Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2523 Page 1 of 125 1 2 3 4 5 6 7 8 Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2660 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org Attorneys for Petitioner-Plaintiff *Admitted Pro Hac Vice 9 10 Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 398-4485 F: (619) 232-0036 bvakili@aclusandiego.org Stephen B. Kang (SBN 292280) Spencer E. Amdur (SBN 320069) AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 samdur@aclu.org 11 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 12 13 14 15 16 17 Ms. L., et al., v. Case No. 18-cv-00428-DMS-MDD Petitioner-Plaintiff, U.S. Immigration and Customs Enforcement (“ICE”), et al., 18 19 20 21 22 23 24 25 26 27 28 Respondents-Defendants. Date Filed: July 25, 2018 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR STAY OF REMOVAL Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2524 Page 2 of 125 TABLE OF CONTENTS 1 2 3 4 5 6 7 INTRODUCTION ...................................................................................................... 1 I. Settlement Discussions. .................................................................................... 2 II. A Seven-Day Stay of Removals Is Urgently Needed. ..................................... 3 A. Class Members Cannot Make Knowing and Informed Decisions Concerning Reunification Before Seeing Their Children. .................................. 4 B. After Reunification, Lawyers Need Time to Counsel Parents and Children Effectively. ........................................................................................................... 7 9 III. The Stay Should Extend to All Class Members, Including Those Who Allegedly Have Waived Reunification. .................................................................. 9 10 IV. The Court Has Jurisdiction to Stay Removals. .............................................. 9 8 11 A. 12 B. The Provisions Defendants Cite Do Not Strip This Court of Power to Enforce Its Order. .............................................................................................. 10 13 14 The Court Has Equitable Power to Enforce Its Orders. ............................. 9 CONCLUSION......................................................................................................... 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2525 Page 3 of 125 1 TABLE OF AUTHORITIES 2 Cases Aguilar v. ICE, 510 F.3d 1 (1st Cir. 2007) .............................................................................. 11 Avendano-Ramirez v. Ashcroft, 365 F.3d 813 (9th Cir. 2004) .......................................................................... 11 Chambers v. NASCO, Inc., 501 U.S. 32 (1991) ......................................................................................... 10 Chhoeun v. Marin, No. 17-cv-01898, 2018 WL 566821 (C.D. Cal Jan. 25, 2018) ...................... 13 F.J. Henshaw Enters., Inc. v. Emerald River Dev., Inc., 244 F.3d 1128 (9th Cir. 2001) ........................................................................ 10 Garcia de Rincon v. DHS, 539 F.3d 1133 (9th Cir. 2008) ........................................................................ 11 Kwai Fun Wong v. United States, 373 F.3d 952 (9th Cir. 2004) .......................................................................... 11 Lemon v. Kurtzman, 411 U.S. 192 (1973) ....................................................................................... 10 Mellouli v. Lynch, 135 S. Ct. 1980 (2015) ................................................................................... 11 Nken v. Holder, 556 U.S. 418 (2009) ....................................................................................... 12 Orantes-Hernandez v. Thornburgh, 919 F.2d 549 (9th Cir. 1990) .......................................................................... 10 Pena v. Lynch, 815 F.3d 452 (9th Cir. 2015) .......................................................................... 11 Plata v. Schwarzenegger, 603 F.3d 1088 (9th Cir. 2010) ........................................................................ 10 Sied v. Nielsen, No. 17-Cv-06785, 2018 WL 1142202 (N.D. Cal. Mar. 2, 2018) .................. 13 Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971) ........................................................................................... 10 Travelhost, Inc. v. Blandford, 68 F.3d 958 (5th Cir. 1995) ............................................................................ 10 United States v. Hovsepian, 359 F.3d 1144 (9th Cir. 2004) ........................................................................ 13 Statutes 8 U.S.C. § 1252....................................................................................... 10, 11, 12, 13 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iii Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2526 Page 4 of 125 1 INTRODUCTION 2 Defendants are seeking to deport Class Members and their children 3 immediately upon reunifying them. In their months of separation, these parents 4 have not spoken to their children for more than several minutes on the phone; many 5 if not most have never spoken to a lawyer. And yet within moments of seeing their 6 kids for the first time, Defendants propose to put them on planes, with no 7 meaningful opportunity to receive legal advice and make a considered family 8 decision about whether their children should remain in the United States without 9 them. 10 That remarkable proposal is inconsistent with the Court’s order that parents 11 make knowing and voluntary decisions about reunification. In designing the 12 election form that this Court approved, Plaintiffs never imagined that Defendants 13 would force Class Members to sign it and then deport them before they have a 14 meaningful in-person opportunity to consult with their children and attorneys. And 15 during settlement discussions, Defendants only offered, at best, 2.5 days to 16 consult—an impossible demand, especially given the constraints on attorney access 17 and the unprecedented task of advising hundreds of traumatized families all at once. 18 Defendants asserted at yesterday’s status conference that Plaintiffs’ requested 19 relief was based solely on “rumors” of possible removals. To the contrary, prior to 20 requesting relief from this Court, Plaintiffs’ counsel sought assurances from 21 Defendants that they would not remove reunified Class Members before they had a 22 meaningful chance for counseling about their legal rights and options—assurances 23 which Defendants refused to provide. Even at yesterday’s status conference, 24 counsel for Defendants did not deny that the Government intended to remove 25 families immediately upon reunification. More importantly, on the afternoon before 26 Plaintiffs sought a stay, the Government finally revealed its plan to reunite children 27 5-17 years old, which suggested that Defendants intended to immediately remove 28 reunified families. Dkt. 109-1. If Defendants do not plan on removing families, they 1 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2527 Page 5 of 125 1 should say so. In short, Plaintiffs had no choice but to seek a stay from the Court.1 2 As described below, the need for this Court’s intervention has only become 3 more clear since Plaintiffs filed their motion. The Court should therefore stay 4 removals until Class Members have had sufficient time to consult about what might 5 be the most consequential decision of their lives. No statute bars the Court from 6 issuing this modest relief to ensure the effectiveness of its reunification order. 7 The Government took children, including babies, from their parents and did 8 not return them for weeks and often many months. As the Court has noted, Ms. C.’s 9 child was not returned for 8 months. And she was not alone. The Government 10 should not now be able to argue that it cannot wait a mere 7 days to remove these 11 families, so that they can be advised on their life-altering decisions. 12 I. 13 Settlement Discussions. Defendants have chosen to inform the Court about the contents of the parties’ 14 negotiations. Because negotiations have broken down, Plaintiffs will not dwell on 15 the details of the negotiations, other than to correct a few misrepresentations by 16 Defendants. Most importantly, Defendants misstate the number of days for which 17 they agreed to a stay of removal. As an initial matter, Plaintiffs made clear that 18 Defendants could not begin counting the days from when reunification occurred, 19 since the Government has not been informing Plaintiffs when those reunifications 20 occur. As a result, Plaintiffs would not know when or where to send volunteer 21 attorneys to meet with the family. Consequently, Plaintiffs made clear that the 22 number of days could not begin until the Government had informed Plaintiffs of the 23 time and place where a family was reunified. The Government states that it agreed 24 25 26 27 28 1 Defendants’ most recent class list reveals that Defendants removed one Class Member on July 17—the day after the Court’s interim stay of removal—and 17 more the same day as the stay, on July 16. Defendants have not informed Plaintiffs of the exact time of day when those 17 were removed, so it is impossible at this point for Plaintiffs to know if the removals occurred prior to the issuance of the stay. 2 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2528 Page 6 of 125 1 to 3 days after it provided Plaintiffs with notice of the reunification. While 3 days is 2 not nearly sufficient, Defendants’ proposal did not even provide that. As the 3 Government knows, it stated that it would not provide Plaintiffs with notification 4 until 2pm Central time, leaving reunited families at best 2.5 days to find and consult 5 with attorneys. And even that assumes that Plaintiffs’ counsel could get volunteer 6 attorneys to meet parents immediately after receiving notice at 2pm, which as 7 explained below is wholly unrealistic.2 8 II. 9 A Seven-Day Stay of Removals Is Urgently Needed. Class Members with final removal orders have had no opportunity to make 10 an informed decision about whether to fight their own removal case, leave their 11 children behind in the United States, or make some other decision. The limited 12 phone contact Plaintiffs had with their children before reunification did not provide 13 them with a meaningful opportunity to assess these options as a family. Nor was the 14 election form adequate to serve this purpose, particularly given the way the forms 15 have been administered. As the attached declarations demonstrate, parents plainly 16 had no idea what they were signing or agreeing to orally. 