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Case Name J.E.F.M. v. Holder IM-WA-0023
Docket / Court 2:14-cv-01026 ( W.D. Wash. )
State/Territory Washington
Case Type(s) Immigration and/or the Border
Attorney Organization ACLU Chapters (any)
ACLU National (all projects)
ACLU of Southern California
Northwest Immigrant Rights Project (NWIRP)
Public Counsel
Case Summary
On July 9, 2014, this class action lawsuit was filed on behalf of all children who are or will be in immigration proceedings who do not have legal representation in their proceedings. The suit was filed in the United States District Court for the Western District of Washington under the Immigration ... read more >
On July 9, 2014, this class action lawsuit was filed on behalf of all children who are or will be in immigration proceedings who do not have legal representation in their proceedings. The suit was filed in the United States District Court for the Western District of Washington under the Immigration and Nationality Act (INA) against the U.S. Department of Justice and U.S. Immigration and Customs Enforcement. The plaintiffs, represented by private counsel and several public interest groups, sought declaratory and injunctive relief, claiming that the defendants' failure to ensure legal representation for the plaintiffs and the putative class at immigration proceedings violated the INA and the Due Process Clause of the Fifth Amendment to the United States Constitution.

On September 29, 2014, the court (District Judge Thomas S. Zilly) denied plaintiffs' motion for a preliminary injunction. The plaintiffs' motion did not ask the Court to compel the defendants to provide them with legal representation at government expense; rather, it sought an order enjoining defendants from denying continuances of plaintiffs' removal proceedings. Judge Zilly found, however, that plaintiffs had not first sought such continuances from immigration judges, and he held that the plaintiffs' motion was thus "not ripe for adjudication" and that the court "currently lacks jurisdiction to grant the specific relief sought by plaintiffs." Judge Zilly further stated that "[t]he core issue of whether plaintiffs are entitled, under the Fifth Amendment, to counsel at government expense is not now before the Court and must await another day." The court deferred, however, a ruling on plaintiffs' class certification motion until it considered Defendants' recently filed motion to dismiss.

On April 13, 2015, after considering the defendants' motion to dismiss the plaintiffs' second amended complaint, the court granted in part and denied in part the defendants' motion. The court held that it lacked jurisdiction over plaintiffs' INA claims because of the jurisdiction-stripping provisions of IIRIRA and the Real ID Act. The court also struck plaintiff's request for class-wide injunctive relief on the grounds that it could provide only class-wide declaratory relief. But focusing on the plaintiffs already in removal proceedings and not yet ordered removed, the court held that it had jurisdiction to decide plaintiffs' Due Process claim. Under the Mathews due process test, the plaintiffs had a high liberty interest in avoiding removal and plausibly faced a risk of erroneous deprivation of this interest without counsel, though the court could not determine the cost to the government in providing counsel. 107 F. Supp. 3d 1119.

The defendants requested leave to file an interlocutory appeal to the Ninth Circuit Court of Appeals to clarify the jurisdictional issues. The defendants also asked the district court to stay the litigation there in the meantime. But in an August 27, 2015 order, the court explained that, although it had granted defendants' first request (for an appeal), it had denied their second request (for a stay). According to the court, defendants were unlikely to prevail on their jurisdictional challenge, plaintiffs were soon to age out of being minors, and discovery could continue. At the same order, however, the court also denied plaintiffs' most recent request for class certification, finding the proposed class of unrepresented minors to be too broad. The court also noted that, of the remaining six plaintiffs, five had either won some form of immigration relief or now had counsel. The court thus dismissed the three plaintiffs who had already received permanent resident status.

On December 4, 2015, the plaintiffs filed a third amended complaint. This complaint included fourteen named plaintiffs in removal proceedings without counsel, and it sought class certification for indigent minors in removal proceedings unable to afford counsel. As in the original complaint, the plaintiffs requested injunctive relief on statutory (INA) and pue drocess constitutional grounds.

On January 21, 2016, however, the court issued an order denying plaintiffs' most recent request for class certification. The court held that the proposed class was still too broad and that the named plaintiffs' respective situations (i.e., nearing 18 years old or on track to receive permanent resident status) were not representative of proposed class members'.

The defendants again moved to dismiss. In an April 15, 2016 order, the court granted, denied, and deferred different parts of the motion. Judge Zilly dismissed the plaintiffs' claims against the USCIS Director and dismissed as moot the claim of one plaintiff who had turned 18 and was no longer in removal proceedings. The court deferred, however, a decision on the claim of another plaintiff who had turned 18 and was on track to permanent resident status but was still in removal proceedings. As for the claims of the remaining plaintiffs, the court denied the defendants' motion to dismiss. The court rejected the defendants' argument that arriving noncitizens had no procedural due process rights beyond those specified by Congress, but it also conceded that noncitizens who entered without inspection may have fewer due process rights than those who were lawfully admitted. Accordingly, the court found appropriate for trial the issue of whether due process rights include the right to counsel at government expense.

