Mass Family Separation Lawsuit

Case 4:20-cv-12015-TSH Document 1 Filed 11/09/20 Page 1 of 55
UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS
______________________________________________
)
K.O. and E.O., Jr., by and through their parents and next )
friends, E.O. and L.J.; and C.J, by and through his father )
and next friend F.C.; each individually and on behalf of )
all others similarly situated, )
) CIVIL ACTION NO.
Plaintiffs, )
)
v. )
)
UNITED STATES OF AMERICA, )
)
Defendant. )
)
_______________________________________________ )
CLASS ACTION COMPLAINT AND JURY DEMAND
Introduction
1. The United States of America was founded on the bedrock principle that our
nation is a beacon of hope to people everywhere seeking refuge from poverty, persecution, and
violence. Emma Lazarus’s sonnet on the Statue of Liberty famously rings out: “Give me your
tired, your poor, your huddled masses yearning to breathe free.” Defendant has betrayed this
fundamental principle and the constitutional rights that protect everyone within the territory of
the United States regardless of citizenship. In doing so, Defendant has harmed those most
vulnerable: children. Through this lawsuit, Plaintiffs, on behalf of a class of similarly situated
children, seek to hold Defendant accountable for its actions in accordance with the rule of law.
2. Plaintiffs seek damages and the establishment of a fund for the mental health
treatment of all class members to remedy the harm caused by the Defendant’s: (i) forcible
separation of thousands of children from their parents in immigration detention with no legal
justification and without their consent; (ii) seizing those children and separating them from their
parents without any legal basis for unreasonable lengths of time; and (iii) inflicting emotional
and psychological harm to deter immigration, particularly from Central and South American
countries. Many of these children and their parents, including the Plaintiffs in this case, fled
their native countries to lawfully seek asylum upon arriving in the United States.
3. Defendant forcibly separated these young children from their parents without any
allegations of abuse, neglect, or parental unfitness, in an abusive and intolerable manner, without
legal proceedings or hearings of any kind. Once separated, Defendant withheld the children
from the care and custody of their parents even though all were held in immigration detention.
Defendant detained these young, terrified children in facilities often thousands of miles from
their parents.
4. Defendant chose to keep immigrant children from the care and custody of their
parents and, even where both child and parent remained in immigration detention, refused
opportunities to hold them together in their existing immigration family detention centers.
5. Defendant’s employees’ unilateral conduct created a crisis that victimized non-
citizen children. First, they referred parents for criminal prosecution for the misdemeanor
offense of illegal reentry under 8 U.S.C. § 1325(a), which required the parents to be separated
from their children and transferred into detention. Second, Defendant unlawfully and
unnecessarily categorized the children, who arrived and were held in immigration detention
initially with their parents, as “unaccompanied,” utilized horrific methods to effectuate their
separate, and sent them to other immigration detention facilities.
6. Forced separation of children from their parents causes severe and often
permanent emotional and psychological harm, particularly when those children are already
traumatized from fleeing violence and persecution in their home countries.
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7. Defendant’s continued separation and unreasonable refusal to reunite these
children with their parents, once the parents returned to immigration detention or were released
from custody, prolonged and significantly increased the trauma visited by the Defendant upon
these children.
8. Based on Defendant’s employees’ conduct, the United States government is liable
for the torts of intentional and negligent infliction of emotional distress, negligence, false
imprisonment, false arrest, assault and battery, and for the loss of consortium that the minor
Plaintiffs have suffered as a result of the harm caused to their parents by Defendant’s conduct.
Plaintiffs presented tort claims to the appropriate federal agencies under the Federal Tort Claims
Act more than six months ago, yet the appropriate federal agencies have failed to make final
disposition of such torts claims. See 28 U.S.C. § 2675.
Parties
9. Plaintiff K.O. brings this lawsuit through her parents and next friends, E.O. and
L.J., as a result of her incapacity due to her minor status.
10. Plaintiff E.O., Jr. is K.O.’s brother and he brings this lawsuit through his parents
and next friends, E.O. and L.J., as a result of his incapacity due to his minor status.
11. K.O., E.O., Jr., and their parents all reside in Westborough, Worcester County,
Massachusetts. They are all seeking asylum in the United States and fleeing violence and
persecution in Guatemala.
12. Plaintiff C.J. brings this lawsuit through his father and next friend, F.C., as a
result of his incapacity due to his minor status.
13. C.J. and F.C. reside in Westborough, Worcester County, Massachusetts. They are
seeking asylum in the United States and fleeing violence and persecution in Guatemala.
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14. Plaintiffs bring this action on their own behalf and on behalf of all others similarly
situated nationwide.
15. Defendant United States of America, acting through the Department of Justice
(“DOJ”), individuals in the White House Office, the Department of Homeland Security (“DHS”),
and Department of Health and Human Services (“HHS”), “federal agencies” of the United States
under 28 U.S.C. § 2671, and their employees, officers, and agents,1 is the appropriate Defendant
under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671, et seq.
16. At all relevant times, the Defendant’s agents and employees have acted under
color of federal law in the course and scope of their duties and functions as agents, employees,
and officers of the United States in engaging in the conduct described in this Complaint.
17. The United States of America is sued for Plaintiffs’ personal injuries caused by
the negligent or wrongful acts or omissions of its agents and employees. Defendant’s employees
were acting within the scope of their office or employment under circumstances where the
United States, if a private person, would be liable to Plaintiffs in accordance with the common
law. See U.S.C. §§ 1346(b), 2674.
Jurisdiction and Venue
18. This Court has subject matter jurisdiction under 28 U.S.C. §§ 1346(b) and 2675.
19. This Court has personal jurisdiction over Defendant under 28 U.S.C. § 1391(e),
and Fed. R. Civ. P. 4(k)(1)(C); in that the United States is subject to nationwide service of
process within the United States, and such process has actually been served.
1
The relevant agencies and their subcomponents include, without limitation: the Office of the Attorney General
within the DOJ; U.S. Immigration and Customs Enforcement (“ICE”), U.S. Customs and Border Protection
(“CBP”), and U.S. Citizenship and Immigration Services (“USCIS”), subcomponent agencies of DHS that are under
the direction, authority, and control of the Secretary of DHS; and the Office of Refugee Resettlement (“ORR”), a
subcomponent agency of HHS that is under the direction, authority, and control of the Secretary of HHS.
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20. Venue is proper in this District under 28 U.S.C. § 1402(b), because, among other
things, Defendant is subject to personal jurisdiction in this District, named Plaintiffs reside in this
district, and a substantial part of the events or omissions giving rise to the claim occurred within
this District.
21. Plaintiffs have fulfilled their presentment obligations under the FTCA by serving
written notices to the relevant federal agencies and waiting the requisite six months to file this
Complaint. Plaintiffs’ claims arose beginning on or about May 19, 2018. Plaintiffs sent their
original written notices to the relevant agencies on October 9, 2018, then resent the original
notices with certified mail return receipts on October 15, 2018. On November 20, 2018, DHS
responded, demanding that Plaintiffs’ names and other identifying information be included in the
notices. Accordingly, Plaintiffs sent amended notices, including Plaintiffs’ names, on March 13,
2020. Now, more than six months have passed since the agencies received the amended notices,
and the FTCA claims are ripe for adjudication.
Facts
Legal Framework Under Federal Immigration Law
22. Pursuant to Section 208(a)(1) of the Immigration and Nationality Act (“INA”),
“[a]ny alien who is physically present in the United States or who arrives in the United States
(whether or not at a designated port of arrival and including an alien who is brought to the United
States after having been interdicted in international or United States waters)” may generally
apply for asylum “irrespective of such alien’s status.” See 8 U.S.C. § 1158(a)(1). 2 The INA and
2
The INA defines the term “alien” as “any person not a citizen or national of the United States.” INA § 101(a)(3), 8
U.S.C. § 1101(a)(3).
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its accompanying regulations establish procedures for the adjudication of asylum claims. Id; see
also INA § 235(b), 8 U.S.C. § 1225(b); 8 C.F.R. §§ 208.1-208.31.
23. Even individuals who initially fall within the INA’s “expedited removal”
procedures, meaning they would bypass formal removal proceedings, are entitled to pursue
asylum once the person indicates an intention to apply for asylum and demonstrates a credible
fear of persecution at an interview before an asylum officer. 8 U.S.C. §§ 1225(b)(1)(A)(i),
1225(b)(1)(B); 8 C.F.R. §§ 235.1-235.13.
24. The January 1997 settlement agreement in Flores v. Reno, 85-cv-4544 (C.D. Cal.)
governs the detention and release of “alien” children. The Flores Settlement remains binding on
federal agencies, including DHS, HHS, and all respective agency components, such as ICE,
CBP, USCIS, and ORR.3 In 2008, Congress enacted the Trafficking Victims Protection
Reauthorization Act ( “TVPRA”), Pub. L. 110-457, 110 Stat. 5044 (2008), which paralleled
certain aspects of the Flores Settlement and affirmed ORR’s responsibility for the care, release,
and custody of unaccompanied minors.
25. The Flores Settlement and its progeny, including the statutory rights and
obligations within the TVPRA, provide a “nationwide policy for the detention, release, and
treatment of minors in the custody of INS [which is the predecessor to ICE, CBP, and USCIS],”
which requires the government to treat “all minors in its custody with dignity, respect and special
concern for their particular vulnerability as minors.” Exhibit 1, Flores Settlement ¶¶ 9-11; see 8
U.S.C. § 1232. A “minor” is “any person under the age of eighteen (18) years who is detained in
the legal custody of the INS.” See id. ¶ 4; 8 U.S.C. § 1232(g)(2); Flores v. Lynch, 828 F.3d 898,
905-06 (9th Cir. 2016).
3
In 2002, Congress enacted the Homeland Security Act, Pub. L. 107–296, 116 Stat. 2135 (2002), and transferred
authority over the care and placement of unaccompanied minors to ORR.
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26. Paragraph 14 of the Flores Settlement requires that “[w]here the INS determines
that the detention of the minor is not required either to secure his or her timely appearance before
the INS or the immigration court, or to ensure the minor’s safety or that of others, the INS shall
release a minor from its custody without unnecessary delay.” Exhibit 1, Flores Settlement ¶ 14.
Paragraph 14 also sets forth the “order of preference” for the release of a child and release to a
parent is preferred. Id.
27. Critically, the Flores Settlement requires the federal government to “place each
detained minor in the least restrictive setting appropriate to the minor’s age and special needs,
provided that such setting is consistent with its interests to ensure the minor’s timely appearance
before the INS and the immigration courts and to protect the minor’s well-being and that of
others.” Exhibit 1, Flores Settlement ¶ 11 (emphasis added); 8 U.S.C. § 1232(c)(2)(A).
28. Under the Flores Settlement, children must be released from detention within five
days, or within twenty days in certain emergency circumstances, to a parent, legal guardian, adult
relative, adult designated by a legal guardian, or (if none of these are available) a licensed
program willing to accept legal custody. Id. ¶¶ 12, 14.
29. An “unaccompanied alien child” (“UAC”) is a child under 18 years of age with no
lawful immigration status who has neither a parent nor a legal guardian in the United States
“available” to care for them. 6 U.S.C. § 279(g)(2). According to the TVPRA, a UAC “may not
be placed with a person or entity unless the Secretary of Health and Human Services makes a
determination that the proposed custodian is capable of providing for the child’s physical and
mental well-being. Such determination shall, at a minimum include verification of the
custodian’s identity and relationship to the child, if any, as well as an independent finding that
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the individual has not engaged in any activity that would indicate a potential risk to the child.” 8
U.S.C. § 1232(c)(3)(A).
30. The statute sets forth a process for DHS, usually through ICE or CBP, for the
detention and release of UACs. 8 U.S.C. § 1232(b)(3). ICE or CBP may detain an
unaccompanied child for up to 72 hours as other federal agencies locate an appropriate facility
for that child. Id. ICE or CBP must then turn the child over to HHS. Id.
31. Once ORR detains a UAC, he or she is typically supervised and placed in ORR-
funded and supervised facilities, where staff must attempt to locate a parent and determine if
family reunification is possible. See generally 8 U.S.C. §§ 1232(c)(2)-(c)(3). If that is not the
case, ORR staff will try to locate another family member, relative, family friend, or caretaker in
the United States to serve as a sponsor who can care for the child during the pendency of the
child’s immigration proceedings. Id.
32. When ORR cannot find a sponsor, the unaccompanied child is moved to
secondary ORR-contracted and state-licensed facilities throughout the country. Id. If DHS
places the child in removal proceedings or the child has an affirmative pathway to legal
immigration status, ORR will place the child in an ORR-contracted and state-licensed long-term
foster care program while the immigration process continues. See 8 U.S.C. § 1232(a)(5)(D).
Defendant’s Forcible Separation of Children

from their Parents While in Immigration Detention
33. In 2017, the Defendant’s employees began forcibly separating thousands of
migrant children from their families while in immigration detention, in an abusive manner and
without the parents’ or children’s consent, for no legitimate purpose. The children accompanied
their parents to the United States. For the first time ever, Defendant engaged in a widespread
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practice of prosecuting or referring for prosecution the parents for illegally reentering the county,
a federal misdemeanor offense. See 8 U.S.C. § 1325(a).
34. Defendant prosecuted or referred the parents for prosecution, knowing that it
would cause the parents to be separated from their children while the parents were transferred to
federal criminal custody.
35. In the vast majority of cases, if not all of them, the parents were transferred to
federal criminal custody, plead guilty to the criminal offense, were given a sentence of time
served, and transferred back to civil immigration custody.
36. In the meantime, their children remained seized, designated as UACs, and not
afforded counsel, process, or notice of their parents’ whereabouts. They were often transferred
to the custody of ORR at child detention centers thousands of miles away from the place where
they were separated from the parents.
37. Once the children’s parents were released from their brief criminal detention and
were released or subject to civil immigration detention, Defendant’s employees withheld the
children from their parents’ care and custody by detaining them in separate detention facilities
throughout the United States.
38. Rather than reuniting the children with their parents in civil immigration custody,
Defendant’s employees continued their separation and withheld the children from their parents’
care, custody, and control.
39. The children were separated from their parents indefinitely without due process to
challenge their seizure and indefinite separation. Defendant’s employees engaged in this
conduct to demonstrate the agony that parents should expect to experience they dare to enter the
United States without authorization with their children.
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40. Defendant’s conduct forced and coerced parents and their children to separately
make important legal decisions regarding their potential claims for asylum, and other efforts to
defend against removal to their home countries.
41. As early as March 2017, a senior DHS official acknowledged that Defendant was
considering forcibly separating children from their parents at the Southwestern border. M.
Mallonee, DHS Considering Proposal to Separate Children from Adults at Border, March 4,
2017, available at https://www.cnn.com/2017/03/03/politics/dhs-children-adults-
border/index.html.
42. On March 7, 2017, then-Secretary of DHS John F. Kelly, who later became White
House Chief of Staff, confirmed that DHS was considering forcibly separating children from
their parents “to deter more movement.” D. Diaz, Kelly: DHS Considering Separating
Undocumented Children from their Parents at the Border, March 7, 2017, available at
https://www.cnn.com/2017/03/06/politics/ john-kelly-separating-children-from-parents-
immigration-border/index.html . While Kelly later backtracked after harsh criticism, an inside
source reported to the press that the family separation proposal was still under consideration by
Defendant’s employees at DHS as of August 2017. J. Blitzer, How the Trump Administration
Got Comfortable Separating Immigrant Kids from their Parents, The New Yorker, May 30,
2018, available at https://www.newyorker.com/news/news-desk/how-the-trump-administration-
got-comfortable-separating-immigrant-kids-from-their-parents.
43. In fact, Defendant’s employees at DHS began separating children from their
parents in secret in the El Paso section of the border in West Texas from July to November 2017.
D. Lind, Trump’s DHS is Using an Extremely Dubious Statistic to Justify Splitting Up Families
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at the Border, Vox, May 8, 2018, available at https://www.vox.com/policy-and-
politics/2018/5/8/17327512/sessions-illegal-immigration-border-asylum-families.
44. The forced separation of families continued well into 2018 and took place without
a hearing or any process whatsoever, regardless of the family’s circumstances or the needs of the
children. It also occurred regardless of where or how the family entered, whether they sought
asylum, whether they were charged with unlawful entry or whether a family member had passed
a credible fear interview under federal asylum law.
45. United States Attorneys working along the Texas border have reported that, in
May 2018, they received instruction from then Attorney General Sessions that “[w]e need to take
away children.” According to a draft report of the results of an investigation by Michael
Horowitz, the Justice Department’s Inspector General, Sessions and other senior officials “were
aware that full implementation of the zero-tolerance policy would result in criminal referrals by
D.H.S. of adults who enter the country illegally with children and that the prosecution of these
family-unit adults would result in children being separated from families.” M. Shear, ‘We Need
to Take Away Children,’ No Matter How Young, Justice Dept. Officials Said, New York Times,
Oct. 6, 2020, available at https://www.nytimes.com/2020/10/06/us/politics/family-separation-
border-immigration-jeff-sessions-rod-rosenstein.html. Further, “the inspector general found a
memo informing top [D.O.J.] officials that sentences for adults ranged from three to 14 days,
making it all but certain that children would be sent to the custody of officials at the Health and
Human Services Department for long periods of time.” Id. Yet, the Inspector General “found no
evidence, before or after receipt of the memorandum, that D.O.J. leaders sought to expedite the
process for completing sentencing in order to facilitate reunification of separated families.” In
other words, top D.O.J. officials were aware that the so-called “zero-tolerance policy” would
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result in lengthy separations of children from their parents, extending long beyond the time
during which the parents were in criminal detention, and those D.O.J. officials did nothing to
stop that from happening.
46. Defendant has taken children as young as infants from their parents, often with no
warning or opportunity to say goodbye, and with little to no information provided about where
Defendant’s employees were taking the children or when they would next see their parents.
47. Most of these migrant families fled their home countries to lawfully seek asylum
once physically present in the United States. See 8 U.S.C. § 1158(a)(1).
48. Nevertheless, without any allegations that the parents are unfit or abusive, the
Defendant’s employees forcibly separated these asylee-seeking parents from their young
children, who were derivative applicants on their parents’ applications and detained them, often
thousands of miles away from their parents.
49. The government separated families without providing notice to the parents or
children of each other’s whereabouts or well-being and refused to reunite these families, without
any legal basis for doing so.
50. Government officials have torn some children from the arms of their parents
while crying and pleading not to be taken away.
51. In other cases, government officials have told children they were going to play
with other children, but after separating the children from their parents they were not returned.
52. In some cases, the parents were falsely told that they would be going to court only
to be taken to a different detention cell, separated from their children. They were then
transported to a different detention center without the opportunity to say goodbye to their
children or to explain that they would not see each other for some time.
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53. Many parents were told the children would be “adopted” and they would not see
their children again.
54. Many parents were deported without their children.
55. During the separation, parents and children were often prevented from
communicating for weeks or longer, and even when allowed to communicate typically children
could only communicate with a parent by telephone for a few short minutes and were not
permitted to talk about where they were being held. These phone calls were closely monitored.
In the detention facilities where they were kept, children were not allowed to touch each other.
While staff at many detention facilities were permitted to hold the youngest children, they were
instructed not to hold or touch older children.
56. Additionally, in some of the makeshift detention centers children were held in
areas with no beds or mattresses. Some of the children were subjected to abuse by those working
at the detention centers.
57. Medical care at the detention centers was often grossly inadequate, even leading
to the death of a one-year old child who developed a respiratory infection at an immigration jail
in Texas. The child was turned away twice by the facility’s health clinic, the treatment she
received may have exacerbated the condition given her age, and she was cleared for release
without a medical examination. The child then spent six weeks in two hospitals before dying
from bronchiectasis, pulmonitis, pneumothorax, or collapsed lung. M. Sacchetti, Mother blames
toddler’s death on poor medical care in U.S. immigration jail, Washington Post, August 28,
2018, available at https://wapo.st/2PJRMv5?tid=ss_mail&utm_term=.3dddd9b5a241.
58. These conditions of confinement further traumatized the children separated from
their parents and traumatized the parents who were separated from their children.
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59. Under HHS Secretary Alex Azar’s direction, HHS would not allow media
cameras into facilities housing immigrant children separated from their parents. Yet Azar
claimed, incredibly, that “[w]e have nothing to hide about how we operate these facilities” and
that “[i]t is one of the great acts of American generosity and charity, what we are doing for these
unaccompanied kids who are smuggled into our country or come across illegally.” M. Rod, HHS
Secretary: We’re Performing Great Act of “Generosity and Charity” for Immigrant Children,
July 10, 2018, available at https://www.cnn.com/2018/07/10/politics/azar-hhs-child-separation-
immigration-charity-cnntv/index.html.
60. Suddenly ripping children away from their parents and forcibly keeping them
separated for unconscionable lengths of time is conduct that shocks the conscience, bespeaks a
callous disregard for the human beings in HHS’s care, and demonstrates the discriminatory
animus behind these practices. Contra M. Rod, HHS Secretary: We’re Performing Great Act of
“Generosity and Charity” for Immigrant Children, July 10, 2018, available at
https://www.cnn.com/2018/07/10/politics/azar-hhs-child-separation-immigration-charity-
cnntv/index.html.
61. Attempts by parents to be reunited with their children were unlawfully delayed
and made unnecessarily cumbersome as a result of the Defendant’s deliberate decision to classify
the children as “unaccompanied minors,” even though they entered the United States with their
parents. This classification meant that parents had to go through a lengthy and complex process
to apply to be a “sponsor” of their own children in order to be reunited. This exacerbated the
harm done by the separation by prolonging it and transforming reunification into an
unnecessarily arduous journey through a labyrinth of government bureaucracy.
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62. At least one HHS official has stated that “[w]hat went wrong is the children
separated from their parents were referred as unaccompanied alien children when in fact they
were accompanied.” N. Miroff & K. Memirjian, Senate Panel Skewers Trump Officials Over
Migrant Family Separations, Wash. Post, July 31, 2018, available at
https://www.washingtonpost.com/world/national-security/lawmakers-to-question-trump-
officials-on-migrant-family-separations-struggle-to-reunite-them/2018/07/31/ddb61390-9467-
11e8-8ffb-5de6d5e49ada_story.html?utm_term=.27575f06d9ea.
63. During his tenure, former ORR Director Scott Lloyd has effectively transformed
ORR from an agency designed to care for the health and well-being of migrant children into
what former ORR Director Robert Carey has called “a juvenile detention agency.” R. Planas, A
Single Trump Appointee Was Responsible for Keeping Hundreds of Kids Locked Up Longer,
HuffPost, July 26, 2018, available at https://www.huffingtonpost.com/entry/scott-lloyd-refugee-
resettlement_us_5b58cd0fe4b0fd5c73cb3c1a. This was due in part to Director Lloyd’s
insistence in June 2017, at a time when the forced separation of families was under
consideration, that he personally review and approve release decisions involving unaccompanied
minors housed in staff-secure facilities. This led to extensive delays in the release of certain
minors in ORR custody. Id. A federal judge enjoined that practice in June 2018, ruling that the
plaintiffs demonstrated a likelihood of success on the merits of their claims that the practice
violated the Administrative Procedure Act and TVPRA. L.V.M. v. Lloyd, 2018 WL 3133965
(S.D.N.Y. June 27, 2018).
64. Director Lloyd’s intentional delays exacerbated ORR’s ability to process the
thousands of children separated from their parents by the Defendant. Under Director Lloyd’s
leadership, ORR was unequipped to handle the influx of “unaccompanied” minors, and Director
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Lloyd deliberately failed to improve the situation until ordered to do so by a federal judge in
California last summer.
65. Now, years after the initial separations, the parents of 545 children still cannot be
found, and about 360 of the children still have not been located. M. Katkov, Parents of 545
Children Separated At U.S.-Mexico Border Still Can’t Be Found, NPR, Oct. 21, 2020, available
at https://www.npr.org/2020/10/21/926031426/parents-of-545-children-separated-at-u-s-mexico-
border-still-cant-be-found.
Defendant’s “Zero Tolerance Policy” Served as a Pretext to Continue Separating Families
66. On April 6, 2018, then Attorney General Jefferson Beauregard Sessions III
announced the Trump Administration’s so-called “zero-tolerance policy” for illegal entry into
the United States in violation of 8 U.S.C. § 1325(a) as a pretext for these family separations. In
reality, Defendant had been forcibly separating children from their parents long before the “zero-
tolerance policy” was announced. The express purpose of the family separation was to deter
immigration to the United States by instilling fear in migrants, particularly those from South and
Central American countries. That conduct—forcibly separating families on the basis of race or
national origin—violates the United States Constitution and state tort law.
67. After General Sessions’ announcement, former ICE Director Thomas Homan,
then USCIS Director L. Francis Cissna, and then CBP Commissioner Kevin K. McAleenan
signed onto a letter to then DHS Secretary Kirstjen Nielsen urging her to detain and refer for
prosecution all parents caught crossing the Mexican border illegally with their children. In other
words, Homan, Cissna, and McAleenan pushed for the across-the-board implementation of the
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Justice Department’s “zero-tolerance policy” at DHS to serve as a pretext for continuing the
Defendant’s forcible separation of immigrant children from their parents while in immigration
detention at the Southwestern border. M. Sacchetti, Top Homeland Security Officials Urge
Criminal Prosecution of Parents Crossing Border with Children, Washington Post, April 26,
2018, available at https://www.washingtonpost.com/local/immigration/top-homeland-security-
officials-urge-criminal-prosecution-of-parents-who-cross-border-with-
children/2018/04/26/a0bdcee0-4964-11e8-8b5a-
3b1697adcc2a_story.html?utm_term=.655fc386e41a.
68. According to a letter authored by 17 United States Senators in April 2018, under
Director Homan’s leadership, ICE “sharply increased arrests and detentions of immigrants with
no criminal background” and “[r]eportedly separated hundreds of children of asylum-seekers
from their parents,” among other things. April 27, 2018 Letter from Sens. to Sec. K. Nielsen,
available at https://www.murray.senate.gov/public/index.cfm/2018/4/immigration-senator-
murray-raises-questions-about-nomination-of-tom-homan-to-head-immigration-and-customs-
enforcement.
69. Importantly, these statements distinguish between the “zero-tolerance policy” and
Defendant’s unnecessary and unlawful conduct in forcibly separating children from their
families while they were held in immigration detention. That conduct pre-dated and post-dated
the “zero-tolerance policy.”
70. Defendant’s employee Secretary Nielsen as well as President Trump have also
made statements demonstrating that distinction.
71. Secretary Nielsen put out the following statement on Twitter on June 17, 2018:
“We do not have a policy of separating families at the border. Period.” See Sec. Kirstjen
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Nielsen (@SecNielsen), Twitter,
https://twitter.com/secnielsen/status/1008467414235992069?lang=en.
72. In testimony before the House Judiciary Committee on December 20, 2018,
Secretary Nielsen again stated: “[W]e’ve never had a policy for family separation.” See, e.g., D.
Clark, DHS Chief Nielsen Defends Immigration Policies in Heated Hearing, NBC News (Dec.
20, 2018), available at https://www.nbcnews.com/politics/congress/i-am-not-liar-dhs-chief-
nielsen-defends-immigration-policies-n950511.
73. On June 20, 2018, President Trump issued an Executive Order stating, in part,
that “[i]t is . . . the policy of this Administration to maintain family unity, including by detaining
alien families together where appropriate and consistent with law and available resources.”
Exec. Order No. 13841, 83 Fed. Reg. 122 (June 25, 2018), available at
https://www.govinfo.gov/content/pkg/FR-2018-06-25/pdf/2018-13696.pdf.
74. The President’s Executive Order said nothing, however, about reuniting the
families who had already been separated or compensating them for the trauma that the Defendant
put these families through. Moreover, it took weeks to reunite most of the parents and children
and even today not all of these families have been reunited, in some cases because the parents
were deported while their children remained detained in the United States.
75. After issuing the Executive Order, President Trump repeatedly emphasized the
lawless nature of the Defendant’s employees’ approach. President Trump proposed that DHS
simply deport immigrants without a hearing or any legal process whatsoever. On June 21, 2018,
President Trump stated: “We shouldn’t be hiring judges by the thousands, as our ridiculous
immigration laws demand, we should be changing our laws, building the Wall, hire Border
Agents and Ice and not let people come into our country based on the legal phrase they are told
18
to say as their password.” See President Donald J. Trump (@realDonaldTrump), Twitter,
https://twitter.com/realdonaldtrump/status/1009770941604298753?lang=en.
76. President Trump again proposed a lawless approach on June 24, 2018: “We
cannot allow all of these people to invade our Country. When somebody comes in, we must
immediately, with no Judges or Court Cases, bring them back from where they came. Our
system is a mockery to good immigration policy and Law and Order. Most children come
without parents…” K. Rogers & S. Gay Stolberg, Trump Calls for Depriving Immigrants Who
Illegally Cross Border of Due Process Rights, N.Y. Times, June 24, 2018, available at
https://www.nytimes.com/2018/06/24/us/politics/trump-immigration-judges-due-process.html.
77. These are but a few examples of the torrent of such statements that came from the
President and other officials in the Trump Administration who either echoed these statements or
acted in accordance with them.
Defendant’s Forcible Separation of Children from their Parents While in Immigration

