Case 3:18-cv-00428-DMS-MDD Document 306 Filed 11/06/18 PageID.4732 Page 1 of 7 1 2 3 4 Class Action Clerk United States District Court for the Southern District of California San Diego Courthouse 333 West Broadway San Diego, CA 92101 November 2, 2018 7 Dear Judge Sabraw, 10 11 12 13 14 15 16 17 11/5/2018 RE: Proposed settlement in MMM v. Sessions, Case No. 3:18-cv-1832-DMS (S.D. Cal.) andMs. L. v. ICE, Case No. 3:18-cv-428-DMS (S.D. Cal.) 8 9 s/ ArianaF NUNCPROTUNC 5 6 Nov 06 2018 I write on behalf of the grassroots, non-profit organization Together & Free, Inc. ("Together & Free") to respectfully object I to the fairness and adequacy of the proposed settlement entered in the above-referenced action ("Action") on September 13, 2018 (Dkt. Nos. 220 and 221 {"Proposed Agreement" or "Agrmt.")). Together & Free's primary mission is to assist families separated under the "zero tolerance" policy established by the federal government in April 2018. Through our work with hundreds of separated families, we have come to learn of several significant problems with the fairness and adequacy of the Proposed Agreement. We are concerned that these problems, which are described in detail below, create subclasses that are not 18 treated fairly and that, in some instances, will not receive meaningful relief from the Proposed 19 .. Agreement. 20 About Together & Free. Together & Free was founded in 2018 for the express 21 purpose of supporting immigrant families separated at the United States border. Together & 22 Free started as a small group of individuals who were moved by the plight of these families. The 23 organization has now grown to a network of volunteers across 46 states that provides support to 24 more than 200 affected families. We assist families with services such finding transportation 25 26 27 28 1 Together & Free has received permisssion from the Class Members described in this letter (or their legal counsel) to file this letter objecting on their behalf and on behalf of other, similarlysituated Class Members. 18CV0428 DMS (MDD) Case 3:18-cv-00428-DMS-MDD Document 306 Filed 11/06/18 PageID.4733 Page 2 of 7 1 approximately 100 parents who remain in detention, and whose child or children have been 2 released into the care of a relative. These families remain in limbo, suffering from the exact 3 harms that this Action was brought to alleviate. Their plight cannot be ignored but, under the 4 Proposed Agreement, it is. 5 In many instances, Class Member parents in this subclass consented to their 6 children's release because they were told that the separation would be temporary and that, 7 through this litigation, they would be reunited with their children. But that has not happened, 8 and the Proposed Agreement provides no guarantee that it will. Because the children in this 9 subclass are with family members, the United States regard these families as "reunited." Such a 10 determination is anathema to the right to family integrity that has been the animating principle 11 of the Court's orders in this Action. Moreover, this ongoing separation has resulted in profound 12 and continuing harm to Still Separated Families. In some instances, children as young as three 13 years old have been released to relatives that they have never met, while their parents have 14 continued to languish in detention. ·In other instances, because of the United States' refusal to 15 release a Class Member parent, the child has been "reunited" with family members who are unfit 16 and incapable of serving as guardians. For example, Ana Estela G. d. H. was separated from her 17 seven year old daughter. Ana is still detained, but her daughter was released to her father. Ana 18 had custody of her daughter for a reason: 19 addiction. Ana's other, 17 year old child, has had to take responsibility for the seven year old, 20 because Ana is still in custody. The 17 year old receives little to no financial support from the 21 father, and it seems likely that both children will end up in the state child welfare system. the father has struggled with drug and alcohol 22 "[S]ome proposed agreements are so unfair in their terms to one subset of class 23 members that they cannot but be the product of inadequate representation of that subset." In re 24 Volkswagen Clean Diesel Mktg., Sales Practices, and Prods. Liab. Litig., 895 F.3d 597, 608 (9th 25 Cir. 2018) (citing In re GMC Pick-Up Truck Fuel TankProds. Liab. Litig., 55 F.3d 768, 801 (3d 26 Cir. 1995)). The Proposed Agreement is profoundly unfair to the Still Separated Families. Not 27 only does it fail to require reunification, it bars the Still Separated Families from filing further 28 legal action to seek reunification. Quite the opposite--Class Members must "agree to refrain -3- Case 3:18-cv-00428-DMS-MDD Document 306 Filed 11/06/18 PageID.4734 Page 3 of 7 Deported Class Members Receive No Significant Relief 1 The Proposed 2 Agreement also fails to provide meaningful relief to another subset of the certified Class- 3 parents who already have been deported without their minor children. The Proposed Agreement, 4 on its face, applies "only to ... class members ... who have been continuously physically 5 present in the United States since June 26, 2018." (Agrmt. at 1.) For deported Class Members, it 6 offers only this: in "rare and unusual" instances, the United States will reopen "individual cases 7 in which plaintiffs' counsel believes the return of a particular removed class member may be 8 warranted." (Agrmt. at 6.) In some instances, deported Class Members had no credible fear 9 interviews. For example, Class Member Jose D.AA. was deported without a credible fear IO interview. In other instances, the hasty circumstances of their credible fear interviews (and 11 subsequent deportations) barred Class Members from presenting their best evidence. 