Case 3:18-cv-00428-DMS-MDD Document 315 Filed 11/09/18 PageID.4808 Page 1 of 6 1 4 MICHAEL M. MADDIGAN (SBN 163450) HOGAN LOVELLS US LLP 1999 Avenue of the Stars, Suite 1400 Los Angeles, CA 90067 Telephone: (310) 785-4727 Facsimile: (310) 785-4601 Email: michael.maddigan@hoganlovells.com 5 Attorney for M.M.M. Plaintiffs 2 3 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 SAN DIEGO DIVISION 12 13 14 M.M.M., on behalf of his minor child, J.M.A., et al., 15 Plaintiffs, 16 v. 17 Jefferson Beauregard Sessions, III, Attorney General of the United States, et al., 18 19 Case No. 3:18-cv-1832-DMS JUDGE: Hon. Dana M. Sabraw DATE: November 15, 2018 TIME: 10:30 AM COURTROOM: 13A Defendants. 20 21 Case No. 3:18-cv-428-DMS Ms. L, et al., JUDGE: Hon. Dana M. Sabraw 22 Plaintiffs, 23 24 25 26 27 H OGAN L OVEL LS US LLP ATTO RNEY S AT LAW LOS A NG EL ES v. U.S. Immigration and Customs Enforcement, et al., Defendants. DATE: November 15, 2018 TIME: 10:30 AM COURTROOM: 13A PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTTLEMENT Case 3:18-cv-00428-DMS-MDD Document 315 Filed 11/09/18 PageID.4809 Page 2 of 6 1 TO ALL ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE THAT, Plaintiffs in the above-caption cases 3 hereby seek final approval of the parties’ class action Settlement Agreement, which 4 the Court preliminarily approved on October 9, 2018. See M.M.M. v. Sessions, 5 Case No. 3:18-cv-1832 (S.D. Cal.), Dkt. 75. The settlement classes satisfy the 6 requirements of Federal Rules of Civil Procedure 23(a) and 23(b)(2), and the 7 Settlement Agreement satisfies the requirements of Rule 23(e). 8 Plaintiffs respectfully ask the Court to certify the settlement classes and grant final 9 approval of the Settlement Agreement. Accordingly, 10 Plaintiffs’ motion will be based upon this notice of motion and motion, the 11 attached memorandum of points and authorities, and all the Court’s files and 12 records in this action. A hearing on this motion is scheduled for November 15, 13 2018 at 10:30 AM in Courtroom 13A. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 H OGAN L OVEL LS US LLP ATTO RNEY S AT LAW LOS A NG EL ES -2- PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 315 Filed 11/09/18 PageID.4810 Page 3 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 HOGAN LOVELLS US LLP /s/ Michael Maddigan 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 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 Katherine A. Nelson* 1601 Wewatta Street, Suite 900 Denver, CO 80202 Telephone: (303) 899-7300 Facsimile: (303) 899-7333 katherine.nelson@hoganlovells.com 23 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 24 Proposed Class Counsel for Child Class 25 Aaron M. Olsen Haeggquist and Eck LLP 225 Broadway, Ste 2050 San Diego, CA 92101 Telephone: (619) 342-8000 Facsimile: (619) 342-7878 aarono@haelaw.com PLAINTIFFS’ NOTICE OF MOTION AND -3- 21 22 26 27 28 H OGAN L OVEL LS US LLP ATTO RNEY S AT LAW LOS A NG EL ES November 9, 2018 MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 315 Filed 11/09/18 PageID.4811 Page 4 of 6 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 H OGAN L OVEL LS US LLP ATTO RNEY S AT LAW LOS A NG EL ES /s/ Wilson G. Barmeyer Wilson G. Barmeyer* Carol T. McClarnon* EVERSHEDS SUTHERLAND (US) LLP 700 Sixth Street NW, Suite 700 Washington, DC 20001 Telephone: (202) 383-0100 Facsimile: (202) 637-3593 wilsonbarmeyer@evershedssutherland.com John H. Fleming* EVERSHEDS SUTHERLAND (US) LLP 999 Peachtree Street NE, Suite 2300 Atlanta, GA 30309 Telephone: (404) 853-8000 Facsimile: (404) 853-8806 johnfleming@eversheds-sutherland.com Sirine Shebaya* Johnathan Smith* MUSLIM ADVOCATES P.O. Box 34440 Washington, D.C. 20043 Telephone: (202) 897-2622 Facsimile: (202) 508-1007 sirine@muslimadvocates.org johnathan@muslimadvocates.org Simon Y. Sandoval-Moshenberg* Sophia Gregg* LEGAL AID JUSTICE CENTER 6066 Leesburg Pike, Suite 520 Falls Church, VA 22041 Telephone: (703) 778-3450 Facsimile: (703) 778-3454 simon@justice4all.org sophia@justice4all.org Proposed Class Counsel for Parent Class Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* Stephen Kang * Spencer Amdur Daniel Galindo AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad St. - 418th - FloorPLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 315 Filed 11/09/18 PageID.4812 Page 5 of 6 1 2 3 4 5 6 7 8 New York, NY 10004 Telephone: (212) 549-2660 Facsimile: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org skang@aclu.org samdur@aclu.org dgalindo@aclu.org Proposed Counsel For Class Members Who do not Meet the Physical Presence Requirement *Admitted Pro Hac Vice 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 H OGAN L OVEL LS US LLP ATTO RNEY S AT LAW LOS A NG EL ES -5- PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 315 Filed 11/09/18 PageID.4813 Page 6 of 6 1 CERTIFICATE OF SERVICE 2 3 I hereby certify that I filed the foregoing NOTICE OF MOTION AND 4 MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 5 AGREEMENT, with the Clerk of the Court through the ECF system on November 6 9, 2018. This system provided a copy to and effected service of this document on 7 all parties. 8 Dated: 9 10 November 9, 2018 HOGAN LOVELLS US LLP By: 11 /s/ Michael Maddigan Michael Maddigan Attorneys for Plaintiff 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 H OGAN L OVEL LS US LLP ATTO RNEY S AT LAW LOS A NG EL ES -6- PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 315-1 Filed 11/09/18 PageID.4814 Page 1 of 30 1 4 MICHAEL M. MADDIGAN (SBN 163450) HOGAN LOVELLS US LLP 1999 Avenue of the Stars, Suite 1400 Los Angeles, CA 90067 Telephone: (310) 785-4727 Facsimile: (310) 785-4601 Email: michael.maddigan@hoganlovells.com 5 Attorney for M.M.M. Plaintiffs 2 3 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 SAN DIEGO DIVISION 12 13 14 M.M.M., on behalf of his minor child, J.M.A., et al., 15 JUDGE: Hon. Dana M. Sabraw DATE: November 15, 2018 TIME: 10:30 AM COURTROOM: 13A Plaintiffs, 16 v. 17 Jefferson Beauregard Sessions, III, Attorney General of the United States, et al., 18 Case No. 3:18-cv-1832-DMS 19 Defendants. 20 21 Case No. 3:18-cv-428-DMS Ms. L, et al., JUDGE: Hon. Dana M. Sabraw 22 Plaintiffs, 23 24 25 26 27 H OGAN L OVEL LS US LLP ATTO RNEY S AT LAW LOS A NG EL ES DATE: November 15, 2018 TIME: 10:30 AM COURTROOM: 13A v. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT U.S. Immigration and Customs Enforcement, et al., Defendants. 1 Case 3:18-cv-00428-DMS-MDD Document 315-1 Filed 11/09/18 PageID.4815 Page 2 of 30 1 I. 2 INTRODUCTION1 The proposed settlement agreement (“the Agreement”), see Ex. 20 3 (Settlement Agreement), arises out of several lawsuits involving the separation of 4 certain alien parents and their children at or near the U.S. border: M.M.M. v. 5 Sessions, Case No. 3:18-cv-1832-DMS (S.D. Cal.), M.M.M. v. Sessions, Case No. 6 1:18-cv-1835-PLF (D.D.C.), Ms. L v. ICE, Case No. 3:18-cv-428-DMS (S.D. Cal.), 7 and Dora v. Sessions, Case No. 18-cv-1938 (D.D.C.). Among other things, these 8 lawsuits challenge the separation of certain parents from their minor children, and 9 allege that Defendants failed to provide an adequate opportunity for Plaintiffs to 10 seek asylum or other protection from removal upon arrival in the United States. The 11 Agreement contemplates certification of separate classes of parents and their 12 children (described in detail below) (the “Settlement Classes”). 13 Under the Agreement, Defendants will provide various procedures to enable 14 members of the Settlement Classes to seek asylum and/or other protection from 15 removal. Parents or children who seek to waive their rights under the Agreement 16 and be promptly removed to their country of origin have the right and ability to do 17 so. In such a case, the parent or child will not be eligible for any relief under the 18 Agreement. In return, the M.M.M. class members and Dora Plaintiffs agree to 19 dismiss their existing cases in the District of Columbia; the M.M.M. class members 20 agree to refrain from seeking preliminary injunctive relief in their pending litigation 21 in the Southern District of California; and all class members agree to refrain from 22 additional litigation seeking immigration- or asylum-related injunctive, declaratory, 23 or equitable relief arising from the facts set forth in the Ms. L, M.M.M., and Dora 24 25 26 27 28 H OGAN L OVEL LS US LLP ATTO RNEY S AT LAW LOS A NG EL ES 1 Defendants do not oppose the request for relief contained in this memorandum or the entry of the proposed order filed herewith. However, Defendants do not join in the memorandum 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 memorandum, controls. -2- MEM. OF P. & A. ISO MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 315-1 Filed 11/09/18 PageID.4816 Page 3 of 30 1 complaints relating to those parents and children covered by this plan and accruing 2 as of the date this Agreement is approved by the Court, including statutory claims. 3 4 Plaintiffs now request that the Court issue an order granting final certification of the 5 proposed Settlement Classes and final approval of the Agreement. The Agreement 6 qualifies for final approval, as described below, and the proposed Settlement 7 Classes qualify for certification under Rule 23(a) and 23(b)(2) of the Federal Rules 8 of Civil Procedure. The Agreement provides the Settlement Classes with the 9 equitable relief they seek, including access to procedures for applying for asylum or 10 other protection from removal, and the form and plan of notice provided the best 11 0notice that is practicable under the circumstances. The Court should therefore 12 certify the proposed Settlement Classes and grant final approval of the Agreement. 13 II. 14 15 BACKGROUND a. Ms. L and Dora Cases The Ms. L plaintiffs are two parents who were separated from their minor 16 children at or near the U.S. border with Mexico and who sought injunctive relief on 17 behalf of themselves and a class of similarly situated parents. On June 26, 2018, 18 this Court certified a class of parents (the “Ms. L Class Members”), defined as: 19 22 All adult parents who entered the United States at or between designated ports of entry who (1) have been, are, or will be detained in immigration custody by the [Department of Homeland Security (“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. 23 The class does not include “migrant parents with criminal history or communicable 24 disease, or those who are in the interior of the United States or subject to the 25 [Executive Order].” Order Granting in Part Pls.’ Mot. for Class Certification at 17 26 n.10, Ms. L v. ICE, No. 18-428, ECF No. 82 (S.D. Cal. June 26, 2018) [hereinafter 27 “Ms. L Class Cert. Order”]. 20 21 28 H OGAN L OVEL LS US LLP ATTO RNEY S AT LAW LOS A NG EL ES Having received preliminary approval of the Agreement on October 9, 2018, On June 26, 2018, the Court entered a class-wide preliminary injunction that, -3- MEM. OF P. & A. ISO MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 315-1 Filed 11/09/18 PageID.4817 Page 4 of 30 1 in relevant part, enjoined the government from detaining Ms. L Class Members in 2 DHS custody without and apart from their minor children, absent a determination 3 that the parent is unfit or presents a danger to the child, unless the parent 4 affirmatively, knowingly, and voluntarily declines to be reunited with the child in 5 DHS custody, and further ordered the reunification of Ms. L Class Members already 6 separated. See Order Granting Pls.’ Mot. for Classwide Prelim. Inj. at 22–24, Ms. L 7 v. ICE, No. 18-428, ECF No. 83 (S.D. Cal. June 26, 2018). 8 In a case filed in the District of Columbia, Dora v. Sessions, Case No. 1:18- 9 cv-1938 (D.D.C.), twenty-nine named plaintiffs alleged that their separation from 10 their children denied them a meaningful opportunity to apply for asylum protection. 11 See generally Compl., Dora v. Sessions, Case No. 1:18-cv-1938, ECF No. 5 12 (D.D.C. Aug. 17, 2018). The Dora plaintiffs went through credible fear interviews 13 (“CFI”) while separated from their children and received negative determinations. 14 As a result of the negative determinations, the Dora plaintiffs were subject to 15 removal pursuant to expedited removal orders. In Dora, the plaintiffs alleged that 16 the trauma caused by their family separation deprived them of a reasonable 17 opportunity to articulate a credible fear, in violation of the Due Process Clause of 18 the Fifth Amendment to the United States Constitution, the Immigration and 19 Nationality Act (the “INA”), the Rehabilitation Act, and the Administrative 20 Procedure Act (the “APA”). The Dora plaintiffs sought an injunction declaring the 21 government’s policies to be unlawful and allowing them to receive new CFIs upon 22 reunification with their children. As part of the settlement process, two named 23 plaintiffs from the Dora action were added as plaintiffs in the Ms. L action pending 24 before this Court. 