Case 1:18-cv-01458-PLF Document 31 Filed 07/09/18 Page 1 of 29 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA M.G.U., et al., Plaintiffs, v. KIRSTJEN NIELSEN, et al., Defendants. § § § § § § § § § No. 1:18-cv-1458 (PLF) Civil Action REPLY MEMORANDUM SUPPORTING PLAINTIFFS’ APPLICATION FOR A PRELIMINARY INJUNCTION TEXAS RIOGRANDE LEGAL AID, INC. PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP Jerome Wesevich (D.D.C. Bar No. TX0125 Amanda Chisholm (Texas Bar No. 24040684) Peter McGraw (Texas Bar No. 24081036) 1331 Texas Avenue El Paso, Texas 79901 (915) 241-0534 jwesevich@trla.org achisholm@trla.org pmcgraw@trla.org David J. Ball (DC Bar No. 460055) 2001 K Street, NW Washington, DC 20006-1047 (202) 223-7352 dball@paulweiss.com Steven C. Herzog (admitted pro hac vice) Meredith A. Arfa (admitted pro hac vice) Katherine Kelly Fell (admitted pro hac vice) 1285 Avenue of the Americas New York, NY 10019-6064 (212) 373-3000 sherzog@paulweiss.com marfa@paulweiss.com kfell@paulweiss.com Attorneys for Plaintiffs Case 1:18-cv-01458-PLF Document 31 Filed 07/09/18 Page 2 of 29 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .......................................................................................................... ii OVERVIEW ................................................................................................................................... 1 UNDISPUTED FACTS .................................................................................................................. 1 ARGUMENT .................................................................................................................................. 4 A. The Plaintiffs Seek to Preserve the Status Quo ...................................................... 4 B. The Government Has Not Met its Burden of Proving Interference with OrderlyAdministration of Class Claims.................................................................. 6 1. It Is Not Clear that M.G.U. Is a Member of the Class in Ms. L .................. 7 2. It Is Premature to Deny Relief to All Three Plaintiffs Based on the Early-Stage Proceedings in Ms. L ............................................................... 8 C. The Plaintiffs Are Likely to Succeed on the Merits ............................................. 13 D. The Balance of Harms and Public Interest Favor Immediate Relief for the Plaintiffs ................................................................................................................ 21 CONCLUSION ............................................................................................................................. 23 i Case 1:18-cv-01458-PLF Document 31 Filed 07/09/18 Page 3 of 29 TABLE OF AUTHORITIES Page(s) CASES Aguilar v. ICE, 510 F.3d 1, 22 (1st Cir. 2007) ..................................................................................................21 Matter of Application of Dept. of Human Services for Temp. Care, Custody and Control of Barrett, No. 91-cv-159, 1995 WL 450466 (D.V.I. Jan. 31, 1995) ........................................................16 Bear v. Kautzky, 305 F.3d 802 (8th Cir. 2002) ...................................................................................................22 Blair v. Equifax Check Servs., Inc., 181 F.3d 832 (7th Cir. 1999) .....................................................................................................9 Blum v. Caldwell, 446 U.S. 1311 (1980) ...............................................................................................................11 U.S. v. Breeden, No. 16-cr-0008, 2016 WL 8943168 (D.D.C. June 3, 2016) ....................................................15 Carey v. Population Servs. Int’l, 431 U.S. 678 (1977) .................................................................................................................16 Coal River Mt. Watch v. U.S. Dept. of the Int., 146 F. Supp. 3d 17 (D.D.C. 2015) .............................................................................................9 Cobell v. Babbitt, 91 F. Supp. 2d 1 (D.D.C. 1999), aff’d and remanded sub nom. Cobell v. Norton, 240 F.3d 1081 (D.C. Cir. 2001)..................................................................................23 Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976) ...................................................................................................................8 Common Cause Indiana v. Marion County Election Bd., No 17-cv-01388, 2018 WL 1940300 (S.D. Ind. Apr. 25, 2018) ................................................5 Consarc Corp. v. U.S. Treasury Dept. of Foreign Assets Control, 71 F.3d 909 (D.C. Cir. 1995) .....................................................................................................4 Damus v. Nielsen, No. 18-cv-00578 (D.D.C.) .......................................................................................................14 DuPoutot v. Raffaelly, 424 F.3d 112 (1st Cir. 2005) ....................................................................................................21 ii Case 1:18-cv-01458-PLF Document 31 Filed 07/09/18 Page 4 of 29 Fortin v. Commr. of Massachusetts Dept. of Pub. Welfare, 692 F.2d 790 (1st Cir. 1982) ....................................................................................................11 Franz v. United States, 707 F.2d 582 (D.C. Cir. 1983) .....................................................................................15, 16, 23 Goff v. Menke, 672 F.2d 702 (8th Cir. 1982) ...................................................................................................12 Kansas v. Hendricks, 521 U.S. 346 (1997) .................................................................................................................19 J.B. v. Washington County, 127 F.3d 919 (10th Cir.1997) ....................................................................................................5 Landis v. N. Am. Co., 299 U.S. 248 (1936) ...........................................................................................................10, 11 Larson v. Dom. & For. Com. Corp., 337 U.S. 682 (1949) .................................................................................................................13 Lassiter v. Dept. of Soc. Services of Durham County, N.C., 452 U.S. 18 (1981) ...................................................................................................................16 League of Women Voters of U.S. v. Newby, 838 F.3d 1 (D.C. Cir. 2016) .....................................................................................................23 Lively v. Caribbean Cruise Line, Inc., No. 2:14-CV-00953 JAM CK, 2014 WL 4377924 (E.D. Cal. Sept. 4, 2014) .........................10 Long v. Collins, 917 F.2d 3 (5th Cir. 1990) .......................................................................................................12 Mills v. District of Columbia, 571 F.3d 1304 (D.C. Cir. 2009) ...............................................................................................21 Ms. L v. ICE, 302 F. Supp. 3d 1149 (S.D. Cal. 2018) ....................................................................................14 Murray v. Sears, No. 09-cv-5744, 2014 WL 563264 (N.D. Cal. Feb. 12, 2014) ................................................13 Nat’l Indus. for Blind v. Dep’t of Veterans Affairs, 296 F. Supp. 3d 131 (D.D.C. 2017) .........................................................................................10 Nicolson v. Pappalardo, 685 F. Supp. 2d 142 (D. Me. 2010) .....................................................................................5, 21 iii Case 1:18-cv-01458-PLF Document 31 Filed 07/09/18 Page 5 of 29 Oceana v. Locke, 670 F.3d 1238 (D.C. Cir. 2011) ...............................................................................................23 Open Cmtys. All. v. Carson, 286 F. Supp. 3d 148 (D.D.C. 2017) .........................................................................................23 Pittman v. Cuyahoga County Dept. of Children and Fam. Services, 640 F.3d 716 (6th Cir. 2011) ...................................................................................................15 R.I.L-R v. Johnson, 80 F. Supp. 3d 164 (D.D.C. 2015) ...........................................................................................21 Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225 (10th Cir. 2005) ...............................................................................................13 Stanley v. Illinois, 405 U.S. 645 (1972) ...................................................................................................................5 Stark v. Wickard, 321 U.S. 288 (1944) .................................................................................................................12 T.G. by & through Ta.G. v. Hamos, No. 12-cv-3320, 2014 WL 1593159 (C.D. Ill. Apr. 21, 2014) ..............................................8, 9 Troxel v. Granville, 530 U.S. 57 (2000) ...................................................................................................................16 Trudeau v. Fed. Trade Commn., 456 F.3d 178 (D.C. Cir. 2006) .................................................................................................13 STATUTES 5 U.S.C. § 702 ..........................................................................................................................13, 14 8 U.S.C. § 1232(b)(3) ....................................................................................................................20 8 U.S.C. § 1325 ....................................................................................................................2, 17, 19 D.C. Code Ann. § 14-305(b)(2)(B)................................................................................................18 OTHER AUTHORITIES Fed. R. Civ. P. 15(d) ......................................................................................................................14 Fed. R. Civ. P. 23(b)(2)................................................................................................................6, 8 iv Case 1:18-cv-01458-PLF Document 31 Filed 07/09/18 Page 6 of 29 Plaintiffs M.G.U., A.P.F., and E.F. are three immigrant parents (“Plaintiffs”). The Defendant agencies and officials (“Government”) forcibly and indefinitely separated Plaintiffs from their children over a month ago near the U.S.-Mexico border. Plaintiffs seek a preliminary injunction directing the Government to immediately reunite them with their children. Dkt. No. 13. The Government responded in opposition. Dkt. No. 27. Plaintiffs reply as follows. OVERVIEW Plaintiffs’ separation from their children—which now spans over a month, with no certain end in sight—is torturous and Plaintiffs are desperate for it to end. The Government does not dispute the ongoing harm that separation causes the Plaintiffs and their children. Instead, the Government offers vague promises that it is working to reunite these families, without committing to a timeline. Due Process requires more. These separations violate the Plaintiffs’ substantive Due Process rights, and the Plaintiffs urgently seek immediate reunification. Alternatively, the Plaintiffs request that the Government be required to prove, in an adversarial process at which the Plaintiffs are allowed to be heard, the legal justification for any continued separation. UNDISPUTED FACTS The Government does not dispute any of the facts supporting Plaintiffs’ Application for a Preliminary Injunction. Compare Dkt. No. 13 at 1-8 (complete statement of material facts with cites to supporting evidence) with Dkt. No. 27 at passim (no suggestion of any disagreement). Most importantly, unanimous medical consensus establishes that separation causes trauma to parents and children, and presents an unacceptable risk of permanent harm to them (Dkt. Nos. 1-7, 8-4, 8-5, 13-10, 13-11, 13-12, 13-13). Rather than dispute any fact, the Government supplements the Plaintiffs’ statement of facts with additional facts as to two subjects that merit further examination. Case 1:18-cv-01458-PLF Document 31 Filed 07/09/18 Page 7 of 29 First, the Government states that it separated M.G.U. from her children because she “had been convicted of making False and Misleading Representations and sentenced to 75 days confinement.” Aguilar Decl. at ¶ 2, Dkt. No. 27-1. The Government’s explanation omits numerous key facts: (a) the conviction alleged by the Government is nineteen years old, Fluharty Decl. ¶ 20, Dkt. No. 31-4; (b) the Government does not allege that the conviction involves children, or allege any reason why any conviction indicates M.G.U. poses any risk to children, Aguilar Decl. at ¶ 2, Dkt. No. 27-1; (c) by all indications, M.G.U.’s conviction was for a “petty offense,” see 18 U.S.C. § 19 (defining “petty offense”); Aguilar Decl. at ¶ 2, Dkt. No. 27-1 (stating M.G.U. was sentenced to 75 days confinement); 8 U.S.C. § 1325(a) (providing that a firsttime conviction for false or misleading representation shall be punishable by not more than six months’ imprisonment); (d) the conviction is M.G.U.’s only criminal history, and occurred when she was 22 years old, Fluharty Decl. ¶ 21, Dkt. No. 31-4; (e) the Government detained M.G.U. together with her three children for two weeks prior to citing the conviction as its reason for separation, Fluharty Decl. ¶¶ 12-13, Dkt. No. 31-4; (f) the Government separated M.G.U. from her children on the same date that M.G.U. received a positive credible fear determination, permitting M.G.U. to pursue her asylum application, Fluharty Decl. ¶ 13, Dkt. No. 31-4; 2 Case 1:18-cv-01458-PLF Document 31 Filed 07/09/18 Page 8 of 29 (g) M.G.U. arrived in the United States with her children as members of a “caravan” of refugees that received extensive press coverage and that was repeatedly denounced by Government officials, see, e.g., Brett Samuels, Trump Orders DHS Not to Let Immigrant Caravans into US, THE HILL (April 23, 2018), http://thehill.com/homenews/administration/384400-trump-orders-dhs-not-to-letimmigrant-caravans-into-us ; Fluharty Decl. ¶¶ 15-23, Dkt. No. 31-4; (h) the Government routinely houses parents who have only minor or old criminal histories together with their children at the South Texas Family Residential Center (“STFRC”), where M.G.U. was housed before she was forcibly separated from her children, Fluharty Decl. ¶ 19, Dkt. No. 31-4; and (i) the Government has not published written standards for how it decides what criminal history disqualifies a parent from being detained together with children. All of these facts point to arbitrary retaliation and an intent to dissuade M.G.U. from pursuing her and her children’s asylum claims, rather than concern for child safety. Second, the Government claims that it is attempting to reunite families consistent with the preliminary injunction entered in Ms. L v. ICE, No. 18-cv-0428, pending in the U.S. District Court for the Southern District of California. Dkt. No. 27-2 and 27-3. Notably, however, at a July 6, 2018 hearing in Ms. L, the Government specifically refused to commit to complying with that preliminary injunction, and instead reserved its right to appeal and seek a stay at any time within 60 days following June 26, 2018. See Transcr. at 17:19-18:6, Dkt. No. 31-3; see also Dkt. No. 27-2 at 41 (the Government agrees that reports of counsel’s statements are properly considered on preliminary injunction). Indeed, in the Government’s Notice Regarding Compliance and Request for Clarification and/or Relief in Ms. L, the Government sought 3 Case 1:18-cv-01458-PLF Document 31 Filed 07/09/18 Page 9 of 29 unspecified relief from the reunification deadlines set by the court. Dkt. No. 27-2 at 1 (“Defendants thus seek . . . as appropriate, relief from the Court’s deadlines”), 8 (“HHS seeks partial relief from the timelines in the Court’s order”). More importantly, the Government’s vague statements regarding Ms. L compliance efforts say nothing about it how will treat the Plaintiffs in this litigation, or exactly how a ruling on the Plaintiffs’ claims would impermissibly interfere with any compliance effort. See generally Dkt. Nos. 27-2 and 27-3 at passim. Moreover, as indicated in the Parties’ Joint Status Report, Dkt. No. No. 26, at 2-5, the Government has failed to provide Plaintiffs with any information about plans to reunify them with their children, failed to provide them with adequate means to communicate with their children, and failed to even provide Plaintiff E.F. with the address where her son, B.Y.A.F., is being detained. ARGUMENT No argument, authority, or fact cited by the Government justifies its continued separation of Plaintiffs from their children. For ease of reference, this reply follows the order of argument presented by the Government in its Opposition to Plaintiff’s Motion for Preliminary Injunction, Dkt. No. 27. A. The Plaintiffs Seek to Preserve the Status Quo The Government argues that because Plaintiffs’ motion for preliminary injunction seeks to alter the status quo, their motion is subject to a “heightened standard:” Plaintiffs must “clearly” show that they are “entitled” to relief or “that extreme or very serious damage will result from the denial of the injunction.” Dkt. No. 27 at 8 (quoting cases). But Plaintiffs’ motion only seeks to preserve the status quo. The status quo to be preserved on preliminary injunction is the “last uncontested status which preceded the pending controversy.” Consarc Corp. v. U.S. Treasury Dept. of Foreign Assets Control, 71 F.3d 909, 913 4 Case 1:18-cv-01458-PLF Document 31 Filed 07/09/18 Page 10 of 29 (D.C. Cir. 1995) (citations omitted). Courts may issue mandatory injunctions to preserve this status quo. Id.; see also Common Cause Indiana v. Marion County Election Bd., No 17-cv-01388, 2018 WL 1940300 at *7 (S.D. Ind. Apr. 25, 2018) (“[a] mandatory injunction can be used to compel restoration of the status quo, . . .[i.e.,] ‘the last peaceable uncontested status that existed before the dispute arose.’”) (citations and internal quotation marks omitted). The Government does not dispute that Plaintiffs arrived in the United States together with their children, or that the Government arrested them together and subsequently separated them. Each Plaintiff has contested separation ever since the Government initially inflicted it on each of them. The reunification that Plaintiffs seek on preliminary injunction thus preserves the status quo, so no heightened standard is appropriate. Even if a heightened standard were appropriate, Plaintiffs satisfy both of the alternative tests recommended by the Government. As discussed in Part C, infra, Plaintiffs have stated valid claims on undisputed facts and controlling precedent. The Government does not dispute the serious damage that would result from continued separation, namely trauma, damage to parent-child relations, and deprivation of constitutional rights. See Declarations of Medical Professionals and Associations, Dkt. Nos. 8-4, 8-5, 13-10, 13-11, 13-12, 13-13; Stanley v. Illinois, 405 U.S. 645, 647 (1972) (“[P]etitioner suffers from the deprivation of his children, and the children suffers from uncertainty and dislocation.”); J.B. v. Washington County, 127 F.3d 919, 925 (10th Cir.1997) (“[F]orced separation of parent from child, even for a short time, represents a serious infringement upon both the parents' and child's rights.”) (internal quotation marks omitted); Nicolson v. Pappalardo, 685 F. Supp. 2d 142, 146 (D. Me. 2010) (“[e]very additional day” of separation causes further harm). 5 Case 1:18-cv-01458-PLF Document 31 Filed 07/09/18 Page 11 of 29 B. The Government Has Not Met its Burden of Proving Interference with Orderly Administration of Class Claims The Government argues that the Court should deny Plaintiffs’ Motion because the District Court for the Southern District of California has certified a class for equitable relief pursuant to FED. R. CIV. P. 23(b)(2). See Ms. L v. ICE, No. 18-cv-0428, 2018 WL 3129486 at *11-12 (S.D. Cal. June 26, 2018) (order granting preliminary injunction). The Government argues that “Plaintiffs are currently believed to be class members . . . .” Opp. at 5, 9 (emphasis added). The Government therefore contends that “allowing these individual claims would interfere with the administration of the Ms. L class action by that district court, and would create the risk of conflicting orders on the same claims by the same plaintiffs,” and would be prejudicial to Defendants because they “have already undertaken extensive efforts towards compliance with [that] preliminary injunction order.” Opp. at 9. Plaintiffs are aware of the proceedings in Ms. L and appreciate that court’s willingness to order relief on behalf of detained parents who have been indefinitely separated from their children in a manner inconsistent with constitutional principles. It is not clear from the Ms. L court’s class certification order, however, that Plaintiff M.G.U. meets the definition of a class member, and the Government has provided no assurances that it would not challenge M.G.U.’s standing there. Furthermore, because of the nascent posture of the Ms. L matter, and because of the government’s continuing efforts to delay and evade the Ms. L court’s orders, it would be premature and prejudicial to deny Plaintiffs relief here and require them to proceed as a part of that action. This Court should grant Plaintiffs’ Motion and immediately remedy the grave constitutional harms that Plaintiffs and their children are currently suffering. 6 Case 1:18-cv-01458-PLF Document 31 Filed 07/09/18 Page 12 of 29 1. It Is Not Clear that M.G.U. Is a Member of the Class in Ms. L In a June 26, 2018 order, the Ms. L court certified a class, pursuant to Fed. R. Civ. P. 23(b)(2), of [a]ll adult parents who enter the United States at or between designated ports of entry who (1) have been, are, or will be detained in immigration custody by the DHS, and (2) have a minor child who is or will be separated from them by DHS and detained in ORR custody, ORR foster care, or DHS custody, absent a determination that the parent is unfit or presents a danger to the child. [ ] The class does not include parents with criminal history or communicable disease, or those apprehended in the interior of the country or subject to the EO. Ms. L, 2018 WL 3129486 at *3 n.5 (emphasis added). While the Government is careful to state in its brief here that Plaintiffs are “currently believed to be class members” in Ms. L, it also alleges that M.G.U. was previously charged with and convicted of “false and misleading representations and sentenced to 75 days confinement” in connection with a prior entry into the United States. Opp. at 5 (emphasis added). The Government’s assurance in its brief that M.G.U. is a “beneficiar[y] of the preliminary injunction order in that case” therefore rings hollow, and this Court should reject the Government’s argument and order precise relief here that will remedy the harms suffered by M.G.U. To be sure, the prior conviction described by the Government is not the kind of infraction that one would logically expect a court to be concerned about when considering the appropriateness of reunification. Aguilar Decl. at ¶ 2, Dkt. No. 27-1. M.G.U.’s alleged conviction occurred nineteen years ago (when M.G.U. was only 22 years old), prior to the birth of M.G.U.’s children from whom she is currently separated, did not involve children, and did not involve violent or abusive behavior. See Fluharty Decl. ¶¶ 20-23, Dkt. No. 31-4. In other words, there is nothing about M.G.U.’s prior conviction that would lead someone to question M.G.U.’s ability to parent her children, and the Government has not asserted as much. However, the Government, in the Ms. L proceedings, has been vague as to what it understands its mandate to be with respect to 7 Case 1:18-cv-01458-PLF Document 31 Filed 07/09/18 Page 13 of 29 evaluating a parent’s criminal history prior to reunification. It states in its Notice Regarding Compliance and Request for Clarification and/or Relief in Ms. L that it will “confirm whether an individual has any criminal history, including a history indicative of abuse,” before “a child can be released” to his or her parent. M.G.U., Dkt. No. 27-2 at 4, 6 (emphasis added). Thus, it is not clear what criminal history, other than that involving abuse, the Government would consider to be incompatible with reunification. Absent a stipulation from the Government that M.G.U. is a member of the Ms. L class, and that she will not be excluded from the Ms. L class on the basis of her prior record, it would be inappropriate to limit the substantive relief available to M.G.U. here. As discussed below, while parallel proceedings are sometimes stayed in favor of an action where a Rule 23(b)(2) class for equitable relief has been certified, courts do not favor limiting relief available to litigants unless it is clear that the litigants’ rights can be efficiently and effectively adjudicated in the other venue. See, e.g., T.G. by & through Ta.G. v. Hamos, No. 12-cv-3320, 2014 WL 1593159, at *3 (C.D. Ill. Apr. 21, 2014) (“Dismissal is rarely appropriate unless it is absolutely clear that dismissal cannot adversely affect any litigant’s interests.”) (internal quotation marks omitted)). This Court therefore should grant M.G.U. the relief sought in this Motion. 2. It Is Premature to Deny Relief to All Three Plaintiffs Based on the Early-Stage Proceedings in Ms. L It is true that, “as between federal district courts, [although] though no precise rule has evolved, the general principle is to avoid duplicative litigation.” See Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976). However, courts generally do not take steps that would limit litigants’ ability to receive substantive relief even when exercising principles of comity in favor of a pending parallel litigation. See, e.g., Blair v. Equifax Check Servs., Inc., 181 F.3d 832, 839 (7th Cir. 1999) (“When overlapping suits are filed in separate 8 Case 1:18-cv-01458-PLF Document 31 Filed 07/09/18 Page 14 of 29 courts, stays (or, rarely, transfers) are the best means of coordination.”). Interestingly, here, the Government asks the Court to deny Plaintiffs’ Motion, rather than to stay or transfer the action, which would be the ordinary procedure for asking for this relief. See, e.g., id.; Coal River Mt. Watch v. U.S. Dept. of the Int., 146 F. Supp. 3d 17, 28 (D.D.C. 2015) (denying motion to dismiss parallel litigation after evaluating all equitable considerations); T.G. by & through Ta.G. v. Hamos, No. 12-CV-3320, 2014 WL 1593159, at *3 (C.D. Ill. Apr. 21, 2014) (denying motion to dismiss or transfer, and in the alternative staying the potentially duplicative litigation). The Government does not cite any authority for the proposition that denying relief to Plaintiffs is an appropriate response to a charge, like the one presented by the Government here, of inefficiency imposed on the judiciary. The more typical way to frame the Government’s request is by way of a motion to stay this proceeding—either entirely, or as to E.F and A.P.F, if M.G.U. is not clearly a member of the Ms. L class. Viewing the Government’s request in this light, the weaknesses of its argument are apparent. The Supreme Court cautions lower courts to carefully consider the balance of hardships between the parties when considering a motion to stay a litigation in favor of a parallel pending action: [T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance. . . . [T]he suppliant for a stay must make out a clear case of hardship or inequity in being required to go forward, if there is even a fair possibility that the stay for which he prays will work damage to some one else. . . . Landis v. N. Am. Co., 299 U.S. 248, 254-55 (1936). Courts across the country, echoing Landis, have adopted this standard. See, e.g., Nat’l Indus. for Blind v. Dep’t of Veterans Affairs, 296 F. Supp. 3d 131, 137–38 (D.D.C. 2017) (citing Landis to deny a motion to stay in favor of parallel consolidated actions, and noting that “[a] stay is not a matter of right, even if irreparable injury 9 Case 1:18-cv-01458-PLF Document 31 Filed 07/09/18 Page 15 of 29 might otherwise result.”); Nat’l Student Mktg. Litig., No. 105, 1973 WL 385, at *3 (D.D.C. Apr. 24, 1973) (same); Lively v. Caribbean Cruise Line, Inc., No. 2:14-CV-00953 JAM CK, 2014 WL 4377924, at *3 (E.D. Cal. Sept. 4, 2014) (“The Ninth Circuit has held that district courts should consider the following three factors in evaluating a motion to stay: ‘the possible damage which may result from the granting of a stay, the hardship or inequity which a party may suffer in being required to go forward, and the orderly course of justice measured in terms of the simplifying or complicating of issues, proof, and questions of law which could be expected to result from a stay.’” (citing CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962)). The Government has failed to demonstrate here that the balance of Landis factors weighs in its favor. While it argues that it would be prejudiced because it is already “in the process of implementing the relief required by [the Ms. L court’s] order,” its representations to the Ms. L court tell a more nuanced story. With respect to the reunification relief ordered by that court, the Government states—not that it has begun implementing the relief—but that it has “been working diligently on complying with the Court’s reunification directives.” M.G.U., Dkt. No. 272 at 1 (emphasis added). The Government has told the Ms. L court that it needs clarification from the Court as to how “to identify class members and their children and to reunify class members with their children.” Id. (emphasis added). It has told the Ms. L court it will need “partial relief from the timelines” set forth in Ms. L Id. at 8. So far, the Government has not provided confirmation of reunification of but two (out of three thousand) parents affected by the Ms. L order with their children, notwithstanding the portion of that order requiring that children under five be reunited with their parents by Tuesday, July 10, 2018. Ms. L, Dkt. No. 83 at 23. Moreover, at the July 6, 2018 status conference in Ms. L, the Government refused to state whether 10 Case 1:18-cv-01458-PLF Document 31 Filed 07/09/18 Page 16 of 29 it would appeal the order directing preliminary relief in Ms. L, stating that such a decision is “entirely within the purview of the Solicitor General.” Transcr. at 18:4-6, Dkt. No. 31-3. As this Court recognized at the hearing on Plaintiffs’ Application for a Temporary Restraining Order, the issues at stake in this proceeding are extraordinarily important, and expedient reunification is necessary to prevent the continuing irreparable harm to Plaintiffs and their children. See Mot. at 19-20. If this Court were to deny Plaintiffs’ Motion or stay this proceeding in favor of Ms. L at this stage, it would subject Plaintiffs and their children to uncertainty and limit or delay their ability to obtain substantive relief. The “damage that may result from the granting of a stay,” Landis, 299 U.S. at 254, would include unnecessarily prolonged separation of Plaintiffs from their children while the Government continues to analyze how—and whether—to comply with its obligations in Ms. L, as well as potential additional delays due to Government challenges to class membership (including with respect to M.G.U.). The damage that may result from granting a stay is especially acute here, where the Plaintiffs and their children face immediate, ongoing, and serious harm from the Government’s challenged action. See Blum v. Caldwell, 446 U.S. 1311, 1315-16 (1980) (nature of health risk tips balance of harm to injunction); Fortin v. Commr. of Massachusetts Dept. of Pub. Welfare, 692 F.2d 790, 797 (1st Cir. 1982) (“The test of impossibility [of compliance with a court order] may be particularly strict in a case such as this one, in which the needs of applicants are urgent.” (citing White v. Mathews, 559 F.2d 852, 859 (2d Cir.1977), cert. denied, 435 U.S. 908 (1979)). 2 The Plaintiffs have sought this Court’s intervention precisely to avoid the severe and ongoing harm caused by the 2 If “numerous parallel cases are filed, the courts have ample authority to stay useless litigation until the determination of a test case.” Stark v. Wickard, 321 U.S. 288, 310 (1944). The Court’s “useless” qualification suggests that courts should not exercise discretion to stay litigation that has a critical use—the alleviation of irreparable harm—while a test case is determined. 11 Case 1:18-cv-01458-PLF Document 31 Filed 07/09/18 Page 17 of 29 Government’s challenged actions. The Court should exercise its jurisdiction to order narrow, tailored relief affecting only Plaintiffs, which would provide urgently needed relief to Plaintiffs and their children. Plaintiffs are not arguing that courts should allow both a class action and limitless individual actions, adjudicating the same issues, to proceed indefinitely. But here, it is premature to stay the instant proceedings in favor of the pending litigation in Ms. L. The Government provides no support for the assertion that narrow, tailored relief with respect to these three plaintiffs would interfere “with the orderly administration of the pending class action” in Ms. L. Opp. at 8-10. Unlike a situation where there has been a final adjudication of a class action, here the proceedings in Ms. L are in their very early stages and, by the Government’s own admissions, may be subject to appeal or other delays or modifications. Importantly, the cases that the Government cites in favor of the proposition that this Court should deny relief involved successive filings by pro se prisoners seeking relief for claims that had been finally adjudicated prior to the filing of the individual action, or where preliminary relief was already resolved in the parallel action. See Opp. at 9 (citing McNeil v. Guthrie, 945 F.2d 1163, 1165-1166 (10th Cir. 1991) (finding an individual pro se prisoner action would not be entertained where the defendant prison was already subject to a consent decree on the same issue); Long v. Collins, 917 F.2d 3, 4-5 (5th Cir. 1990) (same); Goff v. Menke, 672 F.2d 702, 704 (8th Cir. 1982) (finding that only “[a]fter rendition of a final judgment [is] a class member [ ] ordinarily bound by the result of a class action” and that a stay would have been appropriate where “the issues had already been preliminarily resolved and were pending final resolution”). Indeed, courts recognize that the principle of comity “require[s] a court to pay respectful attention to the decision of another judge in a materially identical case, but no more than that even if it is a judge 12 Case 1:18-cv-01458-PLF Document 31 Filed 07/09/18 Page 18 of 29 of the same court or a judge of a different court within the same judiciary.” Murray v. Sears, No. 09-cv-5744, 2014 WL 563264 at *5 (N.D. Cal. Feb. 12, 2014) (citation omitted). This Court should not decline or delay the Plaintiffs the relief they seek in this action, where the parallel pending matter is not materially farther along than the instant proceedings and the scope and availability of relief in that action is far from clear for the Plaintiffs. C. The Plaintiffs Are Likely to Succeed on the Merits The Government claims that the Plaintiffs are unlikely to succeed on the merits of their claims, and offers four arguments in support. None withstands scrutiny. First, the Government argues that the Plaintiffs have failed to carry their burden of proving the Government’s waiver of sovereign immunity because the Plaintiffs have not pleaded a waiver of sovereign immunity. Dkt. No. 27 at 10. But 5 U.S.C. § 702 explicitly waives sovereign immunity. This statute waives sovereign immunity from claims directly under the Constitution to secure compliance, independent of the Administrative Procedure Act. Trudeau v. Fed. Trade Commn., 456 F.3d 178, 186-90 (D.C. Cir. 2006); accord Larson v. Dom. & For. Com. Corp., 337 U.S. 682, 704 (1949); Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1230 (10th Cir. 2005). The Plaintiffs so alleged. Dkt. No. 8 at 4. To the extent that the Government’s argument is only that § 702 is not cited in Plaintiffs’ Complaint, the Government cites no authority indicating that citation in the Complaint is required. If citation is somehow required, Plaintiffs seek leave to supplement their Complaint to cite § 702. See FED. R. CIV. P. 15(d). Second, the Government argues that this Court lacks jurisdiction. The Government first argues that if Plaintiffs were to seek a writ of habeas corpus, this Court lacks jurisdiction to grant it. Dkt. No. 27 at 11. Nowhere have Plaintiffs sought a writ of habeas corpus. The Government then argues that if Plaintiffs were to seek release (called “parole” in immigration proceedings), this Court lacks jurisdiction to order it. Dkt. No. 27 at 11-13. Nowhere have 13 Case 1:18-cv-01458-PLF Document 31 Filed 07/09/18 Page 19 of 29 Plaintiffs sought an order directing parole or release. The U.S. District Court for the Southern District of California previously rejected these very jurisdictional arguments. See Ms. L v. ICE, 302 F. Supp. 3d 1149, 1158-59 (S.D. Cal. 2018); see also Damus v. Nielsen, No. 18-cv-00578 (D.D.C.), Dkt. No. 34 (Preliminary Injunction entered July 2, 2018) (discussing D.D.C. jurisprudence permitting review of parole methodologies that do not require review of individual parole decisions). The Government’s jurisdictional arguments have no basis in law or fact. Third, the Government argues that even if sovereign immunity is waived and this Court has jurisdiction, the Government’s family separation practices cannot be enjoined because they do not “shock the conscience.” Dkt. No. 27 at 13-14. This is wrong as a matter of both fact and of law. Outcry denouncing the shocking inhumanity of the Government’s conduct has been registered from diverse and authoritative quarters. 