article: On July 27, 2018, a group of parents (filing under pseudonyms) filed this class action lawsuit on behalf of their minor migrant children in the District of Columbia. The plaintiffs sued the US Department of Homeland Security (DHS), US Immigration and Customs Enforcement (ICE), US Customs and Border Protection (CBP), US Citizenship and Immigration Services (USCIS), US Department of Health and Human Services (DHHS), and the Office of Refugee Resettlement (ORR) concerning the defendants’ alleged denial of mandatory asylum procedures to minor migrant children such as the plaintiffs, who had been forcibly separated from their parents. Based on the preliminary injunction issued in a related case, <a href="https://clearinghouse.net/detail.php?id=16620">Ms. L v. ICE</a>, children and parents who had been separated would be reunified but would then be subject to the defendants’ policy of immediate deportation following reunification. The plaintiffs alleged this immediate removal would deprive these children of their individual rights to seek asylum prior to repatriation and thus violated their due process rights. The plaintiffs in this case, represented by private counsel, sued under the Immigration and Nationality Act (INA), the Fifth Amendment to the Constitution, the Administrative Procedure Act (APA), and the Mandamus Act. They sought injunctive and declaratory relief in the form of an order ending the defendants’ policy to remove families before granting minor migrant children access to asylum procedures they were entitled to by law. The case was assigned to Judge Paul L. Friedman. On July 27, the plaintiffs also filed a motion for a temporary restraining order and preliminary injunction to prevent children from being removed before permitting them the opportunity to exercise their right to seek asylum. The plaintiffs sought class certification to represent all non-citizens under the age of 18 who were separated from their parents or guardians on or after entry into the United States and who are, have, been, or will be detained by the US government any time since January 1, 2018. Specifically, the plaintiffs in this lawsuit were six minor children under the age of 13 whose native language was Spanish, represented by their parents. All were seeking asylum in the United States from Honduras and Guatemala. All were forcibly separated upon arriving in the United States under the US government’s “zero tolerance policy” initiated in early 2018, under which migrant children who had crossed the border from Mexico with their families were separated and transferred to the custody of ORR to be detained. Following the injunction in the <i>Ms. L</i> case, all were reunited with their parents. However, while they were separated or immediately following reunification, these children’s parents, who had final removal orders, alleged that they were coerced into waiving their children's right to removal proceedings under the INA. Parents were offered the choice between reunification for the purpose of repatriation or repatriation without reunification, ignoring the children’s independent rights to seek asylum and implying that the only opportunity for family reunification was through repatriation. As a result, many parents chose to waive their children’s rights in order to be reunited with them, but once families were reunited, the US government further refused asylum procedures to these children, depriving them of their right to seek asylum separate from their parents’ requests. Furthermore, the plaintiffs alleged that these forms were only offered in English to parents who did not speak English and did not understand what they were signing. The plaintiffs alleged they were also denied a separate alternative asylum procedure, the “credible fear” interview. But for the separation policy, the plaintiffs would have been subject to “expedited removal proceedings” requiring referral to an asylum officer for a “credible fear” interview if a migrant indicated fear of persecution. If a child migrant demonstrated “credible fear,” the finding normally would have extended to the parents. The same was true for parents who expressed “credible fear” on behalf of their children. All six children expressed fear at being returned to their respective countries of origin for fear of violence against themselves or their parents. However, the defendants’ separation policy prevented these children from receiving these interviews or having their parents’ “credible fear” extended to them. Instead, the defendants transferred the children to ORR custody, treating them as “unaccompanied minors” and placing them in separate immigration proceedings. Post-reunification, they were not able to seek “credible fear” interviews in cases where they had been denied to the children who would otherwise have relied on their parents to seek asylum on their behalf, or where parents had first received a negative decision owing to being too distraught to meaningfully participate in their own interviews after separation from their children. On July 30, the defendants responded to the complaint and requested to transfer venue to the Southern District of California, where the <i>Ms. L</i> case was being heard. Arguments for the temporary restraining order were heard on July 31. On August 3, Judge Friedman transferred the case to Judge Dana M. Sabraw in the Southern District of California. 