25 26 The M.M.M. plaintiffs are six children who were separated from their 27 parents, Ms. L class members, as a result of their parents’ referral for criminal 28 prosecution under the government’s Zero-Tolerance Policy. The M.M.M. plaintiffs H OGAN L OVEL LS US LLP ATTO RNEY S AT LAW LOS A NG EL ES b. The M.M.M. Case -4- MEM. OF P. & A. ISO MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 315-1 Filed 11/09/18 PageID.4818 Page 5 of 30 1 (and the proposed Settlement Class of other similarly situated children) allege that 2 they were not given an opportunity to apply for asylum if their parents were subject 3 to final removal orders and elected to be reunified with their children, even 4 following reunification with their parents. In particular, the U.S. government took 5 the position that a parent’s decision to be reunified with their child for removal, as 6 indicated on an “election form,” meant that the parent had waived the child’s right 7 to independently pursue a claim for asylum. See generally Compl. for Declaratory 8 and Injunctive Relief, M.M.M. v. Sessions, Case No. 1:18-cv-1835-PLF, ECF No. 4 9 (D.D.C. July 27, 2018). 10 The M.M.M. plaintiffs filed a class-action complaint seeking injunctive relief 11 on behalf of a putative class consisting of “all non-citizens under the age of 18 who 12 were separated from their parents or guardians upon (or after) entry into the United 13 States and who are, have been, or will be detained by the U.S. government at any 14 age since January 1, 2018.” Id. at 33. The Complaint alleged four causes of action 15 arising under the Due Process Clause of the Fifth Amendment to the United States 16 Constitution, 28 U.S.C. § 1361, the APA, and 8 U.S.C. § 1252(e)(3). Id. at 34–40. 17 The M.M.M. complaint was originally filed in the U.S. District Court for the 18 District of Columbia on July 27, 2018 before Judge Paul Friedman. Judge Friedman 19 entered an order severing Counts I–III of the M.M.M. complaint and transferring 20 those claims to this Court, and retained jurisdiction over Count IV because the D.C. 21 District Court has exclusive jurisdiction over claims arising under 8 U.S.C. 22 § 1252(e)(3). See Order, M.M.M. v. Sessions, Case No. 1:18-cv-1835-PLF, ECF 23 No. 24 (D.D.C. Aug. 3, 2018). This Court entered a temporary restraining order 24 (“TRO”) staying the removal of all putative class members and their parents 25 pending resolution of their preliminary injunction motion. See Order Granting Pls.’ 26 Mot. for TRO, M.M.M. v. Sessions, Case No. 3:18-cv-1832-DMS, ECF No. 55 27 (S.D. Cal. Aug. 16, 2018). In entering the TRO, the Court found that the plaintiffs 28 were likely to succeed on the merits because Section 235 of the Immigration and H OGAN L OVEL LS US LLP ATTO RNEY S AT LAW LOS A NG EL ES -5- MEM. OF P. & A. ISO MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 315-1 Filed 11/09/18 PageID.4819 Page 6 of 30 1 Nationality Act (“INA”), 8 U.S.C. § 1225, sets forth a “nondiscretionary duty” to 2 provide a CFI to any alien subject to expedited removal who indicates a fear of 3 returning to their country of origin. See id. at 9. The Court rejected the 4 government’s argument that plaintiffs’ rights to seek asylum or other protection 5 from removal had been waived by their parents’ decision to sign the election form. 6 Id. at 10–11. The Court expressed a preliminary view that plaintiffs’ “asylum 7 claims would be more appropriately addressed under § 235 since Plaintiffs were not 8 truly ‘unaccompanied’ minors warranting removal proceedings under § 240,” but 9 reserved final ruling on this issue. Id. at 16 n.8. The Court directed the parties to 10 “meet and confer and propose a solution—one which follows the law, and is 11 equitable and reflective of ordered governance.” Id. at 16. Per the Court’s 12 instruction, counsel for Defendants and the Ms. L, M.M.M., and Dora Plaintiffs met 13 and conferred extensively over the ensuing four weeks. After extensive negotiation, 14 the parties reached a final agreement on September 12, 2018. Plaintiffs submitted 15 their unopposed motion for preliminary approval for the proposed settlement on 16 October 5, 2018, and the Court issued an order granting the motion for preliminary 17 approval on October 9, 2018. See Unopposed Mot. for Prelim. Approval of 18 Proposed Settlement, M.M.M. v. Sessions, Case No. 3:18-cv-1832-DMS, ECF No. 19 73 (S.D. Cal. Oct. 5, 2018); Order Granting Prelim. Approval of Proposed 20 Settlement, M.M.M. v. Sessions, Case No. 3:18-cv-1832-DMS, ECF No. 75 (S.D. 21 Cal. Oct. 9, 2018) [hereinafter “Order Granting Prelim. Approval”]. 22 23 24 25 26 27 28 H OGAN L OVEL LS US LLP ATTO RNEY S AT LAW LOS A NG EL ES c. Material Terms of the Settlement The first part of the Agreement contemplates certification of the Settlement Classes of parents and children. The parent Settlement Class is defined as: 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 MEM. OF P. & A. ISO MOTION FOR FINAL -6APPROVAL OF CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 315-1 Filed 11/09/18 PageID.4820 Page 7 of 30 1 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. 2 3 4 The class of children is defined as follows: 5 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. 6 7 8 9 The Agreement provides significant benefits to the members of the proposed 10 11 classes. The procedural mechanisms vary depending on the class members’ 12 circumstances and do not affect the right of Ms. L Class Members to seek 13 reunification pursuant to the Court’s preliminary injunction during these processes. 14 In particular, the Agreement provides 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 CFI. Children will be treated as the parents’ dependents under 8 C.F.R. § 208.30(b).2 15 16 17 18 19 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 notices to appear (“NTA”) and placed in removal proceedings under Section 240. 20 21 22 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 during his or her interview, then both the child and the parent will be issued NTAs and be placed into removal proceedings under Section 240, notwithstanding the parent’s negative credible fear finding. 23 24 25 26 27 28 H OGAN L OVEL LS US LLP ATTO RNEY S AT LAW LOS A NG EL ES 2 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. -7- MEM. OF P. & A. ISO MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 315-1 Filed 11/09/18 PageID.4821 Page 8 of 30 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 H OGAN L OVEL LS US LLP ATTO RNEY S AT LAW LOS A NG EL ES • 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 below, placed into expedited removal and screened for credible fear. o If the parent establishes that he or she can meet the reasonable fear standard, the parent will be referred for withholding-only proceedings. o Regardless of the parent’s ability to establish a reasonable fear upon further review, the parent’s child will be provided 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 the child will be issued an NTA and placed in removal proceedings under Section 240. The parent will remain in withholdingonly 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 fourteen days of entry and one hundred miles of the border, the child will be placed into expedited removal. 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, he or she 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. • 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 fourteen days of entry and one hundred 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 CFI. • 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 final orders 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 forty-five days of court approval of the agreement. Counsel -8- MEM. OF P. & A. ISO MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 315-1 Filed 11/09/18 PageID.4822 Page 9 of 30 1 for the plaintiffs and the government will work together in good faith to identify any such children within fifteen days of approval of the agreement. 2 • 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. 3 4 5 The second part of the Agreement reflects the parties’ agreement with regard 6 7 to individuals who fit the parent class description as defined above, but who have 8 been removed from the United States, as well as the rights of members of the 9 children class whose parents have been removed. 3 For those individuals, the 10 parties’ 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 thirty days of court approval of the Agreement. Defendants will provide a reply to any case presented by Plaintiffs within thirty days of receiving Plaintiffs’ request to consider the case. 11 12 13 14 15 16 • 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 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. 17 18 19 20 21 22 23 24 25 26 27 28 H OGAN L OVEL LS US LLP ATTO RNEY S AT LAW LOS A NG EL ES 3 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- MEM. OF P. & A. ISO MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 315-1 Filed 11/09/18 PageID.4823 Page 10 of 30 1 If the proposed settlement becomes final, class members will be prohibited from 2 pursuing “any other immigration- or asylum-related injunctive, declaratory, or 3 equitable relief based on the allegations or claims made in any of the Ms. L, 4 M.M.M., or Dora complaints filed in any court accruing as of the date this plan is 5 approved by the Court, including statutory claims.” The proposed settlement does 6 not release claims for money damages, nor does it release claims for injunctive, 7 declaratory, or equitable relief that are not immigration-or asylum-related, or claims 8 that are not based on the allegations made in the Ms. L, M.M.M., or Dora 9 complaints. 10 LEGAL STANDARD 11 Pursuant to Federal Rule of Civil Procedure 23(e), “claims, issues, or 12 defenses of a certified class may be settled, voluntarily dismissed, or compromised 13 only with the court’s approval.” Settlements must be “fair, reasonable, and 14 adequate.” Fed. R. Civ. P. 23(e)(2). In the Ninth Circuit, there is a “strong judicial 15 policy that favors settlements, particularly where complex class action litigation is 16 concerned.” Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992). 17 The decision to approve of a final settlement rests in “the sound discretion of the 18 trial judge.” Officers for Justice v. Civil Serv. Comm’n of City & Cty. of San 19 Francisco, 688 F.2d 615, 625 (9th Cir. 1982); see also Rodriguez v. W. Publ’g 20 Corp., 563 F.3d 948, 963 (9th Cir. 2009). 21 “Court approval requires a two-step process: (1) preliminary approval of the 22 settlement; and (2) following a notice period to the class, final approval of the 23 settlement at a fairness hearing.” Nwabueze v. AT&T Inc., No. 09-01529-SI, 2013 24 WL 6199596, at *3 (N.D. Cal. Nov. 27, 2013). At final approval, the court first 25 “determines that notice to the class members was accomplished in the manner 26 prescribed by the settlement and as approved by the Court at the preliminary 27 approval stage.” Cancilla v. Ecolab, Inc., No. 12-cv-03001-JD, 2016 WL 54113, at 28 *3 (N.D. Cal. Jan. 5, 2016). The court then analyzes whether it should confirm final H OGAN L OVEL LS US LLP ATTO RNEY S AT LAW LOS A NG EL ES III. - 10 - MEM. OF P. & A. ISO MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 315-1 Filed 11/09/18 PageID.4824 Page 11 of 30 1 certification of any class preliminarily certified for settlement. Rosado v. Ebay Inc., 2 No. 5:12-cv04005-EJD, 2016 U.S. Dist. LEXIS 80760, at *4 (N.D. Cal. June 20, 3 2016). 4 Finally, “[h]aving already completed a preliminary examination of the 5 agreement, the court reviews it again, mindful that the law favors the compromise 6 and settlement of class action suits.” Id. In doing so, it seeks to determine if the 7 settlement is fair, reasonable, and adequate. Id. The court should “reach a reasoned 8 judgment that the agreement is not the product of fraud or overreaching by, or 9 collusion between, the negotiating parties, and that the settlement, taken as a whole, 10 is fair, reasonable and adequate to all concerned.” Officers for Justice, 688 F.2d at 11 625. Ultimately, “the decision to approve or reject a settlement is committed to the 12 sound discretion of the trial judge because he is exposed to the litigants and their 13 strategies, positions, and proof.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 14 (9th Cir. 1998). 