3 Yet the Government offers no evidence at all 3 See Ms. L, 302 F. Supp. 3d at 1167 (a policy of purposefully separating immigrant families “is brutal, offensive, and fails to comport with traditional notions of fair play and decency”); United Nations Office of Human Rights Commissioner, Letter at 2, Dkt. No. 13-9 (“Detention of children is punitive, severely hampers their development, and in some cases may amount to torture . . . . Children are being used as a deterrent to irregular migration, which is unacceptable.”); Amy Kellogg, Pope Francis says separation of migrant children ‘contrary to our Catholic values, immoral, FOX NEWS (June 20, 2018) (“Pope Francis has called the separation of migrant children from their parents ‘contrary to our Catholic values and immoral.’”), http://www.foxnews.com/world/2018/06/20/pope-francis-says-separationmigrant-children-contrary-to-our-catholic-values-immoral.html; Laurie Goodstein, Conservative Religious Leaders are Denouncing Trump Immigration Policies, New York Times (June 14, 2018), https://www.nytimes.com/2018/06/14/us/trump-immigrationreligion.html (reporting on a near unanimous vote of thousands of members of the Southern Baptist Convention: “We declare that any form of nativism, mistreatment, or exploitation is inconsistent with the Gospel of Jesus Christ,” with one delegate explaining, “We’re saying we love these people, they’re made in God’s image, we should care for them, we don’t want families to be separated.”); American Medical Association Letter (June 19, 2018), Dkt. No. 13-13 at 39 (“It is well known that childhood trauma and adverse childhood experiences created by inhumane treatment often create negative health impacts that can last an individual’s entire lifespan. Therefore, the AMA believes strongly that, in the absence of immediate physical or emotional threats to the child’s well-being, migrating children should not be separated from their parents or caregivers.”). 14 Case 1:18-cv-01458-PLF Document 31 Filed 07/09/18 Page 20 of 29 that its treatment of parents and children (including babies and toddlers) separated near the border is humane. Moreover, unlike First and Ninth Circuit cases holding that a “shock the conscience” threshold showing is required to show a substantive Due Process violation of the right to family integrity, the D.C. Circuit has already articulated a specific and firm test that does not require a “shock the conscience” threshold showing. See Franz v. United States, 707 F.2d 582, 602 (D.C. Cir. 1983) (“Severance of the relationship between a parent and his child will survive constitutional scrutiny only if” the government’s interest is compelling; there is a particularized showing that the state is interested in terminating the parental relationship; it is “impossible” to accomplish that interest in a less restrictive way; and the parties are afforded procedural Due Process rights); id. at 603 (the D.C. Circuit expects Franz to be applied to decide future cases); accord U.S. v. Breeden, No. 16-cr-0008, 2016 WL 8943168 at *2 (D.D.C. June 3, 2016); see also Pittman v. Cuyahoga County Dept. of Children and Fam. Services, 640 F.3d 716, 728 & n.6 (6th Cir. 2011) (rejecting a “shock the conscience” threshold where allegations of a violation of the fundamental right to family integrity are made). Finally, the Government argues that its family separation policy does not deprive the Plaintiffs of substantive Due Process. Dkt. No. 27 at 13-14. Settled law shows otherwise. Plaintiffs’ Due Process right to retain custody and companionship of their biological children is fundamental, sacred, and “perhaps the oldest of the fundamental liberty interests protected by [the Supreme Court].” See Troxel v. Granville, 530 U.S. 57, 65 (2000); Lassiter v. Dept. of Soc. Services of Durham County, N.C., 452 U.S. 18, 27 (1981). The Government violates this right unless it survives strict scrutiny, namely: (a) that it has a compelling reason for placing any substantial burden on this right; and (b) and that it has narrowly tailored its burden to serve its compelling reason. Carey v. Population Servs. Int’l, 431 U.S. 678, 15 Case 1:18-cv-01458-PLF Document 31 Filed 07/09/18 Page 21 of 29 686 (1977); Franz, 707 F.2d at 602-03; Matter of Application of Dept. of Human Services for Temp. Care, Custody and Control of Barrett, No. 91-cv-159, 1995 WL 450466 at *5 (D.V.I. Jan. 31, 1995). The Government’s burden on the Plaintiffs’ right to custody and companionship is substantial by any measure. The Government’s separation policy indefinitely and absolutely prevents Plaintiffs from having custody and companionship of their children; instead the Government explicitly substituted itself as the entity directing “care and custody” of the Plaintiffs’ children, and did so without providing the Plaintiffs any opportunity to be heard. 8 U.S.C. § 1232(b)(1); Dkt. No. 27 at 4; see also Dkt. No. 1-4 at 1 (“Children whose parents are referred for prosecution will be placed with [the Government’s] Office of Refugee Resettlement (ORR).”). The Government detained Plaintiffs without any access to or virtually any contact with their children for almost a month, at least until June 27, 2018, preventing parents from having any opportunity at all to exercise care, custody, or control over their children. Dkt Nos. 8-1, 8-2. 8-3, 13-4, 13-5, and 13-6; see also Dkt. No. 26 at 1-6 (detailing post-June 27, 2018 experience). Having substantially burdened Plaintiffs’ fundamental rights, Franz requires the Government to prove its compelling interest in doing so. The Government identifies but two interests: its need to protect children at South Texas Family Residential Center from parents with criminal histories like that of M.G.U., and its need to prosecute E.F. and A.P.F. for violating 8 U.S.C. § 1325. Dkt. No. 27 at 14 and Dkt. No. 27-1 at 1-3. Importantly, M.G.U. has not been prosecuted for illegal entry for her May 2018 entry into the United States. Indeed, as discussed above, M.G.U. was detained with her children while awaiting her credible fear interview, which she passed. But she was nonetheless separated from her children thereafter on the basis of a nineteen-year-old conviction for “false and 16 Case 1:18-cv-01458-PLF Document 31 Filed 07/09/18 Page 22 of 29 misleading statements” in connection with a prior entry into the United States. M.G.U.’s only criminal history dates back to when she was 22 years old, had nothing to do with children or violence, and was not raised as a disqualifying characteristic by the Government until two weeks after M.G.U. had lived in detention together with her children. Fluharty Decl. at ¶¶ 12-13, 20-23, Dkt. No. 31-4; Aguilar Decl. at ¶ 2, Dkt. No. 27-1. The Government makes no attempt to explain what features of M.G.U.’s criminal history caused concern sufficient to separate her from her children, the divergence in its treatment of M.G.U. in terms of separation before and after her credible fear interview, or how her criminal history endangers her children or other children at a family residential center. The Government makes no attempt to compare M.G.U.’s history to the histories of other mothers who are detained together with their children, and follows no written standards to determine which criminal histories disqualify a parent from residing at STFRC together with their children. Indeed, the State of Texas has written standards for criminal histories, and Texas would permit M.G.U. to work in a licensed child care facility without even a risk evaluation because her conviction is over 10 years old. See Texas Department of Family and Protective Services Criminal History Requirements at 8, Dkt. No. 31-2, https://www.dfps.state.tx.us/Child_Care/Child_Care_Standards_and_Regulations/Criminal_Convi ctions.asp; see also D.C. Code Ann. § 14-305(b)(2)(B) (“no evidence of any conviction of a witness is admissible under this section if a period of more than ten years has elapsed since [release]”). Similarly, while Defendant Office of Refugee Resettlement (ORR) continues to deny M.G.U. access to her own children, it would explicitly permit release of one of M.G.U.’s children to a “sponsor” who had been convicted of a felony involving physical assault as long as the conviction was over five years old. See ORR Release Standard at 21 § 2.7.4, Dkt. No. 31-1, 17 Case 1:18-cv-01458-PLF Document 31 Filed 07/09/18 Page 23 of 29 https://www.acf.hhs.gov/orr/resource/children-entering-the-united-states-unaccompanied-section2. All of these facts indicate a likelihood that the Government did not consider M.G.U.’s criminal history to be an actual threat to anyone, and instead singled M.G.U. out for retaliation for participating in a “caravan” denounced by Government officials, including the President of the United States. The Government separated M.G.U. from her children not to protect anyone at STFRC, but rather to inflict suffering upon her. Plaintiffs believe that the following discovery will likely reveal the extent to which the Government used M.G.U.’s criminal history as a pretext for separating her from her children: (a) does the Government hire ICE agents with criminal histories comparable to that of M.G.U.? (b) does the Government permit its own employees, or employees of private prison company CoreCivic, which operates STFRC, to work with children despite criminal histories comparable to that of M.G.U.? (c) what explanation does the Government have for waiting two weeks, until after M.G.U. passed her credible fear interview, before separating her from her children? (d) what do emails among ICE agents say about how the decision to separate M.G.U. from her children was made? (e) what criminal histories has ICE tolerated among mothers who are detained at STFRC without separating them from their children? For present purposes, the important fact is that all of the above evidence is easily and entirely within the Government’s control, and yet the Government has offered no evidence beyond a vague declaration stating only that M.G.U. has a criminal history, and the Government relied on it to separate her from her children. Dkt. No. 27-1. On this record, M.G.U. urges the Court to find that 18 Case 1:18-cv-01458-PLF Document 31 Filed 07/09/18 Page 24 of 29 the Government has failed to meet its burden of proving a compelling interest in separating M.G.U. from her children. 4 As for A.P.F. and E.F., the Government has only claimed that it needed to separate their children from them to prosecute them for violating 8 U.S.C. § 1325(a). But the parties do not dispute that all criminal proceedings, and sentences, have concluded (as to E.F. on June 6, 2018, and concluded as to A.P.F. on June 8, 2018). Dkt. Nos. 8-1, 8-2, 13-5, 13-6, 13-7. Now, one month later, E.F. and A.P.F. remain indefinitely separated from their children. Consequently even if the Government had a compelling interest in separating these families to conduct prosecutions, the Government obviously did so in a way that was not narrowly tailored to minimize the burden on Plaintiffs’ rights. The Government cites a statutory framework that it claims required DHS to transfer custody of the Plaintiffs’ children to HHS at the commencement of each prosecution. Dkt. No. 27 at 3-5 (describing statutes on “custody” of “unaccompanied” children). Critically, the statutes cited by the Government to separate Plaintiffs from their children explicitly require the Government to “promptly [place all children] in the least restrictive setting that is in the best interest of the child.” 8 U.S.C. § 1232(c)(2)(A). This text does not permit the Government to: (a) deem any child “unaccompanied” prior to the 72-hour period set forth in 8 U.S.C. § 1232(b)(3), particularly when, as in the case of A.P.F., prosecutions are concluded within 72 hours; (b) fly separated children thousands of miles away from their parents to enable the Government to conduct what is typically a week-long prosecution; (c) fail to develop any 4 Evidence that the Government’s proffered explanation for separating M.G.U. from her children is pretext for an intent to punish M.G.U. supports a finding of unconstitutionality. See Kansas v. Hendricks, 521 U.S. 346, 371 (1997) (Kennedy, J., concurring) (“If the object or purpose of the Kansas law had been to provide treatment but the treatment provisions were adopted as a sham or mere pretext, there would have been an indication of the forbidden purpose to punish.”). 19 Case 1:18-cv-01458-PLF Document 31 Filed 07/09/18 Page 25 of 29 advanced procedures for promptly reuniting families upon the conclusion of prosecution; and (d) fail to record reliable information—even a basic photograph—about the adults from whom the Government separated children, which would obviously help facilitate reuniting these families. This record indisputably demonstrates that the Government did not narrowly tailor its separation policies and practices to minimize the burden that the Government placed on parental rights. Importantly, the Government has not disputed the Plaintiffs’ evidence that the Government separated them from their children with intent to inflict punishment on them. See Dkt. No. 13 at 13-19; Dkt. No. 27 at passim. This Court has already held that deterrence justifications such as the one that the Government has offered for the separations at issue here “appea[r] out of line with analogous Supreme Court decisions.” R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 189 (D.D.C. 2015) (collecting cases). 5 5 The Government argues that the Parents are lawfully detained pursuant to immigration statutes, and this fact alone destroys their constitutional claims. According to the Government, lawfully detained immigrants have identical rights as criminal suspects awaiting trial, neither of whom has a right to be detained with their children. Opp. at 13. But as the Government acknowledges, the scope of the constitutional right to family integrity “depends on the circumstances of [each] particular case.” Id. (citing Overton v. Bzzetta, 539 U.S. 126, 131 (2003)); see also Aguilar v. ICE, 510 F.3d 1, 22 (1st Cir. 2007) (“Applying the jurisprudence of substantive due process is an exercise that is ‘highly dependent on context and detail.’ DuPoutot v. Raffaelly, 424 F.3d 112, 119 (1st Cir. 2005). Were a substantial number of young children knowingly placed in harm's way, it is easy to imagine how viable claims might lie.”). The context and detail at issue here distinguish the Parents’ constitutional claims: (a) the only reason that the Parents are separated from their children is because the Government forcibly separated them after arresting them together; (b) the Government is detaining the children separate from the parents with little communication, in what is necessarily a bewildering experience for a child of any age; (c) separate detention itself causes anguish to parents and children. On these facts, the burden that the Government has placed on the Parents’ Due Process right to family integrity far exceeds any burden experienced by a criminal pre-trial detainee or an immigrant arrested alone. 20 Case 1:18-cv-01458-PLF Document 31 Filed 07/09/18 Page 26 of 29 D. The Balance of Harms and Public Interest Favor Immediate Relief for the Plaintiffs The Government does not contest Plaintiffs’ showing of irreparable harm to support their motion for preliminary injunction. Dkt. No. 13 at 19-20. Nor could it. “[E]very additional day” of separation is irreparable harm. Nicolson, 685 F. Supp. 2d at 146. Lack of information is but one necessary consequence of separation. Another consequence of separation is lasting damage to children’s well-being and their relationships to their parents. See Dkt. No. 1313 (chorus of medical associations and experts). And “loss of constitutional freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Mills v. District of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009) (internal quotation marks omitted). The Government argues that the balance of harms and public interest weigh in its favor because: (a) the requested preliminary injunction would “impact” unspecified Government efforts to comply with the preliminary injunction in Ms. L; (b) “the Government is devoting significant resources to facilitating compliance for all class members;” (c) the Government and public “have an interest in allowing [unspecified compliance] efforts to move forward;” (d) “orders from other district courts . . . may impact [the Government’s] compliance efforts;” and (e) “the Government [should be permitted] to move forward as quickly as possible to comply with [the Ms. L injunction].” Dkt. No. 27 at 14-15. These vague and conclusory statements are insufficient evidence of harm faced by the Government. See, e.g., Bear v. Kautzky, 305 F.3d 802, 805 (8th Cir. 2002) (government’s insufficient evidence of harm tips balance toward granting preliminary injunction). The Government has ready access to any relevant evidence and yet declines to provide any specific facts regarding how an injunction requiring immediate reunification of Plaintiffs with their children could hinder its compliance with the Ms. L injunction. The Government’s bald assertions leave the Court with no way to gauge the likelihood or extent of any risk that its compliance with 21 Case 1:18-cv-01458-PLF Document 31 Filed 07/09/18 Page 27 of 29 the Ms. L injunction would be hindered by an appropriate order in this case. As long as the Government can resist injunction without having to explain exactly why reunification needs to be delayed or adjusted in specific cases, the Government effectively retains plenary control over the timing of reunification. 6 To the extent that the Government’s argument is resource-based, the need to expend resources cannot outweigh threats to constitutional rights and constitutes insufficient harm to justify continued illegal action. That is especially applicable here, where the Government not only created the problem by implementing a family separation policy, but did so without taking basic actions to facilitate subsequent reunification, such as taking digital photographs of the people who it forcibly separated, recording their statements, and housing them in close physical proximity to one another. See Franz, 707 F.2d at 604 (“Invasion of [a parent’s] rights should not be legitimated by the need to solve a problem the defendants themselves have generated”). If agencies evade their obligations by citing a lack of resources it “would allow the agency to reserve to itself effectively complete discretion” as to whether to comply with any law. Oceana v. Locke, 670 F.3d 1238, 1242 (D.C. Cir. 2011). But “the United States may not evade the law simply by 6 The Government has argued that if a Court wishes to take control of—and responsibility for— the minutia of administrative decisionmaking required to fix the mess produced by the Government’s separation policy, then the Court should so state in an injunction. ECF No. 272 at 8 & n.2. At least in the D.C. Circuit, standard procedure is decidedly otherwise. Courts order specific results needed to comply with law—i.e. reunification by a date certain—and agencies decide all aspects of how to comply on pain of contempt unless, but only unless, the agency proves by clear and convincing evidence that compliance is impossible. S.E.C. v. Ormont, 739 F.2d 654, 657 n.7 (D.C.Cir.1984); Doe v. Gen. Hosp. of D.C., 434 F.2d 427, 43233 (D.C. Cir. 1970); Sierra Club v. Jackson, No. 01-cv-1537, 2011 WL 181097 at *6 (D.D.C. Jan. 20, 2011), enforcement granted in part, denied in part sub nom. Sierra Club v. McCarthy, 61 F. Supp. 3d 35 (D.D.C. 2014); Am. Rivers v. U.S. Army Corps of Engineers, 274 F. Supp. 2d 62, 66-67 (D.D.C. 2003); Morales Feliciano v. Rosello Gonzalez, 124 F. Supp. 2d 774, 785–86 (D.P.R. 2000). 22 Case 1:18-cv-01458-PLF Document 31 Filed 07/09/18 Page 28 of 29 failing to appropriate enough money to comply with it.” Cobell v. Babbitt, 91 F. Supp. 2d 1, 48 (D.D.C. 1999) (internal quotation marks omitted), aff'd and remanded sub nom. Cobell v. Norton, 240 F.3d 1081 (D.C. Cir. 2001). Finally, the Government’s assertions indicate nothing about the public interest. “[T]here is a substantial public interest ‘in having governmental agencies abide by the federal laws that govern their existence and operations.’” League of Women Voters of U.S. v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016) (citations omitted). Indeed, the Government “cannot suffer harm from an injunction that merely ends an unlawful practice.” Open Cmtys. All. v. Carson, 286 F. Supp. 3d 148, 179 (D.D.C. 2017) (internal quotation marks omitted). CONCLUSION The Plaintiffs respectfully request that this Court enter a preliminary injunction directing Defendants to immediately reunite M.G.U., A.P.F., and E.F. with their children. Dated: Washington, D.C. July 9, 2018 TEXAS RIOGRANDE LEGAL AID, INC. /s/ Jerome Wesevich Jerome Wesevich (D.D.C. Bar No. TX0125) Amanda Chisholm (Texas Bar No. 24040684) Peter McGraw (Texas Bar No. 24081036) 1331 Texas Avenue El Paso, Texas 79901 (915) 241-0534 jwesevich@trla.org achisholm@trla.org pmcgraw@trla.org PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP David J. Ball (DC Bar No. 460055) 2001 K Street, NW Washington, DC 20006-1047 (202) 223-7352 dball@paulweiss.com 23 Case 1:18-cv-01458-PLF Document 31 Filed 07/09/18 Page 29 of 29 Steven C. Herzog (admitted pro hac vice) Meredith A. Arfa (admitted pro hac vice) Katherine Kelly Fell (admitted pro hac vice) 1285 Avenue of the Americas New York, NY 10019-6064 (212) 373-3000 sherzog@paulweiss.com marfa@paulweiss.com kfell@paulweiss.com Attorneys for Plaintiffs CERTIFICATE OF SERVICE Pursuant to LCvR 5.3, I hereby certify that, on July 9, 2018, I caused to be electronically filed a copy of the foregoing PlI aintiffs’ Memorandum of Points of Law and Authority in Support of Its Emergency Motion for Expedited Discovery to be served on all counsel of record using the Court’s CM/ECF system. /s/ Jerome Wesevich Jerome Wesevich (D.D.C. Bar No. TX0125) 24 1 of 34 Case 1:18-cv-01458-PLF Document 31-1 Filed 07/09/18 Page 1 of 34 Safe and Timely Release from ORR Care Published: January 30, 2015 Categories: Unaccompanied Children's Services 2.1 Summary of the Safe and Timely Release Process The Office of Refugee Resettlement (ORR) has policies and procedures in place to ensure the care and safety of children who are apprehended in the United States without a parent or legal guardian available to provide care and custody and without immigration status. These policies require the timely release of children and youth to qualified parents, guardians, relatives or other adults, referred to as “sponsors.” Safe and timely release must occur within a setting that promotes public safety and ensures that sponsors are able to provide for the physical and mental well-being of children. ORR evaluates potential sponsors’ ability to provide for the child’s physical and mental well-being, as the law requires ORR to protect children from smugglers, traffickers, or others who might seek to victimize or otherwise engage the child in criminal, harmful or exploitative activity. The process for the safe and timely release of an unaccompanied alien child from ORR custody involves many steps, including: the identification of sponsors; the submission by a sponsor of the application for release and supporting documentation; the evaluation of the suitability of the sponsor, including verification of the sponsor’s identity and relationship to the child, background checks, and in some cases home studies; and planning for post-release. Posted 1/27/15 2.2 Application for the Safe and Timely Release of an Unaccompanied Alien Child from ORR Care ORR begins the process of finding family members and others who may be qualified to care for an unaccompanied alien child as soon as the child enters ORR’s care. Parents, other relatives, or close family friends can apply to have the child released to their care. Posted 1/27/15 2.2.1 Identification of Qualified Sponsors The care provider (https://www.acf.hhs.gov/programs/orr/resource/children-entering-the-united-statesunaccompanied-guide-to-terms#Care Provider), the ORR funded facility that cares for the child, interviews the child as well as parents (see the section below on how ORR confirms relationship with child), legal 7/9/2018, 6:48 AM 2 of 34 Case 1:18-cv-01458-PLF Document 31-1 Filed 07/09/18 Page 2 of 34 guardians, and/or family members to identify qualified custodians (“sponsors”). If a child is either too young or there are other factors that prohibit the care provider from obtaining potential sponsor information from the unaccompanied alien child, the care provider may seek assistance from the child’s home country consulate in collaboration with the ORR Federal Field Specialist (ORR/FFS) (https://www.acf.hhs.gov/programs /orr/resource/children-entering-the-united-states-unaccompanied-guide-to-terms#ORR/Federal Field Specialist) or from a reputable family tracing organization. Finding a sponsor for the child is an ongoing process that continues during the unaccompanied alien child’s stay in ORR care and custody in the event that the primary potential sponsor or primary release plan is not approved. ORR releases children to a sponsor in the following order of preference:1 parent; legal guardian; an adult relative (brother, sister, aunt, uncle, grandparent or first cousin); an adult individual or entity designated by the parent or legal guardian (through a signed declaration or other document that ORR determines is sufficient to establish the signatory’s parental/guardian relationship); a licensed program willing to accept legal custody; or an adult individual or entity seeking custody when it appears that there is no other likely alternative to long term ORR care and custody. ORR has grouped these release options into the following categories.2 Category 1: Parent or legal guardian (This includes qualifying step-parents that have legal or joint custody of the child or teen) Category 2: An immediate relative--a brother, sister, aunt, uncle, grandparent or first cousin. (This includes biological relatives, relatives through legal marriage, and half-siblings) Category 3: Other sponsor, such as distant relatives and unrelated adult individuals Category 4: No sponsors identified Although ORR gives preference to a parent or legal guardian when determining release plans, there are instances when ORR would not release an unaccompanied alien child to a parent or legal guardian. These include: There has been a court ordered termination of parental rights over the child. There is substantial evidence that the child would be at risk of harm if released to the parent or legal guardian. In some cases, an unaccompanied alien child enters the United States with her biological child. In those cases, ORR will identify a sponsor for the unaccompanied alien child as well as for the infant or toddler. In most instances, it is in the best interest of the unaccompanied alien child and her biological child to be released to the same sponsor. When that occurs, the sponsor is assigned the same category for the infant as for the UAC mother. This is true even if the potential sponsor would be assigned a different category (based on their relationship status) if he or she were to sponsor the infant alone. Revised 4/11/16 2.2.2 Contacting Potential Sponsors The child’s care provider (https://www.acf.hhs.gov/programs/orr/resource/children-entering-the-unitedstates-unaccompanied-guide-to-terms#Care Provider) is responsible for implementing safe screening methods when contacting and communicating with potential sponsors. These methods are to ensure that a potential sponsor does not pose a risk to the unaccompanied alien child, to other children in the care provider facility or to care provider staff. These safe screening methods include: 7/9/2018, 6:48 AM 3 of 34 Case 1:18-cv-01458-PLF Document 31-1 Filed 07/09/18 Page 3 of 34 Use of appropriate interpreters Identity of the sponsor is obtained Verification of family relationships Coordination with the unaccompanied alien child’s parents, legal guardians, or closest relatives prior to contacting non-relative adult potential sponsors Screening for exploitation, abuse, trafficking, or other safety concerns Engaging the child to communicate openly with care provider staff about his or her own sense of safety Posted 1/27/15 2.2.3 The Application for Release All potential sponsors must complete an application in order for a child to be released to them from ORR custody (the “Family Reunification Application”). Within 24 hours of identification of a potential sponsor for a child or youth, the care provider or the ORR National Call Center sends the sponsor a package with the application and related documents (called the Family Reunification Packet or FRP). The application package includes the following documents: A flyer with contact information on organizations offering a Legal Orientation Program for Custodians (LOPC) Family Reunification Packet Cover Letter Authorization for Release of Information Family Reunification Application Sponsor Care Agreement Sponsor Declaration Fingerprint instructions Sponsor Handbook (If parent or legal guardian wishes to specify) Letter of Designation for Care of a Minor Privacy Notices The care provider is available to help the potential sponsor complete the application. The care provider also informs potential sponsors that they may submit additional information to support the application and reminds potential sponsors of the deadlines for completing the forms. The sponsor may also receive assistance in completing the application at some fingerprinting locations. Revised 6/7/18 2.2.4 Required Documents for Submission with the Application for Release In addition to completing and signing the Family Reunification Application (FRA) and the Authorization for Release of Information, potential sponsors must provide documentation of identity, address, and relationship to the child they seek to sponsor (see also The Family Reunification Checklist for Sponsors (https://www.acf.hhs.gov/programs/orr/resource/unaccompanied-childrens-services#Family Reunification Packet for Sponsors)).3 Potential sponsors must also submit documentation verifying the identity of the children they seek to sponsor, and evidence verifying the identity of all adults residing with the sponsor and all adult care givers identified in a sponsor care plan. In addition to their use as evidence of the 7/9/2018, 6:48 AM 4 of 34 Case 1:18-cv-01458-PLF Document 31-1 Filed 07/09/18 Page 4 of 34 foregoing, all documentation submitted under this section is used as part of the overall sponsor assessment process. See Section 2.4 Sponsor Assessment Criteria and Home Studies (https://www.acf.hhs.gov /orr/resource/children-entering-the-united-states-unaccompanied-section-2#2.4). As a result, ORR may in its discretion require potential sponsors to submit additional documentation beyond the minimums specified below. Proof of Sponsor Identity To verify their identity, all potential sponsors must submit original versions or legible copies of governmentissued identification documents. They may present either one selection from List A or two or more documents from List B. If a potential sponsor presents selections from list B, at least one selection must contain a legible photograph. Expired documents are acceptable for the purpose of establishing identity. LIST OF ACCEPTABLE DOCUMENTS LIST A U.S. Passport or U.S. Passport Card Permanent Resident Card or Alien Registration Receipt Card (Form I-551) Foreign Passport that contains a photograph Employment Authorization Document that contains a photograph (Form I-766) U.S. Driver's License or Identification Card OR LIST B U.S. Certificate of Naturalization U.S. Military Identification Card U.S. Social Security Card Birth Certificate Marriage Certificate Court order for name change Foreign national identification card Consular passport renewal receipt that contains a photograph Mexican consular identification card Foreign driver's license that contains a photograph Foreign voter registration card that contains a photograph Canadian border crossing card that contains a photograph Mexican border crossing card that contains a photograph with valid Form I-94 Refugee travel document that contains a photograph Other similar documents Proof of identify of adult household members and adult care givers identified in a sponsor care plan All potential sponsors must submit documentation verifying the identity of non-sponsor adults in their household or in a sponsor care plan. For all such adults, potential sponsors must submit at least one identification document that contains a photograph. The document may be from either List A or List B above, 7/9/2018, 6:48 AM 5 of 34 Case 1:18-cv-01458-PLF Document 31-1 Filed 07/09/18 Page 5 of 34 and may be an original version or a legible copy of the document. Expired documents are acceptable for the purpose of establishing identity. In addition, potential sponsors may submit an original version or legible copy of an ORR Verification of Release Form, but only to verify the identity of adults under the age of 21, and only if the form contains a photograph. ORR will not accept a Verification of Release as proof of identity if it does not contain a photograph, and/or is for anyone 21 and older. Proof of Address All potential sponsors must submit at least one form of documentation verifying their current address. Acceptable forms of documentation include original versions or legible copies of: A current lease or mortgage statement dated within the last two months before submission of the FRA; A utility bill, addressed in the sponsor’s name and dated within the last two months before submission of the FRA; A bank statement dated within the last two months before submission of the FRA; A payroll check stub issued by an employer, dated within the last two months before submission of the FRA; A piece of mail from a county, state, or federal agency (with the exception of ORR) with the sponsor’s name and residential address and dated within the last two months before submission of the FRA; A notarized letter from a landlord on the business stationary of the real property owner confirming the sponsor’s address; and Other similar documents reliably indicating that the sponsor resides at the claimed address, dated within the last two months before submission of the FRA. ORR may use alternative methods to verify address. For example, ORR may send a letter containing specific instructions to the address given by the sponsor, and provide a timeline by which the sponsor must comply with the instructions. Proof of Child’s Identity The potential sponsor or child’s family must provide the unaccompanied alien child’s birth certificate or a legible copy of the child’s birth certificate. Proof of Sponsor-Child Relationship The potential sponsor must provide at least one form of evidence verifying the relationship claimed with the child.4 Acceptable documents include original versions or legible copies of: Birth certificates; Marriage certificates; Death certificates; Court records; Guardianship records; Hospital records; School records; Written affirmation of relationship from Consulate; and Other similar documents. Category 3 potential sponsors who are unable to provide verifiable documentation of a familial relationship with the unaccompanied alien child must submit evidence that reliably and sufficiently demonstrates a bona 7/9/2018, 6:48 AM 6 of 34 Case 1:18-cv-01458-PLF Document 31-1 Filed 07/09/18 Page 6 of 34 fide social relationship with the child and/or the child’s family that existed before the child migrated to the United States. Care providers must attain sufficient corroboration to be confident that they have received needed verification of the relationship between the potential sponsor and the child or child’s family. In the absence of sufficient evidence of a bona fide social relationship with the child and/or the child’s family that existed before the child migrated to the United States, the child will not be released to that individual. If a potential sponsor has been charged with or convicted of any crime or investigated for the physical abuse, sexual abuse, neglect, or abandonment of a minor, he or she must provide related court records and police records, as well as governmental social service records or proof of rehabilitation related to the incident. If a sponsor, household member, or adult caregiver provides any false information in the application of release and/or accompanying documents or submits fraudulent documents for the purposes of obtaining sponsorship of the child, ORR will report the incident to HHS/Office of the Inspector General (OIG) and to U.S. Immigration and Customs Enforcement’s Homeland Security Investigations (HSI). Fraudulent documents include documents on which the address, identity, or other relevant information is false or documents that have been manufactured or altered without lawful authorization. ORR will deny release if it is determined that fraudulent documents were submitted during the application of release process. Revised 11/14/16 2.2.5 Legal Orientation Program for Custodians All potential sponsors of children and youth under the care of ORR should attend a presentation provided by the Legal Orientation Program for Custodians (LOPC). The purpose of this program is to inform potential sponsors of their responsibilities in ensuring the child’s appearance at all immigration proceedings, as well as protecting the child from mistreatment, exploitation, and trafficking, as provided under the Trafficking Victims Protection Reauthorization Act of 2008. The program also provides information about possible free legal counsel (pro bono legal services) for the youth or child during the immigration court process. The Office of Legal Access Programs (OLAP), within the Executive Office for Immigration Review (EOIR) at the U.S. Department of Justice, manages the LOPC and contracts with legal service organizations around the country to provide LOPC services to potential sponsors in their local communities or in metropolitan areas served by the program. EOIR is the entity in the federal government that is also responsible for adjudicating immigration cases by fairly, expeditiously, and uniformly interpreting and administering the nation's immigration laws. The unaccompanied alien child’s case manager (https://www.acf.hhs.gov/programs/orr/resource /children-entering-the-united-states-unaccompanied-guide-to-terms#Case Manager)is responsible for informing potential sponsors about all procedures related to the child’s case--including attendance at an LOPC presentation. The Family Reunification Packet (FRP) that goes to each potential sponsor includes an Authorization for Release of Information that the sponsor must sign before the case manager may schedule an appointment for LOPC services. All potential sponsors should submit the Authorization for Release of Information immediately and prior to submitting the complete FRP to ensure timely scheduling of their LOPC session. Upon receipt of the Authorization, the case manager schedules an appointment for a potential sponsor to attend a presentation with one of the LOPC providers around the country. Alternatively, the case manager contacts the LOPC National Call Center at (888) 996-3848 and arranges for the Call Center to schedule an LOPC appointment for the potential sponsor or mail an LOPC Information Packet to the sponsor. 