17 Moreover, the evidence shows that, after initial reunification has occurred, 18 providing meaningful counsel to Class Members about the decisions they must 19 make will take time. This is particularly so given that hundreds of traumatized 20 families may show up within a few days at one detention center in South Texas, and 21 given the unique obstacles counsel face in advising recently-reunified families. 22 Seven days is thus more than reasonable, especially given the length of time that 23 the government has subjected the families to separation. 24 25 26 27 28 In addition, contrary to Defendants’ assertion, they never agreed to allow attorney consultations past 8pm. They stated only that they would inquire about extending the hours. Similarly, Defendants never agreed to allow Plaintiffs full access to the Karnes detention facility to conduct attorney-client meetings. Rather, when negotiations ended, they had agreed only to allow Plaintiffs to use the 5 attorney rooms (which, in total, accommodate only3 5 attorney-client meetings at a time). 18cv0428 2 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2529 Page 7 of 125 1 2 3 A. Class Members Cannot Make Knowing and Informed Decisions Concerning Reunification Before Seeing Their Children. 1. The Pre-Reunification Process Was Inadequate. Defendants claim that a 4 48-hour period after Class Members sign an election—but before reunification—is 5 “adequate time to make a sound choice” regarding their reunification rights. Stay 6 Opp., Dkt. 148, at 12. But Plaintiffs never contemplated that Defendants would 7 force Class Members to make this momentous decision concerning whether to be 8 removed without their children before even seeing their children. The opportunity 9 for a brief phone call between parents and their children—to the extent that such 10 communication has even happened—is wholly inadequate. For the government to 11 suggest otherwise (Stay Opp. 13-14) is especially unrealistic given the evidence of 12 the trauma that Class Members continue to experience as a result of the weeks or 13 months of pain and uncertainty without their children See, e.g., Reichlin-Melnick 14 Decl. ¶ 9 (father breaking down in tears as he described son’s circumstances, 15 despairing that he did not even know if his child was safe or healthy); Dkt. 13-1 at 16 96 (Ms. L. describing her depression and inability to sleep or eat). 17 These problems are exacerbated by the coercive and misleading manner in 18 which Defendants distributed the notice of Class Members’ rights and election 19 forms. As illustrated in the attached declarations, the evidence is overwhelming that 20 parents have signed forms they did not understand. Some forms were presented in 21 English to parents who did not speak that language. Shepherd Decl. ¶ 6; Reive 22 Decl. ¶ 5; Reichlin-Melnick Decl. ¶ 11; see also Reive Decl. ¶ 11. Some parents 23 with limited or no literacy were not told what they were signing. Suchman Decl. ¶ 24 6; Reive Decl. ¶ 10; Mwalimu Decl. ¶ 6. Still others thought they had signed papers 25 stating that they wanted reunification. Reichlin-Melnick Decl. ¶ 4. Parents who 26 speak an indigenous language were at a particular disadvantage. 27 28 4 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2530 Page 8 of 125 1 2 There are numerous examples:  Class Members describe being forced to make an election in a room full of 3 dozens of other parents, with only a few minutes to decide whether or not to 4 leave their children in the United States. Cruz Decl. ¶¶ 6-9; Shepherd Decl. ¶ 5 8. 6  One father signed a form in English, but had no idea what it said because he 7 is completely illiterate and primarily speaks an indigenous language. 8 Reichlin-Melnick Decl. ¶ 8. 9  Another father, also an indigenous language speaker, thought he was signing 10 a form that would allow him to be reunited with his son. Reive Decl. ¶ 9. 11  Class Members were given incorrect information that their right to reunite 12 was conditioned on giving up their legal claims. Shepherd Decl. ¶ 8-9. 13  Two fathers thought they were signing a form that would allow the 14 government to release their children; one of these fathers burst into tears 15 repeatedly out of fear for his son and said he had signed the form under 16 enormous stress and confusion. Reichlin-Melnick Decl. ¶ 10. 17  One mother was told that signing a form would lead to her reunification with 18 her son, and was surprised to learn that she had allegedly signed away her 19 right to reunification. Mwalimu Decl. ¶ 5. 20  An immigration officer told one father that he would need to pay at least 21 $500 every time he wanted to see an attorney. Shepherd Decl. ¶ 11. 22 Given these circumstances, it should come as no surprise that numerous 23 Class Members who are on Defendants’ list of parents who waived reunification in 24 fact do want their kids back. See, e.g., Suchman Decl. ¶ 5 (six parents on 25 “relinquished” list, all want to be reunited with children); Reive Decl. ¶ 3 (nine 26 fathers on “relinquished” list all want reunification with their children); Cruz Decl. 27 ¶ 4 (five fathers on “relinquished” list want reunification); Mwalimu Decl., ¶ 4 (two 28 mothers on “relinquished” list want reunification); Reichlin-Melnick Decl. ¶ 8-11 5 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2531 Page 9 of 125 1 (four fathers who allegedly waived reunification did not realize they had done so or 2 are afraid they made the wrong decision because of lack of information); Gomez 3 Amaya Decl. ¶ 14, Gilliam Decl. ¶ 5-6 (father on “relinquished” list, does not have 4 a final order, wants reunification). 5 2. Phone Contact With Children. Defendants assert that Class Members have 6 had sufficient contact with their children by telephone. Stay Opp. at 13-14. But the 7 evidence shows that Class Members have barely had any time to speak with their 8 children during the months they have now spent apart. Most have spoken only 9 briefly by phone once or twice. See Fluharty Decl. ¶ 21; Reive Decl. ¶ 6, 9, 10; 10 Reichlin-Melnick Decl. ¶ 9, 11; Cruz Decl. ¶ 8; 13; Suchman Decl. ¶ 5. And some 11 of these phone calls occurred weeks or even months ago. See Cruz Decl. ¶ 13; 12 Reichlin-Melnick Decl. ¶ 9. 13 These phone calls allow barely enough time for parents to get basic 14 reassurance that their children are alive and cared for. They are wholly insufficient 15 to allow the parent and child a meaningful opportunity to speak with each other 16 about the grave decision they must make together. And, in any event, they do not 17 allow parents to consult with any attorney for their children, leaving their 18 children—in the several minutes they have on the phone—with the impossible task 19 of accurately explaining their own legal options to their parent. That is obviously 20 not sufficient to allow parents to make an informed decision about whether their 21 children should stay behind in the United States alone. 22 3. Counsel Access. Defendants’ counsel access policies have impeded Class 23 Members from speaking with lawyers prior to reunification. Many Class Members 24 have been transferred from facility to facility, sometimes three or four times. See 25 Reichlin-Melnick Decl. ¶ 6 (sudden transfers prevented counsel from meeting with 26 eight parents who had allegedly waived reunification rights); Odom Decl. ¶ 7-12; 27 Govindaiah Decl. ¶ 17; Lunn Decl. ¶ 11. Often these transfers occur with no notice 28 to counsel present at the facilities who are trying to meet with the detainees. Odom 6 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2532 Page 10 of 125 1 Decl. ¶ 11-12, 21. 2 Even basic phone access has been a problem, preventing detainees from 3 speaking with lawyers. Odom Decl. ¶ 14-15; Rivera Decl. ¶¶ 3-8; Chavla Decl. ¶12. 4 ICE facilities also impose strict visitation policies and long waits for attorney 5 access. See Odom Decl. ¶¶ 7-11, 17, 21, 25-27; Reichlin-Melnick Decl. ¶ 6; Gomez 6 Amaya Decl. ¶ 13; Suchman Decl. ¶ 5. 7 Defendants themselves impeded efforts to get attorneys for Class Members 8 by delaying critical information. Plaintiffs repeatedly asked Defendants to provide a 9 complete list of Class Members who had outstanding removal orders, as well as a 10 list of parents who have allegedly waived reunification, since those groups are 11 obviously at the gravest risk of imminent harm. Defendants waited until Friday, 12 July 20 to provide these lists, preventing Plaintiffs from beginning to arrange 13 counsel for Class Members until the weekend of July 21. See JSR, Dkt. 146, at 3. 14 B. After Reunification, Lawyers Need Time to Counsel Parents and 15 Children Effectively. 16 Plaintiffs have requested a 7-day stay from the time they are notified of a 17 reunification. That time is necessary because of the unique challenges presented by 18 Defendants’ separation policy. To begin, the reunification itself is an incredibly 19 emotional and difficult experience. Parents are seeing their children for the first 20 time in weeks or even months. Sometimes initial meetings are too difficult because 21 the parents are too traumatized to even receive basic advisals. See Govindaiah Decl. 22 ¶¶ 29-30; Connell Decl. ¶ 10; Fluharty Decl. ¶ 19. Other parents cannot focus on 23 legal advice because they cannot move past their fear of separation; one parent 24 responded to every statement by asking whether he could stay with his son. 25 Govindaiah Decl. ¶ 29. Parents and children do not want to leave each others’ sides, 26 which can hinder their parents’ ability to discuss persecution or other events that 27 could support asylum claims. Govindaiah Decl. ¶ 25; Fluharty Decl. ¶ 23. 