15 IV. ANALYSIS 16 17 Consistent with the notice plan approved by the Court, Plaintiffs effectuated 18 class notice by mailing the Court-approved notice and Agreement to released class 19 members where feasible, hand-delivering the notice and Agreement to the 20 Settlement Class members in family detention, and sending the notice and 21 Agreement to dozens of non-profit organizations that regularly work with alien 22 families. 23 First, with respect to direct notice, the Agreement and Court-approved notice 24 form were mailed to all non-detained Settlement Class members for whom ICE had 25 address information. See Ex. 21 (Declaration of Brian A. Pinkerton). Following 26 preliminary approval, ICE provided Plaintiffs with the names, A-numbers, and 27 addresses for Settlement Class members who had been released from DHS or ORR 28 custody. Plaintiffs provided this information to a third-party administrator, Epiq, H OGAN L OVEL LS US LLP ATTO RNEY S AT LAW LOS A NG EL ES a. Plaintiffs Provided Both Direct and Indirect Notice to the Class. - 11 - MEM. OF P. & A. ISO MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 315-1 Filed 11/09/18 PageID.4825 Page 12 of 30 1 which has extensive experience in processing and mailing class notice. Id. ¶ 2, 4–5. 2 Using data provided by ICE, Epiq determined the most recent address available for 3 each Settlement Class member. Id. ¶ 6. Epiq identified potential mailing addresses 4 for 3,000 class members whose status indicated they had not departed the country. 5 Id. Epiq mailed the Agreement and notice form to each of these potential class 6 members on October 19, 2018. Id. ¶ 8. 7 In addition, class notice was hand-delivered to Settlement Class members 8 currently detained at the family residential centers in Karnes and Dilley, Texas (the 9 two family residential centers where reunified families are being detained in ICE 10 custody). See Ex. 22 (Declaration of Zachary W. Best) at ¶¶ 10–11. The notice was 11 provided to all class members at Dilley by October 11, 2018, and to the vast 12 majority of class members at Karnes by October 11, 2018.4 Id. 13 Second, in addition to the direct notice described above, Plaintiffs provided 14 indirect notice by disseminating the Agreement and Court-approved notice form to 15 dozens of organizations and entities that are likely to represent (or have 16 represented) members of the Settlement Class. Plaintiffs’ counsel disseminated the 17 Agreement and notice form to the Association of Pro Bono Counsel,5 a private list- 18 serve of organizations and individuals who have been providing legal and other 19 services to individuals affected by family separation,6 and the over 100 20 organizations listed in Exhibit 14 to Plaintiffs’ motion for preliminary approval.7 21 22 23 24 25 26 27 28 H OGAN L OVEL LS US LLP ATTO RNEY S AT LAW LOS A NG EL ES 4 The remaining minority of class members at Karnes were provided with notice over the course of approximately the following week, as they became accessible to the Refugee and Immigrant Center for Education and Legal Services (RAICES) in visitation. Ex. 22 at ¶ 11. Employees of RAICES delivered the notice to Settlement Class members detained in Karnes, Texas. Id. Employees of the Dilley Pro Bono Project delivered the notice to Settlement Class members detained in at the South Texas Family Residential Center in Dilley, Texas. Id. 5 T. Clark Weymouth, Plaintiffs’ counsel in M.M.M. and a member of the Association of Pro Bono Counsel, e-mailed notice to the list-serve and posted the notice to the Association’s SalesForce site on October 11, 2018. Id. ¶ 4. 6 Manoj Govindaiah e-mailed the notice and Agreement to the list-serve on October 11, 2018. Ex. 22 at ¶ 6. 7 Ashley Johnson, a paralegal with Hogan Lovells, e-mailed the notice. Ex. 22 - 12 - MEM. OF P. & A. ISO MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 315-1 Filed 11/09/18 PageID.4826 Page 13 of 30 1 Id. ¶¶ 3-6. Notice was provided to these organizations on October 11, 2018, within 2 48 hours of the Court granting preliminary approval. Id. 3 Plaintiffs’ counsel have also conducted other outreach to interested 4 organizations since the Agreement was preliminarily approved. For example, on 5 October 19, 2018, Plaintiffs’ counsel worked with the Catholic Legal Immigration 6 Network, Inc. (CLINIC) to host a webinar entitled “What You Need to Know 7 About the Dora v. Sessions, Ms. L v. ICE, and M.M.M. v. Sessions Preliminary 8 Settlement Agreement.” Id. ¶ 7. Relevant organizations were notified of the 9 webinar through a variety of list-serves and networks containing organizations that 10 provide direct legal representation to aliens like Settlement Class members. Over 11 400 people accepted registered for the webinar. Id. In partnership with CLINIC, 12 Plaintiffs’ counsel utilized the webinar to explain the Agreement in detail and 13 answer attendees’ questions about the Agreement. 8 Id. 14 Thus, the notice provided satisfies the Advisory Committee’s standards for 15 effecting class notice under Rule 23(b)(2) of the Federal Rules of Civil Procedure. 16 Russell v. Kohl’s Dep’t Stores, Inc., No. 16-56493, 2018 WL 5793450, at *1 (9th 17 Cir. Nov. 5, 2018) (“Federal Rule of Civil Procedure 23(c) requires the best notice 18 practicable under the circumstances, not actual notice to every class member.”); 19 Briseno v. ConAgra Foods, Inc., 844 F.3d 1121, 1129 (9th Cir.), cert. denied sub 20 nom. ConAgra Brands, Inc. v. Briseno, 138 S. Ct. 313(2017) (“when individual 21 22 23 24 25 26 27 28 H OGAN L OVEL LS US LLP ATTO RNEY S AT LAW LOS A NG EL ES at ¶ 5. Plaintiffs’ counsel was not able to locate an e-mail address for one entity on the list: Nebraska Immigration Legal Assistance Hotline (NILAH). See id. 8 Fourteen of the 35 legal service providers (LSPs) listed in the motion for preliminary approval were inadvertently left off of the October 11, 2018 communications described above. Ex. 22 at ¶ 8. Six of the 14 were invited to the October 19, 2018 webinar, and employees from five of those six registered for the webinar. Id. Of the remaining eight, one LSP was already aware of the settlement, three did not have clients who would be affected by the settlement, and one did not have any clients who were members of the settlement classes. Id. ¶ 9. Plaintiffs’ counsel made multiple attempts to contact the other three organizations by phone and e-mail on November 5-7, 2018, including e-mails attaching the Court-approved notice and Agreement and inviting questions, but as of this filing have not received a response. Id. - 13 - MEM. OF P. & A. ISO MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 315-1 Filed 11/09/18 PageID.4827 Page 14 of 30 1 notice by mail is ‘not possible, courts may use alternative means such as notice 2 through third parties.’” (quoting Mullins v. Direct Digital, LLC, 795 F.3d 654, 665 3 (7th Cir. 2015)).9 4 b. The Court Should Confirm Its Initial Finding That the 5 Requirements of Rule 23(a) Are Satisfied. 6 Rule 23(a) provides four baseline requirements for certifying a class: 7 numerosity, commonality, typicality, and adequacy. As the Court concluded in the 8 Order Granting Preliminary Approval, all four requirements are satisfied here. See 9 M.M.M. Dkt. No. 75 at 3.10 Both Settlement Classes should be certified. 10 Numerosity. Each Settlement Class satisfies the numerosity requirement 11 under Rule 23(a)(1) because the members of the Settlement Classes are “so 12 numerous that joinder is impracticable.” Id.; see also Fed. R. Civ. P. 23(a)(1). 13 Although a specific minimum number of class members is not required, Arnold v. 14 United Artists Theatre Circuit, Inc., 158 F.R.D. 439, 448 (N.D. Cal. 1994), “courts 15 have routinely found the numerosity requirement satisfied when the class comprises 16 40 or more members.” Kamakahi v. Am. Soc’y for Reprod. Med., 305 F.R.D. 164, 17 183 (N.D. Cal. 2015). Moreover, where a plaintiff seeks injunctive and declaratory 18 relief, as the Settlement Classes do here, the numerosity requirement is “relaxed” 19 and the court may infer from plaintiffs’ other evidence “that the number of 20 unknown and future members of [the] proposed []class . . . is sufficient to make 21 joinder impracticable.” Arnott v. U.S. Citizenship & Immigration Servs., 290 F.R.D. 22 579, 586 (C.D. Cal. 2012) (quoting Sueoka v. United States, 101 Fed. App’x 649, 23 24 25 26 27 28 H OGAN L OVEL LS US LLP ATTO RNEY S AT LAW LOS A NG EL ES 9 “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.” Fed. R. Civ. P. 23(c)(2) (2003 Advisory Committee Notes). 10 Unless otherwise noted docket entry citations that follow refer to documents filed in M.M.M. v. Sessions, Case No. 3:18-cv-1832-DMS (S.D. Cal.). - 14 - MEM. OF P. & A. ISO MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 315-1 Filed 11/09/18 PageID.4828 Page 15 of 30 1 653 (9th Cir. 2004)). 2 The numerosity requirement is easily satisfied for the Settlement Classes. 3 The parent class includes hundreds of parents. Cf. Ms. L Class Cert. Order at 8 n.7. 4 The child class is necessarily at least as large because it includes the children of all 5 parents who are in the parent class. Both Settlement Classes therefore satisfy the 6 numerosity requirement. 7 Commonality. The Settlement Classes satisfy the second element of Rule 8 23(a): that “there are issues of law and fact common to the Settlement Classes.” 9 M.M.M. Dkt. No. 75 at 3; Fed. R. Civ. P. 23(a)(2). Commonality is satisfied where 10 the plaintiff alleges the existence of a “common contention” that is “capable of 11 classwide resolution[.]” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). 12 The commonality requirement has “‘been construed permissively,’ and ‘[a]ll 13 questions of fact and law need not be common to satisfy the rule.’” Ellis v. Costco 14 Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011) (quoting Hanlon v. Chrysler 15 Corp., 150 F.3d 1011, 1019 (9th Cir. 1998)). Indeed, “commonality only requires a 16 single significant question of law or fact[,]” Mazza v. Am. Honda Motor Co., Inc., 17 666 F.3d 581, 589 (9th Cir. 2012) (citing Dukes, 564 U.S. at 359), and that is 18 particularly so where a suit “challenges a system-wide practice or policy that affects 19 all of the putative class members.” Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 20 2001), abrogated on other grounds by Johnson v. California, 543 U.S. 499 (2005). 21 The Settlement Classes fulfill the commonality requirement because they 22 present claims that raise common questions of fact and law. With respect to the 23 parent class, the claims raise the common question of whether separation of parents 24 and children at the border deprived those individuals of a meaningful opportunity to 25 pursue asylum claims, in violation of the Due Process Clause of the Fifth 26 Amendment and other federal laws.11 This claim is common to all parent class 27 28 H OGAN L OVEL LS US LLP ATTO RNEY S AT LAW LOS A NG EL ES 11 In Dora v. Sessions, 1:18-cv-1938 (D.D.C. 2018), these parents alleged that - 15 - MEM. OF P. & A. ISO MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 315-1 Filed 11/09/18 PageID.4829 Page 16 of 30 1 members, and this Court previously found that due process claims arising from the 2 separation raise common questions sufficient to satisfy the commonality 3 requirement. See Ms. L Class Cert. Order at 12–13 (quoting Parsons v. Ryan, 754 4 F.3d 657, 678 (9th Cir. 2014) (“‘[P]olicies and practices are the ‘glue’ that holds 5 together the putative class . . . ; either each of the policies and practices is unlawful 6 as to every inmate or it is not. That inquiry does not require us to determine the 7 effect of those policies and practices upon any individual class member (or class 8 members) or to undertake any other kind of individualized determination.’”)). As 9 the Court acknowledged in its prior class certification order in Ms. L, the reasoning 10 in Parsons is applicable to the current matter. As a result, the due process claims 11 are sufficiently common to satisfy Rule 23(a)(2)’s permissive standard regarding 12 commonality. See Mazza, 666 F.3d at 589. 13 Likewise, claims brought by members of the child class present the common 14 central legal question of whether the Government’s separation of parents and 15 children—and removal of the parent and child together following reunification 16 without providing the child with an independent opportunity to apply for asylum— 17 violated the Due Process Clause of the Fifth Amendment and other federal laws. 18 These common legal questions include: (1) whether class members can be removed 19 before receiving an opportunity to seek asylum or otherwise assert defenses to 20 removal; (2) whether their parents can and did waive their rights to seek asylum; 21 (3) what process, if any, is due prior to removal; and (4) whether class members 22 have a right to be accompanied by their parent as they go through that process. 