United States District Court, District of Columbia
M.M.M., on behalf of his minor child, J.M.A., et al., Plaintiffs,
JEFFERSON BEAUREGARD SESSIONS, III, Attorney General of the United States, et al., Defendants.
L. FRIEDMAN UNITED STATES DISTRICT JUDGE
case arises out of the government's controversial
“zero-tolerance” immigration policy, under which
immigrant parents unlawfully entering the United States with
their young children were subject to criminal prosecution and
forcibly separated from their children for several weeks. On
June 26, 2018, Judge Dana M. Sabraw of the United States
District Court for the Southern District of California
certified a nationwide class of separated parents and issued
a class-wide preliminary injunction requiring the government
to reunify separated families by July 26, 2018. See Ms.
L. v. U.S. Immigration & Customs Enf't, No.
18-0428, 2018 WL 3129486 (S.D. Cal. June 26, 2018). With
approximately 1, 800 families reunified to date, attention
has turned to what lies ahead for these parents and their
in this action are a putative class of non-citizen children
who were separated from their parents shortly after crossing
the United States-Mexico border. They allege that defendants
- various federal agencies and officials responsible for
enforcing immigration laws and regulations - recently adopted
a policy of removing families from the United States
immediately after reunification and, as a result, have denied
plaintiffs access to certain asylum procedures guaranteed by
statute and under the Constitution.
27, 2018, plaintiffs filed a motion for a temporary
restraining order and preliminary injunction [Dkt. No. 6].
Following expedited briefing, the Court held a hearing on the
motion on July 31, 2018. At the hearing, defendants orally
moved to transfer venue to the Southern District of
California pursuant to 28 U.S.C. § 1404(a). The
following day, defendants submitted a written supplement in
support of their oral motion to transfer venue [Dkt. No. 19],
and plaintiffs addressed the transfer issue in two
supplemental filings [Dkt. Nos. 18 and 23]. Upon careful
consideration of the parties' written submissions, the
relevant legal authorities, the arguments of counsel in open
court on July 31, 2018, and the entire record in this case,
the Court will grant defendants' motion to transfer
venue, subject to certain modifications.
filed this action on July 27, 2018. Plaintiffs are six
immigrant children ages six through thirteen who were
forcibly separated from their parents shortly after entering
the United States. See Compl. ¶¶ 68-105.
Having recently been reunified with their parents after
spending several weeks apart, they now face the prospect of
another lengthy separation: their parents are subject to
expedited removal orders and may soon be removed from the
country. See id. Plaintiffs bring this action by and
through their parents and next friends under Rule 17(c) of
the Federal Rules of Civil Procedure. They also bring class
action claims under Rule 23 of the Federal Rules of Civil
Procedure on behalf of “all non-citizens under the age
of 18 who were separated from their parents or guardians upon
(or after) entry into the United States and who are, have
been, or will be detained by the U.S. government at any time
since January 1, 2018.” See id. ¶¶
core allegation is that defendants have deprived them of
their right to pursue their own, independent asylum claims
after reunification with their parents. See Compl.
¶ 42. Plaintiffs allege that this right is separate from
the right of a parent to seek asylum on his or her own
behalf, see id. ¶ 46, and may not be waived by
the parent on behalf of the child, particularly when the
waiver is not knowing, intelligent, and voluntary, see
id. ¶ 50. According to plaintiffs, defendants have
coerced parents into abandoning their children's asylum
claims in order to remain together as a family unit. See
id. ¶ 46. Plaintiffs further allege that defendants
have obtained invalid waivers from parents that purport to
waive the rights of their children to pursue asylum and to be
accompanied by their parent while their asylum application is
pending. See id. They maintain that parents do not
have the legal authority to waive their children's rights
in this manner. See id. ¶ 50. Based on those
and other allegations, the complaint asserts four causes of
action: (1) violations of the Due Process Clause of the Fifth
Amendment (Count I); (2) petition for a writ of mandamus
under 28 U.S.C. § 1361 (Count II); (3) violations of the
Administrative Procedure Act, 5 U.S.C. § 706(2)(a)
(Count III); and (4) judicial review of defendants'
expedited removal policy under 8 U.S.C. § 1252(e)(3)
27, 2018, plaintiffs filed a motion for a temporary
restraining order and preliminary injunction. See
TRO Mot. at 1. Plaintiffs seek to temporarily restrain
defendants from depriving them of their right to pursue
asylum upon reunification with their parents pending a full
hearing on their preliminary injunction motion. See
id. They further move for a preliminary injunction
requiring defendants to permit plaintiffs to pursue asylum
following reunification with their parents or guardians and
in consultation with them. See id.
filed an opposition to plaintiffs' motion on July 30,
2018, arguing primarily that the Court should transfer this
case to the Southern District of California for consideration
together with the Ms. L. class action pending before
Judge Sabraw and two other actions brought on behalf of
separated children that were recently transferred to him.
