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Case Name Al Otro Lado v. Kelly IM-CA-0092
Docket / Court 3:17-cv-02366-BAS-KSC ( S.D. Cal. )
Additional Docket(s) 2:17-cv-05111  [ 17-5111 ]
State/Territory California
Case Type(s) Immigration and/or the Border
Special Collection Civil Rights Challenges to Trump Immigration Enforcement Orders
Attorney Organization American Immigration Council's Legal Action Center
Center for Constitutional Rights (CCR)
Case Summary
On July 12, 2017, a group of Honduran and Mexican asylum seekers and Al Otro Lado, a legal service organization which supports indigent deportees, refugees, and migrants, filed this class action suit in the U.S. District Court for the Central District of California. The pseudonymous plaintiffs fled ... read more >
On July 12, 2017, a group of Honduran and Mexican asylum seekers and Al Otro Lado, a legal service organization which supports indigent deportees, refugees, and migrants, filed this class action suit in the U.S. District Court for the Central District of California. The pseudonymous plaintiffs fled gang-related and/or severe domestic violence and presented themselves at a Port of Entry (POE) at the U.S.-Mexico border to seek protection; they alleged that they were wrongfully denied access to an asylum screening. Represented by the Center for Constitutional Rights, the American Immigration Council, and private counsel, the plaintiffs sought declaratory and injunctive relief against the U.S. Department of Homeland Security (DHS) and two of its component agencies: Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP). The plaintiffs claimed violations of the Immigration and Nationality Act (INA), the Administrative Procedure Act (APA), the Due Process Clause of the Fifth Amendment, and the Non-Refoulement Doctrine under international law. They brought this class action suit pursuant to the declaratory judgment act and the APA.

The suit arose from Al Otro Lado's Refugee Program in Tijuana, Mexico, by which it assisted individuals seeking protection from persecution in the U.S. The program included large-scale clinics in Tijuana to provide a general overview of asylum law and procedure to asylum seekers before they presented themselves at POEs. The plaintiffs claimed that since the summer of 2016, CBP officials systematically prevented asylum seekers arriving at POEs along the U.S.-Mexico border from accessing the asylum process. They claimed that in furtherance of this policy, immigration officials used misrepresentations, threats, intimidation, verbal and physical abuse, and coercion to deny the plaintiffs asylum access. For example, CBP officials were alleged to have turned away asylum seekers by falsely informing them that the U.S. was no longer providing asylum, that President Trump signed a new law ending asylum, that a law providing asylum to Central Americans ended, and that the U.S. was no longer accepting mothers with children for asylum. CBP officials were also alleged to intimidate asylum seekers by threatening to take away their children if they did not renounce a claim for asylum and to deport the asylum seekers. The defendant's agents allegedly forced asylum seekers to sign forms in English, without translation, in which the asylum seekers recanted their fears of persecution. The plaintiffs sought to end these government practices and alleged that they formed a part of an official government policy to arbitrarily deny asylum access.

Additionally, Al Otro Lado claimed that it was forced to divert substantial resources away from its Los Angeles practice and non-refugee programs to counteract the government's unlawful practices, by sending its representatives to Tijuana to accompany asylum seekers to POEs, training pro bono attorneys to provide more individualized representation, and providing more in-depth presentations to large groups.

In the days following the filing of the complaint, the government agreed to allow the class representatives and their children to present themselves at the San Ysidro and Laredo ports of entry and access an asylum screening to initiate the asylum process. They subsequently informed the court that the plaintiffs all passed these screenings and were referred to the Immigration Court for removal proceedings in which they were free to submit asylum applications. Notwithstanding this development, the case continued on and was assigned to Judge John F. Walter and the Magistrate Judge Jean P. Rosenbluth.

On October 12, 2017, the defendants moved to dismiss the case for failure to state a claim upon which relief could be granted, for inadequate statutory standing of Al Otro Lado, and for mootness of the plaintiff's claims brought under the APA. Specifically, they argued that because the class representatives were given the opportunity to be properly processed under the INA in the days following the filing of this suit, they received all the court could have offered. They also argued that the alleged violation under the APA was inadequate to sustain a cause of action because it did not involve a final government agency decision. On October 23, 2017, Al Otro Lado filed their opposition to the government's motion to dismiss and the government replied.

