UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
BEFORE HONORABLE DANA M. SABRAW, JUDGE PRESIDING
_______________________________________
)
MS. L. AND MS. C.,
)
)CASE NO. 18CV0428-DMS
PETITIONERS-PLAINTIFFS,
)
)
)
VS.
)
)SAN DIEGO, CALIFORNIA
U.S. IMMIGRATION AND CUSTOMS
) FRIDAY MAY 4, 2018
ENFORCEMENT ("ICE"); U.S. DEPARTMENT
) 1:30 P.M. CALENDAR
OF HOMELAND SECURITY ("DHS"); U.S.
)
CUSTOMS AND BORDER PROTECTION ("CBP"); )
U.S. CITIZENSHIP AND IMMIGRATION
)
SERVICES ("USCIS"); U.S. DEPARTMENT
)
OF HEALTH AND HUMAN SERVICES ("HHS");
)
OFFICE OF REFUGEE RESETTLEMENT ("ORR"); )
THOMAS HOMAN, ACTING DIRECTOR OF ICE;
)
GREG ARCHAMBEAULT, SAN DIEGO FIELD
)
OFFICE DIRECTOR, ICE; ADRIAN P. MACIAS, )
EL PASO FIELD DIRECTOR, ICE; FRANCES M. )
JACKSON, EL PASO ASSISTANT FIELD
)
OFFICE DIRECTOR, ICE; KIRSTJEN NIELSEN, )
SECRETARY OF DHS; JEFFERSON BEAUREGARD )
SESSIONS III, ATTORNEY GENERAL OF THE
)
UNITED STATES; L. FRANCIS CISSNA,
)
DIRECTOR OF USCIS; KEVIN K.
)
MCALEENAN, ACTING COMMISSIONER OF
)
CBP; PETE FLORES, SAN DIEGO FIELD
)
DIRECTOR, CBP; HECTOR A. MANCHA JR.,
)
EL PASO FIELD DIRECTOR, CBP;
)
ALEX AZAR, SECRETARY OF THE
)
DEPARTMENT OF HEALTH AND HUMAN
)
SERVICES; SCOTT LLOYD, DIRECTOR
)
OF THE OFFICE OF REFUGEE RESETTLEMENT, )
)
RESPONDENTS-DEFENDANTS.
)
)
----------------------------------------

 REPORTER'S TRANSCRIPT OF PROCEEDINGS
MOTION HEARING

COUNSEL APPEARING:
FOR PLAINTIFF:

LEE GELERNT, ESQ.
ANAND VENKATA BALAKRISHNAN,ESQ.
ACLU IMMIGRANT RIGHTS PROJECT
125 BROAD STREET 18TH FLOOR
NEW YORK, NEW YORK 10004
BADIS VAKILI, ESQ.
ACLU FOUNDATION OF SAN DIEGO
AND IMPERIAL COUNTIES
P.O. BOX 87131
SAN DIEGO, CALIFORNIA 92138

FOR DEFENDANT:

REPORTED BY:

SARAH B. FABIAN, ESQ.
NICOLE N. MURLEY, ESQ.
U.S. DEPARTMENT OF JUSTICE
OFFICE OF IMMIGRATION LITIGATION
P.O. BOX 868
BEN FRANKLIN STATION
WASHINGTON, DC 20044

LEE ANN PENCE,
OFFICIAL COURT REPORTER
UNITED STATES COURTHOUSE
333 WEST BROADWAY, ROOM 1393
SAN DIEGO, CALIFORNIA 92101

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SAN DIEGO, CALIFORNIA - FRIDAY, MAY 4, 2018 - 1:45 P.M.
*

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THE CLERK:

*

*

NO. 18 CALENDAR, CASE NO. 18CV0428,

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MS. L. VERSUS U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; ON FOR

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MOTION HEARING.

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THE COURT:

GOOD AFTERNOON.

PLEASE?
LEE GELERNT FROM THE ACLU FOR

MR. GELERNT:
PLAINTIFFS, YOUR HONOR.

THANK YOU.

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THE COURT:

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MR. BALAKRISHNAN:

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FOR PLAINTIFFS, YOUR HONOR.
THE COURT:

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MR. BALAKRISHNAN:

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MR. VAKILI:

THE COURT:

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MS. FABIAN:

BARDIS

GOOD AFTERNOON.
GOOD AFTERNOON, YOUR HONOR.

SARAH

FABIAN WITH THE DEPARTMENT OF JUSTICE FOR THE DEFENDANTS.

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THE COURT:

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MS. MURLEY:

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GOOD AFTERNOON, YOUR HONOR.

VAKILI FROM THE ACLU SAN DIEGO FOR THE PLAINTIFF.

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ANAND BALKRISHNAN FROM THE ACLU

THANK YOU.

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MAY I HAVE APPEARANCES,

THANK YOU.
GOOD AFTERNOON, YOUR HONOR.

NICOLE

MURLEY WITH THE DEPARTMENT OF JUSTICE FOR THE DEFENDANTS.
THANK YOU.

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THE COURT:

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GOOD AFTERNOON.

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I READ ALL OF THE BRIEFING, WHICH I GREATLY

WELCOME.

MAY 4, 2018

 4

1

APPRECIATE.

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THE EFFORT THAT THE PARTIES HAVE PUT INTO WHAT IS A VERY

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SIGNIFICANT AND INTERESTING ISSUE.

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THE BRIEFING WAS EXCELLENT.

I REALLY APPRECIATE

I THINK FOR TODAY'S PURPOSES I WOULD LIKE TO FOCUS

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ON THE DUE PROCESS ARGUMENT.

WE CAN COME BACK, IF COUNSEL

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WOULD LIKE, AND ADDRESS SOME OF THE OTHER ISSUES.

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FAIRLY COMFORTABLE WITH THE JURISDICTIONAL ARGUMENTS, THE

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MOOTNESS, VENUE ARGUMENTS WITH THE APA AND ASYLUM STATUTE

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ARGUMENTS, AND WAS INCLINED TO GET RIGHT TO THE ISSUES.

BUT I AM

THE

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TENTATIVE ON THE JURISDICTIONAL ARGUMENTS WOULD BE TO DENY

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THOSE AND TO GET TO THE MERITS.

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SO LET'S START FIRST WITH -- PERHAPS I CAN INQUIRE

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OF DEFENSE COUNSEL FOR THE GOVERNMENT ON THE DUE PROCESS ISSUE

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AND ON THE OVERARCHING ISSUE, TO MAKE SURE I HAVE THE ISSUES

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CLEARLY IN MIND.

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DOES THE GOVERNMENT TAKE THE POSITION THAT THE DUE

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PROCESS CLAUSE, THE SUBSTANTIVE DUE PROCESS, DOES NOT APPLY IN

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THIS SETTING; OR ARE YOU MORE CAREFULLY FRAMING THE ISSUE WITH

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THE ASSUMPTION THAT SUBSTANTIVE DUE PROCESS DOES APPLY BUT IT

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DOESN'T PROVIDE FOR A RIGHT TO BE HOUSED TOGETHER?

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MS. FABIAN:

YOUR HONOR, THE GOVERNMENT'S POSITION

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IS NOT THAT SUBSTANTIVE DUE PROCESS DOES NOT APPLY HERE, BUT

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THE GOVERNMENT DOES CONTEND THAT THIS CASE DOES NOT ALLEGE A

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VIOLATION OF SUBSTANTIVE DUE PROCESS.

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THE COURT:

ALL RIGHT.

SO YOU WOULD AGREE THAT

MAY 4, 2018

 5

1

BECAUSE THESE INDIVIDUALS ARE PRESENT IN THE UNITED STATES

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THAT SUBSTANTIVE DUE PROCESS ATTACHES, AND THEN THE QUESTION

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WOULD BE WHETHER THE PRACTICE AT ISSUE VIOLATES OR IMPINGES

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UPON THAT RIGHT.

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MS. FABIAN:

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THE COURT:

THAT'S CORRECT, YOUR HONOR.
OR ANOTHER WAY OF LOOKING AT THAT IS

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WHETHER OR NOT THE CONDUCT THAT IS ALLEGED SHOCKS THE

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CONSCIENCE OR IN SOME WAY IMPINGES UPON THAT FIFTH AMENDMENT

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DUE PROCESS RIGHT.

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MS. FABIAN:

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THE COURT:

THAT'S CORRECT, YOUR HONOR.
THERE IS ALSO IN THE BRIEFING ARGUMENT

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THAT THE GOVERNMENT HAS A PRACTICE, OR PERHAPS EVEN A POLICY,

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OF SEPARATION OF FAMILIES AS A DETERRENCE MECHANISM.

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PLAINTIFFS HAVE CITED A NUMBER OF ARTICLES WHICH HAVE

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ATTRIBUTIONS TO SPOKESPERSONS WITHIN DHS AND HHS.

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17
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AND THE

WHAT IS THE GOVERNMENT'S POSITION; IS THERE A POLICY
OR IS THERE NOT SUCH A POLICY OR PRACTICE?
MS. FABIAN:

I WOULD SAY, YOUR HONOR, THERE IS NO --

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THERE IS NOT SUCH A POLICY.

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REFERRED TO IN THE PLEADINGS, THAT HAS BEEN THE CONSISTENT

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POSITION OF THE AGENCY.

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SEPARATION, THERE IS NOT.

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24
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I THINK THE STATEMENTS THAT ARE

WHETHER THERE IS A PRACTICE OF

I THINK -- I GUESS WHAT I WILL DO IS START WITH
MAYBE SOME NUMBERS THAT I THINK HELP CLARIFY A LITTLE BIT.
THE COURT:

YES.

MAY 4, 2018

 6

1

MS. FABIAN:

THESE ARE FROM THE PUBLIC-FACING

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INFORMATION FROM CBP'S WEBSITE, SO I WILL OFFER THAT.

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HAND OUT A PRINTOUT OF THE WEBSITE.

4

BUT I HAVE THE PREVIOUS VERSION OF IT IF YOU WOULD LIKE TO SEE

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IT.

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I CAN

IT WAS UPDATED YESTERDAY,

BUT WHAT I CAN SAY IS WHAT THAT REFLECTS IS IN MARCH

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OF 2018 14,000 INDIVIDUALS CROSSED THE SOUTHERN BORDER OF THE

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UNITED STATES AS MEMBERS OF FAMILY UNITS.

9

THIS RECORDKEEPING THAT MEANS FAMILY UNITS WOULD BE GROUPS

10
11

AND FOR PURPOSES OF

WITH A PARENT OR LEGAL GUARDIAN AND A CHILD OR CHILDREN.
SO 14,000 INDIVIDUALS CROSSED THE SOUTHERN BORDER AS

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MEMBERS OF FAMILY UNITS IN MARCH OF 2018.

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THINK THE NUMBER IS 15,090, CROSSED IN APRIL OF THIS YEAR.

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THE TOTAL FROM OCTOBER SO -- FOR WHAT WE WOULD SAY IS FISCAL

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YEAR 2018 TO DATE, THROUGH APRIL, THAT TOTAL IS 79,522

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INDIVIDUALS.

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JUST OVER 15,000, I

SO THOSE ARE THE NUMBERS WE ARE LOOKING AT IN TERMS

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OF WHAT -- INDIVIDUALS CROSSING THE SOUTHERN BORDER AS MEMBERS

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OF FAMILY UNITS.

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I KNOW THE NUMBER THAT HAS BEEN REPORTED OF MINORS

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IN HHS CUSTODY IS APPROXIMATELY 700.

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NUMBER IS THAT HHS IS NOT AWARE OF HOW THAT NUMBER WAS

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PROVIDED TO THE PRESS, TO MY KNOWLEDGE.

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IS -- AND IT IS NOT A NUMBER -- HHS HAS NOT HAD OFFICIAL

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RECORDKEEPING OF THAT NUMBER FOR A SIGNIFICANT TIME PERIOD,

MAY 4, 2018

WHAT I CAN SAY ON THAT

HOWEVER, I BELIEVE IT

 7

1

HOWEVER THEY HAVE MADE AN EFFORT TO QUANTIFY IT.

2

I WOULDN'T STRONGLY DISPUTE THAT 700 IS AN APPROXIMATE NUMBER

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AT THAT TIME.

4

ALWAYS -- IT IS GOING TO BE, YOU KNOW, COMING IN AND

5

INDIVIDUALS GOING OUT AGAIN.

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I WOULD SAY

AND IT HAS TO BE GIVE-OR-TAKE BECAUSE IT IS

THE COURT:

THERE IS AN ATTRIBUTION IN THE NEW YORK

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TIMES ARTICLE TO A REPRESENTATIVE OF HHS ACKNOWLEDGING THAT

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NUMBER.

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COULD BE AN ACCURATE ASSESSMENT?