23 Commonality is therefore satisfied. Cf. Parsons, 754 F.3d at 678 (finding 24 commonality and noting “although a presently existing risk may ultimately result in 25 different future harm for different inmates—ranging from no harm at all to death— 26 27 28 H OGAN L OVEL LS US LLP ATTO RNEY S AT LAW LOS A NG EL ES 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. - 16 - MEM. OF P. & A. ISO MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 315-1 Filed 11/09/18 PageID.4830 Page 17 of 30 1 every inmate suffers exactly the same constitutional injury when he is exposed to a 2 single statewide ADC policy or practice that creates a substantial risk of serious 3 harm.”). 4 5 requirement. See M.M.M. Dkt. No. 75 at 3–4 (“[T]he claims of the named Plaintiffs 6 in M.M.M. and Ms. L are typical of the claims of the Settlement Class 7 Members . . . .”). Typicality focuses on the relationship of facts and issues between 8 the class and its representatives. “[R]epresentative claims are ‘typical’ if they are 9 reasonably co-extensive with those of absent class members; they need not be 10 substantially identical.” Hanlon, 150 F.3d at 1020. “The test of typicality is whether 11 other members have the same or similar injury, whether the action is based on 12 conduct which is not unique to the named plaintiffs, and whether other class 13 members have been injured by the same course of conduct.” Hanon v. 14 Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (citation and internal 15 quotation marks omitted). The typicality requirement will occasionally merge with 16 the commonality requirement. See Parsons, 754 F.3d at 687. 17 The typicality requirement is met for the parent class. This Court previously 18 found the typicality element was satisfied for the class of Ms. L plaintiffs because: 19 (1) the named plaintiffs and absent class members were subject to the same 20 practice—family separation; (2) the due process claims raised by the plaintiffs and 21 the absent class members were the same; and (3) the plaintiffs and absent class 22 members suffered the same or similar injury. See Ms. L Class Cert. Order at 14. Just 23 as with the issues raised by the named plaintiffs in Ms. L, the proposed named 24 plaintiffs and parent Settlement Class members share a set of legal claims—that the 25 parent class members were deprived of a meaningful opportunity to pursue asylum 26 or other protection from removal. Similarly, the alleged injury—denial of the right 27 to a meaningful opportunity to pursue asylum procedures or other protection from 28 removal—is the same for all class members. Accordingly, the typicality H OGAN L OVEL LS US LLP ATTO RNEY S AT LAW LOS A NG EL ES Typicality. The Settlement Classes also meet Rule 23(a)’s typicality - 17 - MEM. OF P. & A. ISO MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 315-1 Filed 11/09/18 PageID.4831 Page 18 of 30 1 2 The typicality requirement is also met for the child class, because the claims 3 of the M.M.M. plaintiffs are “reasonably co-extensive” with the claims of members 4 of the child Settlement Class. As noted above, all members of the child Settlement 5 Class were separated from their parents and were subsequently subject to 6 reunification with their parents, leaving their ability to seek asylum in doubt to the 7 extent their parents had received any removal order during the period of separation 8 and selected the option of being reunified via an “election form.” All class members 9 thus were at risk of the same or similar injury (i.e., being removed without an 10 opportunity to seek asylum). Because the action is not based on conduct unique to 11 the named plaintiffs, and because all class members were subject to the same course 12 of conduct, typicality is satisfied for the child class. 13 Adequacy. The Settlement Classes satisfy the final requirement of Rule 14 23(a): adequacy. As the Court previously concluded, “Plaintiffs and the proposed 15 Class Counsel will fairly and adequately represent the interests of the Settlement 16 Class Members.” M.M.M. Dkt. No. 75 at 4; see also Fed. R. Civ. P. 23(a)(4). 17 The adequacy requirement is satisfied “if the proposed representative 18 plaintiffs do not have conflicts of interest with the proposed class and are 19 represented by qualified and competent counsel.” Kamakahi, 305 F.R.D. at 184. 20 Class counsel are deemed qualified when they can establish their experience in 21 previous class actions and cases involving the same area of law. Lynch v. Rank, 604 22 F. Supp. 30, 37 (N.D. Cal. 1984), aff’d 747 F.2d 528 (9th Cir. 1984), amended on 23 reh’g, 763 F.2d 1098 (9th Cir. 1985). 24 The parent Settlement Class fulfills the adequacy requirement. Class counsel 25 for the parent Settlement Class are attorneys from a prominent law firm and with 26 expertise in class actions, together with attorneys from non-profit organizations that 27 specialize in civil rights and immigration law. See Dkt. No. 73 at 40–52. 28 Collectively, these attorneys have extensive background in litigating class actions, H OGAN L OVEL LS US LLP ATTO RNEY S AT LAW LOS A NG EL ES requirement is met. - 18 - MEM. OF P. & A. ISO MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 315-1 Filed 11/09/18 PageID.4832 Page 19 of 30 1 and have extensive experience in the underlying issues of immigration law, 2 constitutional law, and administrative law. See id.; Dkt. No. 75 at 4. Furthermore, 3 as this Court noted, the named plaintiffs will fairly and adequately protect the 4 interests of the parent Settlement Class. See id. at 4. Named plaintiffs’ interests are 5 aligned with the parent Settlement Class: Plaintiffs have alleged—on behalf of 6 themselves and the parent Settlement Class—that the family separation impacted 7 their ability to meaningfully pursue asylum rights. 8 9 consisting of the same parent class definition, except that the requirements of 10 continuous physical presence in the United States do not apply. All parents are 11 members of the certified Ms. L class. Class counsel for the Ms. L Plaintiffs will 12 continue to act as class counsel for the reunification claims for all parents, including 13 the reunification claims of these parents. 14 The child Settlement Class similarly satisfies the adequacy requirement. 15 Class counsel are attorneys from a prominent law firm with expertise in class 16 actions who have been working closely with attorneys from non-profit 17 organizations that specialize in immigration law and in representing individuals and 18 families in immigration proceedings. See M.M.M. Dkt. No. 73 at 54–59. 19 Collectively, these attorneys have extensive background in litigating class actions, 20 and have extensive experience in the underlying issues of immigration law, 21 constitutional law, and administrative law. Id.; M.M.M. Dkt. No. 75 at 4. The 22 attorneys have prosecuted the M.M.M. case vigorously on behalf of the child 23 Settlement Class, pursuing the interests of M.M.M. plaintiffs and class members in 24 securing injunctive relief that will allow them to pursue asylum with the assistance 25 of their parents. Cf. Walters v. Reno, 145 F.3d 1032, 1046 (9th Cir. 1998) 26 (adequacy satisfied when “the district court specifically found that the attorneys for 27 the class representatives were well qualified and that the class representatives 28 themselves were adequate because they were not antagonistic to the interests of the H OGAN L OVEL LS US LLP ATTO RNEY S AT LAW LOS A NG EL ES As discussed above, there is a group of parents identified in the Agreement - 19 - MEM. OF P. & A. ISO MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 315-1 Filed 11/09/18 PageID.4833 Page 20 of 30 1 class and were ‘interested and involved in obtaining relief.’”). In addition, the 2 interests of the M.M.M. named plaintiffs and the child Settlement Class are aligned. 3 See M.M.M. Dkt. No. 75 at 4 (“[T]he interests of the Settlement Class 4 Representatives are consistent with those of Settlement Class Members . . . .”). All 5 class members, including the M.M.M. plaintiffs, have been subjected to a similar 6 course of conduct and have a strong interest in (1) securing meaningful access to 7 asylum procedures, and (2) securing their parents’ assistance with those procedures. 8 That is exactly the interest the M.M.M. plaintiffs have represented in this case. 9 Both Settlement Classes should be certified because they fulfill the four 10 11 12 13 c. The Court Should Confirm its Initial Finding That the Requirements of Rule 23(b)(2) Are Satisfied. Both Settlement Classes similarly satisfy the requirements for class 14 certification under Rule 23(b)(2). As the Court described in its order granting 15 preliminary approval, class certification under Rule 23(b)(2) is appropriate 16 “because Defendants are alleged to have acted or refused to act on grounds that 17 apply generally to the Settlement Classes, so that final injunctive relief or 18 corresponding declaratory relief is appropriate respecting the Settlement Classes as 19 a whole.” M.M.M. Dkt. No. 75 at 4; see also Fed. R. Civ. P. 23(b)(2). 20 The Rule 23(b)(2) inquiry is circumscribed; it “does not require an 21 examination of the viability or bases of the class members’ claims for relief, does 22 not require that the issues common to the class satisfy a Rule 23(b)(3)-like 23 predominance test, and does not require a finding that all members of the class have 24 suffered identical injuries.” Parsons, 754 F.3d at 688. Thus, “Rule 23(b)(2)’s 25 requirement that a defendant have acted consistently towards the class is plainly 26 more permissive than 23(b)(3)’s requirement that questions common to the class 27 predominate over individual issues.” Pecover v. Elec. Arts Inc., No. 08-2820-VRW, 28 2010 WL 8742757, at *14 (N.D. Cal. Dec. 21, 2010). It is “‘almost automatically H OGAN L OVEL LS US LLP ATTO RNEY S AT LAW LOS A NG EL ES factors under Rule 23(a). - 20 - MEM. OF P. & A. ISO MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 315-1 Filed 11/09/18 PageID.4834 Page 21 of 30 1 satisfied in actions primarily seeking injunctive relief.’” Gray v. Golden Gate Nat’l 2 Rec. Area, 279 F.R.D. 501, 520 (N.D. Cal. 2011) (quoting Baby Neal for and by 3 Kanter v. Casey, 43 F.3d 48, 58 (3rd Cir. 1994)). 4 Rule 23(b)(2) is met here for both Settlement Classes. Both the M.M.M. 5 plaintiffs and the Ms. L and Dora plaintiffs have sought relief from Defendants’ 6 policies that resulted in family separation, which were applied to the classes as a 7 whole, and which they contend denied Plaintiffs and class members with a 8 reasonable opportunity to pursue asylum or other protection from removal. 9 Defendants thus acted on grounds that “apply generally to the class.” Through 10 litigation in M.M.M. and Ms. L/Dora, Plaintiffs sought to enjoin the government 11 from further unlawful interference with Plaintiffs’ and the absent class members’ 12 right to pursue asylum or other protection from removal, and the proposed 13 settlement plan resolves these claims for the class “as a whole” by seeking to 14 restore each class member to a position that reasonably approximates the position 15 each class member would have occupied but for the Defendants’ conduct. Both 16 Settlement Classes should be certified because they satisfy Rule 23(b)(2). 17 18 d. The Settlement is Fair, Reasonable, and Adequate and Should be Approved by the Court. 19 Federal Rule of Civil Procedure 23(e) “‘requires court approval of all class 20 action settlements, which may be granted only after a fairness hearing and a 21 determination that the settlement taken as a whole is fair, reasonable, and 22 adequate.’” In re Online DVD-Rental Antitrust Litig., 779 F.3d 934, 944 (9th Cir. 23 2015) (citations omitted). “Where a settlement is the product of arms-length 24 negotiations conducted by capable and experienced counsel, the court begins its 25 analysis with a presumption that the settlement is fair and reasonable.” Garner v. 26 State Farm Mut. Auto. Ins. Co., No. CV 08 1365 CW (EMC), 2010 WL 1687832, 27 at *13 (N.D. Cal. Apr. 22, 2010). 28 H OGAN L OVEL LS US LLP ATTO RNEY S AT LAW LOS A NG EL ES - 21 - MEM. OF P. & A. ISO MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 315-1 Filed 11/09/18 PageID.4835 Page 22 of 30 1 2 3 4 5 6 7 8 9 10 When deciding whether to approve a proposed class action settlement, the Court may consider some or all of eight factors: [1] the strength of plaintiffs’ case; [2] the risk, expense, complexity, and likely duration of further litigation; [3] the risk of maintaining class action status throughout the trial; [4] the amount offered in settlement; [5] the extent of discovery completed, and the stage of the proceedings; [6] the experience and views of counsel; [7] the presence of a governmental participant; and [8] the reaction of the class members to the proposed settlement. Rodriguez, 563 F.3d at 963 (citation and internal quotation marks omitted). Analysis of applicable factors weighs in favor of final approval of the settlement as a good-faith, reasonable, and non-collusive agreement. 