently litigating) the following class action cases in federal court, on both the plaintiff and defense sides: In re Blue Cross Blue Shield Antitrust Litigation, No. 2:13-cv-2000 (N.D. Ala.) (one of the largest antitrust class action MDLs in history); Moore, et al. v. Johnson, No. 1:00-cv-953 (D.D.C.) (Hogan Lovells served as colead counsel for the plaintiff settlement class of Secret Service agents); Castelano v. Clinton, 7:08-cv-57 (S.D. Tex.) (Hogan Lovells served as co-lead counsel for the plaintiff settlement class of passport applicants); Garnett v. Zeilinger, No. 17-cv1757 (D.D.C.) (Hogan Lovells represents class of government benefit recipients); In re Anthem, Inc. Data Breach Litigation, No. 5:15-md-2617 (N.D. Cal.) (class action settlement resolving over 120 class action cases); George et al. v. CNH -2Exhibit 72, Page 55 Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3977 Page 56 of 63 1 Health & Welfare Benefit Plan et al., No. 2:16-cv-01678 (E.D. Wis.) (class action 2 settlement); St. Gregory Cathedral School, et al. v. LG Electronics, Inc., No. 6:12- 3 cv-739 (E.D. Tex.) (class certification denied); In re WellPoint, Inc. Out-of- 4 Network “UCR” Rates Litigation, No. MDL 09–2074 (C.D. Cal.) (class 5 certification denied in multidistrict litigation); Kamakahi v. Am. Society for 6 Reproductive Medicine, No. 3:11-cv-1781 (N.D. Cal.) (class action settlement); In 7 Re: Epipen (Epinephrine Injection, USP) Marketing, Sales Practices and Antitrust 8 Litigation, 2:17-md-2785 (D. Kan.) (ongoing class action MDL); In Re: Uber 9 Technologies, Inc., Data Security Breach Litigation, No. 2:18-ml-2826 (C.D. Cal.) 10 11 (ongoing class action MDL). 7. In addition to the class action experience described above, lawyers at 12 Hogan Lovells regularly represent noncitizens in immigration proceedings, 13 including unaccompanied minors and families seeking asylum. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8. In light of the foregoing, counsel for the M.M.M. Plaintiffs is competent and well-qualified to serve as class counsel for the proposed class of children. 9. Since filing this action on July 27, 2018, the Hogan Lovells team has vigorously prosecuted the claims of the M.M.M. Plaintiffs and similarly-situated children, at times in two different forums simultaneously. From July 27 to August 17 alone, these efforts to prosecute the claims included: (1) filing a motion for emergency temporary restraining order (“TRO”) and preliminary injunction in conjunction with the original complaint; (2) conducting a hearing on the emergency motion for TRO in D.D.C.; (3) opposing Defendants’ motion to transfer venue to the Southern District of California; (4) filing supplemental briefing on Defendants’ request to transfer venue; (5) filing supplemental briefing in this Court in support of the motion for TRO; (6) arguing the motion for TRO before this Court; (7) filing a motion for expedited discovery in D.D.C. and reviewing the discovery produced; (8) arguing the motion for preliminary injunction in D.D.C.; (9) filing supplemental -3Exhibit 72, Page 56 Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3978 Page 57 of 63 1 briefing regarding a revised proposed preliminary injunction order in D.D.C.; (10) 2 filing a supplemental brief regarding a possible stay in D.D.C.; and (11) attending 3 weekly status conference before this Court. 4 10. On August 16, 2018, this Court granted the M.M.M. Plaintiffs’ motion 5 for a temporary restraining order against Defendants, staying the removal of all 6 putative class members and their parents pending a resolution of their claims on the 7 merits. The Court’s order directed the parties to “meet and confer and propose a 8 solution—one that follows the law, and is equitable and reflective of ordered 9 governance.” 10 11. The Court subsequently held a status conference on August 17, 2018 11 with the parties in M.M.M. and Ms. L v. U.S. Immigration and Customs 12 Enforcement, No. 3:18-cv-428 (S.D. Cal.). During the status conference, the Court 13 discussed its ruling on the M.M.M. Plaintiffs’ motion for TRO and the “Interagency 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plan for Reunification of Separated Minors with Removed Parents” filed in Ms. L (“Interagency Plan”). Following the status conference, the Court entered an order approving the Interagency Plan. The order also set out the specific issues on which it wished the parties – including the plaintiffs in Ms. L – to meet and confer, including: (1) whether removed parents have a right to be reunified with their children in the United States, (2) class certification in M.M.M., and (3) whether the plaintiffs in M.M.M. are entitled to pursue asylum requests under § 235 or § 240. 