7/9/2018, 6:48 AM 7 of 34 Case 1:18-cv-01458-PLF Document 31-1 Filed 07/09/18 Page 7 of 34 When evaluating family members and other potential sponsors, ORR considers whether they have attended an LOPC presentation. Attendance at an LOPC presentation is a factor in the release assessment. Revised 12/4/17 2.2.6 Additional Questions and Answers about this Topic Q: Will sponsors receive the Family Reunification Packet through the mail or electronically? A: Case managers will work with sponsors to identify the best way to get the packets to them, whether electronically or by fax transmission or postage paid overnight mail. Q: Do sponsors need assistance from an attorney or a paid representative to complete the packet? A: No. The unaccompanied alien child’s case manager will be able to help the potential sponsor complete the form and explain the process. Q: Is it possible for an unaccompanied alien child’s spouse to be a sponsor? A: ORR considers release to an unaccompanied alien child’s adult spouse on a case by case basis. Q: Is it possible for family members in the United States to proactively contact ORR about children who may have entered the country unaccompanied? A: Yes. Family members may call the ORR National Call Center, at (800) 203-7001. Posted 1/27/15 2.3 Key Participants in the Release Process ORR’s sponsor assessment and release decision process requires coordination among care provider staff, nongovernmental third-party reviewers (Case Coordinators), ORR staff, other Federal agencies, stakeholders, and Child Advocates, where applicable. Case Managers (https://www.acf.hhs.gov/programs/orr/resource/children-entering-the-united-statesunaccompanied-guide-to-terms#Case Manager) communicate with potential sponsors, gather necessary information and documentation, talk to any relevant stakeholders, and assess sponsors to formulate a recommendation to the Case Coordinator. Case Coordinators (https://www.acf.hhs.gov/programs /orr/resource/children-entering-the-united-states-unaccompanied-guide-to-terms#Case Coordinators) concurrently review all assessment information on an unaccompanied alien child and sponsor to also make a recommendation. Once Case Managers and Case Coordinators agree on a particular recommendation for release, the recommendation will be sent to the ORR/FFS (https://www.acf.hhs.gov /programs/orr/resource/children-entering-the-united-states-unaccompanied-guide-to-terms#ORR /Federal Field Specialist) for a final release decision. If the Case Manager and Case Coordinator cannot agree on a recommendation, the case is elevated to the ORR/FFS for further guidance. Revised 8/1/16 2.3.1 ORR/Federal Field Specialists (ORR/FFS) ORR/FFS are ORR’s field staff located regionally throughout the country and are assigned to a group of care providers within a region. They have the authority to approve all unaccompanied alien children transfer and release decisions; oversee care providers to ensure all services, policies, and procedures are properly provided and implemented; and serve as a liaison to local stakeholders, including other Federal agencies, local legal service providers, local communities, Child Advocates, etc. ORR/FFS also provide guidance, 7/9/2018, 6:48 AM 8 of 34 Case 1:18-cv-01458-PLF Document 31-1 Filed 07/09/18 Page 8 of 34 direction, and technical assistance to care providers. With regard to the release process, ORR/FFS oversee individual unaccompanied alien children cases and review Case Manager, Case Coordinator, and Child Advocate recommendations; and make final release and transfer decisions for ORR. ORR/FFS also make final decisions whether home studies are conducted and/or post-release services are provided.5 ORR/FFS coordinate all aspects of a child’s case with care provider staff, Case Coordinators, stakeholders, and other Federal agencies. Revised 8/1/16 2.3.2 Case Managers Care provider Case Managers perform a variety of duties, including coordinating the completion of assessments of unaccompanied alien children, completing individual service plans, assessing potential sponsors, making transfer and release recommendations, and coordinating the release of a child or youth from ORR care and custody. (The care provider provides a range of services through other trained staff that are described in Section 3: Services.) The role of the Case Manager within the release process is to initiate and maintain ongoing communication with the potential sponsor, gather sponsor information, and assess whether the potential sponsor is a suitable sponsor who can safely provide for the physical and mental well-being of the child or youth. When communicating with the potential sponsor, the Case Manager may: Provide direct assistance on completing the sponsor application packet and ensuring provision of supporting documentation; Involve the sponsor in making a plan for individualized services for the unaccompanied alien child, as appropriate; Keep the sponsor informed of the child’s progress and current functioning; Provide the sponsor with detailed information about the child’s needs in order to fully assess the sponsor’s ability to provide care and services, including completing a sponsor care plan, when necessary; Discuss services that are available in the sponsor’s community for the child; and Share relevant information on the unaccompanied alien child in accordance with applicable privacy and information-sharing policies and in collaboration with the unaccompanied alien child and the child’s clinician in a way that best serves the child’s safety and well-being. The Case Manager’s role is also to ensure that information is gathered or shared with the appropriate staff and stakeholders during the sponsor assessment process. The Case Manager provides weekly status updates to the unaccompanied alien child’s Case Coordinator and ORR/FFS on the progress in achieving a safe and timely release with family members as well as potential challenges that may delay a release. The Case Manager provides weekly status updates (monthly for children in LTFC) to the UAC on the child’s case and provision of services, preferably in person. The Case Manager informs other stakeholders of the progress of a child’s case, including notification that an unaccompanied alien child may not have a potential sponsor, and any final release decisions. Stakeholders may include local legal service providers and attorneys of record, other local service providers, Child Advocates, post-release and home study providers, and other Federal agencies. Case Managers, in collaboration with the ORR/FFS and Case Coordinator, will also work with law enforcement officials regarding an unaccompanied alien child’s pending release if the minor has outstanding criminal charges or other issues. 7/9/2018, 6:48 AM 9 of 34 Case 1:18-cv-01458-PLF Document 31-1 Filed 07/09/18 Page 9 of 34 Revised 6/7/18 2.3.3 Case Coordinators Case Coordinators are non-governmental contractor field staff assigned to one or more care providers primarily to review unaccompanied alien children cases and provide transfer and release recommendations to ORR staff. The Case Coordinator is responsible for integrating all areas of assessment from the Case Manager, Child Advocates, where applicable, and other stakeholders into a release plan that will provide for the unaccompanied alien child’s physical and mental well-being. After staffing and reviewing a case, Case Coordinators and Case Managers must agree on a release recommendation. If there is a disagreement or a particularly complex case, then the case will be elevated to the ORR/FFS for further guidance. Providing timely review and assessment of potential sponsors and unaccompanied alien children to make recommendations for release to ORR in conjunction with the Case Manager; Assisting ORR in ensuring that children are placed in the least restrictive setting while receiving all appropriate services; Meeting with individual unaccompanied alien children and care provider staff at designated ORRfunded care provider sites; Providing targeted child welfare-based assistance to care provider staff, as directed by ORR staff; Making recommendations for home study and post-release services for at-risk children; Making placement recommendations for children who require more specialized levels of care, such as long-term foster care and residential treatment centers; Participating in collaborative meetings with local stakeholders; and Participating in staffing of cases with care providers and designated ORR staff. Revised 8/1/16 2.3.4 Child Advocates ORR may appoint Child Advocates (https://www.acf.hhs.gov/programs/orr/resource/children-enteringthe-united-states-unaccompanied-guide-to-terms#Child Advocate) for victims of trafficking and other vulnerable children. Child Advocates are third parties who make independent recommendations regarding the best interests of a child. Their recommendations are based on information that is obtained from the child and other sources (e.g., the child’s parents, potential sponsors, government agencies, and other stakeholders). Child Advocates formally submit their recommendations to ORR and/or the immigration court in the form of Best Interest Determinations (BIDs). ORR considers BIDs when making decisions regarding the care, placement, and release of unaccompanied alien children, but it is not bound to follow BID recommendations. As required by the TVPRA, ORR provides Child Advocates with access to information necessary to effectively advocate for the best interests of children with whom they are working. After providing proof of appointment, Child Advocates have access both to their clients and to their clients’ records. Child Advocates may access their clients’ entire original case files at care provider facilities, or request copies from care providers.6 Further, they may participate in case staffings. Child Advocates and ORR maintain regular communication, informing each other of considerations or updates that impact service provision and release planning. Child Advocates’ duties include: Client Visits: The Child Advocate meets with the unaccompanied alien child regularly and speaks with 7/9/2018, 6:48 AM 10 of 34 Case 1:18-cv-01458-PLF Document 31-1 Filed 07/09/18 Page 10 of 34 the child’s care provider staff in order to understand the child’s background and current situation. Decision Making: The Child Advocate helps the unaccompanied alien child understand legal and carerelated issues, explains the consequences of decisions made in response to those issues, and assists the child in making decisions when the child requests such help. Best Interests Advocacy: The Child Advocate develops a service plan containing best-interest recommendations with respect to the care, placement, and release options; and keeps the care provider, ORR, and the legal service provider or attorney of record apprised of the plan and advocacy efforts. Case updates: The Child Advocate collaborates and regularly communicates with the care provider, ORR, and other stakeholders in the planning and performance of advocacy efforts. For children who have been released from ORR care, Child Advocates provide timely updates as appropriate or as requested by ORR. In most cases, ORR appoints Child Advocates while children are in its custody. However, in its discretion, ORR may appoint Child Advocates for unaccompanied alien children after their release from ORR care. Posted 8/1/16 2.4 Sponsor Assessment Criteria and Home Studies As noted in the Section 2.2 Application for Safe and Timely Release of an Unaccompanied Alien Child from ORR Care, the application process for release of an unaccompanied alien child involves a number of steps, including background checks (see Section 2.5 ORR Policies on Requesting Background Checks) and submission of the application by the sponsor. This section describes the criteria ORR uses to assess each potential sponsor’s ability to provide for the physical and mental well-being of the unaccompanied alien child, and the role of home studies in the process. The sponsor assessment reviews a sponsor’s strengths, resources, risk factors and special concerns within the context of the unaccompanied alien child’s needs, strengths, risk factors, and relationship to the sponsor. ORR also determines whether to conduct a home study, as required by the law or as necessary to ensure the welfare of the child Revised 3/15/16 2.4.1 Assessment Criteria ORR considers the following factors when evaluating family members and other potential sponsors: The nature and extent of the sponsor’s previous and current relationship with the child or youth and the unaccompanied alien child’s family, if a relationship exists. The sponsor’s motivation for wanting to sponsor the child or youth. The unaccompanied alien child’s parent or legal guardian’s perspective on the release to the identified potential sponsor (for cases in which the parent or legal guardian has designated a sponsor). The child or youth’s views on the release and whether he or she wants to be released to the individual. The sponsor’s understanding of the unaccompanied alien child’s needs, as identified by ORR and the care provider. The sponsor’s plan to provide adequate care, supervision, access to community resources, and housing. 7/9/2018, 6:48 AM 11 of 34 Case 1:18-cv-01458-PLF Document 31-1 Filed 07/09/18 Page 11 of 34 The sponsor’s understanding of the importance of ensuring the unaccompanied alien child’s presence at all future hearings or proceedings, including immigration court proceedings, and the sponsor’s attendance at a Legal Orientation Program for Custodians (LOPC) presentation. See section 2.2.5. The linguistic and cultural background of the child or youth and the sponsor, including cultural, social, and communal norms and practices for the care of children. The sponsor’s strengths, resources, and mitigating factors in relation to any risks or special concerns of the child or sponsor, such as a criminal background, history of substance abuse, mental health issues, or domestic violence and child welfare concerns. The unaccompanied alien child’s current functioning and strengths in relation to any risk factors or special concerns, such as children or youth who are victims of human trafficking; are a parent or are pregnant; have special needs, disabilities or medical or mental health issues; have a history of criminal, juvenile justice, or gang involvement; or a history of behavioral issues. Revised 12/4/17 2.4.2 Home Study Requirement The care provider screens each case to determine whether to conduct a home study of the potential sponsor as required under the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) (http://www.gpo.gov/fdsys/pkg/BILLS-110hr7311enr/pdf/BILLS-110hr7311enr.pdf). Information about the child is collected during initial placement into an ORR facility and throughout his or her stay. The care provider then uses the information collected about and from the child in conjunction with the sponsor assessment process to determine whether to conduct a home study (https://www.acf.hhs.gov/programs/orr/resource /children-entering-the-united-states-unaccompanied-guide-to-terms#Home Study). The TVPRA requires home studies under the following circumstances: 1. The child is a victim of a severe form of trafficking in persons; 2. The child is a special needs child with a disability as defined by section 3 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12102); 3. The child has been a victim of physical or sexual abuse under circumstances that indicate that the child’s health or welfare has been significantly harmed or threatened; or 4. The child’s sponsor clearly presents a risk of abuse, maltreatment, exploitation or trafficking, to the child based on all available objective evidence. ORR also requires a home study before releasing any child to a non-relative sponsor who is seeking to sponsor multiple children, or who has previously sponsored or sought to sponsor a child and is seeking to sponsor additional children. ORR requires a home study for children who are 12 years and under before releasing to a non-relative sponsor. In circumstances in which a home study is not required by the TVPRA or ORR policy, the Case Manager and Case Coordinator may recommend that a home study be conducted if they agree that the home study will provide additional information required to determine that the sponsor is able to care for the health, safety and well-being of the child. See Footnote 5. The care provider must inform the potential sponsor whenever a home study is conducted, explaining the scope and purpose of the study and answering the potential sponsor’s questions about the process. In addition, the home study report will be provided to the potential sponsor if the release request is denied. See also Section 2.7.7. 7/9/2018, 6:48 AM 12 of 34 Case 1:18-cv-01458-PLF Document 31-1 Filed 07/09/18 Page 12 of 34 Home Study Report and Final Recommendation A home study consists of interviews, a home visit, and a written report containing the home study case worker’s findings. A home study assesses the potential sponsor’s ability to meet the child's needs, educates and prepares the sponsor for the child’s release, and builds on the sponsor assessment conducted by the care provider staff to verify or corroborate information gathered during that process. The home study is conducted as a collaborative psycho-educational process in which the home study case worker identifies areas where additional support, resources, or information are needed to ensure a successful sponsorship, and provides corresponding psycho-educational assistance. The final recommendation must present a comprehensive and detailed assessment of the sponsor’s ability to care for the needs of the child and address any additional information that emerges during the course of the home study regarding the sponsor, the sponsor’s household or the child. The home study provider must contact the care provider within 24 hours of home study referral acceptance, and must also contact the sponsor to schedule the home visit within 48 hours of referral acceptance. The home study provider makes a recommendation to ORR about release with the sponsor. The ORR Federal Field Specialist takes the home study provider’s recommendation into consideration when making a release decision. ORR has final authority on release decisions. The home study provider submits the written report within 10 business days of receipt of the referral. Any requests by the home study provider to extend beyond 10 business days or to cancel a home study must be submitted in writing to the ORR Federal Field Specialist for consideration. All releases following home studies require post-release services. Must a child receive a Trafficking Eligibility or Interim Assistance Letter from HHS prior to being referred for a TVPRA-mandated home study under #1 above? No, a child does not need to receive a Trafficking Eligibility Letter from HHS prior to being referred for a home study. A care provider may refer a child for a home study under #1 above if, during the assessment for trafficking, the care provider determines the child is a victim of a severe form of trafficking in persons. In determining whether a TVPRA-mandated home study is required under #3 above, care providers consider the following questions: What is physical abuse? Physical abuse is an act that results in physical injury, such as red marks, cuts, welts, bruises, broken bones, missing or broken teeth or muscle strains. Acts of physical abuse include but are not limited to punching, beating, kicking, biting, hitting (with a hand, stick, strap or other object), burning, strangling, whipping, or the unnecessary use of physical restraint. Is physical abuse intentional? Generally, physical abuse is intentional; however, physical abuse can occur when physical punishment goes too far. In other words, an accidental injury of a child may be considered physical abuse if the act that injured the child was done intentionally as a form of punishment. Must a child have physical injuries to meet the standard for physical abuse under #3? 7/9/2018, 6:48 AM 13 of 34 Case 1:18-cv-01458-PLF Document 31-1 Filed 07/09/18 Page 13 of 34 No, in some cases, a child may not have physical injuries at the time the care provider makes an assessment. Children may be in various stages of the healing process or thoroughly healed from the physical abuse by the time they arrive in ORR care. For the purposes of #3, who can physically or sexually abuse a child? A parent, legal guardian, caregiver or other adult with a special relationship to the child can physically or sexually abuse a child. Who is considered to be a caregiver or adult with a special relationship? A caregiver is defined as any person who is entrusted with the child’s care and who lives with the child. Other adults with a special relationship to the child could include a teacher, priest, or health care provider. What is sexual abuse? Sexual abuse of a child by a parent, legal guardian, caregiver or other adult with a special relationship to the child includes any of the following acts, with or without the consent of the child or youth: Contact between the penis and the vulva or the penis and the anus, including penetration, however slight; Contact between the mouth and the penis, vulva, or anus; Contact between the mouth and any body part where the adult has the intent to abuse, arouse, or gratify sexual desire; Penetration of the anal or genital opening, however slight, by a hand, finger, object, or other instrument where the adult has the intent to abuse, arouse, or gratify sexual desire; Any other intentional contact, either directly or through the clothing, of or with the genitalia, anus, groin, breast, inner thigh, or the buttocks where the intent is to abuse, arouse, or gratify sexual desire; Any attempt, threat, or request by the adult to engage in the activities described above; Any display by the adult of his or her uncovered genitalia, buttocks, or breast in the presence of the child; and Voyeurism. State laws on statutory rape are not the standard in assessing whether a youth has been sexually abused for the purposes of #3. Care providers use the definition from the ORR rule concerning sexual abuse and harassment; however, for the purposes of determining when a home study is required, the perpetrator is limited to a parent, legal guardian, caregiver or other adult with a special relationship to the child. Under what circumstances is a child’s health or welfare considered to have been significantly harmed or threatened? Care providers assess the totality of the circumstances in determining whether a child’s health or welfare has been significantly harmed or threatened. In evaluating a specific case, care providers take into consideration not only the definitions of physical and sexual abuse listed above, but also the circumstances surrounding the incident and any behaviors that the child or youth exhibits as a result of the abuse. Circumstances to consider include but are not limited to: the amount of time that has passed since the abuse, the period of time in which the abuse occurred, the cultural context in which the abuse occurred, the age of the child or youth at the time of the abuse, and the relationship between the youth 7/9/2018, 6:48 AM 14 of 34 Case 1:18-cv-01458-PLF Document 31-1 Filed 07/09/18 Page 14 of 34 and the perpetrator. Care providers take into consideration the situations and behaviors listed below, but do not make a determination based solely on the presence or absence of one of them. The child experiences on-going medical issues from physical injuries. The child exhibits negative or harmful behaviors, thoughts or emotions, such as, but not limited to, excessive hostility or aggression towards others, fire setting, cutting, depression, eating disorders suicidal ideation or substance abuse. In evaluating difficult cases, the care provider should consult with their ORR/FFS. Revised 1/9/17 2.4.3 Additional Questions and Answers on This Topic Q: What happens if a new sponsor is identified during the sponsor assessment process? A: If there are multiple potential sponsors, the ORR-funded care provider will exhaust all efforts to facilitate a release to a parent or legal guardian while also contacting and evaluating other potential sponsors concurrently. ORR has release order preferences and will evaluate sponsors concurrently in accordance with the preference orders to determine the best placement for the child. Posted 1/27/15 2.5 ORR Policies on Requesting Background Checks of Sponsors In order to ensure the safety of an unaccompanied alien child and consistent with the statutory requirements under the TVPRA of 2008, ORR requires a background check of all potential sponsors and household members. The background check takes place as soon as the potential sponsor and adult household members have completed the Authorization for Release of Information form, submitted fingerprints, and provided a copy of a valid government issued photo identification. ORR transmits the fingerprints to the Department of Homeland Security to perform criminal and immigration status checks on ORR’s behalf. DHS then submits the results to ORR. ORR also conducts additional background checks without going through DHS. Depending on the circumstances, these checks may involve background checks on criminal history (including through the FBI) and child abuse/neglect checks (CA/N) Adult care givers identified in a sponsor care plan also require background checks, as provided in the chart at section 2.5.1. Revised 6/7/18 2.5.1 Criteria for Background Checks All potential sponsors and adult household members undergo a background check for criminal history and immigration status using fingerprints. These checks are conducted by the Department of Homeland Security on behalf of ORR and DHS then submits the results to ORR. In addition, ORR independently conducts background checks without going through DHS. This independent background check process varies, depending in part on the relationship of the potential sponsor to the 7/9/2018, 6:48 AM 15 of 34 Case 1:18-cv-01458-PLF Document 31-1 Filed 07/09/18 Page 15 of 34 unaccompanied alien child: Parents and legal guardians (Category 1) Other immediate adult relatives, such as brother, sister, aunt, uncle, grandparent or first cousin (Category 2) Distant relatives and unrelated adults (Category 3) As a part of this independent background check process, all potential sponsors must undergo a public records check. The following indicates the minimum requirements for the process for sponsors. ORR may require additional checks, verifications, or procedures for sponsors in any category if there are any unresolved issues or questions related to the well-being of the child. The following table lists the types of background checks performed, and explains when they are performed, based on the potential sponsor’s relationship to the unaccompanied alien child and other release considerations. The chart identifies when DHS performs the check on ORR’s behalf. (See also Section 2.7.4 (https://www.acf.hhs.gov/programs/orr/resource/children-entering-the-united-states-unaccompaniedsection-2#2.7.4), listing findings barring release) Type of Background Check Purpose Public Records Check Identifies arrests or convictions of Potential Sponsors in sponsors, adult household Persons Checked When Performed In all cases Categories 1-3. members, or others. If a check reveals a criminal record or safety issue, it will be used to evaluate the sponsor’s ability to Non-sponsor adult household members and adult care givers identified in a sponsor care plan. provide for a child’s physical and mental well-being. Sex Offender Registry Check, Identifies sponsors and others Potential Sponsors in conducted through the U.S. that have been adjudicated as Categories 1-3. Department of Justice sex offenders through a national National Sex Offender Public search and, if available, a local Website public registry search. Immigration Status Check Provides information about immigration court actions and immigration statuses, including information about orders of removal. The information is also used to determine whether a sponsor care plan is required for release (see Section 2.7.6). conducted by the Department of Homeland Security using fingerprints In all cases Non-sponsor adult household members and adult care givers identified in a sponsor care plan. Potential Sponsors in In all cases. Categories 1-3. Non-sponsor adult household members. Adult care givers identified Where a public records check in a sponsor care plan. reveals possible disqualifying factors under 2.7.4; or where there is a documented risk to the safety of the unaccompanied alien child, 7/9/2018, 6:48 AM 16 of 34 Case 1:18-cv-01458-PLF Document 31-1 Filed 07/09/18 Page 16 of 34 the child is especially vulnerable, and/or the case is being referred for a home study. National (FBI) Criminal Determines whether a sponsor or Potential Sponsors in History Check, based on adult household member has a Categories 1-3. digital fingerprints or digitized criminal history, has been Non-sponsor adult paper prints convicted of a sex crime, or has household members. In all cases. been convicted of other crimes that compromise the sponsor’s ability to care for a child. Adult care givers identified Where a public records check in a sponsor care plan. reveals possible disqualifying factors under 2.7.4; or where there is a documented risk to the safety of the unaccompanied alien child, the child is especially vulnerable, and/or the case is being referred for a home study DHS criminal history check, Determines whether a sponsor or Potential Sponsor in based on digital fingerprints or adult household member has a Categories 1-3. digitized paper prints. criminal history, including: Non-sponsor adult biographic criminal check of the household members. In all cases. national databases, a biographical check for wants and warrants. Adult care givers identified Where a public records check in a sponsor care plan. reveals possible disqualifying factors under 2.7.4; or where there is a documented risk to the safety of the unaccompanied alien child, the child is especially vulnerable, and/or the case is being referred for a home study. Child Abuse and Neglect Checks all localities in which the Potential Sponsors in In cases that require a home (CA/N) Check, obtained on a sponsor or household member Categories 1-2. study, and cases where a state by state basis as no has resided in the past 5 years. special concern is identified. national CA/N check repository exists Potential Sponsors in Category 3. In all cases. Non-sponsor adult household members and adult care givers identified in a sponsor care plan. In any case where a sponsor is required to undergo a CA/N check. State Criminal History Assists in locating police or arrest Potential Sponsors in Used on a case-by-case basis Repository Check and/or records, or other criminal offense when there is an unresolved Local Police Check details, as needed. Categories 1-3. criminal arrest or issue that is Non-sponsor adult still in process. household members and adult care givers identified 7/9/2018, 6:48 AM 17 of 34 Case 1:18-cv-01458-PLF Document 31-1 Filed 07/09/18 Page 17 of 34 in a sponsor care plan. Revised 6/7/18 2.5.2 Results of Background Checks on Release Decisions As an entity providing for the health and well-being of children and youth, ORR uses the results from background checks to determine whether release to a potential sponsor is safe. A potential sponsor may be denied a release request, based on the results of a background check, and a release decision may remain undecided until ORR obtains the results of a potential sponsor’s criminal history, immigration background checks, or child abuse and neglect reports. The biometric and biographical information, including fingerprints, is shared with Federal, state or local law enforcement agencies and may be used consistent with their authorities, including with the DHS to determine immigration status and criminal history, and with the DOJ to investigate criminal history through the National Criminal Information Center. Criminal History In the event that a background check of a potential sponsor or, if applicable, adult household member, reveals criminal history or a safety risk, the care provider and ORR evaluate this information and request the potential sponsor to provide any additional information that may demonstrate the potential sponsor’s ability to provide for the child’s physical and mental well-being. If release is not barred by Section 2.7.4 (https://www.acf.hhs.gov/programs/orr/resource/childrenentering-the-united-states-unaccompanied-section-2#2.7.4), the decision to release a child or youth to a sponsor in these circumstances is based on all the following considerations: The severity of the criminal and/or child abuse/neglect history; The length of time that has passed since the criminal act or child abuse/neglect allegation occurred; The relationship of the potential sponsor and other adult household members to the child or youth; and The evidence, if any, of rehabilitation since the criminal act or child abuse/neglect allegation occurred. In cases where the proposed sponsor or other adult household member has been charged with, but not convicted of, a crime, ORR may postpone a final release decision until the legal issue is resolved. If the sponsor has an outstanding order of removal, or a pending order of removal that is related to an underlying criminal act, the decision to release a child or youth to a sponsor in these circumstances is based on the considerations described above. Sponsor Immigration Status ORR does not disqualify potential sponsors on the basis of their immigration status. ORR uses status information to determine whether a sponsor care plan is necessary in the event the sponsor is required to leave the United States. (See Section 2.6 (https://www.acf.hhs.gov/programs/orr/resource/childrenentering-the-united-states-unaccompanied-section-2#2.6) Effect of Sponsor Immigration Status on Release of Unaccompanied Alien Children) Summary Table of Results of Background Checks and Next Steps The following table shows procedures following the results of background checks. 7/9/2018, 6:48 AM 18 of 34 Case 1:18-cv-01458-PLF Document 31-1 Filed 07/09/18 Page 18 of 34 Background Check Results Next Steps No arrest record; check completed Proceed with release decision-making process. See Section 2.7 Recommendations and Decisions on Release. Criminal arrest record and/or substantiated adverse child welfare findings; check completed Determine whether release is barred. See Section 2.7.4 Deny Release Request. If release is not barred, elevate safety issues for third party review. For any findings that could affect safe release, care provider and/or ORR will obtain additional documents to determine current situation (e.g. sponsor is on probation, criminal charges are resolved, etc.). Final release decision shall take into account the criminal records and all other relevant information that is available. Immigration status concern (e.g. out of status, no legal Review FBI record and DHS report, and/or Department of status, prior order of removal, or no immigration record for Justice/Executive Office of Immigration Review’s case status non-citizen) hotline for information related to possible unresolved immigration issues. Pending results; check not complete ORR/FFS will provide instructions to care provider Revised 6/7/18 2.5.3 Additional Questions and Answers on This Topic Q1: Where can a sponsor get his or her fingerprints taken? A1: ORR funds a network of digital fingerprint providers at locations that are not affiliated with law enforcement entities. Sponsors may also go to any local police department for paper fingerprinting services in the event a digital fingerprint provider is not conveniently located near a sponsor’s location. Fingerprinting services are not available at ORR headquarters and offices. Q2: Is there a deadline for complying with a fingerprinting request? A2: Yes. When required, fingerprints should be provided within 3 business days of the request. Release may be delayed if fingerprints are not provided promptly. Q3: Are potential sponsors required to disclose to the care provider that they have a record of a criminal charge or child abuse? A3: Yes. The sponsor must immediately advise the care provider of this situation and gather detailed documentation of the charges, dispositions, police reports, and evidence of rehabilitation. Q4: What happens if a public records or sex offender registry check returns disqualifying findings for a sponsor, adult household member, or adult caregiver identified in the sponsor care plan? A4: The Case Manager informs the sponsor, and provides the sponsor with a copy of the results. The sponsor and household member/adult care giver may dispute the results, and provide further evidence or information that a check was not performed correctly (e.g., the wrong date of birth was used, the individual’s name was spelled incorrectly, etc.). The Case Manager will rerun the check using the corrected information. If further 7/9/2018, 6:48 AM 19 of 34 Case 1:18-cv-01458-PLF Document 31-1 Filed 07/09/18 Page 19 of 34 information is required, such as additional background checks, the Case Manager will work with the sponsor and household member/adult caregiver to obtain the information, or make other arrangements so that the safety risk to the unaccompanied alien child is mitigated (e.g., taking steps so that the household member no longer resides in the sponsor’s home, identifying a new adult care giver, etc.). Q5: What happens if an adult household member refuses to cooperate with a background check? A5: ORR denies release when an adult household member refuses to have a background check. Revised 6/7/18 2.6 Sponsor Immigration Status and Release of Unaccompanied Alien Children ORR does not disqualify potential sponsors on the basis of their immigration status. ORR does seek immigration status information, but this is used to determine if a sponsor care plan will be needed if the sponsor needs to leave the United States; it is not used as a reason to deny a family reunification application. The biometric and biographical information, including fingerprints, is shared with Federal, state or local law enforcement agencies and may be used consistent with their authorities, including with the DHS to determine immigration status and criminal history, and with the DOJ to investigate criminal history through the National Criminal Information Center. Revised 6/7/18 2.6.1 Application Process How does ORR obtain information about immigration status? ORR asks potential sponsors and adult household members for their Alien Registration Number on the Authorization for Release of Information form. In addition, as described below, ORR requires sponsors to provide fingerprints for background checks, and those checks may produce information about the individual’s immigration status. During the sponsor assessment process, case managers also ask sponsors about their immigration status. Revised 6/7/18 2.6.2 Fingerprints Who must provide fingerprints as part of the release process? All individuals seeking to sponsor a UAC and adults in their household are subject to fingerprinting requirements. What does ORR use the fingerprints for? Using digital fingerprints or digitized paper prints, the HHS PSC, on behalf of ORR, conducts a check of the FBI national criminal history and state repository records. ORR also transmit fingerprints to the Department of Homeland Security to search criminal and immigration databases on ORR’s behalf and transmit the results to ORR. Revised 6/7/18 2.6.3 Other Background Checks Related to Immigration Reserved. 