Returning to the class certification process, the court, in a June 24, 2016 order, certified the class of minors in removal proceedings in the Ninth Circuit as of the date of the order who were financially unable to afford legal representation, were charged with inadmissibility, and had credible claims to relief under asylum, withholding of removal, Convention Against Torture, or existing U.S. citizenship.

After oral argument, the court on July 8, 2016, denied plaintiffs' most recent motion for preliminary injunction (on behalf of one plaintiff) but did not provide written reasoning.

Next, the Ninth Circuit, where the parties had litigated defendants' interlocutory appeal on the jurisdictional questions, issued an order on September 20, 2016. Without reaching the merits of plaintiffs' claims, the Ninth Circuit held that the district court had no jurisdiction over either the statutory or constitutional claims (thus reversing the district court's Apr. 13, 2015 determination of jurisdiction over the latter only). According to the Ninth Circuit, the INA required plaintiffs to exhaust administrative remedies and then file for circuit court review, thus foreclosing district court review.

After this order, the district court on the same day struck the trial date and all remaining deadlines and motions. The court struck them without prejudice, however, to permit reinstating them in the event that the Ninth Circuit's decision was vacated, reversed, or modified before a mandate issues.

More information on this case may be available from the ACLU and the American Immigration Council.

Dan Whitman - 09/30/2014
Ava Morgenstern - 05/08/2017


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Issues and Causes of Action
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Issues
Constitutional Clause
Due Process
Content of Injunction
Preliminary relief denied
Defendant-type
Jurisdiction-wide
General
Access to lawyers or judicial system
Juveniles
Immigration/Border
Constitutional rights
Deportation - judicial review
Deportation - procedure
Immigration lawyers
Undocumented immigrants - rights and duties
Plaintiff Type
Private Plaintiff
Causes of Action Declaratory Judgment Act, 28 U.S.C. § 2201
Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101 et seq.
Defendant(s) U.S. Department of Justice
U.S. Immigration and Customs Enforcement
Plaintiff Description Putative class of all individuals under the age of eighteen (18) who are or will be in immigration proceedings on or after July 9, 2014, without legal representation in their immigration proceedings.
Indexed Lawyer Organizations ACLU Chapters (any)
ACLU National (all projects)
ACLU of Southern California
Northwest Immigrant Rights Project (NWIRP)
Public Counsel
Class action status sought Yes
Class action status granted No
Prevailing Party None Yet / None
Public Int. Lawyer Yes
Nature of Relief None yet
Source of Relief None yet
Case Ongoing Yes
Additional Resources
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  SUMMARY:The Nationwide Perez-Fuñez Permanent Injunction Provisions for Unaccompanied Children in DHS Custody
www.nilc.org
Date: June 2014
By: National Immigration Law Center (National Immigration Law Center)
[ Detail ] [ External Link ]