12. The Court set the meet and confer period at one week, ordering the parties to “propose a briefing schedule” by August 23, 2018, if they were “unable to reach agreement on these issues.” 13. Per the Court’s instructions, counsel for Defendants and counsel for the plaintiffs in Ms. L and M.M.M. met and conferred extensively over the ensuing four weeks – seeking a number of short extensions – to determine whether the parties could negotiate a solution to the claims in M.M.M. and the issues identified in the Court’s August 17 order. During this process the Hogan Lovells team -4Exhibit 72, Page 57 Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3979 Page 58 of 63 1 remained in constant consultation with attorneys who specialize in representing 2 noncitizen families, including Mr. Govindaiah and Ms. Fluharty. 3 14. The negotiations also included counsel for the plaintiffs in Dora v. 4 Sessions, No. 18-cv-1938 (D.D.C.), given the close nexus between the issues in 5 M.M.M. and the issues in Dora. The 29 named plaintiffs in Dora, all parents who 6 had been separated from their children and received negative credible fear 7 determinations while separated, alleged that the separation policy denied them of a 8 meaningful opportunity to apply for asylum. Thus, together, the Ms. L, M.M.M., 9 and Dora cases presented the question of what asylum-related process is due to 10 11 parents and children who were subject to the government’s separation policy. 15. The proposed settlement agreement was the result of hard-fought, 12 arms-length negotiations between the parties. During these negotiations, the Hogan 13 Lovells team represented the interests of the M.M.M. plaintiffs and the proposed 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 class of children, and plaintiffs’ counsel in Ms. L and Dora represented the interests of the proposed class of parents. The substantive provisions of the proposed agreement were the product of repeated exchanges between counsel for the plaintiffs and the government. Agreements were not reached easily, as counsel on both sides vigorously advocated for different terms. 16. I believe it is in the proposed class’s interests to avoid the risks and burden of further litigation of this matter. After considering the benefits that the M.M.M. Plaintiffs and the proposed class will receive under the settlement, and the risks of litigation, I have concluded that the terms and conditions of the proposed settlement are fair, reasonable, and in the best interests of the M.M.M. Plaintiffs and the proposed class. I hereby declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. EXECUTED WITHIN THE UNITED STATES ON: October 5, 2018 -5Exhibit 72, Page 58 Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3980 Page 59 of 63 1 2 3 BY: /s/ Justin W. Bernick 4 Justin W. Bernick 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6Exhibit 72, Page 59 Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3981 Page 60 of 63 EXHIBIT 73 Exhibit 73, Page 60 Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3982 Page 61 of 63 Name of Organization Advocates for Basic Legal Equality, Inc. (ABLE) Al Otro Lado American Gateways American Immigration Council (AIC) American Immigration Lawyers' Association (AILA) Americans for Immigrant Justice (AIJ) Asian Services in Action Inc. Association of Pro Bono Counsel (APBCo) Asylum Seeker Advocacy Project (ASAP) Ayuda Bender's Imm. Bulletin Daily Bronx Legal Services Capital Area Immigrants' Rights Coalition (CAIR Coalition) CARECEN Casa Cornelia Law Center Casa María Catholic Charities Archdiocese of New Orleans Catholic Charities Community Services, Archdiocese of New York ~ Immigrant & Refugee Services Catholic Charities of Baton Rouge Catholic Charities of Dallas Catholic Legal Immigration Network, Inc. (CLINIC) Catholic Legal Services Central West Justice Center Children and Family Justice Center - Northwestern Pritzker School of Law Bluhm Legal Clinic CHIRLA City Bar Justice Center Community Legal Services and Counseling Center Community Legal Services in East Palo Alto Connecticut Legal Services DePaul Legal Clinic Diocesan Migrant & Refugee Services, Inc. Dolores Street Community Services E.L. Nelson, Esq. ECBA Volunteer Lawyers Project, Inc. Esperanza Immigrant Rights Project of Catholic Charities of Los Angeles, Inc. Farmworker Legal Aid Clinic Federal Bar Ass'n, Imm. Law Section Georgia Asylum and Immigration Network (GAIN) HIAS HIAS Pennsylvania Hofstra Youth Advocacy Clinic Human Rights First Immigrant Defenders Law Center Immigrant Justice Clinic UW Madison Exhibit 73, Page 61 Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3983 Page 62 of 63 Immigrant Law Center of Minnesota Immigrant Legal Center (ILC) Jewish Family and Children's Services (JFCS) Justice and Mercy Legal Aid Clinic Justice for