Case 3:18-cv-00428-DMS-MDD Document 335 Filed 12/14/18 PageID.5125 Page 1 of 3 1 2 3 4 5 6 7 8 Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* Daniel Galindo (SBN 292854) AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2660 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org dgalindo@aclu.org Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice 9 10 11 Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 398-4485 F: (619) 232-0036 bvakili@aclusandiego.org Stephen B. Kang (SBN 292280) Spencer E. Amdur (SBN 320069) AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 skang@aclu.org samdur@aclu.org UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Ms. L., et al., v. Case No. 18-cv-00428-DMS-MDD Petitioners-Plaintiffs, U.S. Immigration and Customs Enforcement (“ICE”), et al., Respondents-Defendants. Date Filed: December 14, 2018 NOTICE OF MOTION AND MOTION TO CLARIFY SCOPE OF THE MS. L. CLASS Case 3:18-cv-00428-DMS-MDD Document 335 Filed 12/14/18 PageID.5126 Page 2 of 3 1 Plaintiffs hereby move this Court to clarify that the scope of the Ms. L. class 2 does not exclude parents whose separated children were released before June 26, 3 2018. 4 Plaintiffs’ Motion to Clarify is based on this Notice of Motion and Motion and 5 the concurrently-filed Memorandum; all papers, pleadings, records, and files in this 6 case; all matters of which judicial notice may be taken; and such other arguments and/or evidence as may be presented to this Court at a hearing on this Motion. 7 8 Dated: December 14, 2018 9 10 11 12 13 14 15 16 17 18 Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 398-4485 F: (619) 232-0036 bvakili@aclusandiego.org Stephen B. Kang (SBN 2922080) Spencer E. Amdur (SBN 320069) AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 skang@aclu.org samdur@aclu.org Respectfully Submitted, /s/Lee Gelernt Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* Daniel Galindo (SBN 292854) AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2660 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org dgalindo@aclu.org *Admitted Pro Hac Vice 19 20 21 22 23 24 25 1 Case 3:18-cv-00428-DMS-MDD Document 335 Filed 12/14/18 PageID.5127 Page 3 of 3 1 CERTIFICATE OF SERVICE 2 I hereby certify that on December 14, 2018, I electronically filed the foregoing 3 with the Clerk for the United States District Court for the Southern District of 4 California by using the appellate CM/ECF system. A true and correct copy of this 5 brief has been served via the Court’s CM/ECF system on all counsel of record. /s/ Lee Gelernt Lee Gelernt, Esq. Dated: December 14, 2018 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 335-1 Filed 12/14/18 PageID.5128 Page 1 of 7 1 2 3 4 5 6 7 8 Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* Daniel Galindo (SBN 292854) AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2660 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org dgalindo@aclu.org Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice 9 10 Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 398-4485 F: (619) 232-0036 bvakili@aclusandiego.org Stephen B. Kang (SBN 292280) Spencer E. Amdur (SBN 320069) AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 skang@aclu.org samdur@aclu.org 11 12 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 13 14 15 Ms. L., et al., Case No. 18-cv-00428-DMS-MDD 16 v. 17 U.S. Immigration and Customs Enforcement (“ICE”), et al. Petitioners-Plaintiffs, 18 19 20 21 22 23 24 25 Respondents-Defendants. Date Filed: December 14, 2018 MEMORANDUM OF LAW IN SUPPORT OF MOTION TO CLARIFY SCOPE OF THE MS. L. CLASS Case 3:18-cv-00428-DMS-MDD Document 335-1 Filed 12/14/18 PageID.5129 Page 2 of 7 1 INTRODUCTION 2 Plaintiffs respectfully request that the Court clarify that the Ms. L. class includes 3 parents whose separated children were released from ORR custody before June 26, 4 2018. The issue is an important one: without this clarification, parents who were 5 separated from their children pursuant to the government’s zero-tolerance policy will be 6 denied due process rights to family integrity based on an arbitrary distinction that finds no support in the Court’s Class definition. 