That same month, Al Otro Lado moved to compel the government to produce requested documents and video to corroborate their claims that the government unlawfully instructed asylum seekers to recant their fears of persecution without an interpreter. Judge Walter ordered the parties to engage in private mediation to resolve this discovery matter.

Al Otro Lado moved for class certification on November 13, 2017. The proposed class was defined as: all noncitizens who (i) have since June 2016 presented themselves, or will in the future present themselves, at a port of entry along the U.S.–Mexico border (ii) have asserted or will assert an intention to seek asylum or have expressed or will express a fear of persecution in their home countries, and (iii) have been or will in the future be denied access to the U.S. asylum process by U.S. Customs and Border Protection officers.

On November 21, 2017, Judge Walter issued a written decision transferring the case to the District Court for the Southern District of California. 2017 WL 10592130. He found that the Southern District was the more proper forum because of its location along the U.S.–Mexico border and none of the events at issue occurred in the Central District. He also found that the Southern District would provide the easiest access to the evidence necessary to defend this action because the overwhelming majority of witnesses resided in that district and five of the six named plaintiffs sought entry at POEs there. He denied the outstanding motions filed by both parties, who he noted were free to refile them in the proper venue.

Upon transfer, the case was assigned to Judge Cynthia Bashant and Magistrate Judge Karen S. Crawford. On December 8, 2017, the plaintiffs moved for resolution of the outstanding discovery dispute and, in response, the government moved to stay discovery on December 18, 2017. The government filed a second motion to dismiss on December 14, 2017.

Judge Bashant granted the plaintiff's motion for the asylum seekers to proceed pseudonymously on December 20, 2017. 2017 WL 6541446. She found that the severity of the harm alleged if they were returned to their home countries without the opportunity to seek asylum was substantial. She also found that their fears about this potential harm were objectively reasonable and that they were vulnerable to retaliation by the U.S. government if their true names were revealed.

On January 31, 2018, Judge Bashant issued a written decision granting the government's motion to stay discovery until adjudication of the motion to dismiss, and vacating a discovery scheduling order issued by Judge Walter. She reasoned that the motion to dismiss involved questions of law and that evidence that could be uncovered in discovery was irrelevant to that issue.

On February 28, 2018, Magistrate Judge Crawford ordered the government to postpone the March 5, 2018 transition of the San Ysidro POE surveillance system to the Centralized Video Surveillance System ("CAVSS") until the court ruled on the parties' joint motion for a protective order. Judge Bashant entered the protective order to keep information confidential between the parties regarding the U.S. government's surveillance capacities and infrastructure at POEs and potential vulnerabilities related to their cybersecurity, as well as details of CBP contracts and contacts with private vendors.

On August 20, 2018, the court denied in part and granted in part the government’s motion to dismiss, allowing the majority of plaintiffs’ claims to go forward. Judge Bashant found that Al Otro Lado had an interest in the case which was not mooted by the government's post-complaint conduct (i.e. their processing of the class representatives) and that they could not be dismissed as a plaintiff. She also found that the complaint plausibly showed the existence of a pattern or practice of denials faced by some asylum seekers; therefore, the government's post-complaint conduct did not moot these claims. However, Judge Bashant also found that the complaint failed to show the existence of a categorical policy of refusing asylum access and dismissed the portion of their cause of action pursuant to APA 5 U.S.C. § 706(2) without prejudice. She pointed to a Human Rights First report cited by the plaintiffs of at least 125 occasions between December 2016 and March 2017 in which applicants for admission were denied access, which coincided with CBP agents referring some 8,000 asylum seekers at POEs along the U.S-Mexico border for asylum screenings during the same period. She concluded that the plaintiffs' allegations on this issue and available statistics cited in support of this claim did not support an inference that there was an unwritten policy to systematically deny asylum access, or a final agency policy or plan to this effect.