Immigrants & Familes Project at the Florence Immigrant & Refugee Rights Project Justice For Our Neighbors Michigan Justice For Our Neighbors Network Justice In Motion Keker, Van Nest & Peters LLP Kids in Need of Defense (KIND) Law Office of Helen Lawrence Law Office of Sheila Starkey Hahn Lawyers' Committee for Civil Rights of the San Francisco Bay Area Legal Aid of North Carolina's Battered Immigrant Project (BIP) Legal Aid Society of Cleveland McCrummen Immigration Law Group Medical Legal Partnership Colorado Michigan Immigrant Rights Center Migrant and Immigrant Community Action (MICA) Project Migrant Center for Human Rights Mobilization for Justice, Inc. Mobilization for Justice, Inc. - Kinship Caregiver Law Project National Council of La Raza (NCLR) National Immigrant Justice Center (NIJC) National Immigration Law Center (NILC) National Immigration Project of the National Lawyers' Guild (NIP) Nebraska Appleseed Nebraska Immigration Legal Assistance Hotline (NILAH) Northwestern Law School Children and Family Justice Center OneJustice ProBAR Public Counsel Refugee and Immigrant Center for Education and Legal Services (RAICES) Richard Frankel Rocky Mountain Immigrant Advocacy Network Santa Fe Dreamers Project Southern Poverty Law Center (SPLC) Southwestern Law School Pro Bono Removal Defense Program St. Francis Community Services/Catholic Legal Assistance Ministry Staten Island Legal Services Tahirih Justice Center Tahirih Justice Center- San Francisco Bay Area Office Tahirih Justice Center, Houston Office Texas Civil Rights Project (TCRP) The Advocates for Human Rights Exhibit 73, Page 62 Case 3:18-cv-00428-DMS-MDD Document 247 Filed 10/05/18 PageID.3984 Page 63 of 63 The Door - A Center of Alternatives, Inc. The Florence Project The Gibson Report The International Institute of Akron The Vera Institute of Justice (Vera) University of Detroit Mercy School of Law University of Texas Law School Immigration Clinic UnLocal, Inc. USC Gould School of Law Immigration Clinic USCRI North Carolina Washington University Immigration Law Clinic Western State College of Law Immigration Clinic Women’s Refugee Commission Exhibit 73, Page 63 Case 3:18-cv-00428-DMS-MDD Document 247-1 Filed 10/05/18 PageID.3985 Page 1 of 5 NOTICE OF PROPOSED SETTLEMENT and SETTLEMENT ELECTION FORM If you were separated from your parent(s) or child(ren) at the border, your rights may be affected by a proposed class action settlement. A proposed settlement has been reached in class action lawsuits regarding the mechanism by which certain separated parents and children may pursue asylum or other protection in the United States. The lawsuits are M.M.M. v. Sessions, Case No. 3:18-cv-1832-DMS (S.D. Cal.), M.M.M. v. Sessions, Case No. 1:18-cv-1835-PLF (D.D.C.), Ms. L. v. ICE, Case No. 3:18-cv-428-DMS (S.D. Cal.), and Dora v. Sessions, Case No. 18-cv-1938 (D.D.C.). What are these lawsuits about? These lawsuits were brought on behalf of parents and children who were separated after being apprehended by the U.S. government at or near the border. The plaintiffs allege that the U.S. government failed to give these parents and children an adequate opportunity to pursue asylum or other protection from removal in the United States. The Judge overseeing the lawsuits temporarily stopped removals of families that were reunited after being separated at the border. The plaintiffs and the U.S. government subsequently agreed to a settlement, which will grant both parents and children access to procedures to seek asylum or other protection from removal in the United States. Who is included? A parent may be a member of the Parent Settlement Class if he or she: • Is an adult alien parent who entered the United States at or between designated ports of entry with their child(ren), • Was detained in immigration custody by the Department of Homeland Security (DHS), • Has a child who was or is separated from him or her and who was in DHS custody, Office of Refugee Resettlement (ORR) custody, or ORR foster care on or after June 26, 2018, • Was ordered to be reunified under the Court’s Order in Ms. L. v. U.S. Immigration and Customs Enforcement, No. 18-428 (S.D. Cal. June 26, 2018); and • Has been continuously physically present in the United States since June 26, 2018. The agreement also reflects the parties’ agreement with regard to individuals who fit the parent class description as defined above, but have been removed from the United States, as well as the rights of members of the children class (defined below) whose parents have been removed. 