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MS. FABIAN:

DO YOU TAKE ISSUE WITH THAT OR DO YOU AGREE THAT THAT

I WAS NOT ABLE TO DETERMINE WHO THAT

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INDIVIDUAL IS BY INQUIRIES SO -- BUT WHAT I DO KNOW IS THAT

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BASED ON MY UNDERSTANDING OF THE NUMBERS THAT HHS HAS, I

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WOULDN'T DISPUTE THAT AS AN APPROXIMATE NUMBER.

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THE COURT:

DO YOU HAVE ANY IDEA HOW THOSE NUMBERS

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COMPARE TO PRIOR ADMINISTRATIONS, OBAMA ADMINISTRATION OR

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OTHERS; IN OTHER WORDS, IS THERE A SHIFT IN THE NUMBERS SUCH

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THAT IT WOULD WARRANT THE ARGUMENT THAT IS BEING MADE THAT

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THERE IS A PRACTICE NOW OF SEPARATION?

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MS. FABIAN:

I DON'T, YOUR HONOR.

IT IS NOT --

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AGAIN, IT IS NOT A NUMBER THAT HAS HISTORICALLY BEEN TRACKED

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BY ANY AGENCY.

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WHAT I WOULD SAY IS THAT TO THE EXTENT -- THE REASON

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FOR ANY SHIFT, IF THERE WERE ONE -- I MEAN, I GUESS I WOULD

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FIRST SAY THAT, YOU KNOW, THAT IF YOU LOOK AT 700 AND DO SOME

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VERY ROUGH MATH WHICH I, YOU KNOW, A, I'M A LAWYER, AND, B, I

MAY 4, 2018

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DON'T WANT TO PUT THIS OUT THERE.

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EXAMPLE, THAT NUMBER WAS REPORTED IN AROUND APRIL.

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HAD 14,000 INDIVIDUALS IN FAMILY UNITS IN MARCH, IF YOU SAY

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HALF OF THOSE WERE MINORS THAT WOULD BE 700.

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IS -- SORRY -- 7,000, AND THAT 700 WOULD BE 10 PERCENT OF

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THAT.

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YOU WOULD SAY THAT THERE IS PROBABLY LESS THAN 10 PERCENT

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SEPARATION.

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BUT IF YOU SAY IT IS -- FOR
SO IF YOU

AND SO THAT

ASSUMING THAT THAT 700 RESULTED NOT ONLY FROM MARCH,

I CAN'T STAND BY THAT ASSESSMENT OTHER THAN SORT OF

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LOOKING AT THE NUMBERS AND WHAT REASONABLY MAY RESULT FROM

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THAT, BUT THAT'S MY SORT OF ROUGH ESTIMATE OF THE NUMBERS.

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TO THE EXTENT THAT THAT DOESN'T IN FACT ESTABLISH A WIDESPREAD

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POLICY I THINK THAT IS AN IMPORTANT THING TO NOTE.

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SO

I WOULD ALSO NOTE THAT CHANGES IN THOSE NUMBERS

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ARE -- TO THE EXTENT THEY OCCUR ARE NOT DUE TO -- AND THIS I

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THINK GOES TO THE FUNDAMENTAL POINT OF DEFENDANT'S BRIEFING --

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ARE NOT DUE TO A CHANGE IN DECISIONS TO SEPARATE IN AND OF

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THEMSELVES.

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ACTIONS THAT DHS IS TAKING, AND HOW THOSE ARE BEING APPLIED,

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AND SPECIFICALLY ONE EXAMPLE WOULD CERTAINLY BE PROSECUTIONS.

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PLAINTIFFS HAVE NOT CHALLENGED THE LEGALITY OF PROSECUTIONS

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THAT MAY OCCUR FOR THESE INDIVIDUALS.

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TO INCREASE THEN THE NUMBERS OF SEPARATIONS THAT RESULT FROM

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THOSE PROSECUTIONS WOULD INCREASE.

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THEY ARE GOING TO BE DUE, IF AT ALL, TO THE OTHER

SO IF PROSECUTIONS ARE

LIKEWISE, IF THE NUMBERS OF FAMILY UNITS CROSSING

MAY 4, 2018

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1

THE BORDER -- AND I THINK THAT IS ANOTHER IMPORTANT

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CONSIDERATION BECAUSE THIS NUMBER IS GOING -- HAS GONE UP AND

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IS GOING UP.

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BORDER INCREASES THEN THE NUMBERS OF SEPARATIONS MAY WELL

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INCREASE.

IF THE NUMBER OF FAMILY UNITS CROSSING THE

MOST NOTABLY BECAUSE IN ADDITION I THINK ANOTHER

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NUMBER THAT IS IMPORTANT TO KEEP IN MIND, IN LIGHT OF THE FACT

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THAT PLAINTIFFS HAVE FOCUSED HEAVILY ON REQUESTING THE COURT

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TO ORDER DETENTION IN FAMILY RESIDENTIAL CENTERS, IS THAT THE

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TOTAL CAPACITY IN RESIDENTIAL CENTERS IS LESS THAN 2700.

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THE GOVERNMENT'S ABILITY TO HOLD FAMILIES TOGETHER, THERE IS

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OTHER LIMITATIONS IN FAMILY RESIDENTIAL CENTERS AS WELL.

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THE COURT:

THE OPTION THEN, IF THE FACILITIES FILL

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UP, REACH CAPACITY AT 2700, THEN THERE WOULD BE A PAROLE

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OPTION OR A DETENTION OPTION.

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MS. FABIAN:

SO

AM I CORRECT?

THE OPTIONS BECOME WHETHER TO -- IF THE

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FAMILY IS ELIGIBLE FOR PAROLE, FOR DISCRETIONARY PAROLE FROM

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DHS, OR DHS WOULD HAVE TO DETAIN THE ADULT AND SEPARATE THE

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CHILD.
YES.

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THE COURT:

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IF THERE WERE A BLANKET POLICY TO SEPARATE FOR

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DETERRENCE VALUE, WOULD THAT BE LEGAL?

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UNDER THE FIFTH AMENDMENT?

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25

MS. FABIAN:

WOULD THAT PASS MUSTER

YOUR HONOR, I DON'T THINK THAT WOULD BE

POSSIBLE BECAUSE THE -- WHAT WE ARE TALKING ABOUT IS ANY

MAY 4, 2018

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SEPARATION DECISION IS MADE IN THE CONTEXT OF OTHER ACTIONS

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THAT -- SOME OF WHICH I WOULDN'T SAY ARE FOR THE PURPOSE OF

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DETERRENCE BUT ARE PART OF THE OVERALL FRAMEWORK OF

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IMMIGRATION ENFORCEMENT.

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THE COURT:

WOULDN'T YOU CONCEDE, THOUGH, THAT IF,

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HYPOTHETICALLY SPEAKING, THERE WERE SUCH A POLICY THAT WE WILL

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IMPLEMENT A POLICY OF DETERRING FAMILIES FROM ENTERING THE

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UNITED STATES BY SEPARATING THEM, WOULD YOU ARGUE THAT THAT

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WOULD NOT BE A CLEAR SUBSTANTIVE DUE PROCESS VIOLATION?

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MS. FABIAN:

I THINK I WOULD ASK THE QUESTION:

IS

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THERE OTHER -- IS IF IT WAS DONE WITHOUT ANY OTHERWISE

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AUTHORITY TO CAUSE THE SEPARATION, I THINK, WE MIGHT BE CLOSER

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TO THAT PROBLEM.
I THINK WHAT YOU HAVE TO LOOK AT, THOUGH, IS THAT

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IF -- IS THAT IF THE SEPARATION IS RESULTING FROM OTHER

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DISCRETIONARY ACTIONS THAT ARE BEING TAKEN WITHIN THE

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AUTHORITY AND NOT FOR THE PURPOSE OF DETERRENCE, THEN I THINK

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THAT IS HOW IT IS NOT GOING TO BE A SUBSTANTIVE DUE PROCESS

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PROBLEM.

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THE COURT:

SO IF SUBSTANTIVE DUE PROCESS APPLIES,

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WHICH THE GOVERNMENT AGREES IT DOES IN THIS CONTEXT, SO THAT

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IS FAMILIES ARRIVING -- LET'S START WITH MS. L. -- AT A PORT

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OF ENTRY SEEKING ASYLUM, AND THERE IS A CONSTITUTIONAL RIGHT

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TO FAMILY INTEGRITY, DOESN'T THE GOVERNMENT HAVE TO MAKE

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CERTAIN DETERMINATIONS BEFORE IT SEPARATES?

MAY 4, 2018

AND, FOR EXAMPLE,

 11

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THE PARENTAGE, DETERMINING THAT THE PARENT IS IN FACT A

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BIOLOGICAL PARENT OR A LEGAL GUARDIAN, AND FITNESS THAT THAT

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PERSON IS MENTALLY SOUND AND DOESN'T IMPOSE A DANGER TO THE

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CHILD?

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PRIOR TO SEPARATION, OR NOT?

DON'T THOSE TYPES OF DETERMINATIONS HAVE TO BE MADE

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MS. FABIAN:

WELL, I WOULD HAVE TO DISPUTE SORT OF

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THE PREMISE.

I THINK THERE IS NOT A CONSTITUTIONAL RIGHT TO

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FAMILY UNITY IN THE FACE OF OTHERWISE LAWFUL DETENTION.

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THINK THAT'S THE -- PLAINTIFFS ACKNOWLEDGE THAT THAT IS WHAT

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THE CASE LAW ESTABLISHED BUT SAID THAT THAT IS NOT THE

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SITUATION HERE.

AND I

BUT I THINK WE DISAGREE WITH THAT.

WHAT YOU HAVE HERE IS NOT A DECISION, AGAIN, BEING

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MADE TO SEPARATE AT THAT TIME.

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SHOULD THIS PERSON -- FIRST YOU HAVE SHOULD THIS PERSON BE

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DETAINED OR IS ICE GOING TO EXERCISE ITS DISCRETION TO RELEASE

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UNDER A VERY LIMITED SET OF REASONS THAT WOULD RESULT IN

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RELEASE.

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ARE THEY GOING TO DETAIN, WHICH IS ALSO A DISCRETIONARY

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DETERMINATION.

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IT IS -- THE QUESTION IS

AND THEN IF THE GOVERNMENT IS GOING TO DETAIN WHERE

THE COURT:

THIS IS A UNIQUE CONTEXT BECAUSE THE

21

PARENT AND THE CHILD SHOW UP TOGETHER, SO THEY ARE DETAINED

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TOGETHER.

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DOESN'T THE GOVERNMENT HAVE TO MAKE CERTAIN DETERMINATIONS

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BEFORE IT INTERFERES WITH THAT RIGHT?

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AND THEN IF A RIGHT OF FAMILY INTEGRITY ATTACHES

BECAUSE SIMPLY SAYING THERE IS DETENTION AND THE

MAY 4, 2018

 12

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GOVERNMENT, THEREFORE, CAN -- THE FAMILY INTEGRITY GIVES WAY

2

DOESN'T ADDRESS SPECIFICALLY WHAT'S HAPPENING IN THIS CASE.

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BECAUSE THE REALITY IS, THERE IS A FAMILY UNIT THAT'S DETAINED

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TOGETHER, AND THEN THE GOVERNMENT HAS TO MAKE A DECISION AS TO

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PAROLING OR DETENTION OR DETAINING TOGETHER.

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HAVE TO BE SOME DETERMINATION IN ORDER TO COMPLY WITH FIFTH

7

AMENDMENT RIGHTS BEFORE SEPARATELY DETAINING FAMILY MEMBERS?

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9

MS. FABIAN:
MADE.

DOESN'T THERE

WE DON'T AGREE THAT THAT HAS TO BE

AND I THINK THAT WHAT I WOULD SAY IS THAT YOU HAVE --

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AT THAT POINT THE FAMILY HAS EITHER PRESENTED AT A PORT OF

11

ENTRY OR HAS CROSSED THE BORDER AND BEEN APPREHENDED BY BORDER

12

PATROL.

CBP HAS SORT OF A PROCESSING FUNCTION AT THAT POINT.
WHAT IS -- WHAT IS IN EFFECT BEING DONE IN THE CASE

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14

WHERE THEN THE DECISION IS MADE TO DETAIN THE PARENT AND TO

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SEPARATE THE CHILD IS IN FACT THAT THE CHILD IS BEING

16

RELEASED.

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SO BECAUSE THE GOVERNMENT CANNOT RELEASE A MINOR

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WITHOUT PROVIDING ANOTHER CUSTODIAN OF THAT MINOR, THE WAY

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THAT IS DONE IS THAT THE MINOR IS TRANSFERRED TO HHS.

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WHAT THE TVPRA ANTICIPATES AND SORT OF PROVIDED FOR THE

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PROTECTION OF THE MINOR IN THAT SITUATION.

22

CAN THEN BE RELEASED TO ANOTHER CUSTODIAN IF ANOTHER CUSTODIAN

23

IS AVAILABLE WHO CAN TAKE CUSTODY OF THAT CHILD.

