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Case 3:18-cv-00428-DMS-MDD Document 78 Filed 06/25/18 PageID.1407 Page 1 of 259 1 Lee Gelernt* Bardis Vakili (SBN 247783) Judy Rabinovitz* ACLU FOUNDATION OF SAN 2 Anand Balakrishnan* DIEGO & IMPERIAL COUNTIES 3 AMERICAN CIVIL LIBERTIES P.O. Box 87131 UNION FOUNDATION San Diego, CA 92138-7131 4 IMMIGRANTS’ RIGHTS PROJECT T: (619) 398-4485 5 125 Broad St., 18th Floor F: (619) 232-0036 New York, NY 10004 [email protected] 6 T: (212) 549-2660 7 F: (212) 549-2654 [email protected] 8 [email protected] 9 [email protected] 10 Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice 11 Additional counsel on next page 12 UNITED STATES DISTRICT COURT 13 SOUTHERN DISTRICT OF CALIFORNIA 14 15 Ms. L. et al., Case No. 18-cv-00428-DMS- 16 MDD Petitioners-Plaintiffs, 17 v. Date Filed: June 25, 2018 18 PLAINTIFFS’ U.S. Immigration and Customs Enforcement SUPPLEMENTAL 19 (“ICE”); et al., MEMORANDUM IN 20 SUPPORT OF CLASSWIDE Respondents-Defendants. 21 PRELIMINARY INJUNCTION 22 23 NO HEARING DATE 24 25 26 27 28 Case 3:18-cv-00428-DMS-MDD Document 78 Filed 06/25/18 PageID.1408 Page 2 of 259 1 Spencer E. Amdur (SBN 320069) 2 Stephen B. Kang (SBN 292280) 3 AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 4 39 Drumm Street 5 San Francisco, CA 94111 T: (415) 343-1198 6 F: (415) 395-0950 7 [email protected] [email protected] 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:18-cv-00428-DMS-MDD Document 78 Filed 06/25/18 PageID.1409 Page 3 of 259 1 TABLE OF CONTENTS 2 INTRODUCTION .................................................................................................. 1 3 I. Recent Events: The Government Has Now Separated More Than Two Thousand Children from Their Parents. ........................................................ 2 4 II. There is No System To Reunify Separated Families Expeditiously, and 5 the Government’s Existing “Reunification” Process Is Not Designed to 6 Address the Current Crisis. ........................................................................... 4 7 III. The Flores Settlement Agreement Does Not Prohibit the Reunification of 8 Separated Children with Their Detained Parents. .......................................... 7 9 IV. Any Injunction Should Ensure That Parents in DHS Custody Can 10 Remain Detained with Their Children, Even if the Parents Are Facing Criminal Prosecution. ................................................................................... 8 11 V. An Injunction to Prevent Future Separations Remains Necessary, and the 12 Court Should Order the Government to Follow Well-Established Child 13 Welfare Standards. ........................................................................................ 9 14 VI. Parents Facing Imminent Deportation Require Safeguards to Ensure 15 that They Are Not Removed Without Their Children. ................................. 11 16 VII. Plaintiffs’ Order Provides the Appropriate Framework for Expeditious 17 Reunification. ............................................................................................. 11 18 CONCLUSION .................................................................................................... 14 19 20 21 22 23 24 25 26 27 28 ii Case 3:18-cv-00428-DMS-MDD Document 78 Filed 06/25/18 PageID.1410 Page 4 of 259 1 TABLE OF AUTHORITIES 2 Cases 3 Armstrong v. Schwarzenegger, 4 2007 WL 2694243 (N.D. Cal. Sept. 11, 2007) ................................................... 12 Hernandez v. Sessions, 5 872 F.3d 976 (9th Cir. 2017) ............................................................................. 12 6 Saravia v. Sessions, 280 F. Supp. 3d 1168 (N.D. Cal. 2017) .............................................................. 12 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iii Case 3:18-cv-00428-DMS-MDD Document 78 Filed 06/25/18 PageID.1411 Page 5 of 259 1 INTRODUCTION 2 On March 9, when Plaintiffs first sought classwide relief, the government 3 had already taken hundreds of children from their parents. When this case was 4 argued before the Court on May 4, the number of separated children had grown to 5 more than 700. The government has since confirmed that between May 5 and June 6 9 alone, over 2,300 children were separated from their parents. More than 2,000 of 7 those children remain separated. This follows the government’s “zero tolerance” 8 policy announced on May 7, three days after this Court held arguments. 9 On June 20, President Trump signed an Executive Order that purports to end 10 further separations. It does not. The Order contains explicit loopholes, including 11 an exception for separations that the government deems in the “interests” of the 12 child. Because the government interprets that best-interest standard in a way that 13 would allow separations that are inconsistent with this Court’s prior due process 14 opinion—and with universally accepted child welfare norms—a preliminary 15 injunction remains critical to prevent future unlawful separations. 