7 8 9 ARGUMENT Parents Whose Separated Children Were Released from ORR Custody Before June 26 are Members of the Ms. L. Class. I. This Court’s June 26, 2018 order certified the following class: 10 11 12 13 14 15 All adult parents who enter the United States at or between designated ports of entry who (1) have been, are, or will be detained in immigration custody by the DHS, and (2) have a minor child who is or will be separated from them by DHS and detained in ORR custody, ORR foster care, or DHS custody, absent a determination that the parent is unfit or presents a danger to the child. Order Granting in Part Plaintiffs’ Motion for Class Certification, Ms. L., et al., v. ICE, Dkt. 82 at 17. On the same date, the Court issued a preliminary injunction that granted 16 class members a right to be reunified with their children. In relevant part, the Court 17 enjoined the government (1) from detaining class members apart from their children, 18 and (2) from “removing any Class Members without their child, unless the Class 19 Member affirmatively, knowingly, and voluntarily declines to be reunited with the child 20 21 22 23 24 prior to the Class Members’ deportation, or there is a determination that the parent is unfit or presents a danger to the child.” PI Order, Dkt. 83 at 24.1 1 On August 16, 2018, in order to ensure that the government respected the asylum rights of Ms. L. class members and their children, the Court entered a Temporary Restraining Order in the companion MMM case further prohibiting removal of Ms. L. class members and their children. See Order Granting Temporary Restraining Order, M.M.M., et al. v. Sessions, 18-cv-1832, Dkt. No. 55 at 15. 25 1 Case 3:18-cv-00428-DMS-MDD Document 335-1 Filed 12/14/18 PageID.5130 Page 3 of 7 1 The government interprets the Court’s class definition to include only those 2 parents who (1) are or were detained in immigration custody, (2) have a minor child 3 who was separated from them by DHS and (3) whose child was in ORR custody on or 4 after June 26, 2018. Thus, the government would exclude from the class, and from any 5 right to reunification, parents whose children happened to be released from ORR 6 custody before June 26, 2018. This is wrong for three reasons: 7 8 9 First, the text of the Ms. L. class definition itself contains no date on which children must be in ORR custody. In relevant part, the class definition includes adult parents who (1) “have been, are, or will be detained in immigration custody” and (2) 10 “have a minor child who is or will be separated from them by DHS and detained in 11 ORR custody . . . .” The government points to the present tense “is” in the second part 12 to contend that the definition includes only those parents whose children were in 13 custody on June 26. However, the government places too much weight on the tense of the provision while completely ignoring the intent of the parties. Notably, Plaintiffs did 14 15 not propose that the class definition turn on the date on which a child must be in ORR custody. Nor did the government argue for that limitation in opposing class 16 certification. Indeed, the text of the class definition that the Court adopted is in relevant 17 part identical to that proposed by Plaintiffs in the Amended Class Complaint, see Dkt. 18 32 at 12, and Motion for Class Certification, see Dkt. 35-1 at 1. Thus, there is no 19 evidence that the Court ever intended to exclude from the class—and thereby deny any 20 21 22 right to reunify with their children—those parents whose children happened to have been moved out of ORR custody by the time the Court entered its orders. Second, imposing an artificial date limitation into the class definition would make no sense because both of the class representatives—Ms. L. and Ms. C.—would be 23 excluded from the Class if the government were correct. The government separated 24 Ms. L. from her seven-year-old daughter on November 5, 2017. Ms. L.’s daughter was 25 2 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 335-1 Filed 12/14/18 PageID.5131 Page 4 of 7 1 in ORR custody when plaintiffs filed an individual action seeking reunification on 2 February 26, 2018. Dkt. 1 at 1. The government subsequently released Ms. L., but 3 her daughter was still in ORR custody when plaintiffs sought class certification on 4 March 9, 2018. Dkt. 32 at 6. Two and a half months later, however, when the Court 5 granted the motion for class certification, Ms. L.’s daughter had been released from 6 ORR custody and the family was reunited. Ms. C.’s son was similarly in ORR custody at the time class certification was sought, but released by the time class certification was 7 8 9 granted. See Brazilian mother reunites with 14-year-old son 8 months after separation at U.S. border, ABC News, June 5, 2018, available at https://abcn.ws/2LoIdia (last accessed Nov. 20, 2018) (reporting that Ms. C.’s son was released from ORR to her 10 care on June 5, 2018). The class definition was designed to include the named 11 representatives, not exclude them. 12 13 Third, the government’s June 26 cut-off date would create an artificial distinction between two classes of parents who were subject to the same illegal practice and suffered the exact same injuries, and arbitrarily deny relief to one of those classes. 