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EFFECT, I THINK --

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THE COURT:

THAT IS

AND SO THAT MINOR

SO, IN

BUT THAT IS RESULTING, OBVIOUSLY, IN A

MAY 4, 2018

 13

1
2
3

SEPARATION.
YOU ARE ARGUING IT IS LAWFUL SEPARATION, IT COMPLIES
WITH DUE PROCESS.

4

MS. FABIAN:

5

THE COURT:

YES, YOUR HONOR.
THE STATUTE, I THINK IT IS THE TVPRA,

6

REQUIRES THAT THE GOVERNMENT ACT IN THE BEST INTEREST OF THE

7

CHILD ONCE THE FAMILY CROSSES.

8

DOING WHAT'S BEST FOR THE CHILD HAS TO CONTEMPLATE THIS ISSUE

9

OF SEPARATION, DOES IT NOT?

10
11

FROM A STATUTORY FRAMEWORK

AND WHETHER THAT'S IN THE CHILD'S

BEST INTEREST?
MS. FABIAN:

THE TVPRA ACTS IN THIS CASE ONCE THE

12

DETERMINATION HAS BEEN MADE THAT THE PARENT IS UNAVAILABLE.

13

AND SO I THINK THE TVPRA'S ROLE IN THIS SETTING IS THAT WHEN

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ESSENTIALLY UNDER THE INA DETENTION IS NECESSARY AND

15

WHETHER -- IN CONSIDERING OTHER FACTORS DETENTION OF THE

16

PARENT WITH THE CHILD IS NOT POSSIBLE, THE TVPRA THEN ACTS TO

17

ENSURE THE BEST INTEREST OF THE CHILD IN -- BECAUSE THE CHILD

18

HAS NOW BECOME UNACCOMPANIED.

19

TRANSFER TO ORR.

20

THE COURT:

AND THAT IS THE PRACTICE OF

ISN'T THE CHILD BECOMING UNACCOMPANIED

21

BECAUSE OF THE GOVERNMENT'S DETERMINATION?

IN OTHER WORDS,

22

THE GOVERNMENT IS MAKING THE CHILD UNACCOMPANIED BY ELECTING

23

TO DETAIN THE PARENT.

24

UNACCOMPANIED WITHOUT ANY PARENT, IT IS THEY SHOWED UP WITH A

25

PARENT AND THEN THEY ARE NOW, LEGALLY SPEAKING, UNACCOMPANIED

SO IT IS NOT AS IF THE CHILD SHOWS UP

MAY 4, 2018

 14

1

BECAUSE THE GOVERNMENT HAS DETERMINED TO DETAIN THE PARENT.

2

THAT'S CORRECT.

MS. FABIAN:

AND THE GOVERNMENT'S

3

DETERMINATION, AS DISCUSSED IN OUR BRIEFS, IS THE GOVERNMENT

4

HAS NO CHOICE BUT TO MAKE THOSE DETERMINATIONS.

5

CASES IT IS GOING TO BE THAT THE PARENT IS SUBJECT TO

6

MANDATORY DETENTION AND THE GOVERNMENT HAS A LIMITED SCOPE OF

7

DISCRETION TO RELEASE.

8
9

THE COURT:

AND IN MANY

IN ONE OF THE DECLARATIONS SUBMITTED BY

THE GOVERNMENT THE PERSON, I THINK IT WAS MAYBE AN ICE

10

OFFICIAL, THE PERSON WHO MAKES THIS INITIAL DETERMINATION

11

INDICATES THAT THERE IS TWO PRIMARY CONCERNS; AND ONE IS

12

WHETHER THE PERSON IS THE PARENT OR A LEGAL CUSTODIAN AND,

13

TWO, WHETHER THEY ARE FIT.

14

COMPONENTS, MENTALLY SOUND AND FIT TO HAVE CUSTODY OF THE

15

CHILD.

16

AND THAT WOULD HAVE TWO

THAT WAS IN THE GOVERNMENT'S DECLARATION.
SO DOESN'T THE GOVERNMENT THEN NECESSARILY, IN ORDER

17

TO COMPLY WITH DUE PROCESS, HAVE TO MAKE A DETERMINATION THAT

18

THE PERSON EITHER IS OR IS NOT THE PARENT AND IS OR IS NOT FIT

19

BEFORE MAKING THE DETENTION DECISION WHICH WOULD THEN RENDER

20

THE CHILD UNACCOMPANIED UNDER THE TVPRA?

21

MS. FABIAN:

I WOULD PLACE THAT DECISION IN SORT OF

22

A DIFFERENT FRAMEWORK.

I WOULD SAY THAT THE DECISION HAS TO

23

BE MADE WHETHER DETENTION IS AUTHORIZED AND THEN OBLIGATED

24

UNDER THE INA.

25

WHETHER PAROLE OF THE FAMILY TOGETHER IS POSSIBLE, OR WHETHER

AND THEN THAT PART OF THE DECISION WILL GO TO

MAY 4, 2018

 15

1

DETENTION OF THE FAMILY IN AN ICE FAMILY RESIDENTIAL CENTER IS

2

POSSIBLE.

3

THE COURT:

IF YOU ARE GOING IN THAT ORDER THEN

4

WOULDN'T YOU BE MAKING DECISIONS THAT ARE NOT IN THE BEST

5

INTEREST OF THE CHILD?

6

STANDING ALONE AND YOU SAY THAT THIS PERSON IS SUBJECT TO

7

DETENTION, NOW THEREFORE THE MINOR IS UNACCOMPANIED, IT SEEMS

8

LIKE SOMEWHERE IN THAT PROCESS THE MINOR'S BEST INTEREST HAS

9

BEEN LOST.

SO IF YOU MAKE THE DETENTION DECISION

BECAUSE I DON'T THINK IT IS DISPUTED THAT IT IS IN

10

THE BEST INTEREST OF THE MINOR TO REMAIN WITH A PARENT OR

11

LEGAL GUARDIAN WHO IS FIT.

12

MS. FABIAN:

I WOULD SAY THAT IN SOME CASES WHERE

13

THE PARENT IS SUBJECT TO MANDATORY DETENTION -- I DON'T KNOW

14

IF I COULD PHRASE IT IN THE CONTEXT OF FITNESS, BUT I THINK

15

THAT PARENT IS THEN SUBJECT TO DETENTION, JUST LIKE A PARENT

16

WHO IS ARRESTED AND HAS TO GO INTO THE CRIMINAL JUSTICE

17

SYSTEM.

18

THE COURT:

BUT ISN'T THAT VERY DIFFERENT, BECAUSE

19

THERE THAT WOULD BE THE AGUILAR CASE WHERE A NUMBER OF

20

UNDOCUMENTED INDIVIDUALS WERE ARRESTED AT A FACTORY, THEIR

21

PLACE OF EMPLOYMENT; BUT THERE THEY ARE NOT WITH THE CHILD.

22

OSTENSIBLY THEY HAVE BEEN IN THE COUNTRY ILLEGALLY FOR QUITE

23

SOME TIME OR A PERIOD OF TIME, AND THEY ARE WORKING AND HERE

24

UNLAWFULLY.

25

VIOLATION, SO THEY ARE CLEARLY SUBJECT TO CRIMINAL

THEY HAVE COMMITTED A CRIME, PERHAPS 1326, A 1325

MAY 4, 2018

 16

1

PROSECUTION.

2

AND IN THAT CONTEXT IT IS CLEAR THAT THE DUE PROCESS

3

CLAUSE IS NOT AN IMPINGEMENT FOR THE GOVERNMENT TO DETAIN THAT

4

PARENT AND KEEP HIM OR HER SEPARATE FROM THEIR CHILD.

5

NOT DISPUTED.

6

IT?

7

THAT'S

BUT THAT'S AN ENTIRELY DIFFERENT CONTEXT, ISN'T

MS. FABIAN:

I THINK IN MANY OF THESE CASES THE SAME

8

VIOLATION HAS OCCURRED, A 1325 OR A 1326.

9

DIFFERENCE IS THAT IN THIS CASE THE PARENT HAS ESSENTIALLY

10

BROUGHT THE CHILD AND IS BEING APPREHENDED FOR THAT CRIME

11

WHILE ALSO TOGETHER WITH THE CHILD.

12

THE COURT:

SO THE ONLY

BUT WHAT ABOUT THE REALITY WHICH IS THAT

13

WE HAVE AN ASYLUM STATUTE, SO AS A COUNTRY WE HAVE DETERMINED

14

BY LAW THAT WE ARE GOING TO PROVIDE ASYLUM FOR CERTAIN

15

QUALIFYING INDIVIDUALS.

16

PROCESS IS TO COME, FOR EXAMPLE AS MS. L. DID, TO THE PORT OF

17

ENTRY.

18

TO A PROCESS THAT WE HAVE SET IN PLACE, SEEKING ASYLUM.

19

DOESN'T THAT CONTEXT INVITE A MORE ROBUST ANALYSIS OF

20

SUBSTANTIVE DUE PROCESS?

21

AND THE ONLY WAY TO EFFECT THAT

SO SHE IS HERE UNDOCUMENTED, BUT SHE IS HERE PURSUANT

MS. FABIAN:

I THINK YOU STILL HAVE TO LOOK TO,

22

ESPECIALLY WHEN YOU ARE ASKING DOES IT SHOCK THE CONSCIENCE,

23

WHAT IS -- HOW DOES THE INA DEAL WITH THAT SITUATION.

24
25

SO IF YOU ARE LOOKING AT THE ACTIONS TAKEN BY CBP IN
MOST CASES, OR POSSIBLY BY ICE IN THOSE SITUATIONS, THE

MAY 4, 2018

 17

1

QUESTION STILL IS ARE THEY ACTING WITHIN THE AUTHORITY THAT

2

THE INA HAS GIVEN TO THEM IN THOSE SITUATIONS.
SO I DON'T SEE HOW THAT CHANGES THE SUBSTANTIVE DUE

3
4

PROCESS ANALYSIS SO LONG AS THEY ARE STILL ACTING WITHIN THEIR

5

AUTHORITY UNDER THE STATUTES.

6

THE COURT:

AM I CORRECT IN ASSUMING THAT IN ORDER

7

TO SEEK ASYLUM, YOU CAN'T DO IT FROM OUTSIDE OF THE COUNTRY

8

YOU WOULD -- ARGUABLY THE BEST MANNER OF DOING THAT WOULD BE

9

TO COME TO THE PORT OF ENTRY.

10

WITH YOUR CHILD, IN THESE CIRCUMSTANCES, AND ASK FOR ASYLUM.
IS THERE ANY OTHER WAY TO DO IT FROM OUTSIDE OF THE

11
12

EFFECTIVELY SURRENDER YOURSELF

COUNTRY?

13

MS. FABIAN:

I BELIEVE THERE IS.

BUT DESPITE MY

14

JOB, I AM ACTUALLY NOT AN EXPERT IN THE IMMIGRATION LAW,

15

PORTIONS OF IT.

16

I BELIEVE THERE IS, BUT I DON'T KNOW.

17

SO I DON'T WANT TO GIVE YOU A WRONG ANSWER.

THE COURT:

THE VAST MAJORITY OF PEOPLE DO IT ONE OF

18

TWO WAYS:

19

IN, GET CAUGHT, AND THEN LATER SEEK ASYLUM.

20
21

THEY COME TO THE PORT OF ENTRY OR THEY TRY TO SNEAK

MS. FABIAN:

I THINK THAT IS CORRECT.

THAT IS THE

VAST MAJORITY.
AS TO MS. C, SHE DID THE LATTER, SHE

22

THE COURT:

23

TRIED TO SNEAK IN, GOT CAUGHT.

24

SENTENCED.

25

45-DAY SENTENCE.

WAS CHARGED, CONVICTED, AND

SHE THEN DID HER TIME, IT WAS A MISDEMEANOR,
IS THERE ANY PROCESS THAT HHS HAS OR DHS HAS

MAY 4, 2018

 18

1

WHERE AFTER A PERSON HAS SERVED THEIR TIME EFFORTS OR A

2

PROCESS EXISTS TO EXPLORE THE LAWFUL OPTIONS OF REUNITING THE

3

PARENT WITH THE CHILD?
I READ A DECLARATION SOMEWHERE THAT THERE IS JUST A

4
5

VACUUM.

THAT THESE PEOPLE LIKE MS. C. JUST FALL INTO A BLACK

6

HOLE AND THERE IS NO RECOGNIZED PROCESS THAT THE GOVERNMENT

7

HAS TO TRY TO REUNITE.

8

THE PROPOSED CLASS TO INITIATE.

9

MS. FABIAN:

IT IS INCUMBENT UPON THE MS. C.'S OF
AM I MISAPPREHENDING THAT?

I DON'T KNOW THE BLACK HOLE REFERENCE

10

THAT YOU ARE REFERRING TO.

I WOULDN'T DESCRIBE IT THAT WAY.

11

BUT I CAN DESCRIBE THE PROCESS.
AND SO FOR MS. C., FOR EXAMPLE, IF SHE WAS RELEASED

12
13

FROM CRIMINAL CUSTODY, ICE LIKELY HAD A DETAINER ON HER AND

14

WOULD HAVE PICKED HER UP FROM CRIMINAL CUSTODY INTO ICE

15

CUSTODY.

