University of Michigan Law School
Civil Rights Litigation Clearinghouse
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Case Name Asylum Seeker Advocacy Project v. Barr IM-NY-0068
Docket / Court 1:19-cv-06443-JMF ( S.D.N.Y. )
State/Territory New York
Case Type(s) Immigration and/or the Border
Special Collection Civil Rights Challenges to Trump Immigration Enforcement Orders
Attorney Organization ACLU Chapters (any)
New York Civil Liberties Union (NYCLU)
Case Summary
On July 11, 2019, a group of organizations dedicated to helping immigrant families and children including Asylum Seeker Advocacy Project, Central American Resource Center – LA, Immigrant Defenders Law Center, and Public Counsel filed this lawsuit, pro se, in United States District Court for the ... read more >
On July 11, 2019, a group of organizations dedicated to helping immigrant families and children including Asylum Seeker Advocacy Project, Central American Resource Center – LA, Immigrant Defenders Law Center, and Public Counsel filed this lawsuit, pro se, in United States District Court for the Southern District of New York. The plaintiffs, sued Attorney General William Barr, the directors of Homeland Security and U.S. Immigration and Customs Enforcement (ICE), and other U.S. officials under Ex Parte Young and the Immigration and Nationality Act. The plaintiffs claimed that the defendants violated the due process of the Fifth Amendment by entering removal orders without first affording unrepresented immigrant families proper notice of a hearing or a meaningful opportunity to be heard. In addition, the plaintiffs alleged that the defendants violated the refugee-protection provisions of the Immigration and Nationality Act and its prohibition on removal to a country where the individual would face persecution or torture. Represented by the ACLU of Southern California, New York Civil Liberties Union, and private counsel, the plaintiffs sought declaratory and injunctive relief and attorneys’ fees and costs. They sought a declaration and corresponding injunctive order that, under the due process clause, “all currently unrepresented families and children who were ordered removed in absentia on or after May 1, 2014 are entitled, prior to their physical removal, to . . . a hearing before an immigration judge” and, in advance of the hearing, to access to their immigration files and certain related records.

Specifically, the plaintiffs claimed that thousands of immigrant families, mostly from El Salvador, Guatemala, and Honduras, were in danger of deportation during rumored en masse arrests in the summer of 2019. These families had all arrived to the United States within the past 5 years and claimed asylum, but never had their claims for asylum and related relief heard by an immigration judge. Instead, they were ordered deported in absentia for failing to appear at their hearings. The plaintiffs claimed that these orders violated the refugees’ due process rights as they had little to no notice of the hearings. According to the plaintiffs, hearing notices were frequently sent to the wrong address, sent with no date or time specified, or specified for dates and times (including weekends) when no hearings could actually take place, or dates that did not exist, such as September 31. When notices were sent to the right address for the right time, the plaintiffs alleged the notices were sent too late and for locations far from the immigrants’ homes. This meant that immigrants received the notice days after the hearings, or were forced to travel across the country on only a few days’ notice. Finally, deportation in absentia was ordered on multiple children, who could not read English had no control over whether they could attend their own hearings. The plaintiffs argue that the process by which unrepresented immigrants may challenge the removal orders, by filing a written motion to reopen, is effectively unavailable to those who speak limited English and lack the capacity to read, understand, and comply with the requirements for writing and filing a motion to reopen.

On July 16, 2019, the plaintiffs moved for an expedited discovery process due to the imminent harm that could come to the immigrant families. District Judge Jesse M. Furman granted the motion and ordered counsel for all parties to meet on July 18th. Judge Furman issued an opinion on July 17, 2019 lifting the usual limitations on remote electronic access to the court docket for actions related to an order of removal.

The defendants filed a motion to dismiss for lack of jurisdiction on July 24, 2019. The defendants claimed that the court lacked jurisdiction under the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). The defendants argued the claims should be dismissed because under the IIRIRA, all challenges of immigration proceedings and removal orders must be channeled to the courts of appeals. They also argued that 8 U.S.C. section 1252(g) eliminated the court’s jurisdiction because it barred review of claims arising from the decision or action to execute removal orders. Finally, they argued the injunctive relief that the plaintiffs sought was impossible due to immigration regulations that only allow injunctive relief for individual plaintiffs, not groups (8 U.S.C. § 1252(f)(1)).

