Case 3:18-cv-00428-DMS-MDD Document 109 Filed 07/15/18 PageID.2110 Page 1 of 7 1 CHAD A. READLER Acting Assistant Attorney General 2 SCOTT G. STEWART 3 Deputy Assistant Attorney General WILLIAM C. PEACHEY 4 Director 5 Office of Immigration Litigation U.S. Department of Justice 6 WILLIAM C. SILVIS 7 Assistant Director Office of Immigration Litigation 8 SARAH B. FABIAN 9 Senior Litigation Counsel NICOLE MURLEY 10 Trial Attorney 11 Office of Immigration Litigation U.S. Department of Justice 12 Box 868, Ben Franklin Station 13 Washington, DC 20442 Telephone: (202) 532-4824 14 Fax: (202) 616-8962 15 ADAM L. BRAVERMAN 16 United States Attorney 17 SAMUEL W. BETTWY Assistant U.S. Attorney 18 California Bar No. 94918 19 Office of the U.S. Attorney 880 Front Street, Room 6293 20 San Diego, CA 92101-8893 21 619-546-7125 22 619-546-7751 (fax) 23 Attorneys for Federal Respondents-Defendants 24 25 26 27 28 Case 3:18-cv-00428-DMS-MDD Document 109 Filed 07/15/18 PageID.2111 Page 2 of 7 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 1 2 Case No. 18cv428 DMS MDD MS. L, et al., 3 Petitioners-Plaintiffs, 4 5 NOTICE vs. U.S. IMMIGRATION AND CUSTOMS 6 ENFORCEMENT, et al., 7 Respondents-Defendants. 8 9 Defendants hereby submit this notice in response to the Court’s order of July 10 11 13, 2018, including its modifications to the June 26, 2018, order. Defendants are 12 devoting extraordinary resources to comply fully with this Court’s orders, and to do 13 so in good faith. Through this extraordinary effort, HHS was able to substantially 14 15 comply with this Court’s July 12, 2018, deadline with respect to children aged four 16 and under. See July 13 Order at 4. HHS is also committed to meeting the Court’s 17 July 26, 2018, deadline for the children who are aged five and over. In response to 18 19 the Court’s concerns, set forth below is a clarification of some points of potential 20 confusion about how the reunification plan works. A plan document itself (“Plan”) 21 is attached. Under the reunification plan, and consistent with the Court’s orders, 22 23 Defendants will not reunify a child without first making “determinations of 24 parentage, fitness and danger.” Id. 25 In particular, under the plan, the Department of Health and Human Services 26 27 (HHS) makes determinations of parentage based on information that goes beyond 28 1 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 109 Filed 07/15/18 PageID.2112 Page 3 of 7 1 what U.S. Immigration and Customs Enforcement (ICE) or U.S. Customs and 2 Border Protection (CBP) would typically have available to them. First, unlike a 3 typical alien child in HHS custody who arrives alone, here there is preexisting 4 5 evidence of parentage: The adult arrived at the border and presented as a family, 6 with the child; the putative parent said they were a family; and CBP treated them as 7 8 9 10 a family unit. See Meekins Dec. ¶ 45. Second, the children have now been in the care of HHS Office of Refugee Resettlement (ORR) for several weeks. While CBP and ICE are tasked with 11 12 enforcing the immigration laws, 8 U.S.C. 1103(a); 6 U.S.C. 211(c)(8), 251, ORR’s 13 mission is to protect children, including unaccompanied alien children in its care, 14 6 U.S.C. 279(b); 8 U.S.C. 1232(c)(1). The personnel at ORR shelters have had 15 16 many opportunities, over a considerable span of time, to interact with the children 17 and make notes in their files, including of risks of smuggling or abuse. See Meekins 18 Dec. ¶ 36. 19 20 Third, by definition, this cohort of children is older (aged 5 and over), and 21 thus can communicate. A child thus could potentially tell ORR staff, for example, 22 that the adult who they arrived with is not their parent but an adult they were bundled 23 24 or trafficked with, without the adult standing right there. Finally, the file may also 25 include documentation voluntarily provided by the adult or plaintiff’s counsel. See 26 Meekins Dec. ¶ 36. 