Case 3:18-cv-00428-DMS-MDD Document 318 Filed 11/14/18 PageID.4910 Page 1 of 15 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 Case No. 3:18-cv-1832-DMS 19 Defendants. 20 21 Ms. L, et al., Case No. 3:18-cv-428-DMS 22 Plaintiffs, 23 24 25 26 27 v. U.S. Immigration and Customs Enforcement, et al., Defendants. JOINT RESPONSE TO OBJECTIONS TO CLASS ACTION SETTLEMENT DATE: November 15, 2018 TIME: 10:30 AM COURTROOM: 13A JUDGE: Hon. Dana M. Sabraw 28 H OG AN L OV ELLS US LLP A TTORN E YS A T L A W L OS A N G ELES JOINT RESPONSE TO OBJECTIONS TO CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 318 Filed 11/14/18 PageID.4911 Page 2 of 15 1 I. 2 Plaintiffs and Defendants in the M.M.M., Ms. L, and Dora cases hereby 3 submit these responses to the Objections filed regarding the proposed class action 4 settlement of asylum-related claims (“Settlement”). For the reasons stated below 5 and in Plaintiffs’ Motion for Final Approval, see M.M.M. Dkt. 96, Ms. L Dkt. 315, 6 the parties respectfully request that the Court grant final approval of the Settlement. 7 None of the objectors raise any issue that should prevent approval of the 8 Settlement as fair, reasonable, and adequate. Indeed, the bulk of the arguments 9 raised by these objectors are not “objections” at all, but rather arguments that the 10 Settlement should be expanded to include additional individuals and/or to seek 11 relief that is not sought in the M.M.M. case, Dora case, and Ms. L asylum-related 12 claims that resulted in this Settlement. Other objections involve individual 13 circumstances that the parties can (and have already) addressed as part of the 14 Settlement. 15 This response addresses each of the six objections: 16 • Lesbi Martinez-Martinez (M.M.M. Dkt. 83, Ms. L. Dkt. 282) 17 • Egla Arely Velasquez Molina (M.M.M. Dkt. 88, Ms. L. 18 Dkt. 289) • Catholic Charities Community Services of the Archdiocese of 19 New York (Ms. L. Dkt. 292) 20 21 • Ms. M.D-L (Ms. L. Dkt. 294) 22 • K.R.M.C. (M.M.M. Dkt. 93) 23 • Together & Free (Ms. L. Dkt. 306) 24 25 II. Objections by Ms. Martinez-Martinez and Ms. Velasquez Molina These “objectors” do not contend that the settlement agreement is 26 unfair or unreasonable for settlement class members; instead, they ask the 27 Court to find that they are settlement class members so that they can receive 28 the benefits that the settlement provides. For that reason, these filings do not H OG AN L OV ELLS US LLP A TTORN E YS A T L A W L OS A N G ELES Introduction -2- JOINT RESPONSE TO OBJECTIONS TO CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 318 Filed 11/14/18 PageID.4912 Page 3 of 15 1 provide any basis to conclude that the settlement should not be approved. 2 Both objectors—Ms. Martinez-Martinez and Ms. Velasquez Molina, 3 represented by the law firm King & Spalding—allege that they are legal 4 guardians. See Ms. L. Dkt. 282 at 1-2; Ms. L Dkt. 289 at 1-2. However, even 5 assuming both women are in fact legal guardians, legal guardians fall outside 6 the plain language definition of the settlement class set forth in footnote 1 of 7 the proposed Settlement. See Settlement Agreement, M.M.M. Dkt. 96, 8 Exhibit 20. That definition refers to “parents,” and does not include legal 9 guardians. Id. Unless these objectors can make a claim to parentage, they 10 fall outside the class definition. 1 Nevertheless, both objectors request 11 inclusion for purposes of obtaining the relief provided by the settlement. 12 Individuals who are not class members do not have standing to object 13 to a settlement that does not bind them. Under Federal Rule of Civil 14 Procedure 23(e)(5), “[a]ny class member may object” to a class settlement, 15 but non-class members do not have such standing to object. To the extent 16 these objectors are not settlement class members, they are not bound to the 17 release contained in the settlement, and may choose to pursue their claims 18 independently. 19 Most importantly, the objectors’ arguments do not challenge the 20 overall fairness of the Settlement. The inquiry before the Court is limited to 21 whether the Settlement is fair, reasonable, and adequate for the class 22 members who are bound by its provisions, and neither of these filings argues 23 otherwise. Accordingly, these “objections” do not provide any reason for the 24 25 26 27 28 H OG AN L OV ELLS US LLP A TTORN E YS A T L A W L OS A N G ELES 1 These two individuals filed supplemental objections on November 8, 2018, Dkts. 312 and 313, contending that a letter sent to a third individual provided evidence that the government conceded that they are class members in the Ms. L. litigation. The government’s position is that the letter attached to these supplemental filings was sent in error, and a corrected letter was served on that individual on November 13, 2018. As stated above, legal guardians are not part of the Settlement. -3- JOINT RESPONSE TO OBJECTIONS TO CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 318 Filed 11/14/18 PageID.4913 Page 4 of 15 1 Court to question the fairness of the Settlement. 2 III. 3 4 5 6 Archdiocese of New York a. “Opting out” of reunification is not an issue addressed by this Settlement Catholic Charities’ first “objection” also is not an objection to the proposed 7 settlement for the asylum claims of the Ms. L, Dora, and M.M.M. plaintiffs, but 8 instead raises a concern related primarily to implementation of the Court’s 9 injunction requiring reunification in Ms. L. In particular, Catholic Charities argues 10 that children should have the right to “opt out” of reunification, and, by doing so, 11 regain their status as unaccompanied alien children (UACs). Ms. L. Dkt. 292 at 1- 12 2. However, the question of whether a family can re-separate is outside the scope 13 of what the Settlement Agreement addresses, as the Settlement Agreement 14 addresses only the asylum or other protection claims of the parent and child class 15 members physically present in the United States, and does not address issues 16 related to reunification for those class members. 