16 Even more pressing, the Order does not address the reunification of already- 17 separated families at all, and the government has no meaningful plan for swiftly 18 ensuring that such reunifications occur. Thus, thousands of families remain 19 separated, and many parents have no idea where their children are or how to find 20 them. With each added day of separation, the terrible trauma inflicted by the 21 government on both parents and children continues to mount. Many of the children 22 are babies and toddlers who every night are crying themselves to sleep wondering if 23 they will ever see their parents again. Indeed, one separated child was only 4 24 months old and another was still breastfeeding. See, e.g., Declaration of Laura 25 Tuell (“Tuell Decl.”), Ex. 32, ¶ 17b (noting child who was taken from her mother 26 while breastfeeding); id., ¶ 17a (mother told that daughter would be waiting for her 27 after court appearance; daughter was gone when mother came back); Declaration of 28 1 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 78 Filed 06/25/18 PageID.1412 Page 6 of 259 1 Manoj Govindaiah (“Govindaiah Decl.”), Ex. 36, ¶ 6(b) (father separated from 2 four-month-old baby, then deported without baby). 3 Without immediate action from this Court, these families will remain 4 separated. The Office of Refugee Resettlement’s (“ORR”) normal release process 5 for children in its care will not swiftly reunify most separated families, because that 6 process is not designed to reunify children with detained parents. Having spent 7 months cruelly separating families and defending its right to do so—including for 8 weeks after this Court declared that practice “brutal, offensive” and contrary to 9 “traditional notions of fair play and decency”—the government cannot be left on its 10 own to end the suffering it has intentionally caused. This Court’s intervention is 11 necessary to ensure that these due process violations are swiftly corrected. 12 As set forth more fully in the proposed Order submitted with this brief, 13 Plaintiffs respectfully request that the Court require Defendants to: 14 1) reunify all children with their parents within 30 days, and within 10 days for 15 children under 5 years old, except where the government has clear evidence 16 that the parent is unfit or a danger to the child, or the parent is in a criminal 17 facility that does not house minors; 18 2) provide parents, within 7 days, telephonic contact with their children; 19 3) stop separating children from their parents except where there is clear 20 evidence that the parent is unfit or a danger to the child, or the parent is in a 21 criminal facility that does not house minors; 22 4) not remove separated parents from the United States without their children, 23 unless the parent affirmatively, knowingly, and voluntarily waives the right 24 to reunification before removal. 25 I. Recent Events: The Government Has Now Separated More Than Two 26 Thousand Children from Their Parents. Defendants have been separating thousands of families throughout the last 27 year. Even before the government formally announced its zero tolerance policy, it 28 2 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 78 Filed 06/25/18 PageID.1413 Page 7 of 259 1 had separated hundreds of children from their family members. See Decl. of 2 Stephen B. Kang (“Kang Decl.”), Ex. 38, ¶ 3. 3 On May 7, 2018, Attorney General Sessions announced an initiative to refer 4 “100 percent” of immigrants who cross the Southwest border for criminal 5 immigration prosecutions, also known as the “zero-tolerance policy.” Kang Decl., 6 Ex. 38, ¶ 4. Attorney General Sessions stated that as part of that prosecution, the 7 parent’s child “will be separated from you as required by law.” Id. 8 In early May, the pace of family separations increased. At a Senate Judiciary 9 Committee hearing in May, a deputy chief of U.S. Customs and Border Protection 10 (“CBP”) testified that between May 6 and May 19 alone, a total of 658 children 11 were separated from their family members. Kang Decl., Ex. 38, ¶ 5. In June 2018, 12 the Department of Homeland Security (“DHS”) reported that in the six weeks 13 between April 19 and May 31, the administration took around 2,000 children away 14 from their parents. Id., ¶ 6. And on June 19, CBP officials confirmed that “[o]ver 15 2,300 children were separated from their parents at the U.S.-Mexico border 16 between May 5 and June 9.” Id., ¶ 8; see also id., ¶ 7 (documenting cases of 17 separated children living in cages and being cared for by other children). 18 On June 20, President Trump issued an Executive Order (“EO”), Section 3 of 19 which provides that DHS “shall, to the extent permitted by law and subject to the 20 availability of appropriations, maintain custody of alien families during the 21 pendency of any criminal improper entry or immigration proceedings involving 22 their members.” Kang Decl., Ex.

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