14 15 There is no relevant difference between the two groups. Parents whose children were released from ORR custody before June 26 were subject to the same “brutal, offensive” 16 policy as the other class members. MTD Order, Dkt. 70 at 22. They were similarly 17 “unlikely to know whether [they may] be deported before, simultaneous to, or after their 18 child.” PI Order, Dkt. 83 at 15. They and their children experienced the same 19 agonizing trauma of separation. Id. at 18-19. Their substantive due process rights to 20 21 22 family integrity were identically violated. And they all have the same right to be reunified as other parents. There is no reason why they would be excluded from the Class definition. And there is no reason why they should now be deported without any opportunity to reunify with their children, who, under the government’s theory, would 23 remain stranded in the United States simply because of the date on which ORR 24 happened to place them with a sponsor. 25 3 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 335-1 Filed 12/14/18 PageID.5132 Page 5 of 7 1 2 3 II. In the Alternative, the Court Can Modify the Class Definition to Include Parents Whose Children Were Released from ORR Custody Before June 26, 2018. If the Court were to conclude that the class definition as currently written 4 excludes parents like Ms. L. and Ms. C., then the Court may modify the Class. Rule 5 23(c)(1)(C) provides that an “order that grants or denies class certification may be 6 7 8 9 altered or amended before final judgment.” Rule 23 gives courts “broad discretion to determine whether a class should be certified, and to revisit that certification throughout the legal proceedings before the court.” United Steel v. ConocoPhillips Co., 593 F.3d 802, 810 (9th Cir.2010) (internal quotation marks omitted). For the reasons stated above, a modified class definition that explicitly includes 10 all qualifying parents—without exceptions based on the date their children left ORR 11 custody—would be appropriate and would meet Rule 23’s requirements. See Lyon v. 12 U.S. Immigration & Customs Enf't, 308 F.R.D. 203, 210-11 (N.D. Cal. 2015). 13 14 15 16 CONCLUSION For the foregoing reasons, Plaintiffs requests the court clarify the Ms. L. class does not exclude parents who were separated from their children and whose children were released from ORR custody before June 26, 2018. 17 18 19 20 21 22 23 24 Dated: December 14, 2018 Respectfully Submitted, /s/Lee Gelernt Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* Daniel Galindo (SBN 292854) AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad St., 18th Floor New York, NY 10004 Stephen B. Kang (SBN 2922080) T: (212) 549-2660 Spencer E. Amdur (SBN 320069) F: (212) 549-2654 AMERICAN CIVIL LIBERTIES UNION lgelernt@aclu.org FOUNDATION jrabinovitz@aclu.org Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 398-4485 F: (619) 232-0036 bvakili@aclusandiego.org 25 4 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 335-1 Filed 12/14/18 PageID.5133 Page 6 of 7 1 2 3 IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 samdur@aclu.org abalakrishnan@aclu.org dgalindo@aclu.org *Admitted Pro Hac Vice 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 335-1 Filed 12/14/18 PageID.5134 Page 7 of 7 1 CERTIFICATE OF SERVICE 2 I hereby certify that on December 14, 2018, I electronically filed the foregoing 3 with the Clerk for the United States District Court for the Southern District of 4 California by using the appellate CM/ECF system. A true and correct copy of this brief 5 has been served via the Court’s CM/ECF system on all counsel of record. /s/ Lee Gelernt 6 Lee Gelernt, Esq. 7 Dated: December 14, 2018 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 18cv0428