Government avoids contempt while settlement for abused immigrants approved

SAN JOSE -- A magistrate judge said Wednesday he would approve a settlement of a lawsuit filed by a class of abandoned, abused or neglected young adults under age 21 in the U.S. without permission.

U.S. Magistrate Judge Nathanael M. Cousins approved the agreement despite a last-minute complication because immigration authorities removed three class members from the country in recent months, prompting him to threaten to hold the federal government in civil contempt.

The U.S. Department of Justice and attorneys for the young adults both favored the settlement for class members between 18 and 20 years old who were granted Special Immigrant Juvenile Status by state probate courts.

Cousins issued the order to show cause after plaintiffs' lawyers reported that members of class were taken into custody by U.S. Immigrations and Customs Enforcement and returned to their home countries, two to Guatemala and one to Mexico. The removals violated a preliminary injunction the judge signed earlier this year.

Sirena P. Castillo, a Los Angeles partner with Manatt, Phelps & Phillips LLP who represents the 2,700 class members along with Public Counsel and the Lawyers Committee for Civil Rights of the San Francisco Bay Area, said the removals were a clear violation of the preliminary injunction requiring the individuals' attorneys be given 14 days notice before any enforcement action is taken.

Cousins voiced concern about the government's failure to notify the plaintiffs' attorneys or the court, saying the government must follow his own orders. If not, "that would turn the rule of law on its head." He said the government's failure to disclose its actions against class members "could be an inference there is a cover-up."

Mary Tanagho of Public Counsel said the government's actions raised concerns that other class members also had been removed, but their attorneys didn't know yet. Plaintiffs' attorneys asked Cousins to retain jurisdiction of the case until any class members removed from the U.S. were returned.

Lauren E. Fascett, a senior litigation counsel with the U.S. Department of Justice, denied there was a cover-up and said she had no objection to the court retaining jurisdiction of the case until the three removed individuals were returned. She said ICE was not a party to the case, adding that what happened was "a good exercise for the government to prevent these issues from recurring."

Cousins, noting the legal and practical complexities of returning people to the U.S. once they have been removed, said: "Unfortunately for the three individuals removed, it may be more than an unfortunate exercise."

In the end, Cousins ordered the government to provide an update on the status of the three individuals and a confirmation no other class members had been removed from the country by Jan. 17. J.L. et al. v. Cissna et al., 18-CV04914 (N.D. Cal., filed Aug. 14, 2018).

Fascett noted the preliminary injunction did not bar people with special immigrant status from being removed, only that their attorneys must be notified under the court order.

"The government would strongly object" to any order going beyond that, she added.

Cousins said he is not inclined to extend court jurisdiction to any future removals. The next hearing is scheduled for Jan. 29.