16

IN HER REMOVAL PROCESS OR IN HER PROCEEDINGS -- IF YOU SAW

17

FROM OUR DECLARATIONS, AT SOME POINT IN THE PROCESS SHE WAS

18

FOUND TO HAVE CREDIBLE FEAR AND PLACED INTO PROCEEDINGS AND

19

THAT CHANGED THE AUTHORITY TO DETAIN HER AND ENTITLED HER TO A

20

BOND HEARING.

21

MANDATORY DETENTION.

22

THE COURT:

23

MS. FABIAN:

AND MAY THEN, AT THAT TIME, DEPENDING WHERE SHE WAS

BUT UP TO THAT POINT SHE WAS SUBJECT TO

YES.
SO WHEN ICE PICKED HER UP I BELIEVE SHE

24

WAS STILL SUBJECT TO MANDATORY DETENTION.

25

MAKE THE SAME PAROLE -- DISCRETIONARY PAROLE DETERMINATION AND

MAY 4, 2018

SO ICE WOULD THEN

 19

1

DETERMINE TO DETAIN HER.
AS LONG AS SHE IS SUBJECT TO DETENTION -- I AM NOT

2
3

SURE EXACTLY WHICH POINT YOUR HONOR IS ASKING ABOUT.

4

AS SHE IS SUBJECT TO DETENTION THERE IS NOT A PROCESS THAT

5

WOULD REUNITE THEM AT THAT TIME BECAUSE SHE IS IN ICE CUSTODY

6

AND REMAINS UNAVAILABLE.

7

THE COURT:

AS LONG

SHOULDN'T THERE BE -- IF THE BEST

8

INTEREST OF THE CHILD IS BEING EXAMINED, OR REQUIRED UNDER THE

9

TVPRA, SHOULDN'T IT BE, THEN, THAT AFTER A PERSON DOES THEIR

10

TIME, THEY HAVE BEEN RIGHTFULLY PUNISHED AND THEY HAVE DONE

11

THEIR TIME, THEY ARE NOW OUT OF CUSTODY AND THEY ARE IN ICE

12

DETENTION TO PURSUE IMMIGRATION AND ASYLUM; SHOULDN'T THERE

13

BE, IN ORDER TO EFFECT THE BEST INTEREST OF THE CHILD, SOME

14

MECHANISM FOR PEOPLE TO MAKE THE REQUEST TO REUNITE WITH THEIR

15

CHILD, AND SOME OBLIGATION ON THE PART OF THE GOVERNMENT TO

16

MAKE A DETERMINATION OF WHETHER THE PERSON IS A PARENT AND IS

17

FIT?

18
19
20

MS. FABIAN:

ARE YOU ASKING A MECHANISM TO REUNITE

IN FAMILY DETENTION, OR OUT OF DETENTION ENTIRELY?
THE COURT:

EITHER ONE.

THE WAY I UNDERSTAND THE

21

PROCESS -- THAT WAS MY REFERENCE TO THE BLACK HOLE -- IS THE

22

PERSON GETS OUT OF CUSTODY FOR THE CONVICTION THEY ARE

23

SERVING, THEY THEN GO INTO ICE DETENTION TO PURSUE IMMIGRATION

24

AND ASYLUM RELATED MATTERS, BUT THEIR CHILD IS SOMEWHERE ELSE,

25

WITH ORR IN SOME OTHER FACILITY.

AND THERE IS NO PROCEDURE

MAY 4, 2018

 20

1

OR MECHANISM FOR THAT PARENT TO REUNITE WITH THEIR CHILD,

2

ABSENT HIRING LAWYERS OR PURSUING IT ON THEIR OWN.

3

CORRECT?

4

MS. FABIAN:

IS THAT

I THINK THAT IS CORRECT IN THE SENSE

5

THAT THAT INDIVIDUAL IS REALLY IN THE SAME PLACE AS THE PERSON

6

YOU DESCRIBED WHO IS APPREHENDED AT A JOB-SITE AND TAKEN INTO

7

ICE CUSTODY.

8
9

AT THAT POINT THE SEPARATION HAS OCCURRED BECAUSE OF
THE PROSECUTION.

AND THAT PERSON THEN, WHEN RELEASED FROM

10

CRIMINAL CUSTODY, IS BEING TAKEN INTO ICE CUSTODY.

AT THAT

11

POINT, AGAIN, THE SEPARATION HAS ALREADY OCCURRED.

THE MINOR

12

IS IN ORR CUSTODY.

13

SUBJECT TO THE TVPRA, SO SUBJECT TO A FINDING OF A SUITABLE

14

CUSTODIAN.

15

CUSTODY THEY ARE NOT GOING TO BE A SUITABLE CUSTODIAN, NOR IS

16

THERE THE ABILITY TO DETAIN THEM TOGETHER BECAUSE THEY ARE

17

THEN IN ICE CUSTODY.

18

THE COURT:

19

MS. FABIAN:

THE ONLY RELEASE FROM ORR CUSTODY IS

AND UNTIL -- WHILE THAT INDIVIDUAL REMAINS IN

OKAY.
IT WOULD GO -- THE SUGGESTION HAS BEEN

20

MADE AS IT WAS -- I MEAN, I GUESS I WOULD FIRST NOTE THAT I

21

THINK, AS YOUR HONOR'S QUESTIONS SUGGEST, THESE ALONE ARE TWO

22

VERY DIFFERENT SCENARIOS THAT ARE POSITED THAT SORT OF

23

UNDERMINE THE CLASS TREATMENT OF THIS ISSUE.

24

BUT, IN ADDITION, I THINK TO THE EXTENT THE

25

SUGGESTION HAS BEEN MADE THAT THE ACROSS-THE-BOARD SOLUTION TO

MAY 4, 2018

 21

1

THAT IS DETENTION IN AN ICE FAMILY RESIDENTIAL CENTER IN ALL

2

SETTINGS, THE NUMBERS SHOW THAT THAT IS NOT A FEASIBLE

3

SOLUTION.

4

THAT HAVE TO BE CONSIDERED.

5

EXAMPLES.

AND IT IS -- THERE ARE OTHER SCENARIOS IN ADDITION
YOU HAVE -- THESE ARE TWO

PLAINTIFFS FILED SOME DECLARATIONS WITH A REPLY

6
7

BRIEF, WHICH WE OBJECT TO SOME EXTENT TO THE TIMING OF THE

8

FILING OF THOSE.

9

CONSIDER THEM WE WOULD ASK FOR THE OPPORTUNITY TO DO AN

10

WE ARE NOT -- IF THE COURT INTENDS TO

EVIDENTIARY RESPONSE TO THOSE.
BUT WHAT I CAN PROFFER A LITTLE BIT IS THAT THOSE --

11
12

ONE OF THEM WE WERE UNABLE TO LOCATE THE INDIVIDUAL IN THE

13

TIME FRAME DISCUSSED IN THE DECLARATION, SO WE ARE UNABLE TO

14

DETERMINE IF THAT ONE IS ACCURATE.
BUT IN OTHER SCENARIOS, THOSE DECLARATIONS DO RAISE

15
16

SOME OTHER SITUATIONS THAT ALSO GIVE RISE TO SEPARATION AND

17

OTHER DIFFERENCES BETWEEN THE SCENARIOS THAT MAY BE IN PLAY

18

HERE.
AND I THINK ALL OF THOSE, THEN -- FOR EXAMPLE, IN

19
20

ONE CASE YOU HAD A MOTHER WHO HAD A SIGNIFICANT CRIMINAL

21

HISTORY, SO ICE WAS UNABLE TO PLACE HER IN THE FAMILY

22

RESIDENTIAL CENTER BECAUSE -- AND I WOULD NOTE, FAMILY

23

RESIDENTIAL CENTERS ARE A VERY OPEN SETTING.

24

PODS.

25

THE CHILDREN.

FAMILIES ARE HOUSED TOGETHER.

THERE IS SCHOOLING FOR

THERE IS FREE MOVEMENT.

MAY 4, 2018

THERE IS SORT OF

IT IS NOT A DETENTIVE

 22

1

SETTING.

2

THAT FACTOR, WOULDN'T THAT GO TO

THE COURT:

3

FITNESS, ARGUABLY, WHETHER THE PARENT IS FIT FOR HAVING CARE

4

AND CUSTODY OF THAT CHILD, IN ADDITION TO OTHERS, OTHER

5

CHILDREN THAT MAY BE IN THAT JOINT HOUSING ENVIRONMENT.

6

A FIFTH AMENDMENT ANALYSIS, AT LEAST IMPLICITLY, THE

7

GOVERNMENT WOULD BE MAKING THAT DETERMINATION THAT THAT PARENT

8

IS NOT APPROPRIATE FOR JOINT HOUSING.

9

MS. FABIAN:

SO ON

I THINK IT HAS -- I WOULDN'T RELATE THE

10

TWO DETERMINATIONS.

I THINK -- I WOULD NOTE THAT A LOT OF

11

TIMES THESE DECISIONS ARE BEING MADE DURING THE RELATIVELY

12

SHORT TIME PERIOD AFTER SOMEONE COMES INTO CUSTODY BEFORE THEY

13

ARE PLACED IN A LONG-TERM SITUATION.
THERE IS A STRONG INTEREST TO NOT PROLONG THE TIME

14
15

IN THAT ORIGINAL APPREHENSION SETTING, IT IS MORE A -- IN A

16

CRIMINAL SETTING I GUESS IT IS SORT OF THE -- YOU ARE STILL IN

17

THE STATION.

18

MADE.

19

BUT TO GET FOLKS TO THE LOCATION WHERE THEY CAN BE HOUSED

20

LONG-TERM IF THAT IS WHAT IS GOING TO HAPPEN.

21
22

YOU ARE BEING PROCESSED, DECISIONS ARE BEING

BUT WE DON'T -- THE GOAL IS NOT TO PROLONG THAT PROCESS

THE COURT:

BUT IF I MIGHT, LET ME INQUIRE ABOUT THE

FACTS RELATING TO MS. L.

23

AS I UNDERSTAND IT, WHEN SHE ARRIVED WITH HER CHILD

24

SHE INITIALLY WAS HOUSED TOGETHER IN A MOTEL OR SOME LOCATION

25

FOR A PERIOD OF FOUR DAYS.

AND THEN A DETERMINATION WAS MADE

MAY 4, 2018

 23

1

TO DETAIN HER, AT WHICH POINT THE MINOR BECAME UNACCOMPANIED

2

AND WAS SUBJECT TO ORR DETENTION AND PLACED IN CHICAGO.

3

IS THAT CORRECT?

4

MS. FABIAN:

MY UNDERSTANDING.

AND THAT IS THE --

5

AT THE PORT OF ENTRY IN SAN YSIDRO THEY SOMETIMES USE THE

6

HOTEL -- OR THEY HAVE A LITTLE BIT MORE ABILITY TO HAVE

7

SLIGHTLY LONGER TERM.

8

THE COURT:

9

MS. FABIAN:

THAT IS STILL NOT LONG-TERM DETENTION.
YES.
BUT UNLIKE A LOT OF BORDER PATROL

10

STATIONS WHERE THEY ARE REALLY NOT DESIGNED FOR LONGER TERM

11

DETENTION THEY DO HAVE THE ABILITY TO HOLD A LITTLE LONGER TO

12

DEAL WITH THEIR HIGHER VOLUMES.

13

THE COURT:

IN THAT CASE THERE WERE QUESTIONS ABOUT

14

WHETHER SHE WAS THE BIOLOGICAL PARENT.

15

TO A LACK OF DOCUMENTATION OR INSUFFICIENT DOCUMENTATION FOR

16

IT TO MAKE A PRINCIPLED DETERMINATION AS TO WHETHER SHE WAS

17

THE PARENT.

18

THERE WAS THE DNA OPTION.

THE GOVERNMENT CITES

AND AS I UNDERSTAND IT

19

THE DNA OPTION IS, OR CAN BE, QUICK, EASY, AND RELATIVELY

20

INEXPENSIVE.

21

DO YOU DISPUTE THAT?

MS. FABIAN:

I DON'T HAVE INFORMATION SPECIFICALLY

22

ON THE EXPENSE OR WHETHER -- AS YOU ARE AWARE, WHEN THE

23

GOVERNMENT DOES SOMETHING IT CAN SOMETIMES COST MORE.

24

DON'T HAVE INFORMATION ON THE ABILITY TO DO THAT IN ANY SORT

25

OF -- WHETHER THAT'S A FEASIBLE OPTION.