28 Even if a lawyer could assuage these emotional barriers, other practical 7 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2533 Page 11 of 125 1 barriers make these cases unusually difficult. Most families who come to family 2 detention facilities have all their proceedings conducted in that facility, which 3 makes it relatively simple for counsel to track their clients’ cases. Connell Decl. ¶ 4 7-9. In contrast, the Class Members here have frequently been moved from facility 5 to facility, and have started their immigration cases hundreds or thousands of miles 6 away. They often come without paperwork about their immigration cases. Fluharty 7 Decl. ¶¶ 11-13; Govindaiah Decl. ¶ 15. And so they often do not know the status of 8 their immigration cases, which their lawyers must then investigate. Fluharty Decl. ¶ 9 11; Govindaiah Decl. ¶¶ 14, 18. Critically, moreover, the children’s immigration 10 cases have proceeded in a separate track this whole time. Effectively advising the 11 entire family therefore requires retracing not only the parent’s case, but also the 12 child’s. Connell Decl. ¶ 7. Advising families about all of this takes significant time. 13 Govindaiah Decl. ¶¶ 21-22. 14 Moreover, Defendants’ counsel access policies make it difficult to do group 15 presentations or meet with numerous clients at once. Connell Decl. ¶¶ 21-22. At 16 Karnes, there are only five confidential meeting rooms, only four of which have 17 phones. Space constraints prevent more than about 17 lawyers from meeting with 18 clients at any given time. Govindaiah Decl. ¶ 37. Counsel at Defendants’ family 19 detention facilities do not receive advance notice of arrivals, so it can take days to 20 connect with services. Connell Decl. ¶ 20; see also Fluharty Decl. ¶¶ 4-7. 21 Compounding the difficulty of each individual case is the sheer scale at 22 which these services will have to be provided. The Government’s most recent status 23 report indicates that there are hundreds of Class Members with removal orders who 24 may be reunited at Karnes in the coming days. The facility has never had to absorb 25 such an influx of uniquely complicated cases. It will take time for providers on the 26 ground to provide even basic advice to these families. See Govindaiah Decl. ¶ 45; 27 Fluharty Decl. ¶ 23. 28 8 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2534 Page 12 of 125 1 III. 2 3 The Stay Should Extend to All Class Members, Including Those Who Allegedly Have Waived Reunification. Defendants propose carving out of the stay any parents who Defendants 4 claim have made a knowing choice not to be reunified with their children. But the 5 point of the stay is that parents cannot be forced to make that complex and 6 consequential election before they see their children and speak to an attorney. 7 Nothing in Plaintiffs’ opening brief carved out these Class Members. And as the 8 declarations make clear, many of the parents on Defendants’ waiver list in fact do 9 want their children back and did not remotely understand their rights. As already 10 discussed above, numerous Class Members report being rushed to sign the election 11 form before reunification, with no legal advice, no time to think, and sometimes 12 without translation. Not surprisingly, therefore, many parents whom Defendants list 13 as knowingly waiving reunification in fact want the opposite: to be reunited with 14 their children. See Reichlin-Melnick Decl. ¶¶ 4-11; Reive Decl. ¶¶ 4-14; Cruz Decl. 15 ¶¶ 4-6, 12-14; Mwalimu Decl. ¶¶ 4-6; Gomez Amaya Decl. ¶¶ 7, 14; Suchman 16 Decl. ¶¶ 4-9; Shepherd Decl. ¶¶ 4, 8, 10. Indeed, many are not even aware that they 17 signed a form relinquishing their right to reunification. And still others supposedly 18 knowingly waived reunification even though they do not have removal orders, and 19 therefore would be reunified and released with their child under the Government’s 20 published reunification procedures. See Dkt. 109-1, at 3, ¶ P. 21 22 IV. The Court Has Jurisdiction to Stay Removals. Defendants do not address this Court’s clear equitable authority to ensure 23 that its orders are properly effectuated. And none of the statutes Defendants invoke 24 affects the Court’s inherent power to enforce its own orders. See Scholars Amicus 25 Brief in Support of Stay. 26 A. The Court Has Equitable Power to Enforce Its Orders. 27 The government nowhere addresses the fundamental principle that federal 28 courts have inherent power to issue all relief necessary to render their orders 9 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2535 Page 13 of 125 1 effective. See Stay Mot. at 7. The broad discretion of the district courts to provide a 2 remedy for constitutional wrongs is well-recognized. See Lemon v. Kurtzman, 411 3 U.S. 192 (1973) (“In shaping equity decrees, the trial court is vested with broad 4 discretionary power. . . . Moreover, in constitutional adjudication as elsewhere, 5 equitable remedies are a special blend of what is necessary, what is fair, and what is 6 workable.”); Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 14 (1971) 7 (“Once a right and a violation have been shown, the scope of a district court's 8 equitable powers to remedy past wrongs is broad, for breadth and flexibility are 9 inherent in equitable remedies.”); Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 10 558 (9th Cir. 1990) (“Once plaintiffs establish they are entitled to injunctive relief, 11 the district court has broad discretion to fashion a remedy.”). And courts have 12 particularly broad inherent authority “to ensure obedience to their orders.” F.J. 13 Henshaw Enters., Inc. v. Emerald River Dev., Inc., 244 F.3d 1128, 1136 (9th Cir. 14 2001) (citing Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991)); see Travelhost, 15 Inc. v. Blandford, 68 F.3d 958, 961 (5th Cir. 1995) (“Courts possess the inherent 16 authority to enforce their own injunctive decrees.”). 17 Because this power is so central to the judiciary’s inherent authority, 18 Congress must issue an especially clear statement if it seeks to limit this power. 19 See, e.g., Plata v. Schwarzenegger, 603 F.3d 1088, 1093-94 (9th Cir. 2010) 20 (recognizing the government’s “high burden” to show that Congress restrained 21 courts’ traditional equitable powers); Stay Mot. at 9-10. Here, the Government 22 cannot come close to making the necessary showing to strip this Court of its 23 inherent powers to ensure that its injunction is properly implemented. 24 25 26 B. The Provisions Defendants Cite Do Not Strip This Court of Power to Enforce Its Order. None of the statutory provisions Defendants invoke remotely contains the 27 necessary clear statement to strip this Court of its historic power to enforce its 28 injunction. 10 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2536 Page 14 of 125 1 1. Section 1252(a)(2)(A)(i). The Government contends that 8 U.S.C. § 2 1252(a)(2)(A)(i) divests this Court of jurisdiction to grant a short stay of removal 3 for Class Members with expedited removal orders. Stay Opp. at 18-20. But this 4 provision, like the other provisions on which the Government relies, concerns cases 5 involving a challenge to an order of removal. Indeed, the provisions on which the 6 Government relies all appear in § 1252 of the Immigration and Nationality Act, 7 which is entitled “Judicial Review of Orders of Removal.” 8 9 The text of § 1252(a)(2)(A)(i) bars review only over a “cause or claim arising from or relating to the implementation or operation of an [expedited removal] 10 order.” But Plaintiffs’ claims for relief are based on their constitutional right to 11 reunification with their children; in this motion, Plaintiffs have not brought a “cause 12 or claim” attacking their removal orders. The Court is simply being asked to use its 13 standard equitable powers to enforce a previously-issued injunction.3 14 The Government cites a handful of expedited removal cases. See Stay Opp. at 15 19-20 (citing Garcia de Rincon v. DHS, 539 F.3d 1133, 1140 (9th Cir. 2008); 16 Avendano-Ramirez v. Ashcroft, 365 F.3d 813, 818 (9th Cir. 2004); Pena v. Lynch, 17 815 F.3d 452, 455 (9th Cir. 2015)). But, unlike the instant request for relief, these 18 cases all involved challenges to the expedited removal order itself. 19 The far more analogous case is Kwai Fun Wong v. United States, 373 F.3d 20 952 (9th Cir. 2004), where the plaintiff was not bringing a “challenge to her 21 expedited removal.” Id at 965. The Ninth Circuit held that, as a result, none of the 22 3 23 24 25 26 27 28 Defendants rely on dicta from Aguilar v. ICE, 510 F.3d 1 (1st Cir. 2007), to support a sweeping interpretation of “relating to” in § 1252(a)(2)(A)(i). Dkt. 148 at 19-20. But Aguilar did not even involve § 1252(a)(2)(A)(i), and actually found jurisdiction over the plaintiffs’ substantive due process claims. In any event, the Supreme Court has cautioned that the words “relating to” would “stop nowhere” if they “extended to the furthest reach of their indeterminacy,” and that “context . . . may tug in favor of a narrower reading.” Mellouli v. Lynch, 135 S. Ct. 1980, 1990 (2015) (alterations omitted). In light of the courts’ longstanding power to grant relief to enforce their own orders, context here favors a narrower reading. 11 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2537 Page 15 of 125 1 claims “implicate[d] actions covered by Section 1252(a)(2)(A).” Id. Similarly, 2 Plaintiffs’ claims here do not “arise from or relate to” their expedited removal 3 orders. Rather, they concern the Government’s decision to separate them 4 unlawfully from their children. 