17 Catholic Charities concedes that the “Proposed Settlement does not address 18 the circumstances under which children may re-separate, and [they] do not ask for 19 resolution of that issue here.” See Ms. L. Dkt. 292 at 7. Nevertheless, Catholic 20 Charities asks for clarification that “children who re-separate from their parents for 21 the purpose of seeking relief from ongoing confinement are entitled to be treated as 22 unaccompanied and placed in Section 240 proceedings.” Id. at 11. 23 The circumstances under which parents and children should be reunified, and 24 the extent to which reunification can be waived, are addressed in the Ms. L. 25 reunification litigation and the preliminary injunction issued by the Court in those 26 proceedings. In contrast, this Settlement Agreement relates to the separate and 27 distinct claims regarding the asylum procedures that should apply to certain parents 28 and children who were previously separated. It is true that the applicable H OG AN L OV ELLS US LLP A TTORN E YS A T L A W L OS A N G ELES Objections by Catholic Charities Community Services of the -4- JOINT RESPONSE TO OBJECTIONS TO CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 318 Filed 11/14/18 PageID.4914 Page 5 of 15 1 procedures in given factual circumstances depend, in part, on whether the parent 2 and child are reunified. See, e.g., Settlement Agreement, M.M.M. Dkt. 96, Ex. 20 ¶ 3 1(a) (child class members who are not reunified are considered unaccompanied 4 alien children and “will be afforded existing procedures for unaccompanied alien 5 children pursuant to governing statues and regulations,” including Section 240 6 proceedings). But whether a family should have been reunified or whether it can 7 re-separate is a Ms. L reunification question, not a question determined by the 8 Settlement Agreement. Put differently, Catholic Charities’ objection is not one to 9 the fairness or reasonableness of the Settlement Agreement or the procedures set 10 forth therein, but to the fairness and reasonableness of the Court’s preliminary 11 injunction order requiring reunification as a general matter. 12 13 Catholic Charities’ second objection is that they have identified six 14 children who accepted voluntary departure orders based on the understanding 15 that doing so would allow them to reunify with their parent in their country 16 of origin. Ms. L. Dkt. 292 at 16-18. Those orders obligated the children to 17 depart within 120 days, at the government’s expense, or else they would face 18 negative consequences including a bar on re-entry, ineligibility for certain 19 forms of immigration relief, and a fine of at least $1,000. Id. at 17. These 20 six children remain in the country even though the deadline for these children 21 to voluntarily depart has either passed, or likely will pass, prior to final 22 approval of this settlement. Id. at 18. Catholic Charities asks that the 23 Settlement be expanded to include a provision that would vacate these 24 voluntary departure orders to permit these six children to pursue asylum 25 claims. 26 The information provided by Catholic Charities is not sufficient to 27 determine whether these children are settlement class members or to evaluate 28 what the appropriate approach would be for these children to ensure that they H OG AN L OV ELLS US LLP A TTORN E YS A T L A W L OS A N G ELES b. Children with voluntary departure orders -5- JOINT RESPONSE TO OBJECTIONS TO CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 318 Filed 11/14/18 PageID.4915 Page 6 of 15 1 have the opportunity to make an appropriate election as to how to proceed. 2 The government is willing to examine such cases if and when brought to its 3 attention to determine what is the most appropriate course of action in an 4 individual case. 5 6 Catholic Charities proposes three “clarifications” to the settlement to 7 address what it believes are ambiguities in the language. See Ms. L Dkt. 8 No. 292 at 20-23. Setting aside the fact that such “clarifications” do not 9 constitute objections to the settlement, modifications to the Settlement are 10 not necessary because the agreement is clear as to the meaning of the 11 provisions on which Catholic Charities seeks clarification. 12 First, nothing in Paragraph 8 of the Settlement (which Catholic 13 Charities refers to as the waiver provision) limits the “lawfully available” 14 (Ms. L Dkt. No. 292 at 21) defenses that a class member may assert once the 15 class member is in Section 240 proceedings. 16 Second, as to Paragraph 1(a) of the Settlement, see Ms. L Dkt. No. 292 17 at 20-21, the agreement provides that parent and child class members who 18 are not currently detained in ICE or HHS custody (i.e., have been released), 19 and have been issued an NTA, will not be removed before going through 20 Section 240 proceedings. The parties do not believe that this provision is in 21 tension with Paragraph 1(d). 22 Third, the reference to reunification with a “parent” in Paragraph 1(a) 23 of the Settlement refers to reunification with a Ms. L class member parent, 24 i.e., the parent from whom the child was originally separated. Under the 25 class definition contained in the agreement, children who have not been 26 reunified with or who will not be subject to reunification with a Ms. L class 27 member parent—including children who have been released from ORR 28 custody to a sponsor—are not part of the child settlement class. Nothing in H OG AN L OV ELLS US LLP A TTORN E YS A T L A W L OS A N G ELES c. The settlement is not ambiguous and does not require clarification -6- JOINT RESPONSE TO OBJECTIONS TO CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 318 Filed 11/14/18 PageID.4916 Page 7 of 15 1 the settlement affects the immigration procedures that would apply to such 2 children. Rather, the Settlement leaves in place the procedures that would 3 ordinarily apply when a child is placed into ORR custody as an 4 unaccompanied alien child. See Settlement Agreement, M.M.M. Dkt. 96, Ex. 5 20 ¶ 1(a) (stating that non-reunified children “will be afforded existing 6 procedures for unaccompanied alien children pursuant to governing statutes 7 and regulations, including but not limited to Section 240 removal 8 proceedings”). 