MAY 4, 2018

SO I

 24

1

THE COURT:

2

MS. FABIAN:

YES.
WHAT I WILL SAY IS MY UNDERSTANDING IS

3

THAT WHILE IN ANY INDIVIDUAL CASE YOU COULD LOOK AND SAY DNA

4

TESTING COULD HAVE QUICKLY SOLVED THE PROBLEM HERE, DHS HAS

5

NOT INSTITUTED THAT ON ANY SORT OF BROADER SCALE; IN PART

6

BECAUSE OF PRIVACY CONCERNS AND ISSUES WITH SORT OF

7

INSTITUTING THAT AT THE BORDER, AT THE POINT OF APPREHENSION.

8
9
10

THE COURT:

ALTHOUGH THAT ISSUE AROSE, I THINK THE

GOVERNMENT IS THE ONE THAT BROACHED THAT SUBJECT, IF I
REMEMBER THE CONTEXT.

SO I ORDERED IT, AND IT WAS DONE.

I ASKED MR. BETTWY WHETHER THE COURT WAS ABOUT TO DO

11
12

SOMETHING THAT WOULD CAUSE ALL KINDS OF PROBLEMS, AND THE

13

INDICATION WAS THAT IT WAS A PRETTY SEAMLESS, EASY THING TO

14

DO.

15

IT WAS DETERMINED THAT MS. L. WAS THE MOTHER.

16

AND WITHIN A MATTER OF A FEW DAYS THE RESULT WAS HAD AND

SO THE QUESTION IS, IF WE ASSUME THAT DNA TESTING

17

CAN BE AN AVAILABLE TOOL FOR THE GOVERNMENT IF THE GOVERNMENT

18

DOESN'T HAVE SUFFICIENT DOCUMENTATION, PASSPORT OR OTHERWISE,

19

FOR IT TO DETERMINE THAT THIS PERSON IS THE PARENT OR LEGAL

20

GUARDIAN; BEFORE SEPARATING, THAT IS MAKING THE PARENT

21

DETAINED AND THEN RENDERING THE CHILD UNACCOMPANIED, BEFORE

22

DOING THAT SHOULDN'T IT TAKE THE ONE EXTRA STEP AND DO A DNA

23

TEST, IF THAT IS REQUESTED?

24
25

MS. FABIAN:

MY UNDERSTANDING IS WHEN THE DNA TEST

WAS CONDUCTED IN THIS CASE IT WAS CONDUCTED WHILE BOTH

MAY 4, 2018

 25

1

INDIVIDUALS HAD BEEN -- WERE THEN IN LONGER TERM FACILITIES

2

WHERE THERE WAS -- YOU HAD MEDICAL PROFESSIONALS AVAILABLE FOR

3

THE PARENT.

4

MANDATE IS LOCATING SUITABLE CUSTODIANS AND IN SOME CASES

5

ENSURING THAT A PARENT OR A FAMILY MEMBER IS WHO THEY SAY THEY

6

ARE.

AND ORR DOES USE DNA TESTING BECAUSE ORR'S

IN TERMS OF IMPLEMENTING THAT ON A BROADER SCALE, I

7
8

THINK IT WOULD BE -- IT MAY, AT TIMES, ANSWER THE QUESTION FOR

9

CERTAIN INDIVIDUALS.

BUT, AS YOU SAID, PARENT OR LEGAL

10

GUARDIAN, IT IS NOT ALWAYS GOING TO ANSWER THE QUESTION, FOR

11

EXAMPLE FOR A LEGAL GUARDIAN OR AN ADOPTIVE PARENT OR A PARENT

12

WHO HAS BEEN -- WHO HAS LOST CUSTODY AND IS BRINGING THE CHILD

13

INTO THE UNITED STATES FOR PURPOSES OF ESCAPING.

14

THE COURT:

IN THAT EVENT COULDN'T THE GOVERNMENT

15

THEN SAY, CONSISTENT WITH DUE PROCESS, THERE IS NOT SUFFICIENT

16

DOCUMENTATION.

17

PARENT.

18

THIS PERSON IS A PARENT OR A LEGAL GUARDIAN, AND THEREFORE WE

19

ARE GOING TO DETAIN, WHICH WILL EFFECT THE SEPARATION.

22
23
24
25

THERE IS NOT SUFFICIENT EVIDENCE TO DEMONSTRATE THAT

BUT WOULDN'T THAT BE MUCH MORE CONSISTENT WITH DUE

20
21

WE HAVE DONE A DNA TEST, YOU ARE NOT THE

PROCESS?
MS. FABIAN:

I THINK IT WOULD -- IT REALLY HAS TO BE

LOOKED AT ON A CASE-BY-CASE BASIS.
I THINK, YOU KNOW, YOU ARE DESCRIBING POTENTIALLY A
SCENARIO THAT WOULD BE EFFECTIVE IN A SINGLE SITUATION;

MAY 4, 2018

 26

1

WHETHER IT IS NECESSARY FOR SUBSTANTIVE DUE PROCESS I THINK IS

2

A DIFFERENT QUESTION.

3

THE ABSENCE OF DNA TESTING, GIVEN ITS -- GIVEN THAT

4

IT IS NOT GOING TO SOLVE THE QUESTION OR ANSWER THE QUESTION

5

IN ALL CASES.

6

TIME FRAME WE ARE LOOKING AT IN WHICH THESE DECISIONS ARE

7

MADE, I THINK WHAT -- IT MAY SOLVE THE PROBLEM OR ANSWER SOME

8

QUESTIONS IN A GIVEN SITUATION BUT I DON'T THINK THAT GIVES

9

RISE TO THE FINDING THAT NOT PROVIDING A DNA TEST WOULD BE

10

AND IN LIGHT OF THIS SORT OF RELATIVELY SHORT

VIOLATIVE OF SUBSTANTIVE DUE PROCESS.
ALL RIGHT.

11

THE COURT:

12

PERHAPS I CAN ASK A FEW QUESTIONS OF MR. GELERNT.

13

MS. FABIAN:

14
15

I WILL TAKE A SIP OF WATER, THEN.

THANK YOU.
THE COURT:

THE REQUEST THAT IS BEING MADE IS A VERY

16

BROAD ONE, AND THAT IS ORDER THE GOVERNMENT TO EITHER DETAIN

17

TOGETHER OR TO RELEASE, PAROLE, SO THE FAMILY CAN BE REUNITED.

18

THERE IS A LOT OF AUTHORITY, STATUTORY AND CASE LAW.

19

I THINK THERE IS A NINTH CIRCUIT CASE THAT THE GOVERNMENT

20

CITED, THE REFUGEE CASE FROM THE 1980'S, WHICH INDICATES THAT

21

FOR PRUDENTIAL REASONS THE COURT SHOULDN'T BE MICROMANAGING

22

DHS AND THE ATTORNEY GENERAL AND HIS CUSTODIAL DETERMINATIONS

23

IF THAT IS PECULIARLY WITHIN THE PROVINCE OF THE GOVERNMENT TO

24

MAKE THESE NUANCED DETERMINATIONS AS TO WHETHER OR NOT TO

25

DETAIN, WHETHER OR NOT TO PAROLE, WHETHER OR NOT TO HOUSE

MAY 4, 2018

 27

1

TOGETHER.

2

AND EACH ONE IS INDIVIDUAL, HOW CAN THE COURT ISSUE SUCH A

3

BLANKET OVERARCHING ORDER TELLING THE ATTORNEY GENERAL, EITHER

4

RELEASE OR DETAIN TOGETHER?

5
6
7

THERE ARE SO MANY DECISIONS THAT HAVE TO BE MADE

MR. GELERNT:

RIGHT, YOUR HONOR.

SO LET ME JUST BE

CLEAR, AND I APOLOGIZE IF OUR BRIEFS WEREN'T CLEAR ON THIS.
WE WOULD LIKE THE GOVERNMENT TO PAROLE THESE MOTHERS

8

AND CHILDREN BECAUSE WE DON'T THINK THESE MOTHERS WITH

9

FOUR-YEAR-OLD CHILDREN ARE A DANGER, AND WE BELIEVE THAT WITH

10

ANKLE BRACELETS OR SUPERVISION THEY ARE NOT A FLIGHT RISK.

11

BUT WE ARE NOT ASKING, BY ANY MEANS, FOR THIS COURT TO ORDER

12

THEIR RELEASE.

13

THAT CHOICE BUT IF THEY DON'T TAKE THAT CHOICE THEY NEED TO

14

DETAIN TOGETHER.

15

WE ARE SIMPLY SAYING THAT THE GOVERNMENT HAS

AND I WANT TO JUST FOCUS ON YOUR QUESTION TO THE

16

GOVERNMENT, BECAUSE I REALLY THINK IT HITS THE CRUX OF THIS.

17

THERE MAY VERY WELL BE REASONS IN INDIVIDUAL CASES

18

WHY SEPARATION IS RIGHT.

THE GOVERNMENT BROUGHT UP THE CASE

19

OF THE WOMAN WHO HAS MULTIPLE CONVICTIONS.

20

OF WHO THE GOVERNMENT IS TALKING ABOUT, WE DON'T BELIEVE ANY

21

OF OUR DECLARANTS FIT THAT CATEGORY.

22

WERE TO MAKE THAT DETERMINATION THAT THIS PARENT MAY BE A

23

DANGER TO HER CHILD, THAT FITS WITHIN OUR PARADIGM, IT FITS

24

WITHIN LONGSTANDING DUE PROCESS PARADIGMS, AND IT FITS EXACTLY

25

WITH THE WAY THIS COURT JUST PHRASED IT.

MAY 4, 2018

WE ARE NOT AWARE

BUT IF THE GOVERNMENT

 28

WE ARE SIMPLY SAYING THAT IF THERE IS NOT A REASON

1
2

TO SEPARATE, NOT TO KEEP THESE KIDS IN DETENTION, VIOLATES DUE

3

PROCESS.

4

THINK ANYBODY COULD REALLY SAY IT IS IN THE BEST INTEREST OF A

5

CHILD, FOR AN 18-MONTH-OLD, A FOUR-YEAR-OLD, A SIX-YEAR-OLD,

6

TO COME TO THIS COUNTRY -- THEY ARE ALREADY TRAUMATIZED -- AND

7

TO BE SENT AWAY FOR MONTHS.

WE ALSO THINK IT VIOLATES THE TVPRA BECAUSE I DON'T

LET ME, IF I MIGHT, INQUIRE.

8

THE COURT:

9

THERE WAS A DECLARATION FROM A GENTLEMAN, I THINK IN

10

TEXAS, WHO HAS BEEN SEPARATED FROM HIS SON, AND I HAVE

11

FORGOTTEN THE AGE OF THE SON.

12

THAT HE IS THE DAD, THAT THERE HAS BEEN NO REPRESENTATION TO

13

HIM THAT HE IS UNFIT FOR ANY REASON, BUT THERE IS REFERENCE TO

14

A LACK OF HOUSING.

15

AND THE DECLARATION INDICATES

SO COULDN'T THE GOVERNMENT COMPLY WITH DUE PROCESS,

16

UNDER YOUR ARGUMENT, AND SEPARATE OR KEEP THE TWO SEPARATED

17

BECAUSE EVEN THOUGH HE IS THE PARENT, EVEN THOUGH HE IS FIT,

18

THEY DON'T HAVE ACCOMMODATION TO PLACE THEM TOGETHER, AND THEY

19

MIGHT HAVE GOOD AND PRINCIPLED REASONS FOR NOT PAROLING HIM.

20
21
22

MR. GELERNT:

RIGHT.

YOUR HONOR, I AM GLAD YOU

ASKED THAT BECAUSE I THINK IT ALSO GOES TO A QUESTION.
WE ARE HERE ON THESE FACTS.

WE ARE NOT ASKING YOU

23

TO RULE WHETHER IF THE GOVERNMENT REALLY DOES NOT HAVE BED

24

SPACE IS THAT A LEGITIMATE REASON UNDER THE SUBSTANTIVE DUE

25

PROCESS COMPONENT OF THE FIFTH AMENDMENT TO KEEP THESE

MAY 4, 2018

 29

1

FAMILIES SEPARATE.
RIGHT NOW THERE IS BED SPACE, THERE HAS ALWAYS BEEN

2
3

BED SPACE.

AND I THINK THAT IS WHY YOU DIDN'T SEE AN

4

AFFIDAVIT FROM THE GOVERNMENT SAYING, WE DON'T HAVE BED SPACE.
WE DON'T KNOW ABOUT IN THIS PARTICULAR SITUATION

5
6

WITH THIS FATHER.

IF THE GOVERNMENT WERE TO COME IN AND SAY,

7

FOR THIS PARTICULAR FATHER WE DIDN'T HAVE BED SPACE, I THINK

8

WE WOULD HAVE TO COME BACK AND BOTH SIDES WOULD HAVE TO

9

PRESENT ARGUMENTS ABOUT WHEN FISCAL CONSTRAINTS CAN ACTUALLY

10

BE A REASON FOR THE GOVERNMENT TO ENGAGE IN SOME TYPE OF

11

ACTION THAT WOULD OTHERWISE VIOLATE DUE PROCESS.

12

THE COURT:

ISN'T THAT A REASON, THOUGH, FOR THE

13

COURT NOT TO ISSUE THE INJUNCTION THAT YOU REQUESTED?