See N.T.C. v. ICE, No. 18-6428, 2018 WL 3472544
(S.D.N.Y. July 19, 2018); Order, E.S.R.B. v.
Sessions, No. 18-6654 (S.D.N.Y. July 24, 2018), ECF No.
4. The Court held a hearing on plaintiffs' motion for a
temporary restraining order on July 31, 2018, during which
defendants orally moved to transfer venue. See July
31 Hr'g Tr. at 32. Defendants also submitted a supplement
to their oral motion to transfer venue. See Venue
Mot. at 1-2. Plaintiffs filed a reply in support of their
motion for a temporary restraining order, see TRO
Reply, as well as a response to defendants' motion to
transfer venue, see Venue Opp'n.
on June 26, 2018 in the Southern District of California,
Judge Sabraw issued a class-wide preliminary injunction
requiring the government to reunify separated families by
July 26, 2018. See Ms. L. v. U.S. Immigration &
Customs Enf't, 2018 WL 3129486, at *11-12. On July
16, 2018, the Ms. L. plaintiffs asked Judge Sabraw
to impose a seven-day waiting period before members of
reunified families can be removed from the country - relief
sought to ensure that parents can consult with their children
and counsel about legal options prior to removal. That day,
Judge Sabraw temporarily stayed removals of reunified
families pending his decision on plaintiffs' request for
a seven-day waiting period. See Order, Ms. L. v.
U.S. Immigration & Customs Enf't, No. 18-0428
(S.D. Cal. July 16, 2018), ECF No. 116.
28 U.S.C. § 1404(a), a district court may transfer a
civil action to any other district “[f]or the
convenience of the parties and witnesses, in the interest of
justice, ” so long as the transferee district is one
where the case “might have been brought.”
See 28 U.S.C. § 1404(a). Section 1404(a)
affords the Court broad discretion in determining whether
transfer from one jurisdiction to another is appropriate.
See Ravulapalli v. Napolitano, 773 F.Supp.2d 41, 55
(D.D.C. 2011) (citing SEC v. Savoy Indus. Inc., 587
F.2d 1149, 1154 (D.C. Cir. 1978)). The decision to transfer
is made based on an “individualized, case-by-case
consideration of convenience and fairness.” See
Ravulapalli v. Napolitano, 773 F.Supp.2d at 55 (quoting
Van Dusen v. Barrack, 376 U.S. 612, 622 (1964));
see also Aracely v. Nielsen, No. 17-1976, 2018 WL
3243977, at *6 (D.D.C. July 3, 2018). And the moving party
“bears a heavy burden” of establishing that
plaintiffs' choice of forum is inappropriate and the case
should be transferred to another venue. See Southern Utah
Wilderness Alliance v. Norton, 315 F.Supp.2d 82, 86
(D.D.C. 2004) (quoting Pain v. United Tech. Corp.,
637 F.2d 775, 784 (D.C. Cir. 1980)).
must make two showings to justify transfer under Section
1404(a). First, defendants must establish that plaintiffs
could have brought the action in the proposed transferee
district. See Aracely v. Nielsen, 2018 WL 3243977,
at *7 (citing Van Dusen v. Barrack, 376 U.S. at
616-17); see also 28 U.S.C. § 1404(a). Second,
defendants must demonstrate that “considerations of
convenience and the interest of justice weigh in favor of
transfer to that district.” See Aracely v.
Nielsen, 2018 WL 3243977, at *7 (citing Trout
Unlimited v. U.S. Dep't of Ag., 944 F.Supp. 13, 16
(D.D.C. 1996)). In evaluating whether defendants have made
this second showing, the Court weighs several private and
public interest factors. See id.; Ravulapalli v.
Napolitano, 773 F.Supp.2d at 55-56.
transferred pursuant to Section 1404(a) must be transferred
in their entirety. See 15 Charles Alan Wright,
Arthur R. Miller & Mary Kay Kane, Fed. Prac. & Proc.
Civ. § 3846 (4d ed. 2018). Where all claims in a single
case cannot be transferred to a single transferee district,
the Court has authority to sever claims, so that one case may
be transferred in its entirety pursuant to Section 1404(a),
while the remaining claim proceeds as a separate case.
See Pinson v. U.S. Dep't of Justice, 74
F.Supp.3d 283, 288 (D.D.C. 2014); Spaeth v. ...