1. Strength of the Plaintiffs’ case 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The Court has recognized the merits of Plaintiffs’ cases multiple times throughout the life of this combined litigation. The Court granted the Ms. L Plaintiffs’ motion for a preliminary injunction, finding that the Plaintiffs established a likelihood of success on the merits that the separation of parents from their children violated the Plaintiffs’ substantive due process rights to family unity. See Order Granting Pls.’ Mot. for Classwide Prelim. Inj. at 17, Ms. L v. ICE, Case No. 3:18-cv-428-DMS, Dkt. No. 83 (S.D. Cal. June 26, 2018). In M.M.M., the Court issued a temporary restraining order, finding a likelihood of success on the merits of Plaintiffs’ claim that the Government must provide them with an opportunity to apply for asylum independent of their parents. See M.M.M. Dkt. No. 55 at 12. Despite the strength of their case, Plaintiffs are mindful of the potential difficulty of prevailing on the merits, given the jurisdictional and other defenses asserted by the government. This factor therefore weighs in favor of approval. 26 27 28 H OGAN L OVEL LS US LLP ATTO RNEY S AT LAW LOS A NG EL ES - 22 - MEM. OF P. & A. ISO MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 315-1 Filed 11/09/18 PageID.4836 Page 23 of 30 1 2 3 2. Risk, expense, complexity, and likely duration of further litigation Further litigation would present significant risks, complexity, and 4 burdens on both sides. Defendants have raised complex jurisdictional and 5 procedural defenses, contested the merits of Plaintiffs’ claims, and disputed 6 whether Plaintiffs’ requested relief is an appropriate remedy for the harms 7 alleged. Moreover, because of the unique jurisdictional requirements of 8 claims under 8 U.S.C. § 1252(e)(3), the parties are currently involved in 9 litigation in two separate district courts on the opposite ends of the country. If 10 settlement were not approved, the parties would face complex, lengthy, and 11 burdensome litigation, all while some members of the Settlement Classes are 12 detained in family detention centers. 13 In contrast, the proposed settlement provides significant, meaningful, 14 and certain relief to members of both proposed classes, and it does so 15 expeditiously. Members of the Settlement Classes are vulnerable parents and 16 children, many of whom are subject to final removal orders. The detained 17 members of the Plaintiff Classes are particularly interested in obtaining 18 finality in their removal proceedings to avoid prolonging their custody. The 19 Agreement provides meaningful relief that is consistent with the views 20 expressed by this Court as far as appropriate relief. Given the risks and 21 burdens of further litigation, this factor therefore weighs in favor of approval. 22 3. The risk of maintaining class action status. 23 Although Defendants have agreed to class treatment for purposes of 24 this settlement, they would be free to oppose class treatment if the case were 25 litigated. Although Plaintiffs believe the classes meet the Rule 23 factors and 26 are suitable for class treatment, class certification could be a disputed issue, 27 and this risk to both sides supports the fairness of a negotiated resolution for 28 H OGAN L OVEL LS US LLP ATTO RNEY S AT LAW LOS A NG EL ES - 23 - MEM. OF P. & A. ISO MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 315-1 Filed 11/09/18 PageID.4837 Page 24 of 30 1 all class members. Class-wide resolution of Plaintiffs’ claims through this 2 settlement is therefore appropriate. 3 4 4. The amount offered in settlement As discussed above, the lawsuits do not seek damages, but instead seek 5 injunctive relief. The equitable relief provided by settlement is substantial, 6 providing access to asylum-related procedures for hundreds of class members 7 that they otherwise would not have received. 8 9 The proceedings are still in early stages and no discovery has taken 10 place in the California actions covered by this settlement. Nevertheless, there 11 are no disputed facts at issue that are material to the approval of the 12 settlement. Since further discovery would be unlikely to have an effect on the 13 resolution of these issues, this factor favors approving the proposed 14 settlement. 15 6. Experience and view of counsel 16 Class counsel collectively have extensive experience in class actions, 17 immigration law, constitutional law, and administrative law and are capable 18 of weighing the facts, law, and risks of continued litigation. Class counsel 19 have vigorously prosecuted cases on behalf of the named Plaintiffs and have 20 pursued the interests of the class members in negotiating a settlement 21 agreement with Defendants that will provide both child and parent class 22 members with meaningful access to asylum procedures. Class counsel 23 believe that the proposed settlement is fair, reasonable, and adequate, and 24 therefore this factor weighs in favor of approval as well. 25 26 7. Presence of a governmental participant Defendants in these cases include cabinet members and heads of executive 27 agencies. Plaintiffs’ counsel negotiated the proposed settlement with federal 28 government lawyers representing the Defendants. Since the government was an H OGAN L OVEL LS US LLP ATTO RNEY S AT LAW LOS A NG EL ES 5. The extent of discovery and stage of proceedings - 24 - MEM. OF P. & A. ISO MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 315-1 Filed 11/09/18 PageID.4838 Page 25 of 30 1 active and indispensable participant in reaching the proposed settlement, this factor 2 too favors approval. 3 8. Reactions to the proposed settlement 4 The parties accomplished notice to the Settlement Class according to 5 the plan approved by the Court. To date, although notice was provided to 6 thousands of class members and dozens of relevant legal organizations, only 7 six objections have been filed. Moreover, in conjunction with the provision 8 of class notice, counsel for Plaintiffs held telephone conferences with 9 hundreds of individuals, including lawyers, from numerous organizations 10 serving the putative class members. While individuals raised questions about 11 the terms of the settlement, and how to assert rights thereunder, the 12 overwhelming response to the settlement was positive, reflected in the tiny 13 fraction of individuals who have raised objections. This factor therefore 14 favors approval as well. 15 16 17 V. CONCLUSION For the foregoing reasons, Plaintiffs request that the Court enter the attached proposed order approving the Agreement and certifying the Settlement Classes. 18 19 20 21 22 23 24 25 26 27 28 H OGAN L OVEL LS US LLP ATTO RNEY S AT LAW LOS A NG EL ES - 25 - MEM. OF P. & A. ISO MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 315-1 Filed 11/09/18 PageID.4839 Page 26 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 HOGAN LOVELLS US LLP /s/ Michael Maddigan 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 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 Katherine A. Nelson* 1601 Wewatta Street, Suite 900 Denver, CO 80202 Telephone: (303) 899-7300 Facsimile: (303) 899-7333 katherine.nelson@hoganlovells.com 23 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 24 Proposed Class Counsel for Child Class 25 Aaron M. Olsen Haeggquist and Eck LLP 225 Broadway, Ste 2050 San Diego, CA 92101 Telephone: (619) 342-8000 Facsimile: (619) 342-7878 aarono@haelaw.com 21 22 26 27 28 H OGAN L OVEL LS US LLP ATTO RNEY S AT LAW LOS A NG EL ES November 9, 2018 - 26 - MEM. OF P. & A. ISO MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 315-1 Filed 11/09/18 PageID.4840 Page 27 of 30 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 H OGAN L OVEL LS US LLP ATTO RNEY S AT LAW LOS A NG EL ES /s/ Wilson G. Barmeyer Wilson G. Barmeyer* Carol T. McClarnon* EVERSHEDS SUTHERLAND (US) LLP 700 Sixth Street NW, Suite 700 Washington, DC 20001 Telephone: (202) 383-0100 Facsimile: (202) 637-3593 wilsonbarmeyer@evershedssutherland.com John H. Fleming* EVERSHEDS SUTHERLAND (US) LLP 999 Peachtree Street NE, Suite 2300 Atlanta, GA 30309 Telephone: (404) 853-8000 Facsimile: (404) 853-8806 johnfleming@eversheds-sutherland.com Sirine Shebaya* Johnathan Smith* MUSLIM ADVOCATES P.O. Box 34440 Washington, D.C. 20043 Telephone: (202) 897-2622 Facsimile: (202) 508-1007 sirine@muslimadvocates.org johnathan@muslimadvocates.org Simon Y. Sandoval-Moshenberg* Sophia Gregg* LEGAL AID JUSTICE CENTER 6066 Leesburg Pike, Suite 520 Falls Church, VA 22041 Telephone: (703) 778-3450 Facsimile: (703) 778-3454 simon@justice4all.org sophia@justice4all.org Proposed Class Counsel for Parent Class Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* Stephen Kang * Spencer Amdur Daniel Galindo AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad St. 18th Floor New York, NY 10004 - 27 - MEM. OF P. & A. ISO MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 315-1 Filed 11/09/18 PageID.4841 Page 28 of 30 1 2 3 4 5 6 7 Telephone: (212) 549-2660 Facsimile: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org skang@aclu.org samdur@aclu.org dgalindo@aclu.org Proposed Counsel For Class Members Who do not Meet the Physical Presence Requirement *Admitted Pro Hac Vice 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 H OGAN L OVEL LS US LLP ATTO RNEY S AT LAW LOS A NG EL ES - 28 - MEM. OF P. & A. ISO MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 315-1 Filed 11/09/18 PageID.4842 Page 29 of 30 1 CERTIFICATE OF SERVICE 2 I hereby certify that I filed the foregoing MEMORANDUM OF POINTS 3 AND AUTHORITIES IN SUPPORT OF MOTION FOR FINAL APPROVAL OF 4 CLASS ACTION SETTLEMENT, with the Clerk of the Court through the ECF 5 system on November 9, 2018. This system provided a copy to and effected service 6 of this document on all parties. 7 Dated: 8 9 November 9, 2018 HOGAN LOVELLS US LLP By: 10 11 /s/ Michael Maddigan Michael Maddigan Attorney for Plaintiff (Cal. Bar No. 163450) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 H OGAN L OVEL LS US LLP ATTO RNEY S AT LAW LOS A NG EL ES - 29 - MEM. OF P. & A. ISO MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 315-1 Filed 11/09/18 PageID.4843 Page 30 of 30 1 2 3 4 5 M.M.M., on behalf of his minor child, J.M.A., et al. v. Jefferson Beauregard Sessions, III, Attorney General of the United States, et al. EXHIBITS TO MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT TABLE OF CONTENTS 6 7 8 9 10 Exhibit Document Pages 20 Settlement Agreement 31–38 21 11 12 22 November 7, 2018 Declaration of Brian A. Pinkerton Regarding Dissemination of Settlement Notice November 9, 2018 Declaration of Zachary W. Best in Support of Motion for Final Approval of Class Action Settlement 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 H OGAN L OVEL LS US LLP ATTO RNEY S AT LAW LOS A NG EL ES - 30 - 39–60 61–65 Case 3:18-cv-00428-DMS-MDD Document 315-2 Filed 11/09/18 PageID.4844 Page 1 of 35 EXHIBIT 20 EXHIBIT 20, Page 31 Case 3:18-cv-00428-DMS-MDD Document 315-2 Filed 11/09/18 PageID.4845 Page 2 of 35 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 20, Page 32 Case 3:18-cv-00428-DMS-MDD Document 315-2 Filed 11/09/18 PageID.4846 Page 3 of 35 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 20, Page 33 Case 3:18-cv-00428-DMS-MDD Document 315-2 Filed 11/09/18 PageID.4847 Page 4 of 35 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 20, Page 34 Case 3:18-cv-00428-DMS-MDD Document 315-2 Filed 11/09/18 PageID.4848 Page 5 of 35 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 20, Page 35 Case 3:18-cv-00428-DMS-MDD Document 315-2 Filed 11/09/18 PageID.4849 Page 6 of 35 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 20, Page 36 Case 3:18-cv-00428-DMS-MDD Document 315-2 Filed 11/09/18 PageID.4850 Page 7 of 35 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 20, Page 37 Case 3:18-cv-00428-DMS-MDD Document 315-2 Filed 11/09/18 PageID.4851 Page 8 of 35 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 20, Page 38 Case 3:18-cv-00428-DMS-MDD Document 315-2 Filed 11/09/18 PageID.4852 Page 9 of 35 EXHIBIT 21 EXHIBIT 21, Page 39 Case 3:18-cv-00428-DMS-MDD Document 315-2 Filed 11/09/18 PageID.4853 Page 10 of 35 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA SAN DIEGO DIVISION M.M.M., on behalf of his minor child, J.M.A., et al., Plaintiffs, v. Jefferson Beauregard Sessions, III, Attorney General of the United States, et al., Case No. 3:18-cv-1832-DMS Case No. 3:18-cv-428-DMS DECLARATION OF BRIAN A. PINKERTON REGARDING DISSEMINATION OF SETTLEMENT NOTICE Defendants. Ms. L, et al., Plaintiffs, DATE: TIME: COURTROOM: JUDGE: Hon. Dana M. Sabraw v. U.S. Immigration and Customs Enforcement, et al., Defendants. DECLARATION OF BRIAN A. PINKERTON REGARDING DISSEMINATION OF SETTLEMENT NOTICE I, BRIAN A. PINKERTON, declare as follows: 1. I am a Senior Project Manager of Client Services for Epiq Class Action & Claims Solutions, Inc. (“Epiq”).1 The following statements are based on my personal knowledge and 1 Garden City Group, LLC (“GCG”) was acquired by Epiq on June 15, 2018 and is now continuing operations as part of Epiq. All references herein to either Epiq or GCG are used interchangeably to refer to the integrated Epiq organization. DECLARATION OF BRIAN A. PINKERTON -1- EXHIBIT 21, Page 40 Case 3:18-cv-00428-DMS-MDD Document 315-2 Filed 11/09/18 PageID.4854 Page 11 of 35 information provided by other GCG employees working under my supervision, and if called on to do so, I could and would testify competently about these issues. 