7/9/2018, 6:48 AM 20 of 34 Case 1:18-cv-01458-PLF Document 31-1 Filed 07/09/18 Page 20 of 34 Revised 6/7/18 2.6.4 Results of Immigration-Related Checks What does ORR do with the results of the FBI fingerprint and DHS checks? The information may be used to determine if a sponsor care plan will be needed in the event that the sponsor needs to leave the United States. In addition, if the basis for an immigration action is underlying criminal activity, ORR and its grantee will review the underlying criminal activity to determine if it is reason to disqualify the potential sponsor, as ORR does when evaluating other criminal activity uncovered during the fingerprint process, but unrelated to immigration actions. Who else may have access to the results of the FBI fingerprint checks? ORR does not release the results of the FBI fingerprints to outside organizations or individuals, other than ORR grantees that are caring for the children. The FBI and DHS databases contain overlapping records, and the FBI system automatically initiates a notification to the DHS system if a particular record has been searched. What is in a sponsor care plan? A sponsor care plan identifies the individual that will assume care of an unaccompanied alien child if the sponsor becomes unable to care for the child, see Section 2.7.6. Revised 6/7/18 2.7 Recommendations and Decisions on Release ORR care providers must make a recommendation to release a child to a potential sponsor after the care provider has evaluated the sponsor, completed the background checks, and collected necessary documentation to prove the sponsor’s identity and relationship to the child or youth. The recommendation must take into consideration all relevant information, including the report and recommendations from a home study, if conducted; laws governing the process; and other factors in the case. The ORR care provider makes a recommendation for release if the care provider concludes that the release is safe and the sponsor can care for the physical and mental well-being of the child. The care provider Case Manager (https://www.acf.hhs.gov/programs/orr/resource/childrenentering-the-united-states-unaccompanied-guide-to-terms#Case Manager)and the Case Coordinator (https://www.acf.hhs.gov/programs/orr/resource/children-entering-the-unitedstates-unaccompanied-guide-to-terms#Case Coordinators)must make a recommendation to the ORR/FFS (https://www.acf.hhs.gov/programs/orr/resource/children-entering-the-united-statesunaccompanied-guide-to-terms#ORR/Federal Field Specialist) on the release of the unaccompanied alien child to a particular sponsor. If the Case Manager and Case Coordinator cannot agree on a particular recommendation, or if the case is particularly complicated, they may refer the case directly to an ORR/FFS for guidance on how to proceed. After receiving the recommendation, the ORR/FFS (https://www.acf.hhs.gov/programs /orr/resource/children-entering-the-united-states-unaccompanied-guide-to-terms#ORR/Federal Field Specialist)or other ORR/Headquarters staff (https://www.acf.hhs.gov/programs /orr/resource/children-entering-the-united-states-unaccompanied-guide-to-terms#ORR /Headquarters Staff)reviews the recommendation. The ORR/FFS makes a release decision in consideration of the recommendations from the care provider, the Case Coordinator, and other stakeholders, including the home study provider and the 7/9/2018, 6:48 AM 21 of 34 Case 1:18-cv-01458-PLF Document 31-1 Filed 07/09/18 Page 21 of 34 Child Advocate, where applicable. Only ORR (or ACF) has the authority to make the final decision on a release. The Case Manager, Case Coordinator, and other stakeholders have an important role in making recommendations. In some cases, the ORR/FFS may send a case back to the Case Coordinator and Case Manager to obtain additional information before he/she makes a release decision. The ORR/FFS makes one of the following release decisions: Approve release to sponsor Approve release with post-release services Conduct a home study before a final release decision Deny release Remand for further information Revised 06/29/18 2.7.1 Approve Release Decisions A recommendation for a release without a home study or post-release services is made after a thorough assessment of the sponsor, the sponsor’s family unit, and the needs of the child or youth are taken into consideration. The ORR/FFS makes this release decision when he/she determines that the release is a safe release, the sponsor can care for the health and well-being of the child, and the sponsor understands that the child is to appear for all immigration proceedings. Posted 1/27/15 2.7.2 Approve Release with Post-Release Services The ORR/FFS may approve a release with post-release services when the release is determined to be safe and appropriate, but the unaccompanied alien child and sponsor need additional assistance to connect them to appropriate resources in the community or to address other concerns, such as mental health or other needs that could benefit from ongoing assistance from a social welfare agency. The sponsor must consent before services may be provided and may withdraw his or her consent at any time after services have begun, since post-release services are a voluntary service. These services are provided for 6 months after the unaccompanied alien child is released to the sponsor, unless ORR determines that services should be provided for a shorter or longer period of time. Post- release services do not continue under any circumstances beyond an unaccompanied alien child’s 18th birthday. Posted 1/27/15 2.7.3 Conduct a Home Study Before a Final Release Decision Can Be Made The Case Manager and Case Coordinator will recommend to the ORR/FFS that a home study be conducted prior to making a release recommendation. If the ORR/FFS agrees, he/she will approve that a home study be conducted before a final release decision can be made. The home study provider uses a standardized template to complete the review; however, the provider may include any additional supporting documentation regarding the sponsor or the child or youth, as applicable. Once the Case Manager and Case Coordinator receive the home study results, they will review the case in light of the home study and make a release recommendation to the ORR/FFS. (See Section 2.4.2 Home 7/9/2018, 6:48 AM 22 of 34 Case 1:18-cv-01458-PLF Document 31-1 Filed 07/09/18 Page 22 of 34 Study Requirements. (https://www.acf.hhs.gov/programs/orr/resource/children-entering-the-unitedstates-unaccompanied-section-2#2.4.2)) Posted 1/27/15 2.7.4 Deny Release Request ORR will deny release to a potential sponsor if any one of the following conditions exists: The potential sponsor is not willing or able to provide for the child’s physical or mental well-being; The physical environment of the home presents risks to the child’s safety and well-being; or Release of the unaccompanied alien child would present a risk to him or herself, the sponsor, household, or the community. ORR may deny release to a Category 1 potential sponsor, and will deny release to a Category 2 or Category 3 potential sponsor, if any one of the following conditions exists:8 The potential sponsor or a member of the potential sponsor’s household: Has been convicted of (including plea of no contest to) a felony involving child abuse or neglect, spousal abuse; a crime against a child or children (including child pornography); or a crime involving violence, including rape, sexual assault or homicide; Has been convicted within the last five years of a felony involving physical assault, battery, or drug-related offenses; Has been convicted of a misdemeanor for a sex crime, an offense involving a child victim, or a drug offense that compromises the sponsor’s ability to ensure the safety and well-being of the child; Has been convicted of alien smuggling or a crime related to trafficking in persons; or Has other criminal history or pending criminal charges or child welfare adverse findings from which one could reasonably infer that the sponsor’s ability to ensure the safety and well-being of the child is compromised; or A potential sponsor or a member of the potential sponsor’s household has one of the following substantiated adverse child welfare findings:9 Severe or chronic abuse or neglect; Sexual Abuse or other sexual offenses; Abuse or neglect of other children in the household; Long-term mental illness or deficiency; Long-term alcohol or drug induced incapacity; or Involuntary termination of the parental rights to another child. Revised 3/15/16 2.7.5 Remand Release Request – Decision Pending The ORR/FFS may remand the release request, which means that the ORR/FFS is sending the recommendation back to the Case Manager for additional information or additional actions before a final release decision can be made. ORR records the date of the remand and the decision will be pending further 7/9/2018, 6:48 AM 23 of 34 Case 1:18-cv-01458-PLF Document 31-1 Filed 07/09/18 Page 23 of 34 review until the documentation is provided or actions are taken. Posted 1/27/15 2.7.6 Issues Related to Recommendations and Decisions Safety Plan Case managers, in consultation with Case Coordinators, will prepare a safety plan, as needed, to address any outstanding needs the child may have after he/she is released and to ensure the child’s safe and successful integration into the sponsor family unit and community. The goal of the safety plan is to ensure the child’s safety. The safety plan also has guidance for sponsors on participating in post-release services and on other areas of care critical to the child’s adjustment in the family and the community, such as maintaining mental health services for the unaccompanied alien child, accessing any needed special education, helping the child avoid drugs and alcohol, and using appropriate parenting techniques. Sponsor Care Plan A sponsor care plan identifies an adult care giver who will assume care of an unaccompanied alien child if the sponsor becomes unable to care for the child. ORR requires a sponsor care plan for sponsors who may leave the United States, including all sponsors who are not U.S. citizens or lawful permanent residents (green card holders). The goal is to ensure an unaccompanied alien child has a caregiver, despite any complications resulting from the sponsor’s immigration situation. The plan: Identifies an adult care giver, and their relationship to the UAC and sponsor, if any; Includes copies of the adult care giver’s vetting information (background check results, identifying documentation, etc.); Includes the adult care giver’s contact information; Discusses how the adult care giver is notified that a transfer of care is required, if required; Provides that the adult care giver will abide by the terms of the Sponsor Care Agreement; Includes the date the UAC’s Case Manager discusses the plan with the child’s sponsor and the adult care giver identified in the plan; and, Includes additional information and materials (e.g., a Safety Plan), as appropriate or when required by ORR. A copy of the sponsor care plan is maintained in the UAC’s case file, provided to the sponsor, and to the adult care giver identified in the plan. Revised 6/7/18 2.7.7 Notification of Denial If the ORR Director denies the reunification application of an unaccompanied alien child’s parent or legal guardian, the ORR Director notifies the parent/legal guardian by sending a denial letter to the parent/legal guardian within 30 business days of receiving all the required information and documentation in a specific case. If the sole reason for denial of release is concern that the unaccompanied alien child is a danger to himself/herself or the community, the ORR Director sends a copy of the denial letter to the child. The denial letter includes: An explanation of the reason(s) for the denial; 7/9/2018, 6:48 AM 24 of 34 Case 1:18-cv-01458-PLF Document 31-1 Filed 07/09/18 Page 24 of 34 Instructions on how to obtain the child’s case file; The supporting materials and information that formed the basis for ORR’s decision; and An explanation of the process for requesting an appeal of the denial (see Section 2.7.8 (https://www.acf.hhs.gov/orr/resource/children-entering-the-united-states-unaccompaniedsection-2#2.7.8)). The explanation also informs the prospective sponsor that he or she may submit additional information to support an appeal request. If ORR denies sponsorship to a potential sponsor who is not the parent or legal guardian of the child, the care provider notifies the potential sponsor, providing the reasons for the denial verbally. If the sole reason for denial of release is concern that the unaccompanied alien child is a danger to himself/herself or the community, the Director notifies the child in writing of the reason for denial as described above. Revised 5/2/17 2.7.8 Appeal of Release Denial The parent/legal guardian may seek an appeal of the ORR Director’s denial decision by submitting a written request to the Assistant Secretary for Children and Families within 30 business days of receipt of the final decision from the ORR Director. The appeal request must state the basis for seeking the appeal, and may include any additional information that the requester believes is relevant to consideration of the request. The request may seek an appeal without a hearing or may seek a hearing. Without a Hearing: If the requester seeks an appeal without a hearing, the Assistant Secretary will consider only the denial letter and the information referenced therein, as well as the appeal request and any additional supporting materials or information submitted by the requester. The Assistant Secretary will notify the requester of a decision within 30 business days of receiving the request. If more information is needed to make a decision, or for good cause, the Assistant Secretary may stay the request until he or she has the information needed. In these cases, the Assistant Secretary will send a written explanation to the parent/legal guardian, communicating a reasonable process and timeframe for addressing the situation and making a determination. With a Hearing: If the requester seeks a hearing, the Assistant Secretary will schedule a teleconference or video conference, per the requester’s preference, at which time the requester (or the requester’s representative) may explain the reasons why he or she believes the denial was erroneous. The Assistant Secretary will consider the testimony and evidence presented at the hearing, in addition to the original denial letter and information referenced therein, to make a determination. The Assistant Secretary will notify the requester of the decision in writing within 30 business days following the hearing. The Assistant Secretary makes a determination based on the relevant law, regulations, and policies concerning release decisions (see Section 2.7.4 (https://www.acf.hhs.gov/orr/resource/children-enteringthe-united-states-unaccompanied-section-2#2.7.4) for the basis of a release denial). Any evidence submitted to the Assistant Secretary by ORR is shared with the requester in compliance with privacy protections. The Assistant Secretary conducts a de novo review and may affirm or overturn the ORR Director’s decision, or send the case back to ORR for further action. Appeals are recorded, and the requester may request a copy of the recording. The Assistant Secretary’s decision to affirm or overrule the ORR Director’s decision to deny release to a parent/legal guardian is the final administrative decision of the agency on the application that had been under consideration. However, if there is new information or a change in circumstances regarding the reunification application of a parent/legal guardian, or regarding the unaccompanied alien child’s circumstances, a new reunification application may be submitted that highlights 7/9/2018, 6:48 AM 25 of 34 Case 1:18-cv-01458-PLF Document 31-1 Filed 07/09/18 Page 25 of 34 the change(s) and explains why such changes should alter the initial decision. Similarly, if ORR discovers new information or becomes aware of a change in the circumstances of the parent/legal guardian and/or the unaccompanied alien child, ORR may assess the case anew. Denial for sole reason that the unaccompanied alien child is a danger to himself/herself or the community If the sole reason for denial of release is concern that the unaccompanied alien child is a danger to himself/herself or the community, the unaccompanied alien child may seek an appeal of the denial as described above, provided the parent/legal guardian is not seeking an appeal. If the child expresses a desire to seek an appeal, ORR appoints a child advocate to assist the unaccompanied alien child in seeking the appeal. The unaccompanied alien child may seek such appeal at any time after denial of release while the child is in ORR custody. Revised 5/2/17 2.8 Release from Office of Refugee Resettlement (ORR) Custody Release from the ORR custody is a three-step process: After care planning, which occurs during the entire safe and timely release process. Transfer of physical custody of the child, which occurs as soon as possible once an unaccompanied alien child is approved for release. Closing the case file, which occurs within 24 hours of the unaccompanied alien child’s discharge. Posted 1/27/15 2.8.1 After Care Planning Throughout the release process, care providers work with the child and sponsor so that they can plan for the child’s after care needs. This involves working with the sponsor and the unaccompanied alien child to: Prepare them for post-ORR custody Assess the sponsor’s ability to access community resources Provide guidance regarding safety planning, sponsor care plans, and accessing services for the child Once the sponsor assessment is complete and a sponsor has been approved, the sponsor enters into an agreement with the Federal government in which he or she agrees to comply with the following provisions (see Sponsor Care Agreement) (https://www.acf.hhs.gov/programs/orr/resource/unaccompaniedchildrens-services#Family Reunification Packet for Sponsors): Provide for the physical and mental well-being of the child, including but not limited to, food, shelter, clothing, education, medical care and other services as needed. For those who are not the child’s parent or legal guardian, make best efforts to establish legal guardianship with the local court within a reasonable time. Attend a legal orientation program provided under the Department of Justice/Executive Office for Immigration Review’s (EOIR) Legal Orientation Program for Custodians (Sponsors), if available where he or she resides. Depending on where the unaccompanied alien child’s immigration case is pending, notify the local 7/9/2018, 6:48 AM 26 of 34 Case 1:18-cv-01458-PLF Document 31-1 Filed 07/09/18 Page 26 of 34 Immigration Court or the Board of Immigration Appeals within 5 days of any change of address or phone number of the child (Form EOIR-33). (If applicable, file a Change of Venue motion on the child’s behalf.10 (https://www.acf.hhs.gov/orr/resource/children-entering-the-united-statesunaccompanied-section-2#foot10) A “change of venue” is a legal term for moving an immigration hearing to a new location.) Notify the DHS/U.S. Citizenship and Immigration Services within 10 days of any change of address by filing an Alien’s Change of Address Card (AR-11) or electronically at http://www.uscis.gov/ (http://www.uscis.gov/ar-11)ar-11 (http://www.uscis.gov/ar-11)Visit (https://www.acf.hhs.gov /disclaimers) disclaimer page (https://www.acf.hhs.gov/disclaimers). Ensure the unaccompanied alien child’s presence at all future proceedings before the DHS/Immigration and Customs Enforcement (ICE) and the DOJ/EOIR. Ensure the unaccompanied alien child reports to ICE for removal from the United States if an immigration judge issues a removal order or voluntary departure order. Notify local law enforcement or state or local Child Protective Services if the child has been or is at risk of being subjected to abuse, abandonment, neglect or maltreatment or if the sponsor learns that the child has been threatened, has been sexually or physically abused or assaulted, or has disappeared. (Notice should be given as soon as it is practicable or no later than 24 hours after the event or after becoming aware of the risk or threat.) Notify the National Center for Missing and Exploited Children at 1-800-843-5678 if the unaccompanied alien child disappears, has been kidnapped, or runs away. (Notice should be given as soon as it becomes practicable or no later than 24 hours after learning of the child’s disappearance.) Notify ICE at 1-866-347-2423 if the unaccompanied alien child is contacted in any way by an individual(s) believed to represent an alien smuggling syndicate, organized crime, or a human trafficking organization. (Notice should be provided as soon as possible or no later than 24 hours after becoming aware of the information.) In case of an emergency, such as serious illness, destruction of home, etc., temporarily transfer physical custody of the child to another person who will comply with the terms of the Sponsor Care Agreement. In the event that a sponsor who is not the child’s parent or legal guardian is no longer able and willing to care for the unaccompanied alien child and is unable to temporarily transfer physical custody, notify ORR using the ORR National Call Center, at 1-800-203-7001. The agreement includes the notice that the release of the unaccompanied alien child to the sponsor’s care does not grant the child any legal immigration status and that the child must present himself or herself for immigration court proceedings. The care provider also provides the sponsor with a Sponsor Handbook that outlines the responsibilities in caring for the unaccompanied alien child’s needs for education, health, obtaining legal guardianship, finding support to address traumatic stress, keeping children safe from child abuse and neglect and from trafficking and exploitation. The handbook reiterates the importance of continuing with immigration proceedings and includes links to EOIR’s website and forms. The handbook discusses laws related to employment, such as the Federal law prohibiting minors under the age of 18 from working in hazardous occupations. After care planning includes the care provider explaining the following to the unaccompanied alien child and the sponsor: The U.S. child abuse and neglect standards and child protective services that are explained on the Administration for Children and Families Child Welfare Information Gateway (https://www.childwelfare.gov/) website. 7/9/2018, 6:48 AM 27 of 34 Case 1:18-cv-01458-PLF Document 31-1 Filed 07/09/18 Page 27 of 34 Human trafficking indicators and resources Basic safety and how to use the 9-1-1 number in emergency situations. The care provider notifies all stakeholders of the child’s discharge date and change of address and venue, as applicable. Where applicable, ORR also provides Child Advocates with access to their clients’ documents and forms, and helps child advocates to remain informed about their clients’ after-care plans and legal proceedings. The care provider coordinates with the legal service provider or attorney of record to help complete the necessary legal forms. Stakeholders notified of the change of address and, if applicable, request for change of venue for the immigration case include the U.S. Immigration and Customs Enforcement (ICE) Office of Chief Counsel and the U.S. Executive Office for Immigration Review (EOIR) Immigration Court Administrator. Revised 6/7/18 2.8.2 Transfer of Physical Custody Once ORR approves an unaccompanied alien child for release, the care provider collaborates with the sponsor to ensure physical discharge happens as quickly as possible (within 3 calendar days after ORR approves the release). The care provider notifies DHS prior to the physical release to allow DHS an opportunity to comment on the imminent release as well as time to prepare any DHS paperwork for the ICE Chief Counsel’s office. The care provider ensures that all the child’s belongings—including those he or she had at the time they entered ORR custody and any they acquired during their stay—are given to the child and sponsor at time of release. The care provider also makes sure that the child and sponsor have copies of files or papers needed for the child to obtain medical, educational, legal or other services following release. Whenever possible, sponsors are expected to come to the care provider or to an offsite location designated by the care provider for the transfer of physical custody of the child. Under extenuating circumstances (e.g., a sponsor cannot travel due to a medical condition), ORR may approve an unaccompanied alien child to be escorted to a sponsor. Similarly, if a sponsor pick-up would result in delay of a timely release of the child, ORR may approve an escort for an unaccompanied alien child. If an unaccompanied alien child’s final destination involves air travel and the sponsor will not be traveling with the child, the care provider must follow the procedures in the table below concerning care provider escorts and airline escorts. Unaccompanied alien children who are under the age of 14 years old traveling via air may only be escorted by care provider staff, unless an ORR/FFS Supervisor has approved the use of an airline escort in advance. The sponsor is responsible for the unaccompanied alien child’s transportation costs and, if the care provider is escorting the child, for the care provider’s transportation or airfare. If an airline escort is used, the sponsor is responsible for paying the airline’s unaccompanied alien minor service fee. Under no circumstances will ORR pay for the sponsor’s airfare. The following table summarizes procedures for each method of transfer. Method of Transfer Pre-transfer Steps At point of Transfer 7/9/2018, 6:48 AM 28 of 34 Case 1:18-cv-01458-PLF Document 31-1 Filed 07/09/18 Page 28 of 34 Sponsor pick-up at Case manager collaborates Care provider checks the sponsor’s identification care provider facility with the sponsor on selecting upon arrival by comparing it to the identification a date and time for the previously submitted by the sponsor in the FRP (see sponsor to pick-up the child Section 2.2.4) Case manager notifies the If the sponsor’s identification matches the sponsor that he/she is identification previously submitted, care provider required to bring the same gives the sponsor the unaccompanied alien child’s valid government issued release documents and personal possessions photo identification previously Care provider advises the sponsor, if traveling by submitted by the sponsor in airplane, to check in the child at the ticket counter the FRP (see Section 2.2.4) with a copy of the child’s DHS form I-862, Notice to Appear Care provider may not release the child unless the sponsor presents the same valid government issued photo identification he or she submitted in the FRP. Care provider escort to Case manager collaborates If traveling by air, at the departure airport, care offsite transfer location with the sponsor in selecting a provider escort checks in the child at the ticket time and location for transfer, counter with a copy of the child’s DHS form I-862, and flights for the child and Notice to Appear care provider escort At the transfer location, care provider escort Case manager notifies the compares the sponsor’s identification with the copy sponsor that he/she is previously submitted by the sponsor in the FRP. If the required to bring the same identification documents correspond, care provider valid government issued escort releases the child to the sponsor and provides photo identification previously the sponsor with the release documents and the submitted by the sponsor in child’s personal effects and papers the FRP to the transfer Care provider escort may not release the child unless location the sponsor presents the same valid government Case manager arranges for issued photo identification he or she submitted in the the sponsor to pay for the FRP. If the sponsor does not produce valid child and care provider identification, if the care provider escort has concerns escort’s transportation costs, regarding the sponsor’s identity, or if the care including airline tickets where provider escort has concerns regarding the safety of applicable the situation upon meeting the sponsor, the care Case manager prepares a provider escort will return with the child to the care copy of the sponsor’s provider facility identification that was submitted in the FRP, for the care provider escort to take to the transfer location Travel via airline’s Case manager contacts the At the departure airport, care provider checks in the unaccompanied alien airline to obtain information on unaccompanied alien child at the ticket counter with a minor escort policy airline escort requirements, in copy of the DHS form I-862, Notice to Appear, and a 7/9/2018, 6:48 AM 29 of 34 Case 1:18-cv-01458-PLF Document 31-1 Filed 07/09/18 Page 29 of 34 (only for youth 14 order to ensure that they are copy of the approved identification of the sponsor years of age and older) adequate to protect the safety picking up the child of the child, and to ensure that At the departure airport, care provider gives the child both the sponsor and the care their personal possessions and documents and a provider can meet the copy of the sponsor’s approved identification, and requirements mails an additional copy of the release documents to Case manager arranges for the sponsor the sponsor to pay for the At the destination airport, the sponsor arrives two child’s airplane ticket and for hours before the child’s arrival time, and contacts the the airline unaccompanied care provider immediately to check in. alien minor escort fee The airline follows its standard procedures for Case manager ensures that escorting a child traveling alone to the designated the government issued photo parent or guardian identification submitted by the The care provider contacts the sponsor shortly after sponsor in the FRP will be the child’s scheduled arrival time to confirm the child’s acceptable to the airline to transfer from the airline representative to the sponsor complete custody transfer If the sponsor fails to arrive at the airport or fails to The care provider instructs contact the care provider upon arrival at the airport, the sponsor to meet the the care provider will notify the ORR/FFS and the unaccompanied alien child Project Officer, and the child will either be returned to and escort at the airport with the care provider or taken to another nearby care the identification they provider facility. submitted in the FRP, and to follow the requirements of the airline’s unaccompanied alien minors escort policy When arranging for children to travel with airline escorts, care providers should also refer to the U.S. Department of Transportation recommendations for unaccompanied alien minors traveling by air (“When Kids Fly Alone”). Revised 3/14/16 2.8.3 Closing the Case File The care provider completes a Discharge Notification form within 24 hours of the physical discharge of a youth, and then emails the form to DHS and other stakeholders. Once a child is released to a sponsor, ORR’s custodial relationship with the child terminates. Although the custodial relationship ends, the care provider keeps the case file open for 30 days after the release date in order to conduct the Safety and Well Being Follow Up Call (see Section 2.8.4) and document the results of the call in the case file. The care provider closes the case file record after completing the Safety and Well Being Follow Up Call. Revised 3/14/16 Section 2.8.4 Safety and Well Being Follow Up Call 7/9/2018, 6:48 AM 30 of 34 Case 1:18-cv-01458-PLF Document 31-1 Filed 07/09/18 Page 30 of 34 Care providers must conduct a Safety and Well Being Follow Up Call with an unaccompanied alien child and his or her sponsor 30 days after the release date. The purpose of the follow up call is to determine whether the child is still residing with the sponsor, is enrolled in or attending school, is aware of upcoming court dates, and is safe. The care provider must document the outcome of the follow up call in the child’s case file, including if the care provider is unable to contact the sponsor or child after reasonable efforts have been exhausted. If the follow up call indicates that the sponsor and/or child would benefit from additional support or services, the care provider must refer the sponsor or child to the ORR National Call Center and provide the sponsor or child the Call Center contact information. If the care provider believes that the child is unsafe, the care provider must comply with mandatory reporting laws, State licensing requirements, and Federal laws and regulations for reporting to local child protective agencies and/or law enforcement. Revised 3/14/16 2.8.5 Post-Release Services for UC with Zika Virus Disease or Infection Testing ORR follows CDC guidance and recommendations for Zika virus laboratory testing. CDC recommends testing for all pregnant UC without symptoms, but who are from or traveled through areas with ongoing Zika virus transmission and are within 2–12 weeks of arrival in the United States. Other UC who develop two or more symptoms consistent with Zika may be tested for Zika virus upon consultation with a healthcare provider. Post-Release Referrals Pregnant UC who are diagnosed with Zika virus disease, have laboratory results compatible with Zika virus infection, or have laboratory results that cannot rule out Zika virus infection will be referred for post-release services. Similarly, UC who delivered while in ORR care will be referred for post-release services if they were diagnosed with Zika virus disease, had laboratory results compatible with Zika virus infection, or had laboratory results that cannot rule out Zika virus infection while pregnant. In some cases, asymptomatic pregnant UC are released pending lab results. In those cases, ORR will communicate their test results to them and their new healthcare provider. If their results are compatible with Zika virus infection or if Zika virus infection cannot be ruled out, ORR will refer them for post-release services. Post-Release Services Post-release services for eligible UC described above include the full range of post-release services with a focus on connecting the UC to prenatal care and maternal-child resources. For more information about the Zika virus, please go to the CDC website at: www.cdc.gov/zika/index.html (http://www.cdc.gov/zika/index.html) Posted 5/2/16 2.8.6 Release for Children with Legal Immigration Status Some unaccompanied alien children may obtain legal immigration status while in ORR care. ORR may also discover during the process of placing and providing services to a child that he or she already has legal immigration status or is a U.S. citizen. By law, ORR is not authorized to have custody of children with legal immigration status or U.S. citizenship. Therefore, these children cannot remain in ORR’s care, and ORR must 7/9/2018, 6:48 AM 31 of 34 Case 1:18-cv-01458-PLF Document 31-1 Filed 07/09/18 Page 31 of 34 release them from ORR-funded care provider facilities. As soon as ORR determines that an unaccompanied alien child may be eligible for legal status, ORR begins development of a Post Legal Status Plan. The case manager develops the plan, and ORR approves it, tailoring it to the needs and pending immigration status of the child. As is the case for all UAC, ORR continually makes efforts to reunify children who have promising immigration cases with family members. However, if no parent, legal guardian, relative, or other suitable adult is available, ORR and the care provider, as part of the development of the Post Legal Status Plan, identify alternative placements for the child, including specialized programs, state or county entities or licensed nonprofit organizations that will take custody of the child. In limited circumstances, children with certain types of immigration status may be eligible for release into ORR’s Unaccompanied Refugee Minors (URM) Program. Placement in the URM Program is limited by type of immigration status and the availability of appropriate placement options. ORR will not release children on their own recognizance under any circumstances. Posted 5/8/17 2.9 Bond Hearings for Unaccompanied Alien Children Consistent with the Ninth Circuit Court of Appeals decision in Flores v. Sessions, unaccompanied alien children have the opportunity to seek a bond hearing with an immigration judge. In a bond hearing, an immigration judge decides whether the child poses a danger to the community.11 For the majority of children in ORR custody, ORR has determined they are not a danger and therefore has placed them in shelters, group homes, and in some cases, staff secure facilities. For these children, a bond hearing is not beneficial. The burden is on the requestor to demonstrate that the child can be released because he or she is not a danger to the community. An immigration judge’s decision that the unaccompanied alien child is not a danger to the community supersedes an ORR determination on that question, unless the immigration judge’s decision is overturned by the Board of Immigration Appeals (BIA). However, even if an immigration judge decides the child is eligible for bond (meaning the child does not pose a danger to the community and need not remain in an ORR facility for that reason), in all cases release from ORR custody cannot occur until ORR has identified, evaluated and approved an appropriate sponsor in accordance with Section 2 (https://www.acf.hhs.gov /orr/resource/children-entering-the-united-states-unaccompanied-section-2) of this policy guide. An immigration judge does not rule on any of the following: release to a sponsor; the unaccompanied alien child’s placement or conditions of placement while in ORR custody; or, releasing the child on his or her own recognizance. ORR also takes into consideration the immigration judge’s decision in the bond hearing about the youth’s level of danger when assessing the youth’s placement and conditions of placement.12 Although these hearings are known as “bond hearings,” ORR does not require payment of any money in the event a court grants bond. Requesting a Bond Hearing A request for a bond hearing may be made by the child in ORR care, by a legal representative of the child, or 7/9/2018, 6:48 AM 32 of 34 Case 1:18-cv-01458-PLF Document 31-1 Filed 07/09/18 Page 32 of 34 by parents/legal guardians on their children’s behalf. These parties may submit a written request for a bond hearing to the care provider using the ORR form, Notice of Right to Request a Bond Hearing, or through a separate written request that provides the information requested in the form. ORR provides the Notice of Right to Request a Bond Hearing to UAC in secure and staff secure facilities. A request for a bond hearing must minimally include: The full name and alien registration number (“A number”) of the child; If a parent or legal guardian, or an appointed legal representative, is making the request, the parent/legal guardian’s or legal representative’s name; The location of the care provider facility; The date of the request; and The signature(s) of the requesting child, the parent/legal guardian, and/or legal representative. There is no filing fee to submit a request for a bond hearing to the care provider. A child (or his or her legal representative) may also request a bond hearing by making an oral request in immigration court. Bond Hearings Proceedings Bond hearings are usually held at the immigration court where the request for a bond hearing is filed. If the immigration judge finds an unaccompanied alien child eligible for bond, and ORR does not appeal, then ORR follows its sponsor assessment and release procedures as described in Section 2 (https://www.acf.hhs.gov/orr/resource/children-entering-the-united-states-unaccompanied-section-2) of this policy guide. Appeals Either party may appeal the immigration judge’s decision to the BIA. Because ORR cannot release a child until it identifies a suitable sponsor, an immigration judge’s finding that the unaccompanied child is not a danger to the community does not necessarily result in a release of the child while an appeal is pending. Age Outs If an unaccompanied alien child becomes 18 years old during the pendency of a bond hearing or bond hearing appeal, ORR forwards the request for a bond hearing and any relevant information to the local DHS/ICE Office of Chief Counsel’s office. Further Requests for Bond Hearing If an immigration judge (or BIA, when appealed) determines that an unaccompanied alien child is ineligible for bond, such decision is final unless the child can demonstrate a material change in circumstance to support a second request for a bond hearing. Revised 7/19/17 7/9/2018, 6:48 AM 33 of 34 Case 1:18-cv-01458-PLF Document 31-1 Filed 07/09/18 Page 33 of 34 Footnotes 1. As per the release order preference outlined in Flores v. Reno Stipulated Settlement Agreement, No. 85-4544-RJK (Px) (C.D. Cal., Jan 17, 1997). 