Docket(s)
2:14-cv-01026 (W.D. Wash.)
IM-WA-0023-9000.pdf | Detail
Date: 10/24/2016
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint--Class Action [ECF# 1]
IM-WA-0023-0001.pdf | Detail
Date: 07/09/2014
Source: PACER [Public Access to Court Electronic Records]
Amended Complaint--Class Action [ECF# 74-1]
IM-WA-0023-0004.pdf | Detail
Date: 09/04/2014
Source: PACER [Public Access to Court Electronic Records]
Defendants' Motion To Dismiss [ECF# 80]
IM-WA-0023-0003.pdf | Detail
Date: 09/19/2014
Source: PACER [Public Access to Court Electronic Records]
Order denying Plaintiffs' Motion for Preliminary Injunction and deferring Plaintiffs' Motion for Class Certification until resolution of Defendants' Motion To Dismiss [ECF# 81] (2014 WL 12515265) (W.D. Wash.)
IM-WA-0023-0002.pdf | WESTLAW | Detail
Date: 09/29/2014
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 114] (107 F.Supp.3d 1119) (W.D. Wash.)
IM-WA-0023-0005.pdf | WESTLAW| LEXIS | Detail
Date: 04/13/2015
Source: PACER [Public Access to Court Electronic Records]
Minute Order [ECF# 136] (2015 WL 12030113) (W.D. Wash.)
IM-WA-0023-0013.pdf | WESTLAW | Detail
Date: 05/05/2015
Source: Westlaw
Order [ECF# 174] (2015 WL 9839679) (W.D. Wash.)
IM-WA-0023-0006.pdf | WESTLAW | Detail
Date: 08/27/2015
Source: PACER [Public Access to Court Electronic Records]
Third Amended Complaint - Class Action [ECF# 207]
IM-WA-0023-0007.pdf | Detail
Date: 12/04/2015
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 225] (2016 WL 4533605) (W.D. Wash.)
IM-WA-0023-0008.pdf | WESTLAW | Detail
Date: 01/21/2016
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 264] (180 F.Supp.3d 811) (W.D. Wash.)
IM-WA-0023-0009.pdf | WESTLAW| LEXIS | Detail
Date: 04/15/2016
Source: PACER [Public Access to Court Electronic Records]
Minute Order [ECF# 280] (2016 WL 4533608) (W.D. Wash.)
IM-WA-0023-0012.pdf | WESTLAW | Detail
Date: 05/12/2016
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 309] (2016 WL 3458352) (W.D. Wash.)
IM-WA-0023-0010.pdf | WESTLAW | Detail
Date: 06/24/2016
Source: PACER [Public Access to Court Electronic Records]
Opinion [Ct. of App. ECF# 100-1] (837 F.3d 1026)
IM-WA-0023-0011.pdf | WESTLAW| LEXIS | Detail
Date: 09/20/2016
Source: PACER [Public Access to Court Electronic Records]
Judges Kleinfeld, Andrew Jay (D. Alaska, Ninth Circuit)
IM-WA-0023-0011
McKeown, M. Margaret (Ninth Circuit)
IM-WA-0023-0011
Zilly, Thomas Samuel (W.D. Wash.)
IM-WA-0023-0002 | IM-WA-0023-0005 | IM-WA-0023-0006 | IM-WA-0023-0008 | IM-WA-0023-0009 | IM-WA-0023-0010 | IM-WA-0023-0012 | IM-WA-0023-0013 | IM-WA-0023-9000
Plaintiff's Lawyers Adams, Matthew (Washington)
IM-WA-0023-0001 | IM-WA-0023-0004 | IM-WA-0023-0007 | IM-WA-0023-9000
Angelis, Theodore J. (Washington)
IM-WA-0023-0004 | IM-WA-0023-0007 | IM-WA-0023-9000
Arulanantham, Ahilan T (California)
IM-WA-0023-0004 | IM-WA-0023-0007 | IM-WA-0023-9000
Baker, La Rond (Washington)
IM-WA-0023-9000
Chen, Margaret (Washington)
IM-WA-0023-0007 | IM-WA-0023-9000
Chiang, Emily (Washington)
IM-WA-0023-9000
Creighton, Emily J. (District of Columbia)
IM-WA-0023-9000
Crow, Melissa E. (District of Columbia)
IM-WA-0023-0004 | IM-WA-0023-0007 | IM-WA-0023-9000
Dunne, Sarah A. (Washington)
IM-WA-0023-0004 | IM-WA-0023-9000
Garcia, Heidi Craig (Washington)
IM-WA-0023-0007 | IM-WA-0023-9000
Iguina, Carmen G. (California)
IM-WA-0023-0004 | IM-WA-0023-0007 | IM-WA-0023-9000
Inlender, Talia R. (California)
IM-WA-0023-0004 | IM-WA-0023-0007 | IM-WA-0023-9000
Jackson, Kristen M. (California)
IM-WA-0023-0004 | IM-WA-0023-0007 | IM-WA-0023-9000
Kang, Stephen B. (California)
IM-WA-0023-0004 | IM-WA-0023-0007 | IM-WA-0023-9000
Macleod-Ball, Kristin A. (Massachusetts)
IM-WA-0023-0007 | IM-WA-0023-9000
Madrid, Glenda Melinda Aldana (Washington)
IM-WA-0023-0004 | IM-WA-0023-0007 | IM-WA-0023-9000
Nunn, Todd L. (Washington)
IM-WA-0023-0004 | IM-WA-0023-0007 | IM-WA-0023-9000
Wang, Cecillia D (California)
IM-WA-0023-0004 | IM-WA-0023-0007 | IM-WA-0023-9000
Werlin, Beth (District of Columbia)
IM-WA-0023-0004 | IM-WA-0023-9000
Defendant's Lawyers Andrapalliyal, Vinita (District of Columbia)
IM-WA-0023-9000
Branda, Joyce R. (District of Columbia)
IM-WA-0023-0003
Darrow, Joseph A. (District of Columbia)
IM-WA-0023-9000
Davila, Yamileth G. (District of Columbia)
IM-WA-0023-0003 | IM-WA-0023-9000
Evans, Walter Manning (District of Columbia)
IM-WA-0023-9000
Fresco, Leon (District of Columbia)
IM-WA-0023-0003 | IM-WA-0023-9000
Kisor, Colin A. (District of Columbia)
IM-WA-0023-0003 | IM-WA-0023-9000
Maloney, Sarah (District of Columbia)
IM-WA-0023-0003
Murley, Nicole N. (District of Columbia)
IM-WA-0023-9000
Parascandola, Christina B. (District of Columbia)
IM-WA-0023-9000
Peachey, William Charles (District of Columbia)
IM-WA-0023-0003
Perez, Elianis N. (District of Columbia)
IM-WA-0023-0003 | IM-WA-0023-9000
Reuveni, Erez (District of Columbia)
IM-WA-0023-0003 | IM-WA-0023-9000
Silvis, William C. (District of Columbia)
IM-WA-0023-0003 | IM-WA-0023-9000
Taylor, Margaret Kuehne (District of Columbia)
IM-WA-0023-0003 | IM-WA-0023-9000
Wilson, Sarah S. (District of Columbia)
IM-WA-0023-9000
Other Lawyers Glasgow, Rebecca Ripoli (Washington)
IM-WA-0023-9000

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