Case 3:18-cv-00428-DMS-MDD Document 97 Filed 07/09/18 PageID.1953 Page 1 of 6 1 CHAD A. READLER Acting Assistant Attorney General 2 SCOTT G. STEWART 3 Deputy Assistant Attorney General WILLIAM C. PEACHEY 4 Director 5 Office of Immigration Litigation U.S. Department of Justice 6 WILLIAM C. SILVIS 7 Assistant Director Office of Immigration Litigation 8 SARAH B. FABIAN 9 Senior Litigation Counsel NICOLE MURLEY 10 Trial Attorney 11 Office of Immigration Litigation U.S. Department of Justice 12 Box 868, Ben Franklin Station 13 Washington, DC 20442 Telephone: (202) 532-4824 14 Fax: (202) 616-8962 15 ADAM L. BRAVERMAN 16 United States Attorney 17 SAMUEL W. BETTWY Assistant U.S. Attorney 18 California Bar No. 94918 19 Office of the U.S. Attorney 880 Front Street, Room 6293 20 San Diego, CA 92101-8893 21 619-546-7125 22 619-546-7751 (fax) Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2660 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org 23 Attorneys for Federal Respondents24 Defendants Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice 25 26 27 28 Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 398-4485 F: (619) 232-0036 bvakili@aclusandiego.org Stephen B. Kang (SBN 292280) Spencer E. Amdur (SBN 320069) AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 skang@aclu.org samdur@aclu.org Case 3:18-cv-00428-DMS-MDD Document 97 Filed 07/09/18 PageID.1954 Page 2 of 6 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 1 2 Case No. 18cv428 DMS MDD MS. L, et al., 3 Petitioners-Plaintiffs, 4 JOINT STATUS REPORT REGARDING NOTICE TO CLASS MEMBERS vs. 5 U.S. IMMIGRATION AND CUSTOMS 6 ENFORCEMENT, et al., 7 Respondents-Defendants. 8 9 On July 9, 2018, the Court held a status conference with the parties. At that 10 11 status conference the parties submitted that they would jointly submit to the Court 12 their proposal regarding class notice. The parties hereby state that they have 13 agreed that the first page of the attached Exhibit (Notice)1 will be posted in ICE 14 15 detention facilities in which Class Members are detained as of July 10, 2018. To 16 facilitate such posting, Plaintiffs will provide to Defendants a copy of the Notice 17 that contains the information contained therein in both English and Spanish. 18 The parties further agree that the second page, or Exhibit (Election Page) 19 20 will be provided only to Class Members subject to a final order of removal in order 21 to ensure that the Class Member has the opportunity to make an affirmative, 22 23 knowing, and voluntary decision whether to be removed with or without the Class 24 25 26 27 1 The attached Notice is final except that the Parties seek a decision by the Court regarding the inclusion of one additional provision discussed below. 28 1 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 97 Filed 07/09/18 PageID.1955 Page 3 of 6 1 Member’s child or children. At the time the Election Page is provided, Plaintiffs 2 will also hand to the Class Member a copy of the Notice. 3 The parties have two points of clarification for resolution by this Court. 4 5 First, the parties agree that for Class Members with a final order of removal who 6 are asked to consider their rights under this Notice, Defendants will allow a 7 8 specified time period between the provision of the Notice and the removal of any 9 class members to allow time for that Class Member to consult with a lawyer or 10 otherwise consider his or her exercise of these rights. Defendants propose that this 11 12 time period be 24-hours, which is consistent with other situations in which a court 13 order requires a delay in removal in order to permit an alien to consider his or her 14 options. See, e.g., Orantes-Hernandez v. Gonzales, 504 F. Supp. 2d 825 (C.D. Cal. 15 16 2007) (requiring 24 hours’ notice prior to removal). This time period is therefore 17 consistent with Defendants’ current operations related to any notification of rights 18 prior to removal. 19 20 Plaintiffs propose a 48-hour time period. Plaintiffs’ believe this time period 21 is necessary because of the confusion surrounding this case for months and the fact 22 that there are more than 2,000 Class Members. Given the number of Class 23 24 Members, it will be nearly impossible to get attorneys to them within 24 hours. 25 26 Second, Plaintiffs also seek inclusion in the Notice language advising nonClass Members that they may nonetheless have a right to reunification and should 27 28 2 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 97 Filed 07/09/18 PageID.1956 Page 4 of 6 1 contact an attorney. Plaintiffs believe this language is necessary because parents 2 may wrongly assume that if they are not Class Members, they have lost their 3 children forever. As the Court has made clear, individuals with criminal 4 5 convictions are not part of the Class, but may still be entitled to reunification with 6 their children under the Due Process Clause if their conviction does not bear on 7 8 their fitness to provide care for their children. Under the Government’s version of 9 the Notice, however, Class Members will likely be confused that their right to 10 reunification hinges solely on whether they are Class Members. Plaintiffs do not 11 12 believe that Defendants are in any way prejudiced by the inclusion of this short 13 addition to the Notice. Given what is at stake for these families, Plaintiffs believe 14 that it is appropriate to include this language. 