University of Michigan Law School
Civil Rights Litigation Clearinghouse
new search
page permalink
Case Name Ms. L. v. U.S. Immigration and Customs Enforcement IM-CA-0121
Docket / Court 3:18-cv-00428 ( S.D. Cal. )
State/Territory California
Case Type(s) Immigration and/or the Border
Special Collection Civil Rights Challenges to Trump Immigration Enforcement Orders
Civil Rights Challenges to Trump Refugee/Visa Order
Attorney Organization ACLU Immigrants' Rights Project
ACLU National (all projects)
Juvenile Law Center
Case Summary
On February 26, 2018, a refugee from the Democratic Republic of Congo filed this lawsuit and a writ for habeas corpus in the U.S. District Court for the Southern District of California. The plaintiff sued the U.S. Immigration and Customs Enforcement (ICE), the U.S. Department of Homeland Security ( ... read more >
On February 26, 2018, a refugee from the Democratic Republic of Congo filed this lawsuit and a writ for habeas corpus in the U.S. District Court for the Southern District of California. The plaintiff sued the U.S. Immigration and Customs Enforcement (ICE), the U.S. Department of Homeland Security (DHS) and several other government entities all under 42 U.S.C. § 1983, the Asylum Act, and the Administrative Procedure Act (APA). Represented by the ACLU Immigrants’ Rights Project, the plaintiff sought declaratory and injunctive relief as well as attorneys’ fees and costs. The case was assigned to Judge Dana M. Sabraw.

This immigration case involved the United States government’s forcible separation of families seeking to enter the country without proper documentation. The plaintiff and her seven-year-old daughter were victims of this policy. Since their arrival on November 1, the plaintiff and her daughter had been detained. For the first 4 days upon arriving, they were detained together until the plaintiff was then sent to the Otay Mesa Detention Center in the San Diego area where she remained for nearly four months without her daughter.

When the officers separated them, the plaintiff could hear her daughter in the next room frantically screaming that she wanted to remain with her mother. No one explained to the plaintiff why they were taking her daughter away from her or where her daughter was going or even when she would next see her daughter. The plaintiff claimed that by forcibly taking a 7-year-old child from her mother, without justification or even a hearing, the defendants were in violation of the due process clause of the Fifth Amendment.

On March 2, 2018, the plaintiff filed a motion for preliminary injunction and a motion to expedite resolution of said motion. The plaintiff asked the court to enjoin the defendants from continuing to separate her from her daughter and argued that expedition was necessary to remedy the devastating harms that this separation was inflicting with each passing day. In support of this argument, the plaintiff offered testimony from nine medical experts who asserted that the trauma of forced separation from a parent imposes severe and long-lasting psychological and emotional damage on young children, especially children who are incarcerated and have already suffered the trauma of fleeing their home country.

For reasons not apparent from the docket, Judge Sabraw granted in part and denied in part the plaintiff’s motion to expedite, ordering that the objections and hearings regarding the motion take place within the March 2018 but requiring the plaintiff to provide a DNA sample to verify her maternity to her own daughter. When the results of the DNA test came back on March 12, 2018, the showed a 99.99999% probability of maternity.

On March 9, 2018, the plaintiff filed an amended complaint to modify this lawsuit into a class action, adding class allegations and another plaintiff who was similarly situated. This case refers to this additional plaintiff as Ms. C. That same day, the plaintiff moved for class certification, asking that the court certify a class defined as “[a]ll adult parents nationwide who (1) are or will be detained in immigration 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, absent a demonstration in a hearing that the parent is unfit or presents a danger to the child.”

On March 19, 2018, the plaintiff moved for preliminary injunction for classwide relief that would order the defendants to reunite the class members with their children and to discontinue their family separation practice. Given this motion, the court denied as moot the plaintiff’s motion for individual preliminary relief.

On April 6, 2018, the defendants moved to dismiss the amended complaint, raising a number of arguments in support. First, they argued that the original plaintiff’s claims were moot because she has been released from ICE detention and reunited with her daughter. Second, the defendants asserted that the court lacked jurisdiction over Ms. C.’s habeas claim and that venue was improper for Ms. C.’s other claims. Third, the defendants claimed the court lacked jurisdiction to review ICE’s decision to detain rather than parole the plaintiffs, and also lacked jurisdiction to review ICE’s decision about where to detain the plaintiffs or to order ICE to detain them in a particular facility. Fourth, they contended that separation of the plaintiffs from their children did not violate the Fifth Amendment. Fifth, the defendants argued that the plaintiffs had failed to state a claim under both the APA and the Asylum Act.