Detention was Motivated by Discriminatory Animus and an Express Intent to Deter Lawful
Immigration to the United States by Instilling Fear in Would-be Migrants
78. Defendant’s employees referenced herein and others in the Trump Administration
have openly admitted that the forcible separation of families in immigration detention at the
Southwestern border was intended to target immigrants by their race, ethnicity, or national
origin. The forcible separation of these families is also consistent with the racist and xenophobic
hostility shown toward Latino immigrants, repeatedly voiced and demonstrated by President
Trump and carried out by his Administration, including the Defendant’s employees in this case.
79. For example, in June 2015, when then-candidate Trump announced his campaign
at Trump Tower, he declared: “When Mexico sends its people, they’re not sending their best. . .
. They’re bringing drugs. They’re bringing crime. They’re rapists.” Z. Byron Wolf, Trump
Basically Called Mexicans Rapists Again, available at

19
https://www.cnn.com/2018/04/06/politics/trump-mexico-rapists/index.html. In that speech, Mr.
Trump proposed building a wall along the Southwestern border and making Mexico pay for it.
President Trump has repeatedly referred to Mexicans as “criminals” and “thugs.”
80. In January of 2018, President Trump referred to El Salvador, Haiti, and African
countries generally as “shithole countries” and said that the United States should be allowing
immigration from countries like Norway instead. E. O’Keefe & A. Gearan, Trump, Condemned
for “Shithole” Countries Remark, Denies Comment But Acknowledges “Tough” Language,
Washington Post, Jan. 13, 2018, available at https://www.washingtonpost.com/politics/trump-
acknowledges-tough-language-but-appears-to-deny-shithole-remark/2018/01/12/c7131dae-f796-
11e7-beb6-c8d48830c54d_story.html?utm_term=.4e58b8638236. The racism behind that
statement is self-evident.
81. President Trump has impugned the integrity and independence of federal District
Judge Gonzalo Curiel because, Trump said, Judge Curiel was of Mexican descent and “very
hostile” to Trump because Trump was “very, very strong on the border.”
82. United States House Speaker Paul Ryan appropriately rebuked these outrageous
statement, describing them as “the textbook definition of a racist comment.” D. Walsh & M.
Raju, CNN, June 7, 2016, available at https://www.cnn.com/2016/06/07/politics/paul-ryan-
donald-trump-racist-comment/index.html.
83. President Trump’s clear animus based on race, ethnicity, and national origin
provides the context for understanding the unlawful and irrational actions of Defendant in this
case. The driving force behind the Defendant’s forcible separation of immigrant families along
the Southwestern border while in immigration detention was this very animus based on race,
ethnicity, and national original, which led to a failure to adhere to the well-established
20
constitutional and statutory rights of Plaintiffs and the class. Each of the Defendant’s employees
referenced herein adopted, implemented, enforced, condoned, sanctioned, acquiesced to, and
encouraged these forced family separations with the purpose of discriminating against
immigrants based on their race, ethnicity, or national origin. Such intentional discrimination on
these bases is unconstitutional.
84. What is more, Defendant’s employees referenced herein and others in the Trump
Administration have made clear that the express purpose of the forced separation of children
from their parents was to deter immigrants, particularly from Central and South American
countries, from coming to the United States. The vast majority of immigrants at the
Southwestern border are from Central and South American countries and are Latino.
85. During a press interview in May of 2018, Secretary Kelly said that “a big name of
the game is deterrence” when asked whether he was in favor of forced family separation. He
said family separation “would be a tough deterrent. A much faster turnaround on asylum
seekers.” Kelly dismissively stated that the traumatized children “will be taken care of—put into
foster care or whatever.” Transcript: White House Chief of Staff John Kelly’s Interview with
NPR, National Public Radio, May 11, 2018, available at
https://www.npr.org/2018/05/11/610116389/transcript-white-house-chief-of-staff-john-kellys-
interview-with-npr.
86. On June 6, 2018, ICE Director Homan made the deterrence goal plain when he
stated: “One thing you got to remember, for that parent who was arrested and his child crying
and feeling bad about it, I get it, but what responsibility does he have in this? He chose to enter
the country illegally in violation of federal law. He chose to do that intentionally. . . . He put
himself in the position.” C. Da Silva, ICE Chief Defends Separating Families at Border After
21
U.N. Condemns Practice as Rights Violation, Newsweek, June 6, 2018, available at
https://www.newsweek.com/ice-chief-defends-separating-families-border-after-un-condemns-
practice-rights-960825.
87. Defendant’s employee, Senior Advisor to the President of the United States
Stephen Miller, was a driving force behind the Defendant’s forcible separation of families in
immigration detention. Mr. Miller has embraced family separation and explained that “[t]he
message is that no one is exempt from immigration law.” C. Danner, Separating Families at the
Border Was Always Part of the Plan, June 17, 2018, N.Y. Magazine, available at
http://nymag.com/daily/intelligencer/2018/06/separating-families-at-border-was-always-part-of-
the-plan.html.
88. Mr. Miller’s anti-Latino animus is well-known and long-standing. Even in high
school he wrote an opinion piece for the Santa Monica Lookout which argued that “very few, if
any, Hispanic students” make it to honors classes because the school gives them a “crutch” by
ensuring that “all announcements are written in both Spanish and English.” S. Tatum, How
Stephen Miller, the Architect Behind Trump’s Immigration Policies, Rose to Power, June 23,
2018, available at https://www.cnn.com/2018/06/23/politics/stephen-miller-immigration-family-
separation/index.html.
89. Mr. Miller’s anti-immigrant and anti-Latino animus has only hardened over the
years. In fact, an outside White House adviser recently stated that “Stephen actually enjoys
seeing those pictures at the border” of Central and South American children being separated
from their parents. G. Sherman, “Stephen Actually Enjoys Seeing Those Pictures at the
Border”: The West Wing is Fracturing Over Trump’s Callous Migrant-Family Policy, Vanity
22
Fair, June 20, 2018, available at https://www.vanityfair.com/news/2018/06/stephen-miller-
family-separation-white-house.
90. Defendant’s employee, Counselor to the Attorney General Gene Hamilton, who
has been described as “a close ally of Stephen Miller,” was reported to be “[a]mong those
leading the discussion” about forcibly separating families in immigration detention at the
Southwestern border. J. Blitzer, How the Trump Administration Got Comfortable Separating
Immigrant Kids from their Parents, The New Yorker, May 30, 2018, available at
https://www.newyorker.com/news/news-desk/how-the-trump-administration-got-comfortable-
separating-immigrant-kids-from-their-parents.
91. A former government official has reported to the press that Miller and Hamilton,
among others, “want to have a different America, and they’re succeeding.” Moreover, “Miller
has only seemed to gain allies in the government” as a result of his role in pushing for the
forcible separation of immigrant children from their parents. J. Blitzer, Will Anyone in the
Trump Administration Ever Be Held Accountable for the Zero-Tolerance Policy?, The New
Yorker, August 22, 2018, available at https://www.newyorker.com/news/daily-comment/will-
anyone-in-the-trump-administration-ever-be-held-accountable-for-the-zero-tolerance-policy.
92. In public remarks on the “zero tolerance policy” on May 7, 2018, General
Sessions emphasized that “[i]f you are smuggling a child, then we will prosecute you and that
child will be separated from you as required by law.” Exhibit 2, DOJ Press Release (May 7,
2018). General Sessions said nothing about reuniting parents with their children once detention
ended because he had no intention of doing so.
93. Later, General Sessions stated: “We cannot and will not encourage people to
bring their children or other children to the country unlawfully by giving them immunity in the
23
process.” L. Sanchez, Sessions On Separating Families: If We Build A Wall and Pass
Legislation, We Won’t Have These “Terrible Choices”, The Hill, June 18, 2018, available at
http://thehill.com/homenews/administration/392785-sessions-on-separating-families-if-we-build-
a-wall-and-pass.
94. When asked if forced family separation was “absolutely necessary,” General
Sessions responded: “Yes. . . . We believe every person that enters the country illegally like that
should be prosecuted. And you can’t be giving immunity to people who bring children with them
recklessly and improperly and illegally.” H. Hewitt, US Attorney General Jeff Sessions on
Children Separated from Parents at Broder, F-1 Visas for PRC Students, and Masterpiece
Cakeshop Decision, June 5, 2018, available at http://www.hughhewitt.com/attorney-general-jeff-
sessions-on-the-immigration-policies-concerning-children-apprehended-at-he-border-and-f-1-
visas/.
95. Likewise, Secretary Nielsen has said that “[i]llegal actions have and must have
consequences. No more free passes, no more get out of jail free cards.” T. Kopan, “We Will Not
Apologize”: Trump DHS Chief Defends Immigration Policy, June 18, 2018, available at
https://www.cnn.com/2018/06/18/politics/kirstjen-nielsen-immigration-policy/index.html.
96. At an August 2017 DHS meeting, Mr. Hamilton explained to participants that
they would “need to generate paperwork laying out everything we could do to deter immigrants
from coming to the U.S. illegally,” which included “separating parents from their kids at the
border.” J. Blitzer, How the Trump Administration Got Comfortable Separating Immigrant Kids
from their Parents, The New Yorker, May 30, 2018, available at
https://www.newyorker.com/news/news-desk/how-the-trump-administration-got-comfortable-
separating-immigrant-kids-from-their-parents.
24
97. Counselor to the President Kellyanne Conway also made clear the purpose of
Defendant’s forcible separation of families: “Nobody likes seeing babies ripped from their
mothers’ arms . . . but we have to make sure that DHS’ laws are understood through the
soundbite culture that we live in.” Kellyanne Conway: ‘Nobody Likes’ Policy Separating
Migrant Kids at the Border (June 17, 2018), available at https://www.nbcnews.com/politics/first-
read/conway-nobody-likes-policy-separating-migrant-kids-border-n884016.
98. General Sessions, Secretary Nielsen, Secretary Kelly, Mr. Miller, Mr. Hamilton,
Director Homan and others in the Trump Administration, including the President himself, have
also made clear that the forced separation and traumatization of families in immigration
detention is being used as a negotiating ploy for political gain.
99. Mr. Miller has stated: “If we were to have those [Republican sponsored] fixes in
federal law, the migrant crisis emanating from Central America would largely be solved in a very
short period of time,” and “[f]amilies would then therefore be able to be kept together and could
be sent home expeditiously and safely.” T. Hesson, White House’s Miller Blames Democrats for
Border Crisis, Politico, May 29, 2018, available at https://www.politico.com/
story/2018/05/29/stephen-miller-democrats-border-574537 ; see also P. Kasperowicz, ICE
Director: Democrats Should “Get Their Facts Straight” Before Protesting Family Separation,
Washington Examiner, June 29, 2018, available at https://www.washingtonexaminer.com/news/
ice-tom-homan-democrats-get-facts-straight-protesting-family-separation.
Defendant’s Employees Were Aware of the Traumatic Harm that Children Would Suffer
from Being Forcibly Separated from their Parents, but Defendant’s Employees Did It
Anyway, and Failed to Provide the Children with Adequate Mental Health Care
100. Separation of a young child from his or her parent is a traumatic event that has a
devastating impact on the child’s psychological well-being. Children are likely to experience
post-traumatic symptoms, such as nightmares and other manifestations of anxiety and