9 IV. 10 Objections by Ms. M.D-L and K.R.M.C. Neither of these filings constitutes an actual objection to the fairness of 11 the Settlement. Rather, each of these “objectors” has raised their particular 12 factual circumstances, which the parties have since addressed separately as 13 set forth below. One of these individuals wishes to receive the relief 14 provided by the Settlement (and she will receive that relief) and the other is 15 challenging her reunification under the Ms. L. preliminary injunction, a 16 challenge that is unrelated to the Settlement Agreement. 17 18 a. Ms. M.D-L Ms. M.D-L filed an “objection,” arguing that she is entitled to 19 reunification with her child under the Court’s prior orders and entitled to the 20 asylum procedures of this Settlement. Defendants agree that she is entitled to 21 reunification, and are working with counsel to facilitate that reunification in 22 light of the fact that the child currently is not in ORR custody, but has been 23 released to the custody of her father. The parties also agree that she is a class 24 member for purposes of this Settlement. Accordingly, she will receive the 25 asylum procedures under the Settlement Agreement, as she requests. She 26 does not object to the Settlement, but rather asks to confirm that she is 27 covered by it. 28 H OG AN L OV ELLS US LLP A TTORN E YS A T L A W L OS A N G ELES -7- JOINT RESPONSE TO OBJECTIONS TO CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 318 Filed 11/14/18 PageID.4917 Page 8 of 15 1 b. K.R.M.C. 2 Melissa Cuadrado filed an objection on behalf of a child, K.R.M.C. 3 See M.M.M. Dkt. 93. On November 8, 2018, Plaintiffs’ counsel received an 4 e-mail from Ms. Cuadrado stating that she would be withdrawing the 5 objection and attaching a statement of withdrawal. Ex. 23. Nonetheless, out 6 of an abundance of caution, the parties briefly address the objection here. 7 The government’s position is that the father of this child is eligible for 8 reunification under the Ms. L. preliminary injunction, and the government 9 has reviewed this case and determined that reunification is appropriate. The 10 child, through pro bono counsel, submitted this “objection” asking not to be 11 reunified with her father. The issue presented by this filing concerns the 12 propriety of reunification in this individual child’s case, and is not properly 13 filed as an objection to the Settlement Agreement because it does not bear on 14 the fairness of the settlement. Her filing therefore provides no basis for the 15 Court to deny approval. 16 V. Objections by Together & Free 2 17 The three issues raised by Together & Free do not provide any 18 substantive basis for rejecting the proposed Settlement, even accepting the 19 facts set forth in the document. 3 20 21 22 23 24 25 26 27 28 H OG AN L OV ELLS US LLP A TTORN E YS A T L A W L OS A N G ELES 2 The docketed version of the Together & Free objection is missing every other page. See Ms. L Dkt. 306. A complete version of the objection, provided to Plaintiffs’ counsel by Kate Wheatcroft at Together & Free, is attached hereto as Ex. 24. 3 Although Together & Free represents that it “has received permission from the Class Members” to object on their behalf, the organization’s relationship with the affected purported class members is not entirely clear, especially since the brief refers to other legal counsel who represent the parents listed in the attachment to their objection. Given that Together & Free does not represent any purported class members, it appears to lack standing to object to the settlement. The parties assume for the purposes of this brief that Together & Free has standing to object on behalf of the parents listed. -8- JOINT RESPONSE TO OBJECTIONS TO CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 318 Filed 11/14/18 PageID.4918 Page 9 of 15 1 2 reunification of families that are still separated.” Ex. 24 at 2. However, as 3 discussed above, the Settlement Agreement addresses the asylum claims of 4 class members and does not address reunification of those class members 5 under the Ms. L. preliminary injunction. One statement by Together & Free 6 reflects a fundamental misunderstanding of the agreement. Separated 7 children class members are not barred by the Settlement “from filing further 8 legal action to seek reunification.” Id. at 3. This Settlement, and the release 9 for the class, does not release claims for reunification, which are at issue in 10 Ms. L. Parents who are still seeking reunification may continue to pursue it. 11 Second, Together & Free argues that the Settlement does not provide 12 “meaningful relief” to removed parents. Id. at 5. The Settlement Agreement 13 creates a procedure by which cases of individual removed parents may be 14 brought to the attention of the government by counsel in Ms. L., if Ms. L 15 counsel believes that the return of a particular removed parent may be 16 warranted. See Settlement Agreement, M.M.M. Dkt. 96, Ex. 20 at 6. Counsel 17 in Ms. L. is actively working to determine whether any such cases exist. The 18 Settlement does not cause removed parents to give up any rights they 19 otherwise would have had; it confirms that “existing law, existing 20 procedures, and the Court-approved reunification plan” addresses the rights 21 of these parents. Id. 22 Third, Together & Free argues that the settlement agreement does not 23 provide for a “just, efficient, and orderly process to identify Class Members 24 and/or administer the relief provided.” Ex. 24 at 2. This also is not correct. 