5 As Kwai Fun Wong makes clear, the provisions on which the Government 6 relies could not possibly divest this Court of jurisdiction to remedy other types of 7 constitutional violations. If they could, it would mean that the Government could 8 simply remove individuals before a federal court could remedy a host of 9 constitutional violations that are independent of the removal process.4 10 The Government also cites 8 U.S.C. § 1252(e)(1). But that provision likewise 11 appears in a section of the statute about review of removal orders. Moreover, the 12 Supreme Court has distinguished between injunctions and stays, explaining that the 13 former “direct[s] the conduct of a particular actor,” whereas the latter merely 14 “operates upon the judicial proceeding itself . . . by temporarily divesting an order 15 of enforceability.” Nken v. Holder, 556 U.S. 418, 428 (2009) (vacating lower 16 court’s order denying a stay of removal). All Plaintiffs seek here is a limited stay 17 before Defendants enforce their expedited removal orders, to avert the risk that they 18 gave up their rights or their kids’ without being informed of their options under the 19 injunction. 20 2. Section 1252(g). Plaintiffs have already addressed Defendants’ contentions 21 about § 1252(g). Stay Mot. at 8-10. In a footnote, Defendants attempt to distinguish 22 clear, on-point Ninth Circuit case law (Walters and Barahona) that rejects the 23 Government’s reading of § 1252(g). Stay Opp. at 21 n.7. Defendants point to the 24 2005 REAL ID Act’s addition of the phrase “statutory or non-statutory” to § 25 26 27 28 4 Suppose, for instance, an immigrant were tortured in detention and brought a classic civil rights case. Under the Government’s view, a federal court would be powerless to keep the individual in the country for even a brief period to allow him to pursue his claim, even if he were not challenging his ultimate removal. 12 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2538 Page 16 of 125 1 1252(g), but they do not explain why that undermines the Ninth Circuit’s reasoning, 2 which distinguished between a court’s equitable relief to enter a stay of removal, 3 and the court’s jurisdiction over a “cause or claim . . . arising from” a decision to 4 execute the removal order. Here, the cause or claim that Plaintiffs raised is a 5 challenge to their family separation, not to the validity of their removal orders. As 6 in Walters and Barahona, the relief Plaintiffs are seeking is necessary to effectuate 7 the injunctive relief. In those case, as in this case, the Court issued a stay of 8 removal to enforce the injunction. And, as in this case, the injunctions in those 9 cases involved constitutional violations unrelated to a challenge to a removal order. 10 The Government also does not grapple with the Ninth Circuit’s en banc 11 decision in United States v. Hovsepian, 359 F.3d 1144, 1155 (9th Cir. 2004). See 12 Stay Mot. at 10. There, the Ninth Circuit held that § 1252(g) only applies to 13 discretionary decisions. Here, Plaintiffs are enforcing a non-discretionary 14 constitutional right. As Hovsepian made clear, § 1252(g) was not directed to a case 15 like the instant one. Rather, it was directed at cases where there was no legal 16 violation and a plaintiff was simply challenging the Government’s discretionary 17 decision to execute a removal order at a particular time. See id. at 1155 (explaining 18 that § 1252(g) “was directed against a particular evil: attempts to impose judicial 19 constraints upon prosecutorial discretion.”). 20 Defendants also attempt distinguish the decision of Judge Carney in Chhoeun 21 v. Marin, No. 17-cv-01898, 2018 WL 566821 (C.D. Cal Jan. 25, 2018), and the 22 similar case of Sied v. Nielsen, No. 17-Cv-06785, 2018 WL 1142202 (N.D. Cal. 23 Mar. 2, 2018). In both of those cases, the court issued a stay of removal and 24 rejected the Government’s § 1252(g) argument, stressing that the § 1252(g) does 25 not apply to non-discretionary constitutional claims. And notably, in both of those 26 cases, the plaintiffs were seeking to challenge their removal orders. The 27 Government has no answer to these cases other than to assert that the instant case, 28 unlike those cases, does involve a discretionary decision. But that is flatly wrong, as 13 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2539 Page 17 of 125 1 already discussed. It involves a constitutional right to family unity and fair notice. 2 The very basis of Chhouen and Sied was that the government’s discretion does not 3 include the discretion to violate the law. Here, the government’s removal of 4 Plaintiffs will contravene the Court’s injunctive order that their constitutional right 5 to reunification be exercised independently of their right to raise asylum claims and 6 be waived only in a knowing, intelligent, and voluntary fashion. 7 In sum, Defendants seek to use jurisdictional provisions that are designed to 8 regulate judicial review of removal orders. Those provisions do not do the 9 extraordinary work claimed by Defendants: strip a federal court of power to 10 enforce its own orders involving an independent constitutional violation. 11 12 13 CONCLUSION For the foregoing reasons, the Court should enjoin Defendants from removing parents until 7 days after notice of reunification. 14 15 16 17 18 19 20 21 22 23 24 25 26 Dated: July 25, 2018 Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 398-4485 F: (619) 232-0036 bvakili@aclusandiego.org Stephen B. Kang (SBN 2922080) Spencer E. Amdur (SBN 320069) AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 skang@aclu.org samdur@aclu.org Respectfully Submitted, /s/Lee Gelernt Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2660 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org *Admitted Pro Hac Vice 27 28 14 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2540 Page 18 of 125 1 2 3 4 CERTIFICATE OF SERVICE I hereby certify that on July 25, 2018, I electronically filed the foregoing with the Clerk for the United States District Court for the Southern District of California 5 by using the appellate CM/ECF system. A true and correct copy of this brief has 6 been served via the Court’s CM/ECF system on all counsel of record. 7 /s/ Lee Gelernt Lee Gelernt, Esq. Dated: July 25, 2018 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2541 Page 19 of 125 1 2 Ms. L. et al., v. U.S. Immigration and Customs Enforcement, et al. EXHIBITS TO PLAINTIFFS’ MOTION FOR STAY AND OTHER RELIEF 3 TABLE OF CONTENTS 4 5 EXHIBIT DOCUMENT PAGES 43 Declaration of Aaron Reichlin-Melnick 17-22 8 44 Declaration of Luis Cruz 23-28 9 45 Declaration of Sofia Reive 29-34 10 46 Declaration of E. Gail Suchman 35-39 47 Declaration of Charles Mwalimu 40-43 13 48 Declaration of Kathryn E. Shepherd 44-48 14 49 Declaration of Lauren Connell 49-61 15 50 Redacted Declaration of H.G.A. 62-69 51 Declaration of Shalyn Fluharty 70-78 52 Redacted Declaration of Susanne Gilliam 79-82 19 53 Declaration of Maria Odom 83-91 20 54 Declaration of Leah Chavla 92-96 21 55 Redacted Declaration of Laura Rivera 97-104 56 Declaration of Laura P. Lunn 105-108 57 Declaration of Manoj Govindaiah 109-122 6 7 11 12 16 17 18 22 23 24 25 26 27 28 16 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2542 Page 20 of 125 EXHIBIT 43 Exhibit 43, Page 17 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2543 Page 21 of 125 Exhibit 43, Page 18 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2544 Page 22 of 125 Exhibit 43, Page 19 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2545 Page 23 of 125 Exhibit 43, Page 20 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2546 Page 24 of 125 Exhibit 43, Page 21 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2547 Page 25 of 125 Exhibit 43, Page 22 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2548 Page 26 of 125 Exhibit 44 Exhibit 44, Page23 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2549 Page 27 of 125 1 2 3 4 5 6 7 8 9 Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2660 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org Attorneys for Petitioners-Plaintiffs Additional counsel on next page 10 11 12 Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 398-4485 F: (619) 232-0036 bvakili@aclusandiego.org Stephen B. Kang (SBK 292280) Spencer E. Amdur (SBN 320069) AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 skang@aclu.org samdur@aclu.org *Admitted Pro Hac Vice 13 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 14 15 Ms. L., et al., 16 Petitioners-Plaintiffs, 17 v. 18 U.S. Immigration and Customs Enforcement (“ICE”); et al., 19 20 Case No. 18-cv-00428-DMS-MDD DECLARATION OF LUIS CRUZ CLASS ACTION Respondents-Defendants. 21 22 23 24 25 26 27 28 Exhibit 44, Page24 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2550 Page 28 of 125 1 2 3 4 5 6 7 1. I, Luis Cruz, make the following declaration based on my personal knowledge and declare under the penalty of perjury pursuant to 28 U.S.C. § 1746 that the following is true and correct: 2. I am an Attorney at the law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP. I am a member of the New York State Bar. I am a native Spanish speaker. 3. I, along with other attorneys from our law firm, have been volunteering at 8 9 10 11 12 13 14 15 16 17 the Otero County Processing Center in Chaparral, New Mexico (“Otero”), where I have been meeting with detained parents who were separated from their children. 4. In connection with this work, I was provided with a list of parents who the government has identified as having relinquished their right to reunify with their children. On July 22, 2018, I met with five fathers who had been placed on this socalled “relinquishment list,” but who told me that they did not understand the implications of what they were signing. All of the five fathers wish to be reunited with their children. 