25
depression. This damage can be permanent, especially where, as here, the child has already
experienced other trauma in their home country, on their journey to the United States, or both.
101. On January 23, 2018, a group of experts in child welfare, juvenile justice, and
child development, including the American Association of Pediatrics, criticized the
government’s separation of migrant children from their parents, pointing out that: “[T]he
psychological distress, anxiety, and depression associated with separation from a parent would
follow the children well after the immediate period of separation—even after the eventual
reunification with a parent or other family.” Exhibit 3, Jan. 23, 2018 Letter to K. Nielsen.
102. The American Academy of Pediatrics put out another statement opposing the
cruel family separations on May 8, 2018, in which its President, Colleen Kraft, M.D., wrote:
“Separating children from their parents contradicts everything we stand for as pediatricians –
protecting and promoting children’s health. In fact, highly stressful experiences, like family
separation, can cause irreparable harm, disrupting a child’s brain architecture and affecting his or
her short- and long-term health. This type of prolonged exposure to serious stress - known as
toxic stress - can carry lifelong consequences for children.” C. Kraft, AAP Statement Opposing
Separation of Children and Parents at the Border, available at https://www.aap.org/en-us/about-
the-aap/aap-pressroom/Pages/StatementOpposing SeparationofChildrenandParents.aspx.
103. Media reports have explained that “many of the children released to their parents
are exhibiting signs of anxiety, introversion, regression and other mental health issues.” M.
Jordan, A Migrant Boy Rejoins His Mother, But He’s Not the Same, N.Y. Times, July 31, 2018,
available at https://www.nytimes.com/2018/07/31/us/migrant-children-separation-anxiety.html.
This includes “acute anxiety around routines that separate [the children] from their parents, such
as when the adult bathes or goes into another room.” Id.
26
104. One of the reasons for this is that the children may understand the separation as a
punishment. Id. “Decades of research have concluded that children traumatically separated
from their parents have a high likelihood of developing emotional problems, cognitive delays
and long-term trauma.” Id. “More recent studies have found that separation can impair memory
and normal production of cortisol, a hormone produced in response to stress.” Id.
105. This psychological harm continues after reunification.
106. One 5-year old migrant boy loved playing with the yellow Minion characters from
the “Despicable Me” movies before being forcibly separated from his mother. “Now his favorite
game is patting down and shackling ‘migrants’ with plastic cuffs.” Id. The boy, who had not
nursed in years, pleaded with his mother to be breastfed after he was finally reunited with his
mother. He hid behind a sofa when guests, including undersigned counsel Jesse M. Bless, Esq.,
visited the family’s new home in Philadelphia. Id.
107. “A 3-year old boy who was separated from his mother has been pretending to
handcuff and vaccinate people around him, behavior he almost certainly witnessed in [ICE]
custody.” Id.
108. “A pair of young siblings burst into tears when they spotted police officers on the
street.” Id.
109. One three-year-old boy refused to look at his mother and pulled away from her
embrace when they were initially reunified. See A. Valdes & I. Mejia, ‘My Son Is Traumatized’:
One Separated Family’s Reunion, ACLU Press Release, August 24, 2018, available at
https://www.aclu.org/blog/immigrants-rights/immigrants-rights-and-detention/my-son-
traumatized-one-separated-familys.
27
110. Similarly, parents who arrived with their children at the United States border and
were forcibly separated from their children by the Defendant while in immigration detention are
likely to experience immediate and acute psychological injury as well as lasting and permanent
emotional and psychological harm. This includes anxiety, depression, post-traumatic stress
disorder, and other trauma-related disorders. The trauma that the children face is compounded
by watching their parents suffer and the emotional toll that the parents’ own trauma takes on the
parent-child relationship. Making matters worse, the Defendant’s employees then failed to
adequately provide the children with necessary mental health care while the children were in
Defendant’s custody.
111. Indeed, one parent is reported to have committed suicide after his 3-year-old son
was taken from his arms. N. Miroff, A Family Separated at the Border, and this Distraught
Father Took His Own Life, Washington Post, June 9, 2018, available at
https://www.washingtonpost.com/world/national-security/a-family-was-separated-at-the-border-
and-this-distraught-father-took-his-own-life/2018/06/08/24e40b70-6b5d-11e8-9e38-
24e693b38637_story.html?utm_term=.dca844c151d9. This harm to the parents, of course, will
impact the quality of their relationship with their children for years to come.
112. There is no doubt that Defendant was aware of the severe psychological and
emotional trauma that forcibly separating children from their parents would cause. Not only is
the likelihood of severe harm self-evident, but Defendant’s employees were informed of and
warned about the likelihood of such harm directly and through many authoritative public
statements by other government officials and experts in the field.
113. For example, on February 12, 2018, 33 United States Senators signed a letter to
Secretary Nielsen to express their “deep concern” about “systematically separat[ing] immigrant
28
children from their parents upon arrival in the United States.” Exhibit 4, Feb. 12, 2018 Letter
from U.S. Sens. to Sec. Nielsen. The Senators wrote to “condemn” forced family separation and
to urge Secretary Nielsen to reject this “cruel” and “grotesquely inhumane” conduct that they
recognized would “inflict significant trauma on small children.” Id.
114. Moreover, Commander Jonathan White of the United States Public Health
Service Commissioned Corps (who organized the government’s reunification effort at DHS after
a federal court in California ordered reunification in 2018) testified before the Senate Judiciary
Committee on July 31, 2018. Commander White told the Judiciary Committee “that he had
warned his superiors that separating children from their parents carries a ‘significant risk of
harm’ and could inflict ‘psychological injury.’” N. Miroff & K. Memirjian, Senate Panel
Skewers Trump Officials Over Migrant Family Separations, Wash. Post, July 31, 2018, available
at https://www.washingtonpost.com/world/national-security/lawmakers-to-question-trump-
officials-on-migrant-family-separations-struggle-to-reunite-them/2018/07/31/ddb61390-9467-
11e8-8ffb-5de6d5e49ada_story.html?utm_term=.27575f06d9ea. Commander White told the
Senate panel that his superiors assured him that the government was not planning to separate
families. Id.
115. Even in the face of these clear and direct warnings, the Defendant proceeded to
traumatize the class members, and then exacerbated the trauma by failing to provide the children
with adequate and necessary mental health services, even though the Defendant knew that the
class members needed mental health care to address the trauma that Defendant itself, through its
employees, inflicted on the class members.
116. In the words of a current Trump Administration official: “The expectation was
that the kids would go to the Office of Refugee Resettlement, that the parents would get
29
deported, and that no one would care.” J. Blitzer, Will Anyone in the Trump Administration
Ever Be Held Accountable for the Zero-Tolerance Policy?, The New Yorker, August 22, 2018
(emphasis added), available at https://www.newyorker.com/news/daily-comment/will-anyone-in-
the-trump-administration-ever-be-held-accountable-for-the-zero-tolerance-policy.
After Traumatizing Children and Parents, Defendant’s Employees Coerced Parents into
Waiving Their Children’s and Their Own Rights to Asylum and Other Relief
117. After subjecting parents and children to some of the most severe trauma of their
lives, Defendant’s employees proceeded to coerce many parents into signing forms that waived
their own and their children’s rights to pursue asylum claims in the hope of being reunited with
their children more quickly.
118. A senior official, speaking on condition of anonymity, confirmed that Defendant
did not plan to reunite families until after a parent had lost his or her deportation case, effectively
punishing parents who may otherwise pursue an asylum claim or other relief, and creating
tremendous pressure to abandon such claims so that parents may be reunited with their children.
M. Saccheri, M. Miller & R. Moore, Sen. Warren Visits Detention Center, Says No Children
Being Returned to Parents There, Washington Post, June 24, 2018, available at
https://www.washingtonpost.com/local/immigration/desperate-to-get-children-back-migrants-
are-willing-to-give-up-asylum-claims-lawyers-say/2018/06/24/c7fab87c-77e2-11e8-80be-
6d32e182a3bc_story.html?utm_term=.3118c8f35345.
119. Parents have been presented with the option to be deported with their children and
waive the children’s right to asylum, or to be deported alone and leave the child in the United
States to pursue an asylum claim. Some who have chosen to be deported alone to let their
children pursue asylum were not even allowed by ICE to say goodbye to their children but had to
wave to their children who sat on a bus. M. Jordan, Migrant Families Have Been Reunited. Now
30
a Scramble to Prevent Deportations, N.Y. Times, July 30, 2018, available at
https://www.nytimes.com/2018/07/30/us/migrant-families-
deportations.html?action=click&module=MoreInSection&pgtype=Article&region=Footer&cont
entCollection=U.S.
120. In the past, the government often placed families apprehended at the border in
regular removal proceedings without detaining them at all. For other families, the government
used expedited removal procedures and detained members of the families together during these
expedited proceedings. If the government found these family members to have a credible fear of
persecution, they would release the family from detention, because it often takes years before
immigration courts can offer asylee applicants a full and fair hearing on the merits of their
claims.
121. Defendant’s employees in the Trump Administration are the first to systematically
and forcibly separate all fit parents from their young children in immigration detention, refuse to
reunify them thereafter until ordered by a federal court to do so, and then double down by
coercing parents to waive their own and their children’s rights to asylum and other relief.
DHS Advisory Council Members Resign in Protest of the Defendants’ Forced Separation of
Children from their Parents in Immigration Detention
122. As a result of Defendant’s unconstitutional actions, four members of the
Department of Homeland Security Advisory Council resigned on July 16, 2018 in protest of the
forced separation of children from their parents, writing that “routinely taking children from
migrant parents [i]s morally repugnant, counter-productive and ill-considered.” Exhibit 5, July
16, 2018 Letter from R. Danzig, E. Holtzman, D. Martin, and M. Olsen to Sec. K. Nielsen.
123. Former Congresswoman Elizabeth Holtzman wrote to Secretary Nielsen in her
separate individual resignation letter:
31
Under your administration and that of Donald Trump’s, DHS has been
transformed into an agency that is making war on immigrants and refugees. . . .
The final straw has been the separation of children from their parents at the
Southwest border. This is child kidnapping, plain and simple. Seizing children
from their parents in violation of the constitutional rights of both is bad enough
(mentally harmful to the children and infinitely painful to both the parents and
children), but doing so without creating proper records to enable family
reunification shows utter depravity on the part of the government officials
involved.
Exhibit 6, July 16, 2018 Letter from Hon. E. Holtzman to Sec. K. Nielsen.
124. Professor David A. Martin wrote to Secretary Nielsen in his own resignation letter
about the “unjust” separation of families at the border. He explained that it was “clear” that the
separation of children from their families was “executed with astounding casualness about
precise tracking of family relationships – as though eventual reunification was deemed unlikely
or at least unimportant, even for toddlers and preschoolers. . . . From the beginning, however, the
administration has opted instead for gratuitously severe actions in the immigration arena.”
Professor Martin went on to write that the Defendant’s forcible separation of children from their
families “crystallized for many HSAC members profound doubts about the administration’s
commitment to the rule of law.” Exhibit 7, July 16, 2018 Letter from Prof. D. Martin to Sec. K.
Nielsen.
Individual Plaintiffs’ Allegations – K.O. and E.O., Jr.
125. On May 19, 2018, K.O., E.O., Jr., and their mother L.J. arrived in Texas on foot
after fleeing from their home country of Guatemala. The family fled the violence they had
experienced in Guatemala and were seeking asylum in the United States.
126. At the time of their crossing, K.O. was nine years old and E.O., Jr. was seventeen
years old.
32
127. The family walked alone for about five hours along the Rio Grande, without food
or water and in fear of being robbed or attacked by a poisonous snake or other animal. They
hoped that a CBP Agent would find them to allow them to apply for asylum.
128. Eventually a single CBP Agent stopped the family and told them to remove their
jewelry, belts, and shoes. The CBP Agent made K.O. remove a small ring that she had received
upon her Kindergarten graduation. The CBP Agent asked them if they had any money,
telephones, or identification. L.J. explained that they only had identification.
129. The CBP Agent then drove the family in a truck for about thirty minutes.
Immediately, K.O. and E.O., Jr. felt relieved, believing that help had arrived and they could
finally rest. K.O. fell asleep.
130. The family was taken to border patrol detention facility L.O. believes was
approximately ten minutes away from an immigration detention facility in McAllen, Texas.
They were seated on a cement bench.
131. After a few minutes, CBP Agents called E.O., Jr. into an extremely small room
with about fifty other children ranging in age from about fourteen to seventeen. When E.O., Jr.
was taken from L.J., she had no idea that the Defendant’s employees intended to keep them
separated.
132. In the first border patrol immigration detention facility, there was not enough
space in the room for E.O., Jr. to sit so he had to stand for almost seven hours. The air became
so thick and heavy that some of the children kept calling for the CBP Agents to help by banging
on the door. Every once in a while, the CBP Agents opened the door, which let some air in, and
everyone felt momentary relief. More than once, the CBP Agents opened the door and screamed
at the group of children in Spanish: “Shut up, you donkeys!”
33
133. L.J. saw her son E.O., Jr. come out of the room once to be fingerprinted. The
CBP Agents would not let E.O., Jr. talk to L.J. They were terrified. They did not know why the
CBP Agents had separated them. They feared they would never see each other again.
134. About two minutes after taking E.O., Jr., CBP Agents took nine-year-old K.O.
and her mother to another holding cell. About thirty other mothers were in that cell with their
children. One mother had an infant that looked to be only two months old. The room was
freezing cold, the only food was sandwiches for the children, and many of the children were
crying the entire time. Mothers walked with their children on their shoulders and sang songs to
them, hoping to help the children fall asleep.
135. K.O. felt hungry, cold, and afraid in that cell. L.J. could not do anything to help
her.
136. About twelve to fourteen hours later, CBP Agents brought L.J. into a room with
about ten other mothers. Their children were left alone in a cell. K.O. grabbed L.J. from behind
and said, “Mommy, don’t go!”
137. The CBP Agent had to pry K.O.’s hands off of L.J. and when he did that he yelled
at K.O. in Spanish: “Dejala!” That means: “Let her go!” L.J. asked the agent why he was
attacking K.O.
138. As the CBP Agent pulled K.O.’s hands off of L.J., he said to her in Spanish:
“You’re going to be deported to Guatemala and we’re going to adopt your daughter.”
139. K.O. was screaming. L.J. desperately called out to K.O., telling her: “I love you
with all my heart! We are going to see each other again soon. Remember your father’s phone
number.”
34
140. E.O., Jr. could see this happening through the window of the room where he was
being held. E.O., Jr. banged on the window to try to stop them from taking his sister, to no avail.
141. K.O.’s father, E.O., was living in Westborough, Massachusetts and L.J. thought
he would be able to help K.O. even if L.J. could not. When he found out where they were, E.O.
began trying to get his children released to him in Massachusetts.
142. On the day the children were suddenly and forcibly taken from L.J. while they
were being held in a border patrol immigration detention facility, a CBP Agent or ICE Agent
told E.O. that they intended to separate the children from L.J. L.J. was transferred to criminal
custody, indicted for the misdemeanor criminal offense of illegal entry at federal court in Texas,
pleaded guilty, and was sentenced to time served.
143. Once the criminal process against L.J. ended and she returned to civil immigration
custody, Defendant’s employees had no legitimate interest in keeping K.O. and E.O., Jr. from the
custody and care of L.J. There was no evidence or even allegation of abuse, neglect, or unfitness
or that L.J. was not acting in the best interests of her children. Defendant’s employees did not
provide K.O., E.O., Jr., or L.J. with any notice or opportunity to be heard before forcibly
separating them.
144. K.O. and E.O., Jr. were placed on a bus with no shoes. E.O., Jr. tried to hug his
sister, but the CBP Agents or ICE Agents separated them immediately. The bus ride was about
ten minutes long. The CBP Agents or ICE Agents then placed the children in a new immigration
detention facility with cells facing across from each other.
145. E.O., Jr. tried to talk to K.O. to tell her not worry and that she would be out of the
cells soon. K.O. asked her brother: “What happened to Mommy?”
35
146. When E.O., Jr. tried to answer, a CBP Agent or ICE Agent yelled at him and
instructed him not to talk to his own sister. Her question went unanswered.
147. K.O. and E.O., Jr. stayed at that facility for two days and two nights. The rooms
were freezing. The only blankets they had were silver thermal blankets.
148. Small children, who appeared to be as young as one or two years old, cried on the
floor. The older children tried to take care of the young, crying children. Boys and girls were
separated by something like a metal fence.
149. At one point, E.O., Jr. looked over at his sister K.O., and she was crying. E.O., Jr.
put his hands together and put his head on his hands, pretending to sleep, to try to help soothe
K.O. and stop her from crying. But E.O., Jr. felt so helpless that he too started crying.
150. When the children cried, some CBP Agents or ICE Agents insulted them in
Spanish, including by shouting at them: “Shut up, you trash!”
151. Once, a CBP Agent or ICE Agent came up to E.O., Jr. and asked how old he was.
When he replied that he was seventeen years old, the CBP Agent or ICE Agent said “you are
lying” and kicked E.O., Jr. about ten times in the back.
152. The CBP Agents or ICE Agents woke K.O. up to take a shower by pulling her
ponytail.
153. Border patrol agents told E.O., Jr. that he was to be removed from this
immigration detention facility first. He told the CBP Agents or ICE Agents that he had to wait
for his sister. The CBP Agents or ICE Agents said that if he stayed, he would “lose his
opportunity.” E.O., Jr. thought they meant that he would lose his opportunity to be reunited with
his father, E.O. E.O., Jr. still refused to leave, unwilling to leave his sister alone. The next night,
36
the CBP Agents or ICE Agents made E.O., Jr. bathe in cold water, change his clothes, and
prepare to leave.
154. The CBP Agents or ICE Agents took both E.O., Jr. and K.O. to another
immigration detention facility. When E.O., Jr. asked where his mother was, the CBP Agents or
ICE Agents told him they had deported his mother.
155. E.O., Jr. and K.O. were placed on an airplane to Michigan, seated separately.
They arrived at about 1:00 a.m., and they were told they were going to separate locations. E.O.,
Jr. asked them to allow him to stay with his sister, but CBP Agents, ICE Agents, or ORR
Personnel told E.O., Jr. not to worry and assured him that they would bring K.O. back in the
morning.
156. As soon as the siblings were separated, K.O. started to cry. She was taken to a
foster family with three other children who had been forcibly separated from their parents at the
border. There were two six-year-olds and an eight-year-old.
157. E.O., Jr. stayed in a facility with about eighteen other boys. He attended school in
the morning and K.O. was able to see her brother at school. E.O., Jr. was told by ORR Personnel
that getting out of the facility would be a terrible, long process.
158. K.O. and E.O., Jr. did not know where their mother was. It bothered E.O., Jr. so
terribly that he could not sleep or eat.
159. About five days later, E.O., Jr. was able to call his father, E.O., and tell him where
he was being held.
160. E.O., Jr. was told that he had to be vaccinated again, even though he had already
been vaccinated, and he was given ten shots by a medical professional and ORR Personnel. K.O.
37
was also vaccinated and was given nine shots. L.J. was not there to comfort her daughter during
this process.
161. K.O. and E.O., Jr. were finally released and reunited with their father in
Massachusetts on June 19, 2018.
162. L.J. spent about eight days in the facility where border patrol took her after her
children were taken from her. L.J. recalls speaking with what she believes is an asylum officer
on the phone during this time. She was not allowed to call her husband, E.O., for about nine
days. Then she was taken to what she believes is the T. Don Hutto Residential Center, an
immigration detention facility, in Taylor, Texas, where she was detained for several weeks.
163. L.J. was told by what she believes is a deportation officer in mid-June 2018 that
she had been found to have had a credible fear of persecution if she were forced to return to
Guatemala.
164. L.J. was finally released on June 26, 2018 and reunited with her family in
Massachusetts after that. They had been separated for about five weeks at that point. Needless
to say, the family was relieved and joyful.
165. But the trauma caused by this forcible separation endures. The horrible, painful
memories still torment K.O., E.O., Jr., L.J. and E.O. K.O. wakes up in the middle of the night,
crying, wondering if that mean person will pull her hair again. Whenever L.J. leaves a room,
K.O. follows her mother and fears that she will abandon her again.
166. The guilt that L.J. feels as a mother is overwhelming. She feels as if she was
unable to protect her children. The trauma that K.O., E.O., Jr., L.J., and E.O. experienced was
life-altering, and it will continue to affect their mental and emotional well-being for years to
come.
38
167. The ordeal that K.O. and E.O., Jr. endured is typical of the experiences suffered
by the putative class members.
Individual Plaintiff’s Allegations – C.J.
168. F.C. and his eleven-year-old son, C.J., entered the United States in El Paso, Texas
on June 17, 2018 seeking asylum in this country. They came to the United States for asylum
because organized crime members, who worked in concert with the police in Guatemala,
extorted F.C. for money, threatened to kill F.C. and his family, and left them fearing for their
lives.
169. When they crossed the United States border, F.C. saw a CBP vehicle and walked
towards it. F.C. was holding C.J.’s hand. The CBP Agents handcuffed F.C., and both he and C.J.
were driven to a border patrol immigration detention center.
170. When F.C. and C.J. arrived at the detention center, CBP Agents told F.C. that he
would be separated from C.J. F.C. felt “devastated” and “destroyed” upon hearing that CBP
Agents planned to separate his son from him. F.C. spent two days with C.J. trying to be brave
for his son. Internally, F.C. kept thinking that despite his efforts, his son was going to be
kidnapped. C.J. cried a lot. F.C. tried to calm him down and told him that F.C. would ask the
CBP Agents to let them stay together.
171. The detention facility was very cold. The air conditioner was on the highest
setting at all times. F.C. and his son slept on the floor and were given one aluminum blanket to
share. F.C. stayed up trying to cover C.J. with his arms. C.J. shivered and constantly
complained about the cold.
172. C.J. also complained of hunger. Both days F.C. and C.J. were given one burrito
to share, twice a day. F.C. asked for more food to share with C.J. The CBP Agents denied them
39
additional food, saying: “You’re not here to get fat.” When F.C. asked for water they told him to
use the sink. This was difficult because there were approximately fifteen people, including six
children, and one bathroom.
173. On June 20, 2018, the CBP Agents woke up F.C. and C.J. in the middle of the
night and took them to a processing area. They told F.C. that C.J. would stay there while F.C.
went to what he believes to be criminal court. The CBP Agents told F.C. that he would be back
after criminal court. They told C.J. they would be putting him in another room until F.C.
returned. F.C. assumed this would take a very short period of time, and F.C. would soon see C.J.
174. Instead, F.C. did not see his son again until July 26, 2018—36 days later.
175. The CBP Agents handcuffed F.C., took him away, and never returned him to the
immigration detention facility where he was held with C.J. F.C. was very worried about C.J.
F.C. was held for nine days in a place that he believes was a federal facility because some
detainees there were not immigrants.
176. F.C. asked anyone who would listen: “Where is C.J.?” “Where has he been
taken?” “How do I get in touch with him?”
177. F.C. knew how scared C.J. must be and F.C. felt heartbroken that he had not
protected his son, especially because that was all F.C. had wanted to do by coming to the United
States.
178. When F.C. went to criminal court he was told that he was there because he had
committed the federal crime of coming into the country illegally. The judge asked F.C. if he
wanted to leave C.J. in the United States or take C.J. with him if deported. F.C. felt sheer terror
at being deported without C.J. F.C. told the judge that no matter what they decided to do, F.C.
wanted C.J. to be with him.
40
179. F.C. moved next to a second criminal facility where he stayed for approximately
two weeks. After leaving the criminal facility, F.C. was moved to multiple immigration
detention facilities. At every detention center, F.C. asked about C.J. F.C. persisted until an
employee from one of the detention centers finally arranged for him to speak to C.J. F.C. was
never provided an opportunity to be reunited with C.J. after he was transferred back to civil
immigration custody.
180. When F.C. finally spoke to C.J. it was only for five minutes and C.J. cried very
hard the entire time. F.C. told C.J. not to think about the situation and to play and make new
friends. The phone call was heartbreaking because C.J. wanted to know when he would see his
father again, but F.C. did not have an answer.
181. On that same day, an employee at the facility asked again if F.C. would authorize
C.J. to stay behind if F.C. were to be deported. F.C. said no.
182. At some point the CBP Agents turned F.C. over to ICE Agents. F.C. was very
afraid that the ICE Agents would deport C.J. without F.C. F.C. was worried that C.J. would
grow up alone with no family. F.C. constantly worried about how C.J. was being treated and
whether he was safe.
183. C.J. was held at a facility with many other children similarly separated from their
parents. This separation deeply affected C.J.
184. While at the facility, another child hit C.J. in the eye. After C.J. told staff about
the assault, he noticed that the child who assaulted him went to see a psychologist or mental
health doctor, and then C.J. never saw the child again. That incident made C.J. feel deep fear,
because he thought that if he made a mistake, he might disappear too.
41
185. At the facility, C.J. was sad and cried a lot because he missed his father. C.J.
kept asking the staff when he would see his father again. Although C.J. was told that it would be
“soon,” the days went by without any change. Eventually, C.J. came to believe he would never
see his father again and would be at the facility for many years.
186. C.J. and F.C. were finally reunited on July 26, 2018, while at an immigration
facility in Port Isabel, Texas. While the relief and joy they both felt at seeing each other again
was overwhelming, the harm that Defendant’s employees caused to C.J. during the time that he
was separated from his father and in Defendant’s employees’ custody can never truly be
remedied.
187. F.C. tries to assure C.J. that he will be OK, that he is safe, and that F.C. will never
leave him again.
188. But C.J. now wakes up with nightmares, something that never happened before
Defendant’s employees forcibly separated him from his father. Sometimes, C.J.’s nightmares are
so bad that he falls out of bed.
189. Defendant’s forcible separation of C.J. from his father has caused extreme
emotional and psychological harm. The trauma that both C.J. and F.C. experienced was life
altering and it will continue to affect their mental and emotional well-being for years to come.
190. The ordeal that C.J. endured is typical of the experiences suffered by the putative
class members.
Class Allegations
191. This action is properly maintained as a class action under Fed. R. Civ. P. 23(a)
and 23(b)(1) and 23(b)(3).
42
192. Plaintiffs seek to represent a nationwide class consisting of all minor children
nationwide who: enter or have entered the United States at or between designated ports of entry;
have been or will be separated from a parent or parents by DHS or its sub-agencies (CBP, ICE,
or USCIS); and detained in ORR custody, ORR foster care, or CBP or ICE custody without a
demonstration in a hearing that the parent is unfit or presents a danger to the child.
193. The class is so numerous that joinder of all members is impracticable. While the
exact number of class members is unknown at this time and can only be ascertained through
appropriate discovery, based on information disclosed in another pending case and recent
government and press reports, the class consists of thousands of children. See, e.g., Ms. L. v.
ICE, No. 18-CV -0428-DMS-MDD, Joint Status Report (July 26, 2018) (Doc. No. 159); U.S.
Dept. of Health & Human Services, office of Inspector General, Separated Children Placed in
office of Refugee Resettlement Care, OEI-BL-18-00511 (Jan. 2019), available at
https://oig.hhs.gov/oei/reports/oei-BL-18-00511.pdf.
194. The members of the class are readily ascertainable through Defendant’s records.
195. There are questions of law or fact common to the class. The class members have
all been subjected to the Defendant’s forcible separation of migrant children from their parents
while in immigration detention, through abusive and unconscionable measures, and the refusal of
Defendant to reunite the children with their parents for no legitimate reason. All class members
have been forcibly separated without an adequate hearing regarding separation. The common
questions of law include whether Defendant’s forcible family separation and prolonged seizure
constitute claims under the FTCA, including intentional infliction of emotional distress,
negligent infliction of emotional distress, false imprisonment, false arrest, assault and battery,
43
negligent supervision, tortious interference with the parent-child relationship, and loss of
parental consortium.
196. Plaintiffs’ claims or defenses are typical of the claims or defenses of the Class.
197. Plaintiffs have no interests that are averse to or which irreconcilably conflict with
the other members of the class.
198. Plaintiffs are represented by counsel experienced in class action litigation and, in
particular, in litigating civil rights claims involving constitutional and statutory violations, tort
claims, and immigration matters. Plaintiffs’ counsel has adequate resources to commit to
representing the class.
199. Plaintiffs will therefore fairly and adequately protect the interests of the class.
200. This action is properly maintained as a class action under Fed. R. Civ. P. 23(b)(1)
because prosecuting separate actions by or against individual class members would create a risk
of: (a) inconsistent or varying adjudications with respect to individual class members that would
establish incompatible standard of conduct for the party opposing the class; or (b) adjudications
with respect to individual class members that, as a practical matter, would be dispositive of the
interests of the other members not parties to the individual adjudications or would substantially
impair or impede their ability to protect their interests.
201. This action is also properly maintained as a class action under Fed. R. Civ. P.
23(b)(3) because the questions of law or fact common to the members of the class predominate
over any questions affecting only individual members and a class action is superior to other
available methods for the fair and efficient adjudication of this controversy.
COUNT I
Intentional Infliction of Emotional Distress
44
202. Plaintiffs incorporate all of the preceding allegations in this Complaint as if fully
set forth here.
203. Defendant intended to inflict emotional distress, or it knew or should have known
that emotional distress was the likely result of its conduct, when it forcibly separated Plaintiffs
and other class members from their parents while in civil immigration detention for punitive
purposes, threatened to maintain the separation indefinitely, subjected the children to appalling
and abusive conditions, and prevented the children from reliable and ready access to means of
communicating with their parents and one another, among other things as alleged in detail above.
204. The Defendant’s conduct was extreme and outrageous, beyond all possible
bounds of decency, and utterly intolerable in a civilized community.
205. As a direct and proximate cause of Defendant’s conduct, Plaintiffs and class
members suffered emotional harm and distress of a nature so severe that no reasonable person
could be expected to endure it. Plaintiffs and other class members are entitled to recover any and
all economic, non-economic, punitive, and exemplary damages available under the law, plus
interest and costs.
206. Plaintiffs have exhausted administrative remedies by providing written
notification of their claims to the appropriate federal agencies by certified mail more than six
months ago. Exhibit 8, Oct. 9, 2018 Letter from D. Vicinanzo to Federal Agencies (with
pseudonyms); Exhibit 9, March 13, 2020 Letter from D. Vicinanzo to Federal Agencies (with
Plaintiffs’ full names, which have been redacted for filing).
COUNT II
Negligent Infliction of Emotional Distress
45
set forth here.
208. At all times relevant to the allegations in this Complaint, and by virtue of the
special relationship existing and created amongst and between Plaintiffs and Defendant by and
through their voluntary undertakings and the common law, Defendant owed Plaintiffs a duty of
care.
209. As set forth more particularly in the preceding paragraphs, by the various acts and
omissions of Defendant and breaches of duties of care as described therein, Defendant
unreasonably subjected Plaintiffs and class members to a foreseeable risk of harm by forcibly
separating Plaintiffs and other class members from their parents while in civil immigration
detention for punitive purposes, threatening to maintain the separation indefinitely, subjecting
the children to appalling and abusive conditions, and preventing the children from reliable and
ready access to means of communicating with their parents and one another, among other things
as alleged in detail above.
210. As a direct result of the foregoing, Plaintiffs and class members suffered severe
mental and emotional harm, distress, and bodily injury, which physically manifested itself
through objective physical symptoms of mental and emotional harm.
211. The above-referenced acts and omissions of Defendant were wanton, malicious,
oppressive, and were undertaken with reckless indifference and disregard of the consequences,
reckless indifference and disregard for the well-being of Plaintiffs and other class members,
warranting an assessment and award of punitive and exemplary damages.
212. As a direct and proximate cause and result of the Defendant’s negligence and
breaches of duties of care, Plaintiffs and other class members were caused to suffer and continue
46
to suffer harm and damages, including, but not limited to, mental and emotional distress, bodily
injury, and other legally recognized compensatory damages. Plaintiffs and other class members
are entitled to recover any and all economic, non-economic, punitive, and exemplary damages
available under the law, plus interest and costs.
months ago. Exhibit 8, Oct. 9, 2018 Letter from D. Vicinanzo to Federal Agencies; Exhibit 9,
March 13, 2020 Letter from D. Vicinanzo to Federal Agencies (with Plaintiffs’ full names,
which have been redacted for filing).
COUNT III
False Imprisonment
set forth here.
omissions of John Doe CBP Agents, John Doe ICE Agents, and John Doe ORR Personnel,
Defendant caused the unlawful and unprivileged restraint of Plaintiffs’ and other class members’
personal liberty and right to family integrity while in civil immigration detention by, among
other acts and omissions forcibly separating them from their parents and one another.
47
warranting an assessment of and award of punitive and exemplary damages.
217. As a direct and proximate cause and result of their false imprisonment, Plaintiffs
and other class members were caused to suffer and continue to suffer harm and damages,
including, but not limited to, mental and emotional distress, bodily injury, and other legally
recognized compensatory damages. Plaintiffs and other class members are entitled to recover
any and all economic, non-economic, punitive, and exemplary damages available under the law,
plus interest and costs.
COUNT IV
False Arrest
set forth here.
Defendant caused the false arrest of Plaintiffs and other class members while in civil
immigration detention by, among other acts and omissions forcibly separating them from their
parents and one another.
48
222. As a direct and proximate cause and result of their false arrest, Plaintiffs and other
class members were caused to suffer and continue to suffer harm and damages, including, but not
limited to, mental and emotional distress, bodily injury, and other legally recognized
compensatory damages. Plaintiffs and other class members are entitled to recover any and all
economic, non-economic, punitive, and exemplary damages available under the law, plus interest
and costs.
COUNT V
Assault and Battery
224. The Plaintiffs incorporate all of the preceding allegations in this Complaint as if
fully set forth here.
Defendant intended to cause a reasonable apprehension of imminent and harmful contact and/or
49
actually made intentional and harmful or offensive contact with Plaintiffs and other class
members.
227. As a direct and proximate cause and result of the Defendant’s assault and/or
battery, Plaintiffs and other class members were caused to suffer and continue to suffer harm and
damages, including, but not limited to, mental and emotional distress, bodily injury, and other
legally recognized compensatory damages. Plaintiffs and other class members are entitled to
recover any and all economic, non-economic, punitive, and exemplary damages available under
the law, plus interest and costs.
COUNT VI
Negligent Supervision
set forth here.
50
230. At all times material, the CBP Agents, ICE Agents, and ORR Personnel were
under the direction, supervision, and control of Defendant, either directly or through its agents.
231. At all times material, Defendant, either directly or through its agents, negligently
supervised the CBP Agents, ICE Agents, and ORR Personnel when Defendant knew or should
have known that failure to appropriately supervise the CBP Agents, ICE Agents, and ORR
Personnel in their performance of their duties or intervene to stop the forcible separation of
families described in the preceding paragraphs would likely result in harm and damages.
warranting an assessment and award of punitive and exemplary damages.
233. As a direct and proximate cause and result of the Defendant’s negligence and
breaches of duties of care, Plaintiffs and other class members were caused to suffer and continue
to suffer harm and damages, including, but not limited to, mental and emotional distress, bodily
injury, and other legally recognized compensatory damages. Plaintiffs and other class members
are entitled to recover any and all economic, non-economic, punitive, and exemplary damages
available under the law, plus interest and costs.
COUNT VII
51
Tortious Interference with Parent-Child Relationship
set forth here.
236. Plaintiffs and class members have a right to establish or maintain a parental or
custodial relationship with their parents.
237. As set forth more particularly in the preceding paragraphs, Defendant
intentionally interfered with the parental or custodial relationship between the Plaintiffs and class
members and their parents by forcibly separating them from one another and preventing the
children from returning to the Plaintiffs’ parents and class members’ parents, all without
privilege or consent.
omissions of Defendant and breaches of duties of care as described therein, Defendant has
caused Plaintiffs and class members to lose the society, affection, and companionship of their
parents and suffer harm and damages, including, but not limited to, mental and emotional
distress, bodily injury, and other legally recognized compensatory damages. Plaintiffs and other
class members are entitled to recover any and all economic, non-economic, punitive, and
exemplary damages available under the law, plus interest and costs.
239. Plaintiffs have exhausted their administrative remedies by providing written
COUNT VIII
52
Loss of Parental Consortium
set forth here.
omissions of Defendant and breaches of duties of care as described therein, Defendant has
caused Plaintiffs and class members to lose the society, affection, and companionship of their
parents and suffer harm and damages, including, but not limited to, mental and emotional
distress, bodily injury, and other legally recognized compensatory damages. Plaintiffs and other
class members are entitled to recover any and all economic, non-economic, punitive, and
exemplary damages available under the law, plus interest and costs.
242. Plaintiffs have exhausted their administrative remedies by providing written
WHEREFORE, Plaintiffs K.O. and E.O., Jr., by and through their parents and next friends, E.O.
and L.J, and C.J, by and through his father and next friend F.C., on behalf of themselves and all
others similarly situated, respectfully request that the Court grant the following relief:
A. Enter judgment declaring this action to be a class action under Fed. R. Civ. P. 23
and certifying Plaintiffs K.O. and E.O., Jr., by and through their parents and next
friends, E.O. and L.J, and C.J, by and through his father and next friend F.C., as
the class representatives and Plaintiffs’ counsel as class counsel;
B. Enter judgment in favor of Plaintiffs and the class, and against Defendant, on all
counts of the Complaint;
53
C. Enter an order requiring the Defendant to establish a fund in an amount to be