2. These categories were created for program use, to help identify potential sponsors. They are not intended to replace the legal order of preference established in Flores. 3. The care provider may offer assistance to potential sponsors in securing necessary documentation, but it is ultimately the potential sponsor’s responsibility to find and submit them. 4. Verification of the potential sponsor’s relationship to the child is a minimum step required by the TVPRA to determine a potential sponsor’s suitability and capability of providing for the child’s physical and mental wellbeing. See 8 U.S.C. § 1232. As a result, as stated above, ORR may in its discretion require the submission of multiple forms of evidence. 5. ORR/FFS Supervisors are the final authority for approving discretionary home studies (See Section 2.4.2) 6. Child advocates must keep the information in the case file, and information about the child’s case, confidential from non-ORR grantees, contractors, and Federal staff. 7. An Authorization for Release of Information is not required for sponsors, adult household members, or adult care givers identified in a sponsor care plan undergoing a sex offender registry check. An Authorization for Request of Information also is not required for sponsors, adult household members and adult caregivers identified in a sponsor care plan undergoing a public records check. However, sponsors will receive notice that public records and sex offender registry checks will be performed, and will have an opportunity to explain the results of these checks to ORR. ORR will also provide a method for disputing the results of checks.(See Section 2.5.3 (https://www.acf.hhs.gov/programs/orr/resource/children-entering-the-united-statesunaccompanied-section-2#2.5.3), Q4). 8. ORR will also reject any sponsor care plans that identify an adult care giver who has any of the disqualifying criteria. 9. See U.S. Dept. of Health and Human Services, Children's Bureau. Grounds for involuntary termination of parental rights, at 2. Washington, DC: Child Welfare Information Gateway, Jan. 2013. 10. The Change of Venue motion must contain information specified by the Immigration Court. A Change of Venue motion may require the assistance of an attorney. For guidance on the “motion to change venue,” see the Immigration Court Practice Manual at www.justice.gov/eoir/vll/OCIJPracManual/ocij_page1.htm (http://www.justice.gov/eoir/vll/OCIJPracManual/ocij_page1.htm). For immigration case information please contact EOIR’s immigration case information system at 1-800-898-7180. Visit EOIR’s website for additional information at: www.justice.gov/eoir/formslist.htm (http://www.justice.gov/eoir/formslist.htm). 11. Immigration judges also consider risk of flight. However, ORR does not make a determination of flight risk for the purpose of deciding whether a child is released. If an immigration judge offers an opinion about a youth’s risk of flight, ORR takes the judge’s opinion into consideration when assessing the child’s placement and conditions of placement, but the decision does not affect release. 12. Please see footnote above concerning risk of flight. 7/9/2018, 6:48 AM 34 of 34 Case 1:18-cv-01458-PLF Document 31-1 Filed 07/09/18 Page 34 of 34 Last Reviewed: June 29, 2018 7/9/2018, 6:48 AM Case 1:18-cv-01458-PLF Document 31-2 Filed 07/09/18 Page 1 of 27 Licensed or Certified Child Care Operations: Criminal History Requirements In accordance with §745.651 (What types of criminal convictions may affect a person’s ability to be present at an operation?), this chart notes criminal convictions that may affect a person's ability to be present in Licensed or Certified Child Care Operations - including Independent Foster Homes, Child-Care Centers, Licensed Child-Care Homes, SchoolAge and Before or After-School Programs, General Residential Operations, Shelter Care, Small Employer Based ChildCare, and qualifying persons at Child Placing Agencies, excluding Foster and Adoptive Homes. In this chart the words below have the following meaning:  "Absolute Bar" means a person convicted of a particular crime is permanently prohibited from being present at the operation while children are in care; and the person does NOT qualify for a risk evaluation.  "N/A" has two meanings in this chart. "N/A" under the "FELONY" or "MISDEMEANOR" column means there is no such relevant felony or misdemeanor crime. "N/A" under the "If this person is eligible for a risk evaluation . . . "question column means the question is not applicable, because a person with this conviction is not eligible for a risk evaluation.  "No Action Required" means there is such a crime, but no action is required.  "Risk Evaluation" means a person convicted of a particular crime is eligible for a risk evaluation based solely on that particular conviction. However, a person's overall eligibility for a risk evaluation is based on the entirety of the person's criminal and DFPS Central Registry history.  "Risk Evaluation if conviction was in the last 10 years" means a risk evaluation is only required for 10 years from the date of the conviction. After the 10 years have passed, the particular crime no longer requires any action by DFPS, unless the person is on parole for a felony offense. In reviewing this chart, you must understand the following:  This chart applies to all criminal history checks conducted under Title 40, Texas Administrative Code, Chapter 745, Licensing, Subchapter F, Background Checks.  Time limits are based on the date of conviction.  When a final disposition has not yet been rendered, an arrest or charge for an offense listed on this chart may affect a person’s ability to be present at an operation if: o a conviction would bar the person from being present permanently or on a time-limited basis; o a conviction would prohibit the person from being present pending the outcome of a risk evaluation; or o the Centralized Background Check Unit (CBCU) determines that the person poses an immediate threat to the health or safety of children.  Although the crimes listed in this chart reflect only offenses in Texas statutes, the same criminal history requirements apply to similar criminal offenses under the laws of another state or federal law. Revised January 2018 Page 1 of 27 Case 1:18-cv-01458-PLF Document 31-2 Filed 07/09/18 Page 2 of 27   For purposes of this chart, a Criminal Attempt conviction will be treated as falling under the same section of the Penal Code as the offense that was attempted. For example, a conviction for Attempt to Commit Murder would be treated in the same manner as Murder and would result in an absolute bar. Likewise, a conviction for Criminal Conspiracy or Criminal Solicitation will be treated as falling under the same section of the Penal Code as the offense that was the subject of the conspiracy or the solicitation. In accordance with §745.651(c), a person currently on parole for any felony offense not otherwise barrable must have an approved risk evaluation prior to being present at an operation. Table of Contents Texas Penal Code, Title 4, Inchoate Offenses ...................................................................................................................... 3 Texas Penal Code, Title 5, Offenses Against the Person...................................................................................................... 3 Texas Penal Code, Title 6, Chapter 25, Offenses Against the Family ................................................................................... 3 Texas Penal Code, Title 7, Offenses Against Property ......................................................................................................... 6 Texas Penal Code, Title 8, Offenses Against Administration .............................................................................................. 10 Texas Penal Code, Title 9, Disorderly Conduct and Related Offenses ............................................................................... 10 Texas Penal Code, Title 10, Offenses Against Public Health, Safety, and Morals .............................................................. 14 Texas Penal Code, Title 11, Organized Crime .................................................................................................................... 16 Texas Education Code ........................................................................................................................................................ 17 Texas Family Code ............................................................................................................................................................. 18 Texas Health and Safety Code ........................................................................................................................................... 18 Texas Human Resources Code .......................................................................................................................................... 20 Texas Alcoholic Beverage Code ......................................................................................................................................... 24 Texas Business and Commerce Code ................................................................................................................................ 25 Texas Code of Criminal Procedure ..................................................................................................................................... 26 Texas Civil Practice and Remedies Code ........................................................................................................................... 26 Any other Title under the Texas Penal Code or any other Texas Code not specifically mentioned above .......................... 27 Revised January 2018 Page 2 of 27 Case 1:18-cv-01458-PLF Document 31-2 Filed 07/09/18 Page 3 of 27 Texas Penal Code, Title 4, Inchoate Offenses Offense Texas Penal Code Criminal Solicitation of a Minor (felony or misdemeanor) 15.031 FELONY MISDEMEANOR (Includes All Levels Unless Otherwise Specified) (Includes All Levels Unless Otherwise Specified) Absolute Bar Risk Evaluation†† If This Person Is Eligible for a Risk Evaluation, May the Person be Present at the ChildCare Operation While Children are in Care Pending the Outcome of the Risk Evaluation? Felony: N/A Misdemeanor: No Texas Penal Code, Title 5, Offenses Against the Person Offense Texas Penal Code FELONY MISDEMEANOR (Includes All Levels Unless Otherwise Specified) (Includes All Levels Unless Otherwise Specified) If This Person Is Eligible for a Risk Evaluation, May the Person be Present at the ChildCare Operation While Children are in Care Pending the Outcome of the Risk Evaluation? Murder (felony) 19.02 Absolute Bar† N/A N/A Capital Murder (felony) 19.03 Absolute Bar† N/A N/A Manslaughter (felony) 19.04 Absolute Bar† N/A N/A Criminally Negligent Homicide (felony) 19.05 Absolute Bar† Absolute Bar^ N/A Unlawful Restraint (felony or misdemeanor) 20.02 Absolute Bar† Risk Evaluation†† Kidnapping (felony) 20.03 Absolute Bar† N/A N/A Aggravated Kidnapping (felony) 20.04 Absolute Bar† N/A N/A Revised January 2018 Felony: N/A Misdemeanor: No Page 3 of 27 Case 1:18-cv-01458-PLF Document 31-2 Filed 07/09/18 Page 4 of 27 Offense Texas Penal Code FELONY MISDEMEANOR (Includes All Levels Unless Otherwise Specified) (Includes All Levels Unless Otherwise Specified) If This Person Is Eligible for a Risk Evaluation, May the Person be Present at the ChildCare Operation While Children are in Care Pending the Outcome of the Risk Evaluation? Smuggling of Persons (felony) 20.05 Absolute Bar N/A N/A Continuous Smuggling of Persons (felony) 20.06 Absolute Bar N/A N/A Trafficking of Persons (felony) 20A.02 Absolute Bar N/A N/A Continuous Trafficking of Persons (felony) 20A.03 Absolute Bar N/A N/A Continuous Sexual Abuse of Young Child or Children (felony) 21.02 Absolute Bar† N/A N/A Public Lewdness (misdemeanor) 21.07 N/A Risk Evaluation No Indecent Exposure (misdemeanor) 21.08 N/A Risk Evaluation No Bestiality (felony) 21.09 Absolute Bar Absolute Bar^ N/A Indecency with a Child (felony) 21.11 Absolute Bar† N/A N/A Improper Relationship Between Educator & Student (felony) 21.12 Absolute Bar† N/A N/A Improper Photography or Visual Recording (felony) or Invasive Visual Recording (felony)* 21.15 Absolute Bar Absolute Bar^ N/A 21.16** N/A Risk Evaluation No Unlawful Disclosure or Promotion of Intimate Visual Material (misdemeanor) Revised January 2018 Page 4 of 27 Case 1:18-cv-01458-PLF Document 31-2 Filed 07/09/18 Page 5 of 27 Offense Voyeurism (felony or misdemeanor) Texas Penal Code 21.17 FELONY MISDEMEANOR (Includes All Levels Unless Otherwise Specified) (Includes All Levels Unless Otherwise Specified) Absolute Bar Risk Evaluation†† If This Person Is Eligible for a Risk Evaluation, May the Person be Present at the ChildCare Operation While Children are in Care Pending the Outcome of the Risk Evaluation? Felony: N/A Misdemeanor: No Sexual Coercion (felony) 21.18 Absolute Bar Absolute Bar^ Assault (felony or misdemeanor) 22.01 Absolute Bar† Risk Evaluation†† N/A Felony: N/A Misdemeanor: No Sexual Assault (felony) 22.011 Absolute Bar† N/A N/A Aggravated Assault (felony) 22.02 Absolute Bar† N/A N/A Aggravated Sexual Assault (felony) 22.021 Absolute Bar† N/A N/A Injury to a Child, Elderly Individual, or Disabled Individual (felony) 22.04 Absolute Bar† Absolute Bar^ N/A Abandoning or Endangering Child (felony) 22.041 Absolute Bar† Absolute Bar^ N/A Deadly Conduct (felony or misdemeanor) 22.05 Absolute Bar Risk Evaluation†† Terroristic Threat (felony or misdemeanor) 22.07 Aiding Suicide (felony or misdemeanor) 22.08 Felony: N/A Misdemeanor: No Felony: N/A Absolute Bar Risk Evaluation†† Misdemeanor: No Felony: N/A Absolute Bar Risk Evaluation†† Misdemeanor: No Tampering with a Consumer Product (felony) Revised January 2018 22.09 Absolute Bar N/A N/A Page 5 of 27 Case 1:18-cv-01458-PLF Document 31-2 Filed 07/09/18 Page 6 of 27 Offense Texas Penal Code FELONY MISDEMEANOR (Includes All Levels Unless Otherwise Specified) (Includes All Levels Unless Otherwise Specified) If This Person Is Eligible for a Risk Evaluation, May the Person be Present at the ChildCare Operation While Children are in Care Pending the Outcome of the Risk Evaluation? Leaving a Child in a Vehicle (misdemeanor) 22.10 N/A Risk Evaluation No Harassment by Persons in Certain Correctional Facilities; Harassment of a Public Servant (felony) 22.11 Absolute Bar N/A N/A Texas Penal Code, Title 6, Chapter 25, Offenses Against the Family Offense Texas Penal Code FELONY MISDEMEANOR (Includes All Levels Unless Otherwise Specified) (Includes All Levels Unless Otherwise Specified) If This Person Is Eligible for a Risk Evaluation, May the Person be Present at the ChildCare Operation While Children are in Care Pending the Outcome of the Risk Evaluation? Bigamy (felony) 25.01 Risk Evaluation N/A No Prohibited Sexual Conduct (felony) 25.02 Absolute Bar N/A N/A Interference with Child Custody (felony) 25.03 Absolute Bar† Absolute Bar^ N/A Agreement to Abduct from Custody (felony) 25.031 Absolute Bar† Absolute Bar^ N/A Enticing a Child (felony or misdemeanor) 25.04 Absolute Bar† Risk Evaluation Criminal Nonsupport (felony) 25.05 Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years^ Yes^^ Harboring Runaway Child (misdemeanor) 25.06 N/A Risk Evaluation No Revised January 2018 Felony: N/A Misdemeanor: No Page 6 of 27 Case 1:18-cv-01458-PLF Document 31-2 Filed 07/09/18 Page 7 of 27 Offense Violation of Certain Court Orders or Conditions of Bond in a Family Violence, Child Abuse or Neglect, Sexual Assault or Abuse, Stalking, or Trafficking Case (felony or misdemeanor)* Violation of Protective Order Preventing Offense Caused by Bias or Prejudice (felony or misdemeanor) Repeated Violation of Certain Court Orders or Conditions of Bond in Family Violence, Child Abuse or Neglect, Sexual Assault or Abuse, Stalking, Trafficking Case (felony or misdemeanor) Texas Penal Code FELONY MISDEMEANOR (Includes All Levels Unless Otherwise Specified) (Includes All Levels Unless Otherwise Specified) Absolute Bar† Risk Evaluation†† If This Person Is Eligible for a Risk Evaluation, May the Person be Present at the ChildCare Operation While Children are in Care Pending the Outcome of the Risk Evaluation? Felony: N/A 25.07 Misdemeanor: No Felony: N/A 25.071 Absolute Bar Risk Evaluation Misdemeanor: No Felony: N/A 25.072 Absolute Bar Risk Evaluation†† Misdemeanor: No Sale or Purchase of Child (felony) 25.08 Absolute Bar† N/A N/A Unregulated Custody Transfer of Adopted Child (felony) 25.081 Absolute Bar N/A N/A Advertising for Placement of Child (felony or misdemeanor) 25.09 Absolute Bar† Risk Evaluation Interference with Rights of a Guardian of the Person (felony) 25.10 Absolute Bar† Absolute Bar^ N/A Continuous Violence Against the Family (felony) 25.11 Absolute Bar† N/A N/A Revised January 2018 Felony: N/A Misdemeanor: No Page 7 of 27 Case 1:18-cv-01458-PLF Document 31-2 Filed 07/09/18 Page 8 of 27 Texas Penal Code, Title 7, Offenses Against Property Offense Texas Penal Code FELONY MISDEMEANOR (Includes All Levels Unless Otherwise Specified) (Includes All Levels Unless Otherwise Specified) If This Person Is Eligible for a Risk Evaluation, May the Person be Present at the ChildCare Operation While Children are in Care Pending the Outcome of the Risk Evaluation? Arson (felony) 28.02 Absolute Bar† Absolute Bar^ N/A Criminal Mischief (felony or misdemeanor) 28.03 Risk Evaluation No Action Required No Robbery (felony) 29.02 Absolute Bar N/A N/A Aggravated Robbery (felony) 29.03 Absolute Bar N/A N/A Burglary (felony) 30.02 No Action Required^ Yes^^ No Action Required Yes^^ No Action Required Yes^^ N/A Yes^^ No Action Required Yes^^ No Action Required Yes^^ No Action Required Yes^^ Theft (felony or misdemeanor) 31.03, 31.04, 31.05, 31.12, 31.16 Forgery (felony or misdemeanor) 32.21 Credit Card or Debit Card Abuse (felony) 32.31 False Statement to Obtain Property or Credit in the Provision of Certain Services (felony or misdemeanor) 32.32 Hindering Secured Creditors (felony or misdemeanor) 32.33 Misapplication of Fiduciary Property (felony or misdemeanor) 32.45 Revised January 2018 Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Page 8 of 27 Case 1:18-cv-01458-PLF Document 31-2 Filed 07/09/18 Page 9 of 27 Offense Texas Penal Code FELONY MISDEMEANOR (Includes All Levels Unless Otherwise Specified) (Includes All Levels Unless Otherwise Specified) If This Person Is Eligible for a Risk Evaluation, May the Person be Present at the ChildCare Operation While Children are in Care Pending the Outcome of the Risk Evaluation? Securing Execution of Fiduciary Property (felony or misdemeanor) 32.46 Risk Evaluation if conviction was in the last 10 years No Action Required Yes^^ Exploitation of Child, Elderly Individual, or Disabled Individual (felony) 32.53 Risk Evaluation†† N/A No Breach of Computer Security (felony or misdemeanor) 33.02 Risk Evaluation if conviction was in the last 10 years No Action Required Yes^^ Online Solicitation of a Minor (felony) 33.021 Absolute Bar† N/A N/A Electronic Data Tampering (felony or misdemeanor) 33.023 No Action Required Yes Unlawful Decryption (felony or misdemeanor) 33.024 No Action Required Yes No Action Required Yes^^ N/A Yes^^ No Action Required Yes^^ No Action Required Yes^^ Telecommunications Crimes (felony or misdemeanor) 33A Money Laundering (felony) 34.02 Insurance Fraud (felony or misdemeanor) 35.02 Medicaid Fraud (felony or misdemeanor) 35A.02 Revised January 2018 Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Page 9 of 27 Case 1:18-cv-01458-PLF Document 31-2 Filed 07/09/18 Page 10 of 27 Texas Penal Code, Title 8, Offenses Against Administration Offense Texas Penal Code FELONY MISDEMEANOR (Includes All Levels Unless Otherwise Specified) (Includes All Levels Unless Otherwise Specified) Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Bribery (felony) 36.02 Coercion of Public Servant or Voter (felony or misdemeanor) 36.03 Improper Influence (misdemeanor) 36.04 N/A Tampering with Witness (felony) 36.05 Risk Evaluation N/A No Obstruction or Retaliation (felony) 36.06 Absolute Bar N/A N/A Acceptance of Honorarium (misdemeanor) 36.07 N/A Gift to Public Servant by Person Subject to His Jurisdiction (misdemeanor) 36.08 N/A Offering Gift to Public Servant (misdemeanor) 36.09 N/A Perjury (misdemeanor) 37.02 N/A Aggravated Perjury (felony) 37.03 Risk Evaluation if conviction was in the last 10 years N/A Yes^^ Tampering with or Fabricating Physical Evidence (felony or misdemeanor) Risk Evaluation Risk Evaluation if conviction was in the last 10 years Felony: No 37.09 Revised January 2018 N/A If This Person Is Eligible for a Risk Evaluation, May the Person be Present at the ChildCare Operation While Children are in Care Pending the Outcome of the Risk Evaluation? Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Yes^^ Yes^^ Yes^^ Yes^^ Yes^^ Yes^^ Yes^^ Misdemeanor: Yes^^ Page 10 of 27 Case 1:18-cv-01458-PLF Document 31-2 Filed 07/09/18 Page 11 of 27 Offense Texas Penal Code Tampering with Governmental Record (felony or misdemeanor) 37.10 Fraudulent Filing of Financing Statement (felony or misdemeanor) 37.101 Impersonating a Public Servant (felony) 37.11 Record of a Fraudulent Court (felony or misdemeanor) 37.13 False Statement Regarding Child Custody Determination Made in Foreign Country (felony) 37.14 FELONY MISDEMEANOR (Includes All Levels Unless Otherwise Specified) (Includes All Levels Unless Otherwise Specified) Risk Evaluation Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Failure to Identify (misdemeanor) 38.02 N/A Resisting Arrest, Search, or Transportation (felony or misdemeanor) 38.03 Risk Evaluation Evading Arrest or Detention (felony or misdemeanor) 38.04 Risk Evaluation Hindering Apprehension or Prosecution (felony or misdemeanor) 38.05 Risk Evaluation if conviction was in the last 10 years Escape (felony or misdemeanor) 38.06 Risk Evaluation Revised January 2018  For Class A: Risk Evaluation if conviction was in the last 10 years  For Class B or C: No Action Required Risk Evaluation if conviction was in the last 10 years If This Person Is Eligible for a Risk Evaluation, May the Person be Present at the ChildCare Operation While Children are in Care Pending the Outcome of the Risk Evaluation? Yes^^ Yes^^ N/A Yes^^ Risk Evaluation if conviction was in the last 10 years Yes^^ N/A Yes^^  For Class A: Risk Evaluation if conviction was in the last 5 years  For Class B or C: No Action Required Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Yes^^ Felony: No Misdemeanor: Yes^^ Felony: No Misdemeanor: Yes^^ Yes^^ Felony: No Misdemeanor: Yes^^ Page 11 of 27 Case 1:18-cv-01458-PLF Document 31-2 Filed 07/09/18 Page 12 of 27 Offense Texas Penal Code Permitting or Facilitating Escape (felony or misdemeanor) 38.07 Implements for Escape (felony) 38.09 Bail Jumping and Failure to Appear (felony and misdemeanor) 38.10 Improper Contact with Victim (felony and misdemeanor) 38.111 Violation of Protective Order Issued on Basis of Sexual Assault or Abuse, Stalking, or Trafficking (misdemeanor) Unauthorized Absence from Community Corrections Facility, County Correctional Center, or Assignment Site (felony) 38.112 38.113 Falsely Holding Oneself Out as a Lawyer (felony) 38.122 Unauthorized Practice of Law (felony or misdemeanor) 38.123 Taking or Attempting to Take Weapon from Peace Officer, Federal Special Investigator, Employee or Official of Correctional Facility, Parole Officer, Community Supervision and Corrections Department Officer, or Commissioned Security Officer (felony) 38.14 Interference with Police Service Animals (felony or misdemeanor) Revised January 2018 38.151 FELONY MISDEMEANOR (Includes All Levels Unless Otherwise Specified) (Includes All Levels Unless Otherwise Specified) Risk Evaluation Risk Evaluation if conviction was in the last 10 years Risk Evaluation Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years N/A If This Person Is Eligible for a Risk Evaluation, May the Person be Present at the ChildCare Operation While Children are in Care Pending the Outcome of the Risk Evaluation? Felony: No Misdemeanor: Yes^^ N/A No No Action Required Yes^^ No Action Required Yes^^ Risk Evaluation†† No No Action Required^ Yes^^ Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years N/A Yes^^ Risk Evaluation if conviction was in the last 10 years Yes^^ Risk Evaluation Risk Evaluation^ No Risk Evaluation  For Class A: Risk Evaluation if conviction was in the last 10 years  For Class B or C: No Action Required Felony: No Misdemeanor: Yes^^ Page 12 of 27 Case 1:18-cv-01458-PLF Document 31-2 Filed 07/09/18 Page 13 of 27 Offense Texas Penal Code FELONY MISDEMEANOR (Includes All Levels Unless Otherwise Specified) (Includes All Levels Unless Otherwise Specified) If This Person Is Eligible for a Risk Evaluation, May the Person be Present at the ChildCare Operation While Children are in Care Pending the Outcome of the Risk Evaluation? Interference with Radio Frequency Licensed to Government Entity (felony or misdemeanor) 38.152 Risk Evaluation if conviction was in the last 10 years No Action Required Yes^^ Failure to Stop or Report Aggravated Sexual Assault of Child (misdemeanor) 38.17 N/A Risk Evaluation No Failure to Report Felony (misdemeanor) 38.171 N/A Risk Evaluation if conviction was in the last 10 years Yes^^ Abuse of Official Capacity (felony or misdemeanor) 39.02 Risk Evaluation if conviction was in the last 10 years No Action Required Yes^^ Official Oppression (felony or misdemeanor) 39.03 Risk Evaluation Risk Evaluation No Violations of the Civil Rights of Person in Custody; Improper Sexual Activity with Person in Custody (felony or misdemeanor) 39.04 Risk Evaluation Risk Evaluation No Failure to Report Death of Prisoner (misdemeanor) 39.05 N/A Risk Evaluation if conviction was in the last 10 years Yes^^ Misuse of Official Information (felony or misdemeanor) 39.06 Risk Evaluation if conviction was in the last 10 years No Action Required Yes^^ Revised January 2018 Page 13 of 27 Case 1:18-cv-01458-PLF Document 31-2 Filed 07/09/18 Page 14 of 27 Texas Penal Code, Title 9, Disorderly Conduct and Related Offenses Offense Texas Penal Code FELONY MISDEMEANOR (Includes All Levels Unless Otherwise Specified) (Includes All Levels Unless Otherwise Specified) If This Person Is Eligible for a Risk Evaluation, May the Person be Present at the ChildCare Operation While Children are in Care Pending the Outcome of the Risk Evaluation? Harassment (misdemeanor) 42.07 N/A Risk Evaluation†† No Stalking (felony) 42.072 Absolute Bar N/A N/A Abuse of Corpse (felony or misdemeanor) 42.08 Risk Evaluation Cruelty to Livestock Animals (felony or misdemeanor) 42.09 Risk Evaluation Attack on Assistance Animal (felony or misdemeanor) 42.091 Risk Evaluation Cruelty to Nonlivestock Animals (felony or misdemeanor) 42.092 Risk Evaluation Dog Fighting (felony or misdemeanor) 42.10 Risk Evaluation Cockfighting (felony or misdemeanor) 42.105 Risk Evaluation Prostitution (felony or misdemeanor) 43.02 Absolute Bar Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in last 10 years No No No No No No Felony: N/A Risk Evaluation Misdemeanor: No Promotion of Prostitution (felony or misdemeanor) 43.03 Absolute Bar Risk Evaluation No Aggravated Promotion of Prostitution (felony) 43.04 Absolute Bar N/A N/A Revised January 2018 Page 14 of 27 Case 1:18-cv-01458-PLF Document 31-2 Filed 07/09/18 Page 15 of 27 Offense Texas Penal Code FELONY MISDEMEANOR (Includes All Levels Unless Otherwise Specified) (Includes All Levels Unless Otherwise Specified) If This Person Is Eligible for a Risk Evaluation, May the Person be Present at the ChildCare Operation While Children are in Care Pending the Outcome of the Risk Evaluation? Compelling Prostitution (felony) 43.05 Absolute Bar N/A N/A Obscene Display or Distribution (misdemeanor) 43.22 N/A Risk Evaluation No Obscenity (felony or misdemeanor) 43.23 Absolute Bar Risk Evaluation Felony: N/A Misdemeanor: No Felony: N/A Sale, Distribution, or Display of Harmful Material to Minor (felony or misdemeanor) 43.24 Sexual Performance by a Child (felony) 43.25 Absolute Bar† N/A N/A Employment Harmful to Children (felony) 43.251 Absolute Bar† N/A N/A Possession or Promotion of Child Pornography (felony) 43.26 Absolute Bar† N/A N/A Electronic Transmission of Certain Visual Material Depicting Minor (misdemeanor) 43.261 N/A Risk Evaluation No Possession or Promotion of Lewd Visual Material Depicting Child (felony) 43.262 Risk Evaluation N/A No Revised January 2018 Absolute Bar Risk Evaluation Misdemeanor: No Page 15 of 27 Case 1:18-cv-01458-PLF Document 31-2 Filed 07/09/18 Page 16 of 27 Texas Penal Code, Title 10, Offenses Against Public Health, Safety, and Morals Offense Texas Penal Code FELONY MISDEMEANOR (Includes All Levels Unless Otherwise Specified) (Includes All Levels Unless Otherwise Specified) If This Person Is Eligible for a Risk Evaluation, May the Person be Present at the ChildCare Operation While Children are in Care Pending the Outcome of the Risk Evaluation? Hoax Bombs (misdemeanor) 46.08 N/A Risk Evaluation No Making a Firearm Accessible to a Child (misdemeanor) 46.13 N/A Risk Evaluation if conviction was in the last 10 years Yes^^ Firearm Smuggling (felony) 46.14 Risk Evaluation N/A No Prohibition of the Purchase and Sale of Human Organs (misdemeanor) 48.02 N/A Risk Evaluation No Prohibition on Purchase and Sale of Human Fetal Tissue (felony) 48.03 Risk Evaluation Risk Evaluation^ No Public Intoxication (misdemeanor) 49.02 N/A Possession of Alcoholic Beverage in Motor Vehicle (misdemeanor) 49.031 N/A Driving While Intoxicated (felony or misdemeanor) 49.04 Driving While Intoxicated with Child Passenger (felony) 49.045 Flying While Intoxicated (felony or misdemeanor) 49.05 Boating While Intoxicated (felony or misdemeanor) 49.06 Revised January 2018 Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 5 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years^ Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Yes^^ Yes^^ Felony: No Misdemeanor: Yes^^ No Felony: No Misdemeanor: Yes^^ Felony: No Misdemeanor: Yes^^ Page 16 of 27 Case 1:18-cv-01458-PLF Document 31-2 Filed 07/09/18 Page 17 of 27 If This Person Is Eligible for a Risk Evaluation, May the Person be Present at the ChildCare Operation While Children are in Care Pending the Outcome of the Risk Evaluation? Felony: No FELONY MISDEMEANOR (Includes All Levels Unless Otherwise Specified) (Includes All Levels Unless Otherwise Specified) Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years 49.07 Absolute Bar† N/A N/A 49.08 Absolute Bar† N/A N/A Offense Texas Penal Code Assembling or Operating an Amusement Ride While Intoxicated (felony or misdemeanor) 49.065 Intoxication Assault (felony) Intoxication Manslaughter (felony) Misdemeanor: Yes^^ Texas Penal Code, Title 11, Organized Crime FELONY MISDEMEANOR (Includes All Levels Unless Otherwise Specified) (Includes All Levels Unless Otherwise Specified) 71.02 Risk Evaluation Risk Evaluation No 71.021 N/A Risk Evaluation No 71.022 Risk Evaluation N/A No 71.023 Risk Evaluation N/A No Offense Texas Penal Code Engaging in Organized Criminal Activity (felony or misdemeanor) Violation of Court Order Enjoining Organized Criminal Activity (misdemeanor) Coercing, Inducing, or Soliciting Membership in a Criminal Street Gang (felony) Directing Activities of Certain Criminal Street Gangs (felony) Revised January 2018 If This Person Is Eligible for a Risk Evaluation, May the Person be Present at the ChildCare Operation While Children are in Care Pending the Outcome of the Risk Evaluation? Page 17 of 27 Case 1:18-cv-01458-PLF Document 31-2 Filed 07/09/18 Page 18 of 27 Texas Education Code Chapter 37 Discipline; Law and Order Offense Personal Hazing Offense (felony or misdemeanor) or Hazing (felony or misdemeanor)* Education Code 37.152 FELONY MISDEMEANOR (Includes All Levels Unless Otherwise Specified) (Includes All Levels Unless Otherwise Specified) Risk Evaluation†† Risk Evaluation if conviction was in the last 10 years If This Person Is Eligible for a Risk Evaluation, May the Person be Present at the ChildCare Operation While Children are in Care Pending the Outcome of the Risk Evaluation? No Texas Family Code Chapter 107 Special Appointments and Social Studies Chapter 156 Modification Chapter 162 Adoption Chapter 261 Investigation of Report of Child Abuse or Neglect Chapter 262 Procedures in Suit by Governmental Entity to Protect Health and Safety of Child If This Person Is Eligible for a Risk Evaluation, May the Person be Present at the ChildCare Operation While Children are in Care Pending the Outcome of the Risk Evaluation? FELONY MISDEMEANOR Family Code (Includes All Levels Unless Otherwise Specified) (Includes All Levels Unless Otherwise Specified) 107.05145 N/A Risk Evaluation No Modification of order on conviction for Child Abuse (misdemeanor) 156.104 N/A Risk Evaluation No Modification of order on conviction for Family Violence (misdemeanor) 156.1045 N/A Risk Evaluation No Placement by Unauthorized Person (misdemeanor) 162.025 N/A Risk Evaluation No General Penalty: Violating the Interstate Compact on the Placement of children (misdemeanor) 162.107 N/A Risk Evaluation No Offense Disclosing confidential information obtained from DFPS social study (misdemeanor) Revised January 2018 Page 18 of 27 Case 1:18-cv-01458-PLF Document 31-2 Filed 07/09/18 Page 19 of 27 If This Person Is Eligible for a Risk Evaluation, May the Person be Present at the ChildCare Operation While Children are in Care Pending the Outcome of the Risk Evaluation? FELONY MISDEMEANOR Family Code (Includes All Levels Unless Otherwise Specified) (Includes All Levels Unless Otherwise Specified) Prohibited Acts: Criminal Penalties (felony or misdemeanor) 162.421 Risk Evaluation Risk Evaluation No Making a False Report of Abuse or Neglect (felony) 261.107 Risk Evaluation Risk Evaluation^ Yes^^ Failure to Report; Penalty (felony or misdemeanor) 261.109 Absolute Bar Risk Evaluation Conduct of Investigation (misdemeanor) 261.302 N/A Risk Evaluation No Interference with Investigation; Criminal Penalty (misdemeanor) 261.3032 N/A Risk Evaluation No Removal of Alleged Perpetrator; Offense (felony or misdemeanor) 262.1015 Absolute Bar Risk Evaluation Offense Revised January 2018 Felony: N/A Misdemeanor: No Felony: N/A Misdemeanor: No Page 19 of 27 Case 1:18-cv-01458-PLF Document 31-2 Filed 07/09/18 Page 20 of 27 Texas Health and Safety Code Chapter 81 Communicable Diseases Chapter 161 Public Health Provisions Chapter 260 Boarding Home Facilities Chapter 464 Facilities Treating Alcoholics