On September 17, 2018, Judge Bashant granted in part and denied in part the government's motion for a protective order. She ordered the government to retain all electronically stored information (ESI) already preserved relating to the plaintiffs' interactions with immigration officials at POEs, as well as those relating to any other asylum seekers withdrawing their asylum applications, if identified by plaintiffs within 45 days of those interactions. She also required the government to retain ESI surveillance of individuals attempting to enter the San Ysidro POE during a two week period in December 2017, to the extent that they had not already been overwritten.

On October 12, 2018, the plaintiffs filed their first amended complaint, and then a second amended complaint a month later. The second complaint asserted that CBP was limiting non-citizens’ access to the asylum process by adopting a formal policy to “restrict” the flow of asylum seekers without travel documents who can cross the border into POEs to apply for asylum in the United States. The defendants moved to dismiss the complaint for failure to state a claim on which the court could grant relief.

On November 29, 2018, the defendants filed a motion to dismiss, arguing that the Alien Tort statute had no bearing on the case, that there had been no violation of §706(1) or (2) of the Administrative Procedure Act.

The case was stayed for about a month in January as a result of the government shutdown.

Over 70 members of Congress, 19 states (including California and New York) and Washington D.C., immigration and refugee law scholars, and Amnesty International filed amicus briefs in February 2019 in support of Al Otro Lado's opposition to the government's motion to dismiss. Congresspeople argued that the INA's Congressional intent was to ensure prompt processing of asylum seekers at the border. Scholars argued that U.S. asylum law applies to asylum seekers who are stopped mere steps from the border. The states, which collectively accept over 70% of asylees in the country, explained that they were prepared to divert resources to support immigrants settled there. Amnesty International argued that the United States was obligated under international law to ensure the prompt processing of asylees and described a humanitarian crisis in Mexico that they attributed to the policy at issue.

Judge Crawford denied Al Otro Lado's motion for expedited discovery on March 6, 2019. 2019 WL 1057387. The plaintiffs' motion discussed how their Legal Director, Litigation and Policy Director, and Refugee Program Director had had their travel restricted by U.S. and Mexican immigration authorities, including being detained at airports. They sought expedited discovery to determine whether these actions constituted retaliation for prosecuting this lawsuit or whether they were an attempt to deny Al Otro Lado access to asylum seekers in Mexico. Judge Crawford found that the requested material was beyond the scope of the second amended complaint and that the plaintiffs had not adequately articulated how expedited discovery would help to advance a timely adjudication of this lawsuit. She also noted that they had not moved for injunctive relief, so their arguments concerning the court's broad equitable powers could not be fully considered.

On July 29, 2019, Judge Bashant released an order partially granted the defendant's motion to dismiss the second amended complaint. The portion of the complaint alleged under APA §706(1) was dismissed without leave to amend, as well as the plaintiff's claims that the Alien Tort Statute gave the court subject matter jurisdiction. With regard to the rest of the second amended complaint, the defendant's motion to dismiss was denied.

On September 26, 2019, the plaintiffs filed a motion for provisional class certifications with portions of the motion filed under seal and redacted. The plaintiffs sought provisional class certification to pursue preliminary injunctive relief for "all non-Mexican noncitizens who were denied access to the U.S. asylum process before July 16, 2019 as a result of the Government's metering policy and continue to seek access to the U.S. asylum process."

Oral argument was held and on November 19, 2019, Judge Bashant granted the plaintiff's motion for provisional class certification and their motion for preliminary injunction. This order enjoined defendants from applying the Asylum Ban to members of the provisionally certified class and ordered them to return to pre-Asylum Ban practices for processing the asylum applications of members of the certified class. 2019 WL 6134601.

On December 4, 2019, the defendants appealed the order granting the motion for preliminary injunction to the Ninth Circuit. The defendants also filed an emergency motion to stay the district court's November 19, 2019 order. That appeal is currently pending before the Ninth Circuit.