14

IF I WERE TO ISSUE THAT INJUNCTION THE GOVERNMENT WOULD HAVE

15

TO EITHER PAROLE OR DETAIN TOGETHER.

16

A UNIQUE POSITION TO KNOW WHAT THE SPECIFIC FACTS ARE TO EACH

17

INDIVIDUAL, AND TO MAKE A PRINCIPLED DETERMINATION AS TO WHY

18

THAT PERSON SHOULDN'T BE PAROLED OR SHOULDN'T BE HOUSED

19

TOGETHER.

20

MR. GELERNT:

BECAUSE

BUT THE GOVERNMENT IS IN

YOUR HONOR, WE BELIEVE THAT YOU CAN

21

FASHION AN ORDER THAT SIMPLY SAYS THE GOVERNMENT MUST HAVE A

22

REASON, WHICH WE BELIEVE IS A DANGER TO THE CHILD OR

23

UNFITNESS.

24

NOW, IF THE GOVERNMENT WANTS TO COME IN WITH AN

25

AFFIDAVIT SAYING, WE NO LONGER HAVE BED SPACE, WE ARE NOT

MAY 4, 2018

 30

1

AWARE OF WHY THEY COULD POSSIBLY HAVE NOT HAD BED SPACE.
I THINK, YOU KNOW, YOUR HONOR COULD LOOK AT THAT AND

2
3

WHETHER HE WANTS TO PUT THAT IN THE INJUNCTION, WE ARE

4

CERTAINLY HAPPY TO FASHION AN INJUNCTION.
BUT ULTIMATELY I THINK YOUR QUESTIONS GO TO THE

5
6

HEART OF IT.

THE GOVERNMENT IS NOT REALLY MAKING A

7

DETERMINATION BASED ON ANYTHING.

8

HERE FROM ANOTHER WOMAN, MS. G.

9

FOUR-YEAR-OLD AND HER SIX-YEAR-OLD BLIND DAUGHTER.

I MEAN, I HAVE A DECLARATION
SHE CAME WITH HER
SHE WAS

10

NOT GIVEN A REASON, SHE WAS NOT PROSECUTED, SHE HAD DOCUMENTS,

11

AND YET SHE WAS SEPARATED.
NOW, THERE IS NO PROCESS THAT IS GOING ON -- YOUR

12
13

HONOR'S QUESTION WENT EXACTLY TO THE HEART OF IT.

14

TO BE A DETERMINATION ABOUT THE INTEREST.

THERE HAS

15

SO I GET YOUR POINT THAT HOW DO WE FASHION AN

16

INJUNCTION THAT ALLOWS THE GOVERNMENT TO TAKE THAT INTO

17

ACCOUNT, BUT I DON'T REALLY THINK THERE IS ACTUALLY TOO MANY

18

FACTORS OTHER THAN HARM TO THE CHILD OR SPACE.
AND IF THE GOVERNMENT WOULD COME IN WITH AN ARGUMENT

19
20

THAT -- WITH AN AFFIDAVIT SAYING THERE IS NO SPACE, I THINK

21

YOUR HONOR WOULD HAVE TO FASHION AN INJUNCTION THAT SAYS -- OR

22

ALLOW FURTHER BRIEFING ON THAT QUESTION OF WHETHER THE

23

LIMITATION ON SPACE MEANS YOU HAVE TO PAROLE OR YOU CAN

24

SEPARATE.

25

BUT RIGHT NOW -THE COURT:

WHAT ABOUT THE PROCESS THAT MIGHT BE

MAY 4, 2018

 31

1

REQUIRED.

WOULDN'T IT BE SUFFICIENT, RATHER THAN ISSUING

2

ORDERS AND EDICTS AS TO HOW THE ATTORNEY GENERAL SHOULD MANAGE

3

THESE DETENTION SITUATIONS, ISN'T IT MORE CONSISTENT WITH

4

CONSTITUTIONAL LAW, AND DUE PROCESS SPECIFICALLY, IF THE COURT

5

WERE TO FIND THAT THE SUBSTANTIVE DUE PROCESS APPLIES IN THIS

6

SITUATION FOR THESE TWO INDIVIDUALS.

7

CONSISTENT WITH DUE PROCESS, HAS TO MAKE DETERMINATIONS

8

RELATED TO FITNESS AND PARENTAGE OR LEGAL CUSTODIANSHIP, BUT

9

NOT REQUIRE ANYTHING MORE SPECIFIC.

THAT THE GOVERNMENT,

IN OTHER WORDS, WHAT

10

AUTHORIZES THE COURT TO MAKE THE GOVERNMENT HAVE A HEARING, TO

11

MAKE FINDINGS, TO TELL THE DETAINEES WHY THEY ARE DOING

12

CERTAIN THINGS; DOES THE GOVERNMENT HAVE TO DO ANY OF THAT?

13

MR. GELERNT:

I THINK THEY DO UNDER SUBSTANTIVE DUE

14

PROCESS, YOUR HONOR.

AND I THINK, YOU KNOW, THAT HAS BEEN THE

15

LAW FOR A LONG TIME.

WHEN SOMEONE -- WHEN THE GOVERNMENT

16

TRIES TO TAKE A CHILD AWAY, ESPECIALLY A CHILD OF A TENDER

17

AGE, FROM THEIR PARENT, THEY HAVE TO HAVE A REASON.
THAT IS A CPS TYPE SITUATION.

18

THE COURT:

19

MR. GELERNT:

20

OUT, THIS IS A UNIQUE SITUATION.

21

AGREE THE START WOULD BE FOR YOU TO SAY, LOOK, THE SUBSTANTIVE

22

DUE PROCESS CLAUSE APPLIES AND THE GOVERNMENT MUST MAKE A

23

DETERMINATION.

24
25

RIGHT, YOUR HONOR.

AS YOU POINTED

BUT I THINK -- WE ABSOLUTELY

BUT EVEN IF THAT IS AS FAR AS THE COURT WAS GOING TO
GO WE WOULD NEED THE COURT, I THINK, UNDER SUBSTANTIVE DUE

MAY 4, 2018

 32

1

PROCESS TO RULE OUT CERTAIN REASONS WHY THE GOVERNMENT COULD

2

NOT ENGAGE IN THAT SEPARATION.
FIRST AND FOREMOST IT CAN'T BE DETERRENCE.

3

THAT IS

4

ABSOLUTELY -- AND I THINK YOUR HONOR POINTED THAT OUT, THAT

5

THAT CANNOT BE A LEGITIMATE REASON.
THE MERE FACT THAT SOMEONE WAS PROSECUTED, WELL, SHE

6
7

DID HER TIME, WHY NOT REUNIFY THEM NOW.

THE GOVERNMENT IS

8

SIMPLY ASSERTING, WELL, SHE WAS PROSECUTED ONCE.
BUT WHAT DOES THAT HAVE TO DO WITH THE FACT THAT

9
10

SHE -- FOR SIX MONTHS SHE HAS BEEN SEPARATED FROM HER YOUNG

11

CHILD.
SO I DO THINK WHEN YOU ARE TALKING ABOUT TAKING AWAY

12
13

A CHILD THE COURT ABSOLUTELY HAS THE AUTHORITY TO SAY THE

14

PRACTICE BY WHICH YOU ARE DOING IT IS UNLAWFUL, THIS IS THE

15

ONLY WAY YOU HAVE TO MAKE A DETERMINATION THAT TAKES INTO

16

ACCOUNT THE BEST INTEREST OF A CHILD.
I THINK THAT IT WOULD BE FAIRLY STANDARD WITHIN THIS

17
18

COURT'S POWER TO SAY, LOOK, THE GOVERNMENT CANNOT SEPARATE,

19

ABSENT A DETERMINATION THAT IT IS NOT IN THE BEST INTEREST OF

20

A CHILD.

21

AND WHEN YOU HAVE LITTLE KIDS BEING SEPARATED, 18

22

MONTHS OLD, AND THEY ARE SITTING THERE SCREAMING AND CRYING,

23

PLEASE DON'T LET ME BE TAKEN AWAY, I THINK SOMETHING NEEDS TO

24

BE DONE NATIONALLY BECAUSE THERE ARE 700 LITTLE KIDS SITTING

25

THERE BY THEMSELVES WITHOUT THEIR PARENTS.

MAY 4, 2018

THEY ARE

 33

1

TRAUMATIZED.

THE DECLARATIONS TALK ABOUT HOW THESE LITTLE

2

KIDS ARE BEING TAKEN AWAY CRYING AND SCREAMING.

3

LITTLE KIDS.

THEY ARE JUST

AND I THINK -- YOUR HONOR, I UNDERSTAND THE COURT'S

4
5

HESITATION TO WANT TO GO TOO FAR, BUT THIS IS ONE OF THOSE

6

SITUATIONS WHERE WE REALLY NEED THIS COURT TO ACT TO HELP

7

THESE CHILDREN.

8

THEIR HOME COUNTRIES IN A MATTER OF MINUTES, FLEEING FOR THEIR

9

LIFE.

10
11

THEY ARE ALREADY TRAUMATIZED FROM LEAVING

THEY GET HERE AND THEN THEY HEAR THEY ARE GOING TO BE

TAKEN AWAY FROM THEIR MOTHER OR FATHER.
THESE AFFIDAVITS, YOUR HONOR, ARE UNBEARABLE.

AND I

12

KNOW YOUR HONOR GETS THE EMOTIONAL ASPECT.

13

LIKE THE AMERICAN ACADEMY OF PEDIATRICS HAVE SAID, THE

14

PSYCHOLOGICAL STRESS, ANXIETY, DEPRESSION ASSOCIATED WITH

15

SEPARATION FROM A PARENT WOULD FOLLOW THE CHILDREN WELL AFTER

16

THE IMMEDIATE PERIOD OF SEPARATION.

17

AND, YOU KNOW,

THEN ONE OF THE DOCTORS GOES ON TO SAY, IN THE O.

18

DECLARATION AT PARAGRAPH 5, CHILDREN REMAIN IN A CONSTANT

19

STATE OF FEAR AND WORRY REGARDING THE WELL-BEING OF THEIR

20

PARENT WHICH CAN AFFECT THEIR CONCENTRATION, SLEEP, OVERALL

21

FUNCTIONING.

22

I MEAN, THESE ARE -- THIS IS JUST -- WHAT I HEAR

23

FROM THE GOVERNMENT IS THERE COULD POTENTIALLY BE A REASON TO

24

SEPARATE THEM; NOT LET'S FIGURE OUT HOW NOT TO SEPARATE.

25

SO YOUR HONOR BROUGHT UP MS. L.'S CASE.

MAY 4, 2018

FOUR MONTHS

 34

1

WENT BY, WE HAD TO FILE A LAWSUIT.

2

DECLARATION POINTS OUT -- HE IS THE LEADING CHILD EXPERT IN

3

THE COUNTRY.

4

LITTLE GIRL WHO IS SCREAMING, PLEASE DON'T TAKE ME AWAY FROM

5

MY MOMMIE, THEY DIDN'T NEED A DNA TEST.

6

COULD HAVE DONE IT IN A MATTER OF HOURS, AS THE GUGGENHEIM

7

DECLARATION POINTS OUT.

10

A

BUT OF COURSE THEY

THEY EVEN HAVE

BIRTH CERTIFICATES, AND THE GOVERNMENT IS SIMPLY SAYING, WELL,
WE DON'T BELIEVE YOU.
SO THE SORT OF PRESUMPTION THAT, LET'S DO WHAT IS

11
12

THERE ARE SO MANY WAYS TO VERIFY PARENTAGE.

NONE OF THESE PEOPLE ARE BEING TOLD.

8
9

AS THE GUGGENHEIM

BEST FOR THE CHILD, IS REALLY NOT IN PLAY HERE.
AND, YOUR HONOR, I THINK THAT YOUR HONOR CAN FASHION

13
14

AN INJUNCTION.

15

RELEASE.

16

DANGER TO THE CHILD THEY HAVE TO BE, WE ARE NOT SAYING THAT WE

17

WOULDN'T HAVE TO COME BACK AND HAVE ADDITIONAL ARGUMENTS IF

18

THERE IS NOT BED SPACE; BUT WE ARE SAYING THAT WHERE THERE IS

19

NO REASON WHATSOEVER TO KEEP THEM APART, YOU JUST CAN'T DO

20

THIS TO THESE LITTLE CHILDREN.

21

THE COURT:

22

WE ARE NOT SAYING THE GOVERNMENT HAS TO

WE ARE NOT SAYING IF THE PARENT GENERALLY IS A

TURNING TO THE FACTS OF MS. C., BY

ANALOGY YOU COULD LOOK TO THE AGUILAR CASE.

23

MR. GELERNT:

24

THE COURT:

25

RIGHTFULLY PUNISHED.

RIGHT.

