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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