2. GCG has a considerable amount of expertise in class action administration and the development of notice programs. In its history of over 30 years, our team has served as administrator for over 3,400 settlements. GCG has mailed hundreds of millions of notices, disseminated over 375 million emails, handled over 35 million phone calls, designed and launched over 1,000 settlement websites, issued approximately 39 million payments, and distributed over $72 billion in benefits. 3. GCG was contacted by Class Counsel for the parent class, Wilson G. Barmeyer of Eversheds Southerland, and ultimately selected by the Parties to disseminate the Notice to potential Settlement Class Members for both classes in the above-captioned cases in accordance with the Settlement Agreement dated October 5, 2018 (“Agreement”) 2 and the Court’s October 9, 2018 Order Granting Preliminary Approval of Proposed Settlement; Preliminarily Certifying the Settlement Classes; and Approving Class Notice (“Order”). I submit this declaration to provide the Court and Parties with information relating to GCG’s review and compilation of the list of potential Settlement Class Members and the dissemination of the approved Notice. CLASS DATA TRANSFER AND ANALYSIS 4. On October 10, 2018, Class Counsel provided GCG with access to 12 separate excel files containing names and addresses for potential Settlement Class Members in both settlement classes. GCG immediately accessed Class Counsel’s secure file transfer portal and retrieved the spreadsheets, which contained data provided by the government relating to the last known 2 All capitalized terms not otherwise defined in this document shall have the meaning ascribed to them in the Agreement DECLARATION OF BRIAN A. PINKERTON -2- EXHIBIT 21, Page 41 Case 3:18-cv-00428-DMS-MDD Document 315-2 Filed 11/09/18 PageID.4855 Page 12 of 35 detention status and addresses of potential Settlement Class Members from various dates between July 2018 and October 6, 2018. 5. On October 15, 2018, GCG was provided with one additional file containing additional name and address information for potential members of the parent class. 6. GCG analyzed and compared the 13 spreadsheets to create a single list of unique potential Settlement Class Members for each class. GCG identified the most recent reunification status and last known address for each potential Settlement Class Member in both classes. Ultimately, GCG identified 2,513 unique potential members of the parent class and 2,657 unique potential members of the child class for a total of 5,170 potential Settlement Class Members. Searching across all 13 spreadsheets, GCG was able to locate a potential mailing address for a total of 3,000 Settlement Class Members whose status indicated they had not departed the country. 7. GCG loaded the name and address data for all 5,170 potential Settlement Class Members into a secure database created specifically for this proposed settlement (“Settlement Database”). NOTICE DISSEMINATION 8. On October 19, 2018, in accordance with paragraph 10 of the Order, GCG mailed to each of the 3,000 potential Settlement Class Member for whom GCG was able to locate an address in any of the 13 data files a notice packet consisting of the English version of the Courtapproved Notice, the Spanish version of the Notice, and a copy of the Agreement. A true and correct copy of the notice packet that was sent to potential Settlement Class Members is attached hereto as Exhibit A. 9. As of November 7, 2018, GCG has received 6 notice packets returned by the United States Postal Service (“USPS”) with updated address information. Notice packets returned with DECLARATION OF BRIAN A. PINKERTON -3- EXHIBIT 21, Page 42 Case 3:18-cv-00428-DMS-MDD Document 315-2 Filed 11/09/18 PageID.4856 Page 13 of 35 forwarding addresses were re-mailed to the updated addresses and the Settlement Class Members’ addresses were updated in the Settlement Database. 10. As of November 7, 2018, GCG has received 423 notice packets returned by USPS as undeliverable without forwarding address information. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed on November 7, 2018, in Seattle, Washington. _____________________________________________ BRIAN A. PINKERTON DECLARATION OF BRIAN A. PINKERTON -4- EXHIBIT 21, Page 43 Case 3:18-cv-00428-DMS-MDD Document 315-2 Filed 11/09/18 PageID.4857 Page 14 of 35 Exhibit A EXHIBIT 21, Page 44 Case 3:18-cv-00428-DMS-MDD Document 315-2 Filed 11/09/18 PageID.4858 Page 15 of 35 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 EXHIBIT 21, Page 45 Case 3:18-cv-00428-DMS-MDD Document 315-2 Filed 11/09/18 PageID.4859 Page 16 of 35 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 is 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 individuals 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 EXHIBIT 21, Page 46 Case 3:18-cv-00428-DMS-MDD Document 315-2 Filed 11/09/18 PageID.4860 Page 17 of 35 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 10:30 AM (PT) 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. 3 EXHIBIT 21, Page 47 Case 3:18-cv-00428-DMS-MDD Document 315-2 Filed 11/09/18 PageID.4861 Page 18 of 35 Who represents the Classes? Proposed Class Counsel for Child Class: Proposed Class Counsel for Parent Class (Parents in the United States): MMMSettlementQuestions@hoganlovells.com parentsasylumclass@eversheds-sutherland.com 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 Wilson G. Barmeyer Carol T. McClarnon John H. Fleming EVERSHEDS SUTHERLAND (US) LLP 700 Sixth Street NW, Suite 700 Washington, DC 20001 Telephone: (202) 220-8628 Fax: (202) 637-3593 Proposed Counsel for Removed Parents: Sirine Shebaya Johnathan Smith MUSLIM ADVOCATES familyseparation@aclu.org 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 Simon Y. Sandoval-Moshenberg Sophia Gregg LEGAL AID JUSTICE CENTER 4 EXHIBIT 21, Page 48 Case 3:18-cv-00428-DMS-MDD Document 315-2 Filed 11/09/18 PageID.4862 Page 19 of 35 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: ______________________________________________ 5 EXHIBIT 21, Page 49 Case 3:18-cv-00428-DMS-MDD Document 315-2 Filed 11/09/18 PageID.4863 Page 20 of 35 6 EXHIBIT 21, Page 50 Case 3:18-cv-00428-DMS-MDD Document 315-2 Filed 11/09/18 PageID.4864 Page 21 of 35 AVISO DE ACUERDO PROPUESTO y FORMULARIO DE ELECCIÓN DEL ACUERDO Si estuvo separado de su(s) padre(s) o hijo(s) en la frontera, sus derechos pueden verse afectados por un acuerdo de demanda colectiva propuesto. Se ha llegado a un acuerdo propuesto en las demandas colectivas en relación con el mecanismo por el cual ciertos padres e hijos separados pueden solicitar asilo u otra protección en los Estados Unidos. Los juicios son de M.M.M. v. Sessions, Caso No. 3: 18-cv-1832-DMS (S.D. Cal.), M.M.M. v. Sessions, Caso No. 1: 18-cv-1835-PLF (D.D.C.), Ms. L. v. ICE, Caso No. 3: 18-cv-428-DMS (SD Cal.), y Dora v. Sessions, Caso No. 18-cv-1938 (D.D.C.). ¿De qué se tratan estas demandas? Estas demandas fueron presentadas en nombre de padres e hijos que fueron separados después de ser detenidos por el gobierno de los Estados Unidos en o cerca de la frontera. Los demandantes alegan que el gobierno de los Estados Unidos no les dio a estos padres e hijos la oportunidad adecuada de buscar asilo u otra protección contra la expulsión en los Estados Unidos. El juez que supervisa las demandas detuvo temporalmente el traslado de las familias que se reunieron después de haber sido separados en la frontera. Los demandantes y el gobierno de los Estados Unidos posteriormente acordaron un acuerdo, que otorgará a los padres e hijos el acceso a los procedimientos para solicitar asilo u otra protección contra la expulsión en los Estados Unidos. ¿Quién está incluido? Un padre puede ser un miembro de la Clase del Acuerdo de Padres si él o ella:  Es un padre extranjero adulto que entró a los Estados Unidos en o entre los puertos de entrada designados con su(s) hijo(s),  fue detenido bajo custodia de inmigración por el Departamento de Seguridad Nacional (DHS),  Tiene un hijo que estuvo o está separado de él o ella y que se encontraba bajo la custodia del DHS, la custodia de la Oficina de Reasentamiento de Refugiados (ORR, por sus siglas en inglés), o cuidado de crianza temporal de ORR a partir del 26 de Junio de 2018.  Se le ordenó reunificarse de conformidad con la Orden de la Corte en la Sra. L. v. Estados Unidos de Inmigración y Control de Aduanas, No. 18-428 (S.D. Cal. 26 de Junio de 2018); y  Ha estado presente físicamente continuamente en los Estados Unidos desde el 26 de Junio de 2018. El acuerdo también refleja el acuerdo de las partes con respecto a los individuos que se ajustan a la descripción de la clase de padres según se define anteriormente, pero que se eliminaron de los 1 EXHIBIT 21, Page 51 Case 3:18-cv-00428-DMS-MDD Document 315-2 Filed 11/09/18 PageID.4865 Page 22 of 35 Estados Unidos, así como los derechos de los miembros de la clase de niños (definidos a continuación) cuyos padres han sido remoto. Un niño puede ser un miembro de la Clase del Acuerdo Infantil si:  Es un niño extranjero menor de 18 años de edad a partir de la fecha de vigencia del acuerdo, que ingresó a los Estados Unidos en o entre los puertos de entrada designados con un padre extranjero,  Fue separado de su(s) padre(s),  Ha sido o será reunificado con su(s) padre(s) bajo la orden preliminar emitida en la Sra. L. v. U.S. Inmigración y Control de Aduanas, No. 18-428 (S.D. Cal. 26 de Junio de 2018), y  Ha estado presente físicamente continuamente en los Estados Unidos desde el 26 de Junio de 2018. ¿Qué alivio proporciona el acuerdo? Entre otras cosas, el Acuerdo de Resolución requiere que, para los padres que inicialmente recibieron un hallazgo de miedo creíble negativo y tienen una orden final de remoción acelerada, el gobierno de los Estados Unidos realizará una revisión de buena fe de los hallazgos de temor creíbles anteriores de los padre,1 que incluye reunirse con un oficial de asilo para presentar información adicional. Para los hijos de dichos padres a quienes se les emitió un Aviso de comparecencia (NTA) o se encuentran en proceso de deportación, la NTA se cancelará o el gobierno se moverá para descartar los procedimientos de expulsión, y el niño será colocado en una deportación acelerada junto con el padre. El niño también será referido para una entrevista de temor creíble si el niño expresa temor de regresar. Si se descubre que el padre tiene un temor creíble, a ambos padres e hijos se les otorgará una NTA para que comparezca ante un juez de inmigración, donde podrán presentar una solicitud de asilo u otras demandas de protección ante el tribunal de inmigración. Si los padres no reciben un hallazgo de miedo creíble positivo en la revisión, entonces el gobierno de los Estados Unidos les proporcionará a sus hijos su propia entrevista de miedo creíble. Si los niños reciben un hallazgo de temor creíble positivo, ellos y sus padres recibirán una NTA para que comparezcan ante un juez de inmigración, donde podrán presentar una solicitud de asilo u otras demandas de protección ante el tribunal de inmigración. Se aplican procedimientos adicionales o de otro tipo cuando los padres y los niños han sido liberados de la detención, cuando los padres están sujetos a órdenes de expulsión reintegradas o definitivas, o cuando los padres ya han sido retirados. El Acuerdo de Conciliación no proporciona ningún pago monetario a los miembros de la clase. Los padres y los niños que entran en estas categorías deben leer el Acuerdo de Resolución final y / o consultar con un abogado para comprender qué derechos pueden tener en virtud del Acuerdo. Si se aprueba el Acuerdo de conciliación, se prohibirá a los miembros de la clase que busquen cualquier otra medida cautelar, declaratoria o equitativa relacionada con la inmigración o el asilo relacionada con las alegaciones formuladas en estas demandas. Todos los términos del Acuerdo propuesto están sujetos a la aprobación del Tribunal en una "Audiencia de Aprobación Final" que se explica a continuación. Se adjunta una copia del Acuerdo de conciliación a este aviso. 