5. All of the five fathers told me that they were not able to read or write in 18 Spanish nor English. One of the fathers told me that he was only shown the form that 19 he signed in English with no explanation; as such, he was surprised to learn that it 20 may have relinquished his rights to reunification with his son. 21 6. Four of the fathers told me that they signed the form in a large group of 22 other fathers in detention, many of whom described signing the form in a group of 30- 23 50 people in a room that is used as a Church at Otero (the “Church”). All five told me 24 they felt intimidated when they signed this form. 25 7. The first father told me that he was taken to the Church with a group of 26 50 fathers in detention on or around July 17, 2018. He said that the process of being 27 addressed and signing the form lasted no more than 4 minutes. He described not 28 having spoken to a lawyer, and that he has not been in front of a judge or court. He Exhibit 44, Page25 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2551 Page 29 of 125 1 2 3 4 5 6 7 has received an order of removal dated June 4, 2018. He said he wants to be reunited with his son. 8. The second father, who came to the United States with two children, told me that he was also taken to the Church with a group of approximately 50 other fathers in detention. He said that there was no explanation of the form that he signed at this time. He said that he has no way to contact his children and has only spoken to them one time since he detained on May 28, 2018. He told me that he has a court date 8 9 10 11 12 13 14 15 16 17 18 19 on July 26, 2018, but that he does not know what it is for. He has not received an order of removal. He told me he wants to stay in the United States with his children. 9. The third father said that he was taken to the Church with around 25-30 other fathers in detention. He said that there were more people coming in after he left. He said that he was given a form, that it was not explained to him, and that the entire process lasted no more than three minutes. He said that he felt sad and intimidated during this process. He expressed that he believed he had no choice but to sign the form. He said he has not received a final order of removal, and he does not know what the status of his case is. In fact, he has received an order of removal which is dated June 3, 2018. 10. The fourth father described signing something at the Cibola Detention 20 Center before being transferred to Otero. He signed this form with three other fathers 21 in detention. He said this process was very quick, no more than a few minutes, and 22 that he was frightened. He said that the official intimidated him and told him where to 23 sign, even though he did not know what it was he was signing. He told me that he has 24 not spoken to a judge or been to court and he does not know what the status of his 25 case is. He has not received an order of removal. He said that he wants to be 26 reunified with his son, and that he wants to fight his case. 27 28 11. The fifth father described signing two forms while in a detention facility in Yuma, Arizona before being transferred to Otero. He said that the forms were in Exhibit 44, Page26 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2552 Page 30 of 125 1 2 3 4 5 6 7 English both times, that they were not explained to him. He said that an official made him sign both forms. He expressed surprise and concern to me when he understood from my questions that these forms may have had to do with not reunifying with his son. He said that he had a court appearance on July 12 in which he was told he could proceed with an appeal, but that he would need an attorney. He told me that he cannot afford an attorney and does not understand where his case stands. He has not received an order of removal. He told me that he wants to stay in the United States with his 8 9 10 11 12 13 14 15 16 17 son. 12. Based on my discussion with these fathers, it appears that none were told the implications of what they were signing or had an understanding of what they were signing. Each of the fathers told me that they were not given the opportunity to ask questions. The manner in which they signed these forms was universally described as intimidating and very stressful. Each described feeling hopeless and believing that they had no alternative but to sign the form. 13. Finally, none described having the option to discuss the form with their separated children before signing. Indeed, none reported having communicated with 18 their children on more than one or two occasions since their separations, some as 19 much as two months ago. One described his despair because he did not know even if 20 his child was safe and healthy; another broke down in tears as he described not having 21 spoken to his son in 25 days and being unsure of his location. 22 14. None of the fathers I spoke with said that they had been furnished with a 23 copy of the form, or forms, that they signed. Thus it was difficult for both myself and 24 for them to understand what exactly they signed. Each expressed confusion and 25 visible distress because they do not know when they might be able to see their 26 children again. 27 28 Exhibit 44, Page27 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2553 Page 31 of 125 Exhibit 44, Page28 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2554 Page 32 of 125 Exhibit 45 Exhibit 45, Page29 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2555 Page 33 of 125 1 2 3 4 5 6 7 8 9 Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2660 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org Attorneys for Petitioners-Plaintiffs Additional counsel on next page 10 11 12 Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 398-4485 F: (619) 232-0036 bvakili@aclusandiego.org Stephen B. Kang (SBK 292280) Spencer E. Amdur (SBN 320069) AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 skang@aclu.org samdur@aclu.org *Admitted Pro Hac Vice 13 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 14 15 Ms. L., et al., 16 Petitioners-Plaintiffs, 17 v. 18 U.S. Immigration and Customs Enforcement (“ICE”); et al., 19 20 Respondents-Defendants. Case No. 18-cv-00428-DMS-MDD DECLARATION OF SOFIA REIVE CLASS ACTION 21 22 23 24 25 26 27 28 Exhibit 45, Page30 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2556 Page 34 of 125 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 1. I, Sofia Reive, make the following declaration based on my personal knowledge and declare under the penalty of perjury pursuant to 28 U.S.C. § 1746 that the following is true and correct: 2. I am an Associate with the law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP. I am a member of the New York Bar. I am a native Spanish speaker. 3. I, along with other attorneys from our law firm, have been volunteering at the Otero County Processing Center in Chaparral, New Mexico (“Otero”), where I have been meeting with detained parents who were separated from their children. 4. In connection with this work, I was provided with a list of parents who the government has identified as having relinquished their right to reunify with their children. During the weekend of July 21–22, 2018, I met with nine fathers who had been placed on this so-called “relinquishment list.” Every one of these fathers told me that they did not want to be deported; they had no idea that they had signed a document that relinquished any rights to be reunited with the children. Every father I met with wants to be reunified with his children and remain in the United States. 5. One of these fathers on the relinquishment list, a man from Guatemala, 18 has not received an order of removal, and was told that he had passed his credible fear 19 interview—he has a court date scheduled for August 7. He told me that he was taken 20 to a room at Otero approximately 10 days ago to meet with immigration officials. The 21 officials told him he was definitely going to be deported and then asked him whether 22 he wished to be deported with his daughter or by himself—the officials did not ask 23 him if he wished to be reunified with his daughter in the United States. The father 24 told them that he wished for his daughter to remain in the United States—this is 25 because, as he told me, it is not safe for his daughter to return to Guatemala due to 26 extreme and specific threats from a powerful and dangerous man who has demanded 27 to “buy” her. The officials then gave him a document in English (which he does not 28 understand), and told him that the only way his daughter could stay in the United Exhibit 45, Page31 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2557 Page 35 of 125 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 States was if he signed this document. He had no opportunity to review the document or ask any questions about it. He told me that he signed this document because he felt pressured to do so and because he felt like he had no other choice. This entire interaction lasted approximately one minute. 6. Later, officials told him to sign another document in Spanish acknowledging that he had understood the contents of the English document that he had previously signed. He told me that he signed this document because he again felt pressured to do so and because he wanted his daughter to be able to remain in the United States, even though he had in fact not understood the English document he previously signed. He told me that, about two days later, officials informed him that he had passed his credible fear interview. He has a pending court date. He has only spoken with his daughter twice since they were separated. He told me that he wants to be reunified with his daughter in the United States. 7. Lastly, I spoke with a father on the relinquishment list who told me that, about 20 days ago, officials told him that he was going to be deported, and to choose whether to be deported with his daughter or be deported alone and his daughter would 18 remain in the United States. At that time, he was not given the option to be reunited 19 with his daughter in the United States. He recalled selecting the option that allowed 20 his daughter to remain in the United States, but that he later changed his mind and 21 now wants to be reunified with her even if he is to be deported. He has not had a 22 credible fear interview, and has not appeared before an immigration judge. He 23 received an order of removal on June 17, 2018. He wishes to be reunified with his 24 daughter in the United States, but told me that if he is deported he wants his daughter 25 to come with him. 26 27 8. I also met with four fathers on the relinquishment list who speak limited Spanish, and whose first language is an indigenous language. 