27 28 2 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 109 Filed 07/15/18 PageID.2113 Page 4 of 7 1 Under the plan, HHS reviews the files for each child—including all the 2 information mentioned above—before proceeding with reunification. See Plan at 2; 3 Meekins Dec. ¶ 36. HHS believes that in the large majority of cases, there will be 4 5 no such indicia of trafficking in the records, and the constellation of evidence above 6 will support the adult’s assertion of parentage. See Plan at 2; Meekins Dec. ¶¶ 36- 7 8 37. If so, HHS will determine that the adult is a parent, thus proceeding with the 9 swift reunification plan. Id. Finally, HHS also conducts a final 15-minute interview 10 of the parent at the ICE facility, which can provide further confirmation of that 11 12 determination. See Plan at 3; Meekins Dec. ¶ 35. Absent a red flag, HHS will then 13 transfer the child to ICE custody, completing the reunification. Id. But if the 14 interview raises a red flag (or if a red flag caused HHS not to proceed to the interview 15 16 in the first place) then, consistent with the order, reunification will not be completed 17 and instead HHS undertakes additional scrutiny. See Plan at 2-3; Meekins Dec. ¶ 37. 18 HHS thus will reunify families if and only if HHS has made a determination of 19 20 parentage. See Plan at 1; Meekins Dec. ¶ 42. 21 22 This plan does not include, however, “affirmative verif[ication]” of parentage for each adult in the manner HHS does in its ordinary operations under the TVPRA. 23 24 Meekins Decl. ¶ 39. Affirmative verification is different from the determination 25 described above. In its ordinary operations, HHS affirmatively verifies parentage 26 using documentary evidence (e.g., birth certificates), which are typically obtained 27 28 3 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 109 Filed 07/15/18 PageID.2114 Page 5 of 7 1 through consular channels. Id. ¶ 46. That process can take months, and thus much 2 too long to comply with the Court’s reunification deadline. Id. HHS may also use 3 DNA testing to affirmatively verify that an adult is a biological parent, as it did with 4 5 the four-and-under cohort. See id. ¶ 23. (A negative DNA test, however, does not 6 conclusively disprove legal parentage, but instead triggers further inquiry.) HHS 7 8 views those processes as allowing for conclusive verification that an adult is a parent, 9 without relying on other evidence, at the highest degree of accuracy. See id. ¶¶ 4410 48. But DNA testing of all or virtually all the remaining parents and children here 11 12 would be inconsistent with the Court’s orders, see July 10 Order at 3, and HHS 13 estimates it would “stretch the time required to comply by months,” Meekins Dec. 14 ¶ 31. HHS thus has instead determined that it need not perform DNA testing when 15 16 it can make a determination of parentage based on the significant information 17 described above. See Plan at 1-3. 18 As Defendants have explained in prior filings, there is an unavoidable 19 20 difference between the accuracy of using HHS’s ordinary processes for affirmatively 21 verifying parentage in the absence of other information for every adult, and the 22 accuracy of determining that an adult is a parent based on the information available 23 24 via this process. See Meekins Dec. ¶¶ 43-48. Those concerns remain, as do risks 25 associated with that difference. See id. But Defendants have been striving to comply 26 with the Court’s orders in good faith, and the plan indeed requires HHS to make a 27 28 4 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 109 Filed 07/15/18 PageID.2115 Page 6 of 7 1 determination of parentage, based on the information available to it, before 2 reunifying families within the deadlines. 