25 The Settlement contemplated an extensive notice process in which counsel 26 for plaintiffs coordinated with hundreds of organizations providing relief to 27 putative class members to explain the rights of class members under the 28 Settlement. See Mot. for Preliminary Approval of Proposed Settlement, H OG AN L OV ELLS US LLP A TTORN E YS A T L A W L OS A N G ELES First, Together & Free argues that the Settlement “fails to require the -9- JOINT RESPONSE TO OBJECTIONS TO CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 318 Filed 11/14/18 PageID.4919 Page 10 of 15 1 M.M.M. Dkt. 73 at 20-24. The government has provided available contact 2 information regarding putative class members to counsel for plaintiffs, who 3 have used that information to provide direct notice to class members about 4 the procedures under the Settlement. See Mot. for Final Approval, M.M.M. 5 Dkt. 95-1 at 11-12. Further, the Court has requested that the government 6 provide status reports regarding the number of class members who have 7 received asylum procedures under the Settlement, and the manner in which 8 those class members’ cases have been managed. 9 VI. Conclusion 10 For the foregoing reasons, and for the reasons set forth in the Motion for 11 Final Approval of Class Action Settlement and memorandum in support thereof, the 12 Objections filed by class members (and by non-class members) do not impact the 13 overall fairness and reasonableness of the Settlement, which provides significant 14 relief to many hundreds of parents and children. The parties respectfully request 15 that the Court enter an order approving the Settlement as fair, reasonable, and 16 adequate. 17 18 19 20 21 22 23 24 25 26 27 28 H OG AN L OV ELLS US LLP A TTORN E YS A T L A W L OS A N G ELES - 10 - JOINT RESPONSE TO OBJECTIONS TO CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 318 Filed 11/14/18 PageID.4920 Page 11 of 15 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 zachary.best@hoganlovells.com t.weymouth@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 phone: 619.342.8000 fax: 619.342.7878 aarono@haelaw.com 21 22 26 27 28 H OG AN L OV ELLS US LLP A TTORN E YS A T L A W L OS A N G ELES November 14, 2018 - 11 - JOINT RESPONSE TO OBJECTIONS TO CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 318 Filed 11/14/18 PageID.4921 Page 12 of 15 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 OG AN L OV ELLS US LLP A TTORN E YS A T L A W L OS A N G ELES /s/ Wilson G. Barmeyer Wilson G. Barmeyer* Carol T. McClarnon* EVERSHEDS SUTHERLAND (US) LLP 700 Sixth Street NW, Suite 700 Washington, DC 20001 (202) 383-0100 (202) 637-3593 (facsimile) wilsonbarmeyer@evershedssutherland.com John H. Fleming* EVERSHEDS SUTHERLAND (US) LLP 999 Peachtree Street NE, Suite 2300 Atlanta, GA 30309 (404) 853-8000 (404) 853-8806 (facsimile) johnfleming@eversheds-sutherland.com Sirine Shebaya* Johnathan Smith* MUSLIM ADVOCATES P.O. Box 34440 Washington, D.C. 20043 (202) 897-2622 (202) 508-1007 (facsimile) sirine@muslimadvocates.org johnathan@muslimadvocates.org Simon Y. Sandoval-Moshenberg* Sophia Gregg* LEGAL AID JUSTICE CENTER 6066 Leesburg Pike, Suite 520 Falls Church, VA 22041 (703) 778-3450 (703) 778-3454 (facsimile) simon@justice4all.org sophia@justice4all.org 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 - 12 - JOINT RESPONSE TO OBJECTIONS TO CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 318 Filed 11/14/18 PageID.4922 Page 13 of 15 1 2 3 4 5 6 New York, NY 10004 T: (212) 549-2660 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org skang@aclu.org samdur@aclu.org dgalindo@aclu.org 7 Proposed Counsel For Class Members Who do not Meet the Physical Presence Requirement 8 *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 OG AN L OV ELLS US LLP A TTORN E YS A T L A W L OS A N G ELES - 13 - JOINT RESPONSE TO OBJECTIONS TO CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 318 Filed 11/14/18 PageID.4923 Page 14 of 15 1 CERTIFICATE OF SERVICE 2 I hereby certify that I filed the foregoing JOINT RESPONSE TO 3 OBJECTIONS TO CLASS ACTION SETTLEMENT, with the Clerk of the Court 4 through the ECF system on November 14, 2018. This system provided a copy to 5 and effected service of this document on all parties. 6 Dated: 7 8 9 10 November 14, 2018 HOGAN LOVELLS US LLP By: /s/ Michael Maddigan Michael Maddigan Attorneys for Plaintiff (Cal. Bar No. 163450) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 H OG AN L OV ELLS US LLP A TTORN E YS A T L A W L OS A N G ELES - 14 - JOINT RESPONSE TO OBJECTIONS TO CLASS ACTION SETTLEMENT Case 3:18-cv-00428-DMS-MDD Document 318 Filed 11/14/18 PageID.4924 Page 15 of 15 1 2 3 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. 4 EXHIBITS TO JOINT RESPONSE TO OBJECTIONS TO CLASS ACTION SETTLEMENT 5 TABLE OF CONTENTS 6 7 8 9 10 Exhibit Document Pages 23 Statement of Withdrawal of Melissa Cuadardo re K.R.M.C. 16-20 24 Complete Statement of Objection by Together & Free 21-31 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 H OG AN L OV ELLS US LLP A TTORN E YS A T L A W L OS A N G ELES - 15 - JOINT RESPONSE TO OBJECTIONS TO CLASS ACTION SETTLEMENT Case Document 318-1 Filed 11/14/18 PageID.4925 Page10f5 EXHIBIT 23 Case 3:18-cv-00428-DMS-MDD Document 318-1 Filed 11/14/18 PageID.4926 Page 2 of 5 From: Sent: To: Cc: Subject: Attachments: Melissa Cuadrado Thursday, November 08, 2018 5:21 PM MMMSettlementQuestions Anand Balakrishnan; Mayra Jimenez; Manoj Govindaiah Withdrawal of objection to proposed settlement withdrawal of objection_KRMC.pdf Good afternoon, Please find attached class member K.R.M.C.'s withdrawal of her previously filed objection to the proposed settlement in the MMM case. The original was sent to the San Diego court and will arrive no later than tomorrow afternoon. Your office will