On December 6, 2019, the plaintiffs filed a motion for a temporary restraining order seeking to prohibit defendants from applying a new rule, “Implementing Bilateral and Multilateral Asylum Cooperative Agreements Under the Immigration and Nationality Act” (“ACA Rule”), to provisional class members. This rule added an exception to asylum in the Immigration and Nationality Act known as the “Safe third country” provision. Under the ACA Rule, the Attorney General can remove a non-citizen, otherwise eligible for asylum, to a country that the U.S. has entered into a bilateral or multilateral agreement with ("third-party country"). At the time, the U.S. had recently entered into bilateral or multilateral agreements with El Salvador, Guatemala, and Honduras. The ACA Rule also created a bar that restricts “whether an alien may even apply for asylum” by establishing a screening mechanism to evaluate a noncitizen's likelihood of torture or persecution if removed to a third-party country. The plaintiffs alleged that the application of the ACA Rule and the subsequent removal of class members to third-party countries will extinguish their ability to obtain relief in this action, resulting in irreparable injury.

On December 11, 2019, the plaintiffs filed a motion for provisional class certification. The plaintiffs sought to add a provisional class "of all asylum seekers who were unable to make a direct asylum claim at a U.S. POE before November 19, 2019 because of the [defendants'] metering policy, and who continue to seek access to the U.S. asylum process."

On December 20, 2019, the defendants filed an emergency motion for temporary stay of the district court's order enjoining the defendants from applying the Asylum Ban while the appeal before the Ninth Circuit is pending. The defendants argued that a temporary stay to preserve the status quo was appropriate to avoid complications at the border while the appeal is pending.

On January 6, 2020, Judge Bashant issued an order denying without prejudice the plaintiffs' motion for a temporary restraining order. Judge Bashant concluded that the plaintiffs did not satisfy their burden for a temporary restraining order because they did not establish that the defendants are likely to apply the ACA Rule to the provisional class members.

As of February 2020, the case is ongoing.

Joanna Kuzdra - 01/25/2018
Veronica Portillo Heap - 03/22/2019
Caitlin Kierum - 11/22/2019
Aaron Gurley - 02/10/2020


compress summary

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Issues and Causes of Action
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Issues
Constitutional Clause
Due Process
Content of Injunction
Preliminary relief granted
Defendant-type
Jurisdiction-wide
Law-enforcement
General
International law
Language/ethnic/minority needs
Pattern or Practice
Immigration/Border
Admission - criteria
Admission - procedure
Asylum - criteria
Asylum - procedure
Border police
Constitutional rights
Undocumented immigrants - rights and duties
Plaintiff Type
Non-profit NON-religious organization
Private Plaintiff
Causes of Action 42 U.S.C. § 1983
Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
Alien Tort Claims Act (ATCA), 28 U.S.C. § 1350
Declaratory Judgment Act, 28 U.S.C. § 2201
Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101 et seq.
Defendant(s) Department of Homeland Security
U.S. Customs and Border Protection
U.S. Immigration and Customs Enforcement (ICE)
Plaintiff Description Asylum seekers from Mexico and Honduras who were refused access to asylum screenings at ports of entry along the United States-Mexico border, and Al Otro Lado, Inc., a non-profit, non-partisan legal services organization serving indigent deportees, migrants, refugees and their families. All non-Mexican noncitizens who were denied access to the U.S. asylum process before July 16, 2019 as a result of the Government's metering policy and continue to seek access to the U.S. asylum process.
Indexed Lawyer Organizations American Immigration Council's Legal Action Center
Center for Constitutional Rights (CCR)
Class action status sought Yes
Class action status granted Yes
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Preliminary injunction / Temp. restraining order
Source of Relief Litigation
Filed 07/12/2017
Case Ongoing Yes
Additional Resources
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  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
  Implementation of Executive Order 13768, "Enhancing Public Safety in the Interior of the United States
The Washington Post
Date: May 22, 2017
By: Jefferson Sessions (U.S. Department of Justice)
[ Detail ] [ External Link ]

  Re: Implementing the President's Border Security and Immigration Enforcement Improvements Policies (Final, 2/20/2017)
dhs.gov
Date: Feb. 20, 2017
By: DHS Secretary John Kelly (United States Department of Homeland Security)
[ Detail ] [ PDF ] [ External Link ]

  Re: Enforcement of the Immigration Laws to Serve the National Interest (Final, 2/20/2017)
dhs.gov
Date: Feb. 20, 2017
By: DHS Secretary John Kelly (United States Department of Homeland Security)
[ Detail ] [ PDF ] [ External Link ]