Partially agreeing with the defendants, Judge Sabraw granted in part and denied in part the defendants’ motion to dismiss on June 6, 2018. 302 F.Supp.3d. Specifically, the court dismissed the plaintiffs’ claims under the APA and the Asylum Statute but retained the plaintiffs’ due process claim. Additionally, although the plaintiffs did not request leave to amend in the event any portion of the defendants’ motion was granted, Judge Sabraw granted the plaintiffs leave to file a second amended complaint that cured the pleading deficiencies set out in the order.

On June 26, 2018, the court granted the plaintiffs’ motion for class certification, finding that the class was sufficiently numerous, that there were common questions of law among the class, that the plaintiffs are typical of the class as a whole, and that the plaintiffs would represent the class adequately.

On that same day, Judge Sabraw granted the plaintiffs’ motion for classwide preliminary injunction, requiring much from the defendants. 2018 WL 3129486. Specifically, the court enjoined the defendants, and their officers, agents, servants, employees, attorneys, and all those who are in active concert or participation with them, from detaining class members in DHS custody without and apart from their minor children, absent a determination that the parent is unfit or presents a danger to the child, unless the parent affirmatively, knowingly, and voluntarily declines to be reunited with the child in DHS custody. Second, if the defendants chose to release class members from DHS custody, the defendants, were preliminarily enjoined from continuing to detain the minor children of the class members and had to release the minor children to the custody of their respective class members. Third, the court required that the defendants must reunify all class members with their minor children who were under the age of five within fourteen days of the entry of this order and that the defendants must reunify all class members with their minor children that were age five and over within thirty days of the entry of this order. Fourth, the defendants were required to immediately take all steps necessary to facilitate regular communication between class members and their children who remained in DHS custody. Fifth, the defendants were required to immediately take all steps necessary to facilitate regular communication between and among all executive agencies responsible for the custody, detention or shelter of class members and the custody and care of their children. Sixth, the defendants were preliminarily enjoined from removing any class members without their child, unless the class member affirmatively, knowingly, and voluntarily declined to be reunited with the child prior to the class member’s deportation, or there was a determination that the parent is unfit or presents a danger to the child. Finally, the court retained jurisdiction to entertain such further proceedings and to enter such further orders as may be necessary or appropriate to implement and enforce the provisions of this order and preliminary injunction.

The case is ongoing.

Jake Parker - 06/28/2018


compress summary

- click to show/hide ALL -
Issues and Causes of Action
click to show/hide detail
Issues
Constitutional Clause
Due Process
Content of Injunction
Goals and Timekeeping
Preliminary relief granted
Defendant-type
Jurisdiction-wide
General
Confinement/isolation
Family reunification
Habeas Corpus
Placement in detention facilities
Youth / Adult separation
Immigration/Border
Constitutional rights
Family
Refugees
Undocumented immigrants - rights and duties
Plaintiff Type
Private Plaintiff
Special Case Type
Habeas
Type of Facility
Government-run
Causes of Action 42 U.S.C. § 1983
Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
Defendant(s) United States
Plaintiff Description All adult parents nationwide who (1) are or will be detained in immigration 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, absent a demonstration in a hearing that the parent is unfit or presents a danger to the child.
Indexed Lawyer Organizations ACLU Immigrants' Rights Project
ACLU National (all projects)
Juvenile Law Center
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
Filing Year 2018
Case Ongoing Yes
Case Listing IM-CA-0128 : N.T.C. v. U.S. Immigration and Customs Enforcement (S.D. Cal.)
Additional Resources
click to show/hide detail
  Presidential Executive Order on Resuming the United States Refugee Admissions Program with Enhanced Vetting Capabilities
White House
Date: Oct. 24, 2017
By: United States
[ Detail ] [ External Link ]

  Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats
www.whitehouse.gov
Date: Sep. 24, 2017
By: President Donald Trump (Office of the President)
[ Detail ] [ External Link ]

  Implementing Executive Order 13780 Following Supreme Court Ruling -- Guidance to Visa-Adjudicating Posts
Reuters
Date: Jun. 28, 2017
By: U.S. Department of State
[ Detail ] [ PDF ] [ External Link ]

  Presidential Memorandum for the Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Director of National Intelligence
The White House
Date: Jun. 14, 2017
By: Donald Trump (White House)
[ Detail ] [ External Link ]

