Ms. L. Class Status Update Report; New Brief On The 21 Parents Owed A Flight To The US, To Reunite With Their Children.

There will be another status hearing on Friday, in San Diego, in the Ms. L. case (my backgrounder here), to go over the list of still-missing perhaps 1,000 children — who were detained pre-litigation. That number may well grow, as the government has only made its way through a portion of the potential 32,000 records of detention, thus far.

Here is the latest status report, 17 pages. And separately, here is a bit, from the latest 14 page ACLU brief regarding the 21 parents in full.

. . . .This Court has already held that each of the parents was entitled to proceed through the entirety of their proceedings while accompanied with their children. As this Court further explained, “arriving on the United States soil with one’s minor child to pursue relief extended by U.S. law — as well as international law to which the United States has acceded — calls out for careful assessment of how governmental actors treat such people and whether constitutional protections should apply.” Ms. L. v. ICE, 302 F. Supp. 3d 1149, 1164 (S.D. Cal. June 6, 2018). Under the “particular circumstances” of those who have come to the United States to seek asylum, the policy of separating family members is so “brutal” and “offensive” as to violate the right to family unity. Id.

As the Ninth Circuit has recognized, the existence of the right to seek asylum is meaningless if the ability to raise a fear, or present a claim, is impeded by government coercion or unconstitutional conduct. The statutory right to seek asylum “may be violated by a pattern or practice that forecloses the opportunity to apply,” Campos v. Nail, 43 F.3d 1285, 1288 (9th Cir. 1994), or that “interfere[s] with plaintiff class members’ exercise of their right to apply.” Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 564 (9th Cir. 1990) (upholding permanent injunction against unlawful interference with opportunity to meaningfully apply for asylum); Orantes-Hernandez v. Holder, 321 Fed. App’x 625, 626-27 (9th Cir. 2009) (refusing to dissolve the injunction); Campos, 43 F.3d at 1287 (affirming an injunction against a practice that interfered with the statutory right to apply for asylum: an immigration judge’s practice of denying transfer motions to asylum seekers who had moved across the country); cf. M.M.M., 347 F. Supp. 3d at 534 (declining to presume waiver of children’s asylum rights) (citing, inter alia, United States v. Lopez-Vasquez, 1 F.3d 751, 754 (9th Cir. 1993) (“Courts should indulge every reasonable presumption against waiver, and they should not presume acquiescence in the loss of fundamental rights”). . . .

It is unfathomable to me, that now more than a year after the first order enjoining Trump’s lawless violations of asylee’s rights, we still do not know with certainty. . . how many children are missing in the “system”. Separated from their paretns. This is an ongoing stain on our system of ordered liberty and fundamental freedoms. And the lady in the harbor (above) well knows it — and she. . . weeps.


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