determined at trial for the mental health treatment and ongoing mental health
monitoring of the class members;
D. Award to Plaintiffs and the class all economic, non-economic, punitive and
exemplary damages in an amount to be determined at trial sufficient to
compensate the class for their injuries, including, but not limited to, emotional
pain and suffering, mental anguish, embarrassment, and humiliation;
E. Award to Plaintiffs and the class punitive or exemplary damages as permitted by

law;
F. Award to Plaintiffs and the class their attorneys’ fees, costs, and interest as
permitted by law; and
G. Grant such further and other relief as may be just and proper.
PLAINTIFFS ON BEHALF OF THEMSELVES AND

ALL OTHERS SIMILARLY SITUATED
DEMAND A TRIAL BY JURY ON ALL CLAIMS AND ISSUES SO TRIABLE
Respectfully submitted,
K.O. and E.O., Jr., by and through their parents and

next friends, E.O. and L.J.; and C.J, by and through
his father and next friend F.C.; each individually
and on behalf of all others similarly situated, on
behalf of themselves and all others similarly
situated,
By their attorneys,
/s/ Howard M. Cooper

Howard M. Cooper (BBO # 543842)
Joseph M. Cacace (BBO # 672298)
TODD & WELD LLP
One Federal Street, 27th Floor
Boston, MA 02110
(617) 720-2626
[email protected]
[email protected]
Susan B. Church (BBO # 639306)

Derege Demissie (BBO # 637544)
Heather Yountz (BBO # 669770)
Brittanie Allen (BBO # 697561)
DEMISSIE & CHURCH
54
929 Massachusetts Avenue, Suite 01

Cambridge, MA 02139
(617) 319-2399
[email protected]
[email protected]
Jeff Goldman (BBO # 548056)

THE LAW OFFICES OF JEFF GOLDMAN LLP
125 Washington Street, Ste. 204
Salem, MA 01970
(781) 704-3897
[email protected]
David A. Vicinanzo (pro hac vice forthcoming)

Nathan P. Warecki (BBO# 687547)
Lauren Maynard (BBO# 698742)
NIXON PEABODY LLP
53 State Street, Exchange Place
Boston, MA 02109
(617) 345-1000
[email protected]
[email protected]
[email protected]
Iván Espinoza-Madrigal (pro hac vice forthcoming)
Oren N. Nimni (BBO # 691821)
Lawyers for Civil Rights
61 Batterymarch Street, 5th Floor
Boston, MA 02110
(617) 988-0624
[email protected]
[email protected]
Dated: November 9, 2020
55
Case
Case 4:20-cv-12015-TSHDocument
2:18-cv-00939-MJP Document 1-1Filed
1-1 Filed 11/09/20Page
06/26/18 Page 1 of
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8/12/96
CENTER FOR HUMAN RIGHTS & CONSTITUTIONAL LAW
Carlos Holguin
Peter A. Schey
256 South Occidental Boulevard
Los Angeles, CA 90057
(213) 388-8693
NATIONAL CENTER FOR YOUTH LAW D CO JRT \

U.S.flo~T1'1~
Alice Bussiere
James Morales
114 Sansome Street, Suite 905 J~~ \ 1 \991
San Francisco, CA 94104
( 415) 453-3307
Attorneys for Plaintiffs
Michael Johnson
Assistant United States Attorney
300 N. Los Angeles St., Rm. 7516
Allen Hausman
Office of Immigration Litigation
Civil Division
U.S. Department of Justice
P.O. Box 878, Ben Franklin Station
Washington, DC 20044
Attorneys for Defendants
Additional counsel listed next page
UNITED STA TES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA
JENNY LISETTE FLORES, et al., ) Case No. CV 85-4544-RJK(Px)

)
Plaintiffs, ) Stipulated Settlement
) Agreement
-vs- )
)
JANET RENO, Attorney General )
of the United States, et al., )
)
Defendants. )
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Plaintiffs' Additional Counsel