15 16 Defendants object to the inclusion of such language, as the Notice is 17 intended to explain the rights of Class Members pursuant to the preliminary 18 injunction issued by this court. Defendants are concerned that the inclusion of an 19 20 advisal for individuals outside the class would be inappropriate and may lead to 21 confusion. In fact, the inclusion of such an advisal in the Notice may lead the non22 Class Members to believed that they are represented by Class Counsel, and that the 23 24 same is legal advice. 25 26 The parties ask this Court to resolve these two issues either through written order or on the record at the status conference set for July 10, 2018. 27 28 3 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 97 Filed 07/09/18 PageID.1957 Page 5 of 6 1 DATED: July 9, 2018 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Respectfully submitted, /s/ Lee Gelernt Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2660 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 398-4485 F: (619) 232-0036 bvakili@aclusandiego.org Stephen B. Kang (SBN 292280) Spencer E. Amdur (SBN 320069) AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 skang@aclu.org samdur@aclu.org Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice CHAD A. READLER 28 4 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 97 Filed 07/09/18 PageID.1958 Page 6 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Acting Assistant Attorney General SCOTT G. STEWART Deputy Assistant Attorney General WILLIAM C. PEACHEY Director WILLIAM C. SILVIS Assistant Director /s/ Sarah B. Fabian SARAH B. FABIAN Senior Litigation Counsel NICOLE MURLEY Trial Attorney Office of Immigration Litigation Civil Division U.S. Department of Justice P.O. Box 868, Ben Franklin Station Washington, DC 20044 (202) 532-4824 (202) 616-8962 (facsimile) sarah.b.fabian@usdoj.gov 15 16 17 18 19 ADAM L. BRAVERMAN United States Attorney SAMUEL W. BETTWY Assistant U.S. Attorney Attorneys for Respondents-Defendants 20 21 22 23 24 25 26 27 28 5 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 97-1 Filed 07/09/18 PageID.1959 Page 1 of 2 Notice of Potential Rights for Certain Detained Alien Parents Separated from their Minor Children On June 26, 2018, a federal court issued a nationwide preliminary injunction in the case of Ms. L v. I.C.E., ---F. Supp. 3d---, 2018 WL 3129486 (S.D. Cal. June 26, 2018). You may be a class member who has rights under this lawsuit if: • • You are or were detained in custody by the U.S. Department of Homeland Security (DHS); and Your minor child was separated from you by DHS and is detained in the custody of the U.S. Department of Health and Human Services, Office of Refugee Resettlement (ORR), ORR foster care, or DHS custody. If you are determined to be a class member: • • • • The government must reunify you with your child. You do NOT need to take any action to be reunified with your child. The government must reunify you by the following dates unless otherwise ordered by the Court: a. If your child is younger than 5 years old, he or she must be reunified with you by July 10, 2018. b. If your child is 5 or older, he or she must be reunified with you by July 26, 2018. You do NOT need to agree to removal from the United States in order to be reunified with your child. You may continue to fight your case. You should NOT be pressured to agree to removal in order to be reunified with your child. You are not a class member and do not have rights under this lawsuit if: • • • • You were apprehended by DHS in the interior of the United States; You have a criminal history other than illegal entry; You have a communicable disease; A determination is or has been made that you are unfit or present a danger to your minor child. If you have any questions about your potential rights, please contact the lawyers for the case at 646-905-8892 or write to the lawyers at this address: Ms. L. Class Counsel American Civil Liberties Union 125 Broad Street, 18th Floor New York, NY 10004 Case 3:18-cv-00428-DMS-MDD Document 97-1 Filed 07/09/18 PageID.1960 Page 2 of 2 IMPORTANT Instructions: This information on this page must be read to the alien parent in a language that he/she understands. The Notice must be given to the alien parent at the same time as this form. The alien parent should indicate which option he/she is choosing by signing the appropriate box below. You DO NOT have to agree to removal from the United States in order to be reunified with your child. Even if you continue to fight your case, the government must still reunify you. IF YOU LOSE YOUR CASE AND THE GOVERNMENT IS GOING TO REMOVE YOU FROM THE UNITED STATES, you must decide at that time whether you want your child to leave the United States with you. Parent Name / Nombre de Padre:________________________________________________________ Parent A # / A # de Padre: ______________________________________________________________ Country of Citizenship / Pais de Ciudadania: ______________________________________________ Detention Facility / El Centro de Detención: _______________________________________________ Child(ren) Name(s) / Nombre de Hijo: ___________________________________________________ Child(ren) A # / A # de Hijo: ____________________________________________________________ CHOOSE ONE OPTION: _____ If I lose my case and am going to be removed, I would like to take my child with me. _____ If I lose my case and am going to be removed, I do NOT want to take my child with me. Certificate of Service I hereby certify that this form was served by me at________________________ (Location) on ___________________________ on _____________________________, and the contents of this (Name of Alien) (Date of Service) notice were read to him or her in the __________________________ language. (Language) ___________________________________ __________________________________________ Name and Signature of Officer Name or Number of Interpreter (if applicable) Formatted: Spanish (Ecuador) Formatted: Spanish (Ecuador) Formatted: Spanish (Ecuador) Case 3:18-cv-00428-DMS-MDD Document 97-2 Filed 07/09/18 PageID.1961 Page 1 of 2 Notice of Potential Rights for Certain Detained Alien Parents Separated from their Minor Children On June 26, 2018, a federal court issued a nationwide preliminary injunction in the case of Ms. L v. I.C.E., ---F. Supp. 3d---, 2018 WL 3129486 (S.D. Cal. June 26, 2018). You may be a class member who has rights under this lawsuit if: • • You are or were detained in custody by the U.S. Department of Homeland Security (DHS); and Your minor child was separated from you by DHS and is detained in the custody of the U.S. Department of Health and Human Services, Office of Refugee Resettlement (ORR), ORR foster care, or DHS custody. If you are determined to be a class member: • • • • The government must reunify you with your child. You do NOT need to take any action to be reunified with your child. The government must reunify you by the following dates unless otherwise ordered by the Court: a. If your child is younger than 5 years old, he or she must be reunified with you by July 10, 2018. b. If your child is 5 or older, he or she must be reunified with you by July 26, 2018. You do NOT need to agree to removal from the United States in order to be reunified with your child. You may continue to fight your case. You should NOT be pressured to agree to removal in order to be reunified with your child. You are not a class member and do not have rights under this lawsuit if: • • • • Comment [A1]: Plaintiffs would remove this language. You were apprehended by DHS in the interior of the United States; You have a criminal history other than illegal entry; You have a communicable disease; A determination is or has been made that you are unfit or present a danger to your minor child. IMPORTANT: Even if you are not a class member, if you were separated from your children, you may still have a right to be reunified with your child, and should contact the lawyers in this case by phone or by writing a letter. If you have any questions about your potential rights, please contact the lawyers for the case at 646-905-8892 or write to the lawyers at this address: Ms. L. Class Counsel American Civil Liberties Union 125 Broad Street, 18th Floor New York, NY 10004 Comment [A2]: Plaintiffs would add this language. Case 3:18-cv-00428-DMS-MDD Document 97-2 Filed 07/09/18 PageID.1962 Page 2 of 2 IMPORTANT Instructions: This information on this page must be read to the alien parent in a language that he/she understands. The Notice must be given to the alien parent at the same time as this form. The alien parent should indicate which option he/she is choosing by signing the appropriate box below. You DO NOT have to agree to removal from the United States in order to be reunified with your child. Even if you continue to fight your case, the government must still reunify you. IF YOU LOSE YOUR CASE AND THE GOVERNMENT IS GOING TO REMOVE YOU FROM THE UNITED STATES, you must decide at that time whether you want your child to leave the United States with you. Parent Name / Nombre de Padre:________________________________________________________ Parent A # / A # de Padre: ______________________________________________________________ Country of Citizenship / Pais de Ciudadania: ______________________________________________ Detention Facility / El Centro de Detención: _______________________________________________ Child(ren) Name(s) / Nombre de Hijo: ___________________________________________________ Child(ren) A # / A # de Hijo: ____________________________________________________________ CHOOSE ONE OPTION: _____ If I lose my case and am going to be removed, I would like to take my child with me. _____ If I lose my case and am going to be removed, I do NOT want to take my child with me. _____ I do not have a lawyer, and I want to talk with a lawyer before deciding whether I want my child removed with me. Certificate of Service I hereby certify that this form was served by me at________________________ (Location) on ___________________________ on _____________________________, and the contents of this (Name of Alien) (Date of Service) notice were read to him or her in the __________________________ language. (Language) ___________________________________ __________________________________________ Name and Signature of Officer Name or Number of Interpreter (if applicable) Comment [A3]: Plaintiffs believe there should be 48 hours to consult with a lawyer; Defendants believe it should be 24 hours.