On September 5, 2019, Judge Furman agreed with the defendants’ arguments and granted the defendants’ motion to dismiss. 2019 WL 4221479. Judge Furman was troubled by the plaintiffs’ allegations, but found that any remedy for these circumstances lied elsewhere: in immigration court (by way of a motion to reopen), in the Court of Appeals (by way of a petition for review), or in Congress (by way of changing the law). The court clerk issued final judgment and dismissed the complaint the next day. As of October 8, 2019, the plaintiffs had not filed a notice of appeal.

Maddie McFee - 10/02/2019


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Issues and Causes of Action
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Issues
Constitutional Clause
Due Process
Defendant-type
Jurisdiction-wide
Immigration/Border
Constitutional rights
Deportation - procedure
Plaintiff Type
Non-profit NON-religious organization
Causes of Action Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
All Writs Act, 28 U.S.C. § 1651
Declaratory Judgment Act, 28 U.S.C. § 2201
Ex parte Young (federal or state officials)
Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101 et seq.
Defendant(s) Acting Director
Attorney General of the United States
Director
Field Office Director
Secretary
Plaintiff Description A group of organizations dedicated to helping immigrant families and children comprised of Asylum Seeker Advocacy Project, Central American Resource Center – LA, Immigrant Defenders Law Center, and Public Counsel
Indexed Lawyer Organizations ACLU Chapters (any)
New York Civil Liberties Union (NYCLU)
Class action status sought No
Class action status granted No
Filed Pro Se No
Prevailing Party Defendant
Public Int. Lawyer Yes
Nature of Relief None
Source of Relief None
Filing Year 2019
Case Ongoing Yes
Additional Resources
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  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 ]

Docket(s)
1:19-cv-06443 (S.D.N.Y.)
IM-NY-0068-9001.pdf | Detail
Date: 09/06/2019
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint [ECF# 1]
IM-NY-0068-0001.pdf | Detail
Date: 07/11/2019
Source: PACER [Public Access to Court Electronic Records]
Memorandum Opinion and Order [ECF# 30] (S.D.N.Y.)
IM-NY-0068-0002.pdf | Detail
Date: 07/17/2019
Source: PACER [Public Access to Court Electronic Records]
Memorandum Opinion and Order [ECF# 48] (2019 WL 4221479) (S.D.N.Y.)
IM-NY-0068-0003.pdf | WESTLAW | Detail
Date: 09/05/2019
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Furman, Jesse Matthew (S.D.N.Y.) show/hide docs
IM-NY-0068-0002 | IM-NY-0068-0003 | IM-NY-0068-9001
Plaintiff's Lawyers Angelo, Robert L. Dell (California) show/hide docs
IM-NY-0068-9001
Arulanantham, Ahilan T (California) show/hide docs
IM-NY-0068-9001
Belsher, Amy (New York) show/hide docs
IM-NY-0068-9001
Brooks, Skylar D. (California) show/hide docs
IM-NY-0068-9001
Dunn, Christopher (New York) show/hide docs
IM-NY-0068-9001
Elliott, Gina (California) show/hide docs
IM-NY-0068-9001
Hodgson, Robert (New York) show/hide docs
IM-NY-0068-9001
Karteron, Alexis (New York) show/hide docs
IM-NY-0068-0001
Lemoine, Melinda Eades (California) show/hide docs
IM-NY-0068-9001
Lieberman, Donna (New York) show/hide docs
IM-NY-0068-0001
Padmanabhan, Aadhithi (New York) show/hide docs
IM-NY-0068-0001
Phillips, Gregory D. (California) show/hide docs
IM-NY-0068-9001
Phillips, Bradley S. (California) show/hide docs
IM-NY-0068-9001
Wells, Jordan (New York) show/hide docs
IM-NY-0068-0001
Defendant's Lawyers Byars, Michael James (New York) show/hide docs
IM-NY-0068-9001
Waterman, Brandon M. (New York) show/hide docs
IM-NY-0068-9001

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