Ms. L. v. U.S. Immigration & Customs Enforcement
| Decision Date | 04 September 2019 |
| Docket Number | Case No.: 18cv0428 DMS (MDD) |
| Court | U.S. District Court — Southern District of California |
| Parties | Ms. L.; et al., Petitioners-Plaintiffs, v. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT ("ICE"); et al., Respondents-Defendants. |
Anand Venkata Balakrishnan, Pro Hac Vice, Judy Rabinovitz, Pro Hac Vice, Lee Gelernt, Pro Hac Vice, ACLU Immigrants Rights Project, Daniel Antonio Galindo, American Civil Liberties Union, 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, American Civil Liberties Union Found. of Northern California, Spencer E. W. Amdur, ACLU Immigants' Rights Project, 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, Muslim Advocates, 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, Legal Aid Justice Center, Falls Church, VA, Sirine Shebaya, Pro Hac Vice, National Immigration Project of the National Lawyers' G, Boston, MA, for Petitioners-Plaintiffs.
US Attorney CV, Samuel William Bettwy, US Attorneys Office Southern District of California, Civil Division, San Diego, CA, August Edward Flentje, Nicole N. Murley, Scott Grant Stewart, Sarah B. Fabian, U.S. Department of Justice Office of Immigration Litigation, Washington, DC, for Respondents-Defendants.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO ALLOW PARENTS DEPORTED WITHOUT THEIR CHILDREN TO TRAVEL TO THE UNITED STATES
Plaintiffs bring the present motion to allow a small group of migrant parents who were separated from their minor children at the border, and then deported without their children, to travel to the United States so they may be reunited with their children and pursue their asylum claims as provided by law. These parents are members of the Ms. L. Class, which was certified by this Court on June 26, 2018. That Class included over 2,800 parents who were forcibly separated from their children at the United States-Mexico border under the Administration's immigration policies. (See 8/14/19 Joint Status Report, ECF No. 444.)1 Thereafter, the children were detained in government-run facilities throughout the United States. Pursuant to this Court's orders, all of these children have now been accounted for and more than 2,300 of them have been reunified with at least one of their parents. But during the chaotic and unprecedented practice of separating these migrant families, 471 of the parents were deported without their children. (ECF No. 382.)2 All of these parents have now been found through the herculean efforts of the parties.3 Many of the parents were located in remote villages in the recesses of Central America, and nearly all of them have now made the difficult decision either to reunify with their children in their home countries or to waive reunification and allow their children to remain in the United States to pursue their own claims for asylum in accordance with established law.
Thirty of the 471 parents returned to the United States without permission and sought asylum upon apprehension. According to Plaintiffs, all thirty of these parents either passed a credible fear interview or were placed directly into immigration proceedings before an immigration judge, and were subsequently reunified with their children. Eighteen other parents,4 who are the subject of the present motion, are also seeking to return to the United States, but rather than doing so unilaterally, they are requesting that the Court order the Government to allow them to return so they, too, may be reunited with their children and pursue their asylum claims under existing law and procedures.
Plaintiffs argue they are entitled to this relief under a Settlement Agreement entered into between the parties in this case, as well as under Ninth Circuit law that provides for the return of an alien who is wrongfully removed. Defendants oppose the motion. The matter has been fully briefed and argued. For the reasons discussed below, the Court finds eleven of the parents are entitled to the relief requested under Ninth Circuit law and seven are not, those parents having failed to meet their burden of proving they were wrongfully removed.
On June 26, 2018, this Court certified the Ms. L. Class of parents and generally included in the Class those parents who were (1) separated from their minor children at the border pursuant to the Administration's immigration policies and (2) did not have criminal history (with limited exceptions), were not unfit and did not present a danger to their children. The Court also issued on the same day a preliminary injunction prohibiting Defendants from further separating parents and their children at the border as there was a likelihood that conduct violated the parents' Fifth Amendment due process rights to family integrity under the United States Constitution. The preliminary injunction also ordered Defendants to reunite the families that had already been separated. There is no dispute the eighteen parents at issue fall within the Ms. L. Class.
The circumstances of the eighteen parents' immigration and removal proceedings vary widely. Twelve of the eighteen parents were removed before this Court issued its class certification order and preliminary injunction. Two other parents were removed after those orders issued, but before this Court issued a stay of any further removals. Three parents were removed after the stay, and it is unclear when the remaining parent was removed.
Of the twelve parents who were removed before issuance of the Court's class certification order and preliminary injunction, two subsequently returned to the United States illegally, and were again removed without their children. It appears these two parents fell outside the scope of the court-approved Settlement Agreement in this case, (see ECF No. 321), and thus were subject to removal, because they were not "continuously physically present in the United States since June 26, 2018[.]" (ECF No. 220-1 at 1.5 )
Sixteen of the eighteen parents entered the United States illegally at the southern border with Mexico, while two of the parents entered legally through designated ports of entry. And although the majority of those entering illegally were transferred to criminal custody and prosecuted under the Administration's "zero tolerance policy"6 before being returned to immigration custody, it appears others were not charged with a crime and were detained only in immigration custody.
Waiver forms executed by the parents, purporting to waive the parents' rights to be reunified with their children prior to removal, also varied. One parent signed the court-approved form that was supposed to be attached to the Class Notice. Others signed a form provided by Defendants prior to the Court's approval of the Class Notice. And still others signed forms of unknown origin.
Finally, the length of each parent's separation from their child varied considerably. One parent was separated from his child for nine days, while another parent was separated from her child for nearly seven months. And although each parent suffered the same injury, namely separation from their child, the effect of that injury on each parent and their respective immigration case was different.
Despite these varying circumstances, Plaintiffs move the Court to allow all eighteen parents to return to the United States as a group. Plaintiffs are not asking the Court to order Defendants to pay for or otherwise arrange travel for these parents to the United States. (ECF No. 434 at 49-50.) Rather, they are moving the Court for an order directing Defendants to allow the parents to return to the United States so they can be reunified with their children and proceed with their asylum claims. (Id. at 50.) As noted, Plaintiffs argue the Court has authority to grant this relief pursuant to either the court-approved Settlement Agreement in this case or the Court's inherent authority under Ninth Circuit law. Defendants dispute that the Settlement Agreement gives the Court authority to grant the requested relief. Indeed, they argue the Settlement Agreement forecloses the Court's ability to do so. Aside from the Settlement Agreement, Defendants also assert the Court lacks jurisdiction to order the relief requested here. Each argument is addressed in turn.
The entirety of the relevant provision of the Settlement Agreement is found under the heading, "The return of removed parents to the United States." It provides:
The government does not intend to, nor does it agree to, return any removed parent to the United States or to facilitate any return of such removed parents. The classes agree not to pursue any right or claim of removed parents to return to the United States other than as specifically set forth in this paragraph. Plaintiffs' counsel may raise with the government individual cases in which plaintiffs' counsel believes the return of a particular removed Ms. L class member may be warranted. Plaintiffs' counsel represent that they believe that such individual cases will be rare and unusual and that they have no basis for believing that such individual cases will be other than rare and unusual. Plaintiffs' counsel agree to present any such cases, including all evidence they would like considered by the government within 30 days of the approval of this agreement. In light of plaintiffs' counsel's representation that such cases will be rare and unusual, Defendants agree to provide a reply to any case presented by Plaintiffs within 30 days of receiving Plaintiffs' request to consider the case. Except as...
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