\
ACLU FOUNDATION OF SOUTIIERN CALIFORNIA
Mark Rosenbaum
Sylvia Argueta
1616 Beverly Boulevard
Telephone: (213) 977-9500
STREICH LANG
Susan G. Boswell
Jeffrey Willis
1500 Bank of America Plaza
33 North Stone Avenue
Tucson, AZ 85701
Telephone: (602) 770-8700
Defendants' Additional Counsel:
Arthur Strathem
Mary Jane Candaux
Office of the General Counsel
U.S. Immigration & Naturalization Service
425 I St. N. W.
I I I
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STIPULATED SETTLEMENT AGREEMENT
WHEREAS, Plaintiffs have filed this action against Defendants, challenging, inter alia, the
constitutionality of Defendants' policies, practices and regulations regarding the detention and release of
unaccompanied minors taken into the custody of the Immigration and Naturalization Service (INS) in
the Western Region; and
WHEREAS, the district court has certified this case as a class action on behalf of all minors
apprehended by the INS in the Western Region of the United States; and
WHEREAS, this litigation has been pending for nine (9) years, all parties have conducted
extensive discovery, and the United States Supreme Court has upheld the constitutionality of the
challenged INS regulations on their face and has remanded for further proceedings consistent with its
opinion; and
WHEREAS, on November 30, 1987, the parties reached a settlement agreement requiring that
minors in INS custody in the Western Region be housed in facilities meeting certain standards,
including state standards for the housing and care of dependent children, and Plaintiffs' motion to
enforce compliance with that settlement is currently pending before the court; and
WHEREAS, a trial in this case would be complex, lengthy and costly to all parties concerned,
and the decision of the district court would be subject to appeal by the losing parties with the final
outcome uncertain; and
WHEREAS, the parties believe that settlement of this action is in their best interests and best
serves the interests of justice by avoiding a complex, lengthy and costly trial, and subsequent appeals
which could last several more years;
NOW, THEREFORE, Plaintiffs and Defendants enter into this Stipulated Settlement Agreement
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(the Agreement), stipulate that it constitutes a full and complete resolution of the issues raised in this
action, and agree to the following:
I DEFINITIONS
As used throughout this Agreement the following definitions shall apply:
1. The tenn "party" or "parties" shall apply to Defendants and Plaintiffs. As the term applies to
Defendants, it shall include their agents, employees, contractors and/or successors in office. As the
term applies to Plaintiffs, it shall include all class members.
2. The term "Plaintiff' or "Plaintiffs" shall apply to the named plaintiffs and all class members.
3. The term "class member" or "class members" shall apply to the persons defined in Paragraph
10 below.
4. The term "minor" shall apply to any person under the age of eighteen (18) years who is
detained in the legal custody of the INS. This Agreement shall cease to apply to any person who has
reached the age of eighteen years. The term "minor" shall not include an emancipated minor or an
individual who has been incarcerated due to a conviction for a criminal offense as an adult. The INS
shall treat all persons who are under the age of eighteen but not included within the definition of
"minor" as adults for all purposes, including release on bond or recognizance.
5. The term "emancipated minor" shall refer to any minor who has been determined to be
emancipated in an appropriate state judicial proceeding.
6. The term "licensed program" shall refer to any program, agency or organization that is
licensed by an appropriate State agency to provide residential, group, or foster care services for
dependent children, including a program operating group homes, foster homes, or facilities for special
needs minors. A licensed program must also meet those standards for licensed programs set forth in
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Exhibit 1 attached hereto. All homes and facilities operated by licensed programs, including facilities
for special needs minors, shall be non-secure as required under state law; provided, however, that a
facility for special needs minors may maintain that level of security permitted under state law which is
necessary for the protection of a minor or others in appropriate circumstances, e.g., cases in which a
minor has drug or alcohol problems or is mentally ill. The INS shall make reasonable efforts to provide
licensed placements in those geographical areas where the majority of minors are apprehended, such as
southern California, southeast Texas, southern Florida and the northeast corridor.
7. The term "special needs minor" shall refer to a minor whose mental and/or physical
condition requires special services and treatment by staff. A minor may have special needs due to drug
or alcohol abuse, serious emotional disturbance, mental illness or retardation, or a physical condition or
chronic illness that requires special services or treatment. A minor who has suffered serious neglect or
abuse may be considered a minor with special needs if the minor requires special services or treatment
as a result of the neglect or abuse. The INS shall assess minors to detennine if they have special needs
and, if so, shall place such minors, whenever possible, in licensed programs in which the INS places
children without special needs, but which provide services and treatment for such special needs.
8. The tenn "medium security facility" shall refer to a facility that is operated by a program,
agency or organization licensed by an appropriate State agency and that meets those standards set forth
in Exhibit I attached hereto. A medium security facility is designed for minors who require close
supervision but do not need placement in juvenile correctional facilities. It provides 24-hour awake
supervision, custody, care, and treatment. It maintains stricter security measures, such as intensive staff
supervision, than a facility operated by a licensed program in order to control problem behavior and to
prevent escape. Such a facility may have a secure perimeter but shall not be equipped internally with
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major restraining construction or procedures typically associated with correctional facilities.
II SCOPE OF SETTLEMENT, EFFECTIVE DATE, AND PUBLICATION
9. This Agreement sets out nationwide policy for the detention, release, and treatment of minors
in the custody of the INS and shall supersede all previous INS policies that are inconsistent with the
terms of this Agreement. This Agreement shall become effective upon final court approval, except that
those terms of this Agreement regarding placement pursuant to Paragraph 19 shall not become effective
until all contracts under the Program Announcement referenced in Paragraph 20 below are negotiated
and implemented. The INS shall make its best efforts to execute these contracts within 120 days after
the court1s final approval of this Agreement. However, the INS will make reasonable efforts to comply
with Paragraph 19 prior to full implementation of all such contracts. Once all contracts under the
Program Announcement referenced in Paragraph 20 ·have been implemented, this Agreement shall
supersede the agreement entitled Memorandum of Understanding Re Compromise of Class Action:
Conditions of Detention (hereinafter "MOU"), entered into by and between the Plaintiffs and
Defendants and filed with the United States District Court for the Central District of California on
November 30, 1987, and the MOU shall thereafter be null and void. However, Plaintiffs shall not
institute any legal action for enforcement of the MOU for a six (6) month period commencing with the
final district court approval of this Agreement, except that Plaintiffs may institute enforcement
proceedings if the Defendants have engaged in serious violations of the MOU that have caused
irreparable harm to a class member for which injunctive relief would be appropriate. Within 120 days
of the final district court approval of this Agreement, the INS shall initiate action to publish the relevant
and substantive terms of this Agreement as a Service regulation. The final regulations shall not be
inconsistent with the terms of this Agreement. Within 30 days of final court approval of this
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Agreement, the INS shall distribute to all INS field offices and sub-offices instructions regarding the
processing, treatment, and placement of juveniles. Those instructions shall include, but may not be
limited to, the provisions summarizing the terms of this Agreement, attached hereto as Exhibit 2.
III CLASS DEFINITION
I 0. The certified class in this action shall be defined as follows: "All minors who are detained
in the legal custody of the INS."
IV STATEMENTS OF GENERAL APPLICABILITY
11. The INS treats, and shall continue to treat, all minors in its custody with dignity, respect
and special concern for their particular vulnerability as minors. The INS shall place each detained
minor in the least restrictive setting appropriate to the minor's age and special needs, provided that such
setting is consistent with its interests to ensure the minor's timely appearance before the INS and the
immigration courts and to protect the minor's well-being and that of others. Nothing herein shall
require the INS to release a minor to any person or agency whom the INS has reason to believe may
harm or neglect the minor or fail to present him or her before the INS or the immigration courts when
requested to do so.
V PROCEDURES AND TEMPORARY PLACEMENT FOLLOWING ARREST
12.A. Whenever the INS takes a minor into custody, it shall expeditiously process the minor
and shall provide the minor with a notice of rights, including the right to a bond redetermination hearing
if applicable. Following arrest, the INS shall hold minors in facilities that are safe and sanitary and that
are consistent with the INS's concern for the particular vulnerability of minors. Facilities will provide
access to toilets and sinks, drinking water and food as appropriate, medical assistance if the minor is in
need of emergency services, adequate temperature control and ventilation, adequate supervision to
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protect minors from others, and contact with family members who were arrested with the minor. The
INS will segregate unaccompanied minors from unrelated adults. Where such segregation is not
immediately possible, an unaccompanied minor will not be detained with an unrelated adult for more
than 24 hours. If there is no one to whom the INS may release the minor pursuant to Paragraph 14, and
no appropriate licensed program is immediately available for placement pursuant to Paragraph 19, the
minor may be placed in an INS detention facility, or other INS-contracted facility, having separate
accommodations for minors, or a State or county juvenile detention facility. However, minors shall be
separated from delinquent offenders. Every effort must be taken to ensure that the safety and
well-being of the minors detained in these facilities are satisfactorily provided for by the staff. The INS
will transfer a minor from a placement under this paragraph to a placement under Paragraph 19, (i)
within three (3) days, if the minor was apprehended in an INS district in which a licensed program is
located and has space available; or (ii) within five (5) days in all other cases; except:
1. as otherwise provided under Paragraph 13 or Paragraph 21;
2. as otherwise required by any court decree or court-approved settlement;
3. in the event of an emergency or influx of minors into the United States, in which case
the INS shall place all minors pursuant to Paragraph 19 as expeditiously as possible; or
4. where individuals must be transported from remote areas for processing or speak
unusual languages such that the INS must locate interpreters in order to complete
processing, in which case the INS shall place all such minors pursuant to Paragraph 19
within five (5) business days.
B. For purposes of this paragraph, the term "emergency" shall be defined as any act or event
that prevents the placement of minors pursuant to Paragraph 19 within the time frame provided. Such
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emergencies include natural disasters (e.g., earthquakes, hurricanes, etc.), facility fires, civil
disturbances, and medical emergencies (e.g., a chicken pox epidemic among a group of minors). The
term "influx of minors into the United States" shall be defined as those circumstances where the INS
has, at any given time, more than l 30 minors eligible for placement in a licensed program under
Paragraph I9, including those who have been so placed or are awaiting such placement.
C. In preparation for an "emergency" or "influx," as described in Subparagraph B, the INS shall
have a written plan that describes the reasonable efforts that it will take to place all minors as
expeditiously as possible. This plan shall include the identification of 80 beds that are potentially
available for INS placements and that are licensed by an appropriate State agency to provide residential,
group, or foster care services for dependent children. The plan, without identification of the additional
beds available, is attached as Exhibit 3. The [NS shall not be obligated to fund these additional beds on
an ongoing basis. The INS shall update this listing of additional beds on a quarterly basis and provide
Plaintiffs' counsel with a copy of this listing.
13. If a reasonable person would conclude that an alien detained by the fNS is an adult despite
his claims to be a minor, the INS shall treat the person as an adult for all purposes, including
confinement and release on bond or recognizance. The INS may require the alien to submit to a
medical or dental examination conducted by a medical professional or to submit to other appropriate
procedures to verify his or her age. If the INS subsequently determines that such an individual is a
minor, he or she will be treated as a minor in accordance with this Agreement for all purposes.
VI GENERAL POLICY FAVO RING RELEASE
14. Where the lNS determines that the detention of the minor is not required either to secure his
or her timely appearance before the INS or the immigration court, or to ensure the minor's safety or that
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of others, the INS shall release a minor from its custody without unnecessary delay, in the following
order of preference, to:
A. a parent;
B. a legal guardian;
C. an adult relative (brother, sister, aunt, uncle, or grandparent);
D. an adult individual or entity designated by the parent or legal guardian as capable and
willing to care for the minor's well-being in (i) a declaration signed under penalty of
perjury before an immigration or consular officer or (ii) such other document(s) that
establish(es) to the satisfaction of the INS, in its discretion, the affiant's paternity or
guardianship;
E. a licensed program willing to accept legal custody; or
F. an adult individual or entity seeking custody, in the discretion of the INS, when it
appears that there is no other likely alternative to long term detention and family
reunification does not appear to be a reasonable possibility.
15. Before a minor is released from INS custody pursuant to Paragraph 14 above, the custodian
must execute an Affidavit of Support (Form I-134) and an agreement to:
A. provide for the minor's physical, mental, and financial well-being;
B. ensure the minor's presence at all future proceedings before the INS and the immigration
court;
C. notify the INS of any change of address within five (5) days following a move;
D. in the case of custodians other than parents or legal guardians, not transfer custody of the
minor to another party without the prior written permission of the District Director;
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E. notify the INS at least five days prior to the custodian's departing the United States of
such departure, whether the departure is voluntary or pursuant to a grant of voluntary
departure or order of deportation; and
F. if dependency proceedings involving the minor are initiated, notify the INS of the
initiation of such proceedings and the dependency court of any immigration proceedings
pending against the minor.
In the event of an emergency, a custodian may transfer temporary physical custody of a minor prior to
securing permission from the INS but shall notify the INS of the transfer as soon as is practicable
thereafter, but in all cases within 72 hours. For purposes of this paragraph, examples of an
"emergency" shall include the serious illness of the custodian, destruction of the home, etc. In all cases
where the custodian, in writing, seeks written permission for a transfer, the District Director shall
promptly respond to the request.
16. The INS may terminate the custody arrangements and assume legal custody of any minor
whose custodian fails to comply with the agreement required under Paragraph 15. The INS, however,
shall not terminate the custody arrangements for minor violations of that part of the custodial agreement
outlined at Subparagraph 15.C above.
17. A positive suitability assessment may be required prior to release to any individual or
program pursuant to Paragraph 14. A suitability assessment may include such components as an
investigation of the living conditions in which the minor would be placed and the standard of care he
would receive, verification of identity and employment of the individuals offering support, interviews
of members of the household, and a home visit. Any such assessment should also take into
consideration the wishes and concerns of the minor.
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18. Upon taking a minor into custody, the INS, or the licensed program in which the minor is
placed, shall make and record the prompt and continuous efforts on its part toward family reunification
and the release of the minor pursuant to Paragraph 14 above. Such efforts at family reunification shall
continue so long as the minor is in INS custody.
VII INS CUSTODY
19. In any case in which the CNS does not release a minor pursuant to Paragraph 14, the minor
shall remain in INS legal custody. Except as provided in Paragraphs 12 or 21, such minor shall be
placed temporarily in a licensed program until such time as release can be effected in accordance with
Paragraph 14 above or until the minor's immigration proceedings are concluded, whichever occurs
earlier. All minors placed in such a licensed program remain in the legal custody of the INS and may
only be transferred or released under the authority of the INS; provided, however, that in the event of an
emergency a licensed program may transfer temporary physical custody of a minor prior to securing
permission from the INS but shall notify the INS of the transfer as soon as is practicable thereafter, but
in all cases within 8 hours.
20. Within 60 days of final court approval of this Agreement, the INS shall authorize the
United States Department of Justice Community Relations Service to publish in the Commerce
Business Daily and/or the Federal Register a Program Announcement to solicit proposals for the care of
100 minors in licensed programs.
21. A minor may be held in or transferred to a suitable State or county juvenile detention
faciJity or a secure INS detention facility, or INS-contracted facility, having separate accommodations
for minors whenever the District Director or Chief Patrol Agent determines that the minor:
A. has been charged with, is chargeable, or has been convicted of a crime, or is the subject
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of delinquency proceedings, has been adjudicated delinquent, or is chargeable with a
delinquent act; provided, however, that this provision shall not apply to any minor
whose offense(s) fall(s) within either of the following categories:
1. lsolated offenses that ( 1) were not within a pattern or practice of criminal activity
and (2) did not involve violence against a person or the use or carrying of a weapon
(Examples: breaking and entering, vandalism, DUI, etc. This list is not
exhaustive.);
ii. Petty offenses, which are not considered grounds for stricter means of detention in
any case (Examples: shoplifting, joy riding, disturbing the peace, etc. This list is
not exhaustive.);
As used in this paragraph, 11 chargeable 11 means that the INS has probable cause to
believe that the individual has committed a specified offense;
B. has committed, or has made credible threats to commit, a violent or malicious act
(whether directed at himself or others) while in INS legal custody or while in the
presence of an INS officer;
C. has engaged, while in a licensed program, in conduct that has proven to be unacceptably
disruptive of the normal functioning of the licensed program in which he or she has been
placed and removal is necessary to ensure the welfare of the minor or others, as
determined by the staff of the licensed program (Examples: drug or alcohol abuse,
stealing, fighting, intimidation of others, etc. This list is not exhaustive.);
D. is an escape~risk; or
E. must be held in a secure facility for his or her own safety, such as when the INS has
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reason to believe that a smuggler would abduct or coerce a particular minor to secure
payment of smuggling fees.
22. The term "escape-risk" means that there is a serious risk that the minor will attempt to
escape from custody. Factors to consider when determining whether a minor is an escape-risk or not
include, but are not limited to, whether:
A. the minor is currently under a final order of deportation or exclusion;
B. the minor's immigration history includes: a prior breach of a bond; a failure to appear
before the INS or the immigration court; evidence that the minor is indebted to
organized smugglers for his transport; or a voluntary departure or a previous removal
from the United States pursuant to a final order of deportation or exclusion;
C. the minor has previously absconded or attempted to abscond from INS custody.
23. The INS will not place a minor in a secure facility pursuant to Paragraph 21 ifthere are less
restrictive alternatives that are available and appropriate in the circumstances, such as transfer to (a) a
medium security facility which would provide intensive staff supervision and counseling services or (b)
another licensed program. All determinations to place a minor in a secure facility will be reviewed and
approved by the regional juvenile coordinator.
24.A. A minor in deportation proceedings shall be afforded a bond redetermination hearing
before an immigration judge in every case, unless the minor indicates on the Notice of Custody
Determination form that he or she refuses such a hearing.
B. Any minor who disagrees with the INS's determination to place that minor in a particular
type of facility, or who asserts that the licensed program in which he or she has been placed does not
comply with the standards set forth in Exhibit I attached hereto, may seek judicial review in any
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United States District Court with jurisdiction and venue over the matter to challenge that placement
determination or to allege noncompliance with the standards set forth in Exhibit 1. In such an action,
the United States District Court shall be limited to entering an order solely affecting the individual
claims of the minor bringing the action.
C. In order to permit judicial review of Defendants' placement decisions as provided in this
Agreement, Defendants shall provide minors not placed in licensed programs with a notice of the
reasons for housing the minor in a detention or medium security facility. With respect to placement
decisions reviewed under this paragraph, the standard of review for the INS' s exercise of its discretion
shall be the abuse of discretion standard of review. With respect to all other matters for which this
paragraph provides judicial review, the standard of review shall be de novo review.
D. The INS shall promptly provide each minor not released with (a) INS Form 1-770, (b) an
explanation of the right of judicial review as set out in Exhibit 6, and (c) the list of free legal services
available in the district pursuant to INS regulations (unless previously given to the minor).
E. Exhausting the procedures established in Paragraph 37 of this Agreement shall not be a
precondition to the bringing of an action under this paragraph in any United District Court. Prior to
initiating any such action, however, the minor and/or the minors' attorney shall confer telephonically or
in person with the United States Attorney's office in the judicial district where the action is to be filed,
··:.
in an effort to informally resolve the minor's complaints without the need of federal court intervention.
VIII TRANSPORTATION OF MINORS
25. Unaccompanied minors arrested or taken into custody by the INS should not be transported
by the INS in vehicles with detained adults except:
A. when being transported from the place of arrest or apprehension to an INS office, or
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8. where separate transportation would be otherwise impractical.
When transported together pursuant to Clause B, minors shall be separated from adults. The INS shall
take necessary precautions for the protection of the well-being of such minors when transported with
adults.
26. The INS shall assist without undue delay in making transportation arrangements to the INS
office nearest the location of the person or facility to whom a minor is to be released pursuant to
Paragraph 14. The INS may, in its discretion, provide transportation to minors.
IX TRANSFER OF MINORS
27. Whenever a minor is transferred from one placement to another, the minor shall be
transferred with all of his or her possessions and legal papers; provided, however, that if the minor's
possessions exceed the amount permitted normally by the carrier in use, the possessions will be shipped
to the minor in a timely manner. No minor who is represented by counsel shall be transferred without
advance notice to such counsel, except in unusual and compelling circumstances such as where the
safety of the minor or others is threatened or the minor has been determined to be an escape-risk, or
where counsel has waived such notice, in which cases notice shall be provided to counsel within 24
hours following transfer.
X MONITORING AND REPORTS
28A. An INS Juvenile Coordinator in the Office of the Assistant Commissioner for Detention
and Deportation shall monitor compliance with the terms of this Agreement and shall maintain an
up-to-date record of all minors who are placed in proceedings and remain in INS custody for longer
than 72 hours. Statistical information on such minors shall be collected weekly from all INS district
offices and Border Patrol stations. Statistical information will include at least the following: (1)
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biographical information such as each minor's name, date of birth, and country of birth, (2) date placed
in INS custody, (3) each date placed, removed or released, (4) to whom and where placed, transferred,
removed or released, (5) immigration status, and (6) hearing dates. The INS, through the Juvenile
Coordinator, shall also collect information regarding the reasons for every placement of a minor in a
detention facility or medium security facility.
B. Should Plaintiffs' counsel have reasonable cause to believe that a minor in INS legal custody
should have been released pursuant to Paragraph 14, Plaintiffs' counsel may contact the Juvenile
Coordinator to request that the Coordinator investigate the case and inform Plaintiffs' counsel of the
reasons why the minor has not been released.
29. On a semi-annual basis, until two years after the court determines, pursuant to Paragraph
31, that the INS has achieved substantial compliance with the terms of this Agreement, the INS shall
provide to Plaintiffs' counsel the information collected pursuant to Paragraph 28, as permitted by law,
and each INS policy or instruction issued to INS employees regarding the implementation of this
Agreement. In addition, Plaintiffs' counsel shall have the opportunity to submit questions, on a
semi-annual basis, to the Juvenile Coordinator in the Office of the Assistant Commissioner for
Detention and Deportation with regard to the implementation of this Agreement and the information
provided to Plaintiffs' counsel during the preceding six-month period pursuant to Paragraph 28.
Plaintiffs' counsel shall present such questions either orally or in writing, at the option of the Juvenile
Coordinator. The Juvenile Coordinator shall furnish responses, either orally or in writing at the option
of Plaintiffs' counsel, within 30 days of receipt.
30. On an annual basis, commencing one year after final court approval of this Agreement, the
INS Juvenile Coordinator shall review, assess, and report to the court regarding compliance with the
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terms of this Agreement. The Coordinator shall file these reports with the court and provide copies to
the parties, including the final report referenced in Paragraph 35, so that they can submit comments on
the report to the court. In each report, the Coordinator shall state to the court whether or not the INS is
in substantial compliance with the terms of this Agreement, and, if the INS is not in substantial
compliance, explain the reasons for the lack of compliance. The Coordinator shall continue to report on
an annual basis until three years after the court determines that the INS has achieved substantial
compliance with the terms of this Agreement.
31. One year after the court's approval of this Agreement, the Defendants may ask the court to
determine whether the INS has achieved substantial compliance with the terms of this Agreement.
XI ATTORNEY-CLIENT VISITS
32.A. Plaintiffs' counsel are entitled to attorney-client visits with class members even though
they may not have the names of class members who are housed at a particular location. All visits shall
occur in accordance with generally applicable policies and procedures relating to attorney-client visits at
the facility in question. Upon Plaintiffs' counsel's arrival at a facility for attorney-client visits, the
facility staff shall provide Plaintiffs' counsel with a list of names and alien registration numbers for the
minors housed at that facility. In all instances, in order to memorialize any visit to a minor by
Plaintiffs' counsel, Plaintiffs' counsel must file a notice of appearance with the INS prior to any
attorney-client meeting. Plaintiffs' counsel may limit any such notice of appearance to representation
of the minor in connection with this Agreement. Plaintiffs' counsel must submit a copy of the notice of
appearance by hand or by mail to the local INS juvenile coordinator and a copy by hand to the staff of
the facility.
B. Every six months, Plaintiffs' counsel shall provide the INS with a list of those attorneys who
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may make such attorney-client visits, as Plaintiffs' counsel, to minors during the following six month
period. Attorney-client visits may also be conducted by any staff attorney employed by the Center for
Human Rights & Constitutional Law in Los Angeles, California or the National Center for Youth Law
in San Francisco, California, provided that such attorney presents credentials establishing his or her
employment prior to any visit.
C. Agreements for the placement of minors in non-INS facilities shall permit attorney-client
visits, including by class counsel in this case.
D. Nothing in Paragraph 32 shall affect a minor's right to refuse to meet with Plaintiffs'
counsel. Further, the minor's parent or legal guardian may deny Plaintiffs' counsel permission to meet
with the minor.
XII FACILITY VISITS
33. In addition to the attorney-client visits permitted pursuant to Paragraph 32, Plaintiffs'
cowisel may request access to any licensed program's facility in which a minor has been placed
pursuant to Paragraph 19 or to any medium security facility or detention facility in which a minor has
been placed pursuant to Paragraphs 21 or 23. Plaintiffs' cowisel shall submit a request to visit a facility
under this paragraph to the INS district juvenile coordinator who will provide reasonable assistance to
Plaintiffs' counsel by conveying the request to the facility's staff and coordinating the visit. The rules
and procedures to be followed in connection with any visit approved by a facility under this paragraph
are set forth in Exhibit 4 attached, except as may be otherwise agreed by Plaintiffs' counsel and the
facility's staff. In all visits to any facility pursuant to this Agreement, Plaintiffs' counsel and their
associated experts shall treat minors and staff with courtesy and dignity and shall not disrupt the normal
functioning of the facility.
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XIII TRAINING
34. Within 120 days of final court approval of this Agreement, the INS shall provide
appropriate guidance and training for designated INS employees regarding the terms of this Agreement.
The lNS shall develop written and/or audio or video materials for such training. Copies of such written
and/or audio or video training materials shall be made available to Plaintiffs' counsel when such training
materials are sent to the field, or to the extent practicable, prior to that time.
XIV DISMISSAL
35. After the court has determined that the INS is in substantial compliance with this
Agreement and the Coordinator has filed a final report, the court, without further notice, shall dismiss
this action. Until such dismissal, the court shall retain jurisdiction over this action.
XV RESERVATIONOFRIGHTS
36. Nothing in this Agreement shall limit the rights, if any, of individual class members to
preserve issues for judicial review in the appeal of an individual case or for class members to exercise
any independent rights they may otherwise have.
XVI NOTICE AND DISPUTE RESOLUTION
3 7. This paragraph provides for the enforcement, in this District Court, of the provisions 0f this
Agreement except for claims brought under Paragraph 24. The parties shall meet telephonically or in
person to discuss a complete or partial repudiation of this Agreement or any alleged non-compliance
with the terms of the Agreement, prior to bringing any individual or class action to enforce this
Agreement. Notice of a claim that a party has violated the terms of this Agreement shall be served on
plaintiffs addressed to:
I I I
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CENTER FOR HUMAN RIGHTS & CONSTITUTIONAL LAW