1 Case 3:18-cv-00428-DMS-MDD Document 247-1 Filed 10/05/18 PageID.3986 Page 2 of 5 A child may be a member of the Child Settlement Class if he or she: • Is an alien child under the age of 18 as of the effective date of the agreement, who entered the United States at or between designated ports of entry with an alien parent, • Was separated from their parent(s), • Has been or will be reunified with their parent(s) under the preliminary injunction issued in Ms. L. v. U.S. Immigration and Customs Enforcement, No. 18-428 (S.D. Cal. June 26, 2018), and • Has been continuously physically present in the United States since June 26, 2018. What relief does the settlement provide? Among other things, the Settlement Agreement requires that, for parents who initially received a negative credible fear finding and have a final order of expedited removal, the U.S. government will conduct a good faith review of parents’ prior credible fear findings, 1 which includes meeting with an asylum officer to present additional information. For the children of such parents who have been issued a Notice to Appear (NTA) or are in removal proceedings, the NTA will be cancelled or the government will move to dismiss the removal proceedings, and the child will be placed into expedited removal along with the parent. The child will also be referred for a credible fear interview if the child expresses a fear of return. If the parent if found to have a credible fear, then both parents and children will be issued a NTA to appear before an immigration judge, where they will be able to pursue asylum or other protection claims before the immigration court. If parents do not receive a positive credible fear finding on review, then the U.S. government will provide their children with their own credible fear interview. If children receive a positive credible fear finding, they and their parents will be issued a NTA to appear before an immigration judge, where they will be able to pursue asylum or other protection claims before the immigration court. Additional or other procedures apply where parents and children have been released from detention, where parents are subject to reinstated or final orders of removal, or where parents already have been removed. The Settlement Agreement does not provide any monetary payments to class members. Parents and children who fall into these categories should read the final Settlement Agreement and/or consult with counsel to understand what rights they may have under the Agreement. If the Settlement Agreement is approved, class members will be prohibited from seeking any additional immigration- or asylum-related injunctive, declaratory, or equitable relief related to allegations made in these lawsuits. All of the terms of the proposed Settlement are subject to Court approval at a “Final Approval Hearing” which is explained below. A copy of the Settlement Agreement is attached to this notice. 1 “Credible fear” refers to the process by which those individual subject to expedited removal may seek asylum in the United States, in which an alien in expedited removal who has a fear of returning home is interviewed by a U.S. government asylum officer to determine whether they can establish a credible fear of persecution or torture if they are returned to their home country. If the alien receives a positive credible fear determination, he or she can file an application for asylum before the immigration court. 2 Case 3:18-cv-00428-DMS-MDD Document 247-1 Filed 10/05/18 PageID.3987 Page 3 of 5 You have the right to waive relief under the settlement. Parents or children who wish to waive their rights under this Settlement Agreement and be promptly removed to their country of origin, have the right to do so by executing the below form. Any decision to return to your country of origin must be made affirmatively, knowingly, and voluntarily. Failure to return this form will not be construed as a waiver of your rights under the Settlement Agreement. Instructions: This form must be read to the class member in a language that he/she understands. The class member must indicate which option he/she is choosing by signing the appropriate box below. If the class member is a child and lacks capacity or is under age 14, this form must be signed by the child’s parent or legal representative. Separate forms must be completed for each family member. Completed forms must be mailed or emailed to counsel for the appropriate proposed class set forth below. I request to remain in the United States to seek relief from removal. I understand that the class action settlement does not guarantee that I will receive relief from removal. Name (printed): ____________________________ Signature: _________________________________ I am affirmatively, knowingly, and voluntarily requesting removal to my country of origin as soon as possible. I understand that I am waiving any rights to remain in the United States to pursue the procedures set forth in the settlement, including any right to apply for