or Drug-Dependent Persons Chapter 481 Texas Controlled Substances Act Chapter 482 Simulated Controlled Substances Chapter 483 Dangerous Drugs Chapter 485 Abusable Volatile Chemicals Chapter 555 State Supported Living Centers If This Person Is Eligible for a Risk Evaluation, May the Person be Present at a ChildCare Operation While Children are in Care Pending the Outcome of the Risk Evaluation? FELONY MISDEMEANOR (Includes All Levels Unless Otherwise Specified) (Includes All Levels Unless Otherwise Specified) 81.212 N/A Risk Evaluation No 161.132 N/A Risk Evaluation No Failure to Report: Criminal Penalty (misdemeanor) 260A.012 N/A Risk Evaluation No Bad Faith, Malicious or Reckless Reporting: Criminal Penalty (misdemeanor) 260A.013 N/A Risk Evaluation Yes^^ Criminal Penalty (misdemeanor) 464.016 N/A Risk Evaluation No Manufacture or Delivery of Controlled Substances (felony) Manufacture or Delivery of Substance in Penalty Group 1-A (felony) 481.1121 Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years^ Risk Evaluation if conviction was in the last 10 years^ Felony: No 481.112 Offense Evading or Resisting Apprehension or Transport by Person Subject to Custody or Temporary Detention (misdemeanor) Reports of Abuse and Neglect or of Illegal, Unprofessional or Unethical Conduct (misdemeanor) Revised January 2018 Health and Safety Code Misdemeanor: Yes^^ Felony: No Misdemeanor: Yes^^ Page 20 of 27 Case 1:18-cv-01458-PLF Document 31-2 Filed 07/09/18 Page 21 of 27 Offense Health and Safety Code Manufacture or Delivery of Substance in Penalty Group 2 or 2-A (felony) 481.113 Manufacture or Delivery of Substance in Penalty Group 3 or 4 (felony) 481.114 Possession of Substance in Penalty Group 1 (felony) 481.115 Possession of Substance in Penalty Group 1-A (felony) 481.1151 Possession of Substance in Penalty Group 2 (felony) 481.116 Possession of Substance in Penalty Group 2-A (felony or misdemeanor) 481.1161 Possession of Substance in Penalty Group 3 (felony or misdemeanor) 481.117 Possession of Substance in Penalty Group 4 (felony or misdemeanor) 481.118 Manufacture, Delivery, or Possession of Miscellaneous Substances (felony or misdemeanor) 481.119 Delivery of Marijuana (felony or misdemeanor) 481.120 Possession of Marijuana (felony or misdemeanor) 481.121 Delivery of Controlled Substance or Marijuana to Child (felony) 481.122 Revised January 2018 FELONY MISDEMEANOR (Includes All Levels Unless Otherwise Specified) (Includes All Levels Unless Otherwise Specified) Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years^ Risk Evaluation if conviction was in the last 10 years^ Risk Evaluation if conviction was in the last 10 years^ Risk Evaluation if conviction was in the last 10 years^ Risk Evaluation if conviction was in the last 10 years^ Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years N/A If This Person Is Eligible for a Risk Evaluation, May the Person be Present at a ChildCare Operation While Children are in Care Pending the Outcome of the Risk Evaluation? Felony: No Misdemeanor: Yes^^ Felony: No Misdemeanor: Yes^^ Felony: No Misdemeanor: Yes^^ Felony: No Misdemeanor: Yes^^ Felony: No Misdemeanor: Yes^^ Felony: No Misdemeanor: Yes^^ Felony: No Misdemeanor: Yes^^ Felony: No Misdemeanor: Yes^^ Felony: No Misdemeanor: Yes^^ Felony: No Misdemeanor: Yes^^ Felony: No Misdemeanor: Yes^^ No Page 21 of 27 Case 1:18-cv-01458-PLF Document 31-2 Filed 07/09/18 Page 22 of 27 Offense Possession or Transport of Certain Chemicals with Intent to Manufacture Controlled Substance (felony or misdemeanor) Possession or Transport of Anhydrous Ammonia: Use of or Tampering with Equipment (felony) Health and Safety Code 481.124 481.1245 Possession or Delivery of Drug Paraphernalia (felony or misdemeanor) 481.125 Illegal Barter, Expenditure, or Investment (felony) 481.126 Unauthorized Disclosure of Information (felony) 481.127 Commercial Matters (felony) 481.128 Diversion of Controlled Substance by Restraints, Dispensers, and Certain Other Persons (felony) 481.1285 Fraud (felony or misdemeanor) 481.129 FELONY MISDEMEANOR (Includes All Levels Unless Otherwise Specified) (Includes All Levels Unless Otherwise Specified) Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Misdemeanor: Yes^^ N/A No Risk Evaluation if conviction was in the last 10 years Felony: No Misdemeanor: Yes^^ N/A No Risk Evaluation if conviction was in the last 10 years^ Risk Evaluation if conviction was in the last 10 years^ Risk Evaluation if conviction was in the last 10 years^ Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years^ Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years^ Felony: No Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Diversion of Controlled Substance Property or Plant (felony) 481.131 Falsification of Drug Test Results (misdemeanor) 481.133 N/A Unlawful Transfer or Receipt of Chemical Precursor (felony) 481.136 Risk Evaluation if conviction was in the last 10 years Revised January 2018 If This Person Is Eligible for a Risk Evaluation, May the Person be Present at a ChildCare Operation While Children are in Care Pending the Outcome of the Risk Evaluation? Felony: No Misdemeanor: Yes^^ Felony: No Misdemeanor: Yes^^ Felony: No Misdemeanor: Yes^^ Felony: No Misdemeanor: Yes^^ Felony: No Misdemeanor: Yes^^ Yes^^ Felony: No Misdemeanor: Yes^^ Page 22 of 27 Case 1:18-cv-01458-PLF Document 31-2 Filed 07/09/18 Page 23 of 27 Offense Health and Safety Code Transfer of Precursor Substance for Unlawful Manufacture (felony) 481.137 Unlawful Transfer or Receipt of Chemical Laboratory Apparatus (felony) 481.138 Transfer of Chemical Laboratory Apparatus for Unlawful Manufacture (felony) Unlawful Delivery or Manufacture with Intent to Deliver; Criminal Penalty (felony) 481.139 482.002 Possession of Dangerous Drug (misdemeanor) 483.041 Delivery or Offer of Delivery of Dangerous Drug (felony) 483.042 Manufacture of Dangerous Drug (felony) 483.043 FELONY MISDEMEANOR (Includes All Levels Unless Otherwise Specified) (Includes All Levels Unless Otherwise Specified) Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years N/A Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Forging or altering prescription (misdemeanor) 483.045 N/A Possession and Use (misdemeanor) 483.031 N/A Delivery to a Minor (felony or misdemeanor) 485.032 Risk Evaluation if conviction was in the last 10 years Inhalant Paraphernalia (misdemeanor) 485.033 Revised January 2018 N/A If This Person Is Eligible for a Risk Evaluation, May the Person be Present at a ChildCare Operation While Children are in Care Pending the Outcome of the Risk Evaluation? N/A No Risk Evaluation if conviction was in the last 10 years^ Felony: No Misdemeanor: Yes^^ N/A No Risk Evaluation if conviction was in the last 10 years^ Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years^ Risk Evaluation if conviction was in the last 10 years^ Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years Felony: No Misdemeanor: Yes^^ Yes^^ Felony: No Misdemeanor: Yes^^ Felony: No Misdemeanor: Yes^^ Yes^^ Yes^^ Felony: No Misdemeanor: Yes^^ Yes^^ Page 23 of 27 Case 1:18-cv-01458-PLF Document 31-2 Filed 07/09/18 Page 24 of 27 Offense Health and Safety Code Hampering, Obstructing, Tampering with or Destroying Electronic Monitoring Device, Tape or Recording from Resident's Room at State Supported Living Center (misdemeanor) 555.162 FELONY MISDEMEANOR (Includes All Levels Unless Otherwise Specified) (Includes All Levels Unless Otherwise Specified) N/A Risk Evaluation If This Person Is Eligible for a Risk Evaluation, May the Person be Present at a ChildCare Operation While Children are in Care Pending the Outcome of the Risk Evaluation? No Texas Human Resources Code Chapter 40 Department of Family and Protective Services Chapter 42 Regulation of Certain Facilities, Homes and Agencies that Provide Childcare Services Chapter 43 Regulation of Childcare and Child Placing Agency Administrators Chapter 48 Investigations and Protective Services For Elderly and Disabled Persons If This Person Is Eligible for a Risk Evaluation, May the Person be Present at a ChildCare Operation While Children are in Care Pending the Outcome of the Risk Evaluation? Human Resource Code FELONY MISDEMEANOR (Includes All Levels Unless Otherwise Specified) (Includes All Levels Unless Otherwise Specified) Confidentiality of Information (misdemeanor) 40.005 N/A Risk Evaluation Yes^^ False Report: Criminal Penalty (felony or misdemeanor) 42.0447 Risk Evaluation Risk Evaluation Yes^^ Required Background and Criminal History Checks: Criminal Penalties (misdemeanor) 42.056 N/A Risk Evaluation No Administering Medication (misdemeanor) 42.065 N/A Risk Evaluation Yes^^ Criminal Penalties (misdemeanor) 42.076 N/A Risk Evaluation Yes^^ Offense Revised January 2018 Page 24 of 27 Case 1:18-cv-01458-PLF Document 31-2 Filed 07/09/18 Page 25 of 27 If This Person Is Eligible for a Risk Evaluation, May the Person be Present at a ChildCare Operation While Children are in Care Pending the Outcome of the Risk Evaluation? Human Resource Code FELONY MISDEMEANOR (Includes All Levels Unless Otherwise Specified) (Includes All Levels Unless Otherwise Specified) Criminal Penalty for Operating Daycare Center without Qualified Director (misdemeanor) 42.0761 N/A Risk Evaluation Yes^^ Penalty (misdemeanor) 43.012 N/A Risk Evaluation Yes^^ Failure to Report; Penalty (felony or misdemeanor) 48.052 Absolute Bar Risk Evaluation No False Report; Penalty (misdemeanor) 48.053 N/A Risk Evaluation Yes^^ Offense Texas Alcoholic Beverage Code Chapter 106 Provisions Related to Age Offense Purchase of Alcohol for a Minor; Furnishing Alcohol to a Minor (misdemeanor) Prohibited Activities by Persons Younger than 18 (misdemeanor) or Inducing a Minor to Dance with Another in Exchange for a Benefit by Alcoholic Beverage Permittee (misdemeanor)* Texas Alcoholic Beverage Code If This Person Is Eligible for a Risk Evaluation, May the Person be Present at a ChildCare Operation While Children are in Care Pending the Outcome of the Risk Evaluation? FELONY MISDEMEANOR (Includes All Levels Unless Otherwise Specified) (Includes All Levels Unless Otherwise Specified) 106.06 N/A Risk Evaluation if conviction was in the last 10 years Yes^^ 106.15 N/A Risk Evaluation if conviction was in the last 10 years Yes^^ Texas Business and Commerce Code Chapter 110 Computer Technicians Required to Report Child Pornography Revised January 2018 Page 25 of 27 Case 1:18-cv-01458-PLF Document 31-2 Filed 07/09/18 Page 26 of 27 Offense Failure to Report Child Pornography by Computer Technician (misdemeanor) Texas Business and Commerce Code 110.003 FELONY MISDEMEANOR (Includes All Levels Unless Otherwise Specified) (Includes All Levels Unless Otherwise Specified) N/A Risk Evaluation If This Person Is Eligible for a Risk Evaluation, May the Person be Present at a ChildCare Operation While Children are in Care Pending the Outcome of the Risk Evaluation? No Texas Code of Criminal Procedure Chapter 62 Sex Offender Registration Program Offense Failure to Comply with Sex Offender Registration Requirements (felony) Texas Code of Criminal Procedure FELONY MISDEMEANOR (Includes All Levels Unless Otherwise Specified) (Includes All Levels Unless Otherwise Specified) 62.102 Risk Evaluation Risk Evaluation^ If This Person Is Eligible for a Risk Evaluation, May the Person be Present at a ChildCare Operation While Children are in Care Pending the Outcome of the Risk Evaluation? No Texas Civil Practice and Remedies Code Chapter 81 Sexual Exploitation by Mental Health Services Provider Offense Failure to Report Possible Sexual Exploitation of Mental Health Patient (misdemeanor) Revised January 2018 Texas Civil Practice and Remedies Code 81.006 FELONY MISDEMEANOR (Includes All Levels Unless Otherwise Specified) (Includes All Levels Unless Otherwise Specified) N/A Risk Evaluation if conviction was in the last 10 years If This Person Is Eligible for a Risk Evaluation, May the Person be Present at a ChildCare Operation While Children are in Care Pending the Outcome of the Risk Evaluation? Yes^^ Page 26 of 27 Case 1:18-cv-01458-PLF Document 31-2 Filed 07/09/18 Page 27 of 27 Any other Title under the Texas Penal Code or any other Texas Code not specifically mentioned above Offense Texas Penal Code or any other various Texas Codes Varies – Any offense DFPS determines is a financial crime Varies Varies Varies FELONY MISDEMEANOR (Includes All Levels Unless Otherwise Specified) (Includes All Levels Unless Otherwise Specified) Risk Evaluation if conviction was in the last 10 years Risk Evaluation if conviction was in the last 10 years If This Person Is Eligible for a Risk Evaluation, May the Person be Present at a ChildCare Operation While Children are in Care Pending the Outcome of the Risk Evaluation? No Action Required Yes^^ No Action Required No * Indicates an offense that has been renamed with the Regular Session of the 84 th Legislature (2015). Both current and previous offense names have been provided on the chart. † These offenses result in a bar based on federal requirements set forth in 42 USC 9858f.658H(c)(1). †† These convictions result in an absolute bar if it is determined that the offense was a violent misdemeanor and committed by an adult offender against a child victim, per federal requirements set forth in 42 USC 9858f.658H(c)(1)(E). ^ While these offenses are not normally prosecuted as misdemeanors, action is described should the offense be reduced to a misdemeanor per TPC 12.44(b). ^^ Even though persons may be present at a child-care operation pending the outcome of the risk evaluation, DFPS may place conditions or restrictions on a person's duties in order for the person to be present at the operation. For example, a person convicted of Driving While Intoxicated may be permitted to be employed but will not be permitted to transport children in the care of the operation. Revised January 2018 Page 27 of 27 Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 1 of 66 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 JULY 6, 2018 ENFORCEMENT ("ICE"); U.S. DEPARTMENT ) 12:00 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 STATUS CONFERENCE Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 2 of 66 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. SCOTT G. STEWART, 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 Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 3 of 66 1 SAN DIEGO, CALIFORNIA - FRIDAY, JULY 6, 2018 - 12:00 P.M. 2 * 3 THE CLERK: * * CALLING NO. 9 ON CALENDAR, CASE 4 NO. 18CV0428, MS. L. VERSUS U.S. IMMIGRATION AND CUSTOMS 5 ENFORCEMENT; ON FOR STATUS HEARING. 6 7 8 9 10 THE COURT: GOOD AFTERNOON. YOUR HONOR, SARAH FABIAN WITH THE MS. FABIAN: DEPARTMENT OF JUSTICE ON BEHALF OF THE DEFENDANTS. I HAVE WITH ME TODAY SCOTT STEWART AS WELL, ALSO WITH THE DEPARTMENT OF JUSTICE. 12 THE COURT: 13 MR. GALERNT: 14 GELERNT FOR ACLU FOR PLAINTIFFS. 16 MAY I HAVE APPEARANCES, PLEASE? 11 15 3 YES. THANK YOU. GOOD AFTERNOON. GOOD AFTERNOON, YOUR HONOR. MR. BALAKRISHNAN: LEE GOOD AFTERNOON, YOUR HONOR. ANAND BALAKRISHNAN FROM THE ACLU FOR PLAINTIFFS. GOOD AFTERNOON, YOUR HONOR. BARDIS 17 MR. VAKILI: 18 VAKILI FROM THE ACLU SAN DIEGO. 19 THE COURT: 20 IT IS MY UNDERSTANDING THAT WE HAVE ABOUT 55 CALLERS THANK YOU. GOOD AFTERNOON, AND WELCOME. 21 ON THE LINE, MEDIA AND OTHERS. 22 COUNSEL TO SPEAK DIRECTLY INTO THE MICROPHONE SO THAT THEY CAN 23 HEAR CLEARLY. 24 25 AND SO AGAIN I WILL ASK A GENTLE REMINDER TO ALL WHO ARE PARTICIPATING TELEPHONICALLY THAT THERE IS NOT ANY RECORDING OR BROADCASTING Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 4 of 66 1 4 PERMITTED UNDER CIVIL LOCAL RULE 83.7C. 2 I WOULD LIKE TO GET RIGHT TO THE ISSUES. 3 I RECEIVED THE GOVERNMENT'S NOTICE REGARDING 4 COMPLIANCE AND REQUEST FOR CLARIFICATION AND/OR RELIEF. I DID 5 NOT GET IT UNTIL THIS MORNING, MID WAY THROUGH MY MORNING 6 CALENDAR, AND I JUST FINISHED MY MORNING CALENDAR TEN MINUTES 7 AGO. I DID, DURING THE RECESS, READ IT, BUT IT WAS A QUICK 8 READ. AND THERE ARE SOME SIGNIFICANT ISSUES THAT HAVE BEEN 9 RAISED. SO I WOULD LIKE TO START THERE. IF WE CAN FOCUS ON THE REUNIFICATION ISSUE AND, 10 11 MS. FABIAN, IF YOU WANT TO GIVE A STATUS AS TO WHERE WE ARE, 12 THE COMPLIANCE. 13 COMPLETING REUNIFICATION. AND THEN WHAT THE ISSUES ARE WITH RESPECT TO AS I UNDERSTAND THE BRIEFING, THE GOVERNMENT HAS 14 15 DEVOTED ENORMOUS RESOURCES IN AN ATTEMPT TO COMPLY, TO 16 REUNIFY, AND TO MAKE THIS HAPPEN. 17 RAISING ISSUES THAT COULD AFFECT THE TIMING OF REUNIFICATION, 18 PARTICULARLY WITH REGARD TO THE YOUNGER CHILDREN, FIVE AND 19 UNDER. 20 AM I CORRECT? 21 MS. FABIAN: BUT IN GOOD FAITH IS THAT'S CORRECT, YOUR HONOR. I THINK 22 WHAT WE WANT TO DO IS TO -- WELL, FIRST I DO WANT TO SAY I 23 AGREE WITH YOUR HONOR'S ASSESSMENT. 24 SUBMITTED -- DEVOTED SIGNIFICANT RESOURCES TO THIS, HHS AND 25 ICE ARE WORKING TOGETHER. THE GOVERNMENT HAS THEY HAVE FOLKS WORKING IN A Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 5 of 66 5 1 COMMAND CENTER WORKING TOGETHER. 2 OUT INTO THE FIELD ON THE GROUND WORKING TOGETHER. 3 ALL IN OUR BRIEFING. 4 EFFORT ON THE PART OF THE GOVERNMENT TO GET THE RESOURCES IN 5 PLACE AND ON THE GROUND TO MAKE REUNIFICATION HAPPEN IN 6 ACCORDANCE WITH THE COURT'S ORDER. 7 THEY HAVE FOLKS OUT DEPLOYED THAT IS BUT THERE REALLY HAS BEEN A MASSIVE THERE HAS ALSO BEEN GUIDANCE OUT TO THE FIELD TO 8 ENSURE THAT FOR FOLKS COMING IN AND ENTERING THAT ANY 9 SEPARATIONS THAT MIGHT OCCUR WOULD OCCUR IN ACCORDANCE WITH 10 11 THE COURT'S ORDER AS WELL. SO WITH REGARD TO THE COMMUNICATION ISSUE, I KNOW 12 THAT WAS ONE OF -- A PART OF THE COURT'S ORDER. 13 UNDERSTANDING THAT COMMUNICATION HAS BEEN FACILITATED. 14 IT IS OUR THE WAY IT WORKS IS IT IS RECORDED IN A WAY THAT I 15 CAN'T PULL IT IN AN AGGREGATE WAY TO SORT OF SHOW THE COURT 16 THAT IT HAS BEEN DONE IN EACH CASE. 17 ENSURE, AND THAT IS IN ONE OF OUR DECLARATIONS, THAT FOR THE 18 UNDER-FIVE GROUP COMMUNICATION HAS BEEN FACILITATED IN EACH OF 19 THOSE FAMILY GROUPS. 20 BEEN FACILITATED FOR THE REMAINDER OF THE CLASS. 21 SO WE DID REVIEW TO AND IT IS OUR BELIEF THAT IT HAS ALSO AND WHAT WE WOULD ASK THAT IF FOLKS ARE AWARE OF 22 SITUATIONS WHERE IT HASN'T, WE CAN CHECK THAT ON AN 23 INDIVIDUALIZED BASIS. 24 FACILITATE THAT COMMUNICATION IMMEDIATELY. 25 DOES BELIEVE THAT WE HAVE DONE THAT. AND WE ARE HAPPY TO DO SO AND BUT THE GOVERNMENT Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 6 of 66 1 6 AND IMPORTANT FOR THAT IS THAT O.R.R. FIELD STAFF 2 HAVE BEEN REALLY PUT IN TOUCH WITH THE FIELD OFFICE FOLKS FOR 3 ICE WHERE THE PARENTS WOULD BE HELD SO THAT THEY ARE SORT OF 4 DIRECTLY COMMUNICATING TO FACILITATE THAT COMMUNICATION. 5 THERE HAS ALSO BEEN -- I BELIEVE IT IS TABLETS OF 6 SOME SORT THAT HAVE BEEN DEPLOYED OUT INTO THE ICE FACILITIES 7 THAT MAKE VIDEO CONVERSATIONS POSSIBLE. 8 9 THE COURT: SO IT IS YOUR UNDERSTANDING THAT OF THESE APPROXIMATELY 3,000 WHERE REUNIFICATION IS IN PROGRESS 10 THAT YOU HAVE BEEN ABLE TO PUT THE PARENTS IN TOUCH WITH THOSE 11 MINOR CHILDREN TO COMMUNICATE, AT LEAST TELEPHONICALLY, WITHIN 12 THIS TEN-DAY TIME FRAME. 13 MS. FABIAN: I MIGHT WANT TO QUIBBLE WITH YOU A 14 LITTLE BIT ON THE NUMBER, BUT, YES, IT IS OUR UNDERSTANDING 15 THAT FOR THE CLASS MEMBERS THAT WE ARE AWARE OF THAT THOSE 16 HAVE BEEN PUT IN -- BEEN ABLE TO COMMUNICATE BETWEEN THE 17 PARENTS AND CHILDREN. 18 THE COURT: ALL RIGHT. AND BEFORE YOU CONTINUE WITH 19 THE STATUS I HAD A QUESTION ABOUT, FOR THE UNDER-FIVE GROUP, 20 DO YOU KNOW -- MY UNDERSTANDING IS THERE ARE FEWER THAN 100. 21 DO YOU KNOW HOW MANY HAVE ALREADY BEEN REUNITED, AND WHAT 22 THE -- HOW MANY WILL BE REUNITED BY JULY 10? 23 MS. FABIAN: WHAT I CAN SAY IS, YOUR HONOR, THAT -- 24 AND SOME OF THIS GETS TO SOME OF THE ISSUES THAT I WOULD LIKE 25 TO RAISE WITH THE COURT TODAY. Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 7 of 66 7 THERE ARE APPROXIMATELY 46 -- AND I AM GOING TO SAY 1 2 APPROXIMATELY BECAUSE THESE NUMBERS -- THE PROCESS THAT HHS 3 HAS UNDERGONE -- AND IT IS WHY I ALSO SORT OF QUIBBLE WITH THE 4 3,000 NUMBER. HHS HAS RECORDS IN THE FIRST INSTANCE -- HAS 5 6 IDENTIFIED INDIVIDUALS WHO HAVE BEEN SEPARATED, BUT THEY HAVE 7 ALSO MADE AN EFFORT TO GO OUT INTO THE FIELD AND TO SORT OF 8 LOOK AGAIN AT CHILDREN IN THEIR CUSTODY AND TO REALLY SEE IF 9 THERE ARE ANY INDICIA OF A SEPARATION, THEN TO SORT OF PULL 10 THEM INTO THE GROUP FOR FURTHER EVALUATION OF WHETHER THIS IS 11 A SITUATION THAT FALLS UNDER THE CLASS. SO THOSE NUMBERS -- FOLKS MIGHT SORT OF COME INTO 12 13 THE GROUP THAT IS BEING LOOKED AT AND GO BACK OUT AS IT IS 14 DETERMINED NO, ALTHOUGH THE CHILD MAY HAVE SAID HE OR SHE WAS 15 SEPARATED FROM THE PARENT BUT WHEN WE LOOKED AT IT IT LOOKS 16 LIKE THAT OCCURRED BEFORE THEY EVER ARRIVED IN THE UNITED 17 STATES. 18 SO THAT IS WHY WHEN I SAY THESE NUMBERS THEY ARE 19 SORT OF ALWAYS A LITTLE BIT IN FLUX UNTIL IN A GIVEN SITUATION 20 IT CAN BE FINALLY DETERMINED THAT WE HAVE A CLASS MEMBER AND 21 THE CHILD AND A REUNIFICATION. 22 SO IN THAT NUMBER OF FOLKS, THE UNDER-FIVE GROUP 23 THAT WE HAVE IDENTIFIED THERE IS -- APPROXIMATELY HALF OF THEM 24 ARE WHERE THE PARENT IS IN ICE CUSTODY AND THE CHILD IS IN 25 O.R.R. CUSTODY. FOR THOSE THE -- THAT REUNIFICATION PROCESS Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 8 of 66 1 2 8 IS EXPECTED TO OCCUR WITHIN THE TIME FRAME. THERE IS -- AND IF WE WANT TO MOVE INTO SOME OF THE 3 ISSUES WE WANT TO RAISE WITH THE COURT, THERE ARE THEN SOME 4 GROUPS FOR WHOM THE REUNIFICATION PROCESS IS MORE DIFFICULT. 5 AND ONE OF THOSE IS FOR INDIVIDUALS WHOSE PARENT HAS BEEN 6 RELEASED FROM ICE CUSTODY. 7 AND WE ARE STILL DRILLING DOWN ON SORT OF THE FURTHER DIVISION 8 OF THAT NUMBER. 9 IN THOSE CASES -- IN SOME CASES -- BUT FOR THOSE FOLKS IN SOME CASES IF WE ARE NOT, FOR 10 EXAMPLE, AWARE OF WHERE THE PARENT IS THERE -- I CAN'T COMMIT 11 TO SAYING THAT THAT REUNIFICATION WOULD BE ABLE TO OCCUR BY 12 THE DEADLINE. 13 PARENT AND NOT RECEIVED ANY RETURN CALL. 14 IF, FOR EXAMPLE, O.R.R. HAS REACHED OUT TO THE SO IN THOSE SITUATIONS I BELIEVE THERE IS MAYBE 15 20 PERCENT OF THAT NUMBER ARE FOLKS WHO WERE RELEASED FROM ICE 16 CUSTODY AND WE ARE STILL DETERMINING WHAT THE SITUATION IS 17 THERE AND WHETHER THOSE ARE SITUATIONS WHERE REUNIFICATION MAY 18 NOT BE ABLE TO OCCUR WITHIN THE TIME FRAME. 19 20 I THINK THAT SORT OF HIGHLIGHTS, REALLY, ONE OF THE MAIN ISSUES, UNLESS YOUR HONOR HAS OTHER SPECIFIC QUESTIONS. 21 THE COURT: 22 MS. FABIAN: NO. ONE OF THE BIG ISSUES THAT WE WANTED TO 23 BRING TO THE COURT'S ATTENTION TODAY, AND THAT IS THE PROCESS 24 FOR HHS TO REUNIFY MINORS. 25 COURT'S ORDER SEEMS TO BE CONSISTENT WITH O.R.R.'S IN GENERAL, I WOULD SAY THAT THE Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 9 of 66 1 9 REQUIREMENTS -- WITH O.R.R.'S OBLIGATIONS UNDER THE TVPRA. 2 THE COURT: 3 MS. FABIAN: YES. AND, HOWEVER, O.R.R. HAS DEVELOPED A 4 SIGNIFICANT NUMBER OF PROCESSES UNDER THE TVPRA THAT IT 5 BELIEVES ARE ESSENTIAL FOR FULFILLING ITS OBLIGATION THERE TO 6 ENSURE THE SAFETY OF MINORS WHEN THEY ARE RELEASED. 7 O.R.R. HAS MADE EFFORTS, HHS HAS MADE EFFORTS TO 8 STREAMLINE THAT PROCESS AS MUCH AS POSSIBLE IN LIGHT OF THE 9 TIMELINES CONTAINED IN THE COURT'S ORDER. BUT THERE IS 10 POTENTIALLY, OR SORT OF INHERENTLY, A TENSION ALWAYS -- AND I 11 HAVE SAID THIS IN OTHER CASES AS WELL, THERE IS ALWAYS GOING 12 TO BE A TENSION BETWEEN A FAST RELEASE AND A SAFE RELEASE. 13 AND IN THIS CASE THERE IS -- I THINK HHS IS ASKING 14 FOR SOME CLARIFICATION WITH REGARD TO THOSE PROCESSES THAT IT 15 FEELS ARE ESSENTIAL UNDER -- FOR FULFILLING ITS OBLIGATIONS 16 UNDER THE TVPRA AND THE DESIRE TO NOT MISS THE COURT'S 17 DEADLINES. 18 WHETHER COMMITTING -- OR COMPLETING THE SAFE PROCESSES UNDER 19 THE TVPRA THAT O.R.R. HAS DEVELOPED OVER THE YEARS THAT HAVE 20 REALLY COME FROM EXPERIENCE WITH RELEASING CHILDREN AND THEY 21 ARE -- I THINK IT IS MENTIONED IN OUR BRIEFING, IF NOT IT IS 22 SOMETHING I FOUND ELSEWHERE. 23 ISSUE AND ENCOURAGED O.R.R. TO ADD SOME PROCESSES TO THAT. 24 25 SPECIFICALLY, REALLY, ASKING THE COURT TO CLARIFY BUT CONGRESS HAS LOOKED AT THIS SO THESE PROCESSES HAVE BEEN DEVELOPED AND ARE WHAT HHS BELIEVE ARE VERY IMPORTANT TO FULFILL THAT OBLIGATION. Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 10 of 66 10 1 AND WOULD LIKE -- HHS WOULD LIKE SOME CLARIFICATION FROM THE 2 COURT ON WHETHER THAT PROCESS SHOULD CONTINUE IN PLACE, EVEN 3 WHERE IT MIGHT TAKE THEM PAST THE COURT'S 30-DAY DEADLINE; OR 4 WHETHER THE COURT WOULD LIKE TO SPEAK, OR INTENDS TO SPEAK, ON 5 HOW O.R.R. SHOULD TRUNCATE THAT PROCESS OR PERHAPS NOT FULFILL 6 WHAT IT BELIEVES ARE ALL OF ITS OBLIGATIONS UNDER THE TVPRA IN 7 ORDER TO COMPLY WITH THE COURT'S DEADLINES. 8 9 10 THE COURT: ON THAT, I HAVE A GENERAL OBSERVATION AND QUESTION, AND I WOULD BE PARTICULARLY INTERESTED IN MR. GELERNT'S RESPONSE. THE TVPRA, WHILE IT WAS DESIGNED TO FOCUS ON A 11 12 DIFFERENT GROUP OF CHILDREN, THE TRUE UNACCOMPANIED MINORS, 13 THAT HISTORICALLY THAT HAS BEEN OLDER CHILDREN SHOWING UP AT 14 THE BORDER ALONE, THE TVPRA WAS DESIGNED TO SPEAK TO THAT 15 GROUP; NOT SO MUCH TO THIS SITUATION WHERE CHILDREN SHOW UP 16 ACCOMPANIED WITH THEIR PARENT, AND THEN ARE SEPARATED AND GO 17 INTO A TVPRA PROCESS. THAT SAID, THE TVPRA IS A FEDERAL STATUTE THAT IS IN 18 19 PLACE. 20 AND CUSTODY OF SOMEONE, HISTORICALLY THAT WOULD BE A 21 NONPARENT, IN MANY CASES, AN AUNT, AN UNCLE, OR SOMEBODY LIKE 22 THAT. 23 THAT KIND OF SITUATION. 24 25 IT HAS PROCEDURES FOR RELEASING CHILDREN TO THE CARE AND THE TVPRA PROCESS BECOMES PARTICULARLY IMPORTANT IN THIS SITUATION IS DIFFERENT IN THAT IT INVOLVES SEPARATION, AND THE CLASS IS DEFINED TO INCLUDE PARENTS ONLY, Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 11 of 66 11 1 AND SO THE CONTEXT IS DIFFERENT. 2 IT HAS REUNIFICATION PROCEDURES THAT HHS HAS TO FOLLOW. 3 THE COURT CAN'T SIMPLY BRUSH IT ASIDE. 4 VERY COMPLICATED, IMPORTANT ISSUES THAT ARE NOT BRIEFED AND 5 HAVE JUST BEEN RAISED THIS MORNING. AND IT RAISES A NUMBER OF SO PERHAPS I CAN INQUIRE OF MR. GELERNT, IF YOU 6 7 BUT THE TVPRA IS IN PLACE, WOULD SPEAK TO THAT ISSUE. 8 I GUESS THE QUESTION IS -- 9 YOU COULD SHARE THE PODIUM WITH MS. FABIAN. I GUESS THE QUESTION IS WHETHER IN THE NEED TO BE 10 11 URGENT IN REUNITING AND SAFE IN REUNITING CHILDREN, WHAT DO WE 12 DO ABOUT THE TVPRA REQUIREMENTS THAT MAY ENCUMBER THE 13 GOVERNMENT FROM REUNITING WITHIN THIS 14-DAY TIME FRAME? 14 MS. FABIAN: YOUR HONOR, I ASKED MR. GELERNT BECAUSE 15 I WOULD LIKE -- I THINK YOU WILL WANT HIM TO RESPOND TO THIS 16 POINT. I WANT TO POINT -- AND I SORT OF GLOSSED OVER THIS 17 18 POINT. 19 -- OR THE CLASS DEFINITION DOES REFERENCE PARENTS. 20 THINK THAT IS PART OF WHAT WE BRIEFED AND PART OF THE PROCESS. 21 AND THAT MADE -- THE FIRST STEP IS, OF COURSE, CONFIRMING THAT 22 WHAT WE ARE DEALING WITH IS A PARENT AND CHILD. 23 BUT YOUR HONOR POINTS OUT THAT THE CLASS MEMBER DOES AND I AND SO WITHIN OUR REQUEST FOR CLARIFICATION THE 24 FIRST STEP IS THIS -- WHAT WE HAVE BEEN DOING IS A DNA 25 ANALYSIS, AND THAT IS TO CONFIRM -- FOR THE PROCESS OF Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 12 of 66 12 1 CONFIRMING PARENTAGE. 2 DON'T WANT TO SAY IN ALL SITUATIONS BUT IN MANY SITUATIONS 3 THAT PROCESS WILL BE ABLE TO BE COMPLETED -- IF WE HAVE A 4 PARENT IN CUSTODY AND THE CHILD IN CUSTODY THAT THE PROCESS OF 5 DNA ANALYSIS CAN BE COMPLETED TO ALLOW THE PROCESS TO MOVE 6 FORWARD IN THE TIMELINES. 7 SITUATIONS, FOR EXAMPLE IN A NONBIOLOGICAL PARENT SITUATION, 8 WHERE THE -- WHERE THERE MAY NEED TO BE ADDITIONAL REVIEW OF 9 PAPERWORK, PERHAPS COMMUNICATIONS WITH THE CONSULATES. 10 AND IN MANY SITUATIONS I BELIEVE -- I BUT THERE IS -- THERE ARE SO EVEN CONFIRMING THAT FIRST STEP OF PARENTAGE -- 11 AND MAYBE I SHOULD HAVE SORT OF TEED THIS UP AT THE BEGINNING. 12 BUT THAT IS ALSO PART OF THIS PROCESS THAT O.R.R. HAS 13 IMPLEMENTED HERE. 14 CLARIFICATION ON FOR WHERE PARENTAGE CAN'T BE CONFIRMED IN 15 SORT OF THE EASIEST SETTING OF A PARENT IN DETENTION AND A 16 CHILD IN DETENTION AND A DNA CONFIRMATION. 17 RELIEF TO BE HAD ON THE TIMELINES WHERE IT IS NECESSARY TO 18 REALLY DRILL DOWN MORE OR LOCATE THE PARENT OR ASK THE PARENT 19 TO COME IN AND SUBMIT TO DNA TESTING TO MAKE THAT 20 CONFIRMATION. 21 I JUST -- IN CASE MR. GELERNT WANTED TO ADDRESS THAT AS WELL, 22 I WILL MOVE ASIDE. AND IT -- FOR -- SO WE WOULD ALSO LIKE IF THERE IS ALSO SO WE WOULD ALSO ASK FOR CLARIFICATION ON THAT. YES. THANK YOU. 23 THE COURT: 24 MR. GALERNT: 25 WE ARE ALSO SCRAMBLING A LITTLE BIT TO LOOK AT ALL THANK YOU, YOUR HONOR. Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 13 of 66 13 1 OF THE DETAILS IN THE GOVERNMENT'S FILINGS, SINCE THEY WERE 2 LATE LAST NIGHT. BUT I WOULD SAY JUST TO START OFF I WANT TO RESPOND 3 4 SPECIFICALLY TO YOUR TVPRA POINT. 5 IS WORKING BECAUSE THIS IS THE FIRST TIME THE GOVERNMENT HAS 6 PUT FORTH THESE RESOURCES TO GET THE JOB DONE. 7 BELIEVE THAT THE INJUNCTION SHOULD NOT BE ALTERED. SO WE STRONGLY LET ME ADDRESS JUST A FEW POINTS, START WITH YOUR 8 9 BUT I THINK THE INJUNCTION QUESTION ABOUT THE TVPRA. TO BEGIN WITH, THE TVPRA DOESN'T 10 ACTUALLY HAVE ALL OF THE REQUIREMENTS THAT O.R.R. IS NOW 11 ENGAGING IN. 12 TVPRA. THOSE WERE DECISIONS O.R.R. MADE TO ADD TO THE THE MAIN THING THAT TVPRA DOES IS HOME STUDIES BUT 13 14 SO MUCH OF WHAT O.R.R. IS DOING NOW WAS ADDED AS A POLICY 15 MATTER. 16 TO SAY, LOOK, THIS IS A DIFFERENT SITUATION, AS YOUR HONOR HAS 17 STATED A FEW TIMES. 18 BUT WE DON'T BELIEVE THAT YOU ARE NOT IN A POSITION THE TVPRA WAS FOR A SITUATION WHERE IT WAS A -- AS 19 YOU PUT IN YOUR OPINION, A TRUE UNACCOMPANIED INDIVIDUAL, AND 20 YOU ARE THEN LOOKING AT RELEASING THE PERSON TO SOMEONE YOU 21 DON'T KNOW, DIDN'T COME WITH THE CHILD. 22 I DON'T KNOW OF ANY CHILD ADVOCACY GROUP DEALING 23 WITH THIS ISSUE WHO BELIEVES THAT IN THIS SITUATION WHERE THE 24 PARENT -- THE CHILD WAS TAKEN FROM THE PARENT THAT O.R.R. 25 SHOULD GO THROUGH ALL OF THIS LENGTHY PROCEDURES. IT JUST Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 14 of 66 1 DOESN'T MAKE SENSE. 2 THEY NEED TO GIVE THE CHILD BACK. YOU HAVE TAKEN THE CHILD FROM THE PARENT, I DON'T THINK -- WE ARE PREPARED TO SAY -- AND I 3 4 THINK EVERY CHILD ADVOCACY GROUP WAS PREPARED TO SAY THAT 5 O.R.R. SHOULD NOT BE FOLLOWING THE LENGTHY, CUMBERSOME 6 PROCEDURES THEY USE WHEN THEY ARE JUST NOT SURE WHO THIS 7 PERSON IS WHO IS COMING FORWARD FOR THE CHILD. 8 9 10 14 THE COURT: ARE THOSE PROCEDURES, THOUGH, A MATTER OF REGULATION; IN OTHER WORDS, ARE THEY IN THE CFR OR SOMETHING SIMILAR? 11 MR. GALERNT: YOUR HONOR, I DON'T KNOW IF ALL OF 12 THEM ARE. 13 THINK ONE OVERARCHING POINT I WOULD MAKE -- AND I PROBABLY 14 SHOULD HAVE STARTED WITH THIS -- IS YOUR HONOR'S DECISION WAS 15 OF COURSE BASED ON DUE PROCESS. 16 HONOR HAS POINTED THIS OUT BEFORE -- ULTIMATELY HAS TO TRUMP 17 THE TVPRA. 18 I DON'T THINK ALL OF THEM ARE. BUT, YOU KNOW, I SO DUE PROCESS -- AND YOUR WHAT I UNDERSTAND HHS TO BE ASKING FOR, IF I AM 19 READING THEIR DECLARATIONS RIGHT, IS NOT SAYING THEY HAVE TO 20 DO IT, BUT THEY WANT CLARIFICATION FROM YOU THAT THEY CAN 21 STREAMLINE THE PROCEDURE. 22 THE COURT: TO BE CLEAR, THE DUE PROCESS CLAUSE 23 WOULD OVERRIDE A FEDERAL STATUTE ON THIS SPECIFIC ISSUE OF 24 SEPARATION AND WHETHER OR NOT THERE IS A VIOLATION OF THE 25 CONSTITUTION OR A FAILURE TO REUNIFY. THIS REQUEST IS Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 15 of 66 15 1 DIFFERENT, THOUGH. IT IS THE GOVERNMENT SAYING, WE ARE DOING 2 EVERYTHING WE CAN TO REUNITE, WE JUST CAN'T MEET THIS DEADLINE 3 AND MEET THE TVPRA REQUIREMENTS. SO IT IS A DISTINCT ISSUE. 4 AND AS A COURT I WOULD 5 BE VERY RELUCTANT JUST TO SWEEP ASIDE THE TVPRA OR RULE-MAKING 6 UNDER IT THAT MAY HAVE THE SAME FORCE AND EFFECT AS FEDERAL 7 LAW. 8 9 MR. GALERNT: YOUR HONOR, I THINK THAT THE FAMILY -- THE DUE PROCESS RIGHT HERE IS TO BE TOGETHER WITH YOUR CHILD, 10 SO I DO THINK EVEN WITH RESPECT TO THE TIMING IT WOULD 11 OVERRIDE. 12 I JUST DON'T UNDERSTAND THE TVPRA TO HAVE MANY 13 REQUIREMENTS OR EVEN THE FEDERAL REGULATIONS TO HAVE MANY 14 REQUIREMENTS. 15 INTERPRETATION OF THE TVPRA WOULDN'T SAY THAT IF THE 16 GOVERNMENT GOES AND TAKES YOUR CHILD AND SAY YOU ARE NOT 17 GETTING IT BACK UNTIL WE DO ALL OF THESE SIX MONTHS' WORTH OF 18 PROCEDURES IT JUST DOESN'T -- IT IS SORT OF -- IT IS APPLES 19 AND ORANGES IN SOME RESPECTS. 20 THE COURT: 21 ARE YOU INDICATING THAT -- WELL, FIRST OFF, THE AND I DON'T THINK -- I THINK A PROPER LET ME ASK A QUESTION HERE. 22 TVPRA AND THESE POLICIES THAT O.R.R. HAS TO FOLLOW TO REUNIFY, 23 FROM YOUR PERSPECTIVE IS THAT -- ARE THOSE REGULATIONS, 24 FEDERAL, LIKE C.F.R.'S, WHERE THEY ARE TANTAMOUNT TO RULES AND 25 PROCEDURES THAT THE COURT CAN'T SIMPLY SWEEP ASIDE WITHOUT Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 16 of 66 16 1 MAKING A DETERMINATION, FOR EXAMPLE, THAT THE CONSTITUTIONAL 2 CONSIDERATIONS OVERRIDE? 3 MS. FABIAN: YOUR HONOR, THOSE PROCEDURES ARE 4 PUBLISHED IN O.R.R.'S POLICY GUIDE WHICH IS -- IT IS PUBLISHED 5 PUBLICLY BUT IT -- THEY ARE NOT CFR REGULATIONS. 6 THE COURT: SO ARE YOU INDICATING THAT IF THE COURT 7 WERE TO SAY O.R.R. DOES NOT NEED TO COMPLY WITH THOSE INTERNAL 8 POLICIES THAT THAT IS NOT AN ISSUE YOU WOULD CONTEST OR SEEK 9 TO APPEAL? 10 MS. FABIAN: YOUR HONOR, I DON'T BELIEVE THAT WE 11 WOULD CONTEST THAT THE COURT HAS THE AUTHORITY TO ORDER THAT 12 THOSE PROCEDURES NOT BE FOLLOWED SPECIFICALLY. 13 FOR A SPECIFIC RULING THAT THE COURT'S ORDER AND ORDER FOR 14 RELIEF OVERRULE O.R.R.'S OWN POLICIES. 15 THE COURT: WE WOULD ASK DO YOU AGREE THAT THE COURT'S ORDER WITH 16 RESPECT TO REUNIFYING UNDER CERTAIN TERMS AND CONDITIONS WHICH 17 RELATE TO FITNESS, DANGER TO THE CHILD, THE CLASS CARVING OUT 18 CRIMINAL HISTORY, CONTAGIOUS DISEASE AND OTHER FACTORS, THAT 19 WHAT IS IN PLACE, IF THE GOVERNMENT FOLLOWS THE COURT ORDER, 20 IS VERY CONSISTENT WITH THE TVPRA REQUIREMENTS WHERE THE 21 SAFETY OF THE CHILD IS BEING ADDRESSED PRIOR TO REUNIFICATION? 22 DO YOU HAVE ANY INFORMATION WHICH WOULD INDICATE 23 THAT SIMPLY FOLLOWING THE COURT'S ORDER IN LIGHT OF THE 24 NARROWNESS OF THE CLASS DEFINITION AND THE PARAMETERS OF 25 REUNIFICATION ARE IN ANY WAY INCONSISTENT WITH THE TVPRA OR Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 17 of 66 1 2 17 THESE POLICIES? MS. FABIAN: I THINK I WOULD FIRST ASK FOR A 3 CLARIFICATION FROM THE COURT AS TO WHETHER THE COURT DID 4 INDEED INTEND TO CARVE OUT ALL CRIMINAL HISTORY AS FAR AS 5 CLASS MEMBERSHIP. 6 LITTLE BIT OF THE WAY TO AT LEAST REMOVING SOME OF THE 7 NECESSARY PROCEDURES, OR THE PROCEDURES THAT MIGHT OTHERWISE 8 BE NECESSARY. 9 I THINK, ASSUMING THAT, THAT DOES GET A I WOULD SAY THAT IT STILL REMAINS THAT -- THE 10 COURT -- WE AGREE THAT THE COURT'S STANDARD IN THE ORDER IS 11 CONSISTENT WITH THE TVPRA. 12 DOESN'T GIVE US IS HOW TO -- WHICH PARTS STILL OF HOW HHS HAS 13 HISTORICALLY IMPLEMENTED THE TVPRA MIGHT NO LONGER APPLY UNDER 14 THE COURT'S STANDARD. 15 BUT WHAT THE COURT'S STANDARD IT WOULD SEEM THAT THEY ARE VERY PARALLEL AND IN 16 THAT IT IS VERY DIFFICULT FOR HHS TO MAKE THE DECISION WHICH 17 PARTS OF ITS PROCEDURES UNDER THE TVPRA WOULD NO LONGER BE 18 REQUIRED UNDER THE COURT'S ORDER. 19 THE COURT: WE ARE WELL INTO THE INJUNCTIVE RELIEF 20 AND THE GOVERNMENT'S ATTEMPTS TO MEET THESE REQUIREMENTS. 21 THIS AN INDICATION THAT THE GOVERNMENT IS NOT APPEALING, NOT 22 GOING TO APPEAL? 23 MS. FABIAN: IS YOUR HONOR, THAT IS A QUESTION FOR THE 24 SOLICITOR GENERAL. I CAN'T INDICATE IT THAT TIME -- THE 25 PROCESS OF MAKING THAT DETERMINATION IS UNDERWAY. WE HAVE NOT Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 18 of 66 18 1 SOUGHT A STAY AS FAR AS THE REUNIFICATION PROCESS. 2 NOT UNDERWAY. 3 SOMETHING THAT EVEN COULD OCCUR WITHIN THAT TIME FRAME NOW. 4 BUT I CAN'T GIVE AN ANSWER AS TO THE APPEAL BECAUSE THAT IS A 5 DECISION ENTIRELY WITHIN THE PURVIEW OF THE SOLICITOR 6 GENERAL'S OFFICE. 7 THAT IS SO GIVEN THE TIMING I FEEL THAT IS NOT THE COURT: WHAT I DON'T WANT TO OCCUR IS, AT THE 8 INVITATION OF THE GOVERNMENT, FOR THE COURT TO MAKE SOME 9 INDICATION ABOUT THE SCOPE OF THE PRELIMINARY INJUNCTION AND 10 THEN TO USE THAT AS A BASIS TO APPEAL. 11 THE OVERARCHING OBJECTIVE HERE IS TO REUNITE. 12 SO THE WAY I HEAR THE GOVERNMENT TODAY AND RECEIVED THE 13 BRIEFING IS SIMPLY FOR WHAT YOU ARE STATING; AND THAT IS 14 CLARIFICATION, HOW BEST CAN WE PROCEED BEING IN COMPLIANCE 15 WITH THE COURT'S ORDER AND ACHIEVE REUNIFICATION. 16 AM I MAKING A CORRECT ASSUMPTION? 17 MS. FABIAN: I THINK I AGREE WITH THAT. AND IF WHAT 18 YOUR HONOR IS SAYING THAT IT IS A COMMITMENT NOT TO APPEAL AT 19 ALL, I CAN'T SAY THAT. 20 ME HERE FROM OUR FRONT OFFICE SOMEONE WITH EVEN MORE ABILITY 21 TO MAKE THAT COMMITMENT. 22 BUT I WOULD AGREE -- AND I HAVE WITH SO I -- WHAT I WOULD SAY IS I -- WE ARE NOT SEEKING 23 TO SNEAK AROUND THE INJUNCTION HERE AND GET AN ORDER THAT WE 24 CAN, YOU KNOW, BETTER GET OUT FROM UNDER THE COURT'S ORDER, WE 25 ARE SEEKING CLARIFICATION FOR THE PURPOSE OF COMPLYING WITH Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 19 of 66 19 1 THE REUNIFICATION PROVISIONS OF THE ORDER. 2 ON A DIFFERENT BASIS THAT REMAINS TO BE SEEN AND IS WITH THE 3 OFFICE OF THE SOLICITOR GENERAL. 4 5 THE COURT: IF WE APPEAL THEM I WOULD MAKE THIS TENTATIVE OBSERVATION, THEN, AND THEN COUNSEL CAN WEIGH IN. MY UNDERSTANDING, BASED ON WHAT HAS JUST BEEN 6 7 REPRESENTED, IS THE O.R.R. POLICIES, THEY ARE NOT IN THE 8 CFR'S, IT IS NOT RULE-MAKING, IT DOESN'T HAVE THE SAME FORCE 9 AND EFFECT AS FEDERAL PROVISIONS OR STATUTES. THEY ARE SIMPLY 10 INTERNAL POLICIES OR PROCEDURES THAT O.R.R. USES TO ENSURE 11 THAT WHEN THEY RELEASE THE CHILD TO A CUSTODIAN THAT THE CHILD 12 IS BEING RELEASED TO A RESPONSIBLE, SAFE CUSTODIAN. IF THAT'S THE CASE, THEN I WOULD BE PREPARED TO 13 14 INDICATE THAT THE O.R.R., HHS SHOULD NOT FEEL OBLIGATED TO 15 COMPLY WITH THOSE INTERNAL PROCEDURES BECAUSE THIS CASE IS SO 16 DIFFERENT, IT INVOLVES SEPARATION OF MINOR CHILDREN FROM 17 PARENTS. 18 THE PARENT, NOT A RELATIVE OR A CUSTODIAN THAT MIGHT SUFFICE 19 BUT THE PARENT. 20 HISTORY, IS CONTAGIOUS DISEASE. 21 FACTORS THAT ARE SET OUT IN NARROWLY DEFINING THE CLASS. 22 AND THE CLASS DEFINITION IS IMPORTANT. IT INVOLVES AND CARVED OUT FROM THE CLASS IS CRIMINAL AND THERE ARE A NUMBER OF AND THE PURPOSE OF THAT WAS TO DEFINE A CLASS AND 23 PROVIDE INJUNCTIVE RELIEF THAT IS CONSISTENT, AS FAR AS 24 REUNIFICATION GOES, WITH THE TVPRA. 25 EFFICIENT, QUICK MANNER; BUT OF COURSE NEVER LOSING SIGHT OF AND TO DO IT IN AN Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 20 of 66 1 2 20 THE SAFETY OF THE CHILDREN. AND AS INDICATED IN THE COURT'S ORDER, THE ATTORNEY 3 GENERAL MAKES HIS OWN DETERMINATIONS AS TO WHETHER OR NOT TO 4 DETAIN OR TO PAROLE OR RELEASE. 