Carlos Holguin
Peter A. Schey
256 South Occidental Boulevard
NATIONAL CENTER FOR YOUTH LAW

Alice Bussiere
James Morales
114 Sansome Street, Suite 905
San Francisco, CA 94104
and on Defendants addressed to:
Michael Johnson
Assistant United States Attorney
300 N. Los Angeles St., Rm. 7516
Allen Hausman
Office of Immigration Litigation
Civil Division
U.S. Department of Justice
P.O. Box 878, Ben Franklin Station
XVII PUBLICITY
38. Plaintiffs and Defendants shall hold a joint press conference to announce this Agreement.
The INS shall send copies of this Agreement to social service and voluntary agencies agreed upon by
the parties, as set forth in Exhibit 5 attached. The parties shall pursue such other public dissemination
of information regarding this Agreement as the parties shall agree.
XVIII ATTORNEYS' FEES AND COSTS
39. Within 60 days of final court approval of this Agreement, Defendants shall pay to Plaintiffs
the total sum of $374, I 10.09, in full settlement of all attorneys' fees and costs in this case.
I I I
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XIX TERMINATION
40. All terms of this Agreement shall terminate the earlier of five years after the date of final
court approval of this Agreement or three years after the court determines that the INS is in substantial
compliance with this Agreement, except that the INS shall continue to house the general population of
minors in INS custody in facilities that are licensed for the care of dependent minors.
XX REPRESENTA TIONS AND WARRANTY
41. Counsel for the respective parties, on behalf of themselves and their clients, represent that
they know of nothing in this Agreement that exceeds the legal authority of the parties or is in violation
of any law. Defendants' counsel represent and warrant that they are fully authorized and empowered to
enter into this Agreement on behalf of the Attorney General, the United States Department of Justice,
and the Immigration and Naturalization Service, and acknowledge that Plaintiffs enter into this
Agreement in reliance on such representation. Plaintiffs' counsel represent and warrant that they are
fully authorized and empowered to enter into this Agreement on behalf of the Plaintiffs, and
acknowledge that Defendants enter into this Agreement in reliance on such representation. The
undersigned, by their signatures on behalf of the Plaintiffs and Defendants, warrant that upon execution
of this Agreement in their representative capacities, their principals, agents, and successors of such
principals and agents shall be fully and unequivocally bound hereunder to the full extent authorized by
law. /7 ~ .
For Defendants: Signed: __~--"'.._(1-<..AA'--_
;_
'./J
__ ~- - - -·--~------'_Title: Commissioner, I NS
Dated:_ _ 1_,,/_(_C,--+(_:,_ ~- -
For Plaintiffs: Signed: per next page Title:- - - - - - - - -
Dated:
- - -- -- - - - -
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The foregoing stipulated settlement is approved as to form and content:
CENTER FOR HUMAN RIGHTS AND

CONSTITUTIONAL LAW
Carlos Holguin
Peter Schey
NATIONAL CENTER FOR YOUTH LAW

Alice Bussiere
James Morales
ACLU FOUNDATION OF SOUTHERN CALIFORNIA

Mark Rosenbaum
Sylvia Argueta
STEICH LAN~ --
Susan G. B ell
Date:
Date: ---'-11-+-/...... 1. . . .9-..6

J.......,? . . . __
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Exhibit 1
. ""
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EXHIBIT 1
MINIMUM STANDARDS FOR LICENSED PROGRAMS
A. Licensed programs shall comply with all applicable state child welfare laws and regulations
and all state and local building, fire, health and safety codes and shall provide or arrange for the
following services for each minor in its care:
1. Proper physical care and maintenance, including suitable living accommodations, food,
appropriate clothing, and personal grooming items.
2. Appropriate routine medical and dental care, family planning services, and emergency
health care services, including a complete medical examination (including screening for
infectious disease) within 48 hours of admission, excluding weekends and holidays,
unless the minor was recently examined at another facility; appropriate immunizations in
accordance with the U.S. Public Health Service (PHS), Center for Disease Control;
administration of prescribed medication. and special diets; appropriate mental health
interventions when necessary.
3. An individualized needs assessment which shall include: (a) various initial intake forms;
(b) essential data relating to the identification and history of the minor and family; (c)
identification of the minors' special needs including any specific problem(s) which
appear to require immediate intervention; (d) an educational assessment and plan; (e) an
assessment of family relationships and interaction with adults, peers and authority
figures; (f) a statement of religious preference and practice; (g) an assessment of the
minor's personal goals, strengths and weaknesses; and (h) identifying information
regarding immediate family members, other relatives, godparents or friends who may be
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residing in the United States and may be able to assist in family reunification.
4. Educational services appropriate to the minor's level of development, and
communication skills in a structured classroom setting, Monday through Friday, which
concentrates primarily on the development of basic academic competencies and
secondarily on English Language Training (ELT). The educational program shall
include instruction and educational and other reading materials in such languages as
needed. Basic academic areas should include Science, Social Studies, Math, Reading,
Writing and Physical Education. The program shall provide minors with appropriate
reading materials in languages other than English for use during the minor's leisure time.
5. Activities according to a recreation and leisure time plan which shall include daily
outdoor activity, weather permitting, at least one hour per day of large muscle activity
and one hour per day of structured leisure time activities (this should not include time
spent watching television). Activities should be increased to a total of three hours on
days when school is not in session.
6. At least one (l) individual counseling session per week conducted by trained social
work staff with the specific objectives of reviewing the minor's progress, establishing
new short term objectives, and addressing both the developmental and crisis-related
needs of each minor.
7. Group counseling sessions at least twice a week. This is usually an informal process and
takes place with all the minors present. It is a time when new minors are given the
opportunity to get acquainted with the staff, other children, and the rules of the program.
It is an open forum where everyone gets a chance to speak. Daily program management
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is discussed and decisions are made about recreational activities, etc. It is a time for
staff and minors to discuss whatever is on their minds and to resolve problems.
8. Acculturation and adaptation services which include information regarding the
development of social and inter·personal skills which contribute to those abilities
necessary to live independently and responsibly.
9. Upon admission, a comprehensive orientation regarding program intent, services, rules
(written and verbal), expectations and the availability oflegal assistance.
10. Whenever possible, access to religious services of the minor's choice.
11. Visitation and contact with family members (regardless of their immigration status)
which is structured to encourage such visitation. The staff shall respect the minor's
privacy while reasonably preventing the unauthorized release of the minor.
12. A reasonable right to privacy, which shall include the right to: (a) wear his or her own
clothes, when available; (b) retain a private space in the residential facility, group or
foster home for the storage of personal belongings; (c) talk privately on the phone, as
permitted by the house rules and regulations; (d) visit privately with guests, as permitted
by the house rules and regulations; and (e) receive and send uncensored mail unless
there is a reasonable belief that the mail contains contraband.
13. Family reunification services designed to identify relatives in the United States as well
as in foreign countries and assistance in obtaining legal guardianship when necessary for
the release of the minor.
14. Legal services information regarding the availability of free legal assistance, the right to
be represented by counsel at no expense to the government, the right to a deportation or
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exclusion hearing before an immigration judge, the right to apply for political asylum or
to request voluntary departure in lieu of deportation.
B. Service delivery is to be accomplished in a manner which is sensitive to the age, culture,
native language and the complex needs of each minor.
C. Program rules and discipline standards shall be formulated with consideration for the range
of ages and maturity in the program and shall be culturally sensitive to the needs of alien minors.
Minors shall not be subjected to corporal punishment, humiliation, mental abuse, or punitive
interference with the daily functions of living, such as eating or sleeping. Any sanctions employed shall
not: (1) adversely affect either a minor's health, or physical or psychological well-being; or (2) deny
minors regular meals, sufficient sleep, exercise, medical care, correspondence privileges, or legal
assistance.
D. A comprehensive and realistic individual plan for the care of each minor must be developed
in accordance with the minor's needs as determined by-the individualized need assessment. Individual
plans shall be implemented and closely coordinated through an operative case management system.
E. Programs shall develop, maintain and safeguard individual client case records. Agencies and
· organizations are required to develop a system of accountability which preserves the confidentiality of
client information and protects the records from unauthorized use or disclosure.
F. Programs shall maintain adequate records and make regular reports as required by the INS
that permit the INS to monitor and enforce this order and other requirements and standards as the INS
may determine are in the best interests of the minors.
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Exhibit 2
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EXHIBIT2
INSTRUCTIONS TO SERVICE OFFICERS RE:

PROCESSING, TREATMENT, AND PLACEMENT OF MINORS
These instructions are to advise Service officers of [NS policy regarding the way in which minors in
INS custody are processed, housed and released. These instructions are applicable nationwide and
supersede all prior inconsistent instructions regarding minors.
(a) Minors. A minor is a person under the age of eighteen years. However, individuals who have
been "emancipated" by a state court or convicted and incarcerated for a criminal offense as an adult are
not considered minors. Such individuals must be treated as adults for all purposes, including
confinement and release on bond.
Similarly, if a reasonable person would conclude that an individual is an adult despite his claims to be a
minor, the INS shall treat such person as an adult for all purposes, including confinement and release
on bond or recognizance. The INS may require such an individual to submit to a medical or dental
examination conducted by a medical professional or to submit to other appropriate procedures to verify
his or her age. If the INS subsequently determines that such an individual is a minor, he or she will be
treated as a minor for all purposes.
(b) General policy. The INS treats, and will continue to treat minors with dignity, respect and special
concern for their particular vulnerability. INS policy is to place each detained minor in the least
restrictive setting appropriate to the minor's age and special needs, provided that such setting is
consistent with the need to ensure the minor's timely appearance and to protect the minor's well-being
and that of others. INS officers are not required to release a minor to any person or agency whom they
have reason to believe may harm or neglect the minor or fail to present him or her before the INS or the
immigration courts when requested to do so.
(c) Processing. The INS will expeditiously process minors and will provide a Form I-770 notice of
rights, including the right to a bond redetermination hearing, if applicable.
Following arrest, the INS wil1 hold minors in a facility that is safe and sanitary and that is consistent
with the INS's concern for the particular vulnerability of minors. Such facilities will have access to
toilets and sinks, drinking water and food as appropriate, medical assistance if the minor is in need of
emergency services, adequate temperature control and ventilation, adequate supervision to protect
minors from others, and contact with family members who were arrested with the minor. The INS will
separate unaccompanied minors from unrelated adults whenever possible. Where such segregation is
not immediately possible, an unaccompanied minor will not be detained with an unrelated adult for
more than 24 hours.
If the juvenile cannot be immediately released, and no licensed program (described below) is available
to care for him, he should be placed in an INS or INS-contract facility that has separate
accommodations for minors, or in a State or county juvenile detention facility that separates minors in
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INS custody from delinquent offenders. The INS will make every effort to ensure the safety and
well-being of juveniles placed in these facilities.
(d) Release. The INS will release minors from its custody without unnecessary delay, unless detention
of a juvenile is required to secure her timely appearance or to ensure the minor's safety or that of others.
Minors shall be released, in the following order of preference, to:
(i) a parent;
(ii) a legal guardian;
(iii) an adult relative (brother, sister, aunt, uncle, or grandparent);
(iv) an adult individual or entity designated by the parent or legal guardian as capable and
willing to care for the minor's well-being in (i) a declaration signed under penalty of perjury
before an immigration or consular officer, or (ii) such other documentation that establishes to
the satisfaction of the INS, in its discretion, that the individual designating the individual or
entity as the minor's custodian is in fact the minor's parent or guardian;
(v) a state-licensed juvenile shelter, group home, or foster home willing to accept legal custody;
or
(vi) an adult individual or entity seeking custody, in the discretion of the INS, when it appears
that there is no other likely alternative to long term detention and family reunification does not
appear to be a reasonable possibility.
(e) Certification of custodian. Before a minor is released, the custodian must execute an Affidavit of
Support (Form I~ 134) and an agreement to:
(i) provide for the minor's physical, mental, and financial wellMbeing;
(ii) ensure the minor's presence at all future proceedings before the INS and the immigration
court;
(iii) notify the INS of any change of address within five (5) days following a move;
(iv) if the custodian is not a parent or legal guardian, not transfer custody of the minor to
another party without the prior written permission of the District Director, except in the event of
an emergency;
(v) notify the INS at least five days prior to the custodian's departing the United States of such
departure, whether the departure is voluntary or pursuant to a grant of voluntary departure or
order of deportation; and
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(vi) if dependency proceedings involving the minor are initiated, notify the INS of the initiation
of ft such proceedings and the dependency court of any deportation proceedings pending against
the minor.
In an emergency, a custodian may transfer temporary physical custody of a minor prior to securing
permission from the INS, but must notify the INS of the transfer as soon as is practicable, and in all
cases within 72 hours. Examples of an "emergency" include the serious illness of the custodian,
destruction of the home, etc. In all cases where the custodian seeks written permission for a transfer,
the District Director shall promptly respond to the request.
The INS may terminate the custody arrangements and assume legal custody of any minor whose
custodian fails to comply with the agreement. However, custody arrangements will not be terminated
for minor violations of the custodian's obligation to notify the INS of any change of address within five
days following a move.
(f) Suitability assessment. An INS officer may require a positive suitability assessment prior to
releasing a minor to any individual or program. A suitability assessment may include an investigation
of the living conditions in which the minor is to be placed and the standard of care he would receive,
verification of identity and employment of the individuals offering support, interviews of members of
the household, and a home visit. The assessment will also take into consideration the wishes and
concerns of the minor.
(g) Family reunification. Upon taking a minor into custody, the INS, or the licensed program in
which the minor is placed, will promptly attempt to reunite the minor with his or her family to pennit
the release of the minor under Paragraph (d) above. Such efforts at family reunification will continue as
long as the minor is in INS or licensed program custody and will be recorded by the INS or the licensed
program in which the minor is placed.
(h) Placement in licensed programs. A "licensed program" is any program, agency or organization
licensed by an appropriate state agency to provide residential, group, or foster care services for
dependent children, including a program operating group homes, foster homes, or facilities for special
needs minors. Exhibit 1 of the Flores v. Reno Settlement Agreement describes the standards required
of licensed programs. Juveniles who remain in INS custody must be placed in a licensed program
within three days if the minor was apprehended in an INS district in which a licensed program is
located and has space available, or within five days in all other cases, except when:
(i) the minor is an escape risk or delinquent, as defined in Paragraph (i) below;
(ii) a court decree or court~approved settlement requires otherwise;
(iii) an emergency or influx of minors into the United States prevents compliance, in which case
all minors should be placed in licensed programs as expeditiously as possible; or
(iv) the minor must be transported from remote areas for processing or speaks an unusual
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language such that a special interpreter is required to process the minor, in which case the minor
must be placed in a licensed program within five business days.
(i) Secure and supervised detention. A minor may be held in or transferred to a State or county
juvenile detention facility or in a secure INS facility or INS-contracted facility having separate
accommodations for minors, whenever the District Director or Chief Patrol Agent determines that the
mmor-
(i) has been charged with, is chargeable, or has been convicted of a crime, or is the subject of
delinquency proceedings, has been adjudicated delinquent, or is chargeable with a delinquent
act, unless the minor's offense is
(a) an isolated offense not within a pattern of criminal activity which did not involve
violence against a person or the use or carrying of a weapon (Examples: breaking and
entering, vandalism, DUI, etc.); or
(b) a petty offense, which is not considered grounds for stricter means of detention in
any case (Examples: shoplifting, joy riding, disturbing the peace, etc.);
(ii) has committed, or has made credible threats to commit, a violent or malicious act (whether
directed at himself or others) while in INS legal custody or while in the presence of an INS
officer;
(iii) has engaged, while in a licensed program, in conduct that has proven to be unacceptably
disruptive of the nonnal functioning of the licensed program in which he or she has been placed
and removal is necessary to ensure the welfare of the minor or others, as determined by the staff
of the licensed program (Examples: drug or alcohol abuse, stealing, fighting, intimidation of
others, etc.);
(iv) is an escape.risk; or
(v) must be held in a secure facility for his or her own safety, such as when the INS has reason
to believe that a smuggler would abduct or coerce a particular minor to secure payment of
smuggling fees.
"Chargeable" means that the INS has probable cause to believe that the individual has committed a
specified offense.
The term 11 escape-risk" means that there is a serious risk that the minor will attempt to escape from
custody. Factors to consider when determining whether a minor is an escape·risk or not include, but are
not limited to, whether: .,,
(a) the minor is currently under a final order of deportation or exclusion;
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(b) the minor's immigration history includes: a prior breach of a bond; a failure to appear before
the INS or the immigration court; evidence that the minor is indebted to organized smugglers
for his transport; or a voluntary departure or a previous removal from the United States pursuant
to a final order of deportation or exclusion;
(c) the minor has previously absconded or attempted to abscond from INS custody.
The INS will not place a minor in a State or county juvenile detention facility, secure INS detention
facility, or secure INS-contracted facility if less restrictive alternatives are available and appropriate in
the circumstances, such as transfer to a medium security facility that provides intensive staff
supervision and counseling services or transfer to another licensed program. All determinations to
place a minor in a secure facility will be reviewed and approved by the regional Juvenile Coordinator.
(j) Notice of right to bond redetermination and judicial review of placement. A minor in
deportation proceedings shall be afforded a bond redetermination hearing before an immigration judge
in every case, unless the minor indicates on the Notice of Custody Determination form that he or she
refuses such a hearing. A juvenile who is not released or placed in a licensed placement shall be
provided (1) a written explanation of the right of judicial review as set out in Exhibit 6 of the Flores v.
Reno Settlement Agreement, and (2) the list of free legal services providers compi)ed pursuant to INS
regulations (unless previously given to the minor.
(k) Transportation and transfer. Unaccompanied minors should not be transported in vehicles with
detained adults except when being transported from the place of arrest or apprehension to an INS office
or where separate transportation would be otherwise impractical, in which case minors shall be
separated from adults. INS officers shall take all necessary precautions for the protection of minors
during transportation with adults.
When a minor is to be released, the INS will assist him or her in making transportation arrangements to
the INS office nearest the location of the person or facility to whom a minor is to be released. The INS
may, in its discretion, provide transportation to such minors.
t
,;_
,- Whenever a minor is transferred from one placement to another, she shall be transferred with all of her
possessions and legal papers; provided, however, that if the minor1s possessions exceed the amount
permitted normally by the carrier in use, the possessions must be shipped to the minor in a timely
manner. No minor who is represented by counsel should be transferred without advance notice to
counsel, except in unusual and compeUing circumstances such as where the safety of the minor or
others is threatened or the minor has been determined to be an escape-risk, or where counsel has waived
notice, in which cases notice must be provided to counsel within 24 hours following transfer.
(I) Periodic reporting. Statistical information on minors placed in proceedings who remain in INS
custody for longer than 72 hours must be reported to the Juvenile Coordinator by all INS district offices
and Border Patrol stations. Information will include: (a) biographical information, including the
minor's name, date of birth, and country of birth, (b) date placed in INS custody, (c) each date placed,
removed or released, (d) to whom and where placed, transferred, removed or released, (e) immigration
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status, and (f) hearing dates. INS officers should also inform the Juvenile Coordinator of the reasons
for placing a minor in a medium-security facility or detention facility as described in paragraph (i).
(m) Attorney-client visits by Plaintiffs' counsel. The INS will permit the lawyers for the Flores v.
Reno plaintiff class to visit minors, even though they may not have the names of minors who are housed
at a particular location. A list of Plaintiffs' counsel entitled to make attorney-client visits with minors is
available from the district Juvenile Coordinator. Attorney-client visits may also be conducted by any
staff attorney employed by the Center for Human Rights & Constitutional Law of Los Angeles,
California, or the National Center for Youth Law of San Francisco, California, provided that such
attorney presents credentials establishing his or her employment prior to any visit.
Visits must occur in accordance with generally applicable policies and procedures relating to
attorney-client visits at the facility in question. Upon Plaintiffs' counsel's arrival at a facility for
attorney-client visits, the facility staff must provide Plaintiffs' counsel with a list of names and alien
registration numbers for the minors housed at that facility. In all instances, in order to memorialize any
visit to a minor by Plaintiffs' counsel, Plaintiffs' counsel must file a notice of appearance with the INS
prior to any attorney-client meeting. Plaintiffs' counsel may limit the notice of appearance to
representation of the minor in connection with his placement or treatment during INS custody.
Plaintiffs' counsel must submit a copy of the notice of appearance by hand or by mail to the local INS
juvenile coordinator and a copy by hand to the staff of the facility.
A minor may refuse to meet with Plaintiffs' counsel. Further, the minor's parent or legal guardian may
deny Plaintiffs' counsel permission to meet with the minor.
(n) Visits to licensed facilities. In addition to the attorney-client visits, Plaintiffs' counsel may request
access to a licensed program's facility (described in paragraph (h)) or to a medium-security facility or
detention facility (described in paragraph (i)) in which a minor has been placed. The district juvenile
coordinator wil1 convey the request to the facility's staff and coordinate the visit. The rules and
procedures to be followed in connection with such visits are set out in Exhibit 4 of the Flores v. Reno
Settlement Agreement, unless Plaintiffs' counsel and the facility's staff agree otherwise. In all visits to
any facility, Plaintiffs' counsel and their associated experts must treat minors and staff with courtesy
and dignity and must not disrupt the normal functioning of the facility.
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Exhibit 3
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EXHIBIT 3
CONTINGENCY PLAN
In the event of an emergency or influx that prevents the prompt placement of minors in licensed
programs with which the Community Relations Service has contracted, INS policy is to make all
reasonable efforts to place minors in programs licensed by an appropriate state agency as expeditiously
as possible. An "emergency" is an act or event, such as a natural disaster (e.g. earthquake, fire,
hurricane), facility fire, civil disturbance, or medical emergency (e.g. a chicken pox epidemic among a
group of minors) that prevents the prompt placement of minors in licensed facilities. An "influx" is
defined as any situation in which there are more than 130 minors in the custody of the INS who are
eligible for placement in licensed programs.
1. The Juvenile Coordinator will establish and maintain an Emergency Placement List of at
least 80 beds at programs licensed by an appropriate state agency that are potentially available to accept
emergency placements. These 80 placements would supplement the 130 placements that the INS
normally has available, and whenever possible, would meet all standards applicable to juvenile
placements the INS normally uses. The Juvenile Coordinator may consult with child welfare
specialists, group home operators, and others in developing the List. The Emergency Placement List
will include the facility name; the number of beds potentially available at the facility; the name and
telephone number of contact persons; the name and telephone number of contact persons for nights,
holidays, and weekends if different; any restrictions on minors accepted (e.g. age); and any special
services that are available.
2. The Juvenile Coordinator will maintain a list of minors affected by the emergency or influx,
including (1) the minor's name, (2) date and country of birth, (3) date placed in INS custody, and (4)
1
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place and date of current placement.
3. Within one business day of the emergency or influx the Juvenile Coordinator or his or her
designee will contact the programs on the Emergency Placement List to determine available
placements. As soon as available placements are identified, the Juvenile Coordinator will advise
appropriate INS staff of their availability. To the extent practicable, the INS will attempt to locate
emergency placements in geographic areas where culturally and linguistically appropriate community
services are available.
4. In the event that the number of minors needing emergency placement exceeds the available
appropriate placements on the Emergency Placement List, the Juvenile Coordinator will work with the
Community Relations Service to locate additional placements through licensed programs, county social
services departments, and foster family agencies.
5. Each year the INS will reevaluate the number of regular placements needed for detained
minors to determine whether the number of regular placements should be adjusted to accommodate an
increased or decreased number of minors eligible for placement in licensed programs. However, any
decision to increase the number of placements available shall be subject to the availability of INS
resources. The Juvenile Coordinator shall promptly provide Plaintiffs' counsel with any reevaluation
made by INS pursuant to this paragraph.
6. The Juvenile Coordinator shall provide to Plaintiffs' counsel copies of the Emergency
Placement List within six months after the court's final approval of the Settlement Agreement.
2
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Exhibit 4
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EXHIBIT 4
AGREEMENT CONCERNING F AC!LITY VISITS UNDER PARAGRAPH 33
The purpose of facility visits under paragraph 33 is to interview class members and staff and to
observe conditions at the facility. Visits under paragraph 33 shall be conducted in accordance with the
generally applicable policies and procedures of the facility to the extent that those policies and
procedures are consistent with this Exhibit.
Visits authorized under paragraph 33 shall be scheduled no less than seven (7) business days in
advance. The names, positions, credentials, and professional association (e.g., Center for Human
Rights and Constitutional Law) of the visitors will be provided at that time.
All visits with class members shall take place during normal business hours.
No video recording equipment or cameras of any type shall be permitted. Audio recording
equipment shall be limited to hand-held tape recorders.
The number of visitors will not exceed six (6) or, in the case of a family foster home, four (4),
including interpreters, in any instance. Up to two (2) of the visitors may be non-attorney experts in
juvenile justice and/or child welfare.
No visit will extend beyond three (3) hours per day in length. Visits shall minimize disruption
to the routine that minors and staff follow.
l
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..
Exhibit 5
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EXHIBIT 5
LIST OF ORGANIZATIONS TO RECEIVE INFORMATION RE: SETTLEMENT AGREEMENT
Eric Cohen, Immig. Legal Resource Center, 1663 Mission St. Suite 602, San Francisco, CA 94103
Cecilia Munoz, Nat'! Council Of La Raza, 810 1st St. NE Suite 300, Washington, D.C. 20002
Susan Alva, lmmig. & Citiz. Proj Director, Coalition For Humane Immig Rights of LA, 1521 Wilshire
Blvd., Los Angeles, CA 90017
Angela Cornell, Albuquerque Border Cities Proj., Box 35895, Albuquerque, NM 87176-5895
Beth Persky, Executive Director, Centro De Asuntos Migratorios, 1446 Front Street, Suite 305, San
Diego, CA 92101
Dan, Kesselbrenner,, National Lawyers Guild, National Immigration Project, 14 Beacon St.,#503,
Boston, MA 02108
Lynn Marcus, SWRRP, 64 E. Broadway, Tucson, AZ 85701-1720
Maria Jimenez,, American Friends Service Cmte., !LEMP, 3522 Polk Street, Houston, TX 77003-4844
Wendy Young,, U.S. Cath. Conf., 3211 4th St. NE,, Washington, DC, 20017-1194
Miriam Hayward , International Institute Of The East Bay, 297 Lee Street , Oakland, CA 946 I 0
Emily Goldfarb,, Coalition For Immigrant & Refugee Rights, 995 Market Street, Suite l 108, San
Francisco, CA 94103
Jose De La Paz, Director, California Immigrant Workers Association, 515 S. Shatto Place , Los
Angeles, CA, 90020
Annie Wilson, LIRS, 390 Park Avenue South, First Asylum Concerns, New York, NY 10016
Stewart K woh, Asian Pacific American Legal Center, l 0 10 S. Flower St., Suite 302, Los Angeles, CA
90015
Warren Leiden, Executive Director, AILA, 1400 Eye St., N.W., Ste. 1200, Washington, DC, 20005
Frank Sharry, Nat'! Immig Ref & Citiz Forum, 220 I Street N.E., Ste. 220, Washington, D.C. 20002
Reynaldo Guerrero, Executive Director, Center For Immigrant's Rights, 48 St. Marks Place, New
York, NY 10003
1
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Charles Wheeler, National Immigration Law Center, 1102 S. Crenshaw Blvd., Suite 101 , Los
Angeles, CA 90019
Deborah A. Sanders, Asylum & Ref. Rts Law Project, Washington Lawyers Comm., 1300 19th Street,
N. W., Suite 500 , Washington, D.C. 20036
Stanley Mark, Asian American Legal Def.& Ed.Fund, 99 Hudson St, 12th Floor, New York, NY 10013
Sid Mohn, Executive Director, Travelers & Immigrants Aid, 327 S. LaSalle Street, Suite 1500,
Chicago, IL, 60604
Bruce Goldstein, Attornet At Law, Farmworker Justice Fund, Inc., 2001 S Street, N.W., Suite 210,
Ninfa Krueger, Director, BARCA, 1701 N. 8th Street, Suite B-28, McAllen, TX 78501
John Goldstein, , Proyecto San Pablo, PO Box 4596,, Yuma, AZ 85364
Valerie Hink, Attorney At Law, Tucson Ecumenical Legal Assistance, P.O. Box 3007, Tucson, AZ
85702
Pamela Mohr, Executive Director, Alliance For Children's Rights, 3708 Wilshire Blvd. Suite 720, Los
Angeles, CA 90010
Pamela Day, Child Welfare League Of America, 440 1st St. N.W.,, Washington, DC 20001
Susan Lydon, Esq., Immigrant Legal Resource Center, 1663 Mission St. Ste 602, San Francisco, CA
94103
Patrick Maher, Juvenile Project, Centro De Asuntos Migratorios, 1446 Front Street,# 305, San Diego,
CA 92101
Lorena Munoz, Staff Attorney, Legal Aid Foundation of LA-IRO, 1102 Crenshaw Blvd., Los Angeles,
CA 90019
Christina Zawisza, Staff Attorney, Legal Services of Greater Miami, 225 N.E. 34th Street, Suite 300,
Miami, FL 33137
Miriam Wright Edelman, Executive Director, Children's Defense Fund, 122 C Street N. W. 4th Floor,
Rogelio Nunez, Executive Director, Proyecto Libertad, 113 N. First St., Harlingen, TX 78550
2
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Exhibit 6
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EXHIBIT6
NOTICE OF RIGHT TO JUDICIAL REVIEW
"The INS usually houses persons under the age of 18 in an open setting, such as a foster or
group home, and not in detention facilities. If you believe that you have not been properly
placed or that you have been treated improperly, you may ask a federal judge to review your
case. You may call a lawyer to help you do this. If you cannot afford a lawyer, you may call
one from the list of free legal services given to you with this form."
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1 PROOF OF SERVICE BY MAIL