1 “Miedo creíble” se refiere al proceso mediante el cual los individuos sujetos a una remoción acelerada pueden buscar asilo en los Estados Unidos, en el cual un funcionario de asilo del gobierno de los EE. UU. puede establecer un temor creíble de persecución o tortura si son devueltos a su país de origen. Si el extranjero recibe una determinación de temor creíble positiva, él o ella puede presentar una solicitud de asilo ante el tribunal de inmigración. 2 EXHIBIT 21, Page 52 Case 3:18-cv-00428-DMS-MDD Document 315-2 Filed 11/09/18 PageID.4866 Page 23 of 35 Usted tiene el derecho de objetar el acuerdo. Aunque puede renunciar a sus derechos de buscar alivio en virtud de este Acuerdo de Conciliación, no puede excluirse del acuerdo. Sin embargo, puede solicitar al Tribunal que rechace la aprobación presentando una objeción. Si la Corte niega la aprobación, las demandas continuarán. Si eso es lo que quieres que suceda, debes objetar. Usted puede objetar el acuerdo propuesto por escrito. También puede presentarse en la Audiencia de aprobación definitiva, ya sea en persona o por medio de su propio abogado. Todas las objeciones escritas y documentos de apoyo deben (a) identificar claramente los siguientes nombres y números de casos: M.M.M. v. Sessions, Caso No. 3: 18-cv-1832-DMS (S.D. Cal.) y Ms. L. v. ICE, Caso No. 3: 18-cv-428-DMS (S.D. Cal.), (b) enviarse al Tribunal enviándolos por correo al Secretario de Acción de Clase, Tribunal de Distrito de los Estados Unidos para el Distrito Sur de California, Palacio de Justicia de San Diego, 333 West Broadway, San Diego, CA 92101, o presentándolos personalmente en cualquier lugar del Tribunal de Distrito de los Estados Unidos para el Distrito Sur de California, y (c) debe presentarse o enviarse por correo postal el 2 de Noviembre de 2018 o antes. ¿Cuándo y dónde decidirá el Tribunal si aprueba el acuerdo? La audiencia de aprobación final se llevará a cabo el 15 de Noviembre de 2018, a la 10:30 a.m. (PT) en la sala 13A, piso 13, suite 1310, 333 West Broadway, San Diego, CA 92101, para determinar la imparcialidad, razonabilidad y adecuación de la propuesta Asentamiento. La fecha puede cambiar sin previo aviso a la clase. ¿Dónde puedo obtener más información? Este aviso resume el acuerdo propuesto. Para conocer los términos y condiciones exactos del acuerdo, consulte el Acuerdo de Acuerdo adjunto, contactando al abogado de la clase que se identifica a continuación, accediendo al expediente del Tribunal en este caso a través del sistema de Acceso Público a los Registros Electrónicos del Tribunal (PACER) en https: // ecf.casd.uscourts.gov, o visitando la oficina del Secretario de la Corte del Tribunal de Distrito de los Estados Unidos para el Distrito Sur de California, San Diego, entre las 8:30 am y las 4:30 pm, de Lunes a Viernes, excluyendo días festivos. POR FAVOR, NO LLAME A LA OFICINA DEL TRIBUNAL O AL TRIBUNAL DE CORREO PARA CONSULTAR SOBRE ESTE ACUERDO 3 EXHIBIT 21, Page 53 Case 3:18-cv-00428-DMS-MDD Document 315-2 Filed 11/09/18 PageID.4867 Page 24 of 35 ¿Quién representa a las Clases? Grupo de Abogados Propuestos para la Clase de Padres (Padres en los Estados Unidos): Grupo de Abogados Propuestos para la Clase Infantil: parentsasylumclass@eversheds-sutherland.com MMMSettlementQuestions@hoganlovells.com Justin W. Bernick Zachary W. Best T. Clark Weymouth HOGAN LOVELLS US LLP 555 Thirteenth Street, NW Washington, DC 20004 Teléfono: (888) 365-1112 Fax: (202) 637-5910 Wilson G. Barmeyer Carol T. McClarnon John H. Fleming EVERSHEDS SUTHERLAND (US) LLP 700 Sixth Street NW, Suite 700 Washington, DC 20001 Teléfono: (202) 220-8628 Fax: (202) 637-3593 Consejo Propuesto para Padres Retirados: Sirine Shebaya Johnathan Smith MUSLIM ADVOCATES familyseparation@aclu.org Lee Gelernt Judy Rabinovitz Anand Balakrishnan Stephen Kang Spencer Amdur AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad St. 18th Floor New York, NY 10004 Teléfono: (212) 549-2660 Fax: (212) 549-2654 Simon Y. Sandoval-Moshenberg Sophia Gregg LEGAL AID JUSTICE CENTER 4 EXHIBIT 21, Page 54 Case 3:18-cv-00428-DMS-MDD Document 315-2 Filed 11/09/18 PageID.4868 Page 25 of 35 Usted tiene el derecho de renunciar a la exención en virtud del acuerdo. Los padres o hijos que deseen renunciar a sus derechos en virtud de este Acuerdo de Conciliación y ser trasladados sin demora a su país de origen, tienen derecho a hacerlo mediante la ejecución del siguiente formulario. Cualquier decisión de regresar a su país de origen debe tomarse afirmativamente, a sabiendas y voluntariamente. El hecho de no devolver este formulario no se interpretará como una renuncia a sus derechos en virtud del Acuerdo de Conciliación. Instrucciones: Este formulario debe ser leído al miembro de la clase en un idioma que él/ella entienda. El miembro de la clase debe indicar qué opción está eligiendo al firmar el cuadro correspondiente a continuación. Si el miembro de la clase es un niño y carece de capacidad o es menor de 14 años, este formulario debe ser firmado por el padre o representante legal del niño. Se deben completar formularios separados para cada miembro de la familia. Los formularios completados deben enviarse por correo o por correo electrónico al abogado para la clase propuesta apropiada que se establece a continuación. Solicito permanecer en los Estados Unidos para buscar alivio de remoción. Entiendo que el acuerdo de demanda colectiva no garantiza que recibiré alivio de la eliminación. Nombre (en letra de molde): ____________________________ Firma: _________________________________ Estoy solicitando de manera afirmativa, deliberada y voluntaria mi traslado a mi país de origen lo antes posible. Entiendo que estoy renunciando a cualquier derecho a permanecer en los Estados Unidos para seguir los procedimientos establecidos en el acuerdo, incluido cualquier derecho a solicitar asilo u otra protección contra la expulsión. Nombre (en letra de molde): ____________________________ Firma: _________________________________ Tu información: Nombre: _____________________________________________________________ Fecha de Nacimiento: ___________________________________________________ A#: _________________________________________________________________ Pais de Ciudadania: ____________________________________________________ Centro de detención (si es aplicable): ______________________________________ Domicilio: ___________________________________________________________ Numero de teléfono: ___________________________________________________ Nombre(s) del padre(s) / hijo(s): __________________________________________ Padre(s) / hijo(s) A #(s): ________________________________________________ Domicilio del padre(s) / hijo(s): __________________________________________ Teléfono de padre(s) / hijo(s): ____________________________________________ Certificación de Abogado: Yo represento ____________________ (nombre) en su proceso migratorio. Le he informado a él / ella (y / o su padre / madre o representante legal) de sus derechos en virtud del acuerdo de demanda colectiva propuesto en ____________________ (idioma). Firma de abogado: _____________________________________________ Nombre de Abogado: ________________________________________________ Fecha: ________________________________________________________ Número de teléfono del abogado: ____________________________________________ Domicilio del abogado: __________________________________________ 5 EXHIBIT 21, Page 55 Case 3:18-cv-00428-DMS-MDD Document 315-2 Filed 11/09/18 PageID.4869 Page 26 of 35 6 EXHIBIT 21, Page 56 Case 3:18-cv-00428-DMS-MDD Document 315-2 Filed 11/09/18 PageID.4870 Page 27 of 35 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 preliminary-injunction 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. Settlement Agreement 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 1. a. 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. b. 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. 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. 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. 1 EXHIBIT 21, Page 57 Case 3:18-cv-00428-DMS-MDD Document 315-2 Filed 11/09/18 PageID.4871 Page 28 of 35 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 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 detained2 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 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 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 factgathering 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. 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. 2 EXHIBIT 21, Page 58 Case 3:18-cv-00428-DMS-MDD Document 315-2 Filed 11/09/18 PageID.4872 Page 29 of 35 g. 2. 3. 4. 5. 6. 7. 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. 8. 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. 18-428 (S.D. Cal.) (Aug. 16, 2018) (ECF 192) (recognizing that class members may be 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 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). 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. 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. 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). 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. 3 EXHIBIT 21, Page 59 Case 3:18-cv-00428-DMS-MDD Document 315-2 Filed 11/09/18 PageID.4873 Page 30 of 35 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 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. 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. 4 EXHIBIT 21, Page 60 Case 3:18-cv-00428-DMS-MDD Document 315-2 Filed 11/09/18 PageID.4874 Page 31 of 35 EXHIBIT 22 EXHIBIT 22, Page 61 Case 3:18-cv-00428-DMS-MDD Document 315-2 Filed 11/09/18 PageID.4875 Page 32 of 35 ________________________________ 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., Case No. 3:18-cv-1$32-DMS 7 Plaintiffs, V. 9 10 11 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., DECLARATION OF ZACHARY W. BEST IN SUPPORT OF MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Defendants. 19 20 21 22 I, Zachary W. Best, hereby state as follows: 1. 1 am a Senior Associate at the 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 2. I am one of several attorneys at Hogan Lovells who represent the class 26 of children that was provisionally certified in the above-captioned cases on October 27 9,2018. 28 EXHIBIT 22, Page 62 Case 3:18-cv-00428-DMS-MDD Document 315-2 Filed 11/09/18 PageID.4876 Page 33 of 35 3. 2 My colleague, T. Clark Weymouth, is a member of the Association of Pro Bono Counsel, which 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. 4. 6 On October 11, 2018, Mr. Weymouth e-mailed the Court-approved notice form and Settlement Agreement to the Association of Pro Bono Counsel listserve. On that same date, Mr. Weymouth also posted the Court-approved notice 8 form and Settlement Agreement the Association of Pro Bono Counsel’s internal Salesforce site. 10 The cover notes to these messages urged the recipients to “PLEASE DISSEMINATE BROADLY” and noted that recipients were being notified because “you or your organization might have current or former clients 12 13 14 who fall into one of these classes. 5. On October 11, 2018, a paralegal employed with Hogan Lovells, Ashley Johnson, e-mailed the Court-approved notice form and Settlement Agreement to the over 100 organizations listed in Exhibit 14 to the Plaintiffs’ 16 Unopposed Motion for Preliminary Approval of Proposed Settlement, Dkt. 17 The e-mail urged recipients to “PLEASE DISSEMINATE BROADLY” and noted 18 that recipients were being notified because “you or your organization might have 19 current or former clients who fall into one of these classes.” 20 6. 731 On October 11, 2018, Manoj Govindaiah, Director of Family 21 Detention Services at RAICES, e-mailed the Court-approved notice form and 22 Settlement Agreement to a private list-serve of organizations and individuals who 23 have been providing legal and other services to individuals affected by family 24 separation. There are over 200 e-mail addresses subscribed to the list-serve. 25 26 . 7. . . . On October 19, 2018, Plaintiffs’ counsel, in partnership with the . . . Catholic Legal Immigration Network, Inc. (CLINIC), hosted a webinar entitled . 