WHERE MS. C. COMMITTED A CRIME, SHE WAS
SHE DID HER TIME AND THEN SHE GOES TO

MAY 4, 2018

 35

1

ICE DETENTION, SEEKS ASYLUM.
THE AGUILAR GROUP OF IMMIGRANTS WERE ARRESTED, I

2
3

THINK MANY OF THEM WERE CHARGED, CONVICTED, DID TIME AND THEN

4

PUT INTO IMMIGRATION PROCEEDINGS FOR REMOVAL.
DO YOU ARGUE THAT THAT GROUP OF AGUILAR INDIVIDUALS

5
6

WOULD ALSO HAVE THIS RIGHT TO BE REUNITED OR HAVE SOME

7

MECHANISM?

8
9

MR. GELERNT:
CASE.

RIGHT.

YOUR HONOR, WE DON'T IN THIS

WE THINK THAT WOULD PROBABLY PRESENT A MUCH, MUCH

10

HARDER CASE BECAUSE THE CHILD HAS BEEN AT LIBERTY AND YOU

11

WOULD BE SAYING, LET'S TAKE THE CHILD.

12

JUST AS A -- SORT OF AS AN ASIDE SO I DON'T FORGET.

13

THE GOVERNMENT IS SUGGESTING THE CHILD IS BEING RELEASED, LIKE

14

MS. L.'S CHILD WAS RELEASED.

15

IN A FACILITY IN CHICAGO.

16

SHE WASN'T RELEASED, SHE WAS PUT

THAT IS A HARDER CASE, YOUR HONOR.

IT IS ONE I

17

DON'T THINK THIS COURT NEEDS TO GRAPPLE WITH BECAUSE IT IS NOT

18

A PARENT AND CHILD BEING DETAINED TOGETHER, COMING TOGETHER.

19

SO I THINK IT WOULD PRESENT MORE ANALOGOUS TO A PRETRIAL

20

CRIMINAL CASE.

21

THE OTHER THING I WOULD NOTE ABOUT AGUILAR IS

22

THAT -- I THINK A LOT OF PEOPLE MISS IS THAT AT PAGE 5 OF

23

AGUILAR IT NOTED THAT MASSACHUSETTS NO LONGER HAD BED SPACE.

24

SO I DON'T WANT TO SAY THAT WE ACKNOWLEDGE THAT THE LACK OF

25

BED SPACE WOULD BE A SUFFICIENT REASON.

MAY 4, 2018

I JUST THINK IT

 36

1

PRESENTS A CASE DOWN THE ROAD, POTENTIALLY.

YOU KNOW, IT

2

WOULD DEPEND A LITTLE BIT ON WHETHER THE GOVERNMENT IS

3

ELIMINATING BED SPACE ON PURPOSE, ALL OF THE SORT OF VARIOUS

4

FACTORS.
BUT I DO THINK YOUR HONOR IS RIGHT TO POINT OUT THE

5
6

AGUILAR CASE, BUT I DO THINK IT IS DIFFERENT BECAUSE THE

7

CHILD -- THEY DIDN'T -- THEY WEREN'T A UNIT IN DETENTION

8

TOGETHER AND THEN THEY WERE SEPARATED.

9

THE COURT:

HOW IS THAT DIFFERENT?

BECAUSE HERE IN

10

AGUILAR THEY WERE A UNIT LIVING TOGETHER IN THE UNITED STATES

11

IN A HOME, ARGUABLY.

12

THEIR TIME, THEN MOVED TO IMMIGRATION DETENTION.

13

SAME DUE PROCESS RIGHT COME INTO PLAY WHERE THERE SHOULD BE A

14

PROCESS TO REUNITE AT THAT POINT THE FAMILY AND CHILD, OR

15

PAROLE OR TAKE EFFORTS TO GET THE FAMILY TOGETHER?

16

THEN ARRESTED, CHARGED, CONVICTED.

MR. GELERNT:

DONE

DOESN'T THIS

YOUR HONOR, SO THE PAROLE I DON'T KNOW

17

ABOUT.

WE ARE NOT ARGUING THAT THEY HAVE TO BE RELEASED HERE.

18

SO WHETHER THE AGUILAR INDIVIDUALS HAD TO BE PAROLED -- I

19

WOULD NOTE THAT WHERE THE PERSON WAS THE SOLE PARENT THEY

20

ACTUALLY DID RELEASE THOSE PEOPLE, SO IT MADE THE CASE EASIER

21

FOR THE FIRST CIRCUIT.

22

I THINK THE DIFFERENCE IN MY MIND, YOUR HONOR, IS

23

THAT THE CHILD HAS NEVER BEEN DETAINED, SO MS. C.'S SON HAS

24

BEEN DETAINED THE WHOLE TIME.

25

DETAINED I THINK THE GOVERNMENT OUGHT TO, WHERE THERE IS BED

SO IF THEY ARE GOING TO BE

MAY 4, 2018

 37

1

SPACE, DETAIN THEM TOGETHER.

THAT'S OUR VIEW.

IN AGUILAR YOU WOULD BE SAYING TO A CHILD WHO HAS

2
3

NEVER BEEN DETAINED, YOU ARE NOW GOING TO GO TO DETENTION.

4

NOW, WHETHER -- I THINK IT WOULD -- I THINK -- I

5

GUESS WHAT I AM ULTIMATELY GOING TO SAY IS I AM NOT SURE THAT

6

ANYTHING YOU SAY IN THIS CASE WILL ULTIMATELY LOCK YOU IN ONE

7

WAY OR THE OTHER IN THAT TYPE OF A SITUATION.

8
9

THE COURT:

WHAT ABOUT THE FACTS IN THIS CASE THAT

THE INDIVIDUALS ARE SEEKING ASYLUM; DOESN'T THAT MATTER?

SO

10

IF THEY ARE SEEKING ASYLUM, THAT IS THE BENEVOLENCE OF THE

11

UNITED STATES TO GRANT ASYLUM, THAT'S VERY DIFFERENT

12

CONTEXTUALLY, IS IT NOT, FROM THE AGUILAR GROUP OF

13

UNDOCUMENTED IMMIGRANTS?

14

MR. GELERNT:

I THINK YOU ARE RIGHT TO POINT OUT

15

THAT ASYLUM IS A PARTICULAR WEIGHT IN THIS CASE BECAUSE WE

16

HAVE TO PROVIDE BY STATUTE AND WE HAVE JOINED INTERNATIONAL

17

TREATIES TO PROVIDE FOR ASYLUM.

18

CRITICAL DIFFERENCE.

SO I DO THINK THAT IS A

19

THERE IS NO WAY TO APPLY -- JUST IN ANSWER QUICKLY

20

TO YOUR QUESTION BEFORE, THERE IS NO WAY TO APPLY FOR ASYLUM

21

OVERSEAS.

22

QUOTAS.

23

THAT IS A DIFFERENT TYPE OF THING, THAT IS REFUGEE

I DO THINK THAT WHEN WE ARE TALKING ABOUT SOMEONE

24

WHO IS COMING HERE FOR ASYLUM, THEY ARE FEARING FOR THEIR

25

LIFE, THEY DO HAVE A RIGHT TO APPLY FOR ASYLUM.

MAY 4, 2018

SOMETIMES

 38

1

THEY KNOW WHERE THE PORT OF ENTRY IS.

SOME PEOPLE MAY

2

ACTUALLY BE TRYING TO SNEAK IN; SOME PEOPLE JUST DON'T KNOW

3

WHERE THE PORT OF ENTRY IS, AND THEY ARE WALKING IN.

4

MINUTE ANYONE ENCOUNTERS THEM, LIKE MS. C., THEY ARE SAYING,

5

WE WANT ASYLUM.

THE

NOW, WE HAVE NOT CHALLENGED THE GOVERNMENT'S

6
7

DECISION TO PROSECUTE FAMILIES FOR SEEKING ASYLUM AND COMING

8

IN THROUGH PLACES OTHER THAN THE PORT OF ENTRY.

9

WHOLE SEPARATE THING.

10

THAT IS A

WE HAVE ALSO NOT CHALLENGED THE

GOVERNMENT'S DECISION TO SEPARATE MS. C. AND HER CHILD.
BUT WE DO THINK THAT THE GOVERNMENT NEEDS TO HAVE

11
12

SOME REASON NOT TO REUNIFY.

AND SO THEY ARE HYPOTHETICALLY

13

COMING UP NOW WITH ALL OF THESE -- WELL, IT COULD BE THIS, IT

14

COULD BE THAT.
BUT ALL WE ARE ASKING IS, IF THERE IS NOT A DANGER

15
16

TO A CHILD AND THERE IS BED SPACE, PUT THEM TOGETHER.

17

AND I THINK THAT IS WHAT THE COURT WOULD BE

18

ORDERING.

19

COMES UP WITH SOME NEW RATIONALE THEY COULDN'T COME BACK HERE.

20

BUT JUST SIMPLY TO SAY, WELL, WE DIDN'T GET TO THE DNA TEST

21

FOR FOUR MONTHS OR WE -- YOU KNOW, THEY ARE DOING EVERYTHING

22

NOT TO KEEP THE CHILDREN TOGETHER IS WHAT IT SEEMS LIKE.

23

IS WHAT IS COMING THROUGH IN THE AFFIDAVITS.

24
25

IT WOULDN'T SAY THAT IF THE GOVERNMENT ULTIMATELY

THE COURT:

THAT

WHAT ABOUT THE CLASS DEFINITION, WOULD

YOU CONCEDE THAT IT IS TOO BROAD?

BECAUSE IT WOULD INCLUDE

MAY 4, 2018

 39

1

THE AGUILAR GROUP, AMONG OTHERS, ARGUABLY.

2

MR. GELERNT:

IF IT DOES, YOUR HONOR, THEN WE WOULD

3

ABSOLUTELY WANT TO TWEAK IT IF YOUR FEELING IS IT WOULD.

I

4

MEAN, OUR UNDERSTANDING OF THE DEFINITION -- AND MAYBE IT DOES

5

NEED TO BE TWEAKED -- IS THAT THE CHILD WOULD ALSO HAVE TO BE

6

IN ORR CUSTODY, AND THE AGUILAR CHILDREN WERE AT LIBERTY.
BUT IF YOUR HONOR FEELS LIKE HE NEEDS TO TWEAK THE

7
8

DEFINITION WE ABSOLUTELY CAN PROVIDE A DIFFERENT DEFINITION OR

9

YOUR HONOR CAN OBVIOUSLY TWEAK IT.

BUT WE DID NOT MEAN TO

10

PULL IN THE AGUILAR INDIVIDUALS.

AND TO THE EXTENT -- WE

11

APOLOGIZE TO THE EXTENT IT LOOKS TO THE COURT LIKE IT WOULD

12

COVER THE AGUILAR.
ALL RIGHT.

13

THE COURT:

14

IF I MIGHT, LET ME TAKE A LOOK AT MY NOTES TO SEE IF

15

I HAVE ANY OTHER QUESTIONS OF PLAINTIFFS.
THE ASYLUM STATUTE, ARE YOU ABANDONING IT?

16
17

REFERENCE IN ONE OF THE MOTIONS WHERE YOU PUT IT ASIDE.

18

MR. GELERNT:

WE ARE NOT ABANDONING IT, BUT WE ARE

19

NOT MOVING FOR AN INJUNCTION.

20

THE COURT:

21

THERE IS

IS THERE A PRIVATE RIGHT OF ACTION UNDER

THAT STATUTE?

22

MR. GELERNT:

WE DON'T -- I THINK THERE IS IN THE

23

SENSE THAT YOU CAN'T PURPOSEFULLY -- THE GOVERNMENT CANNOT

24

VIOLATE THE STATUTE BY MAKING IT IMPOSSIBLE TO APPLY FOR

25

ASYLUM.

AND I THINK THOSE ARE CASES, LIKE THE ORANTES CASE

MAY 4, 2018

 40

1

OUT OF THE NINTH CIRCUIT, WHERE THE GOVERNMENT WAS MAKING IT

2

VERY DIFFICULT TO APPLY FOR ASYLUM.
WHETHER THERE WOULD BE A PRIVATE RIGHT OF ACTION FOR

3
4

DAMAGES, I DON'T KNOW.

5

THOUGHT ABOUT, YOUR HONOR.

6

ABILITY TO BRING A CASE TO SAY, MY ABILITY, MY OPPORTUNITY, A

7

REALISTIC OPPORTUNITY TO APPLY FOR ASYLUM, IS BEING HINDERED.

HONOR.

10
11

THE COURT:

IT IS A SUBJECT OF THE MOTION TO

DISMISS.

12
13

BUT I THINK THERE IS CERTAINLY THE

BUT WE ARE NOT MOVING AT THIS TIME ON THAT, YOUR

8
9

THAT IS A GOOD QUESTION, ONE I HADN'T

MR. GELERNT:

IT IS, YOUR HONOR.

AND WE BELIEVE

THAT THERE ARE ALLEGATIONS, THE ALLEGATIONS ARE SUFFICIENT.
CERTAINLY AT THIS POINT NOW THAT WE ARE LEARNING

14
15

MORE -- I MEAN, THE GOVERNMENT OBVIOUSLY KNOWS WHERE THE

16

INDIVIDUALS ARE AND HAS ACCESS.