2 I, Sonia Fuentes, declare and say as follows:
3 1. I am over the age of eighteen years and am not a party to this action. I am
4 employed in the County of Los Angeles, State of California. My business address is 256
5 South Occidental Boulevard, Los Angeles, California 90057, in said county and state.
6 2. On January - - - 1 1997, I served the attached STIPULATED SETTLEMENT AGREEMENT
7 on defendants in this proceeding by placing a true copy thereof in a sealed envelope
8 addressed to their attorneys of record as follows:
9 Mr. Michael Johnson
Assistant U.S. Attorney
10 300 N. Los Angeles St. #7516
11 Los Angeles, CA 90012
12 and by then sealing said envelope and depositing the same, with postage thereon fully
13 prepaid, in the mail at Los Angeles, California; that there is regular delivery of mail between
14 the place of mailing and the place so addressed.
15 I declare under penalty of perjury that the foregoing is true and correct.
16 Executed this _th day of January, 1997, at Los Angeles, California.
17
18
19
20 I I I
21
22
23
24
25
26
27
28
-3-
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CENTER FOR HUivlAN RIGHTS & CONSTITUflON '\L LAW

Carlos Holguin Ii
i '
lO
2 Peter A Schey
Charles Song _, ,c..l
3 256 South Occidental Boulevard

4
Telephone: (213) 388-8693; Fax: (213) 386-9484
5
LATHAM & WATKINS
6 Steven Schulman
555 Eleventh St, NW, Suite 1000
7 Washington, DC 20004
Telephone: (202) 637-2184
8
Of counsel
9
'YOUTH L -\\\ CENTER
10 0\lice Bussiere
417 Montgomery Street, Suite 900
11 San Francisco, CA 91104
Telephone: (415) SB-3379 x 3903
12
13 4110111n1s for pl111nt1ffs
l4
15 UNITED ST A TES DISTRICT COURT
16 CE!-<TR-\L DISTRICT OF C -\LIFOKNI \
17 !ENNY LISETTE FLORES, et al, Case No C\' S'i-,:JSH-RJK(rx)
18 l'laintiffs, Si ll'l L \JIU\ E\TE\DI\C

SLIILL\ff,.I \CRIT\iE\I \,DJ(1i'.
19 -vs- OTHER PURPOSES; AND ORDER
!! 1 :"l\!-~C)'\.
] \'\l i ];i '\<.. I, \llO!Ill'\ (__,L'IH.:'!'tll
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2 [TIS HEREBY STIPULATED by and between the parties as follows:
3 l. Paragraph 40 of the Stipulation filed herein on January 17, 1997, is modified to read
4 as follows:
5 "All terms of this !\greement shall terminate tl~e earlier of five years after tl~e date of
6 final court approval of tl:is Agreement or three years after the court determines that
7 the !NS is in substantial compliance with this Agreemect, 45 dm;s following dcfmdrmfs'
8 p11bl1ca/1011 of/mnl 1eg11l!lt1011s 111Zplc111rntlllg tlm Ag1eenienl
9 eHept that Notunt/ista11dwg the f01 ego111g, the INS shall continue to house the general
JO population of minors in lf'\S custod 1 in facilities that are state-licensed for the care of
11 dependent minors "
12 I I I
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2 !'or a period of six months from the date this Stipulation is tiled, plaintiffs shall not
2 initiate legal proceedings to compel publication of final regulations implementing this
3 Agreement Plaintiffs agree to work with defendants cooperatively to,,vard resolving
4 disputes regarding compliance with the Settlement The parties agree to confer regularly no
5 less frequently than once monthly for the purpose of discussing the implementation of and
6 compliance with the settlement agreement However, nothing herein shall require plaintiffs
7 to forebear legal action to compel compliance with this Agreement where plaintiff class
8 members are suffering irreparable injury
9 Dated: December 7, 200L CENTER FOR HUMAN RIGHTS &

CONSTJTUTIOi\ \L L Wv
JO Carlos Holguin
Peter -'\ Schey
11
L >\THA\ l & \V \ T KINS
12 Steven Schulman
,/-'
1',
ir:/"
YOUTH L.O.W CE'}{ER
l+
15
16
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Car os
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17
Dated: Dcccrnbe, :- 2lllll \1lhu1St1alhe111
IS Office ol the r;ene1<1l Counsel
[~ S ]Jll!lll½lilli,1]1 0:.: \.i.1lll!tl]i/clliOII ~l t\ ll-l
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Case INS GENERAL
4:20-cv-12015-TSH COUNSEL 1-1 Filed 11/09/20 Page202
Document 50 514
of 0455
Case 2:18-cv-00939-MJP Document 1-1 Filed 06/26/18 Page 202 of 51
275 P 02
';'
1 2 For a period of six months ft om the date this Stipulation is filed, plaintiffs shall not
2 initiate legal proceedings to compel publication of final regulations implementing this
3 Agreement Plaintiffs agree to work with defendants cooperatively toward resolving
4 disputes regarding compliance with the Settlement The parties agree to confer regularly no
5 less frequently than once monthly for the purpose of discussing the implementation of and
6 compliance with the settlement agreement. However, nothing herein shall require plaintiffs
7 to forebear legal action to compel compliance with this Agreement where plaintiff class
8 membe1s are suffering irreparable injury
9 Dated: December 7, 200L CENTER FOR HUMAN RIGHTS &
CONSTITUTIONAL LAW
10
Carlos Holguin
11 Peter A. Schey
12 LATHAM & WATKINS
Steven Schulman
13
14 YOUTH LAW CENTER
Alice Bussiere
15
16
17 ------·--···-·---·---·-------
Carlos Holguin, for plaintiffs
18
Dated: December 7, 2001 Arthur Sti:athern
a /" . --~
19 Office of the c:;eneral Counsel
Ii
I;
US Immigration & }1laturalization Service
'20
21
2.'2
Arthur Strathern, fo1 defin,dants
Per fax authoti:-:::itiori
24
25 11 IS SO ORDERED
26 Dated: December 7, 2001

lTNITFfl .',r; !ES DISTRICT )liflGE
?.7
28
- _) -
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PROOF OF SERVICI; BY i\1AIL
2 I, Carlos Holguin, declme and say as follows:
3 1 1 am over the age of eighteen years and am not a party to this action I am
4 employed in the County of Los Angeles, State of California My business address is 256
5 South Occidental Boulevard, Los Angeles, California 90057, in said county and state
6 2 On December 7, 2001, I served the attached STIPULATION on defendants in this
7 proceeding by placing a true copy thereof in a sealed envelope addressed to their attorneys
8 of record as follows:
9 Arthur Strathern
Office of the General Counsel
10 US Immigration & Naturalization Service
425 I St N \\!
11 Washington, DC 20536
12
and by then sealing said envelope and depositing the same, with postage thereon fully
13
prepaid, in the mail at Los ,\ngeles, California; that there is regular delivery of mail betheen
14
the place of mailing and the place so addressed
15
I declare under penalt 1 of perjury that the foregoing is true and correct
16
Executed thisf-fi<dav o! December, 200 I, al Los ,\nge)<>s, C:ilifornia
17
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Attorney General Sessions Delivers Remarks Discussing the Immigration Enforcemen... Page 1 of 3
Case
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3
JUSTICE NEWS
Attorney General Sessions Delivers Remarks Discussing the Immigration Enforcement Actions
of the Trump Administration
San Diego, CA ~ Monday, May 7, 2018
Thank you all for being here.
Thank you to Tom Homan. Tom, you have done outstanding work leading ICE. Thank you for your
more than 30 years of service in law enforcement. We are going to miss you.
Today we are here to send a message to the world: we are not going to let this country be
overwhelmed.
People are not going to caravan or otherwise stampede our border.
We need legality and integrity in the system.
That’s why the Department of Homeland Security is now referring 100 percent of illegal Southwest
Border crossings to the Department of Justice for prosecution. And the Department of Justice will take
up those cases.
I have put in place a “zero tolerance” policy for illegal entry on our Southwest border. If you cross this
border unlawfully, then we will prosecute you. It’s that simple.
If you smuggle illegal aliens across our border, then we will prosecute you.
If you are smuggling a child, then we will prosecute you and that child will be separated from you as
required by law.
If you make false statements to an immigration officer or file a fraudulent asylum claim, that’s a felony.
If you help others to do so, that’s a felony, too. You’re going to jail.
So if you’re going to come to this country, come here legally. Don’t come here illegally.
In order to carry out these important new enforcement policies, I have sent 35 prosecutors to the
Southwest and moved 18 immigration judges to the border. These are supervisory judges that don’t
have existing caseloads and will be able to function full time on moving these cases. That will be about
a 50 percent increase in the number of immigration judges who will be handling the asylum claims.
These actions are necessary. And they are made even more necessary by the massive increases in
illegal crossings in recent months. This February saw 55 percent more border apprehensions than last
February. This March saw triple the number from last March. April saw triple the number last April.
The trends are clear: this must end.
https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-discussi... 6/1/2018
Case
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3
Eleven million people are already here illegally. That’s more than the population of Portugal or the state
of Georgia.
The Congressional Budget Office estimates that those 11 million have 4.5 million children who are
American citizens. Combined, that group would be our fifth-most populous state.
This situation has been many years in the making.
For decades, the American people have been pleading with our elected representatives for a lawful
system of immigration that serves the national interest—a system we can be proud of.
That is not too much to ask. The American people are right and just and decent to ask for this. They
are right to want a safe, secure border and a government that knows who is here and who isn’t.
Donald Trump ran for office on that idea. I believe that is a big reason why he won. He is on fire about
this. This entire government knows it.
The American people have a right to expect that the laws that their representatives voted for are going
to be carried out. Failure to enforce our duly-enacted laws would be an affront to the American people
and a threat to our very system of self-government.
And these laws are the most generous immigration laws in the world. We accept 1.1 million lawful
permanent residents every year—that’s more than the population of Montana, every single year. These
are the highest numbers in the world.
I have no doubt that many of those crossing our border illegally are leaving difficult situations. But we
cannot take everyone on Earth who is in a difficult situation.
According to a Gallup poll from a few years ago, 150 million people around the world want to immigrate
to the United States. Gallup says that 37 percent of Liberians want to immigrate to the United States.
One fifth of Cambodians want to move here. One-in-six Salvadorans are already in the United
States—and another 19 percent tell Gallup they want to come here.
It’s obvious that we cannot take everyone who wants to come here without also hurting the interests of
the citizens we are sworn to serve and protect.
We have to have limits. And Congress has already set them.
And if you want to change our laws, then pass a bill in Congress. Persuade your fellow citizens to your
point of view.
Immigrants should ask to apply lawfully before they enter our country. Citizens of other countries don’t
get to violate our laws or rewrite them for us. People around the world have no right to demand entry in
violation of our sovereignty.
This is a great nation—the greatest in the history of the world. It is no surprise that people want to
come here. But they must do so properly. They must follow our laws—or not come here at all. Make
no mistake, the objections, the lawsuits, the sanctuary jurisdictions are often the product of a radical
open border philosophy. They oppose all enforcement.
And so this Department, under President Trump’s leadership, is enforcing the law without exception.
We will finally secure this border so that we can give the American people safety and peace of mind.
That’s what the people deserve.
Case
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3
Thank you.
Speaker:
Attorney General Jeff Sessions
Topic(s):
Immigration
Component(s):
Office of the Attorney General
Updated May 7, 2018
Case 4:20-cv-12015-TSH Document 1-3 Filed 11/09/20 Page 1 of 7
via electronic mail
January 23, 2018
The Honorable Kirstjen M. Nielsen