  Executive Order 13767: Border Security and Immigration Enforcement Improvements
Federal Register
Date: Jan. 27, 2017
By: President Donald Trump (Office of the President)
Citation: 82 Fed. Reg. Presidential Documents 8793 (Jan. 27, 2017)
[ Detail ] [ PDF ]

  Executive Order 13768: Enhancing Public Safety in the Interior of the United States
Federal Register
Date: Jan. 25, 2017
By: President Donald Trump (Office of the President)
[ Detail ] [ PDF ] [ External Link ]

  Challenging Customs and Border Protection's Unlawful Practice of Turning Away Asylum Seekers
American Immigration Council
Date: Feb. 2019
(American Immigration Council)
[ Detail ] [ External Link ]

Docket(s)
3:17-cv-02366 (S.D. Cal.)
IM-CA-0092-9000.pdf | Detail
Date: 02/14/2020
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint for Declaratory and Injunctive Relief for: (1) Violation of the Immigration and Nationality Act, 8 U.S.C. § 1101, ET SEQ and (2) Violation of the Administrative [ECF# 1]
IM-CA-0092-0001.pdf | Detail
Date: 07/12/2017
Source: PACER [Public Access to Court Electronic Records]
Motion for Class Certification [ECF# 98]
IM-CA-0092-0005.pdf | Detail
Date: 11/13/2017
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 113] (C.D. Cal.)
IM-CA-0092-0002.pdf | Detail
Date: 11/21/2017
Source: PACER [Public Access to Court Electronic Records]
Order Granting in Part and Denying in Part Defendants' Motion to Dismiss the Complaint [ECF# 166] (327 F.Supp.3d 1284) (S.D. Cal.)
IM-CA-0092-0003.pdf | WESTLAW| LEXIS | Detail
Date: 08/20/2018
Source: PACER [Public Access to Court Electronic Records]
Order Granting in Part and Denying in Part Defendants' Motion for Protective Order [ECF# 170] (2018 WL 4488765) (S.D. Cal.)
IM-CA-0092-0004.pdf | WESTLAW | Detail
Date: 09/17/2018
Source: PACER [Public Access to Court Electronic Records]
Second Amended Complaint [ECF# 176]
IM-CA-0092-0006.pdf | Detail
Date: 10/12/2018
Source: PACER [Public Access to Court Electronic Records]
Amicus Briefs of 19 States in Support of Plaintiffs' Opposition to Defendants' Motion to Dismiss [ECF# 215]
IM-CA-0092-0007.pdf | Detail
Date: 02/21/2019
Source: PACER [Public Access to Court Electronic Records]
Amicus Brief of Amnesty International in Opposition of Defendants' Motion to Dismiss [ECF# 216]
IM-CA-0092-0008.pdf | Detail
Date: 02/21/2019
Source: PACER [Public Access to Court Electronic Records]
Amicus Brief of Congress Members in Opposition to Defendants' Motion to Dismiss [ECF# 219]
IM-CA-0092-0009.pdf | Detail
Date: 02/21/2019
Source: PACER [Public Access to Court Electronic Records]
Amicus Brief of Law Professors in Opposition to Defendants' Motion to Dismiss [ECF# 221]
IM-CA-0092-0010.pdf | Detail
Date: 02/21/2019
Source: PACER [Public Access to Court Electronic Records]
Order Granting in Part and Denying in Part Defendants' Motion to Dismiss the Second Amended Complaint [ECF# 278] (S.D. Cal.)
IM-CA-0092-0011.pdf | Detail
Date: 07/29/2019
Source: PACER [Public Access to Court Electronic Records]
Amended Order Granting in Part and Denying in Part Defendants' Motion to Dismiss the Second Amended Complaint [ECF# 280] (394 F.Supp.3d 1168) (S.D. Cal.)
IM-CA-0092-0012.pdf | WESTLAW| LEXIS | Detail
Date: 08/02/2019
Source: PACER [Public Access to Court Electronic Records]
Plaintiffs' Memorandum of Points and Authorities in Support of Their Motion for Provisional Class Certification [ECF# 293-1]
IM-CA-0092-0013.pdf | Detail
Date: 09/26/2019
Source: PACER [Public Access to Court Electronic Records]
Order: (1) Granting Plaintiffs' Motion for Provisional Class Certification (ECF No. 293) and (2) Granting Plaintiffs' Motion for Preliminary Injunction (ECF No. 294) [ECF# 330] (2019 WL 6134601) (S.D. Cal.)
IM-CA-0092-0014.pdf | WESTLAW | Detail
Date: 11/19/2019
Source: PACER [Public Access to Court Electronic Records]
Order: (1) Granting Defendants' Motion to Amend/Correct; and (2) Denying Plaintiffs' Motion for Temporary Restraining Order Without Prejudice [ECF# 382] (2020 WL 71053) (S.D. Cal.)
IM-CA-0092-0015.pdf | WESTLAW | Detail
Date: 01/06/2020
Source: PACER [Public Access to Court Electronic Records]
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Judges Bashant, Cynthia Ann (S.D. Cal.) show/hide docs
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Crawford, Karen S. Court not on record [Magistrate] show/hide docs
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Walter, John F. (C.D. Cal.) show/hide docs
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Plaintiff's Lawyers Abascal, Manuel A. (California) show/hide docs