319 F.Supp.3d 290. Judge Sabraw granted the plaintiffs’ motion for a temporary restraining order on August 16, 2018. 347 F.Supp.3d 526. On October 5, the plaintiffs moved for preliminary approval of a proposed settlement, preliminary certification of the settlement class, and approval of class notice. This motion was unopposed and was granted on October 9th. The plaintiffs in this case and the <i>Ms. L</i> case were named as settlement class representatives and the settlement was approved pending a notice and fairness hearing. The settlement included a parent class and a child class. Both classes included individuals who were separated from their parent or child and had been or would be reunified with their parent or child under the preliminary injunction issued in <i>Ms. L</i>. The settlement required that parents who initially received negative credible fear findings and had final orders of removal receive a good faith review of those findings, including a meeting with an asylum officer to present additional information. Children who had been issued their own Notice to Appear or were in independent removal proceedings would instead join their parents’ proceedings, and could be given their own credible fear interviews if those children also expressed fear of return. If the parent received a positive credible fear finding, their children would join their asylum proceedings in immigration court; if the parent received a negative finding, the children would be entitled to their own interview and if their finding was positive, they could pursue asylum in immigration court. The settlement did not provide any monetary relief for its members. On October 10th, the plaintiffs moved for an emergency order requiring implementation of the settlement. The plaintiffs stated that, under the settlement, 60 class members currently in detention were due to have their asylum procedures immediately. These proceedings had not yet occurred because the defendants informed the plaintiffs that proceedings would not begin until the settlement was finally approved by the court. Judge Sabraw granted the motion on October 18th, pointing to the agreement itself that indicated that the process detailed in the settlement agreement was to start “no later than 3 days” following the execution of documents requesting a credible fear interview, and that this portion of the agreement was not dependent on court approval. Over their objections, the defendants were ordered to begin the agreed-upon asylum process for those 60 members in detention who had executed the proper forms. Judge Sabraw granted final approval of the settlement on Nov. 15, 2018, finding it to be fair, reasonable, and adequate. The court certified two settlement classes. The court designated the parent class as:<blockquote>"All adult alien parents who entered the United States at or between designated ports of entry with their child(ren), and who, on or before the effective date of this agreement: (1) were detained in immigration custody by the DHS; (2) have a child who was or is separated from them by DHS and, on or after June 26, 2018, was housed in ORR custody, ORR foster care, or DHS custody, absent a determination that the parent is unfit or presents a danger to the child; and (3) have been (and whose child(ren) have been) continuously physically present within the United States since June 26, 2018, whether in detention or released. The class does not include alien parents with criminal histories or a communicable disease, or those encountered in the interior of the United States."</blockquote> The court designated the children class as: <blockquote>"All alien children who are under the age of 18 on the effective date of this agreement who: (1) entered the United States at or between designated ports of entry with an alien parent, and who were separated from their parents, on or before the effective date of this settlement agreement; (2) have been or will be reunified with that parent pursuant to the preliminary injunction issued by the Court in Ms. L v. U.S. Immigration and Customs Enforcement, No. 18-428 (S.D. Cal. June 26, 2018); and (3) have been continuously physically present in the United States since June 26, 2018."</blockquote> On February 22, 2019, pursuant to the plaintiffs' earlier motion to enforce the settlement, Judge Sabraw ordered defense counsel to advise ICE that class members subject to the settlement may not be removed without first providing them with notice of the settlement and an opportunity to decide whether they wish to take advantage of the settlement procedures or waive them. The case is ongoing.
summary: Parents of minor child migrants sued on behalf of their children, saying the US government was depriving the children of their independent right to seek asylum by coercing parents into waiving their children's right to removal proceedings and by denying those children credible fear interviews or the ability to be included in their parents' credible fear interviews. The court certified a settlement class with a parent and child class in October 2018. The settlement required that the government provide certain asylum procedures to class members.