  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 ]

  Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States
Date: Mar. 6, 2017
By: President Donald Trump (President of the United States)
[ 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 ]

  Memorandum to the Acting Secretary of State, the Acting Attorney General, and the Secretary of Homeland Security
The White House
Date: Feb. 1, 2017
By: Donald F. McGahn II, Counsel to the President (The White House)
[ Detail ] [ PDF ] [ External Link ]

  Statement by Acting Attorney General Sally Yates
https://www.nytimes.com/
Date: 1/30/2017
By: Acting Attorney General Sally Yates (Department of Justice)
[ Detail ] [ PDF ] [ External Link ]

  Statement By Secretary John Kelly on the Entry of Lawful Permanent Residents into the United States
https://www.dhs.gov/
Date: 1/29/2017
By: DHS Secretary John Kelly (Department of Homeland Security)
Citation: https://www.dhs.gov/news/2017/01/29/statement-secretary-john-kelly-entry-lawful-permanent-residents-united-states
[ Detail ] [ PDF ] [ External Link ]

  OLC Memo Re: Proposed Executive Order Entitled "Protecting the Nation from Foreign Terrorist Entry into the United States"
Date: Jan. 27, 2017
By: Curtis Gannon (U.S. Department of Justice, Office of Legal Counsel)
[ 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: Protecting the Nation from Foreign Terrorist Entry into the United States
Federal Register
Date: Jan. 27, 2017
By: President Donald Trump (Office of the President)
[ Detail ] [ PDF ] [ External Link ]

  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 ]

Docket(s)
3:18-cv-428 (S.D. Cal.)
IM-CA-0121-9000.pdf | Detail
Date: 06/26/2018
Source: PACER [Public Access to Court Electronic Records]
General Documents
Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief [ECF# 1]
IM-CA-0121-0001.pdf | Detail
Date: 02/26/2018
Source: PACER [Public Access to Court Electronic Records]
Amended Complaint for Declaratory and Injunctive Relief with Class Action Allegations [ECF# 32]
IM-CA-0121-0002.pdf | Detail
Date: 03/09/2018
Source: PACER [Public Access to Court Electronic Records]
Order Granting in Part and Denying in Part Defendants' Motion to Dismiss [ECF# 71] (302 F.Supp.3d 1149) (S.D. Cal.)
IM-CA-0121-0003.pdf | WESTLAW| LEXIS | Detail
Date: 06/06/2018
Source: PACER [Public Access to Court Electronic Records]
Order Granting in Part Plaintiffs' Motion for Class Certification [ECF# 82] (S.D. Cal.)
IM-CA-0121-0004.pdf | Detail
Date: 06/26/2018
Source: PACER [Public Access to Court Electronic Records]
Order Granting Plaintiffs' Motion for Classwide Preliminary Injunction [ECF# 83] (2018 WL 3129486) (S.D. Cal.)
IM-CA-0121-0005.pdf | WESTLAW | Detail
Date: 06/26/2018
Source: PACER [Public Access to Court Electronic Records]
Judges Sabraw, Dana Makoto (S.D. Cal.)
IM-CA-0121-0003 | IM-CA-0121-0004 | IM-CA-0121-0005 | IM-CA-0121-9000
Plaintiff's Lawyers Amdur, Spencer E. W. (California)
IM-CA-0121-0001 | IM-CA-0121-0002 | IM-CA-0121-9000
Balakrishnan, Anand V. (New York)
IM-CA-0121-0001 | IM-CA-0121-0002 | IM-CA-0121-9000
Gelernt, Lee (New York)
IM-CA-0121-0001 | IM-CA-0121-0002 | IM-CA-0121-9000
Kang, Stephen B. (California)
IM-CA-0121-9000
Rabinovitz, Judy (New York)
IM-CA-0121-0001 | IM-CA-0121-0002 | IM-CA-0121-9000
Vakili, Bardis (California)
IM-CA-0121-0001 | IM-CA-0121-0002 | IM-CA-0121-9000
Defendant's Lawyers Bettwy, Samuel William (California)
IM-CA-0121-9000
Fabian, Sarah B. (District of Columbia)
IM-CA-0121-9000
Murley, Nicole N. (District of Columbia)
IM-CA-0121-9000
Other Lawyers Shipley, Michael (California)
IM-CA-0121-9000
Wynn, Summer J. (California)
IM-CA-0121-9000

- click to show/hide ALL -

new search
page permalink

- top of page -