In the San Diego federal Ms. L. asylum seekers case, a new status report was filed overnight, and made public this morning. [Just one of my many backgrounders -- may be found here.] But the most newsworthy part isn't that progress continues to be made -- on reuniting, no.
The NEWS is that. . . Trump's team continues foot-dragging -- now resisting the common-sense notion of letting LEGAL guardians of detained asylum seeking children participate in the agreed settlement's rights and benefits. [It also wishes to maintain an arbitrary beginning date for any eligibility -- for those rights.] Let that sink in.
Disgusting -- these are fully-legal guardians, required to be recognized under long standing applicable US law. Once a clear constitutional right has been violated, a maxim of controlling US law holds that the remedies ought to be broadly fashioned. Read this, from page 18 et seq., of the 31 page report:
. . . .Pursuant to this Court’s instructions at the final approval hearing, on November 15, 2018, counsel for Objectors Lesbi Martinez-Martinez and Egla Velasquez Molina met and conferred with Defendants concerning the entitlement of legal guardians to relief. The government confirmed that they are unwilling to offer any relief to the Objectors, and that they maintain their position that legal guardians are not included in either the Ms. L Reunification Class or the M.M.M./Dora Settlement Class. The Ms. L Plaintiffs separately confirmed the government’s position with respect to the Ms. L. Reunification Class via email on November 29. . . .
In light of the government’s position, plaintiffs request that next week the parties propose to the Court how this issue should be addressed, and whether it is more appropriate for the Objectors’ claims to be resolved before this Court, or before the U.S. District Court for the District of Columbia. If plaintiffs propose to resolve the issue before this Court, they will also propose a briefing schedule. . . .
This Court has broad equitable authority to order any relief it deems just and proper to remedy the harms caused by Defendants’ violation of constitutional rights. See, e.g., Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 558 (9th Cir. 1990) (“Once plaintiffs establish they are entitled to injunctive relief, the district court has broad discretion to fashion a remedy.”); Walters v. Reno, 145 F.3d 1032, 1048-49 (9th Cir. 1998) (“Once . . . a constitutional violation has been ascertained, the district court retains broad discretion in fashioning a remedy.”). “[I[n constitutional adjudication as elsewhere, equitable remedies are a special blend of what is necessary, what is fair, and what is workable.” Lemon v. Kurtzman, 411 U.S. 192, 201 (1973) (plurality op.). This Court thus has broad equitable authority to order prospective relief and prevent a repeat of the practices that have harmed families in the past.
As the Court is aware, before it intervened, the government’s systems for tracking and reunifying separated families was inadequate. The record in this case is replete with evidence of the harms that resulted from Defendants’ policy and practice of separating families from each other, without any system to guarantee their expeditious reunification. . . .
The government interprets the Court’s class definition to include only those parents who (1) are or were detained in immigration custody, (2) have a minor child who was separated from them by DHS and (3) whose child was in ORR custody on or after June 26, 2018. Thus, the government would exclude from the class, and from any right to reunification, parents whose children happened to be released from ORR custody before June 26, 2018.
This is wrong. . . . First, the text of the Ms. L. class definition itself contains no date on which children must be in ORR custody. In relevant part, the class definition includes adult parents who (1) “have been, are, or will be detained in immigration custody” and (2) “have a minor child who is or will be separated from them by DHS and detained in ORR custody . . . .”
The government points to the present tense “is” in the second part to contend that the definition includes only those parents whose children were in custody on June 26. Properly read, however, the definition includes those parents who were, at any time, detained by DHS and who -- at the time of their detention -- had a child detained in ORR custody.
Plaintiffs’ reading is consistent with the underlying intent of the class definition and injunction. First, Plaintiffs did not propose that the class definition turn on the date on which a child must be in ORR custody. Nor did the government argue for that limitation in opposing class certification. Indeed, the text of the class definition that the Court adopted in relevant part was identical to that proposed by Plaintiffs in the Amended Class Complaint, see Dkt. 32 at 12, and Motion for Class Certification, see Dkt. 35-1 at 1. Neither Plaintiffs nor the Court intended to exclude from the class—and thereby deny any right to reunify with their children—parents whose children happen to have been taken out of ORR custody by the time the Court entered its orders. . . .
Second, imposing an artificial date limitation into the class definition would make no sense because both of the class representatives -- Ms. L. and Ms. C. -- would be excluded from the Class if the government were correct. . . .
Now you know -- and as Cohen's latest plea helped us (again) see yesterday (in "crooks of a feather" fashion), Trump may well have. . . no soul.
For my part, I am walking toward a snowy train-ride, with big weekend plans, ahead. "May those that love us, love us. . . and may the Infinite turn the hearts of those that. . . don't. And if the Infinite cannot turn their hearts, may the Infinite turn. . . their ankles, so that we might know them by. . . their limping." Smile.
नमस्ते
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