Hogan Lovells negotiates settlement agreement providing legal relief for migrant families

Washington, D.C., 17 September 2018 – International law firm Hogan Lovells negotiated a settlement agreement with the U.S. government to resolve a class action lawsuit filed on behalf of migrant children who were forcibly separated from their parents after entering the United States. The settlement, if approved by the court, would ensure that hundreds of children and their parents receive a meaningful opportunity to seek asylum after reunification.

The Hogan Lovells team was led by Justin Bernick, Zachary Best, and T. Clark Weymouth.

“This agreement is a significant step towards getting relief for our six clients and the many other children like them who came here seeking refuge from violence in their home countries.  If approved, this agreement will vindicate our clients’ constitutional rights to seek asylum in the United States, and also ensure that parents and children will get to stay together throughout that process,” said Hogan Lovells partner Justin Bernick.

The lawsuit, M.M.M. v. Sessions, was brought before the federal court in Washington D.C. in July 2018, challenging the government’s plans to promptly deport children who were reunified with their families without first giving them the opportunity to seek asylum – a right guaranteed by the Immigration and Nationality Act and the Due Process Clause of the U.S. Constitution.  The plaintiffs are six children from Central America who were separated from their families under the Trump Administration’s zero-tolerance immigration policy, and were subsequently reunified with their parents pursuant to a court order in Ms. L v. U.S. Immigration and Customs Enforcement.

Like many other migrants coming across the border with Mexico, the six plaintiffs and their parents fled to the United States to escape violence in Central America, and they are afraid of returning home.  Migrant families in this situation, before being subject to deportation, are normally given special procedures for seeking asylum.  But because of how the zero-tolerance policy was carried out, these children were set to be deported without being heard on their requests for asylum.

The U.S. government claimed that the children could be deported without being given asylum rights because their parents signed a form related to the reunification process stating that they wished to be deported with their child.  “We explained to the court that the forms signed by the parents were never meant to give up children’s right to seek asylum.  In fact, the forms could not legally waive those rights because they said nothing about what rights the parents or their children have under U.S. immigration laws, let alone that those rights would be waived,” said senior associate Zachary Best.  “Fortunately, the court agreed.”

After Judge Paul L. Friedman transferred several claims to Judge Dana Makoto Sabraw in the Southern District of California, where another class action, Ms. L v. U.S. Immigration and Customs Enforcement, was being heard in August, the federal court in California rejected the government’s defense and granted a request for a temporary restraining order (TRO) that Hogan Lovells filed on behalf of its clients. The TRO was an important first step in obtaining relief, because it barred the U.S. government from deporting reunified families until the merits of the case were resolved.

The order granting the TRO, which determined that the six plaintiffs were likely to succeed on their claims, directed the parties to “meet and confer and propose a solution.” Over the ensuing weeks, Hogan Lovells and counsel in the related lawsuits negotiated an agreement with the U.S. government that would resolve the claims of the MMM children and others like them. The negotiations also included the ACLU, who are counsel for the parents in Ms. L, and counsel for the plaintiffs in Dora v. Sessions, a companion case filed in Washington, D.C. federal court seeking asylum relief on behalf of parents. 

In the end, the parties agreed on a procedure by which both parents and children would have a meaningful chance to seek asylum. If the court approves the agreement, parents who were given asylum interviews after being separated from their children would have a second chance to talk to an asylum officer and present additional evidence. Their children would have the opportunity to get their own asylum interviews, with the assistance of their parents. If either the parent or the child shows a “credible fear” of returning home, both the parent and the child would receive a full hearing before an immigration judge to prove their claims for asylum.

“This is a significant settlement that would guarantee due process for asylum seekers in family detention, and it’s a process that they otherwise would not have gotten after the separation policy.  The interview process should be fair, which means that the parent and the child should get to go through the process together,” said Manoj Govindaiah, Director of Family Detention Services with the Refugee and Immigrant Center for Education and Legal Services (RAICES).

Hogan Lovells is a leading global legal practice providing business-oriented legal advice and high-quality service across its exceptional breadth of practices to clients around the world.

“Hogan Lovells” or the “firm” is an international legal practice that includes Hogan Lovells US LLP and Hogan Lovells International LLP. For more information, see www.hoganlovells.com.

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