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Azmy, Baher (New York) show/hide docs
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Bauer, Mary C. (Virginia) show/hide docs
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Cassler, Rebecca (Georgia) show/hide docs
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Crow, Melissa E. (District of Columbia) show/hide docs
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Fenn, Matthew Ellis (New York) show/hide docs
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Flick, Wayne S. (California) show/hide docs
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Guisado, Angelo R. (New York) show/hide docs
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Housh, Kristin P. (California) show/hide docs
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Kelley, Robin A. (California) show/hide docs
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Laird, Michaela R. (California) show/hide docs
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Lev, Ori (District of Columbia) show/hide docs
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Marmolejo, Matthew H. (California) show/hide docs
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Medlock, Stephen (District of Columbia) show/hide docs
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Mohammadi, Faraz R. (California) show/hide docs
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Moon, James H. (California) show/hide docs
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Reichlin-Melnick, Aaron (District of Columbia) show/hide docs
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Rich, Sara M (Georgia) show/hide docs
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Schwarz, Ghita (New York) show/hide docs
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Shepherd, Kathryn E. (District of Columbia) show/hide docs
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Stein, Micah D. (District of Columbia) show/hide docs
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Walters, Karolina J. (Texas) show/hide docs
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Defendant's Lawyers Davila, Yamileth G. (District of Columbia) show/hide docs
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Halaska, Alexander James (District of Columbia) show/hide docs
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Kelly, Genevieve M. (District of Columbia) show/hide docs
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Nazarov, Ari (District of Columbia) show/hide docs
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Pratt, Sherease Rosalyn (District of Columbia) show/hide docs
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Saeed, Sairah G. (District of Columbia) show/hide docs
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Sampat, Dhruman Y. (District of Columbia) show/hide docs
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Schuessler, Danielle K. (District of Columbia) show/hide docs
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Shinners, Katherine J. (District of Columbia) show/hide docs
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Stewart, Scott Grant (District of Columbia) show/hide docs
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Ward, Brian (District of Columbia) show/hide docs
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Westwater, Gisela Ann (District of Columbia) show/hide docs
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Other Lawyers Benedetto, Matthew D. (California) show/hide docs
IM-CA-0092-0009 | IM-CA-0092-9000
Dycus, Jamie (New York) show/hide docs
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Forbes, Matthew D. (New York) show/hide docs
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Hiatt, Alexandra (New York) show/hide docs
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Holt, Meryl (New York) show/hide docs
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Kibler, Michael D. (California) show/hide docs
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Leader, Susan K. (California) show/hide docs
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Manning, Susan Baker (District of Columbia) show/hide docs
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Palma-Solana, Vilma (California) show/hide docs
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Willett, Sabin (Massachusetts) show/hide docs
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Zahradka, James F. II (California) show/hide docs
IM-CA-0092-0007 | IM-CA-0092-9000

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