28 Exhibit 45, Page32 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2558 Page 36 of 125 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 9. One of these fathers on the relinquishment list told me that he has only spoken to his son twice since they were separated two months ago. The last time he spoke to his son was approximately 20 days ago. He told me that he signed a paper that he thought would allow him to be reunited with his son. He also told me, however, that he cannot read or write. His first language is Mam, but he has not been provided with an interpreter who speaks Mam while detained. He has had two court dates, but both times his hearing was adjourned because no Mam interpreter was available. He has not received an order of removal. He told me that he does not want to be deported—he wants to be reunified with his son and remain in the United States. 10. I met twice with another one of these fathers on the relinquishment list. He speaks extremely limited Spanish. He had difficulty communicating with me in Spanish given his limited knowledge of the language. His first language is Mam. He also told me that he cannot read or write. This father told me that he signed a document that he thought would allow him to be reunited with his son. He could not, however, understand the document because he is illiterate and no interpreter was provided to explain its contents to him in Mam. He has only spoken to his son twice 18 and he does not know where his son is presently located. He has not received an order 19 of removal. This father told me that he wants to remain in the United States with his 20 son. 21 11. Lastly, I spoke with a father on the relinquishment list whose first 22 language is Mam—he speaks limited Spanish. He also appeared to me to be unable to 23 read or write. This father told me that he was asked to sign a document in Spanish, 24 but was unable to explain to me what he had signed. This father told me that he wants 25 to remain in the United States with his son. He told me he has not a credible fear 26 interview, and he had not appeared before a judge. He has not received an order of 27 removal. He told me that he submitted a request to ICE stating that, in the event that 28 he is deported, he wants to be reunified with his son. Exhibit 45, Page33 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2559 Page 37 of 125 Exhibit 45, Page34 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2560 Page 38 of 125 Exhibit 46 Exhibit 46, Page35 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2561 Page 39 of 125 1 2 3 4 5 6 7 8 9 Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2660 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org 10 11 Attorneys for Petitioners-Plaintiffs Additional counsel on next page 12 13 14 15 Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 398-4485 F: (619) 232-0036 bvakili@aclusandiego.org Stephen B. Kang (SBK 292280) Spencer E. Amdur (SBN 320069) AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 skang@aclu.org samdur@aclu.org *Admitted Pro Hac Vice 16 17 18 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 19 Ms. L., et al., 20 Petitioners-Plaintiffs, 21 v. 22 U.S. Immigration and Customs Enforcement 23 (“ICE”); et al., 24 Case No. 18-cv-00428-DMS-MDD DECLARATION OF E. GAIL SUCHMAN CLASS ACTION Respondents-Defendants. 25 26 27 28 Exhibit 46, Page36 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2562 Page 40 of 125 1 1. I, E. Gail Suchman, make the following declaration based on my personal 2 knowledge and declare under the penalty of perjury pursuant to 28 U.S.C. § 1746 that 3 the following is true and correct: 4 5 6 2. I am a partner at the law firm of Stroock & Stroock & Lavan LLP. I am a member of the New York State Bar. 3. I have been volunteering at the El Paso Processing Center in El Paso, 7 Texas, where I have been meeting with detained parents who were separated from 8 their children. 9 10 11 12 13 14 15 4. Between July 20 and 22, 2018, I met with at least four mothers and two fathers who were separated from their children and who have been identified by the government as having relinquished their right to be reunified with their children. All of them wish to be reunited with their children. 5. One of the mothers came from El Salvador on or about June 1, 2018, with her 17 year old son. She was apprehended after crossing the border and, after a day, she was separated from her son and taken to federal prison in El Paso in 16 17 18 19 20 21 22 23 handcuffs and chains. Since then, she has been moved to three other detention centers, ending up in the El Paso Processing Center on July 19, 2018. She was not told where her child was located for at least a month. She spoke to him once two weeks ago and now the phone number she was given does not work. She believes she had a Credible Fear Interview on July 5, 2018, and has not heard anything in response. According to the government’s list, she does not have a final removal order. 6. While this mother was in detention, an agent gave her a paper to sign and 24 she was told it said that she wishes her son to stay in the United States. The paper was 25 in English and she does not speak or read English. She also demonstrated difficulty 26 writing her name, even in Spanish. She said she does not want her son to go back to 27 El Salvador because he is very dark skinned and suffered a great deal of 28 Exhibit 46, Page37 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2563 Page 41 of 125 1 discrimination there. She wants to be reunited with her son but is afraid the 2 government will not reunite her with him. 3 7. Another mother from Guatemala crossed into the United States on May 4 22, 2018, with her 13 year old son. They were picked by border patrol within five 5 minutes and were brought to the “hielera.” The next day, she was separated from her 6 son and sent to another detention facility. She did not sign anything. She came to the 7 El Paso Processing Center on June 22 or 23, 2018, where she said an ICE agent told 8 her she could not ask for asylum because of where she crossed: it was too far from a 9 10 11 12 13 14 15 Port of Entry. The agent said she had no options. She did not want to sign anything but believed she had no option. She signed a paper that the agent told her would allow her son to stay here if she were to be deported. However, as far as she knows, she has no final removal order. And according to the government's list, she does not have a final removal order. She wants to be considered for asylum and to be reunited with her son while she pursues her case. 8. Another mother from Honduras crossed the border with her two children, 16 17 18 19 20 21 22 23 ages 14 and 9, on June 4, 2018. They were picked up by border patrol and taken to the immigration office. The next day the mother was separated from her children and taken to a detention facility. She believes her children were taken to a shelter in New York. She has spoken with them only twice. On June 27, 2018, at the El Paso Processing Center, she was given a paper to sign and was told it was about her asylum claim. She signed. She said she was told she had a Credible Fear Interview scheduled for 15 days ago but it never happened. She does not have a final removal order. She 24 has heard nothing about being reunited with her children but she wants to be reunified 25 while she pursues her asylum claim. 26 9. Another mother from Honduras arrived in the United States on May 16, 27 2018, crossing at Laredo with her daughter (10 years old) and son (6 years old). They 28 were picked up by border patrol and stayed together in the “icebox” for 5 days. After Exhibit 46, Page38 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2564 Page 42 of 125 1 Laredo, she was taken to two more detention facilities. On May 21, 2018, the mother 2 was taken to immigration court and was told she would be deported with her children. 3 She was asked to sign a form but refused and was then represented by counsel. She 4 had a Credible Fear Interview on June 20, 2018, which she passed. She wants to be 5 reunified with her children while she pursues her asylum claim. 6 10. I declare under penalty of perjury that the foregoing is true and correct, 7 based on my personal knowledge. Executed in New York, New York, on July 23, 8 2018. 9 10 11 12 13 14 15 16 E. Gail Suchman Stroock & Stroock & Lavan, LLP 180 Maiden Lane New York, NY 10038 212-806-6656 gsuchman@stroock.com 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit 46, Page39 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2565 Page 43 of 125 Exhibit 47 Exhibit 47, Page40 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2566 Page 44 of 125 Exhibit 47, Page41 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2567 Page 45 of 125 Exhibit 47, Page42 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2568 Page 46 of 125 Exhibit 47, Page43 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2569 Page 47 of 125 Exhibit 48 Exhibit 48, Page44 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2570 Page 48 of 125 1 2 3 4 5 6 7 8 9 Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2660 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org Attorneys for Petitioners-Plaintiffs Additional counsel on next page 10 11 12 Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 398-4485 F: (619) 232-0036 bvakili@aclusandiego.org Stephen B. Kang (SBK 292280) Spencer E. Amdur (SBN 320069) AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 skang@aclu.org samdur@aclu.org *Admitted Pro Hac Vice UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 13 14 Ms. L., et al., 15 Petitioners-Plaintiffs, 16 v. 17 U.S. Immigration and Customs Enforcement 18 19 (“ICE”); et al., Respondents-Defendants. Case No. 18-cv-00428-DMS-MDD DECLARATION OF KATHRYN E. SHEPHERD CLASS ACTION 20 21 22 23 24 25 26 27 28 Exhibit 48, Page45 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2571 Page 49 of 125 1 2 3 4 5 6 7 1. I, Kathryn E. Shepherd, make the following declaration based on my personal knowledge and declare under the penalty of perjury pursuant to 28 U.S.C. § 1746 that the following is true and correct: 2. I am National Advocacy Counsel for the Immigration Justice Campaign, a joint initiative between the American Immigration Council and the American Immigration Lawyers Association. I focus on legal advocacy and policy related to individuals held in ICE custody and asylum-seeking women and children detained in family detention 8 9 10 11 12 13 14 15 16 17 centers around the country. I am a member of the State Bars of New York and Texas. 