5 THAT IN ANY WAY. 6 THIS ORDER DOESN'T IMPACT OBVIOUSLY THE ATTORNEY GENERAL HAS TO MAKE THOSE 7 DETERMINATIONS CONSISTENT WITH LAW, BUT THIS IS AN ORDER THAT 8 DEALS WITH SEPARATION IN ONE INSTANCE AND THE CIRCUMSTANCES 9 UNDER WHICH THAT MIGHT OCCUR, AND THEN REUNIFICATION IN THE 10 11 CIRCUMSTANCE WHERE FAMILIES HAVE ALREADY BEEN SEPARATED. SO I WANT TO BE CLEAR THAT I STAND ON THE ORDER, AND 12 MY COMMENTS HERE TODAY DON'T IN ANY WAY SUGGEST THAT THE 13 ATTORNEY GENERAL MUST RELEASE OR MUST DETAIN OR WHEN HE CAN 14 RELEASE OR DETAIN. 15 PREROGATIVE, CONSISTENT WITH LAW. 16 THOSE ARE WITHIN THE GOVERNMENT'S MS. FABIAN: AND I THINK AS I UNDERSTAND WHAT YOUR 17 HONOR JUST SAID, IF THE CLARIFICATIONS THAT WE ARE ASKING FOR 18 FIT EXACTLY WITHIN WHAT THE COURT HAS JUST SAID, WHICH IS 19 FIRST -- I MENTIONED THE CRIMINAL HISTORY. 20 INTEND TO EXCLUDE CLASS MEMBERS WITH ANY CRIMINAL HISTORY THEN 21 I THINK THAT THAT IS A CLARIFICATION WE WOULD -- WE WOULD 22 WELCOME FROM THE COURT THAT WOULD BEAR DOWN ON THIS. 23 THE COURT: YES. IF THE COURT DID AND OF COURSE ALL OF THIS ASSUMES 24 GOOD FAITH. IT ASSUMES THAT THE GOVERNMENT IS USING THE 25 CRITERIA THAT IT PROPERLY USED BEFORE WITH RESPECT TO CRIMINAL Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 21 of 66 21 1 HISTORY. SOME CRIMINAL HISTORY, I UNDERSTAND, DOES NOT RESULT 2 IN SEPARATE DETENTION OF THE PARENT AND THUS SEPARATION OF THE 3 FAMILY; OTHER CRIMINAL HISTORY COULD. I SIMPLY CARVED OUT CRIMINAL HISTORY FROM THE CLASS 4 5 DEFINITION BECAUSE I THINK IT IS WITHIN THE GOVERNMENT'S 6 PREROGATIVE TO DETERMINE WHAT TYPE OF CRIMINAL HISTORY MIGHT 7 PROPERLY EFFECT SEPARATION. 8 SO I DON'T INTEND TO INTERVENE IN THAT. THAT'S AN 9 ISSUE THAT WOULD NEED SEPARATE BRIEFING AND CONSIDERATION. 10 AND HERE AGAIN IT ASSUMES ABSOLUTE GOOD FAITH ON THE PART OF 11 THE GOVERNMENT THAT IF IT ELECTS TO SEPARATE A FAMILY BASED ON 12 CRIMINAL HISTORY THAT IT IS DOING IT UNDER ITS CRITERIA THAT 13 IT ORDINARILY FOLLOWS. 14 MS. FABIAN: I THINK, AS I UNDERSTAND IT, THE -- 15 WHAT THE COURT IS SAYING IS THAT YOU READ THE CRIMINAL HISTORY 16 EXCLUSION TO BE PART OF THE SEPARATION DECISION RATHER THAN -- 17 BECAUSE, AS I READ THE ORDER, THERE IS -- THE EXCLUSION OF ANY 18 PARENT WITH A CRIMINAL HISTORY, AS A WHOLE, WOULD EXCLUDE 19 THEM -- WOULD EXCLUDE THEM FROM THE CLASS REGARDLESS OF THAT 20 -- WHETHER THAT WAS THE BASIS FOR THE SEPARATION. 21 THE COURT: YES. AND I MADE CLEAR THAT IF 22 PLAINTIFFS WANTED TO MODIFY THE SCOPE OF THE CLASS THEY COULD 23 DO THAT, BUT GIVEN THE URGENCY AND PRESS OF TIME I SIMPLY 24 ELECTED TO EXCLUDE FROM THE CLASS PARENTS WITH CRIMINAL 25 HISTORY. Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 22 of 66 1 22 AND THEN I THINK THE SECOND POINT THAT MS. FABIAN: 2 IS RAISED BY WHAT YOUR HONOR HAS SAID ABOUT THE ORDER IS -- 3 REMAINS THE PARENTAGE QUESTION. 4 LAST POINT THE COURT MAY BE RELYING HEAVILY ON THE PARENTAGE 5 DETERMINATION. 6 IT SOUNDS LIKE IF -- ON THE SO I THINK WE WOULD STILL ASK FOR A CLARIFICATION AS 7 TO THAT PROCESS AND WHETHER THE CONTINUED USE OF THE DNA 8 ANALYSIS AND THE FOLLOWUP IF THE DNA ANALYSIS IS NOT 9 CONCLUSIVE, AND RELATEDLY ANY DIFFICULTIES THAT MIGHT ARISE 10 OUT OF THE DNA PROCESS IN TERMS OF LOCATING THE PARENT OR 11 OBTAINING DNA. 12 I THINK WE WOULD ASK FOR CLARIFICATION IF THAT IS A 13 PERMISSIBLE APPROACH IN LIGHT OF THE FACT THAT PARENTAGE IS AN 14 IMPORTANT PART OF THE COURT'S ORDER. 15 INHERENT DELAYS THAT MIGHT OCCUR FROM THAT WE WOULD ASK FOR 16 SOME RELIEF TO ALLOW FOR THAT PROCESS. 17 18 19 20 21 THE COURT: ALL RIGHT. AND THE INHERENT -- ANY SO THE CLASS IS DEFINED TO INCLUDE PARENTS. MR. GELERNT, DO YOU WANT TO SPEAK TO THAT? I MEAN, ARGUABLY THAT COULD MEAN ADOPTIVE PARENTS, NONBIOLOGICAL. MR. GALERNT: I GUESS ONE QUESTION THAT I WANTED TO 22 SPEAK TO IS THE VERIFICATION PROCESS. 23 I GATHER, IS SAYING, WE ARE GOING TO DNA EVERY SINGLE PERSON 24 AND THAT IS GOING TO DELAY THINGS. 25 I MEAN, THE GOVERNMENT, IF IT IS NOT -- YOU KNOW, WE WOULD SAY THAT DNA IS A Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 23 of 66 1 LAST RESORT. 2 THINK YOUR HONOR HAS POINTED THAT OUT. 23 I THINK EVERY CHILD EXPERT HAS SAID THAT, AND I 3 SO TO THE EXTENT THAT DELAYS OF YOUR DEADLINES IS 4 OCCURRING BECAUSE THEY ARE DNA TESTING EVERYONE, EVEN WHERE 5 THE CASE MANAGER SAYS THERE IS ABSOLUTELY NO QUESTION, THE 6 PARENT HAS BIRTH CERTIFICATES, ALL OF THAT. 7 THE COURT: I THINK THE GOVERNMENT INDICATED THEY 8 COULD DNA SWAB EVERYONE AND MEET THE DEADLINE. 9 QUESTION IS WHETHER THAT IS NECESSARY. 10 11 MR. GALERNT: I GUESS THE WELL, YOUR HONOR, RIGHT. ABSOLUTELY. YOU ARE PULLING APART TWO IMPORTANT POINTS. IF THE GOVERNMENT IS GOING TO REPRESENT THAT THE DNA 12 13 TESTING IS NOT GOING TO MOVE THE DEADLINES THAT SOLVES ONE 14 PROBLEM. 15 I THINK WE WOULD SAY, YOU KNOW, THAT DNA TESTING IS 16 INTRUSIVE AND IT SHOULDN'T BE DONE. 17 THE PARENTS NERVOUS, THEY ARE NOT SURE WHY IT IS BEING DONE. 18 THAT IT SHOULDN'T BE DONE IN EVERY CASE. 19 AND THE PARENT -- MAKES BUT IF IT IS GOING TO BE DONE IN EVERY CASE AND THE 20 DEADLINES AREN'T GOING TO MOVE BECAUSE OF THAT, THE ONLY THING 21 WE WOULD ASK IS THAT IT BE USED ONLY FOR REUNIFICATION, AND 22 THEN EXPUNGED. 23 CREATING A DNA DATABASE OF ALL OF THESE PEOPLE. 24 25 BECAUSE I DON'T KNOW THAT WE WANT TO BE A I WANT TO TOUCH ON A COUPLE OF OTHER THINGS, YOUR HONOR, IF I MIGHT. Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 24 of 66 24 YES. 1 THE COURT: 2 MR. GALERNT: JUST GOING BACK TO THE BEGINNING OF 3 THE DISCUSSION YOU HAD WITH THE GOVERNMENT ON THE TENDER AGE 4 KIDS, THE KIDS UNDER FIVE. 5 WHAT THE GOVERNMENT WAS SAYING ABOUT WHAT IS HAPPENING WITH 6 THEM. I WASN'T -- I WASN'T SURE EXACTLY WE UNDERSTAND THE GOVERNMENT TO HAVE SAID THERE IS 7 8 101 CHILDREN, AND THAT THEY HAVE IDENTIFIED 49 PARENTS. THE 9 GOVERNMENT SAID THEY CAN'T REUNIFY ALL OF THEM, POTENTIALLY, 10 BY THE DEADLINE BECAUSE THEY ARE NOT SURE WHERE THE PARENT IS, 11 ESPECIALLY IF THE PARENT HAS BEEN RELEASED. 12 ALSO REPRESENTED, I THINK -AND I APOLOGIZE IF THIS IS MISSTATING WHAT YOU 13 14 REPRESENTED TO THE COURT. -- THAT EVERY KID HAS TALKED TO THEIR PARENTS. 15 16 BUT THEY HAVE AM NOT SURE HOW THOSE SQUARE. WE WOULD JUST LIKE A SORT OF SIMPLE REPRESENTATION 17 18 HERE THAT EVERY ONE OF THE 101 KIDS HAS TALKED TO THEIR 19 PARENTS AND WHY -- IF THAT IS TRUE, WHY THE REUNIFICATION 20 CAN'T BE DONE BY THIS WEDNESDAY. 21 THE COURT NOTED, THOSE ARE THE PARTICULARLY VULNERABLE 22 CHILDREN. 23 SO I BECAUSE THOSE OBVIOUSLY, AS AND WE ARE NOT SURE EVEN WHETHER THE GOVERNMENT IS 24 REPRESENTING THAT THEY HAVE ACTUALLY MATCHED EVERY PARENT AND 25 CHILD OF THAT AGE, BECAUSE THEY ARE TALKING ABOUT 49 OF THE Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 25 of 66 25 1 PARENTS, 40 OF WHOM ARE IN DHS CUSTODY AND NINE OF WHOM ARE IN 2 U.S. MARSHAL CUSTODY. 3 52 PARENTS AND CHILDREN HAVE BEEN MATCHED OR WHETHER THEY JUST 4 HAVE CHILDREN UNDER FIVE WHO THEY DON'T EVEN KNOW WHO THE 5 PARENT IS. BUT IT IS NOT CLEAR WHETHER THE OTHER SO I WOULD MAYBE STEP ASIDE FOR A SECOND JUST IF THE 6 7 GOVERNMENT WANTED TO ADDRESS THAT SPECIFIC POINT, AND I HAD A 8 FEW OTHER THINGS. 9 THE COURT: 10 MS. FABIAN. 11 MS. FABIAN: YES. YOUR HONOR, I APOLOGIZE IF THIS WASN'T 12 CLEAR. 13 SO -- AND AS I SAID IT IS SORT OF AN ISSUE -- A NUMBER IN 14 FLUX. 15 TO GIVE SORT OF AN OVERVIEW. 16 IN PART I THINK IT IS NOT -- IT IS NOT SIMPLE MATH AND AND SO I AM TRYING TO AVOID GIVING SPECIFIC NUMBERS BUT WHEN I SAY THAT THE CHILDREN AND THE PARENTS HAVE 17 BEEN IN COMMUNICATION, THAT IS FOR PARENTS WHO ARE IN THE 18 CUSTODY OF THE GOVERNMENT AND CHILDREN IN THE CUSTODY OF THE 19 GOVERNMENT. 20 WAY THAT I COULD, THAT IF THERE ARE CHILDREN IN O.R.R. CUSTODY 21 WHERE THE GOVERNMENT IS NOT AWARE OF WHERE THE PARENT IS THAT 22 WE COULD FACILITATE COMMUNICATION. 23 COULD NEVER REPRESENT THAT. 24 25 I CAN'T REPRESENT, AND I DON'T THINK THERE IS ANY I DON'T THINK -- I JUST SO THERE -- WHEN WE SAY WE HAVE FACILITATED, WHAT IS POSSIBLE FOR THE INDIVIDUALS IN GOVERNMENT CUSTODY, SO THAT'S Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 26 of 66 1 THE COMMITMENT THAT I AM MAKING ON THAT POINT. 2 THE COURT: 3 MS. FABIAN: 4 26 AND THAT'S 49? FOR THE UNDER-FIVES IT IS -- I BELIEVE IT IS 46. ICE HAS DOCUMENTED THAT IN -- WHEN THE PARENT IN ICE 5 6 CUSTODY COMMUNICATES WITH THE CHILD ICE IS MAKING A NOTE OF 7 THAT IN THEIR SYSTEM OF RECORD. 8 CAN GO BACK AND LOOK AT THAT. SO IT IS -- THAT CAN BE -- WE BUT -- SO WHAT I AM SAYING THE WAY IT IS PUT IN THE 9 10 SYSTEM OF RECORD IS NOT IN ANY SORT OF AGGREGATABLE FORM SO WE 11 CAN'T JUST RUN IT ALL, BUT FOR THE UNDER-FIVES THEY HAVE GONE 12 AND LOOKED AND CONFIRMED THAT FOR PARENTS IN ICE CUSTODY WITH 13 CHILDREN UNDER FIVE THAT COMMUNICATION HAS BEEN MADE IN THOSE 14 CASES. 15 THE COURT: WHAT ABOUT CHILDREN IN CBP OR PARENTS IN 16 CBP CUSTODY? 17 THIS MORNING, THAT THERE ARE PARENTS WHO HAVE BEEN SEPARATED 18 AND THE GOVERNMENT DOESN'T KNOW WHERE THEY ARE BECAUSE CBP 19 DOESN'T HAVE THE INFORMATION. 20 AND YOU HAVE A PARENT IN CBP AND NO WAY TO CONNECT THE TWO. 21 THERE HAS BEEN INFORMATION, I THINK AS EARLY AS MS. FABIAN: SO YOU HAVE A CHILD IN O.R.R. YOUR HONOR, I THINK THAT THAT 22 INFORMATION THAT HAS BEEN RECEIVED BY THE MEDIA MAY HAVE BEEN 23 MISUNDERSTOOD. 24 TO, IF IT IS THIS MORNING'S NEW YORK TIMES ARTICLE, IS 25 MISLEADING. BUT I THINK THAT WHAT THE COURT IS REFERRING Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 27 of 66 FIRST OF ALL LET ME EXPLAIN. 1 27 CBP CUSTODY, I THINK 2 THAT WITH EVERYTHING THAT FOLKS HAVE HEARD IT CAN -- IF YOU 3 DON'T WORK IN THIS BUSINESS IT CAN BE HARD TO KEEP IT 4 STRAIGHT. CBP CUSTODY IS SHORT-TERM. 5 IT IS UPON INITIAL 6 ARRIVAL. NO ONE IS DETAINED, AS THE WORD IS UNDERSTOOD IN 7 SORT OF MORE DETENTION -- DETENTION BUSINESS. 8 LONG-TERM, CBP IS -- IT IS A CUSTODY DURING PROCESSING. 9 YOU ARE NOT GOING TO HAVE A SITUATION WHERE A PARENT WOULD BE 10 HELD FOR ANY LENGTH OF TIME IN CBP CUSTODY WITHOUT THE CHILD. DETENTION IS SO CBP LIKELY WOULD BE WHERE THE SEPARATION WOULD 11 12 PHYSICALLY OCCUR, AND THAT IS THAT THE PARENT -- IN THE 13 SITUATIONS WE ARE FREQUENTLY TALKING ABOUT TODAY, IT IS THAT 14 THE PARENT WOULD GO INTO THE MARSHAL'S SERVICE CUSTODY OUT OF 15 CBP AND THE CHILD WOULD GO TO HHS CUSTODY OUT OF CBP. THE PARENT THEN MIGHT RETURN TO CBP TO BE 16 17 TRANSFERRED TO ICE. 18 TRANSFER ON TO THE NEXT LOCATION. 19 -- 20 BUT CBP'S FUNCTION IS PROCESSING AND THE COURT: SO THE NUMBER THAT YOU ARE ARE YOU SAYING THAT THIS HAS NOT 21 OCCURRED, SO THAT WE DON'T HAVE A SITUATION WHERE CBP HAS THE 22 PARENT, THE CHILD IS IN O.R.R., AND THE GOVERNMENT IS NOT ABLE 23 TO DETERMINE WHERE THE PARENT IS BECAUSE CBP EITHER DID NOT 24 TAKE THE INFORMATION OR DESTROYED THE INFORMATION? 25 MS. FABIAN: THE NUMBER -- THE NEWS REPORT THAT YOUR Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 28 of 66 28 1 HONOR IS REFERENCING IS, I BELIEVE, REFERENCING THE SYSTEM OF 2 RECORD THAT IS USED BY DHS. 3 UNIT IS ENCOUNTERED BY DHS, IN CBP, MOST LIKELY, THEY ARE 4 GOING TO BE FLAGGED IN OR LOGGED INTO THE SYSTEM AS A FAMILY 5 UNIT. 6 AND THAT IS THAT WHEN A FAMILY AND THEN IF THE FAMILY IS THEN SEPARATED BECAUSE THE 7 CHILD IS TRANSFERRED TO O.R.R. CUSTODY AND THE PARENT REMAINS 8 WITH ICE OR GOES ELSEWHERE, THAT SYSTEM OF RECORD WILL BE 9 UPDATED TO REFLECT THAT YOU NOW HAVE A PARENT AND A CHILD. 10 INFORMATION ISN'T LOST FROM THE SYSTEM IT -- ANY 11 CHANGE TO THAT DESIGNATION IS -- AND I AM NOT A COMPUTER 12 PERSON SO I AM PROBABLY NOT USING THE RIGHT WORDS FOR THIS, 13 BUT IT IS LOGGED IN THE HISTORY OF THE SYSTEM. 14 SO ONE WAY TO TELL THAT AN INDIVIDUAL IS A MEMBER OF 15 A FAMILY GROUP THAT HAS BEEN SEPARATED IS THAT YOU WOULD LOOK 16 AT THAT CHANGE IN THEIR DESIGNATION. 17 SO AS -- I BELIEVE THAT THAT WAS MISUNDERSTOOD TO BE 18 THAT CBP LOST RECORDS. 19 KNOW, I DON'T WANT TO MISLEAD THE COURT, I DON'T KNOW THAT. 20 BUT THAT IS -- CBP RECORDS INDIVIDUALS AS A FAMILY GROUP AND 21 THEN WILL -- IF THE SEPARATION OCCURS THEY WILL REDESIGNATE 22 THEM AS AN INDIVIDUAL. 23 TO THEIR NEXT LOCATION. 24 THAT THEY ARE PROPERLY HANDLED IN THE -- THROUGH THE SYSTEM. 25 THE COURT: IF IT IS SOMETHING ELSE THEN I -- YOU AND THAT IS WHAT ALLOWS THEM TO MOVE IT IS ACTUALLY A SYSTEM THAT ENSURES AS I UNDERSTAND THE GOVERNMENT'S Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 29 of 66 29 1 REPRESENTATION IT IS THAT IF PARENT IS IN GOVERNMENT CUSTODY, 2 EITHER WITH ICE OR CBP OR SOME OTHER AGENCY, YOU ARE ABLE TO 3 REUNIFY THEM WITH THEIR CHILD. 4 BUT YOU ARE ABLE -- YOU KNOW WHERE THEY ARE AND YOU ARE ABLE 5 TO REUNIFY THEM. THE TIMING MIGHT BE AN ISSUE THE ONES THAT YOU ARE NOT ABLE TO REUNIFY AT THIS 6 7 POINT ARE THE PARENTS WHO ARE RELEASED FROM DETENTION OR 8 CUSTODY AND YOU HAVEN'T BEEN ABLE TO LOCATE THEM. 9 FAIR? 10 MS. FABIAN: IS THAT I WOULDN'T SAY NOT IN THAT IT COULD 11 NEVER HAPPEN, I WOULD SAY, BUT I THINK THAT IS CORRECT IN THAT 12 WE CERTAINLY CAN'T WHILE WE DON'T KNOW WHERE THE PARENT IS AND 13 IT WOULD BE A LONGER PROCESS. 14 THE COURT: BUT THOSE PARENTS THAT ARE IN DETENTION 15 OR CUSTODY WITH SOME GOVERNMENTAL AGENCY, YOU KNOW WHERE THEY 16 ARE AND YOU CAN REUNITE THEM WITH THEIR CHILD. 17 MS. FABIAN: YES. AND I WOULD SAY SORT OF FOR 18 PURPOSES HERE, BECAUSE I DON'T -- I DON'T WANT TO COMMIT. 19 HAVE -- I MEAN, CBP IS -- A PARENT IN CBP CUSTODY IS GOING TO, 20 AS QUICKLY AS POSSIBLE, BE MOVING INTO ICE CUSTODY. 21 THE FUNCTION OF CBP AND -- TO MOVE FOLKS OUT TO THE NEXT 22 LOCATION. 23 WE THAT IS SO THEN FOR OUR PURPOSES WE ARE TALKING ABOUT IF A 24 PARENT IS IN ICE CUSTODY AND A CHILD IS IN THE CUSTODY OF 25 O.R.R., THOSE REUNIFICATIONS ARE THE -- SORT OF THE MOST Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 30 of 66 1 30 STRAIGHTFORWARD THAT WE HAVE. BECAUSE WE ARE TALKING ABOUT A LOT OF ISSUES, I 2 3 DON'T WANT TO SAY THERE IS NEVER GOING TO BE ANOTHER SITUATION 4 THAT COULD ARISE, BUT WHAT -- THOSE ARE THE STRAIGHTFORWARD 5 CASE AND THOSE ARE THE ONES THAT -- WHERE THE ISSUES THAT WE 6 ARE IDENTIFYING AS THE MOST PRESSING NEED DO NOT ARISE. ALL RIGHT. 7 THE COURT: 8 MR. GELERNT. 9 MR. GALERNT: YES, YOUR HONOR. SO IF I AM 10 UNDERSTANDING THE GOVERNMENT CORRECTLY THERE -- I WILL JUST 11 START WITH THE 49 THAT APPEAR TO BE IN SOME TYPE OF CUSTODY. OUR UNDERSTANDING FROM PEOPLE, ADVOCATES WHO FOLLOW 12 13 THIS, THAT THE CBP RECORDS HAVE BEEN DESTROYED AND NOT 14 TRANSFERRED, BUT I AM GOING TO PUT THAT ASIDE FOR THE MOMENT. THOSE 49 CHILDREN UNDER FIVE, I AM ASSUMING THE 15 16 GOVERNMENT IS GOING TO REPRESENT THAT THEY CAN BE REUNITED BY 17 YOUR DEADLINE. 49 CHILDREN IS NOTHING. AND, YOU KNOW, I WANTED TO SAY THAT THIS IS ONE OF 18 19 THOSE SITUATIONS WHERE THERE CAN BE AN ENORMOUS PUBLIC/PRIVATE 20 EFFORT. 21 SO MANY PRIVATE COMPANIES THAT ARE WILLING TO PROVIDE WHATEVER 22 RESOURCES ARE NEEDED, TRANSPORTATION, HOTELS. 23 NOTHING. 24 WEDNESDAY THOSE 49 ARE GOING TO BE IN THEIR PARENT'S ARMS. 25 I MEAN THE WHOLE COUNTRY IS FOCUSED ON IT. THERE ARE 49 KIDS IS SO I AM HOPING THE GOVERNMENT IS GOING TO SAY BY BUT I WANT TO FOCUS ON THE 52, BECAUSE I AM NOT SURE Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 31 of 66 31 1 I CAN SORT OF PUT IT BETTER THAN YOUR HONOR DID, THAT IT IS 2 STARTLING THAT THE RECORDKEEPING IS NOT THERE. 3 I DON'T UNDERSTAND WHY THEY DON'T KNOW WHERE THE 4 PARENT IS. 5 LET THEM WALK OUT THE DOOR WITH NO RECORDS. 6 GOVERNMENT'S WHOLE POINT IS, WE WANT TO KEEP TRACK OF THEM SO 7 THEY APPEAR FOR THEIR ASYLUM HEARING. 8 SO THERE MUST BE ADDRESSES. 9 10 11 WHEN THEY RELEASE A PARENT THEY DON'T JUST WALK -I MEAN, THE AND IF THE GOVERNMENT IS HAVING TROUBLE TRACKING DOWN THE PARENT THEN PRIVATE GROUPS AND THE ADVOCATES WILL DO IT WITH HELP ON THE CHILD'S SIDE. AND I THINK THAT GOES TO THE RELATED POINT. WE HAVE 12 ASKED THE GOVERNMENT FOR A LIST OF ALL -- SO THAT WE CAN THEN 13 GET PRIVATE LAWYERS TO SEE ALL, WHATEVER IT IS, 3,000, 2500, 14 ALL PARENTS. 15 WHO ARE READY TO SEE EACH PARENT. 16 SAY WHERE THEY ARE FROM, SO WE CAN GO FIND THE CHILDREN. 17 WE HAVE THOUSANDS OF INDIVIDUAL PRIVATE LAWYERS TO DESCRIBE THEIR CHILD, AND IF THE 52 PARENTS ARE FOR SOME REASON NOT BEING 18 ABLE TO BE TRACKED BY THE PARENT WE WILL TRACK THEM, BUT WE 19 NEED THE LIST. 20 MS. FABIAN HAS REPRESENTED THAT WE ARE GOING TO GET 21 A LIST OF EVERYONE, SHE NEEDS -- BUT WE HAVEN'T GOT THAT YET. 22 I MEAN, WE ARE HOPING WE CAN GET THAT TODAY SO WE CAN GET THE 23 PRIVATE BAR INVOLVED. 24 25 THERE ALSO HASN'T BEEN NOTICE TO THE CLASS. WE HAVE SENT HER A DRAFT NOTICE SO PEOPLE UNDERSTAND THEIR RIGHTS. Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 32 of 66 32 BUT I DON'T WANT TO MOVE OFF THESE TENDER-AGE KIDS 1 2 UNTIL WE SORT OF CAN COME TO SOME AGREEMENT ABOUT WHAT IS 3 GOING ON. 4 THEM A FAIR AMOUNT OF TIME. 5 TEN DAYS, YOU UNDERSTANDABLY DECIDED TWO WEEKS WOULD BE MORE 6 REASONABLE, GAVE THEM TWO WEEKS. 7 BECAUSE IT IS NOT THAT MANY KIDS. YOUR HONOR GAVE AS YOUR HONOR KNOWS, WE ASKED FOR 101 KIDS, I REALLY FEEL LIKE WE SHOULD NOT LEAVE THE 8 COURT UNTIL WE AND THE GOVERNMENT CAN REACH SOME CONCLUSION 9 ABOUT HOW WE ARE GOING TO DEAL WITH THE KIDS, BECAUSE WE WILL 10 GET AS MANY LAWYERS AS NECESSARY TO TRACK THOSE FAMILIES DOWN. 11 THERE MUST BE DATA ON THOSE PARENTS WHERE THEY WENT 12 TO AND A WAY TO REACH THEM. I JUST DON'T UNDERSTAND THAT THE 13 GOVERNMENT WOULD TAKE THE CHILD AWAY, LET THE PARENT WALK WITH 14 NO WAY TO REACH THE PARENT. 15 OBVIOUSLY IS NOT GOING TO EXPLAIN WHERE MY PARENT IS. AND A PRE-VERBAL CHILD IS 16 SO IF THE GOVERNMENT WANTS TO STAND UP NOW, BEFORE I 17 MOVE TO OTHER POINTS, AND TALK ABOUT WHETHER THEY ARE GOING TO 18 GIVE US A LIST, BUT ALSO PRECISELY WHAT IS GOING TO HAPPEN TO 19 THESE 101 KIDS, I WOULD WELCOME THAT. 20 MS. FABIAN: AND I APOLOGIZE, YOUR HONOR. I AM NOT 21 TRYING TO HIDE THE BALL HERE ON THESE NUMBERS. I AM TRYING TO 22 TALK ABOUT IT IN TERMS OF ISSUES, BECAUSE WE ARE TALKING ABOUT 23 THE SMALLER SORT OF STAGE ONE, AND THERE IS ANOTHER STAGE 24 COMING DOWN. 25 TO DEAL WITH THESE ISSUES THAT WILL ALLOW US TO FIGURE OUT HOW AND TO FACILITATE THESE REUNIFICATIONS WE WANT Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 33 of 66 33 1 TO DO THIS AS QUICKLY AS POSSIBLE. SO IF I AM GETTING 2 DISTRACTED WITH THE ISSUES THAT WE ARE TRYING TO DEAL WITH IT 3 IS NOT BECAUSE I AM TRYING TO AVOID GIVING YOUR HONOR THE 4 INFORMATION. OF THE 100 -- APPROXIMATELY 100 INDIVIDUALS, IT IS 5 6 46 NOT 49 WHO ARE IN ICE CUSTODY, I BELIEVE. AND SO THERE ARE 7 86 PARENTS THAT HAVE BEEN MAPPED TO -- HAVE BEEN MAPPED TO 83 8 OF THE CHILDREN. 9 HAVE 46 IN ICE CUSTODY, 19 WHO WE UNDERSTAND HAVE BEEN REMOVED OF THESE THOSE 86 PARENTS YOU HAVE -- YOU 10 FROM THE COUNTRY. 11 OF THOSE 86 THEN HAVE BEEN DETERMINED TO HAVE A CRIMINAL 12 HISTORY THAT WOULD MAKE THEM UNFIT OR A DANGER, AND THAT IS 13 CRIMINAL CONVICTIONS RELATING TO CHILD CRUELTY AND KIDNAPPING 14 OR RAPE. 15 THAT MAY DROP THEM OUT OF THE CLASS. 16 19 WHO WERE RELEASED FROM ICE CUSTODY. TWO AS WE UNDERSTAND TODAY -- AND AS THIS IS DEVELOPING SO THAT IS WHY I SAY THAT THESE NUMBERS ARE IN FLUX 17 BECAUSE WHAT STARTS OUT AS A CLASS MEMBER SITUATION MIGHT 18 LATER JUST BE RESOLVED BY NOT FALLING WITHIN THE CLASS RATHER 19 THAN BY CONSIDERING THE REUNIFICATION OPTION. SO I AM SORRY, YOUR HONOR. 20 MR. GALERNT: 21 COULD YOU STATE THOSE NUMBERS AGAIN? 22 AT 19, IF YOU COULD. 19. 23 MS. FABIAN: 24 MR. GALERNT: 25 I AM SORRY, YOUR HONOR. THE 80'S. YOU HAD THEM Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 34 of 66 1 2 THE COURT: THAT'S OKAY. 34 I WOULD LIKE THAT CLARIFICATION, TOO. 3 IF YOU COULD RUN THROUGH THOSE NUMBERS. 4 MR. GALERNT: 5 MS. FABIAN: IF YOU COULD START FROM THE BEGINNING. WE ARE TALKING -- WE ARE -- 83 MINORS 6 WHO HAVE BEEN MAPPED TO 86 PARENTS. AND 16 MINORS WHO HAVE 7 NOT BEEN MAPPED TO PARENTS, SO WE CAN'T CONFIRM THAT -- THOSE 8 ARE THE SITUATIONS WHERE I MENTIONED WHERE PERHAPS THE MINOR 9 HAS REPORTED A SEPARATION BUT IT MAY BE THAT WHEN WE DRILL 10 DOWN -- THIS IS WHY WE HAVE ICE AND O.R.R. IN ROOMS TOGETHER 11 DRILLING THROUGH THESE NUMBERS. 12 THOSE GO INTO THE CLASS, SOME DON'T. SO IT MAY BE THAT SOME OF I DON'T HAVE IT WRITTEN DOWN. 13 I KNOW THERE WAS SOME 14 NUMBER THAT WERE -- AT ONE POINT WERE -- REMAINED IN MARSHAL 15 SERVICE CUSTODY. 16 PART OF THIS. 17 FROM THE COUNTRY. 20 46 ARE IN ICE CUSTODY. 19 HAVE BEEN REMOVED AND 19 WERE RELEASED FROM CUSTODY. AND I AM NOT SURE IF THAT MATH ADDS UP WITHOUT MY 18 19 I DON'T HAVE THAT NUMBER FOR YOU, IF THAT IS PHONE. THE COURT: AND THE CLASS DEFINITION WOULD NOT 21 INCLUDE THOSE THAT ARE REMOVED, BECAUSE IT ASSUMES THE 22 DEFINITION IS THAT THEY ARE WITHIN ICE DETENTION. 23 MS. FABIAN: THAT'S -- THAT HAS BEEN -- AND THAT IS 24 ONE OF THE ISSUES WE RAISED FOR THE COURT. WE DID NOT 25 UNDERSTAND THE ORDER TO BE REFERRING TO PARENTS WHO WERE Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 35 of 66 1 REMOVED BECAUSE THAT WAS NOT A SITUATION FOR THE NAMED 2 PLAINTIFFS, IT IS NOT SOMETHING THAT WAS DISCUSSED IN THE 3 ORDER. 4 DEFINITION. 5 35 SO WE WOULD CONSIDER THOSE OUTSIDE OF THE CLASS THE COURT: YES. THE CLASS DEFINITION HAS BEEN SET, 6 I JUST SIMPLY INVITED PLAINTIFFS' COUNSEL, IF THEY WANTED TO, 7 MOVE TO MODIFY THE SCOPE OF THE CLASS THEY COULD, BUT GIVEN 8 THE URGENCY THE CLASS DEFINITION WAS SET. 9 THESE ANSWERS OR QUESTIONS THAT YOU HAVE CAN BE ANSWERED BY 10 11 12 AND I THINK SOME OF LOOKING AT THE SCOPE OF THE CLASS AS PRESENTLY DEFINED. MR. GALERNT: YOUR HONOR, IF I COULD JUST SPEAK TO THAT CLASS DEFINITION POINT. YES. 13 THE COURT: 14 MR. GALERNT: WE UNDERSTOOD YOUR CLASS DEFINITION, 15 BECAUSE IT SAYS WHO HAVE BEEN IN DHS CUSTODY, TO COVER PEOPLE 16 WHO HAVE BEEN REMOVED. 17 MOST ACUTE SITUATIONS, THE MOST HORRIBLE SITUATIONS, BECAUSE 18 THEN YOU HAVE A PARENT FAR AWAY WONDERING, WHERE IS MY CHILD? 19 AM I EVER -- YOU KNOW, WHAT IS HAPPENING TO MY CHILD IN A 20 FOREIGN COUNTRY? 21 AND I THINK IN SOME WAYS THOSE ARE THE SO WE DID NOT UNDERSTAND THAT. AND IN TERMS OF 22 CLARIFICATION I THINK YOU WERE VERY PRECISE IN SAYING HAVE 23 BEEN, ARE, OR WILL BE IN DHS CUSTODY. 24 25 THE COURT: APPRECIATE THAT. YES. AND YOU ARE CORRECT, AND I Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 36 of 66 1 THAT TERMINOLOGY WAS ADDED IN LIGHT OF THE BRIEFING 2 THAT CAME IN, I THINK ON THE MONDAY MORNING BEFORE THE 3 PRELIMINARY INJUNCTION ISSUED. 4 SO WHAT WOULD BE YOUR POSITION, THEN, FOR PARENTS 5 WHO HAVE BEEN REMOVED? 6 DETENTION, WHAT IS YOUR POSITION WITH RESPECT TO THAT? 7 36 MR. GALERNT: THEY OBVIOUSLY WERE OR HAD BEEN IN ICE WE DEFINITELY BELIEVE THEY ARE WITHIN 8 THE CLASS AND BE REUNITED. I MEAN, WE WOULD BE WILLING TO 9 TALK TO THE GOVERNMENT AND TALK ABOUT EACH OF THE 19 CASES IF 10 THEY SAID, WELL, LOOK, WE NEED A LITTLE BIT MORE TIME ON 11 PARTICULAR CASES. 12 AND WE WOULD BE HAPPY TO FACILITATE AND -- BECAUSE 13 WE HAVE PEOPLE IN CENTRAL AMERICA AND OTHER PLACES READY TO 14 BRING THE PARENT. 15 GOVERNMENT. 16 SO WE WOULD LIKE TO WORK WITH THE I MEAN, I THINK THE 19 CAN GET -- ASSUMING THEY ARE 17 NOT BY THIS WEDNESDAY -- EVEN IF THEY ARE BY THIS WEDNESDAY, 18 BUT THAT THAT CAN BE DONE. 19 YOU GAVE A LONG DEADLINE, AND WE CERTAINLY ARE 20 PREPARED TO HELP THE GOVERNMENT LOCATE THOSE PARENTS AND DO 21 THE REUNIFICATION. 22 MORE DIRE STRAITS, MORE WORRIED ABOUT THEIR CHILDREN THAN 23 OTHER PARENTS, EVEN. 24 THE COURT: 25 JULY 10 IS TUESDAY. BUT I THINK THOSE PARENTS ARE PROBABLY IN WHAT ABOUT THE TIME FRAME, BECAUSE Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 37 of 66 1 MR. GALERNT: 2 THE COURT: RIGHT. SEEMS THAT WITH PARENTS THAT HAVE 3 ALREADY BEEN REMOVED THERE NEEDS TO BE SOME RELAXATION OF 4 THAT. 5 37 MR. GALERNT: RIGHT. YOU KNOW, I THINK THERE 6 PROBABLY DOES, BUT MAYBE NOT. 7 GOVERNMENT IS REPRESENTING OR WHETHER THE GOVERNMENT KNOWS 8 WHETHER ANY OF THE 100 CHILDREN WHO ARE UNDER FIVE HAVE 9 PARENTS REMOVED. 10 I DON'T KNOW WHETHER THE I GUESS THEY ARE SAYING THAT 19 OF THEM HAVE BEEN REMOVED. 11 IS THAT RIGHT, SARAH? 12 MS. FABIAN: 13 MR. GALERNT: 14 I THINK WHAT WE WOULD WANT TO DO -- AND THIS GOES TO THAT'S CORRECT. OKAY. 15 BACK TO HAVING A LIST OF THE INDIVIDUALS -- IS IF THE 16 GOVERNMENT CAME TO US AND SAID, THESE ARE THE 19, DO YOU KNOW 17 WHERE THESE PARENTS ARE? 18 GET DONE BY TUESDAY. 19 CAN YOU -- I THINK IT PROBABLY CAN BUT WE WOULD BE WILLING TO TALK TO THE GOVERNMENT 20 ABOUT SOME RELAXATION AS LONG AS IT KEPT THAT AMOUNT OF 21 URGENCY AND THE GOVERNMENT WOULD WORK WITH US. 22 EXTENT THE GOVERNMENT IS HAVING TROUBLE FINDING THE PARENT, WE 23 COULD PROBABLY ASSIST IN THAT. 24 THE COURT: 25 BECAUSE TO THE WHAT WOULD MAKE SENSE IS FOR THE GOVERNMENT TO PROVIDE A LIST AND TO PUT IN WRITING THE STATUS Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 38 of 66 1 OF EACH OF THESE 101, MEET AND CONFER WITH PLAINTIFFS' 2 COUNSEL, AND REPORT BACK TO THE COURT MONDAY MORNING. 38 THE INJUNCTIVE RELIEF IS NECESSARILY BROAD BECAUSE 3 4 THERE ARE MANY NUANCED ISSUES THAT THE COURT CAN'T POSSIBLY 5 ADDRESS. 6 GOVERNMENT, THE CLASS DEFINITION, AND THEN COMMUNICATION. MUCH OF THIS ASSUMES GOOD FAITH ON THE PART OF THE SO IT MAKES PERFECT SENSE TO ME THAT THE GOVERNMENT 7 8 WOULD IDENTIFY, BY LIST, THESE 101, GIVE THE STATUS. AND THEN 9 WE CAN HAVE A MORE INTELLIGENT CONVERSATION MONDAY MORNING 10 ABOUT WHICH CHILDREN WILL BE REUNITED BY JULY 10, WHICH WILL 11 NOT. 12 MAKE SENSE TO RELAX THE DEADLINE AS FAR AS REUNIFICATION. 13 I WOULD NEED MORE INFORMATION. 14 MS. FABIAN: AND THEN THE COURT CAN DETERMINE WHETHER IT -- IT WOULD BUT YOUR HONOR, THE ISSUE I WOULD TAKE WITH 15 THAT -- AND I UNDERSTAND YOUR HONOR, AND WE HAVE PUT FORWARD 16 OR -- TO SOME EXTENT THIS 101 NUMBER. 17 THEN IS DEFINING THE CLASS NOT BY VIRTUE OF THE CLASS MEMBERS. 18 I MEAN, THE 101 NUMBER IS BASED ON O.R.R., HHS SORT OF GOING 19 OVER AND ABOVE TO IDENTIFY ALL CHILDREN WHOSE PARENTS MIGHT BE 20 CLASS MEMBERS. BUT WHAT WE ARE DOING SO I THINK -- 21 THE COURT: 22 MS. FABIAN: I THINK THAT IS A GOOD THING. I AGREE. AND I WOULD SAY THAT THAT IS, 23 I HOPE, AN INDICATOR OF THE GOVERNMENT'S EFFORTS TO BE WORKING 24 IN GOOD FAITH. 25 BUT WHAT YOUR HONOR I THINK RECOGNIZES IS THAT THESE Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 39 of 66 39 1 ARE THEN A VARIETY OF SITUATIONS THAT WE ARE COMING ACROSS. 2 AND I UNDERSTAND THE COURT'S GOAL WAS TO CERTIFY A CLASS AND 3 ISSUE IMMEDIATE INJUNCTIVE RELIEF THAT WOULD REALLY GET TO 4 SOME REALLY CORE GROUP OF WHAT THE COURT IDENTIFIED. 5 IS THE FOCUS AND THOSE ARE THE ONES, REALLY, WITH SORT OF 6 LEVELS OF -- I DON'T WANT TO SAY SPEED BUT WITH LEVELS OF 7 SUCCESS THAT WE CAN ACHIEVE, REALLY. 8 9 AND THAT AND WHEN YOU START TALKING ABOUT INDIVIDUALS WHO HAVE BEEN REMOVED, YOU REALLY ARE GETTING INTO INDIVIDUALS NOT 10 REPRESENTED BY THE NAMED CLASS MEMBERS. 11 WHOM -- I MEAN IT IS NOT -- THIS IS NOT -- WHEN I SAY IT WOULD 12 TAKE TIME, ICE DOES NOT HAVE THE ABILITY TO GO INTO THESE 13 COUNTRIES. 14 INDIVIDUALS FOR I UNDERSTAND THE OFFER FOR PRIVATE MEMBERS OF THE 15 BAR, BUT YOU ARE REALLY GETTING OUTSIDE OF WHAT INJUNCTIVE 16 RELIEF IN A PRELIMINARY BASIS TO A DEFINED CLASS THAT THE 17 GOVERNMENT NEEDS TO BE ABLE TO IDENTIFY, REALLY. 18 IS -- WE ARE ACTING IN GOOD FAITH ON THE CRIMINAL HISTORY. 19 THINK IT IS STILL DIFFICULT. 20 EXCLUDED, OR IF IT STARTS TO GET INTO AN EVALUATION MADE BY 21 ICE YOU REALLY GET OUTSIDE OF THE IDEA OF CLASS RELIEF BECAUSE 22 YOU NEED TO HAVE AN IDENTIFIABLE CLASS THAT ICE CAN LOOK AT 23 SOMEONE AND SAY WE KNOW YOU ARE IN THIS CLASS, OR NOT. I MEAN, IT I EITHER ALL CRIMINAL HISTORY IS 24 AND HAVING THE MORE REALLY DISCERNIBLE, IDENTIFIABLE 25 MARKERS WE HAVE THERE, THE FASTER WE CAN MOVE FOR THOSE PEOPLE Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 40 of 66 1 40 WHO CAN BE READILY IDENTIFIED. AND WHAT I AM -- THE COURT HAS INVITED PLAINTIFFS TO 2 3 ASK FOR SEPARATE RELIEF FOR THESE OTHER BUCKETS, AND I THINK 4 THAT IS -- IF THE COURT IS CONSIDERING THAT RELIEF IS 5 NECESSARY I THINK THAT REALLY HAS TO BE THE WAY TO APPROACH 6 IT, BECAUSE EFFORTS MADE TO -- THE MORE WE ARE DRILLING DOWN 7 INTO THESE SORT OF SEPARATE SITUATIONS THE MORE IT IS HARD TO 8 KEEP THE FOCUS ON A DISCERNIBLE SET THAT IS WHAT THE COURT 9 INTENDED TO GRANT RELIEF ON THIS EXPEDITED PRELIMINARY BASIS. 10 AND SO THAT IS WHY WE ARE COMING FOR THIS CLARIFICATION. I DON'T WANT TO GET AWAY FROM THE QUESTION OF THE 11 12 PROCEDURES UNDER THE TVPRA. I KNOW WE HAVE GOTTEN INTO SOME 13 OTHER THINGS. 14 SURE I CAN SAY A LITTLE MORE ON THAT SUBJECT. SO I RESERVE TIME BEFORE WE LEAVE TODAY TO MAKE I WANT TO FIRST -- SINCE WE ARE TALKING ABOUT THE 15 16 CLASS DEFINITION, I WANT TO MAKE SURE THAT WE ARE NOT ARGUING 17 HERE TODAY WHETHER RELIEF MIGHT OR SHOULD BE AVAILABLE TO 18 THOSE INDIVIDUALS, I THINK THAT IS SOMETHING THAT SHOULD BE 19 BRIEFED. 20 ORDER SO THAT WE DON'T TAKE AWAY FROM GIVING THE GOVERNMENT AN 21 IDENTIFIABLE CLASS TO DEAL WITH HERE TODAY. 22 TAKE AWAY FROM THAT, I THINK, THE MORE WE TAKE AWAY FROM THE 23 ABILITY TO COMPLY, TO THE BEST OF OUR ABILITY, WITH WHAT IS 24 ORDERED TODAY. 25 AND I THINK IT SHOULD BE DEALT WITH IN A SEPARATE THE COURT: MR. GELERNT. AND THE MORE WE Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 41 of 66 1 MR. GALERNT: 41 YOUR HONOR, I WOULD JUST SAY WITH THE 2 100 KIDS UNDER FIVE, OR 101 KIDS, I AM NOT SURE I UNDERSTAND 3 THE GOVERNMENT'S POSITION THAT THERE IS NOT SOME DISCERNIBLE 4 OBJECTIVE CRITERIA. 5 ARE PART OF THE CLASS. 6 WITH THEM IF THEY NEED MORE TIME. 7 ARE RELEASED FROM DETENTION ARE WITHIN THE CLASS. 8 9 WE KNOW THE PARENTS WHO HAVE BEEN REMOVED WE HAVE JUST SAID THAT WE WILL WORK CERTAINLY THE PARENTS WHO SO I THINK YOUR HONOR'S SUGGESTION THAT THERE BE, BY MONDAY MORNING, A LIST. AND IF THE GOVERNMENT WANTS TO SAY, 10 LOOK, THESE FIVE ARE NOT GOING TO BE REUNITED, WE FOUND 11 CRIMINAL CONVICTIONS, THEN THAT COMES OUT OF YOUR CLASS 12 DEFINITION AND THAT IS -- WE SAY, OKAY, NOW WE UNDERSTAND 13 ABOUT THOSE FIVE. 14 WHETHER THEY ARE SERIOUS CONVICTIONS AND TAKE THOSE UP 15 INDIVIDUALLY. 16 WE BELIEVE IF THERE -- WE WOULD LIKE TO SEE BUT WE, RIGHT NOW, ARE COMPLETELY IN THE DARK. THE 17 GOVERNMENT HOLDS ALL OF THE INFORMATION. 18 INDIVIDUALS, I MEAN, WE CERTAINLY CAN HELP THE GOVERNMENT TRY 19 AND TRACK IT DOWN. 20 CRITERIA AND THE CLASS ARE NOT OBJECTIVE AND DISCERNIBLE. 21 THINK YOUR HONOR USED THOSE CRITERIA PRECISELY, AS YOUR HONOR 22 SAID IN THE OPINION, BECAUSE OF THAT. 23 THE 19 RELEASED BUT I JUST DON'T UNDERSTAND WHY YOUR I SO I WOULD HOPE ON MONDAY MORNING WE COULD -- THE 24 GOVERNMENT IS GOING TO REUNITE EVERYONE THEY CAN REUNITE. 25 BY MONDAY MORNING IF THEY THINK THERE IS INDIVIDUALS THEY AND Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 42 of 66 42 1 CAN'T REUNITE WE CAN DISCUSS THOSE. AND WHETHER WE COME TO 2 YOU OR WHETHER YOU WANT TO HAVE THE MAGISTRATE DEAL WITH THAT 3 NITTY-GRITTY, I DON'T KNOW. BUT I THINK THAT IS WHERE WE ARE. THE OTHER THING I WOULD SAY, YOUR HONOR, JUST 4 5 RELATED TO THIS, IS I DON'T WANT US TO BE BACK HERE, AND I AM 6 SURE YOU DON'T, ON THE 25TH, THE DAY BEFORE THE 30-DAY, WITH 7 THE GOVERNMENT FILING SAYING, WE NEED THIS OR THAT. WE HAVE ASKED THE COURT FOR A FULLER LIST, NOT JUST 8 9 UNDER-FIVE. NOW, THAT DOESN'T HAVE TO BE DONE BY MONDAY 10 MORNING, OBVIOUSLY, BUT WE THINK IT SHOULD BE DONE FAIRLY 11 PROMPTLY THEREAFTER SO WE CAN ACTUALLY FIGURE OUT -- YOU KNOW, 12 WE CAN HELP YOU WITH THESE 400 PEOPLE. 13 ARE. 14 CONVICTIONS, OKAY, WE GET IT. 15 INDIVIDUALLY. 16 TO GO. 17 WE KNOW WHERE THEY OR THESE INDIVIDUALS YOU ARE SAYING HAVE CRIMINAL WE WILL HAVE TO TAKE THOSE UP BUT I THINK ULTIMATELY THAT'S THE WAY IT NEEDS I ALSO THINK THERE NEEDS TO BE NOTICE TO THE CLASS. 18 I TAKE IT THE GOVERNMENT IS LOOKING AT THE NOTICE AND IS GOING 19 TO GET BACK TO US, BUT THE GOVERNMENT HAS BEEN USING A FORM 20 NOW FOR REUNIFICATION WITH THE PARENTS, BUT IT IS DIRECTLY 21 LINKED TO REMOVAL. 22 NOT CLOSE TO BEING REMOVED, ACCORDING TO PEOPLE ON THE GROUND. 23 AND SO IT IS VERY CONFUSING, AND IT DOESN'T SORT OF EXPLAIN 24 ALL OF THE RIGHTS. 25 AND IT IS BEING GIVEN TO PEOPLE WHO ARE SO WE ASK THAT THE GOVERNMENT GET BACK TO US ON OUR Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 43 of 66 1 PROPOSED NOTICE. 2 SEE IF IT WORKS. 3 43 AND IF WE CAN'T AGREE WE SUBMIT IT TO YOU TO BUT WE DO BELIEVE THAT THERE IS SOME COERCION GOING 4 ON, WHETHER IT IS INTENDED OR NOT, WHERE PARENTS ARE NOT 5 UNDERSTANDING THEY DON'T HAVE TO WAIVE THEIR RIGHT TO CONTEST 6 REMOVAL OR GIVE UP THEIR ASYLUM CLAIM IN ORDER TO GET THEIR 7 CHILDREN BACK. 8 9 10 11 THE COURT: ON THE LIST OF CHILDREN, CAN'T YOU PROVIDE THAT INFORMATION, IF ORDERED, RIGHT AWAY? YOU HAVE THE NAMES, I ASSUME. MS. FABIAN: WE CAN, YOUR HONOR. AGAIN, WHAT WE 12 HAVE DISCUSSED SO FAR AND I -- MY UNDERSTANDING IS THE 13 DISCUSSIONS HAVE NOT BEEN COMPLETED IN PART BECAUSE OF TRAVEL 14 AND OTHER THINGS. 15 CLASS MEMBERS. 16 CERTAINLY PROVIDE A LIST, IF ORDERED BY THE COURT. 17 STILL SORT OF DISCUSSING IN WHAT WAY THAT WOULD BE 18 APPROPRIATE. 19 WHAT WE HAVE AVAILABLE. 20 BUT WE HAVE AGREED TO PROVIDE A LIST OF THAT IS NOT AT ISSUE. AND THEN THE -- WE CAN WE ARE BUT CERTAINLY UNDER A COURT ORDER WE CAN PROVIDE THE COURT: A COURT ORDER SUBJECT TO A PROTECTIVE 21 ORDER PENDING FURTHER COURT ORDER, AND SOMETHING THAT COULD BE 22 DONE TODAY? 23 MS. FABIAN: TODAY MIGHT BE TOUGH JUST BECAUSE WE 24 HAVE FOLKS HERE WHO WOULD NEED TO BE WORKING ON IT. 25 CERTAINLY BY MONDAY. BUT Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 44 of 66 44 WHAT I -- AND I DON'T WANT TO -- I DON'T WANT TO 1 2 REPEAT MYSELF TOO MUCH. BUT I GET -- I DO HAVE SOME CONCERNS 3 WITH IDENTIFYING THE CLASS WITH REGARD TO THE CHILDREN 4 IDENTIFIED BY O.R.R. ONCE -- IT IS TO THE GOVERNMENT TO 5 IDENTIFY CLASS MEMBERS, AND IN DOING THAT -- TO DO THAT THE 6 GOVERNMENT HAS MAYBE OVERLY-IDENTIFIED POTENTIAL CHILDREN TO 7 ASSIST IN MAKING SURE THAT THEY HAVEN'T MISSED OR THAT THEY 8 CAN LOCATE OR IDENTIFY THE CLASS MEMBERS THEMSELVES. AND SO IT IS -- THE CHALLENGE WITH US FOR GIVING A 9 10 LIST THAT IS NOT TIED TO CLASS MEMBERSHIP IS THAT THEN WE ARE 11 SORT OF INVITING ARGUMENT ABOUT HOW THE GOVERNMENT -- HOW THE 12 GOVERNMENT IS GOING THROUGH THIS PROCESS OF USING THAT LIST 13 WHICH MAY NOT BE RELEVANT TO CLASS MEMBERSHIP TO GET TO THE -- 14 TO GET TO THE IDENTIFICATION OF CLASS MEMBERS AND THEN REUNIFY 15 THEM. SO OF THAT -- FOR EXAMPLE YOU SAY TO GIVE THE LIST 16 17 OF 101. 18 REMOVED I DON'T KNOW -- I DON'T KNOW THE TIMING OF THAT. 19 WE WOULD SAY THAT FOR THOSE REMOVED PRIOR TO THE COURT'S ORDER 20 THAT WE WOULD -- DO NOT READ THOSE AS BEING MEMBERS OF THE 21 CLASS. 22 BE MEMBERS OF THE CLASS. 23 YOU WOULD HAVE CHILDREN WHO ARE NOT TIED TO ANY IDENTIFIED 24 CLASS MEMBER. 25 WE WOULD SAY THAT -- AND WHEN I HAVE THE NUMBER 19 BUT FOR THE -- INDIVIDUALS WITH CRIMINAL HISTORY WOULD NOT SO IF YOU HAD THAT LIST OF CHILDREN AND SO I WORRY THAT THAT GETS US INTO -- AWAY FROM Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 45 of 66 45 1 THE FOCUS OF WHAT FOLKS ARE CURRENTLY DOING WITH ICE AND 2 O.R.R. RIGHT NOW, WHICH IS DRILLING DOWN ON THOSE LISTS, AND 3 THEN REALLY INVITING MORE CONFUSION INTO THAT PROCESS. WHAT -- THE REASON THAT WE ARE ASKING FOR 4 5 CLARIFICATION IS TO ASSIST US IN COMPLETING THIS 6 IDENTIFICATION PROCESS. 7 ANY ORDER FROM THE COURT, BUT I JUST WANT TO SORT OF IDENTIFY 8 WHY WE WOULD THINK THAT THAT IS NOT A PRODUCTIVE WAY OF MOVING 9 FORWARD IN OUR PROCESS OF IDENTIFYING CLASS MEMBERS AND AND SO OF COURSE WE WOULD COMPLY WITH 10 FACILITATING REUNIFICATION. THAT NUMBER DOES NOT NECESSARILY 11 MEAN THE TOTAL NUMBER WHO MUST BE REUNIFIED UNDER THE COURT'S 12 ORDER. A COUPLE OF OBSERVATIONS. 13 THE COURT: 14 FIRST, THE IDEA OF BEING OVER-INCLUSIVE IS A GOOD 15 ONE. 16 REUNIFICATION FOR CLASS MEMBERS, BUT ALSO TO ESTABLISH A 17 PROCESS THAT CAN INCLUDE OTHERS AND GOING FORWARD IN THE 18 FUTURE WILL RESULT IN TRACKING AND PRODUCTION OF CHILDREN SO 19 THAT THEY CAN BE REUNIFIED WITH THEIR PARENTS AT THE 20 APPROPRIATE TIME. 21 PART OF THE INJUNCTIVE RELIEF IS TO PUT IN PLACE SO BEING OVER-INCLUSIVE IS ENCOURAGED. THE SPECIFIC INJUNCTION, HOWEVER, IS TIED TO THE 22 CLASS DEFINITION. THE CLASS DEFINITION, IN MY VIEW, IS CLEAR. 23 IT SETS THE DEFINITION OF THE CLASS AND IT ALSO ESTABLISHES 24 THE CARVE-OUTS TO THE CLASS. 25 FALL OUT OF THE CLASS, THAT'S A REALITY. SO TO THE EXTENT SOME OF THE 101 MY ENCOURAGEMENT Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 46 of 66 46 1 WOULD BE THAT IF YOU HAVE IDENTIFIED 101 AND A SMALL HANDFUL 2 OF THEM FALL OUTSIDE OF THE CLASS THAT YOU STILL -- YOU TRY TO 3 REUNITE, BECAUSE THAT'S THE SPIRIT OF THE INJUNCTIVE RELIEF 4 AND WHAT EVERYONE IS TRYING TO DO, INCLUDING THE GOVERNMENT. 5 SO THE GOVERNMENT CAN TAKE SOME VERY HARD, NUANCED 6 PARSING OF THE CLASS AND CARVE CHILDREN OUT OF IT. 7 EXTENT YOU HAVE 101, AND TO THE EXTENT SOME OF THEM MIGHT FALL 8 OUT OF THE CLASS, MY ENCOURAGEMENT WOULD BE THAT YOU INCLUDE 9 THEM AND YOU TRY TO REUNIFY THEM. 10 BUT TO THE BUT AS A MATTER OF ENFORCING THE INJUNCTION, I WOULD 11 STAND ON THE CLASS DEFINITION, THE OBJECTIVE STANDARDS THAT 12 ARE SET OUT THEREIN. 13 AND THEN STAND ON THE DEADLINE. I AM PREPARED TO ISSUE AN ORDER, AND IT CAN BE A 14 PROTECTIVE ORDER AT THIS POINT, FOR COUNSEL AND THEIR 15 DESIGNATED AGENTS TO HAVE A LIST OF THESE CHILDREN, THE 101, 16 WE ARE FOCUSING ON THE UNDER-FIVE NOW, VERY SOON; WITH AN 17 ARTICULATION BY THE GOVERNMENT AS TO THE CATEGORIES WHEN THEY 18 ARE GOING TO BE REUNIFIED, CATEGORIES WHERE YOU MAY BE HAVING 19 DIFFICULTY IDENTIFYING WHERE THE PARENTS ARE OR LOCATING THEM 20 OR COMMUNICATING WITH THEM, CATEGORIES LIKE THE REMOVED GROUP, 21 THE 19, WHERE MORE TIME MAY BE NECESSARY. 22 THE COURT NEEDS THAT INFORMATION. PLAINTIFFS 23 CERTAINLY NEED THAT INFORMATION. ONCE THEY HAVE THAT 24 INFORMATION THEN THE PARTIES CAN AGREE THAT HERE IS A GROUP 25 THAT WE CAN REUNIFY WITHOUT PROBLEMS BY JULY 10, HERE IS A Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 47 of 66 47 1 GROUP, FOR EXAMPLE IT IS THE 19 WHO HAVE ALREADY BEEN REMOVED, 2 THE PLAINTIFFS WILL MARSHAL THEIR ENORMOUS RESOURCES AND 3 ATTEMPT TO LOCATE THOSE PARENTS. 4 I WOULD FULLY EXPECT A STIPULATION, JOINT MOTION AND 5 ORDER BY THE PARTIES THAT PERHAPS AS TO THAT GROUP SOME 6 ADDITIONAL TIME MAY BE NEEDED. 7 INFORMATION TO PLAINTIFFS' COUNSEL AND THE COURT, AND THEN IT 8 IS GOING TO REQUIRE COUNSEL TO MEET AND CONFER. 9 BUT THAT IS GOING TO REQUIRE JUST TO CLARIFY. MS. FABIAN: I THOUGHT YOUR HONOR 10 HAD SAID BEFORE THAT PARENTS WHO HAD BEEN REMOVED ARE NOT 11 MEMBERS OF THE CLASS. 12 BELIEVE THAT THEY ARE? 13 THE COURT: IS IT -- IS THE CLARIFICATION THAT YOU YES. I MISSPOKE, BECAUSE THE CLASS, AS 14 IT WAS DEFINED, WAS HAVE BEEN, ARE, OR WILL BE IN ICE 15 DETENTION. 