12 example, Class Member Anavelis J-C fled violence in Guatemala with her 6 year old daughter. 13 Anavelis was transferred between 5 different detention centers, remaining separated from her 14 daughter each time. Her daughter was eventually released, but Anavelis was deported on or 15 around July 17, 2018. In her credible fear interview, Anavelis did not state all the persuasive 16 facts relevant to her claim because she did not fully understand the process. For example, she 17 did not state that a gang had killed several close family members to get her family's land- 18 including her mother-in-law and the brother of her father-in-law. She also did not state that she 19 herself was beaten by these gangs, and required surgery for her injuries. If she had not been 20 deported, she would be permitted, as a Class Member, to redo her credible fear interview and 21 present those and other favorable facts. Instead, she will remain separated from her young 22 daughter, unless she seeks her daughter's return to Guatemala-an option that may well risk both 23 their lives. For 24 Together & Free understands that the Court is aware of the unique and sad issues 25 presented by Deported Class Members. When confronted with this problem in August 2018, the 26 United States proposed that children whose parents had been deported who wanted to return to 27 their countries of origin and be reunited with their parents (despite any bona fide legal claims to 28 asylum), and who had not yet had a court date, would have their cases terminated. But it is -5- Case 3:18-cv-00428-DMS-MDD Document 306 Filed 11/06/18 PageID.4735 Page 4 of 7 1 States' judicial system and to United States legal counsel. Together & Free has become aware of 2 a number of Deported Class Members who have not been identified as Class Members in this 3 action, even though they meet the criteria. These include: • 4 Oscar M. R: Oscar crossed with his 5-year-old son in June of 2018. His 5 son was sent to an Office of Refugee Resettlement ("ORR') facility and 6 was eventually released to a relative. Oscar was deported back to 7 Honduras without his son-who has not seen his father since June--on or 8 around July 18, 2018. 9 • Elisa A.-·Elisa fled persecution in Romania along with her 3 year old 10 daughter. Her daughter was released to relatives but Elisa was deported 11 on or around July 26,2018. 12 Deported Class Members such as these face a desperate situation. Far from their 13 children, they must somehow weigh their legal options, and work without assistance to secure 14 reunification with their children. Together & Free respectfully submits that, in order to be truly 15 fair, the Proposed Agreement must include provisions that clearly describe a process for 16 identifying Class Members, particularly Deported Class Members. As just one example, the 17 Proposed Agreement could require the United States to establish a website that would allow 18 potential Class Members or their lawyers to review the class definition, review their rights, 19 submit their names and circumstances for eligibility determination and, most importantly, help 20 find their children. The United States also should be required to assemble a neutral steering 21 committee that would be charged with determining Class Member eligibility, and whose 22 progress and determinations would be publicly filed with the Court on a regular basis. Large 23 class action settlements routinely contain similar provisions for class member determination and 24 reporting, and these types of provisions are important to the just and fair administration of the 25 relief. 26 Problems With Case Administration Are Impeding Relief. As a result of the 27 "chaotic circumstance of the Government's own making" (June 26, 2018 Order at 23), some 28 families continue to face the prospect of immediate deportation due to administrative problems -7- Case 3:18-cv-00428-DMS-MDD Document 306 Filed 11/06/18 PageID.4736 Page 5 of 7 1 concess10ns. Instead, for a number of Class Members, the Proposed Agreement fails to 2 guarantee their primary goal-reunification with their family members. Respectfully, the Court 3 must ensure the fair and just treatment of all Class Members, some of whom continue to be 4 deprived of their fundamental rights, and suffer profound and lasting harm. 5 6 Respectfully Submitted, 7 Chri::,, 8 9 10 Together & Free, Inc. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9- Case Document 306 Filed 11/06/18 PageID.4737 Page60f7 EXHIBIT A Case 3:18-cv-00428-DMS-MDD Document 306 Filed 11/06/18 PageID.4738 Page 7 of 7 A# xxxxxx961 Name L. E. V. C. xxxxxx962 c. J. v. c. xxxxxx215 B. M. C. M W.E.V.T B. Y. P. S. M.A.P.S. A. L. V. P. J. E. R. S. *l. parent still detained, released to sponsor M.Z.C. A. L.A. H.J. M. N. *1. parent still detained, released to sponsor Y.C.A.N. *1. parent still detained, released to sponsor N. L. M.A. *2 .. legal provider reports this as a separation, government does not C. I. M. R. D. D. 0. D.C. A. T. R. L. T. R. C. J. P. P. M.M.E.G. *2. legal provider reports this as a separation, government does not J. J. 0. R. J. I.A.A. Y. I.A. C. L.A. S. M. K. L. G. U. E. E. Z. F. C.A.A.P. G.A. L. M. C. J.E. M. E. J.C. C. S. F. C.R. xxxxxx754 xxxxxxl56 xxxxxxl57 xxxxxx789 xxxxxx733 xxxxxx792 xxxxxx831 xxxxxx5462 xxxxxx684 xxxxxx919 xxxxxx284 xxxxxx729 xxxxxx485 xxxxxx487 xxxxxx436 xxxxxx435 xxxxxx682 xxxxxx782 xxxxxx602 xxxxxx4367 xxxxxx990 xxxxxx935 xxxxxx960 xxxxxx016 xxxxxx883 xxxxxx344 xxxxxx524 Notes