3. I, along with two other volunteers from our organization, spent four days from Monday, July 9, 2018, through Thursday, July 12, 2018, meeting with parents separated from their children. These individuals were detained in the West Texas Detention Facility in Sierra Blanca, Texas (“Sierra Blanca”); the Otero County Facility (“Otero”) and the Otero Prison in Chaparral, New Mexico; and the El Paso Service Processing Center in El Paso, Texas. 4. I personally interviewed approximately 15 separated parents during this time period. Many of these individuals stated that they had signed paperwork they did not 18 understand concerning their right to reunification with their children. None of the 19 parents with whom we met were given a copy of the paperwork they were asked to 20 sign. One father was told that if he didn’t sign the form presented to him, then he 21 would not see his daughter again. 22 5. 23 the parents that in order to see their children, they had to sign the form that was 24 presented in front of them. The parents reported that they were not permitted to ask 25 any questions regarding the forms they were being asked to sign. 26 6. 27 officers read the form to him in English (not Spanish), even though he could read and 28 write in Spanish, but not English. A typical scenario relayed to me by detained parents was that ICE officers told Some parents do not read or write in Spanish. One parent reported that ICE 18cv0428 Exhibit 48, Page46 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2572 Page 50 of 125 1 2 3 4 5 6 7 7. For example, I interviewed one asylum-seeking parent from Guatemala who does not read or write in any language. At the time that an ICE officer approached her to sign paperwork regarding her deportation and relinquishment of the opportunity to reunify with her child, the parent had not yet spoken to her child or know the child’s whereabouts. When an ICE officer presented the deportation and relinquishment form to her, the officer did not read the form aloud to her. The parent told the officers that she wanted to apply for asylum, but the ICE officer responded that applying for 8 9 10 11 12 13 14 15 16 17 asylum would take six to eight months and that she would not see her daughter during that time period. Because the parent could not bear being separated from her daughter and detained for so many additional months, the parent signed the form. The next day, officers from the Department of Health and Human Services (HHS) met with her and gave her information about where her daughter was, and gave her numbers where she could reach her daughter. 8. Some parents were also told about their rights to reunification in large group presentations by ICE. Just before I visited the Otero Facility on July 12, 2018, a large group of fathers had been transferred in the prior day or two to Otero from Sierra 18 Blanca. According to at least three transferred fathers with whom we met in Otero, a 19 large group of fathers in Sierra Blanca had been called together by ICE on July 11, 20 2018 and instructed to sign paperwork. By one man's account, about 63 men were 21 called, though they were broken up into smaller groups. The men were told that they 22 had three options: (a) be removed without their child; (b) be removed with their child; 23 or (c) continue to fight their claims for asylum. 24 9. 25 understand that they could both continue to fight their asylum claims and be reunified 26 with their children. 27 10. 28 that ICE officers and detention center guards at Otero and Sierra Blanca told them that Critically, these parents were not clearly informed and did not actually I, along with other members of our team, heard from multiple parents at Otero 18cv0428 Exhibit 48, Page47 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2573 Page 51 of 125 1 2 3 4 5 6 7 they had no rights; that it would take at least six to eight months to fight their asylum claims; that they would not see their children during this entire time; and that they would be deported when they lost. 11. One father also told us that an ICE officer told him that if he wished to fight his asylum case, that it would cost him at least $500 every time he wished to see any attorney. 12. Several parents told us that they did not apply for asylum or related forms of 8 9 10 11 12 13 14 protection, despite having a fear of return to their home country, because they were told by ICE or Customs and Border Protection officials that they were not allowed to apply due to having had been deported from the United States in the past. 13. I declare under penalty of perjury under the laws of the United States of America and the District of Columbia that the foregoing is true and correct, based on my personal knowledge. Executed in Washington, D.C. on July 23, 2018. 15 16 17 18 ____________________________ KATHRYN E. SHEPHERD 19 20 21 22 23 24 25 26 27 28 18cv0428 Exhibit 48, Page48 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2574 Page 52 of 125 Exhibit 49 Exhibit 49, Page49 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2575 Page 53 of 125 1 2 3 4 5 6 7 8 9 10 11 12 Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2660 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 398-4485 F: (619) 232-0036 bvakili@aclusandiego.org Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice Additional counsel on next page UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA Ms. L., et al., Case No. 18-cv-00428-DMS-MDD v. 13 14 U.S. Immigration and Customs Enforcement (“ICE”); U.S. Department of Homeland Security 15 (“DHS”); U.S. Customs and Border Protection (“CBP”); U.S. Citizenship and Immigration DECLARATION OF LAUREN 16 Services (“USCIS”); U.S. Department of Health CONNELL and Human Services (“HHS”); Office of 17 Refugee Resettlement (“ORR”); Thomas CLASS ACTION 18 Homan, Acting Director of ICE; Greg Archambeault, San Diego Field Office Director, 19 ICE; Joseph Greene, San Diego Assistant Field Office Director, ICE; Adrian P. Macias, El Paso 20 Field Director, ICE; Frances M. Jackson, El Paso 21 Assistant Field Office Director, ICE; Kirstjen Nielsen, Secretary of DHS; Jefferson Beauregard 22 Sessions III, Attorney General of the United States; L. Francis Cissna, Director of USCIS; 23 Kevin K. McAleenan, Acting Commissioner of 24 CBP; Pete Flores, San Diego Field Director, CBP; Hector A. Mancha Jr., El Paso Field 25 Director, CBP; Alex Azar, Secretary of the Department of Health and Human Services; 26 Scott Lloyd, Director of the Office of Refugee Resettlement, Petitioners-Plaintiffs, 27 28 Respondents-Defendants. Exhibit 49, Page50 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2576 Page 54 of 125 1 2 3 4 5 Spencer E. Amdur (SBN 320069) AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 samdur@aclu.org 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit 49, Page51 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2577 Page 55 of 125 1 2 3 1. I, Lauren Connell, make the following declaration based on my personal knowledge and declare under the penalty of perjury pursuant to 28 U.S.C. § 1746 that 4 the following is true and correct: 5 2. 6 7 I am a licensed attorney and Pro Bono Counsel at the law firm Akin Gump Strauss Hauer & Feld LLP, based out of New York. In 2014, I was seconded by Akin 8 Gump for four months to our San Antonio office to work full-time counseling families 9 detained at the Karnes County Residential Center, which at the time had recently 10 11 12 13 14 opened as an immigrant family detention facility housing women and children. After returning to New York at the end of 2014, I have made several trips to the Karnes facility in the intervening years to counsel detained families. 15 3. 16 that trip I saw a level of disarray that I have not seen since my initial days at the 17 18 My most recent trip took place last week, from July 17 to July 20, 2018. During facility when it first opened in 2014. 19 4. 20 transfer of hundreds of women and children out of Karnes in order to make space to 21 22 23 24 25 Just prior to my arrival, the family reunification process had led to a mass reunify families who had been separated. Throughout the week, the facility was repopulated in waves with men being reunited with their children in detention at Karnes. Any women remaining at the facility during the week were swiftly 26 transferred out with no notice to counsel. Then, inexplicably, at the end of the week, a 27 new group of women without children were brought to the facility. 28 18cv0428 Exhibit 49, Page52 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2578 Page 56 of 125 1 2 3 5. The upending of the Karnes population due to family reunification has created a multitude of challenges for pro bono attorneys providing legal services to the families 4 detained at the facility. The pro bono legal program at Karnes is run by an 5 organization RAICES with the help of volunteer attorneys such as myself. That 6 7 program was designed to serve families who recently entered the country and 8 remained together throughout the length of their detention. This meant that we were 9 able to advise the women from the outset and, in most cases, before they were given a 10 11 12 13 14 credible fear interview. 