receive a copy by Priority Mail Express and should arrive by noon tomorrow. Please do not hesitate to contact me with any questions or concerns. Best, Melissa Jeffries Cuadrado Senior Staff Attorney Refugee and Immigrant Center for Education and Legal Services (RAICES) 5121 Crestway Dr., Ste. 105 San Antonio, Texas 78239 Digital Tel. and Fax: (210) 501-0290 melissa.cuadrado@raicestexas.org www.raicestexas.org PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION, ATTORNEY WORK PRODUCT AND ATTORNEY MENTAL IMPRESSIONS. The information contained in this e-mail (along with any attachments) is intended only for the use of the individual to whom it is addressed and may contain privileged and/or confidential information that is exempt from disclosure by the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-2521. If the reader of this message is not the intended recipient, you are hereby notified that you should not read any further, and any dissemination, distribution, or copying of this communication is strictly prohibited. If you are the intended recipient, please be aware that forwarding this message to others may result in a waiver of these privileges. If you have received this e-mail in error, please immediately return this e-mail to the sender and delete it and any copies. 1 Case Document318?1 Filed 11/14/18 PageID.4927 Page30f5 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA M.M.M., on behalf of his minor child, J.M.A., el? 02., Plaintiffs, v. Jefferson Beauregard Sessions, Attorney General of the United States, at (.12., Defendants. I Case No. NOTICE OF CLASS WITHDRAWAL OF OBJECTION TO PROPOSED SETTLEMENT class member, K.R.M.C., by and through pro bono counsel, informs the court that she is withdrawing her opposition to the Pr0posed Settlement in the above-captioned case as well as in v. Sessions, Case No. (D.D.C.), Ms. I. v. ICE, Case No. 3:18-cv- 428-DMS (S.D. Cal.), and Dora v. Sessions, Case No. 18-cv-1938 (D.D.C.). K.R.M.C. was noti?ed by the Of?ce of Refugee Resettlement that she will be reunified with her father very soon. As such, K.R.M.C. now has no objection to the Proposed Settlement. She respectfully asks that her prior objection to the settlement be withdrawn. DATED: November 8, 2018 K.R.M.C. Class Member 53/7 7 ?79 MELISSA J. MDT) Senior Staff Att ey Refugee and Immigrant Center for Education and Legal Services (RAICES) 5121 Crestway Dr., Ste. 105 San Antonio, TX 78239 Case Document318?1 Filed 11/14/18 PageID.4928 Page4of5 Telephone: (210) 501 -0290 Email: Pro Bono Attorney for K.R.M.C. Case Document318-1 Filed 11/14/18 PageID.4929 Page50f5 PROOF OF SERVICE IT IS HEREBY CERTIFIED THAT: I, the undersigned, am a citizen of the United States and am at least eighteen years of age. My business address is 5121 Crestway Dr., Ste. 105, San Antonio, TX 78239. I am not a party to the above-entitled action. On November 8, 2018, I served the following document described as: NOTICE OF CLASS WITHDRAWAL OF OBJECTION TO PROPOSED SETTLEMENT by serving a true copy of the above-described document in the following manner: BY USPS PRIORITY MAIL EXPRESS on Class Action Clerk, United States District Court for the Southern District of California, San Diego Courthouse, 333 West Broadway, San Diego, CA 92101, and BY USPS PRIORITY MAIL EXPRESS on Justin W. Bernick, Zachary W. Best, T. Clark Weymouth, HOGAN LOVELLS US LLP, 555 Thirteenth Street, NW, Washington, DC 20004, and BY ELECTRONIC MAIL on and abalakrishnan@aclu.org. Executed on November 8, 2018. T?oi?oo Senior Staff A ey Refugee and Immigrant Center for Education and Legal Services (RAICES) 5121 Crestway Dr., Ste. 105 San Antonio, TX 78239 Telephone: (210) 501 -0290 Email: Pro Bono Attorney for K.R.M.C. Case Document 318-2 Filed 11/14/18 PageID.4930 Page10f11 EXHIBIT 24 Case Document 318-2 Filed 11/14/18 PageID.4931 Page20f Class Action Clerk United States District Court for the Southern District of California San Diego Courthouse 333 West Broadway San Diego, CA 92101 November 2, 2018 RE: Proposed settlement in v. Sessions, Case No. (SD. Cal.) and Ms. L. v. ICE, Case No. 3: (S.D. Cal.) Dear Judge Sabraw, I write on behalf of the grassroots, non-profit organization Together Free, Inc. (?Together Free?) to respect?illy object1 to the fairness and adequacy of the proposed settlement entered in the above-referenced action (?Action?) on September 13, 2018 (Dkt. Nos. 220 and 221 (?Proposed Agreement? or Together Free?s primary mission is to assist families separated under the ?zero tolerance? policy established by the federal government in April 2018. Through our work with hundreds of separated families, we have come to learn of several signi?cant problems with the fairness and adequacy of the Proposed Agreement. We are concerned that these problems, which are described in detail below, create subclasses that are not treated fairly and that, in some instances, will not receive meaningful relief from the Proposed Agreement. About Together Free. Together Free was founded in 2018 for the express purpose of supporting immigrant families separated at the United States border. Together Free started as a small group of individuals who were moved by the plight of these families. The organization has now grown to a network of volunteers across 46 states that provides support to more than 200 affected families. We assist families with services such ?nding transportation 1 Together Free has received from the Class Members described in this letter (or their legal counsel) to ?le this letter objecting on their behalf and on behalf of other, similarly? situated Class Members. 