3 This Court’s order of July 13, 2018, imposes two new requirements, however: 4 5 (1) that, absent a showing of good cause, Defendants shall complete the 6 determination of parentage by a new, earlier deadline (July 19, 2018), to include 7 8 DNA testing, if necessary; and (2) that Defendants shall provide Plaintiffs with 12 9 hours’ notice of each reunification. July 13 Order at 5. In response to that order, 10 Defendants have already added to the plan the use of DNA testing as a method for 11 12 resolving red flags about parentage. See Plan at 3. Defendants are currently 13 considering what additional modifications they need to make to the plan to comply 14 with the Court’s new requirements, as well as its prior deadlines and orders, and 15 16 whether Defendants will seek further clarification or partial relief. We will also seek 17 guidance from the Court to ensure that the current plan is consistent with the Court’s 18 orders. 19 20 21 22 23 24 25 26 27 28 5 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 109 Filed 07/15/18 PageID.2116 Page 7 of 7 1 DATED: July 15, 2018 Respectfully submitted, 2 CHAD A. READLER Acting Assistant Attorney General SCOTT G. STEWART Deputy Assistant Attorney General WILLIAM C. PEACHEY Director WILLIAM C. SILVIS Assistant Director 3 4 5 6 7 8 /s/ Sarah B. Fabian SARAH B. FABIAN Senior Litigation Counsel NICOLE MURLEY Trial Attorney Office of Immigration Litigation Civil Division U.S. Department of Justice P.O. Box 868, Ben Franklin Station Washington, DC 20044 (202) 532-4824 (202) 616-8962 (facsimile) sarah.b.fabian@usdoj.gov 9 10 11 12 13 14 15 16 17 ADAM L. BRAVERMAN United States Attorney SAMUEL W. BETTWY Assistant U.S. Attorney 18 19 20 21 Attorneys for Respondents-Defendants 22 23 24 25 26 27 28 6 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 109-1 Filed 07/15/18 PageID.2117 Page 1 of 4 HHS/DHS UNIFIED PLAN OF OPERATIONS FOR REUNIFICATION OF 5-17 YEAR OLD POPULATION TO INCLUDE FLOW CHART AND SUMMARY OF REQUIRED STEPS 14 JULY 2018 OPERATIONAL SCOPE: 1. Swift reunification of adults and children from age group 5-17 subsequent to separation, after determination of parentage, fitness, and danger. 2. There will be a total of eight ICE locations that will operate for as long as necessary to effect efficient reunification of children with parents. There will be a population of no more than 50 (estimated) children that will require transport to locations outside of the three ICE AORs for individual reunification. This will be coordinated with the HHS IMT and the ICE LNOs on site at HHS. LOGISTICS AND POTENTIAL LIMITING FACTORS: 1. Strict coordination and adherence to agreed upon planning and operational factors by all involved. 2. The requirement for HHS to transfer and ICE to receive high volumes of children at pre-designated sites. EXTENDED HOURS OF OPERATIONS OR 24/7 OPERATIONAL PERIODS MAY BE REQUIRED, AS INDICATED. 3. ICE will incur all costs for the transportation of the adult population and HHS will incur the cost of moving the child (to pre-designated location). ICE will transport the reunited families, adults and minors as necessary, following reunification. Case 3:18-cv-00428-DMS-MDD Document 109-1 Filed 07/15/18 PageID.2118 Page 2 of 4 HHS/DHS UNIFIED PLAN OF OPERATIONS FOR REUNIFICATION OF 5-17 YEAR OLD POPULATION TO INCLUDE FLOW CHART AND SUMMARY OF REQUIRED STEPS 14 JULY 2018 (Page 2) OPERATIONAL REQUIREMENTS AND PLANNING EFFORTS: A. ICE will provide NCIC background information. ORR to review and assess for criminal concerns. ICE will provide additional category of “convicted” vs. “charged” for the adult population identified with concerns from the NCIC review (step 1 in the process flow). ICE will be responsive to all requests for additional information to expedite “clearance” or “removal” of adult from the certification list for reunification. B. ORR to review case file to identify any pertinent “red flags”, eg: the child was not accompanied by a parent, was smuggled, or would otherwise be subject to safety/security concerns. Home studies are performed only in the following cases: (1) a child who is a victim of a severe form of trafficking in persons; (2) a special needs child with a disability; (3) a child who 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) or a child whose proposed sponsor clearly