16 SO IT DOES INCLUDE THEM. MS. FABIAN: CAN I ASK. WE HAD ALSO ASKED WHETHER 17 THERE WAS A DATE LIMITATION ON THE HAS BEEN, BECAUSE THERE ARE 18 GOING TO BE SITUATIONS. 19 FILED, YOU HAVE A MANDATORY INJUNCTION THAT'S ASKING THE 20 GOVERNMENT TO UNDERGO A SIGNIFICANT AMOUNT OF EFFORT HERE. 21 AND I THINK WHEN WE ARE GOING BACK ON DATES THAT WELL PRE-DATE 22 THE -- OUTSIDE OF THIS LITIGATION I THINK YOU ARE LOOKING AT 23 SOME NUMBER OF FOLKS WHO MAY HAVE BEEN REMOVED WHOSE CHILDREN 24 MAY HAVE REMAINED IN O.R.R. CUSTODY. 25 I THINK WE HAVE A CASE THAT WAS I UNDERSTAND YOUR HONOR'S POINT THAT OF COURSE TO Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 48 of 66 48 1 THE EXTENT THERE IS AN ABILITY TO LOOK AT THOSE AS PROCESSES 2 ARE DEVELOPED THAT MAY BE SOMETHING. 3 INJUNCTION IN DEALING WITH DIFFICULT DATES I THINK IT WOULD BE 4 HELPFUL FOR THE GOVERNMENT -- WE HAVE PROPOSED THE DATE THAT 5 THE AMENDED COMPLAINT WAS FILED, WHICH I BELIEVE IS MARCH 9TH, 6 THAT THERE BE A DATE FOR THOSE SEPARATIONS THAT AFTER WHICH -- 7 OR BEFORE WHICH AN INDIVIDUAL WOULD NOT BE A MEMBER OF THE 8 CLASS. 9 THE COURT: 10 BUT AS PART OF THE MR. GELERNT. MR. GALERNT: YOUR HONOR, I AM NOT SURE I COMPLETELY 11 UNDERSTAND THAT. 12 EXAMPLE, MS. L. WAS BEFORE WE AMENDED THE COMPLAINT. 13 WE FILE A COMPLAINT AND WE SAY STOP IT GOING FORWARD AND 14 REUNIFY ALL OF THOSE CHILDREN UNDER THE PRIOR PRACTICE. 15 THINK THAT IS FAIRLY STANDARD AND I ASSUME THAT IS WHAT YOUR 16 HONOR MEANT IN THE CLASS DEFINITION: 17 OTHERWISE IT WOULD MAKE NO SENSE THAT MS. L. IS THE LEAD 18 PLAINTIFF. 19 I THINK IT NECESSARILY WOULD, BECAUSE, FOR THE COURT: I THINK I HAVE, ARE, OR WILL BE. I AM NOT SURE A DATE IS NEEDED BECAUSE 20 THE CLASS IS SELF-DEFINING IN SO MANY WAYS. SO I AM 21 RELUCTANT, ABSENT FURTHER BRIEFING OR DISCUSSION, SIMPLY TO 22 PICK A DATE. 23 YOU ARE GOING TO KNOW THE INDIVIDUALS. 24 NUMBER. 25 ABOUT THOUSANDS UPON THOUSANDS. IT SEEMS TO ME, GIVEN THE CLASS DEFINITION, THAT AND IT IS A FINITE WE ARE NOT -- RELATIVELY SPEAKING WE ARE NOT TALKING Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 49 of 66 49 AND SO IT SEEMS TO ME, GIVEN THE PRESENT CLASS 1 2 DEFINITION, THE GOVERNMENT CAN IDENTIFY, FOR EXAMPLE, THOSE 3 THAT HAVE ALREADY BEEN REMOVED. 4 IT MAY BE THE 19. 5 FEW MORE. 6 CLASS GOES BACK IN TIME IS WARRANTED. 7 IT WILL BE A FINITE NUMBER. WE MOVE TO THE OLDER GROUP, THERE MAY BE A I DON'T KNOW WHETHER FASHIONING A DATE BY WHICH THE MS. FABIAN: I WOULD HAVE TO GET MORE INFORMATION 8 FROM MY CLIENT ON THIS. BUT I THINK IT WOULD ALSO INCLUDE, 9 FOR EXAMPLE, YOU HAVE A CHILD IN O.R.R. CUSTODY WHO WAS -- 10 WHOSE PARENT HAS NEVER COME FORWARD TO SPONSOR THEM WHO MAY BE 11 IN THE UNITED STATES FOR YEARS. 12 TO BE RELEASED FROM HSS CUSTODY BECAUSE THE PARENT HAS NEVER 13 OFFERED TO SPONSOR. 14 AND THE CHILD HAS BEEN UNABLE THERE ARE, SADLY, SITUATIONS LIKE THAT. AND I THINK, AGAIN -- AND MAYBE THIS REALLY BRINGS 15 US BACK TO PART OF WHAT WE ARE ASKING FOR TODAY IS THE 16 RECOGNITION THAT THERE ARE THESE SITUATIONS THAT -- I DON'T 17 WANT TO -- THEY ARE PERIPHERAL BUT THEY ARE ALSO NOT 18 INSUBSTANTIAL. 19 MEET THE COURT DEADLINES IT IS TO CARVE OUT THE PERIPHERAL 20 SITUATIONS FROM THE GOVERNMENT'S EFFORTS SO THAT THE 21 GOVERNMENT CAN FOCUS ITS EFFORTS ON THE IMMEDIATE NEED, WHICH 22 IS THE CENTRAL, THE SORT OF CORE OF THE COURT'S CLASS AND 23 RELIEF ORDER. 24 25 AND TO HAVE TO REALLY GET TO WHAT WE CAN DO TO AND I TAKE YOUR HONOR'S POINT THAT THERE ARE -THERE IS THE HOPE THAT THERE COULD BE OTHER RESULTS. BUT I Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 50 of 66 50 1 THINK RIGHT NOW WE REALLY DO NEED TO FOCUS THE EFFORTS ON THE 2 CORE IDENTIFIABLE GROUP. 3 TO IDENTIFY THE PLACES WHERE THESE DIFFICULTIES, WHERE THESE 4 DIFFERENCES FROM WHAT THE CLASS SITUATION WAS DIFFERENT -- 5 OUTSIDE THE MAYBE POLICY CONCERNS THAT THE COURT WAS 6 ADDRESSING IN ITS ORDER. 7 THE CLASS AND NOT PART OF THE RELIEF ORDER, THAT ALLOWS US TO 8 FOCUS ON THE CORE GROUP THAT WE UNDERSTOOD TO BE WHAT YOUR 9 HONOR INTENDED US TO FOCUS ON. AND THAT IS WHY WE HAVE REALLY TRIED AND WHERE, IF THOSE ARE NOT PART OF YOUR HONOR, MAY I JUST MAKE ONE POINT. 10 MR. GALERNT: 11 I THINK -- I DON'T HAVE MUCH TO ADD TO WHAT I SAID 12 BEFORE, THE CLASS NECESSARILY HAS TO GO BACK BEFORE THE 13 AMENDED COMPLAINT. THE GOVERNMENT COUNSEL BROUGHT UP A CASE WHERE MAYBE 14 15 THE CHILD HAS BEEN IN O.R.R. FOR YEARS AND THE PARENT HASN'T 16 COME FORWARD. 17 CHILD WHO CAME BY HIMSELF AND A PARENT WHO IS LIVING IN THE 18 U.S. 19 IT WOULD BE ARTIFICIAL TO HAVE A PRIOR DEADLINE. 20 THAT IS NOT A SEPARATED PARENT. THAT MAY BE A THOSE ARE OBVIOUSLY NOT PART OF THE CLASS. I JUST THINK THE ONLY THING I WOULD SAY, AND THEN I WILL SIT 21 DOWN -- I ASSUME WE ARE COMING TO A CLOSE -- IS THAT IF MONDAY 22 WE COULD NOT ONLY HAVE THE LIST OF UNDER-FIVE BUT THE 23 GOVERNMENT COULD SIGN OFF OR SAY, WE CAN'T SIGN OFF ON THE 24 NOTICE TO CLASS MEMBERS. 25 BECAUSE WHAT WE ARE ASKING FOR IS THAT THEY POST IT Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 51 of 66 51 1 OR WE CAN HAVE PRIVATE ATTORNEYS POST IT IN DETENTION CENTERS 2 SO PARENTS HAVE SOME SENSE THERE HAS BEEN A RULING, THEY ARE 3 SUPPOSED TO GET THEIR CHILDREN BACK. 4 THEIR RIGHT TO APPLY FOR ASYLUM. THEY DON'T HAVE TO WAIVE THE CLASS NOTICE WE DRAFTED IS VERY SHORT, WE THINK 5 6 VERY SIMPLE, AND THERE SHOULDN'T BE A LOT OF DISAGREEMENT. 7 BUT WE UNDERSTAND THE GOVERNMENT MAY, OF COURSE, HAVE 8 DISAGREEMENT. 9 DISAGREEMENTS WE WOULD LIKE TO SUBMIT IT TO YOU MONDAY FOR YOU AND IF WE CAN'T OVER THE WEEKEND AGREE ON THE 10 TO EYEBALL AND SAY, THIS LOOKS OKAY, DOESN'T LOOK OKAY, MAKE 11 THESE MODIFICATIONS. BUT WE DO THINK AT THIS POINT, GIVEN THIS VULNERABLE 12 13 POPULATION, THEY OUGHT TO AT LEAST KNOW ABOUT YOUR RULING. 14 MS. FABIAN: WE HAVE ALREADY BEEN IN DISCUSSIONS 15 ABOUT THE CLASS NOTICE. 16 NOTICES. 17 BY MONDAY, HOPEFULLY BEFORE. 18 19 20 I THINK WE HAVE SORT OF CROSS SO WE WILL LOOK AT THAT AND WE WILL HAVE AN ANSWER THE COURT: WHAT ABOUT THE O.R.R. POLICIES, PROCEDURES? MS. FABIAN: YEAH. THANK YOU, YOUR HONOR. I WANT 21 TO MAKE SURE THAT WE DON'T LEAVE WITHOUT ADDRESSING THAT, 22 BECAUSE I THINK IT IS VERY IMPORTANT. 23 I WANT TO SORT OF I THINK TO YOUR HONOR'S QUESTION 24 WHICH WAS, YOU KNOW, ARE THESE -- THESE ARE POLICIES OF THE 25 AGENCY BUT THEY ARE POLICIES THAT IMPLEMENT THE TVPRA AND THE Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 52 of 66 52 1 STATUTORY REQUIREMENTS. SO THEY ARE NOT -- I THINK MAYBE TO 2 REALLY CLARIFY WHAT I WAS ARGUING BEFORE, THE COURT CAN ORDER 3 THAT O.R.R. NOT FOLLOW THOSE POLICIES, BUT O.R.R. BELIEVES 4 THAT IT IS NOT A SIMPLE MATTER OF HHS JUST DECIDING NO LONGER 5 TO FOLLOW THESE PROCEDURES. IT REALLY -- WHAT -- IF THE COURT BELIEVES THAT 6 7 THESE REUNIFICATIONS SHOULD FALL OUTSIDE THE PROTECTIONS OF 8 THESE TVPRA POLICIES, THEN THE AGENCY WOULD ASK THAT THE COURT 9 SPECIFICALLY STATE THAT AND SAY THAT THESE POLICIES DO NOT 10 APPLY IN THE SITUATION OF THESE REUNIFICATIONS. AND RELATEDLY 11 WE WOULD ASK THE COURT TO CLARIFY IF THAT INITIAL STEP OF 12 DETERMINING PARENTAGE, IF THAT ALSO -- IF THAT DOES APPLY, IF 13 THAT IS A NECESSARY STEP, AND IF THE PROCEDURES THAT THE 14 GOVERNMENT IS EMPLOYING TO DO THAT ARE NECESSARY AND 15 PERMISSIBLE UNDER THE COURT'S ORDER. 16 I THINK, AGAIN, THE THIRD ASK REALLY RELATED TO ALL 17 OF THAT IS THAT IS -- IS THE GOAL THEN TO THE EXTENT THAT ANY 18 OF THOSE PROCEDURES REMAIN -- THE COURT BELIEVES THOSE REMAIN 19 NECESSARY, IS THAT -- DOES THAT THEN MEAN THAT THOSE 20 PROCEDURES, IF THEY TAKE LONGER, THEN THE COURT'S DEADLINE, IS 21 THAT PERMISSIBLE AND CAN THE COURT GIVE THE GOVERNMENT THE 22 RELIEF OF ALLOWING THEM MORE TIME TO COMPLETE THE PROCEDURES 23 THAT THE COURT AGREES THAT THE GOVERNMENT SHOULD CONTINUE TO 24 FOLLOW. 25 THE COURT: ONE OF THE GREAT DIFFICULTIES IS I DON'T Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 53 of 66 53 1 KNOW WHAT PROCEDURES AND POLICIES YOU ARE SPECIFICALLY TALKING 2 ABOUT. 3 THOSE ASIDE, I AM NOT PREPARED TO DO WITHOUT A STIPULATION OR 4 A JOINT MOTION AND ORDER OR ADDITIONAL BRIEFING. SO FOR THE COURT SIMPLY TO SAY WE ARE GOING TO BRUSH WHAT I AM PREPARED TO SAY IS, IF THE POLICIES AND 5 6 PROCEDURES YOU ARE TALKING ABOUT ARE INTERNALLY CONSISTENT 7 WITH THE COURT'S ORDER, AND THAT IS TO REUNIFY ABSENT 8 CONSIDERATIONS OF DANGER OR UNFITNESS OR CRIMINAL HISTORY OR 9 DISEASE, THAT KIND OF THING, THEN THE GOVERNMENT SHOULD DO 10 THAT. THEY SHOULD NOT WORRY ABOUT THOSE TYPES OF POLICIES AND 11 PROCEDURES BECAUSE, AS I UNDERSTAND IT, THEY WOULD BE 12 CONSISTENT WITH THE COURT'S ORDER. BUT IF THERE ARE OTHER POLICIES AND PROCEDURES THAT 13 14 ARE HAMSTRINGING THE O.R.R. AND THE REUNIFICATION PROCESS, I 15 WOULD LIKE TO KNOW WHAT THEY ARE. 16 WHETHER I HAVE THE LEGAL AUTHORITY AND WHETHER IT IS PRUDENT 17 TO SET THOSE ASIDE. AND THEN I CAN DETERMINE 18 SO I THINK WHAT -- WHAT I AM CONTEMPLATING IS THAT 19 GOVERNMENT PROVIDE A LIST TO PLAINTIFFS' COUNSEL TOMORROW BY 20 5:00 P.M., WITH AN IDENTIFICATION OF THE CHILDREN AND THE 21 STATUS. 22 MEET THE DEADLINE, WE ARE HAVING TROUBLE WITH THIS GROUP 23 MEETING THE DEADLINE BECAUSE OF, AND SET OUT THE REASONS. 24 25 YOU CAN GROUP THEM. AND A TIMELINE: YES, WE CAN AND THEN I WOULD LIKE COUNSEL TO MEET AND CONFER AND THEN SUBMIT MONDAY MORNING, OR EARLIER, SO I HAVE TIME TO Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 54 of 66 54 1 DIGEST IT, A STIPULATION, JOINT MOTION AND ORDER, OR AREAS 2 WHERE THERE ARE DISAGREEMENTS. 3 DON'T HAVE ENOUGH INFORMATION NOW TO SIMPLY SAY TO THE 4 GOVERNMENT YOU CAN IGNORE THE O.R.R. POLICIES, AND I DON'T 5 KNOW WHICH ONES YOU ARE TALKING ABOUT. 6 MS. FABIAN: THEN I CAN RULE ON THOSE. I I THINK PART OF THE PROBLEM IS THAT 7 THEY REALLY WILL BE CASE BY CASE. AND I DON'T THINK THEY ARE 8 INCONSISTENT WITH THE COURT'S ORDER. 9 THE CONCERN IS CONSISTENCY SO MUCH AS THAT THEY ALL, IN AND I DON'T KNOW THAT 10 O.R.R.'S MIND, ARE NECESSARY TO ENSURE SAFETY BUT THEY TAKE 11 LONGER THAN THE DEADLINE PROVIDED BY THE COURT. 12 THE COURT: YES. SO IN THAT REGARD, AGAIN I GO BACK 13 TO THE OVERARCHING OBSERVATION, AND THAT IS THAT THE 14 GOVERNMENT MUST REUNITE. 15 UNLESS THERE IS AN ARTICULABLE REASON. 16 THAT ONCE THE PLAINTIFFS KNOW WHAT THE REASON IS AND WHAT 17 GROUP IT APPLIES TO, THEY WILL AGREE. 18 MORE RELAXED DATE CAN APPLY TO A CERTAIN GROUP OF THESE CLASS 19 MEMBERS. 20 IT MUST COMPLY WITH THE TIME FRAME, AND IT MAY WELL BE AND IT MAY BE THAT A BUT NO ONE CAN MAKE ANY INFORMED DECISION, INCLUDING 21 THE COURT, AND PARTICULARLY PLAINTIFFS' COUNSEL, WHETHER OR 22 NOT TO OBJECT OR TO ASK THE COURT TO MAKE ADDITIONAL ORDERS 23 WITHOUT ADDITIONAL INFORMATION. 24 STARTING POINT. 25 SO THAT HAS TO BE THE AND SO I ASK THE GOVERNMENT TO FOCUS ON THE CLASS Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 55 of 66 1 DEFINITION, THE CARVE-OUTS TO THE CLASS. 2 BY 5:00 O'CLOCK TOMORROW. 3 MONDAY, 9:00 A.M. 55 TO PROVIDE THIS LIST PLAINTIFFS' COUNSEL TO RESPOND BY HOPEFULLY THERE WILL BE A NUMBER OF JOINT MOTIONS 4 5 AND ORDERS, STIPULATIONS, IF YOU WILL. OR IF THERE IS 6 DISAGREEMENT IT CAN BE A PRINCIPLED, FOCUSED BRIEFING AND I 7 CAN RULE ON IT MONDAY. THANK YOU, YOUR HONOR. 8 MS. FABIAN: 9 I HAD ONE OTHER POINT THAT WE HAD RAISED IN OUR 10 BRIEF. I THINK THIS ONE WILL BE EASIER FOR THE COURT, I HOPE. IT WAS THE SECOND POINT IN OUR BRIEF AND IT HAS TO 11 12 DO WITH -- I THINK IT IS PARAGRAPH 1 OF THE COURT'S ORDER 13 WHICH SUGGESTS -- IT ORDERS THAT DHS SHALL NOT HOLD AN ADULT 14 CLASS MEMBER IN ITS CUSTODY WITHOUT THE MINOR CHILD. READ IN CONJUNCTION WITH -- THE PROCESSES THAT ARE 15 16 UNDERWAY FOR REUNIFICATION, HHS CAN REUNIFY FASTER IN 17 ACCORDANCE WITH ITS POLICIES UNDER THE TVPRA TO AN ADULT WHO 18 REMAINS IN CUSTODY THAN TO AN ADULT WHO HAS BEEN RELEASED FROM 19 CUSTODY. 20 SO DHS IS CONCERNED THAT IF REUNIFICATION HASN'T 21 HAPPENED IMMEDIATELY BEFORE THE COURT'S DEADLINE THAT IN ORDER 22 TO COMPLY WITH PARAGRAPH 1 IT WOULD NEED TO RELEASE 23 INDIVIDUALS FROM ITS CUSTODY. 24 WITH THE GOVERNMENT'S GOAL OF A FASTER REUNIFICATION IN 25 CONJUNCTION WITH SORT OF PARAGRAPHS 1 AND 2. BUT THAT WOULD BE INCONSISTENT Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 56 of 66 56 1 SO WE WOULD ASK FOR CLARIFICATION THAT PARAGRAPH 1 2 DOES NOT REQUIRE RELEASE OF THE PARENT PRIOR TO THE DEADLINE 3 IF THAT RELEASE WOULD ULTIMATELY SLOW DOWN THE REUNIFICATION 4 PROCESS. 5 ESSENTIALLY IT WOULD BE, I THINK, THAT REUNIFICATION 6 IS THE GOAL HERE AND THAT PARAGRAPH 1, TO THE EXTENT IT COULD 7 BE READ TO REQUIRE RELEASE UNRELATED TO REUNIFICATION, THAT IT 8 SHOULD SORT OF BE READ SECONDARY TO THE REUNIFICATION GOAL. 9 THE COURT: THE COURT IS SPEAKING ONLY TO 10 REUNIFICATION. 11 UP TO THE GOVERNMENT. 12 DECIDE WHETHER TO RELEASE OR DETAIN, AND YET COMPLY WITH THE 13 COURT'S ORDER. 14 DETENTION, THAT WOULD BE UP TO THE GOVERNMENT. 15 WHETHER THE GOVERNMENT RELEASES OR DETAINS IS BUT IT HAS TO EXERCISE DISCRETION AND BUT I AM NOT ORDERING EITHER RELEASING OR SO IT MAY BE A QUANDARY THAT THE GOVERNMENT FEELS IT 16 HAS, BUT IT IS REALLY -- IT COMES DOWN TO THE GOVERNMENT'S 17 EXERCISE OF DISCRETION. 18 MS. FABIAN: IT HAS GOT TO DO ONE OR THE OTHER. I THINK THAT CLARIFIES IT, YOUR HONOR. 19 I THINK WE JUST WANT TO BE ABLE TO SAY THAT REUNIFICATION 20 SHOULD NOT BE SLOWED DOWN ON THE BASIS THAT PARAGRAPH 1 MIGHT 21 BE READ TO REQUIRE ICE TO RELEASE A PARENT EVEN IF THEY ARE 22 NOT TO BE REUNIFIED AT THAT TIME I THINK IS REALLY -- I THINK 23 IT WOULD GO AGAINST THE OVERALL TENOR OF THE COURT'S ORDER 24 WHICH IS THAT REUNIFICATION IS THE GOAL. 25 TO GET CLARIFICATION THAT PARAGRAPH 1 DOESN'T, IN AND OF BUT WE JUST WANTED Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 57 of 66 1 57 ITSELF, REQUIRE RELEASE. I THINK WHAT YOUR HONOR IS SAYING IS THAT RELEASE IS 2 3 NOT THE GOAL OF THE ORDER, REUNIFICATION IS THE GOAL OF THE 4 ORDER. AND I THINK THAT WOULD CLARIFY THE POINT. MR. GELERNT. 5 THE COURT: 6 MR. GALERNT: I APOLOGIZE. I AM NOT FULLY FOLLOWING 7 THE LOGISTICAL PROBLEM THE GOVERNMENT IS SUGGESTING. 8 AGREE, YOUR HONOR, WITH YOUR POINT, THE OVERARCHING POINT THAT 9 THE RULING DOESN'T REQUIRE RELEASE, IT DOESN'T REQUIRE 10 DETENTION; IT REQUIRES REUNIFICATION. I AM NOT SURE I COMPLETELY UNDERSTAND THE LOGISTICS 11 12 POINT. 13 THINK THAT IS WHAT WE CARE ABOUT. IF THE REUNIFICATION OCCURS WITHIN THE DEADLINE THEN I I APOLOGIZE, I AM NOT COMPLETELY FOLLOWING. 14 15 BUT WE BUT IT SOUNDS LIKE YOU TWO ARE FOLLOWING IT, SO THAT IS OKAY. THE ONLY THING I WANTED TO JUST CLARIFY, THEN I 16 17 THINK THAT IS IT FOR US, IS, SO WE WILL GET -- I ASSUME 5:00 18 O'CLOCK PACIFIC TIME SATURDAY. 19 THE COURT: 20 MR. GALERNT: YES. THE LIST OF INDIVIDUALS AND THE 21 GOVERNMENT'S EXPLANATION FOR WHY THEY MAY NEED MORE TIME OR 22 WHY THEY THINK AN INDIVIDUAL FALLS OUT OF THE CLASS. 23 IS PERFECT BECAUSE IT ALLOWS US TO RESPOND, AS YOUR HONOR 24 SAID. 25 AND THAT IN TERMS OF THE O.R.R. PROCEDURES, THE ONLY THING I Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 58 of 66 58 1 WOULD SAY IS, I THINK YOU ARE RIGHT, YOUR HONOR, THAT I ALSO 2 AM NOT SURE EXACTLY ALL OF THE PROCEDURES THEY ARE TALKING 3 ABOUT, AND WHICH ONES THEY WANT TO CONTINUE FOLLOWING IN THIS 4 UNIQUE SITUATION AND WHICH ONES THEY DON'T FEEL LIKE THEY NEED 5 TO FOLLOW. 6 WE COULD STIPULATE. 7 IT WOULD BE HELPFUL FOR US TO KNOW SPECIFICALLY SO I THINK MOST OF THEM ARE, OF COURSE, DESIGNED FOR 8 EXACTLY WHAT YOUR HONOR POINTED OUT IS THE CHILD COMES HERE BY 9 THEMSELVES, THEY HAVE TO FIND A DISTANT RELATIVE. AND SO, FOR 10 EXAMPLE, THE TVPRA, THE ONLY REAL REQUIREMENT OF TVPRA IS A 11 HOME VISIT. 12 INVESTIGATING THE RELATIVE, YOU KNOW, THE THIRD UNCLE, THAT 13 MAKES LITTLE SENSE. 14 BUT THAT MAKES LITTLE SENSE IN THIS CONTEXT. OR THEY ARE ALSO APPARENTLY FINGERPRINTING, AS O.R.R. 15 DOES, FINGERPRINTING EVERYONE. IN THE CONTEXT OF AN UNCLE 16 COMING FORWARD THAT MAKES SENSE. 17 PARENT AND CHILD WHO CROSSED THE BORDER AND WAS APPREHENDED 18 WAS FINGERPRINTED AT THAT TIME, SO A SECOND FINGERPRINTING 19 ROUND CLEARLY DOESN'T MAKE SENSE. 20 TO BELIEVE THE PARENT AND CHILD ARE NOT ACTUALLY THE PARENT 21 AND CHILD, THE TIME AND CUMBERSOMENESS OF A DNA TEST MAKES 22 LITTLE SENSE. BUT IN THIS CASE EVERY AND IF THERE IS NO REASON 23 SO THAT IS WHY WE THINK THERE IS VERY LITTLE THAT 24 O.R.R. DOES IN THE GENERAL SITUATION, WHICH IS GREAT, MAKES 25 SENSE HERE. AND SO WE WOULD JUST HOPE THAT THE GOVERNMENT Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 59 of 66 59 1 COULD TELL US WHICH THINGS THEY STILL THINK THEY NEED TO DO. 2 AND IF WE DISAGREE WE COULD COME TO YOU, BUT THEN IT WOULD BE 3 A VERY CONCRETE DISCUSSION. 4 WE JUST DON'T WANT -- BECAUSE WE WANT TO DEAL WITH 5 THE UNDER-FIVE RIGHT NOW, BUT OBVIOUSLY THE GOVERNMENT NEEDS 6 TO CONTINUE WITH THE PROCESS TO MEET THE 30-DAY DEADLINE, WE 7 CAN GET THAT SQUARED AWAY ABOUT WHAT PROCEDURES THEY ARE GOING 8 TO USE GOING FORWARD. THANK YOU, YOUR HONOR. 9 10 THE COURT: I WOULD ASSUME THIS IS AN AREA WHERE 11 COUNSEL CAN MEET AND CONFER AND STIPULATE. 12 AND THAT IS WHAT I WOULD URGE THE PARTIES TO DO. 13 JOINT MOTION AND ORDER MONDAY MORNING ON THESE O.R.R. POLICIES 14 AND PROCEDURES THAT ARE BEING REFERENCED. 15 MR. GALERNT: 16 MS. FABIAN: THAT IS MY HOPE, AND SUBMIT A YES, YOUR HONOR. I WILL -- WE WILL DO OUR BEST, YOUR 17 HONOR. 18 FOR AGENCIES TO STIPULATE AWAY WHAT THEY FEEL ARE THEIR 19 STATUTORY RESPONSIBILITIES. 20 I THINK WE NEED TO THINK CREATIVELY ABOUT HOW TO TEE IT UP FOR 21 THE COURT TO GIVE YOU SOMETHING MORE CONCRETE. 22 WE HAVE SORT OF TEED THIS UP, BUT IT IS SOMETHING THAT WE 23 WOULD LIKE AN ANSWER ON QUICKLY AND MORE BROADLY. 24 HOPEFULLY -- 25 I THINK THERE IS A CHALLENGE. I THINK IT IS DIFFICULT AND SO I THINK THAT IS WHY -- AND I UNDERSTAND SO I WANTED TO CLARIFY THAT YOU MEAN A LIST OF THE Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 60 of 66 1 60 UNDER-FIVE POPULATION FOR MONDAY. 2 THE COURT: 3 MS. FABIAN: YES. SO HOPEFULLY -- I CAN'T PROMISE A 4 STIPULATION BUT I THINK MAYBE IN THE CONTEXT OF EXAMPLES WE 5 COULD TEE UP FOR THE COURT THE TYPES OF TVPRA PROCEDURES THAT 6 WE ARE TALKING ABOUT, AND IDENTIFY FOR THE COURT HOW THOSE 7 APPLY AND MAYBE GIVE THE COURT MORE INFORMATION -- 8 THE COURT: 9 MS. FABIAN: 10 YES. -- TO BE ABLE TO DO THAT. AGAIN, I JUST DON'T WANT TO -- I DON'T WANT TO 11 OPTIMISTICALLY SAY I WILL BE HERE WITH A STIPULATION BECAUSE I 12 DO THINK THAT THAT IS A DIFFICULT THING FOR THE AGENCY TO 13 STIPULATE AWAY, BUT WOULD ASK FOR THE COURT'S INPUT. 14 AND I AM TOLD BY MY CLIENT THAT PERHAPS WE DON'T 15 FULLY UNDERSTAND ON MY OTHER POINT. I JUST WANT TO SAY THE 16 CLARIFICATION WE ARE ASKING FOR IS THAT PARAGRAPH 1 OF THE 17 COURT'S ORDER IS NOT ORDERING RELEASE OF ANY PARENT BY THE 18 COURT'S THE DEADLINE. 19 COURT'S DEADLINE UNDER PARAGRAPH 1, WOULD NOT SATISFY WHAT THE 20 COURT IS ORDERING IN ITS PRELIMINARY INJUNCTION, WHICH IS IN 21 FACT REUNIFICATION. THAT RELEASE, IN AND OF ITSELF, BY THE MR. GELERNT, DO YOU HAVE ANY -- 22 THE COURT: 23 MR. GALERNT: I THINK, YOUR HONOR, IF I AM 24 UNDERSTANDING NOW, IT IS THAT RELEASE OF THE PARENT DOESN'T 25 SATISFY THE COURT'S ORDER, IT HAS TO BE REUNIFICATION. JUST Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 61 of 66 61 1 PUTTING THE PARENT OUT ON THE STREET AND SAYING, NOW GO FIND 2 YOUR KID, IS NOT GOING TO COMPLY WITH THE ORDER, SO THAT IT 3 HAS TO ACTUALLY BE REUNIFICATION. 4 UNDERSTAND IT AS WELL, SO I THINK WE ARE ON THE SAME PAGE, 5 THEN. 6 AND THAT IS THE WAY WE AND THE GOVERNMENT SHOULD FOLLOW THE MS. FABIAN: 7 PROCEDURES THAT WILL LEAD TO THE -- THE EARLIER REUNIFICATION, 8 RATHER THAN READING PARAGRAPH 1 AS TO REQUIRE RELEASE 9 INDEPENDENT OF THAT REUNIFICATION. I THINK THAT IS WHAT WE 10 INTEND TO DO, AND WE JUST WANTED TO CLARIFY THAT THAT IS, IN 11 FACT, THE INTENT OF THE ORDER. 12 THE COURT: 13 MR. GALERNT: 14 THE ONLY OTHER THING I WOULD SAY IS SOMETHING THAT DO YOU AGREE? YES, YOUR HONOR. 15 WAS IN THE AFFIDAVIT, AND THIS MAY BE SOMETHING WE CAN WORK 16 OUT PRIVATELY. 17 TALKING TO CHILD ADVOCATES. 18 AND MY UNDERSTANDING IS THAT DHS MAY BE OUR UNDERSTANDING FROM THE AFFIDAVIT IS THEY ARE 19 GOING TO BRING PARENTS TO A FACILITY. TO THE EXTENT THEY ARE 20 GOING TO REUNIFY BY THE 10TH, BRING PARENTS TO A FACILITY 21 CLOSE TO WHERE THE CHILD IS BEING DETAINED. 22 THE PARENT. AND THEN RELEASE 23 WE WOULD ASK THAT WE BE NOTIFIED WHERE THE PARENT IS 24 GOING TO BE RELEASED, BECAUSE THE PARENTS ARE GOING TO HAVE NO 25 MONEY, THEY ARE GOING TO JUST BE PUT OUT ON THE STREET IN Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 62 of 66 62 1 DETROIT OR WHEREVER. AND WE ARE PREPARED TO MAKE SURE EVERY 2 ONE OF THOSE PARENTS HAS SOMEONE THERE WITH THEM WHEN THEY 3 WALK OUT. 4 TO GET THEIR CHILD. A CAR SERVICE, WHATEVER THEY NEED. A HOTEL ROOM. SO I THINK IF THE GOVERNMENT CAN ALERT US TO, WE ARE 5 6 GOING TO SEND THE PARENT TO THIS FACILITY IN DETROIT, THE 7 CHILD IS SOMEWHERE CLOSE BY IN DETROIT, WE WILL FACILITATE. 8 THAT IS OBVIOUSLY NOT SOMETHING WE ARE ASKING THE GOVERNMENT 9 TO DO ON TAXPAYER MONEY, TO REUNITE AND PAY FOR A HOTEL AND 10 ALL THAT. 11 THE VOLUNTEERS ARE. 12 REUNIFICATION IS GOING TO HAPPEN. 13 THINK, AT SOME POINT. 14 MS. FABIAN: 15 MR. GALERNT: 16 MS. FABIAN: 17 BUT WE ARE PREPARED TO DO THAT, AND I THINK ALL OF WE JUST NEED TO KNOW WHERE THAT WE CAN WORK THAT OUT, I THAT IS NOT A PROBLEM, YOUR HONOR. OKAY. AND THOSE TRANSFERS IN LARGE PART HAVE ALREADY OCCURRED, AND WE WILL WORK WITH PLAINTIFFS ON THAT. ALL RIGHT. 18 THE COURT: 19 WILL COUNSEL BE HERE THIS WEEKEND, OR ARE YOU GOING 20 21 BACK? MR. GALERNT: 22 WHATEVER IS EASY. 23 STAY THE WEEKEND. 24 25 WE WILL DO WHATEVER. WE WILL DO IF IT IS BETTER FOR US TO BE HERE, WE WILL MS. FABIAN: I HAVE DOG SITTING RESPONSIBILITIES THAT REQUIRE ME TO GO BACK TO COLORADO, BUT I WILL BE BACK ON Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 63 of 66 1 63 MONDAY. I WOULD LIKE TO MEET AGAIN, PERHAPS 2 THE COURT: 3 MONDAY AT 10:00 A.M. 4 BE TELEPHONIC. 5 THE WEEKEND, SO THAT THE GOVERNMENT IS PROVIDING THIS 6 INFORMATION TO COUNSEL BY 5:00 O'CLOCK PACIFIC STANDARD TIME 7 TOMORROW. 8 PACIFIC STANDARD TIME. 9 AND CONFER AND ATTEMPT TO ARRIVE AT AS MANY STIPULATIONS AS IT DOES NOT HAVE TO BE IN PERSON, IT CAN BUT WHAT I AM EXPECTING IS A LOT OF WORK OVER PLAINTIFFS SUBMIT THEIR BRIEFING 9:00 A.M. MONDAY, THAT THE PARTIES IN GOOD FAITH MEET 10 POSSIBLE. 11 TOMORROW -- I AM SORRY -- ON MONDAY. 12 AND THAT WE WILL MEET AGAIN AT 10:00 O'CLOCK AND I AM CONTENT TO PROCEED TELEPHONICALLY, SO 13 COUNSEL DON'T HAVE TO BE HERE IN PERSON. 14 FINE, WE CAN MEET IN THE COURTROOM, OTHERWISE WE WILL MEET 15 TELEPHONICALLY. 16 IF YOU ARE HERE, THEN ON MONDAY AT 10:00 WE WILL SEE WHERE WE ARE, 17 WHAT NEEDS TO BE RULED ON. AND I WILL RULE ON ANY REMAINING 18 ISSUES THAT ARE PROPERLY FRAMED AND ADDRESSED IN WRITING. 19 AND THEN I WOULD LIKE TO SET FUTURE STATUS 20 CONFERENCES SO THAT WE ADDRESS THE REMAINDER OF THE GROUP, AND 21 GOING FORWARD THE PROCESSES THAT ARE BEING IMPLEMENTED TO 22 ELIMINATE THIS PROBLEM IN THE FUTURE SO THAT WE HAVE TRACKING 23 AND THE ABILITY TO REUNIFY AT APPROPRIATE TIMES. 24 25 SO THERE ARE MANY REMAINING ISSUES THAT WE NEED TO ADDRESS, BUT TODAY IS NOT THE OCCASION. I WOULD LIKE TO, AS Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 64 of 66 1 64 WE HAVE BEEN DOING, FOCUS SIMPLY ON THE UNDER-FIVE GROUP. WITH RESPECT TO THE LIST, DO WE NEED A PROTECTIVE 2 3 ORDER OR ARE THE PARTIES CONTENT SIMPLY TO PROVIDE THE LIST TO 4 MR. GELERNT? 5 I HAVE ONE DRAFTED ALREADY, YOUR HONOR, MS. FABIAN: 6 THAT I HAVE BEEN -- I JUST NEED TO FINALIZE. 7 THAT OVER. 8 THE COURT TO SIGN. 9 IT SHOULDN'T BE A PROBLEM TO HAVE ONE READY FOR THE COURT: 10 AND WE CAN GET YES. MR. GALERNT: YOUR HONOR, YOU KNOW, I THINK WE ARE 11 IN AGREEMENT ABOUT WHAT THE PROTECTIVE ORDER WOULD DO, IS THAT 12 WE WOULD CERTAINLY NOT PUBLICIZE THE LIST BUT THAT WE WOULD BE 13 ABLE TO SHARE. 14 WILLING TO GO TO TEXAS RIGHT NOW, THAT WOULD BE OUR AGENT, AND 15 WE WOULD GIVE THEM THE NAME OF THIS PARENT WHO THINKS THEIR 16 CHILD IS SOMEWHERE IN THE COUNTRY. 17 ABLE TO SHARE IT WITH THE VOLUNTEERS THAT ARE GOING TO MEET 18 WITH THE PARENTS. 19 OKAY. 20 WE WOULD SAY THERE IS A VOLUNTEER WHO IS AND SO THAT WE WOULD BE I THINK THE GOVERNMENT HAS SAID THAT IS MS. FABIAN: I THINK SO. I WOULD LIKE TO WORK WITH 21 THE WORDING JUST BECAUSE THERE HAVE BEEN A LOT OF INFORMATION 22 PUT OUT ABOUT THIS ISSUE. 23 DANGER OF THINGS BEING PUT OUT ABOUT THE CHILDREN, 24 PARTICULARLY SINCE THEY ARE NOT CLASS MEMBERS. 25 CERTAINLY WORK ON LANGUAGE TO THAT EFFECT BECAUSE I UNDERSTAND AND I WOULD LIKE TO AVOID THE BE WE CAN Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 65 of 66 1 65 THE PURPOSE OF THE LIST, AS WELL. YES. ALL RIGHT. ANY -- 2 THE COURT: 3 MR. GALERNT: 4 THE COURT: 5 WHEN YOU MEET AND CONFER, DO IT IN THE SPIRIT OF THE THANK YOU, YOUR HONOR. -- MORE COMMENTS? 6 ORDER. WE CAN SPEND A LOT OF TIME AND ENERGY QUIBBLING OVER 7 THE DETAILS AND THE LEGAL OBLIGATIONS OF THE PRELIMINARY 8 INJUNCTION, BUT IT IS APPARENT THAT EVERYONE IS ROWING IN THE 9 SAME DIRECTION, AND THAT'S AN ATTEMPT TO REUNIFY AS QUICKLY 10 AND AS SAFELY AS POSSIBLE. AND IT IS IN THAT SPIRIT THAT THE 11 PARTIES SHOULD BE ABLE TO MEET AND CONFER AND MAKE A LOT OF 12 GOOD THINGS HAPPEN, WITHOUT COURT INVOLVEMENT. I THINK, AGAIN, THE OBJECTIVE STANDARDS ARE SET OUT 13 14 WITH TODAY'S DISCUSSION. I THINK THERE IS MORE CLARITY TO 15 THAT PROCESS. 16 IS REALLY IMPORTANT THAT THE PARTIES EXERCISE UTMOST GOOD 17 FAITH, WHICH I KNOW YOU WILL. 18 REUNIFICATION FOR ALL OF THE CHILDREN WITH THEIR PARENTS CAN 19 HAPPEN IN A RELATIVELY SEAMLESS MANNER. AND THEN IT IS REALLY -- IN THESE SITUATIONS IT AND IN THAT PROCESS, THIS I UNDERSTAND THE SIGNIFICANCE OF THE UNDERTAKING 20 21 THAT THE GOVERNMENT IS BEING ORDERED TO DO. THAT'S ABUNDANTLY 22 CLEAR. 23 PUBLICLY, THROUGH THE SECRETARY OF HHS AND HERE TODAY, THAT IT 24 IS GOING TO REUNIFY. 25 THESE DETAILS CAN BE WORKED OUT COOPERATIVELY. BUT IT CAN DO IT, AND IT HAS MADE THE DETERMINATION SO IT IS IN THAT SPIRIT THAT A LOT OF AND THAT IS Case 1:18-cv-01458-PLF Document 31-3 Filed 07/09/18 Page 66 of 66 1 WHAT I URGE THE PARTIES TO DO, AND I WILL LOOK FORWARD TO 2 MEETING WITH EVERYONE EITHER TELEPHONICALLY OR IN PERSON 3 MONDAY AT 10:00 A.M. 4 MR. GALERNT: 5 MS. FABIAN: 6 ADVANCE WHICH WE WILL BE DOING? 7 THE COURT: 8 MS. FABIAN: 9 10 11 THANK YOU, YOUR HONOR. WOULD YOU LIKE US TO NOTIFY YOU IN SURE. THAT WOULD BE -- I EXPECT I WILL BE HERE IN PERSON, I WILL LET YOUR CLERK KNOW. THE COURT: ALWAYS DELIGHTED TO SEE YOU IN PERSON. I WILL LEAVE IT TO YOU. THANK YOU, YOUR HONOR. 12 MS. FABIAN: 13 MR. GALERNT: 14 THE COURT: THANK YOU, YOUR HONOR. THANK YOU VERY MUCH. 15 16 17 18 19 20 21 22 23 24 25 66 * * * I CERTIFY THAT THE FOREGOING IS A CORRECT TRANSCRIPT FROM THE RECORD OF PROCEEDINGS IN THE ABOVE-ENTITLED MATTER. S/LEEANN PENCE 7/7/2018 LEEANN PENCE, OFFICIAL COURT REPORTER DATE Case Document 31-4 Filed 07/09/18 Page 1 of 8 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA M.G.U. 0L, Plaimg'??; v. Kirstjen Nielsen er. 01., CASE Defendants. DECLARATION OF SHALYN FLUHARTY I, Shalyn Fluharty, make the following declaration based on my personal knowledge: 1. I am an attorney and have been licensed and admitted in the State of California since 2010. I currently serve as the Managing Attorney of the Dilley Pro Bono Project (?the Dilley Project?), where I provide free legal services to asylum-seeking mothers and children who are detained at the South Texas Family Residential Center in Dilley, Texas. I have served in this capacity since December 2016. The Dilley Project is an informal association of four non-pro?t organizations who work in collaboration with a robust national volunteer network. In my role as Managing Attorney, am the attorney of record for all clients represented by the Dilley Project. The Dilley Project has represented over 19,700 families in credible or reasonable fear proceedings between January 1, 2017 and May 31, 20l8. Case Document 31-4 Filed 07/09/18 Page 2 of 8 Has Not Been at Full Capacity for at Least the Last 18 months. 4. has the capacity to detain up to 2,400 mothers and children combined at any given time. To my knowledge, during the 18 months that I have been the Managing Attorney of the Dilley Project, STF RC has never been at full capacity. My knowledge is based upon stated disclosures of total capacity at that have obtained from individuals employed by US. Immigration and Customs Enforcement private prison operator CoreCivic, and the United States Citizenship and Immigration Services Asylum Office, and from the total number of mothers and children the Dilley Project has represented at STF RC. 5. The Dilley Project does not receive a daily census of the total population of mothers and children detained at However, we frequently receive information regarding the total daily population during informal conversations with employees of ICE, CoreCivic, and the Asylum Of?ce. We also receive information from individuals who have access to data pursuant to continuous monitoring operations that are conducted in accordance with the court?s administration of the settlement in Flores v. Sessions, No. 85-cv-4544, pending in the US. District Court for the Central District of California (the ?Flores Settlement?). 6. Based upon this information-sharing, have recorded the total population at to be approximately the following, on the following dates: April 9, 2018: 1,000 April 18, 2018: 1,200 May 2, 2018: 2,000 June 5, 2018: 2,000 June 14, 2018: 2,000 June 28, 2018: 1,500 July 2, 2018: 1,300 Case Document 31-4 Filed 07/09/18 Page 3 of 8 7. The Dilley Project is the only on-site legal services provider at Mothers and children who are detained at are able to seek legal services from the Dilley Project at any time by entering the legal visitation trailer at where Dilley Project staff and volunteers are available Monday-Friday from 7:30 am. to 8:00 pm. 8. In May 2018 the Dilley Project began representation for 804 new families. In June 2018 the Dilley Project began representation for 1371 families. 9. Between May 1, 2018 and June 30, 2018 the Dilley Project recorded ?ve families that did not seek representation from the Dilley Project because they retained outside private counsel. 10. I believe that the Dilley Project represented the overwhelming majority, if not all, of the families detained at between May 1, 2018 and June 30, 2018, other than the ?ve families who were represented by outside counsel. The total number of families represented by the Dilley Project from May I, 2018 to June 30, 2018 therefore I believe reflects more or less the total number of families detained at STF RC during this period of time. Representation of M.G.U. 11. M.G.U. is a client of the Dilley Project. In connection with that representation, I represented M.G.U. in conjunction with her credible fear proceeding and have met with her numerous times. I am therefore personally familiar with the facts of immigration proceedings. 12. On May 4, 2018 M.G.U. was placed in immigration detention after crossing the San Ysidro, California port of entry Shortly therea?er she was transferred with her children to M.G.U. participated in a credible fear interview on May 16, 2018. A Case Document 31-4 Filed 07/09/18 Page 4 of 8 positive credible fear determination was made by Asylum Of?cer Lisa Raney the same day. Supervisory Asylum Of?cer ChristOpher McNary concurred with the positive credible fear determination on May 17, 2017. Incorporated into positive credible fear determination is a ?nding that the asylum of?cer found her credible in all aspects of her testimony. 13. ICE agents forcibly separated M.G.U. from her children on May 17, 2018, the same day her positive credible fear determination was issued by the asylum of?ce. ICE subsequently transferred M.G.U. alone to the South Texas Detention Complex in Pearsall, Texas. 14. During credible fear interview, the asylum of?cer af?rmatively asked M.G.U. if she was a member of the ?Refugee Caravan? that entered the United States. M.G.U. responded af?rmatively. The Re?igee Caravan has been the subject of numerous public media reports. As described in?a, asylum of?cers began screening all asylum applicants for participation in the Refugee Caravan after it arrived at the U.S.-Mexico border. I Believe Separation From her Children Was Punishment for her Participation in the Refugee Cgravak 15. The Dilley Project, myself included, noticed speci?c changes to both USCIS Asylum Of?ce and ICE procedures subsequent to the arrival of the Re?rgee Caravan. The Asylum Of?ce began asking every asylum applicant if they were a part of the Re?Jgee Caravan during all credible fear interviews that were conducted at In many cases, asylum of?cers questioned asylum applicants for an extended period of time regarding their participation in the Refugee Caravan. 16. On April 27, 2018 Deportation Of?cer Richard Carrasquillo entered the visitation trailer and asked Dilley Project clients?while they were receiving legal 17. 18. Case Document 31-4 Filed 07/09/18 Page 5 of 8 services?if they traveled to the United States with the Refugee Caravan. The next day I was informed by ICE Deportation Of?cers that they were instructed to identify and document which detained families participated in the Refugee Caravan for ICE leadership. I have reason to believe separation from her children was direct retaliation for her participation in the Refugee Caravan for multiple reasons. In my experience prior to this Administration?s strategic separation of non-citizen parents from their children, separation of a mother from her child at STF RC was a rare occurrence justified only by concrete evidence that the mother presented a danger to her child or other children. Previously ICE has separated a mother from her child while they were detained at STF RC in three circumstances. First, ICE has separated a mother from her child shortly after the family?s arrival to (within days) after determining through a records search evidence of the mother?s prior criminal conduct that indicates a possible danger to a child. Second, ICE has separated a mother from her child a?er Speci?c conduct at is observed and documented that indicates the mother presents a danger to the child. This type of separation has occurred in conjunction with a report by ICE or CoreCivic employees of child abuse or neglect to the Texas Department of Family and Protective Services. Lastly, parent-child separation has occurred when the government questioned the biological relationship between a mother and child who are detained as a family unit at In my experience, all three types of separation have happened extremely rarely prior to this Administration?s strategic separation of non-citizen parents from their children, and occurred within days (if not the same day) of the discovery of the fact that precipitated parent-child separation. I9. 20. 21. Case Document 31-4 Filed 07/09/18 Page 6 of 8 During my time with the Dilley Project, and prior to this Administration?s strategic separation of non?citizen parents from their children. I have never seen a mother separated from her child because of an adverse credibility ?nding, misdemeanor non- violent crime, or allegation or conviction related to a past misrepresentation or false statement. Excluding this Administration?s strategic separation of non-citizen parents from their children, I have represented mothers with actual or alleged past criminal convictions who were not separated, even when the past criminal charge or conviction, or allegation thereof, indicated violent conduct. A Dilley Project legal assistant accompanied M.G.U. to her credible fear interview that took place on May 16, 2018. During the interview, M.G.U. testi?ed that she previously entered the United States approximately 19 years ago. M.G.U. recalls her ?rst entry to the United States, which occurred prior to the birth of her three youngest children. She remembers going to court after she presented herself at a US. port of entry and appearing before ajudge. Ms. M.G.U. recalls being detained for at least 75 days after her entry to the United States approximately 19 years ago. She was unable to confirm whether she appeared before a judge in criminal court or immigration court, and whether she was charged with or convicted of a crime for making a false claim or false representation. I have attempted to secure records regarding any and all past federal criminal convictions for M.G.U. and have found none. When I was unable to locate records regarding alleged past criminal conviction on PACER, I requested the assistance of Swanson McNamara, a private law firm that specializes in criminal defense. The ?rm agreed to assist in case pro bono. Swanson McNamara paralegals and attorneys attempted to secure copies of any criminal records regarding M.G.U. The firm Case Document 31-4 Filed 07/09/18 Page 7 of 8 searched PACER for any and all records containing name and variations of it and reviewed all criminal cases ?led with a charge of 18 U.S.C. 911 (impersonating a United States citizen) during the period of time in which we understood M.G.U. would have been prosecuted. These efforts were also unsuccessful. 22. recent separation from her children stands in stark contrast to the extremely limited number of parent-child separations I have observed at prior to this Administration?s strategic separation of non-citizen parents from their children because separation occurred (1) approximately two weeks after she presented herself at a POE and was ?ngerprinted and by immigration of?cials, (2) without any new facts that indicated she posed a danger to her children or others, and (3) subsequent to issuance of her positive credible fear ?nding. 23. Immediately after ICE agents informed M.G.U. that she obtained a positive credible fear determination, the agents informed her that she was being separated from her children because she has a ?record.? M.G.U. was not provided with any documents describing what the government believed her ?recor to be or an opportunity to respond to the govemment?s assertion. She was not given any information in writing or afforded a hearing before her children were taken away from her. Similarly, I was not provided any information regarding transfer from before or after her transfer, even though I was attorney of record. I declare under the penalty of perjury pursuant to 28 U.S.C. 1746 that the foregoing is true and correct, to the best of my personal knowledge. Case Document 31-4 Filed 07/09/18 Page 8 of 8 Executed in Dilley, Texas on -- ?4 ?oi-H