18CV0428 DMS (MDD) Case Document 318-2 Filed 11/14/18 PageID.4932 Page30f from detention, getting basic necessities such as clothes, toiletries, diapers, and medicine, ?nding medical or care, and ?nding free or low cost legal counsel. Through our grassroots work, we have come to learn of a number of individuals who qualify as Class Members?that is, either ?alien parents who entered the United States with their children? during a certain period and ?have a child who was or is separated from them by the Department of Homeland Security,? or ?alien children who entered the United States? during a certain period and ?were separated from their parents? (Agrmt. at 1, fn 1)?but for whom the Proposed Agreement does not rectify the harm of being separated from their families. As shown below, this is the case either because the Proposed Agreement: fails to require the reuni?cation of families that are still separated; (ii) offers no meaningful relief to parents who have been deported without their children; and does not guarantee provisions for a just, ef?cient, and orderly process to identify Class Members and/or administer the relief provided. Class Members Will Not Be Entitled to Reunification. There is no provision in the Proposed Agreement that entitles Class Members to reuni?cation. The fundamental and animating purpose of this litigation was to ?permanently enjoin Defendants from continuing to separate? Class Member parents and children. (Amended Compl., Dkt. No. 32 at 12.) But nothing in the Proposed Agreement appears to obligate the United States to reunite parents and children who are still separated. This is a problem with real-world consequences for the signi?cant number of Class Members who have not been reunited (the ?Still Separated Families?). Despite the Parties? efforts to-date, Together Free is aware of 30 children whose parents are still detained, who have not been reunited as of October 18th 2018. A list of those minor Class Members is attached as Exhibit A to the hard copy of this letter sent to the Court.2 Together Free also is aware of 2 Throughout this letter, we have done our best to keep con?dential the identities of the Class Members being discussed, and, for minors, have provided only initials. Exhibit A is a con?dential document, that is not publicly ?led, and contains the names of minor children and, as such, we respectfully request that it be kept con?dential and not be publicly ?led. Exhibit A was provided to Together Free by the Honduran government of?cials monitoring the situation. It is our understanding that legal service providers for the minor Class Members included in Exhibit A have con?rmed their status and the status of their parents. Exhibit A was current as of October 18, 2018. Case Document 318-2 Filed 11/14/18 PageID.4933 Page4of approximately 100 parents who remain in detention, and whose child or children have been released into the care of a relative. These families remain in limbo, suffering from the exact harms that this Action was brought to alleviate. Their plight cannot be ignored but, under the Proposed Agreement, it is. In many instances, Class Member parents in this subclass consented to their children?s release because they were told that the separation would be temporary and that, through this litigation, they would be reunited with their children. But that has not happened, and the Proposed Agreement provides no guarantee that it will. Because the children in this subclass are with family members, the United States regard these families as ?reunited.? Such a determination is anathema to the right to family integrity that has been the animating principle of the Court?s orders in this Action. Moreover, this ongoing separation has resulted in profound and continuing harm to Still Separated Families. In some instances, children as young as three years old have been released to relatives that they have never met, while their parents have continued to languish in detention. In other instances, because of the United States? refusal to release a Class Member parent, the child has been ?reunited? with family members who are un?t and incapable of serving as guardians. For example, Ana Estela G. d. H. was separated from her seven year old daughter. Ana is still detained, but her daughter was released to her father. Ana had custody of her daughter for a reason: the father has struggled with drug and alcohol addiction. Ana?s other, 17 year old child, has had to take responsibility for the seven year old, because Ana is still in custody. The 17 year old receives little to no ?nancial support from the father, and it seems likely that both children will end up in the state child welfare system. ?[S]ome proposed agreements are so unfair in their terms to one subset of class members that they cannot but be the product of inadequate representation of that subset.? In re Volkswagen Clean Diesel Mkrg, Sales Practices, and Prods. Liab. Litig, 895 F.3d 597, 608 (9th Cir. 2018) (citing In re GMC Pick-Up Truck Fuel Tank Prods. Liab. Litig, 55 F.3d 768, 801 (3d Cir. 1995)). The Proposed Agreement is profoundly unfair to the Still Separated Families. Not only does it fail to require reuni?cation, it bars the Still Separated Families from ?ling further legal action to seek reuni?cation. Quite the opposite--Class Members must ?agree to refrain Case Document 318-2 Filed 11/14/18 PageID.4934 Page50f 11 OO-JON from additional litigation seeking immigration-or?asylum-related injunctive, declaratory, or equitable relief.? (Agrmt. at 1.) Accordingly, Still Separated Families are presented with a devastating choice. The Class Member parents can: participate in the Class and pursue bona ?de asylum claims, but risk remaining separated from their children for the duration of their cases;3 (ii) opt out of the Class and face immediate deportation (with, or perhaps without, their children); or (ii) seek reincarceration of their children which (if successful) will result in the entire family being detained until the outcome of their asylum claim.4 Still Separated Families are already making this choice at great cost. For example, Class Member Vivian N. M. came to the United States with her three year old son, ?eeing domestic