Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* AMERICAN CIVIL LIBERTIES UNION ...

66 Pages·2017·0.96 MB·English

by  Alexis E. Warren

Case 3:18-cv-00428-DMS-MDD Document 35-1 Filed 03/09/18 PageID.654 Page 1 of 66

Lee Gelernt* Bardis Vakili (SBN 247783)
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Judy Rabinovitz* ACLU FOUNDATION OF SAN
Anand Balakrishnan* DIEGO & IMPERIAL COUNTIES
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AMERICAN CIVIL LIBERTIES P.O. Box 87131
UNION FOUNDATION San Diego, CA 92138-7131
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IMMIGRANTS’ RIGHTS PROJECT T: [phone]
125 Broad St., 18th Floor F: [phone]
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New York, NY 10004 [email protected]
T: [phone]
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F: [phone]
[email protected]
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[email protected]
[email protected]
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Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice
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Additional counsel on next page
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
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Ms. L. and Ms. C., Case No. 18-cv-00428-DMS-MDD
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Petitioners-Plaintiffs,
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v.
Date Filed: March 9, 2018
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U.S. Immigration and Customs Enforcement
(“ICE”); U.S. Department of Homeland Security
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(“DHS”); U.S. Customs and Border Protection
(“CBP”); U.S. Citizenship and Immigration MEMORANDUM IN
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Services (“USCIS”); U.S. Department of Health SUPPORT OF MOTION FOR
and Human Services (“HHS”); Office of CLASS CERTIFICATION
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Refugee Resettlement (“ORR”); Thomas
Homan, Acting Director of ICE; Greg
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Archambeault, San Diego Field Office Director, CLASS ACTION
ICE; Joseph Greene, San Diego Assistant Field
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Office Director, ICE; Adrian P. Macias, El Paso
Field Director, ICE; Frances M. Jackson, El Paso
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Assistant Field Office Director, ICE; Kirstjen
Nielsen, Secretary of DHS; Jefferson Beauregard
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Sessions III, Attorney General of the United
States; L. Francis Cissna, Director of USCIS;
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Kevin K. McAleenan, Acting Commissioner of
CBP; Pete Flores, San Diego Field Director,
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CBP; Hector A. Mancha Jr., El Paso Field
Director, CBP; Alex Azar, Secretary of the
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Department of Health and Human Services;
Scott Lloyd, Director of the Office of Refugee
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Resettlement,

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Respondents-Defendants.
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18cv0428
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Spencer E. Amdur (SBN 320069)
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
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IMMIGRANTS’ RIGHTS PROJECT
39 Drumm Street
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San Francisco, CA 94111
T: [phone]
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F: [phone]
[email protected]
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Case 3:18-cv-00428-DMS-MDD Document 35-1 Filed 03/09/18 PageID.656 Page 3 of 66