17

TO GET ACCESS TO INDIVIDUALS, SO WE COULD CLEARLY AMEND THE

18

COMPLAINT.

19

BECAUSE WHAT IT SHOWS IS THE COMMUNICATION BETWEEN THE CHILD

20

AND THE PARENT IS VERY DIFFICULT, AND THERE IS SIMPLY NO WAY

21

FOR THE PARENT AND CHILD TO MEANINGFULLY APPLY FOR ASYLUM

22

WITHOUT THAT COMMUNICATION.

23

SO YOUNG.

24
25

AND WE ARE SLOWLY BEGINNING

BUT I THINK THE ALLEGATIONS NOW ARE SUFFICIENT

ESPECIALLY WHEN THE CHILDREN ARE

THE OTHER THING THAT IS HAPPENING IS THE PARENTS ARE
BECOMING SO TRAUMATIZED THEY ARE NOT EATING OR SLEEPING,

MAY 4, 2018

 41

1

UNDERSTANDABLY.

THEY DON'T KNOW WHERE THEIR THREE-YEAR-OLD,

2

FOUR-YEAR-OLD IS.

3

IS BECOMING ALMOST IMPOSSIBLE BECAUSE ALL THAT IS ON THEIR

4

MIND IS, WHERE IS MY CHILD?

SO THE ABILITY TO WORK WITH ASYLUM LAWYERS

WHERE IS MY CHILD?

I MEAN, SOME OF THE AFFIDAVITS ARE JUST TALKING

5
6

ABOUT, IS MY CHILD EVEN GOING TO THE BATHROOM OR EATING OR

7

SLEEPING?

8

A THREE OR FOUR-YEAR-OLD.

9

FORWARD WITH THEIR ASYLUM CLAIMS IN A MEANINGFUL WAY.

10
11

I MEAN, THAT IS WHAT YOU WORRY ABOUT WHEN YOU HAVE
SO THE ABILITY TO ACTUALLY GO

BUT WE ARE HAPPY TO AMEND THE COMPLAINT IF YOUR
HONOR THINKS IT NEEDS THAT.
ALL RIGHT.

12

THE COURT:

13

THIS WOULD BE A QUESTION OF GOVERNMENT COUNSEL.

14

ASSUMING THAT PLAINTIFFS ARE CORRECT AND THAT THIS

15

IS AN APPROPRIATE CASE FOR SOME FORM OF CLASS CERTIFICATION

16

AND PRELIMINARY INJUNCTIVE RELIEF, ON THE CLASS DEFINITION IT

17

WOULD, AT MOST, GIVEN THE PLAINTIFFS' EVIDENCE, ENCOMPASS

18

ABOUT 700 INDIVIDUALS.

19

WOULDN'T IT BE RELATIVELY EASY FOR THE GOVERNMENT TO QUICKLY

20

IDENTIFY THE INDIVIDUALS AND DETERMINE WHETHER OR NOT THEY

21

FALL WITHIN THE CLASS; ASSUMING THE CLASS IS DEFINED TO

22

ENCOMPASS ONLY THE SITUATIONS OF MS. L. AND MS. C., THAT TYPE

23

OF FACT PATTERN?

24
25

MS. FABIAN:

SO ON AN ASCERTAINABILITY ANALYSIS

I THINK IT HAS BEEN PAINTED SO BROADLY

THAT IT MAY BE POSSIBLE TO IDENTIFY INDIVIDUALS WHO FALL UNDER

MAY 4, 2018

 42

1

THAT DEFINITION, BUT IT DOESN'T THEN ESTABLISH THOSE

2

INDIVIDUALS HAVE BEEN SUBJECT TO ANY SORT OF COMMON SET OF

3

FACTS.

4

THE COURT:

BUT YOU COULD MAKE THE DETERMINATION,

5

COULDN'T YOU, THAT THERE ACTUALLY WASN'T A PARENTAGE

6

DETERMINATION OR THERE WASN'T A FITNESS DETERMINATION.

7

THAT IS THE CASE THEN ARGUABLY IT FITS WITHIN THIS PROPOSED

8

CLASS AND THEY WOULD BE PUTATIVE CLASS MEMBERS.

9

MS. FABIAN:

AND IF

I THINK EVEN WITH MS. L. AND MS. C. YOU

10

HAVE TWO VERY DIFFERENT CASES WITH THAT.

11

QUESTION RAISED AS TO MS. C.'S PARENTAGE, THE ISSUE WAS THE

12

PROSECUTION AND SEPARATION.

13

QUESTION OF PARENTAGE.

14

DETERMINATION MADE THAT THE GOVERNMENT WAS UNABLE TO CONFIRM

15

PARENTAGE AND THEREFORE SEPARATION WAS NECESSARY.

16

YOU JUST HAVE TWO VERY DIFFERENT FACT PATTERNS.

17

SO THERE IS NO

AND THEN WITH MS. L. THERE WAS A

SO IN THAT CASE THERE WAS A

SO I THINK

NOW, PLAINTIFFS' COUNSEL MAKES REFERENCE TO SEVERAL

18

DECLARATIONS.

19

SEEMS THE NEW YORK TIMES HAD THEM A FEW WEEKS BEFORE WE DID,

20

BUT WE ARE JUST SORT OF DIGGING THROUGH THOSE NOW AND WE ARE

21

HAPPY TO RESPOND.

22

THE EXAMPLES THAT COUNSEL REFERENCED IS IN FACT ONE OF THE

23

EXAMPLES THAT WE HAVE A CRIMINAL HISTORY BEING THE BASIS FOR

24

SEPARATION.

25

AS I MENTIONED, THOSE DECLARATIONS -- WELL, IT

WE HAVE DIFFERENT FACTS OF THOSE.

ONE OF

SO I THINK IF THOSE -- AND I THINK WE WOULD ALSO

MAY 4, 2018

 43

1

CONTEND THAT TO THE EXTENT THERE IS AN ATTEMPT HERE TO AMEND

2

THE COMPLAINT THROUGH THESE DECLARATIONS THAT NEEDS TO BE --

3

THEN WE NEED TO PUT THESE MOTIONS ON HOLD AND LET PLAINTIFFS'

4

COUNSEL SEEK TO AMEND THE COMPLAINT AND MOVE FORWARD WITH NEW

5

CLAIMS IF THEY WANT TO RAISE NEW ISSUES AND NEW PLAINTIFFS.
IT IS VERY DIFFICULT FOR US -- WE HAVE NOT, FOR

6
7

EXAMPLE, SUBMITTED A DECLARATION WITH REGARD TO SPACE BECAUSE

8

NO NAMED PLAINTIFFS WERE SEPARATED ON THE BASIS OF SPACE.

9

SUBMIT THAT THERE ARE 2700 BEDS AND 15,000 INDIVIDUALS WHO

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HAVE CROSSED IN THE MONTH OF APRIL.

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I

THE COURT:

THAT IS THE NUMBER, THE GOVERNMENT HAS

2700 BED SPACES AVAILABLE FOR THESE TYPES OF FAMILIES?

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MS. FABIAN:

IT IS.

THERE ARE THREE FACILITIES.

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THE CAPACITY AT THE TEXAS FACILITIES IS 1800 AND 800.

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FACILITY IN PENNSYLVANIA HAS -- I BELIEVE IT IS 84 OR 86 BEDS.

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THE

THE COURT:

HOW ABOUT CHICAGO -- CHICAGO IS FOR THE

MS. FABIAN:

THEN YOU HAVE THE ORR FACILITIES WHICH

CHILDREN.

ARE NATIONWIDE AND THEY HAVE DIFFERENT CAPACITIES.

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I WOULD ALSO NOTE THAT THE ONLY FACILITY THAT CAN

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HOLD MALE HEADS OF HOUSEHOLD WOULD BE THE BERKS FACILITY IN

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PENNSYLVANIA.

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FACILITIES DO NOT TAKE MALE HEADS OF HOUSEHOLD.

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AND THAT'S THE ONE WITH 86 BEDS.

THE COURT:

THE TEXAS

SO IF YOU HAVE A FATHER AND A CHILD IT

IS HARDER TO KEEP THEM TOGETHER?

MAY 4, 2018

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MS. FABIAN:

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THE COURT:

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MS. FABIAN:

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THE COURT:

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MS. FABIAN:

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THE COURT:

IT IS.
BECAUSE OF BED SPACE.
BECAUSE OF BED SPACE, YES.
THAT IS THE ONE PLACE IN PENNSYLVANIA.
YES.
THEN, ARGUABLY, THAT MIGHT BE THE REASON

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WHY THIS MAN WHO SUBMITTED THE DECLARATION IN THE REPLY BRIEF

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IS NOT BEING HOUSED WITH HIS SON, POSSIBLY.

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REFERENCE THAT THERE WASN'T ADEQUATE HOUSING.

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MS. FABIAN:

THERE IS A

THE ONLY INFORMATION I HAVE -- MY

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CLIENTS HAVE BEEN LOOKING INTO THAT.

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IS THAT THERE WAS A QUESTION OF PARENTAGE WITH THAT

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INDIVIDUAL.

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ISSUE HAD THAT BEEN CONSIDERED.

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THE COURT:

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I JUST WANT TO ASK, THIS IS I THINK MY LAST

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THE INFORMATION I HAVE

BUT THAT ALSO THERE WOULD HAVE BEEN A BED SPACE

ALL RIGHT.

QUESTION.
AS I UNDERSTOOD THE GOVERNMENT'S BRIEFING THE

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ARGUMENT IS THAT IT CAN SEPARATE FAMILIES PURSUANT TO ITS

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PLENARY POWER TO REGULATE IMMIGRATION.

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WHAT THAT MEANT.

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MS. FABIAN:

AND I WASN'T CLEAR

I THINK THE ARGUMENT THERE IS THAT THE

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GOVERNMENT HAS SIGNIFICANT AUTHORITY WITH REGARD -- AGAIN,

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WITH REGARD TO IMMIGRATION, AND FOR IMMIGRATION AND CRIMINAL

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ENFORCEMENT AND DETENTION, AND SO THE GOVERNMENT CAN TAKE THE

MAY 4, 2018

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ACTIONS THAT IT NEEDS TO TAKE UNDER THE INA SUBJECT TO THIS

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PLENARY POWER.

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DISCRETION GRANTED TO THE GOVERNMENT WITH REGARD TO THESE

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DECISIONS.

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EXISTS, AND AGAIN THOSE ACTIONS RESULT IN SEPARATION.

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THAT THERE HAS BEEN GREAT AUTHORITY AND

AS THE INA IS CURRENTLY WRITTEN THAT DISCRETION

THE COURT:

YOU WOULD CONCEDE, THOUGH, THAT THE

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ULTIMATE ARBITER WOULD BE THE DUE PROCESS CLAUSE OVER THAT

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STATUTORY FRAMEWORK.

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MS. FABIAN:

THAT THERE IS A SUBSTANTIVE DUE PROCESS

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ANALYSIS THAT COULD APPLY, BUT THAT IT WOULD REQUIRE THE SORT

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OF MORE ROBUST FINDING OF BEHAVIOR ACTIONS THAT SHOCK THE

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CONSCIENCE.
YES.

ALL RIGHT.

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THE COURT:

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THOSE ARE ALL THE QUESTIONS I HAVE.

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I WOULD BE

PREPARED TO CLOSE THE HEARING.
I WOULD LIKE TO TAKE THE MATTER UNDER SUBMISSION.

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THERE ARE OBVIOUSLY VERY SIGNIFICANT AND WEIGHTY ISSUES, AND

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THERE ARE A NUMBER OF ISSUES THAT HAVE TO BE EXPLORED WITH

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RESPECT TO THE RELIEF THAT IS REQUESTED.

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PROCESS PROVISION APPLIES AND THERE ARE PROBLEMS WITH IT IN

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THIS PARTICULAR CASE, WHAT WOULD BE THE SCOPE OF INJUNCTIVE

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RELIEF, THE DEFINITION OF THE CLASS, AND THOSE TYPES OF

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ISSUES.
SO I APPRECIATE THE BRIEFING AND THE ARGUMENT VERY

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AND ASSUMING THE DUE

MUCH.

I WOULD LIKE TO TAKE THE MATTER UNDER SUBMISSION AND

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ISSUE A RULING IN DUE COURSE.

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THANK YOU VERY MUCH.

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MR. GELERNT:

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MS. FABIAN:

THANK YOU, YOUR HONOR.
THANK YOU.

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*

*

*

I CERTIFY THAT THE FOREGOING IS A CORRECT
TRANSCRIPT FROM THE RECORD OF PROCEEDINGS
IN THE ABOVE-ENTITLED MATTER.
5/9/2018
S/LEEANN PENCE
LEEANN PENCE, OFFICIAL COURT REPORTER
DATE

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MAY 4, 2018