violence. Although Vivian is still detained, her son has been released to Vivian?s aunt in Houston--a family member the boy had never met until she became his guardian. Vivan has a strong legal case, and has passed her credible fear interview. But, understandably, she has abandoned her case in order to pursue reuni?cation with her son in family detention. Once the restraining order in this Action is lifted, Vivian will be subject to deportation without her toddler. There is no reason to believe the United States ever will reunite her with her little boy, and at age 3, he (also a Class Member) will forced to choose between a life free from domestic violence, and a life with his mother. Together Free respectfully submits that any settlement in this Action must provide the relief of reuni?cation to all Class Members, including Still Separated Families to be just and fair.5 3 Given the administrative backlog for asylum cases in many jurisdictions and the chaos in?icted on the system by the United States ?zero tolerance? policies, it should go without saying that any Class Member parent who chooses this option could remain separated for many months, if not years. 4 Out of desperation, a number of Class Member parents of Still Separated Families have sought family detention, but have not succeeded in being reunited. Even if this option did not present Class Member parents with an unconscionable choice, it is unlikely that it is a realistic option. 5 As shown in?a at pp. 6-7, the Proposed Agreement also falls short because it fails to provide provisions for ensuring that all Class Members have been identified, including Class Members who are part of Still Separated Families. Case Document 318-2 Filed 11/14/18 PageID.4935 Page60f Departed Class Members Receive No Significant Relief. The Proposed Agreement also fails to provide meaningful relief to another subset of the certi?ed Class? parents who already have been deported without their minor children. The Proposed Agreement, on its face, applies ?only to . . . class members . . . who have been continuously physically present in the United States since June 26, 2018.? (Agrmt. at 1.) For deported Class Members, it offers only this: in ?rare and unusual? instances, the United States will reopen ?individual cases in which plaintiffs? counsel believes the return of a particular removed class member may be warranted.? (Agrmt. at 6.) In some instances, deported Class Members had no credible fear interviews. For example, Class Member Jose D.A.A. was deported without a credible fear interview. In other instances, the hasty circumstances of their credible fear interviews (and subsequent deportations) barred Class Members from presenting their best evidence. For example, Class Member Anavelis ?ed violence in Guatemala with her 6 year old daughter. Anavelis was transferred between 5 different detention centers, remaining separated from her daughter each time. Her daughter was eventually released, but Anavelis was deported on or around July 17, 2018. In her credible fear interview, Anavelis did not state all the persuasive facts relevant to her claim because she did not ?illy understand the process. For example, she did not state that a gang had killed several close family members to get her family?s land? including her mother-in-law and the brother of her father-in-law. She also did not state that she herself was beaten by these gangs, and required surgery for her injuries. If she had not been deported, she would be permitted, as a Class Member, to redo her credible fear interview and present those and other favorable facts. Instead, she will remain separated from her young daughter, unless she seeks her daughter?s return to Guatemala?an option that may well risk both their lives. Together Free understands that the Court is aware of the unique and sad issues presented by Deported Class Members. When confronted with this problem in August 2018, the United States proposed that children whose parents had been deported who wanted to return to their countries of origin and be reunited with their parents (despite any bona?de legal claims to asylumcourt date, would have their cases terminated. But it is Case Document 318-2 Filed 11/14/18 PagelD.4936 Page7of Together Free?s understanding that this relief has not been made uniformly available to Deported Class Members and their children. It is now November and, one by one, minor children of Deported Class Members are seeking voluntary departure, not because their claims are weak, but because they seek reuni?cation. And even when the children take this step, reuni?cation continues to be delayed by months. As just one example, Jose D.A.A.. is a father who was separated from his child at the border and deported back to Honduras. His 12-year-old child, J. F. A. S. chose voluntary departure on August 29th, 2018 so that he could be reunited with his father and mother in Honduras. But it took over six weeks, until October 1 1th, 2018 for J. F. A. S. to be returned to his family in Honduras. At this rate the return of children with Deported Class Members will drag into next year. Together Free respectfully submits that the Proposed Agreement should require the United States to follow through on its representation to the Court?namely that it would retroactively terminate the cases of children who were forced to choose voluntary departure. Children whose parents were deported without them should not be penalized for choosing to return to their parents, rather than staying and pursuing their asylum claims. Together Free also respectfully submits that, at a minimum, the Proposed Agreement must provide for administrative procedures and protections to assist Deported Class Members with ?nding and seeking reuni?cation with their children. Administrative Problems Identi?dng Class Members. It is well-established that the United States? separation of families at the border was