TABLE OF CONTENTS
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INTRODUCTION ..................................................................................................... 1
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BACKGROUND ....................................................................................................... 3
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Named Plaintiff: Ms. L. ................................................................................... 3
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Named Plaintiff: Ms. C. .................................................................................. 4
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The Class ......................................................................................................... 5
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ARGUMENT ............................................................................................................. 6
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I. The Proposed Class Satisfies Rule 23(a)’s Requirements. ................... 7
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A. The Proposed Easily Satisfies the Numerosity Requirement .......... 7
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B. The Class Presents Common Questions of Law and Fact. .............. 9
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C. Typicality: Plaintiffs’ Claims Are Typical of Class Members’
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Claims. ........................................................................................... 13
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D. Adequacy: Plaintiffs Will Adequately Protect the Interests of the
Proposed Class, and Plaintiffs’ Counsel Are More Than Qualified
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to Litigate this Action. ................................................................... 14
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E. The Class Is Sufficiently Ascertainable. ........................................ 16
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II. This Action Satisfies the Requirements of Rule 23(b)(2). ................. 18
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CONCLUSION ........................................................................................................ 20
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1 TABLE OF AUTHORITIES
Cases
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Alfaro Garcia v. Johnson,
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No. 14-cv-1775, 2014 WL 6657591 (N.D. Cal. 2014)………………………….15
Ali v. Ashcroft,
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213 F.R.D. 390 (W.D. Wash. 2003)………………………………………………8
Ark. Educ. Ass’n v. Board Of Educ. of Portland, Ark. Sch. Dist.,
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446 F.2d 763 (8th Cir. 1971)……………………………………………………...8
Armstrong v. Davis,
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275 F.3d 849 (9th Cir. 2001)…………………………………………………….10
Arnott v. U.S. Citizenship & Immigration Servs.,
7
290 F.R.D. 579 (C.D. Cal. 2012)…………………………………………..6, 7, 12
Baharona-Gomez v. Reno,
8 167 F.3d 1228 (9th Cir. 1999)……………………………………………………..2
Carrillo v. Schneider Logistics, Inc.,
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No. 11-cv-8557CAS-DTBX, 2012 WL 556309 (C.D. Cal. Jan. 31, 2012)………2
Cervantez v. Celestica Corp.,
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253 F.R.D. 562 (C.D. Cal. 2008)…………………………………………………8
Cole v. City of Memphis,
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839 F.3d 530 (6th Cir. 2016)…………………………………………………….16
Ellis v. Costco Wholesale Corp.,
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657 F.3d 970 (9th Cir. 2011)…………………………………………………….12
Evon v. Law Offices of Sidney Mickell,
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688 F.3d 1015 (9th Cir. 2012)…………………………………………………...12
Franco-Gonzales v. Napolitano,
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No. 10-cv-02211-DMG-DTBX, 2011 WL 11705815
(C.D. Cal. Nov. 21, 2011)…………………………………………………….7, 15
15
Gen. Tel. Co. of Sw. v. Falcon,
457 U.S. 147 (1982)……………………………………………………………..11
16
Greater Los Angeles Agency on Deafness, Inc. v. Reel Servs. Mgmt. LLC,
No. 13-cv-7172 PSG (ASX), 2014 WL 12561074 (C.D. Cal. May 6, 2014)..16,17
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Hanlon v. Chrysler Corp.,
150 F.3d 1011 (9th Cir. 1998)……………………………………………..9, 10,13
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Hanon v. Dataproducts Corp.,
976 F.2d 497 (9th Cir. 1992)…………………………………………………13,14
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Harris v. Palm Springs Alpine Estates, Inc.,
329 F. 2d 909 (9th Cir. 1964)……………………………………………………..7
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Hawker v. Consovoy,
198 F.R.D. 619 (D.N.J. 2001)………………………………………………….....9
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Hum v. Dericks,
162 F.R.D. 628 (D. Haw. 1995)…………………………………………………..8
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In re Yahoo Mail Litig.,
308 F.R.D. 577 (N.D. Cal. 2015)………………………………………………..16
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Johnson v. California,
543 U.S. 499 (2005)………………………………………………………………8
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Jordan v. Los Angeles Cty.,
669 F.2d 1311 (9th Cir. 1982)………………………………………………….....8
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Khoury v. Asher,
3 F. Supp. 3d 877 (W.D. Wash. 2014)…………………………………………..15
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LaDuke v. Nelson,
762 F.2d 1318 (9th Cir. 1985)…………………………………………………...14
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Lamumba Corp. v. City of Oakland,
No. 05-cv-2712 MHP, 2007 WL 3245282 (N.D. Cal. Nov. 2, 2007)…………...17
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Lynch v. Rank,
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604 F. Supp. 30 (N.D. Cal. 1984)……………………………………………….14
Lyon v. U.S. Immigration & Customs Enf’t,
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308 F.R.D. 203 (N.D. Cal. 2015)………………………………………………..18
Marisol A. v. Giuliani,
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126 F.3d 372, 378 (2d Cir. 1997) ………………………………………………14
Mazza v. Am. Honda Motor Co., Inc.,
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666 F.3d 581 (9th Cir. 2012)…………………………………………………..9,10
Mendez Rojas, et al. v. Johnson,
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No. 16-cv-1024-RSM (W.D. Wash. Jan. 10, 2017)………………………………7
Moreno v. Napolitano,
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No. 11-cv-5452, 2014 WL 4911938 (N.D. Ill. Sept. 30, 2014)…………………17
Natl. Assn. of Radiation Survivors v. Walters,
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111 F.R.D. 595 (N.D. Cal. 1986)………………………………………………....9
O’Connor v. Boeing N. Am., Inc.,
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184 F.R.D. 311 (C.D. Cal. 1998)………………………………………………..17
Orantes-Hernandez v. Smith,
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541 F. Supp. 351 (C.D. Cal. 1982)………………………………………………12
Parsons v.Ryan,
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754 F.3d 657 (9th Cir. 2014)…………………………………………….....9,13,19
Perez-Funez v. Dist. Dir., I.N.S.,
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611 F. Supp. 990 (C.D. Cal. 1984)………………………………………………..7
Perez-Olano v. Gonzalez,
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248 F.R.D. 248 (C.D. Cal. 2008)………………………………………………..11
Preap v. Johnson,
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303 F.R.D. 566 (N.D. Cal. 2014)……………………………………………..9, 15
RILR v. Johnson,
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80 F. Supp. 3d 164 (D.D.C. 2015)………………………………………………15
Rivera v. Johnson,
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307 F.R.D. 539 (W.D. Wa 2015)………………………………………………..15
Santillan v. Ashcroft,
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No. 04-cv-2686MHP, 2004 WL 2297990 (N.D. Cal. Oct. 12, 2004)………...6, 10
Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co.,
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559 U.S. 393 (2010)………………………………………………………………6
Shelton v. Bledsoe,
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775 F.3d 554 (3d Cir. 2015)……………………………………………………..16
Shook v. El Paso Cnty.,
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386 F.3d 963 (10th Cir. 2004)…………………………………………………...16
Smith v. Heckler,
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595 F. Supp. 1173 (E.D. Cal. 1984)………………………………………………8
Sueoka v. United States,
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101 Fed. App’x 649 (9th Cir. 2004)………………………………………………7
Sweet v. Pfizer,
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232 F.R.D. 360 (C.D. Cal. 2005)………………………………………………..11
Wagafe v. Trump,
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No. 17-cv-0094-RAJ, 2017 WL 2671254 (W.D. Wash. June 21, 2017)…………6
Wal-Mart Stores, Inc. v. Dukes,
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564 U.S. 338 (2011)……………………………………………………..11, 12, 18
Walters v. Reno,
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145 F.3d 1032 (9th Cir. 1998)………………………………………………passim
Yaffe v. Powers,
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454 F.2d 1362 (1st Cir.1972)……………………………………………………16
Young v. Nationwide Mut. Ins. Co.,
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693 F.3d 532 (6th Cir. 2012)…………………………………………………….18

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Rules
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Fed. R. Civ. P. 23(a)……………………………………………………....1, 2, 6, 18
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Fed. R. Civ. P. 23(a)(1)……………………………………………………………..7

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Fed. R. Civ. P. 23(a)(2) …………………………………………………………….9

Fed. R. Civ. P. 23(a)(4)……………………………………………………………14
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Fed. R. Civ. P. 23(b)………………………………………………………1, 2, 6, 18

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Fed. R. Civ. P. 23(b)(2)……………………………………………………16, 18, 19

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INTRODUCTION
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2 A class action lawsuit is appropriate to challenge Defendants’ nationwide
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unlawful practice of separating parents and children absent any showing that the
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parent presents a danger to the child. Plaintiffs seek to certify the following
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nationwide class under Federal Rules of Civil Procedure 23(a) and 23(b)(2):
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All adult parents nationwide who (1) are or will be detained in immigration
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custody by the Department of Homeland Security, and (2) have a minor child
who is or will be separated from them by DHS and detained in ORR custody,
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absent a demonstration in a hearing that the parent is unfit or presents a
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danger to the child.

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The proposed class readily satisfies the requirements of numerosity, commonality,
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typicality, and adequacy in Rule 23(a) and is readily ascertainable.
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The proposed class includes hundreds of individuals whose minor children
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have already been taken from them, which is sufficient to satisfy numerosity. The
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class raises numerous common legal questions that will generate common answers,
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including whether Defendants’ challenged separation practice violates the Due
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Process Clause and the Administrative Procedure Act (APA). The class also raises
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21 common factual issues because Plaintiffs and class members are subject to the same
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practice of keeping parents in immigration facilities separated from their children
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detained elsewhere. Plaintiffs’ Due Process Clause and APA claims are typical of
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25 those whom they seek to represent—that is, other parents who have or will have
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their children taken from them. Plaintiffs are also adequately represented by a team
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of attorneys from the ACLU Immigrants’ Rights Project and the ACLU of San
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Diego and Imperial Counties with significant experience in immigrants’ rights
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issues and class action cases.

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Plaintiffs’ proposed class likewise satisfies Rule 23(b)(2) because Defendants
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have “acted or refused to act on grounds that apply generally to the class, so that
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final injunctive relief or corresponding declaratory relief is appropriate respecting

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the class as a whole.” Because the government has a practice of separating parents
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9 from their children without a hearing or any showing of abuse or neglect, they are
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operating in a manner that is common to all Plaintiffs. The class as a whole is
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therefore entitled to an injunction ordering Defendants to reunite class members
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13 with their minor children.
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Accordingly, this Court should grant class certification under Rule 23(b)(2)
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for purposes of entering Plaintiffs’ requested classwide preliminary and permanent
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17 injunctions.1 See Carrillo v. Schneider Logistics, Inc., No. 11-cv-8557, 2012 WL
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556309, at *9 (C.D. Cal. Jan. 31, 2012) (“courts routinely grant provisional class
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certification for purposes of entering [preliminary] injunctive relief” under Rule
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21 23(b)(2), where the plaintiff establishes that the four prerequisites in Rule 23(a) are
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also met) (citing Baharona-Gomez v. Reno, 167 F.3d 1228, 1233 (9th Cir. 1999)).
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28 1 Plaintiffs also request that they be appointed Class Representatives, and that
undersigned counsel be appointed Class Counsel.
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BACKGROUND
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Named Plaintiff: Ms. L.

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After fleeing the Democratic Republic of Congo with her 7 year-old
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daughter, Ms. L. presented herself to border guards at the San Ysidro Port of Entry
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on November 1, 2017. After she expressed fear of returning to the Congo, Ms. L.

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was given a credible fear interview, and the asylum officer determined that she had
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9 a credible fear of persecution. Ms. L. was therefore placed into formal removal
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proceedings, where she will pursue her asylum claim. See PI Mem., ECF No. 21-1,
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at 2-3.2
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13 When they initially arrived in the United States, Ms. L. and her daughter,
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S.S., were detained together. Four days later, however, Ms. L.’s child was taken
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from her. With no explanation, the government removed S.S. from the detention
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17 center where Ms. L. was held and moved her 2,000 miles away to a facility in
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Chicago, with the little girl frantically screaming that she did not want to leave her
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mommy. The government has never alleged that S.S. would not be safe with her
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21 mother, or that Ms. L. is not a fit parent. And yet Defendants has not allowed Ms.
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L. and her child to see each other for four months now. Each time they have been
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able to speak on the phone, S.S. has been crying and afraid. Ms. L. is likewise
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25 frightened, depressed, and unable to eat or sleep. See PI Mem., ECF No. 21-2, at 3-
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4.
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2 Because Ms. L inadvertently waived her rights in her immigration proceeding, she
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reopen her case.
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After Ms. L. filed this lawsuit and moved for a preliminary injunction,
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Defendants released her from custody on March 6, 2018. They informed her that

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she would be released mere hours in advance, with no arrangements for where she
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would stay. They have not released her child, who remains in custody alone in
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Chicago.

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Named Plaintiff: Ms. C.
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9 Ms. C. and her 14 year-old son, J., fled Brazil to seek asylum and came to the
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United States in late August 2017. After she entered the United States a few feet, a
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border guard approached her, and she explained that she wanted to apply for
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13 asylum. Although she was seeking asylum, Ms. C. was nonetheless prosecuted for
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entering the country illegally, a misdemeanor for which she spent approximately 25
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days in jail. When Ms. C. was sent to jail for this misdemeanor conviction, her son
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17 J. was taken away from her and sent to a facility in Chicago. When she was
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released from jail, Ms. C. passed a credible fear interview, and was put in removal
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proceedings, where she is applying for asylum. Ex. 12.3
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21 After serving her misdemeanor sentence, Ms. C. was transferred on
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September 22, 2017, to the El Paso Processing Center in Texas, an immigration
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facility. In early January she was transferred again to the West Texas Detention
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25 Facility, which is also known as Sierra Blanca. Ms. C. was has not seen her son J.
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since he was taken from her last year. Even after Ms. C. was released from jail and
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3 The exhibits are numbered continuously from the beginning of the case.
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