presents a risk of abuse, maltreatment, exploitation, or trafficking to the child based on all available objective evidence. C. If red flags, ORR will undertake further review and action as appropriate. If ORR finds no red flags, proceed towards reunification on track below. D. ORR will create and publish daily updated lists of “request to interview” (RTI) adults for reunification. E. ICE Field Offices will review the A#’s submitted by ORR using EARM and flag if any adults have an executable Final Order. F. ICE will notify HHS/ORR/SOC immediately if the adult elects to be removed without the child (and all supporting paperwork MUST be forwarded to HHS/ORR/SOC or be made immediately available through electronic links between HHS and ICE. G. ICE to move selected adult population to identified sites for Field Team Interview (there will be a few isolated individuals outside of the three selected ICE AORs who are currently closer to their minor child in ORR care). Case 3:18-cv-00428-DMS-MDD Document 109-1 Filed 07/15/18 PageID.2119 Page 3 of 4 HHS/DHS UNIFIED PLAN OF OPERATIONS FOR REUNIFICATION OF 5-17 YEAR OLD POPULATION TO INCLUDE FLOW CHART AND SUMMARY OF REQUIRED STEPS 14 JULY 2018 (Page 3) H. ICE will NOT transfer any pending adults for reunification outside or away from the three ICE AORs. ICE will transfer all non-executable Final Orders and litigation pending cases (except PHO, ELP, SNA, to SNA AOR – but will not do so, as stated above, if children are already in the same AOR as the adult. I. HHS contractor to perform intake of adult (15 min interview). J. If HHS contractor finds red flags, undertake further review and action as appropriate. If HHS contractor finds no red flags, complete reunification as below. K. ICE will support HHS/ORR authorized personnel at reunification sites for parental screening procedures. L. Contractor to notify IMT of “green” status of adult population (from list) and IMT to execute logistical plan for child to move to designated location within 06-48 hours of notification of final clearance. M. ICE will conduct final check and confirm “greenlight” on reunification (with ORR). N. Child is transported to designated location. O. Paperwork exchange, transfer of responsibility between agencies and reunification occurs. P. ICE to coordinate with MVM to dispatch reunited family to a pre-identified NGO release location. To request assistance through this program, email the MVM Command Center at mvmcommandcenter@mvminc.com. Also copy Supervisory Detention and Deportation Officer Roberto R. Salazar, at Roberto.R.Salazar@ice.dhs.gov. MVM may also be contacted via phone at (956) 621-7920 PLEASE SEE FLOW CHART ON THE FOLLOWING PAGE Case 3:18-cv-00428-DMS-MDD Document 109-1 Filed 07/15/18 PageID.2120 Page 4 of 4 UAC Population 5-17 years old UAC Reunification Process NCIC Check/ICE A # Categorization of Conviction Conducted Concurrently Red Flags? YES ICE Review of conviction w/determination of proceedings A# & Name to ICE for determination of conviction NO ORR Case Manager Review (Significant child safety concern or indications of non parentage) Red Flags? YES NO Cleared by ICE? DNA Test for Adult and Child DNA Match? NO YES ACLU & ICE receives request for interview (RFI) from HHS. ICE returns executable Final Order list allowing interviews ORR performs statutory requirements and determination NO ICE notifies ORR/SOC if parent elects to not be removed w/child and update list Sponsorship Verification @ ICE Designated Locations Reunification Decision Red Flags? YES YES NO Cleared by ORR? NO Parent available? NO YES ICE identifies and hold adults w/children in same area of responsibility. Parent desires reunification? NO YES ORR Transfers Child to Target Detention Facility NO YES Reunification within 24-48 Hours YES ICE to Coord w/MVM to dispatch reunited family to pre-identified release location Did child become ill in ORR Care? Illness resolved? Due Diligence Actions in the Interest of the Child NO Child remains in ORR Care for placement