asylum or other protection from removal. Name (printed): ____________________________ Signature: _________________________________ Your Information: Name: ________________________________________________________ Date of Birth: ___________________________________________________ A#: __________________________________________________________ Country of citizenship: ___________________________________________ Detention facility (if applicable): ____________________________________ Address: _______________________________________________________ Telephone number: ______________________________________________ Parent(s)/child(ren) name(s): _______________________________________ Parent(s)/child(ren) A#(s): _________________________________________ Parent(s)/child(ren) address: ________________________________________ Parent(s)/child(ren) telephone number: ________________________________ Attorney Certification: I represent ____________________ (name) in his/her immigration proceedings. I have advised him/her (and/or his/her parent or legal representative) of his/her rights under the proposed class action settlement in ____________________ (language). Attorney signature: _____________________________________________ Attorney name: ________________________________________________ Date: ________________________________________________________ Attorney telephone: ____________________________________________ Attorney address: ______________________________________________ 3 Case 3:18-cv-00428-DMS-MDD Document 247-1 Filed 10/05/18 PageID.3988 Page 4 of 5 You have the right to object to the settlement. Although you may waive your rights to seek relief under this Settlement Agreement, you cannot exclude yourself from the settlement. However, you can ask the Court to deny approval by filing an objection. If the Court denies approval, the lawsuits will continue. If that is what you want to happen, you must object. You may object to the proposed settlement in writing. You may also appear at the Final Approval Hearing, either in person or through your own attorney. All written objections and supporting papers must (a) clearly identify the following case names and numbers: M.M.M. v. Sessions, Case No. 3:18-cv-1832-DMS (S.D. Cal.) and Ms. L. v. ICE, Case No. 3:18-cv-428-DMS (S.D. Cal.), (b) be submitted to the Court either by mailing them to the Class Action Clerk, United States District Court for the Southern District of California, San Diego Courthouse, 333 West Broadway, San Diego, CA 92101, or by filing them in person at any location of the United States District Court for the Southern District of California, and (c) be filed or postmarked on or before November 2, 2018. When and where will the Court decide whether to approve the settlement? The Final Approval Hearing will be held on November 15, 2018, at 1:00 PM at Courtroom 13A, 13th Floor, Suite 1310, 333 West Broadway, San Diego, CA 92101, to determine the fairness, reasonableness, and adequacy of the proposed Settlement. The date may change without further notice to the class. Where can I get more information? This notice summarizes the proposed settlement. For the precise terms and conditions of the settlement, please see the attached Settlement Agreement, by contacting class counsel identified below, by accessing the Court docket in this case through the Court’s Public Access to Court Electronic Records (PACER) system at https://ecf.casd.uscourts.gov, or by visiting the office of the Clerk of the Court for the United States District Court for the Southern District of California, San Diego, between 8:30 a.m. and 4:30 p.m., Monday through Friday, excluding Court holidays. PLEASE DO NOT TELEPHONE THE COURT OR THE COURT CLERK’S OFFICE TO INQUIRE ABOUT THIS SETTLEMENT. 4 Case 3:18-cv-00428-DMS-MDD Document 247-1 Filed 10/05/18 PageID.3989 Page 5 of 5 Who represents the Classes? Proposed Class Counsel for Child Class: Justin W. Bernick Zachary W. Best T. Clark Weymouth HOGAN LOVELLS US LLP 555 Thirteenth Street, NW Washington, DC 20004 Telephone: (888) 365-1112 Fax: (202) 637-5910 MMMSettlementQuestions@hoganlovells.c om Proposed Class Counsel for Parent Class (Parents in the United States): Wilson G. Barmeyer John H. Fleming EVERSHEDS SUTHERLAND (US) LLP 700 Sixth Street NW, Suite 700 Washington, DC 20001 Telephone: (202) 220-8628 Fax: (202) 637-3593 parentsasylumclass@evershedssutherland.com Proposed Counsel for Removed Parents: Lee Gelernt Judy Rabinovitz Anand Balakrishnan Stephen Kang Spencer Amdur AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad St. 18th Floor New York, NY 10004 Telephone: (212) 549-2660 Fax: (212) 549-2654 familyseparation@aclu.org Sirine Shebaya Johnathan Smith MUSLIM ADVOCATES Simon Y. Sandoval-Moshenberg Sophia Gregg LEGAL AID JUSTICE CENTER 5