hastily implemented and disorganized. Perhaps because of this, in spite of the Parties? efforts, there is still no assurance that all the Class Members have been identi?ed. In fact, as recently as October 25, 2018, the United States reported the discovery of 14 minor children who qualify as Class Members but previously had not been identi?ed as such. Despite this clear weakness in the process, the Proposed Agreement does not describe or require any organization or mechanism for the ongoing process of identifying, and determining the eligibility of, Class Members. This problem is particularly acute for Deported Class Members, an unsurprising fact, given that they are outside the United States, and, as a result, often lack access to the United Case Document 318-2 Filed 11/14/18 PageID.4937 Page8of States? judicial system and to United States legal counsel. Together Free has become aware of a number of Deported Class Members who have not been identi?ed as Class Members in this action, even though they meet the criteria. These include: Oscar M. R.: Oscar crossed with his 5-year?old son in June of 2018. His son was sent to an Of?ce of Refugee Resettlement facility and was eventually released to a relative. Oscar was deported back to Honduras without his son?who has not seen his father since June?-on or around July 18, 2018. Elisa A.?Elisa ?ed persecution in Romania along with her 3 year old daughter. Her daughter was released to relatives but Elisa was deported on or around July 26, 2018. Deported Class Members such as these face a desperate situation. Far from their children, they must somehow weigh their legal options, and work without assistance to secure reuni?cation with their children. Together Free respectfully submits that, in order to be truly fair, the Proposed Agreement must include provisions that clearly describe a process for identifying Class Members, particularly Deported Class Members. As just one example, the Preposed Agreement could require the United States to establish a website that would allow potential Class Members or their lawyers to review the class de?nition, review their rights, submit their names and circumstances for eligibility determination and, most importantly, help ?nd their children. The United States also should be required to assemble a neutral steering committee that would be charged with determining Class Member eligibility, and whose progress and determinations would be publicly ?led with the Court on a regular basis. Large class action settlements routinely contain similar provisions for class member determination and reporting, and these types of provisions are important to the just and fair administration of the relief. Problems With Case Administration Are Impeding Relief As a result of the ?chaotic circumstance of the Government?s own making? (June 26, 2018 Order at 23), some families continue to face the prOSpect of immediate deportation due to administrative problems Case Document 318-2 Filed 11/14/18 PageID.4938 Page90f with their cases. In particular, Class Members have been dispersed all around over the United States, and many have faced serious dif?culty changing the venue of their cases. As a result, some Class Members now live thousands of miles away from the courts where their cases are proceeding. Because they cannot afford to travel regularly to the original jurisdictions, they are effectively denied the ability to effectively pursue their asylum claims. For example, Class Members Estela V. G. and Maria L. B. were transferred from Arizona to Atlanta, where they were held in Irwin County Detention Center. Maria L.B. was transferred to Port Isabel Detention Center in Texas for release and reuni?cation with her child. She and her child moved to Nashville, but her case has remained in Atlanta because the judge refuses to grant the change of venue request (due to his skepticism of the merits of the underlying case). Likewise, Estela V. G. moved to Aurora, New York with her daughter. She passed her credible fear interview but an Atlanta judge also has refused to change the venue of her case, again because he is skeptical of the merits of her case. Both women have so far attempted to travel to Atlanta for court dates, but cannot afford to do so inde?nitely. The travel exacerbates the trauma already suffered by their children. Maria young daughter cries and begs her to return whenever she has to leave. Obviously this Court has no control over whether judges in other venues act unreasonably. But the administrative problems these Class Members face were either caused or exacerbated by the irresponsible and negligent manner in which the United States implemented its ?zero tolerance? policy, and the chaos and havoc that ensued. The United States should have the obligation to handle case transfers of all the Class Members to the appropriate venues. For Class Members who are minor children, it should be required to ensure that cases are either re- opened, or that deportation orders are terminated. Together Free respectfully submits that such obligations?along with any other obligations necessary for smooth administration of the Class Members? cases?should be provided for in the Proposed Agreement. Together Free understands that any class settlement represents an imperfect compromise. But the compromises in the Proposed Agreement go beyond reasonable Case Document 318-2 Filed 11/14/18 PageID.4939 Page 10 of 11 1 concessions. Instead, for a number of Class Members, the Pr0posed Agreement fails to 2 guarantee their primary goal?reuni?cation with their family members. Respectfully, the Court 3 must ensure the fair and just treatment of all Class Members, some of whom continue to be 4 deprived of their fundamental rights, and suffer profound and lasting harm. Respectfully Submitted, 7 .. .. Christine Bateup 10 Together Free, IncCase Document 318-2 Filed 11/14/18 PageID.4940 Page 18CV0428 DMS (MDD)