27 28 1We were not able to locate an e-mail address for one of the organizations on this list: Nebraska Immigration Legal Assistance Hotline (NILAH). EXHIBIT 22, Page 63 Case 3:18-cv-00428-DMS-MDD Document 315-2 Filed 11/09/18 PageID.4877 Page 34 of 35 1 “What You Need to Know About the Dora v. Sessions, Ms. L v. ICE, and M.YM. 2 v. Sessions Preliminary Settlement Agreement.” The purpose of the webinar was to explain the Settlement Agreement in detail to local legal service providers and answer questions about the Agreement. All organizations that are part of the CLINIC network, including all Catholic Charities entities, were invited to the 6 webinar. Nearly 500 individuals registered for the webinar (494 in total), and over 250 people attended. 8 8. Due to an error in generating the list of organizations that were to receive e-mail notice, 14 of the 35 “LSPs” listed in the Motion for Preliminary 10 Approval were not included on the October 11, 2018 e-mails described in 11 paragraphs 5 and 6, above. However, employees from 4 out of the 14 LSPs attended the October 19 webinar (Cabnni, Catholic Charities of Baltimore, Hogar, 13 and Legal Services for Children), a fifih was registered for the webinar (Human 14 Rights Initiative), and a sixth would have received notice of the webinar as a part of 15 the CLINIC network (Catholic Charities of D.C.). 9. With respect to the remaining eight LSPs not included in the October 17 e-mails, Justin Bernick and I contacted them by both telephone and e-mail on 18 November 5, November 6, and November 7, 2018, to provide notice of the 19 Agreement and the fairness hearing scheduled for November 15, 2018, and to 20 21 22 23 24 25 26 27 encourage them to contact us with questions. We c-mailed the Court-approved notice form and Settlement Agreement to all nine LSPs, and spoke directly to five. One (JFCSP) was already aware of the settlement. Two (Charlotte Immigration Law Firm and Legal Services of New Jersey) did not believe they had any clients who would fall within the settlement classes. The fourth (MIA Memphis) has one class member client . — a child who accepted voluntary departure and wishes to be . . . . returned to his country of origin with his father once the father executes a waiver form. The fifth (YMCA International) does not have any current clients who would 28 -3- EXHIBIT 22, Page 64 Case 3:18-cv-00428-DMS-MDD Document 315-2 Filed 11/09/18 PageID.4878 Page 35 of 35 1 be members of the settlement classes. The remaining three have not responded to 2 our e-mails or voicemails. 10. I have confirmed that, by October 11, 2018, employees of the Dilley Pro Bono Project had provided the court-approved notice form and Agreement to all settlement class members detained in Dilley, Texas. 6 11. I have confirmed that, by October 11, 2018, employees of RAICES had provided the court-approved notice form and Agreement to the vast majority of 8 settlement class members detained in Kames, Texas. Employees of RAICES provided the notice to the remaining individuals approximately over the course of 10 the following week, as RAICES employees were able to see class members in 11 visitation. 12 13 EXECUTED WITHIN THE UNITED STATES ON: November 9, 2018 14 BY:’j 17 Zachary 18 19 20 21 22 23 24 25 26 27 28 -4- EXHIBIT 22, Page 65 Case 3:18-cv-00428-DMS-MDD Document 315-3 Filed 11/09/18 PageID.4879 Page 1 of 6 1 4 MICHAEL M. MADDIGAN (SBN 163450) HOGAN LOVELLS US LLP 1999 Avenue of the Stars, Suite 1400 Los Angeles, CA 90067 Telephone: (310) 785-4727 Facsimile: (310) 785-4601 Email: michael.maddigan@hoganlovells.com 5 Attorney for M.M.M. Plaintiffs 2 3 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 SAN DIEGO DIVISION 12 13 14 M.M.M., on behalf of his minor child, J.M.A., et al., 15 Plaintiffs, 16 v. 17 Jefferson Beauregard Sessions, III, Attorney General of the United States, et al., 18 19 Case No. 3:18-cv-1832-DMS JUDGE: Hon. Dana M. Sabraw DATE: November 15, 2018 TIME: 10:30 AM COURTROOM: 13A Defendants. 20 21 Case No. 3:18-cv-428-DMS Ms. L, et al., JUDGE: Hon. Dana M. Sabraw 22 Plaintiffs, 23 24 25 26 27 H OGAN L OVEL LS US LLP ATTO RNEY S AT LAW LOS A NG EL ES v. U.S. Immigration and Customs Enforcement, et al., Defendants. DATE: November 15, 2018 TIME: 10:30 AM COURTROOM: 13A [PROPOSED] ORDER CERTIFYING THE SETTLEMENT CLASSES AND GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT PROPOSED ORDER CERTIFYING SETTLEMENT CLASSES AND GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 315-3 Filed 11/09/18 PageID.4880 Page 2 of 6 1 2 Action Settlement and Certification of Settlement Classes; 3 WHEREAS, the M.M.M., Ms. L, and Dora named Plaintiffs allege that they 4 and members of the Settlement Classes were injured as a result of Defendants’ 5 actions; 6 WHEREAS, the Court granted the M.M.M. Plaintiffs’ request for a 7 Temporary Restraining Order temporarily restraining Defendants “from removing 8 [specified persons] from the United States, until the merits of Plaintiffs’ motion for 9 a preliminary injunction is resolved,” M.M.M. v. Sessions, Case No. 3:18-cv-1832- 10 DMS (S.D. Cal.) (Aug. 16, 2018), Dkt No. 55 at 15; 11 WHEREAS the Court ordered the parties to consider “how they wish to 12 proceed on the issues of class certification and Plaintiffs’ entitlement to asylum 13 proceedings” and to “meet and confer and propose a solution—one which follows 14 the law, and is equitable and reflective of ordered governance,” id. at 16; 15 16 WHEREAS, the parties reached a settlement agreement that was filed with the Court on September 12, 2018 (“Agreement” or “Settlement”); 17 WHEREAS, on October 9, 2018, the Court granted preliminary approval of 18 the Agreement, approved the proposed notice plan, and provisionally certified the 19 Settlement Classes; and 20 WHEREAS, the Court has considered the Agreement, the filed objections to 21 the agreement, arguments presented at the fairness hearing held on November 15, 22 2018, and all other submissions in connection with the parties’ request for final 23 approval of the Agreement and certification of the Settlement Classes set forth in 24 the Agreement for the purposes of settlement only, and good cause appearing 25 therefor; 26 IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS 27 FOLLOWS: 28 1. H OGAN L OVEL LS US LLP ATTO RNEY S AT LAW LOS A NG EL ES Upon consideration of the Plaintiffs’ Motion for Final Approval of Class The Motion is GRANTED. -2- PROPOSED ORDER CERTIFYING SETTLEMENT CLASSES AND GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 315-3 Filed 11/09/18 PageID.4881 Page 3 of 6 1 2 3 2. The form and method by which notice was given to the Settlement 4 Classes met the requirements of due process, Rules 23(c)(2) and 23(e) of the 5 Federal Rules of Civil Procedure, constituted the best notice practicable under the 6 circumstances, and constituted due and sufficient notice to all persons entitled 7 thereto. 8 3. The Court finds that: (a) the Settlement is fair, reasonable, and 9 adequate in accordance with Fed. R. Civ. P. 23(e)(2); (b) the Agreement was 10 negotiated at arm’s length by experienced counsel acting in good faith; and (c) there 11 has been adequate opportunity for experienced counsel to evaluate the claims and 12 risks at this stage of the litigation. 13 4. The Court has reviewed the six objections filed regarding the 14 Settlement and carefully considered each of the issues raised by those filings, and 15 finds that the objections do not impact the conclusion that the Settlement is fair, 16 reasonable, and adequate. 17 5. The Court therefore finds that final approval is appropriate and hereby 18 grants final approval of the Settlement. The parties are directed to consummate the 19 Agreement according to its terms. The Agreement and every term thereof shall be 20 deemed incorporated herein as if explicitly set forth and shall have the full force of 21 an Order of the Court. 22 Certification of the Settlement Classes, Appointment of Settlement Class 23 Representatives, and Appointment of Co-Lead Counsel 24 6. For purposes of the Settlement, and only for that purpose, and without 25 an adjudication on the merits, pursuant to Rules 23(a) and 23(b)(2) of the Federal 26 Rules of Civil Procedure, the Court finds that the requirements for a class action are 27 met, and hereby defines the following classes. 28 H OGAN L OVEL LS US LLP ATTO RNEY S AT LAW LOS A NG EL ES Final Approval of the Settlement The class of parents is defined as follows: -3- PROPOSED ORDER CERTIFYING SETTLEMENT CLASSES AND GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 315-3 Filed 11/09/18 PageID.4882 Page 4 of 6 1 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. 1 2 3 4 5 6 7 8 The class of children is defined as follows: 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. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 H OGAN L OVEL LS US LLP ATTO RNEY S AT LAW LOS A NG EL ES The Settlement Classes are certified for settlement purposes. 7. The Court finds that certification of the Settlement Classes is warranted in light of the Settlement under the prerequisites of Federal Rule of Civil Procedure 23(a) because: (1) the members of the Settlement Classes are so numerous that joinder is impracticable; (2) there are issues of law and fact common to the Settlement Classes; (3) the claims of the named Plaintiffs in M.M.M., Ms. L, and Dora are typical of the claims of the Settlement Class Members; and (4) Plaintiffs and Class Counsel will fairly and adequately represent the interests of the Settlement Class Members. 8. The Court also finds that certification of the Settlement Classes is warranted in light of the Settlement under the requirements of Federal Rule of Civil Procedure 23(b)(2) because Defendants are alleged to have acted or refused to act 1 References to a “class” or “class member” in the Agreement refer to the classes described in the text, 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. The Agreement also addresses parents who are covered by the above description, but who have been removed from the United States. -4- PROPOSED ORDER CERTIFYING SETTLEMENT CLASSES AND GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 315-3 Filed 11/09/18 PageID.4883 Page 5 of 6 1 on grounds that apply generally to the Settlement Classes, so that final injunctive 2 relief or corresponding declaratory relief is appropriate respecting the Settlement 3 Classes as a whole. 4 The Court hereby appoints the named Plaintiffs in M.M.M. and Ms. L. 5 (as recently amended) as Settlement Class Representatives. The Court finds that the 6 Settlement Class Representatives will fairly and adequately protect the interests of 7 the Settlement Classes because: (1) the interests of the Settlement Class 8 Representatives are consistent with those of Settlement Class Members; (2) there 9 appear to be no conflicts between or among the Settlement Class Representatives 10 and the other Settlement Class Members; (3) the Settlement Class Representatives 11 have been and appear to be capable of continuing to be active participants in both 12 the prosecution and the settlement of this litigation; and (4) the Settlement Class 13 Representatives and Settlement Class Members are represented by qualified, 14 reputable counsel who are experienced in preparing and prosecuting large, 15 complicated class action cases, including those concerning alleged violations of the 16 relevant laws. 17 10. The requirements of Rule 23(g) of the Federal Rules of Civil 18 Procedure are met, and the Court hereby confirms the appointment of the law firm 19 Eversheds Sutherland, Muslim Advocates, and the Legal Aid Justice Center as 20 counsel for the parent class for parents continuously physically present in the 21 United States since June 26, 2018, the ACLU as counsel for parents who have been 22 removed, and Hogan Lovells US LLP as counsel for the child class. 23 Other Provisions 24 11. Neither the Agreement, nor any of its terms or provisions, nor any of 25 the negotiations or proceedings in connection with it, shall be construed as an 26 admission or concession by Defendants of the truth of any allegations in the 27 litigation, or of any fault or wrongdoing of any kind, or of a lack of merit of 28 Plaintiffs’ allegations. H OGAN L OVEL LS US LLP ATTO RNEY S AT LAW LOS A NG EL ES 9. -5- PROPOSED ORDER CERTIFYING SETTLEMENT CLASSES AND GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 315-3 Filed 11/09/18 PageID.4884 Page 6 of 6 1 2 IT IS SO ORDERED. 3 4 DATED:_________________ ______________________________ 5 The Hon. Judge Dana Sabraw 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 H OGAN L OVEL LS US LLP ATTO RNEY S AT LAW LOS A NG EL ES -6- PROPOSED ORDER CERTIFYING SETTLEMENT CLASSES AND GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT