Ms. L. v. U.S. Immigration & Customs Enforcement, Case No.: 18cv0428 DMS (MDD)

• Citation: 415 F.Supp.3d 980
• Decision Date: 13 January 2020
• Docket Number: Case No.: 18cv0428 DMS (MDD)
• Parties: MS. L.; et al., Petitioners-Plaintiffs, v. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT ("ICE"); et al., Respondents-Defendants.
• Court: U.S. District Court — Southern District of California

415 F.Supp.3d 980

MS. L.; et al., Petitioners-Plaintiffs,

v.U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT ("ICE"); et al., Respondents-Defendants.

Case No.: 18cv0428 DMS (MDD)

United States District Court, S.D. California.

Signed January 13, 2020

Anand Venkata Balakrishnan, Pro Hac Vice, Judy Rabinovitz, Pro Hac Vice, Lee Gelernt, Pro Hac Vice, Daniel Antonio Galindo, New York, NY, Bardis Vakili, ACLU Foundation of San Diego & Imperial Counties, Aaron M. Olsen, Haeggquist & Eck, LLP, San Diego, CA, Charles D. Reiter, Simpson Thacher & Bartlett LLP, Los Angeles, CA, Stephen B. Kang, Spencer E. W. Amdur, American Civil Liberties Union Found. of Northern California, San Francisco, CA, Carol T. McClarnon, Pro Hac Vice, Emily A. Bork, Pro Hac Vice, Wilson G. Barmeyer, Pro Hac Vice, Eversheds Sutherland (US) LLP, Johnathan James Smith, Pro Hac Vice, Joseph Saei, Washington, DC, John H. Fleming, Pro Hac Vice, Eversheds Sutherland (US) LLP, Atlanta, GA, Simon Yehuda Sandoval-Moshenberg, Pro Hac Vice, Sophia Leticia Gregg, Pro Hac Vice, Falls Church, VA, Sirine Shebaya, Pro Hac Vice, National Immigration Project of the National Lawyers' G, Boston, MA, for Petitioners-Plaintiffs.

U.S. Attorney CV, Samuel William Bettwy, U.S. Attorneys Office Southern District of California, San Diego, CA, August Edward Flentje, Sarah B. Fabian, Nicole N. Murley, Scott Grant Stewart, U.S. Department of Justice, Washington, DC, for Respondents-Defendants.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO ENFORCE PRELIMINARY INJUNCTION

Hon. Dana M. Sabraw, United States District Judge

Plaintiffs bring the present motion to enforce this Court's June 26, 2018 preliminary injunction. That injunction was directed at the Trump Administration's practice of separating migrant parents and their minor children when they crossed the United States-Mexico border and its failure to reunify those families in accordance with the United States Constitution. The Administration's practice of separating these families was formally abandoned on June 20, 2018, when the President of the United States issued Executive Order No. 13841, which reestablished a policy to "maintain family unity," and directed that alien families be detained together "during the pendency of any criminal improper entry or immigration proceedings involving their members." However, the Executive Order did not provide any guidance on reunifying families, and did not provide any guidance on future family separations, other than stating that parents and children would not be detained together if Defendants had "concerns" that the parent posed "a risk to the child's welfare."

This Court's injunction addressed those two issues. Specifically, it required Defendants to reunify within thirty days parents and minor children who had been separated under the Administration's practices, and prohibited Defendants from separating migrant parents and their minor children in the future absent a determination that the parent was unfit or presented a danger to his or her child or had a criminal history or communicable disease.

The day after this Court issued its preliminary injunction and accompanying order granting class certification, Defendants implemented new guidelines and procedures in an attempt to comply with those orders. Nevertheless, in the year following issuance of the preliminary injunction, Defendants have separated nearly 1,000 migrant families at the border. Given these numbers, Plaintiffs fear the Administration has returned to "systematic" separation of families, prompting the present motion. It is undisputed that prior Administrations separated families at the border based on fraudulent claims of parentage, or evidence of child trafficking or other dangers to the child or community. Defendants argue their practices now are no different from prior Administrations. They point out that the number of separations at issue represents a small fraction of the number of individuals entering the border at the time in question, some 524,294 parents and children, and reflects careful exercise of discretion consistent with the Court's orders.

Considering the Administration's return to family unity, Defendants' implementation of guidelines immediately following the Court's preliminary injunction, Defendants' authority to secure the Nation's borders, and the scope of the class and need to avoid individualized determinations, the Court finds Defendants are generally exercising their discretion to separate families at the border consistent with Plaintiffs' rights to family integrity and the Court's orders, with one exception regarding DNA testing and one clarification regarding separations based on family residential center standards.

I.BACKGROUND

In July of 2017, the Trump Administration embarked on an unprecedented policy of separating migrant families at the border to deter immigration. The policy started quietly and was implemented by the Department of Homeland Security ("DHS") through Customs and Border Protection ("CBP") officials at border facilities in Texas. See Department of Homeland Security, Office of the Inspector General, DHS Lacked Technology Needed to Successfully Account for Separated Migrant Families, Rep. No. OIG-20-06 (Nov. 2019) ("OIG DHS Report (11/25/19)"), at 5 (stating DHS began a "prosecution initiative ... in the El Paso Sector to deter illegal border crossings by increasing prosecutions, which resulted in an increase in family separations."). Eventually, the policy would be made public on May 7, 2018, when the Attorney General of the United States announced the Administration's "zero tolerance policy," in which all migrant parents entering illegally between ports of entry with their minor children would be criminally prosecuted and separated from their children. In practice, the policy resulted in the indiscriminate separation of thousands of migrant parents and children, most of whom were seeking asylum from countries in Central America and many of whom entered the United States lawfully at designated ports of entry. In addition, parents who were prosecuted for unlawful entry for entering between ports of entry were not reunified with their children after serving brief criminal sentences because DHS did not have adequate systems in place to keep track of the children, let alone any plan to reunify the families. As a result, migrant parents remained separated from their children for months while the parents pursued their asylum claims and other relief from removal. Many of the parents were deported back to Central America without their children after exhausting their challenges to removal.

In response to this situation, Plaintiffs filed the present case seeking to enjoin family separations on constitutional and statutory grounds. The focus of Plaintiffs' Complaint was not the zero tolerance policy, but rather a broader family separation practice that was being applied to families crossing into the United States both legally at designated ports of entry and illegally between ports of entry. In response to the Complaint, Defendants filed a motion to dismiss, which the Court denied. In the June 6, 2018 order on that motion, the Court found Plaintiffs had stated a legally cognizable claim that this broader family separation practice violated the right to family integrity and association under the Due Process Clause of the Fifth Amendment to the United States Constitution. The Court also found Plaintiffs' allegations that Defendants' practice of separating parents for prosecution for improper entry (zero tolerance) and failing to reunify those families after the parent completed his or her sentence without a determination the parent was unfit or presented a danger to the child stated a claim for violation of the right to family integrity.

Thereafter, on June 20, 2018, the President of the United States abandoned the zero tolerance policy in favor of a "policy of th[e] Administration to maintain family unity" by way of the Executive Order, see Exec. Order No. 13841, 83 Fed. Reg. 29435 (June 20, 2018), but did not address reunification or set out specific standards for separating family units in the future.¹ This Court then issued its order on class certification and the preliminary injunction on June 26, 2018. Pursuant to those orders, the Court certified a class that included adult parents who entered the United States at or between ports of entry who were detained in immigration custody and had a minor child who was separated from them and placed in the custody of the Department of Health and Human Services ("HHS"), Office of Refugee Resettlement ("ORR"). Specifically, the Court certified the following class ("Ms. L. class") on Plaintiffs' due process claim arising out of the Administration's family separation practices:

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.

(ECF No. 82 at 17.) The Court excluded from the class "parents with criminal history or communicable disease, or those who are in the interior of the United States or subject to" the Executive Order. (Id. ) The preliminary injunction ordered the reunification of class members with their children and prohibited Defendants from separating parents from their minor children at the border "absent a determination that the parent is unfit or presents a danger to the child." (ECF No. 83 at 22-23.)²

The day after the Court issued its injunction, Defendants distributed a Memorandum to CBP employees providing "initial direction on compliance with" the Court's orders. (Opp'n to Mot., Ex. 4 (Memorandum from Kevin K. McAleenan, Commissioner, U.S. Customs and Border Protection, to Carla L. Prevost,...