On July 12, 2018, three mothers seeking asylum in the United States filed this putative class action lawsuit in the U.S. District Court for the Central District of California on behalf of all those similarly situated nationwide. The plaintiffs sued the Attorney General of the United States, the Department of Homeland Security (DHS), and the Department of Health and Human Services (DHHS), along with their respective agency heads, for allegedly violating the plaintiffs’ Fifth Amendment rights to due process and equal protection. Each of the three named plaintiffs had been separated from their minor children upon being detained in the United States. The plaintiffs, represented by the Immigrant Advocacy and Litigation Center, the University of Southern California, and public counsel, sought an injunction requiring the defendants to provide mental-health screenings and appropriate trauma-informed remedial medical and mental-health services to those parents and children who were separated as a result of the government’s immigrant family separation policy. See “How Trump Came to Enforce a Practice of Separating Migrant Families.” The plaintiffs also sought attorney's fees. The case was assigned to Judge John A. Kronstadt.

Specifically, the plaintiffs alleged the following:

Plaintiff Ms. P, along with her daughter, arrived in the United States on or around May 17, 2018 after fleeing a physically and sexually abusive relationship in her native Guatemala. Ms. P and her daughter were detained near the border and placed in a windowless room that lacked basic amenities alongside 150 other detainees. Here, Ms. P witnessed other children being forcibly taken from their parents, whose distress was mocked by the detention officers. On May 20, after several days in these conditions, Ms. P’s daughter was taken away, with no indication given as to when, or if, Ms. P would see her again. About two weeks later, Ms. P received notice of her daughter’s location. They were not permitted contact with one another until June 22, when they were able to speak via telephone. According to licensed clinical social workers familiar with Ms. P and her daughter, they are both showing signs of trauma, anxiety, and depression as a result of the ongoing separation. Ms. P has not received any mental health or counseling services from the government to address these concerns.

Plaintiff Ms. O, along with her daughter, arrived in the United States on or around May 17, 2018 after fleeing gang violence in her native Honduras. Upon crossing the border, Ms. O and her daughter flagged down a patrol car. They were then processed and detained separately at a nearby facility. Ms. O was placed in a holding cell that resembled a chain-link dog kennel with 50 other women and no basic amenities. Here, Ms. O witnessed other children being forcibly taken from their parents, who were taunted by the detention officers. On May 21, Ms. O, along with 50 other detainees, was taken to court where she plead guilty to criminal illegal entry though she did not understand the consequences. After the proceeding, Ms. O was transferred to another facility without her daughter. Ms. O did not learn of her daughter’s whereabouts until May 30. She and her daughter have spoken over the phone only three times for less than five minutes since being separated. Ms. O has not received any mental health or counseling services from the government to address her trauma.

Plaintiff Ms. M, along with her daughter, arrived in the United States on or around May 18, 2018 after fleeing domestic and gang violence in her native El Salvador. Upon crossing the border, Ms. M and her daughter flagged down a patrol car and were immediately taken to facility and separated for questioning. Ms. M was mocked by detention officers during this questioning. Ms. M was kept in a “cage” that lacked basic amenities with 40-50 other women. Food was scarce, and the guards would sometimes throw crackers on the floor of the cell and laugh as the hungry women scrambled to pick them up. From her cage, Ms. M could see her daughter crying in a separate cell. On May 21, Ms. M was taken to criminal proceedings with 50 other detainees where she believed she had to, and did, plead guilty though she did not understand the consequences. After these proceedings, Ms. M was transferred to another facility. She did not learn of her daughter’s location or condition until her mother, who is a permanent legal resident of the United States, provided her with this information on May 25. On June 22, Ms. M was able to speak with her daughter, who was crying uncontrollably, on the phone for about one minute. Ms. M was released on bond on July 12.

On July 12, the plaintiffs sought to have their lawsuit declared “related” to the 1985 Flores case, which had resulted in an important and long-lasting immigration settlement agreement. Judge Dolly M. Gee declined to transfer the case to Flores because this action sought affirmative relief separate and apart from the Flores Settlement Agreement and did not call for a determination of the same questions of law or fact.

On July 18, 2018, the plaintiffs moved for a preliminary injunction requiring the defendants to provide meaningful access to mental health care screening and treatment to the plaintiffs and other proposed class members. On July 27, 2018, the plaintiffs moved for class certification, proposing to define the class as all adult parents nationwide who (1) were, are, or will be detained in immigration custody by the Department of Homeland Security (“DHS”), and (2) have a minor child who has been, is, or will be separated from them by DHS and detained in DHS or Office of Refugee Resettlement (“ORR”) custody or foster care, absent a demonstration in a hearing that the parent is unfit or presents a danger to the child.

On September 18, the defendants filed a motion to dismiss.

In January 2019 the parties entered settlement discussions and the court selected Senior District Judge James S. Otero to preside over settlement proceedings between the parties. Several settlement conferences were held but the case was eventually sent back to Judge Kronstadt in October 2019 after the parties failed to come to an agreement.

On November 5, 2019, Judge Kronstadt granted the plaintiffs' motions for class certification and a preliminary injunction, and denied the defendants' motion to dismiss. He certified the following class:

"All adult parents nationwide who entered the U.S. at or between designated ports of entry, who (1) on or after July 1, 2017, were, are, or will be detained in immigration custody by DHS; and (2) have a minor child who has been, is, or will be separated from them by DHS and detained in DHS or ORR custody or foster care, absent a demonstration in a hearing that the parent is unfit or presents a danger to the child."

He also certified the following subclasses:

"(i) the Custody Subclass, which is defined as all members of the class who are currently or will be detained in immigration custody by DHS; and (ii) the Released Subclass, which is defined as all members of the class who were previously detained in immigration custody by DHS, but who have since been release."

Next, Judge Kronstadt found that the plaintiffs had shown a substantial likelihood of success on the merits of their due process claim with respect to both subclasses. 2019 WL 6723686.

The court ordered that the defendants make available, to all members of the subclasses who elect to have them, medically appropriate initial mental health screenings, diagnoses, and treatment (if requested) by qualified professionals.

On November 27, the defendants appealed to the Ninth Circuit (docket no. 19-56400). They also requested that the district court stay the case pending resolution of the appeal.

On February 21, 2020, the defendants filed a motion to voluntarily dismiss their appeal.

On March 24, 2020, the parties filed a joint stipulation to stay the case, including pending discovery, through January 10, 2021. The parties reported that on March 11, 2020, defendant DHHS had finalized a contract with a non-profit organization to implement the preliminary injunction as to the Released Subclass. As to the Custody Subclass, defendant DHS would provide notice to class members of available services and the ICE Health Service Corps Behavioral Health Unit would provide screenings and any necessary treatment. Consequently, the parties requested a stay while this relief is provided.

The district court granted the stay the same day, ordering the defendants to file status reports every sixty days, with the first report due on May 22, 2020.

The case is ongoing.

Natalie Treacy - 10/03/2018
Sam Kulhanek - 05/14/2020


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