Secretary
U.S. Department of Homeland Security
3801 Nebraska Avenue, NW
Urgent Appeal from Experts in Child Welfare, Juvenile Justice and Child Development to
Halt Any Plans to Separate Children from Parents at the Border
Dear Secretary Nielsen:
We, the more than 50 national organizations and more than 150 additional organizations from 33
states and the District of Columbia, have well-recognized expertise in the fields of child welfare,
juvenile justice and child health, development and safety. We first sent this letter to you on
January 16, 2018, but are resubmitting it today to include additional organizations that wished to
be listed in this appeal. We are also submitting it as part of the record of the oversight hearing
before the Senate Judiciary Committee on January 16, 2018 at which you testified.
We understand that your agency is considering plans to separate children from their parents
when they arrive at or are found near the U.S. border. We fear these actions will have significant
and long-lasting consequences for the safety, health, development, and well-being of children,
and urgently request that the Administration reverse course on any policies that would separate
families.
Countless reports have documented that these families are fleeing persecution and violence in
their countries, and come here seeking protection. While many come from Central American
countries, the parents and children arrive at our border from all over the world, including
countries in Africa, the Caribbean, South America, Asia, the Middle East and Europe. According
to recent reports, the proposed plan would require that parents be placed in adult immigration
detention centers and/or summarily deported, while their children would be transferred to the
custody of the Department of Health and Human Services in facilities across the country—as far
away as Illinois, Washington, New York, Florida, and Michigan. HHS would bear the
responsibility of caring for the traumatized children and finding suitable, alternative caregivers.
These children could remain in government care for months or more than a year, during which
time the continued separation from their parents would compound their trauma and the time it
would take them to recover and return to a trajectory of good health and normal development.
Nor would it make any sense to require those children to participate in a formal legal proceeding
about their immigration case while separated from the parent who brought them here, who may
have critical information—or the only information—about the child’s claim for protection.
There is overwhelming evidence that children need to be cared for by their parents to be safe and
healthy, to grow and develop. 1 Likewise, there is ample evidence that separating children from
their mothers or fathers leads to serious, negative consequences to children’s health and
development. 2 Forced separation disrupts the parent-child relationship and puts children at
increased risk for both physical and mental illness. Adverse childhood experiences—including
the incarceration of a family member—are well-recognized precursors of negative health
outcomes later in life. 3 And the psychological distress, anxiety, and depression associated with
separation from a parent would follow the children well after the immediate period of
separation—even after eventual reunification with a parent or other family. We are deeply
concerned that the proposed plan would formalize such harm by taking children from their
parents as a matter of policy.
Family unity is a foundational principle of child welfare law. In order to grow and develop,
children need to remain in the care of their parents where they are loved, nurtured and feel safe.
Thus parents’ rights to the care and custody of their children are afforded particularly strong
protection under the U.S. Constitution. 4 While parent-child relationships are generally the
province of state law, federal law also recognizes the principle of family unity by providing
strong incentives for states to keep children with their parents and to provide services to families
to prevent separation and maintain family unity. 5 The proposed changes to your agency’s
policies would eviscerate that principle.
1
See, e.g., American Psychological Assn, Parents and Caregivers are Essential to Children’s Healthy
Development, available at http://www.apa.org/pi/families/resources/parents-caregivers.aspx.
2
See, e.g., Sankaran, Vivek, Church, Christopher, “Easy Come, Easy Go: The Plight of Children Who
Spend Less than 30 Days in Foster Care,” 19 U. Pa. J. L. Soc. Change 207 (2017) (identifying harms to
children arising from even short-term separation from a parent’s custody as a result of state action); and
Zayas LH, Aguilar-Gaxiola S, Yoon H, Rey GN, “The Distress of Citizen-Children with Detained and
Deported Parents,” J. Child & Fam. Studies, 2015; 24(11):3213-3223 (the arrest and separation of parents
“serve[s] only to complete the trauma, and the certain detrimental impact on the children’s mental
health.”).
3
See, e.g., Dube SR, Cook ML, Edwards VJ, Health-related Outcomes of Adverse Childhood
Experiences in Texas, 2002, Prev Chronic Dis., 2010; 7(3):A52, available at
http://www.cdc.gov/pcd/issues/2010/may/09_0158.htm.
4
See, e.g., Santosky v. Kramer, 455 U.S. 745, 753 (1982) (a parent’s right to the care and custody of her
child is a fundamental liberty interest).
5
See U.S. Dep’t of Health and Human Services, Children’s Bureau, Child Welfare Information Gateway,
Reasonable Efforts to Preserve or Reunify Families and Achieve Permanency for Children, (March
2016), available at https://www.childwelfare.gov/pubPDFs/reunify.pdf (“Federal law has long required
State agencies to demonstrate that reasonable efforts have been made to provide assistance and services to
prevent the removal of a child from his or her home.”).
Page 2 of 7
For all of these reasons, we urge you to abandon any plans to systematically separate children
from their families absent evidence that a specific parent posed a threat to the safety and well-
being of his or her child, as required by the laws of all 50 states.
Sincerely,
MaryLee Allen
Director of Policy
Children’s Defense Fund
on behalf of:
National Organizations
Alliance for Strong Families and Communities
American Academy of Pediatrics
Campaign for Youth Justice
Casa de Esperanza: National Latin@ Network for Healthy Families and Communities
Center for Children’s Law and Policy
Center for Law and Social Policy (CLASP)
Center for the Study of Social Policy
Child Welfare League of America
Children’s Advocacy Institute
Children’s Defense Fund
Coalition for Juvenile Justice
Disability Rights Education & Defense Fund
Dorothy Day Catholic Worker
Every Mother is a Working Mother Network
Family Focused Treatment Association
Field Center for Children’s Policy, Practice & Research
First Focus
First Star Institute
Foster Care Alumni of America
Futures Without Violence
Generations United
Healthy Teen Network
Jim Casey Youth Opportunities Initiative
Justice Policy Institute
Juvenile Law Center
National Alliance of Children's Trust Funds
National Association for Children’s Behavioral Health
National Association of Counsel for Children
National Association of Pediatric Nurse Practitioners
National Association of Social Workers
National Center for Housing and Child Welfare
National Center for Parent Leadership, Advocacy, and Community Empowerment
National Center for Youth Law
National Center on Adoption and Permanency
Page 3 of 7
National Coalition Against Domestic Violence

National Crittenton Foundation
National Domestic Violence Hotline
National Indian Child Welfare Association
National Juvenile Defender Center
National Juvenile Justice Network
North American Council on Adoptable Children
Partnership for America’s Children
RISE
Robert F Kennedy Children’s Action Corps
School Social Work Association of America
The Children’s Village
The Sentencing Project
UNICEF USA
Voices for Adoption
W. Haywood Burns Institute
Year Up
Youth Advocate Programs (YAP)
Youth Law Center
State and Local Organizations

A New Leaf (AZ)
ACTIONN (NV)
Advocates for Children and Youth (MD)
AIDS Foundation of Chicago (IL)
Alaska Children's Trust
All Faiths Children’s Advocacy Center (NM)
Allendale Association (IL)
Alliance for Childhood Education (KS, MO)
Arden Shore Child and Family Services (IL)
Bronx Defenders (NY)
Brooklyn Defender Services (NY)
California Department of Social Services
Catholic Charities Community Maternity Services (NY)
Center for Advanced Studies in Child Welfare at the University of Minnesota
Center for Children’s Advocacy, Inc. (CT)
Center for Family Representation (NY)
Center on Halsted (IL)
Chicago Children's Advocacy Center (IL)
Chicago Survivors
Child and Family Policy Center (IA)
Child and Family Resources (AZ)
Child and Family Services (NY)
Child Welfare Organizing Project (NY)
Children’s Action Alliance (AZ)
Children’s Advocacy Alliance (NV)
Page 4 of 7
Children’s Defense Fund - Texas

Children’s Law Center of Minnesota
Children’s Place Association (IL)
Children's Law Center (DC)
Children's Service Society (UT)
CHRIS 180 (GA)
Citizens' Committee for Children of New York, Inc. (NY)
Citizens for Juvenile Justice (MA)
Coalition for Asian American Children and Families (NY)
Committee for Public Counsel Services (MA)
Community Behavioral Healthcare Association of Illinois (IL)
Community Chest, Inc (NV)
Connecticut Alliance of Foster and Adoptive Families, Inc
Connecticut Association for Human Services
Connecticut Voices for Children
Council of Family and Child Caring Agencies (NY)
County Welfare Directors Association of California (CA)
Duane Dean Behavioral Health Services (IL)
EPIC ‘Ohana
Esperanza Health Centers (IL)
EverThrive Illinois
Families and Friends of Louisiana’s Incarcerated Children
Families First (GA)
Family to Family Connection, ISD 13 (NV)
Family Violence Appellate Project (CA)
Forefront (IL)
Forestdale, Inc. (NY)
Foster Adopt Connect (MO, KS)
Foster Care Alumni of America-Illinois Chapter
Foster Change (NV)
Foster Kinship (NV)
Harriet Buhai Center for Family Law (CA)
Heartland for Children (FL)
Heartland Human Care Services (IL, MI)
Hillsides (CA)
Hispanic Caucus (NV)
Identity, Inc. (MD)
Illinois Childhood Trauma Coalition/
Illinois Collaboration on Youth
Illinois Partners for Human Service
Illinois PTA
Illinois Public Health Association
Illinois Public Health Institute
Instituto del Progreso Latino (IL)
Interfaith Movement for Human Integrity (CA)
JCCA (NY)
Page 5 of 7
Juvenile Justice Initiative of Illinois

Juvenile Protective Association (IL)
Juvenile Restorative Justice, Inc. (KY)
Kaleidoscope (IL)
Kansas Action for Children
Kansas Appleseed
Kansas Association for the Education of Young Children
Kansas Head Start Association
Kids Forward (WI)
Kids in Common, a program of Planned Parenthood Mar Monte (CA)
Kingsley House (LA)
Legal Council for Health Justice (IL)
Legal Services for Children (CA)
Lower Roxbury Coalition (MA)
Loyola University Chicago Civitas Childlaw Center (IL)
Lutheran Social Services of the Southwest
Lutheran Social Services of Wisconsin
Maine Children’s Alliance
Make it Work Nevada
Martin de Porres Group Homes (NY)
Mary’s Center (DC)
Maryville Academy (IL)
Massachusetts Adoption Resource Exchange (MA)
MercyFirst (NY)
Methodist Children's Home Society (MI)
Metropolitan Family Services (IL)
Michigan’s Children
Montgomery County Department of Health and Human Services (MD)
National Association of Social Workers (NASW) Connecticut Chapter
National Association of Social Workers (NASW) Illinois Chapter
National Association of Social Workers (NASW) Kentucky Chapter
National Association of Social Workers (NASW) Massachusetts Chapter
National Association of Social Workers (NASW) Michigan Chapter
National Association of Social Workers (NASW) Minnesota Chapter
National Association of Social Workers (NASW) New Jersey Chapter
National Association of Social Workers (NASW) New Mexico Chapter
National Association of Social Workers (NASW) Tennessee Chapter
National Association of Social Workers (NASW) Texas Chapter
NC Child
New Jersey Parents Caucus, Inc
New Mexico Voices for Children
New York City Administration for Children's Services
Northern River Family of Services (NY)
One Hope United (IL, FL, MO, WI)
OneJustice (CA)
Ounce of Prevention Fund (IL)
Page 6 of 7
Prevent Child Abuse Arizona (AZ)

Pride Inc., Pride Manchester, Inc., Pride Wilton, Inc. (ND)
PromiseShip (NE)
Rhode Island Coalition for Children and Families
Rhode Island KIDS COUNT
Rincon Family Services (IL)
San Diego Volunteer Lawyer Program (CA)
Schuyler Center for Analysis & Advocacy (NY)
Southwest Key Programs (AZ, CA, FL, NY, TX, WI)
SPAN Parent Advocacy Network (NJ)
Starfish Family Homes (IL)
Sunny Hills Services (CA)
Texans Care for Children
The Adoption Exchange (CO, NV, UT)
The Children 's Home Society of New Jersey
The Children’s Partnership (CA)
The Foster and Adoption Coalition of Nevada
The Gay and Lesbian Community Center of Southern Nevada
The Hills Preschool (NV)
The Law Foundation of Silicon Valley (CA)
The Villages of Indiana, Inc.
Three Rivers Adoption Council (PA)
Thresholds (IL)
Treatment Alternatives for Safe Communities (IL)
United Community Services of Johnson County (KS)
Voice for Children in Nebraska
Voices for Children of San Antonio (TX)
Voices for Georgia's Children
Voices for Illinois Children
VOICES Youth Centers (CA)
Wayfinder Family Services (CA)
Whittier Street Health Center (MA)
Wisconsin Association of Family & Children's Agencies (WI)
Youth Employment Coalition (IL)
Youth Justice Coalition (CA)
Youth Service, Inc. (PA)
Youth, Rights and Justice (OR)
Page 7 of 7
July 16, 2018
The Honorable Kirstjen M. Nielsen

Secretary of Homeland Security
Washington, D.C. 20528
Dear Secretary Nielsen,
We have valued our membership on the Homeland Security Advisory Council, because it has provided
opportunities to offer advice on DHS missions and to support the efforts of its workforce.
Very unfortunately, however, there was no call for advice before recent immigration decisions were
announced, enforced, and then retracted by this Administration. Were we consulted, we would have
observed that routinely taking children from migrant parents was morally repugnant, counter-productive
and ill-considered.
We cannot tolerate association with the immigration policies of this administration, nor the illusion that
we are consulted on these matters.
Accordingly, please take this letter as a formal tender of our resignations from the Homeland Security
Advisory Council.
Sincerely,
Richard J. Danzig
Elizabeth Holtzman
David A. Martin
Matthew G. Olsen
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July 16, 201 8
The Honorable Kirsden M. Nielsen

Secretary of Homeland Security
Washington, D.C. 20528
Dear Secretary Nielsen:
joined today's letter from several HSAC members tendering our resignations from
I
the Homeland Security Advisory Council, but I write to expand on the reasons for my
action.
The unjust policy of separating families at the border obviously was the precipitating
event, as indicated in the joint letter. Now it has become clear that the policy was also
executed with astounding casualness about precise tracking of family relationships - as
though eventual reunification was deemed unlikely or at least unimportant, even for
toddlers and preschoolers.
I have spent much of my working life studying and implementing eff'ective, realistic
asylum adjudication systems, and also trying to lay the groundwork for serious and
resolute immigration enforcement. I know that both objectives can be reached in humane
ways. From the beginning, however, the administration has opted instead for gratuitously
severe actions in the immigration arena, such as the travel ban and the termination of the
DACA program, combined with commitment to a vast wall that no serious professional
thinks is an effective way to spend 25 billion enforcement dollars. These actions have
fueled polarization, alienated state and local governments, and moved us much further
from a sustainable, eff-ective, and strategically sensible immigration enforcement
program.
Further, the family separation policy crystallized for many HSAC members
profound doubts about the administration's commitment to the rule of law. These doubts
were sown, lbr example, when the president pardoned Sheriff Joe Arpaio, who had been
found in criminal contempt of courl for willfully violating a civil-rights-based
injunction. That pardon was issued less than two weeks after the President refused to
condemn the violent massing of Nazi and KKK sympathizers in Charlottesville. Our
doubts have then been nurtured regularly by tweets and statements talsely impugning the
integrity of the FBI, the Justice Department, the intelligence community, and various
federal courts.
580 Nlassic l{oarl . (lharlrttcsvillc, \',\ 22903-1738 ' r,rr,,rr ;13-1.92-1.314-1

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Commitment to the rule of law is essential to the protection of homeland security -

both constitutionally and operationally. Our nation's past successes in thwarling terrorist
acts and receiving information on nascent plots derive in major pafi from an
understanding by the members of our national community. including ethnic and religious
minorities - and by our global allies - that the IJS government stands for such values.
I greatly valued my time as an officer of DHS, and I then worked hard to contribute
constructively as a member of HSAC. Many friends remain at the Depaftment, and I
respect their ongoing efforts to fulfill a complex and challenging niission. I regret tliat the
administration's actions have pushed me and several other colleagues to this departure
from the Council.
Sincerely,
a . ,. 'n,1,4 -+-^
e**'/ A' /t/ (qJL--
David A. Martin
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ATTACHMENT A
(to Civil Cover Sheet)
Plaintiffs’ attorneys continued:
Susan B. Church (BBO # 639306)

Derege Demissie (BBO # 637544)
Heather Yountz (BBO # 669770)
Brittanie Allen (BBO # 697561)
DEMISSIE & CHURCH
929 Massachusetts Avenue, Suite 01
Cambridge, MA 02139
(617) 319-2399
[email protected]
[email protected]
Jeff Goldman (BBO # 548056)

THE LAW OFFICES OF JEFF GOLDMAN LLP
125 Washington Street, Ste. 204
Salem, MA 01970
(781) 704-3897
[email protected]
David A. Vicinanzo (pro hac vice forthcoming)

Nathan P. Warecki (BBO# 687547)
Lauren Maynard (BBO# 698742)
NIXON PEABODY LLP
53 State Street, Exchange Place
Boston, MA 02109
(617) 345-1000
[email protected]
[email protected]
[email protected]
Iván Espinoza-Madrigal (pro hac vice forthcoming)

Oren N. Nimni (BBO # 691821)
Lawyers for Civil Rights
61 Batterymarch Street, 5th Floor
Boston, MA 02110
(617) 988-0624
[email protected]
[email protected]
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
1. Title of case (name of first party on each side only) K.O. and E.O., Jr., by and through their parents and next friends, E.O. and L.J., et al
v. United States of America
2. Category in which the case belongs based upon the numbered nature of suit code listed on the civil cover sheet. (See local
rule 40.1(a)(1)).
I. 160, 400, 410, 441, 535, 830*, 835*, 850, 891, 893, R.23, REGARDLESS OF NATURE OF SUIT.
✔ II. 110, 130, 190, 196, 370, 375, 376, 440, 442, 443, 445, 446, 448, 470, 751, 820*, 840*, 895, 896, 899.
120, 140, 150, 151, 152, 153, 195, 210, 220, 230, 240, 245, 290, 310, 315, 320, 330, 340, 345, 350, 355, 360, 362,
III. 365, 367, 368, 371, 380, 385, 422, 423, 430, 450, 460, 462, 463, 465, 480, 490, 510, 530, 540, 550, 555, 560, 625,
690, 710, 720, 740, 790, 791, 861-865, 870, 871, 890, 950.
*Also complete AO 120 or AO 121. for patent, trademark or copyright cases.
3. Title and number, if any, of related cases. (See local rule 40.1(g)). If more than one prior related case has been filed in this
district please indicate the title and number of the first filed case in this court.
4. Has a prior action between the same parties and based on the same claim ever been filed in this court?
YES 9 NO 9✔
5. Does the complaint in this case question the constitutionality of an act of congress affecting the public interest? (See 28 USC
§2403)
YES 9 NO ✔
9
If so, is the U.S.A. or an officer, agent or employee of the U.S. a party?
YES 9 NO 9
6. Is this case required to be heard and determined by a district court of three judges pursuant to title 28 USC §2284?
YES 9 NO 9
✔
7. Do all of the parties in this action, excluding governmental agencies of the United States and the Commonwealth of
Massachusetts (“governmental agencies”), residing in Massachusetts reside in the same division? - (See Local Rule 40.1(d)).
YES ✔
9 NO 9
A. If yes, in which division do all of the non-governmental parties reside?
Eastern Division 9 Central Division ✔

9 Western Division 9
B. If no, in which division do the majority of the plaintiffs or the only parties, excluding governmental agencies,
residing in Massachusetts reside?
Eastern Division 9 Central Division ✔

9 Western Division 9
8. If filing a Notice of Removal - are there any motions pending in the state court requiring the attention of this Court? (If yes,
submit a separate sheet identifying the motions)
YES 9 NO 9
(PLEASE TYPE OR PRINT)
ATTORNEY'S NAME Howard M. Cooper and Joseph M. Cacace
ADDRESS Todd & Weld LLP, One Federal St., 27th Fl., Boston, MA 02110
TELEPHONE NO. 617-720-2626
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Case 4:20-cv-12015-TSH Document 1 Filed 11/09/20 Page 1 of 55

UNITED STATES DISTRICT COURT

5. Defendant’s employees’ unilateral conduct created a crisis that victimized non-

separate, and sent them to other immigration detention facilities.

traumatized from fleeing violence and persecution in their home countries.

7. Defendant’s continued separation and unreasonable refusal to reunite these

8. Based on Defendant’s employees’ conduct, the United States government is liable

disposition of such torts claims. See 28 U.S.C. § 2675.

L.J., as a result of her incapacity due to her minor status.

result of his incapacity due to his minor status.

law. See U.S.C. §§ 1346(b), 2674.

Jurisdiction and Venue

and the FTCA claims are ripe for adjudication.

Legal Framework Under Federal Immigration Law

also INA § 235(b), 8 U.S.C. § 1225(b); 8 C.F.R. §§ 208.1-208.31.

fear of persecution at an interview before an asylum officer. 8 U.S.C. §§ 1225(b)(1)(A)(i),

1225(b)(1)(B); 8 C.F.R. §§ 235.1-235.13.

and custody of unaccompanied minors.

905-06 (9th Cir. 2016).

parent is preferred. Id.

others.” Exhibit 1, Flores Settlement ¶ 11 (emphasis added); 8 U.S.C. § 1232(c)(2)(A).

program willing to accept legal custody. Id. ¶¶ 12, 14.

mental well-being. Such determination shall, at a minimum include verification of the

child’s immigration proceedings. Id.

Defendant’s Forcible Separation of Children

33. In 2017, the Defendant’s employees began forcibly separating thousands of

a federal misdemeanor offense. See 8 U.S.C. § 1325(a).

federal criminal custody.

served, and transferred back to civil immigration custody.

they were separated from the parents.

throughout the United States.

care, custody, and control.

United States without authorization with their children.

defend against removal to their home countries.

2017, available at https://www.cnn.com/2017/03/03/politics/dhs-children-adults-

immigration-border/index.html . While Kelly later backtracked after harsh criticism, an inside

2018, available at https://www.newyorker.com/news/news-desk/how-the-trump-administration-

at the Border, Vox, May 8, 2018, available at https://www.vox.com/policy-and-

a credible fear interview under federal asylum law.

away children.” According to a draft report of the results of an investigation by Michael

Oct. 6, 2020, available at https://www.nytimes.com/2020/10/06/us/politics/family-separation-

border-immigration-jeff-sessions-rod-rosenstein.html. Further, “the inspector general found a

process for completing sentencing in order to facilitate reunification of separated families.” In

stop that from happening.

once physically present in the United States. See 8 U.S.C. § 1158(a)(1).

thousands of miles away from their parents.

any legal basis for doing so.

while crying and pleading not to be taken away.

their children again.

54. Many parents were deported without their children.

instructed not to hold or touch older children.

at the detention centers.

from bronchiectasis, pulmonitis, pneumothorax, or collapsed lung. M. Sacchetti, Mother blames

2018, available at https://wapo.st/2PJRMv5?tid=ss_mail&utm_term=.3dddd9b5a241.

July 10, 2018, available at https://www.cnn.com/2018/07/10/politics/azar-hhs-child-separation-

harm done by the separation by prolonging it and transforming reunification into an

unnecessarily arduous journey through a labyrinth of government bureaucracy.

Migrant Family Separations, Wash. Post, July 31, 2018, available at