6. In the typical case we previously saw at Karnes, the parents were all at an early stage of their immigration proceedings and had not yet received credible fear 15 interviews. Therefore, it was easy to hold group intake sessions for the parents where 16 we gathered biographical information and immigration history and to determine 17 18 whether the detained parents had been scheduled for a credible fear interview. These 19 group intake sessions lasted for approximately 30 to 45 minutes, depending on the 20 size of the group. From there, the next step was to counsel families individually on 21 22 23 24 25 how to prepare for their upcoming credible fear interview. All told, we spent perhaps 30 minutes to an hour consulting with each individual parent in the typical Karnes case. 26 7. The new families being relocated to Karnes, on the other hand, are in a 27 completely different situation. These families are comprised of fathers and their 28 18cv0428 Exhibit 49, Page53 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2579 Page 57 of 125 1 2 3 children who had been present in the United States for several weeks or months prior to entering Karnes, which meant that we were not seeing them at the outset of their 4 legal proceedings. All but one of the fathers I met with had already been given a 5 credible fear interview without first having a chance to consult with a lawyer and had 6 7 been found not to have a credible fear of returning to their home country. Since their 8 children had been separated from them, the children’s cases were bifurcated from that 9 of their parents, which does not happen if the families remain intact during detention. 10 11 12 13 14 Complicating matters further, these families endured the recent trauma of being forcibly separated after entering the United States. 8. Advising these reunified families is a much more time-intensive undertaking 15 than the representation of the women and children who typically are detained at 16 Karnes. 17 18 9. Since these families entered the country at varying times and are at different 19 stages of expedited removal, we were not able to do group intake sessions for these 20 families. Some parents may not have had credible fear interviews; others may have 21 22 23 24 25 been found by asylum officers not to have a credible fear of return so were awaiting review by an immigration judge; others have even had their negative credible fear finding affirmed by an immigration judge. We therefore had to meet individually with 26 each family to do an intake. This intake was far more time-intensive than in the 27 typical Karnes case. At a minimum, these intakes lasted for several hours. But a 28 18cv0428 Exhibit 49, Page54 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2580 Page 58 of 125 1 2 3 number of factors can lead the intake process to extend over a period of days: level of trauma, language abilities, complexity of the case, whether families have paperwork, 4 and the sophistication of the clients. 5 10. 6 7 First, the parents with whom I met last week seemed even more traumatized and disoriented than the parents I met during my other visits, most likely due to their 8 recent separation from their children. As a result, I needed to spend time at the outset 9 of each meeting building rapport to make sure they trusted me and felt comfortable. 10 11 12 13 14 11. Second, we needed to spend additional time reviewing all legal documents in the family’s possession to ascertain the stage of their legal proceedings. Some parents and children may have come to the facility with paperwork, but have to go back to 15 their living quarters to get it – increasing the amount of time for an intake 16 considerably. Given facility security requirements, moving between visitation areas 17 18 and personal space can take 15 to 20 minutes. Additional time may be needed if, as 19 with last week, men were required to be escorted individually by GEO staff members 20 due to the presence of women in the facility. But, it is also possible that men do not 21 22 23 24 25 26 have their paperwork as they may have not been able to bring it when transferred. Or, they may have some paperwork, but it is incomplete. In these situations, this will extend the period of an intake even longer, as lawyers have to make a request to the government to obtain the documents. This, again, is markedly different from the 27 28 18cv0428 Exhibit 49, Page55 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2581 Page 59 of 125 1 2 3 typical Karnes case we saw before because we usually saw those parents before they had received many immigration documents or paperwork. 4 12. 5 We discovered that most of the recently-reunited parents already had received credible 6 7 Third, we then needed to counsel the clients on next steps for their legal case. fear interviews and were found not to have a credible fear of return. We also found 8 that, for many of these men, their paperwork reflected that they had not requested to 9 have this decision reviewed by an immigration judge. We therefore had to explain the 10 11 12 13 14 process of immigration judge review and answer the client’s questions. I found that the clients I saw had not previously met with a lawyer and had been given misinformation about the process before reaching me, so I had to correct these 15 misunderstandings. Also, I believe that the trauma they endured from the recent 16 separations likely led to skepticism that caused them to ask additional questions. 17 18 After this lengthy conversation, if the client decides that he wants an immigration 19 judge review, this causes another scramble to notify the government and get 20 paperwork re-served on the client that properly reflects his preference for an 21 22 23 24 25 immigration judge review, leading to a delay of at least a day. 13. Fourth, we had to collect the typical biographical information and immigration history that we traditionally had collected from clients. 26 27 28 18cv0428 Exhibit 49, Page56 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2582 Page 60 of 125 1 2 3 14. Fifth, we needed to collect information about the circumstances of their separation, so that we could be sensitive to their needs and best counsel them given 4 the trauma endured. 5 15. 6 7 Sixth, we needed to meet with the children separately from their fathers to understand the procedural posture of their cases and ensure that their interests were 8 aligned with that of their parents. 9 16. 10 11 12 13 14 After this lengthy intake was completed, we generally dismissed the family for the day so that we could move on to serve other families. Then, the next day, for those fathers who had negative credible fear interviews, we had to start the process of preparing a declaration to use as supporting evidence in their review hearing before 15 the immigration judge. This has to be done immediately, because once you request a 16 hearing before an immigration judge, the hearing by regulation should be scheduled 17 18 within 7 days and it is hard to delay. This means that time and space in the facility 19 will have to be dedicated to more complete interviewing of a parent and child. The 20 declarations are multiple pages in length and describe why they fear returning to their 21 22 23 24 25 country and the reasons they found it difficult to express themselves in their credible fear interview. 17. These declarations usually take two days to draft and finalize assuming there 26 are no unforeseen delays. This is because they require at least two client meetings 27 each lasting 1 to 2 hours, as well as a period of time away from the client to develop a 28 18cv0428 Exhibit 49, Page57 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2583 Page 61 of 125 1 2 3 working draft of the declaration. The declarations require a high level of detail, and it has been my experience that clients who have undergone trauma have a more difficult 4 time expressing themselves articulately and remaining focused when asked to recount 5 traumatic events. Therefore, after the initial meeting where we gather information 6 7 from the clients, we often need to have a follow-up meeting to clarify details and 8 finalize the declaration. Sometimes, even a third meeting is required. 9 18. 10 11 12 13 14 Then, once the declaration is drafted, another multi-hour meeting is needed to prepare the client for the hearing before the immigration judge. 19. Creating additional delays is the fact that client meetings must be spaced out to give traumatized clients time to recover between meetings and to give pro bono 15 attorneys time to meet with the multitude of clients at the facility. Moreover, 16 meetings are frequently interrupted due to meal times, appointments with GEO, 17 18 appointments with consular officials and other unforeseen circumstances. 19 20. 20 pro bono legal services, which may take up to 2 days after they arrive at Karnes. The 21 22 23 24 25 26 Moreover, legal representation can only begin once the client is connected to recent shifting population at Karnes means that it is harder than usual for pro bono attorneys to know who is in the facility and to ensure that the recent arrivals are aware that free legal services are available. Even in typical circumstances, it is challenging to effectively communicate the availability of pro bono legal services since the facility 27 28 18cv0428 Exhibit 49, Page58 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2584 Page 62 of 125 1 2 3 does not provide a list of recently-arrived detainees to RAICES. Frequent turnover only compounds this fundamental issue. 4 21. 5 number of pro bono attorneys in the facility to serve these families. Space for 6 7 Moreover, this timeline assumes that there is sufficient space and an adequate attorney-client meetings at Karnes is extremely limited. The visitation area has only 8 five private rooms available for attorney-client meetings. These private rooms are 9 located off of a larger general visitation area, which contains a few tables with hard 10 11 12 13 14 plastic chairs, a children’s play area, a television, and a desk which is manned at all times by a GEO employee. At times, there are family members of detained immigrants at some of these tables visiting with their loved ones. If the private rooms 15 are full, we are forced to meet with clients in this general area, where there is no 16 privacy and considerable background noise from other meetings, children playing, the 17 18 television in the background, intercom announcements and noise from GEO staff’s 19 walkie-talkies. Meetings that take place in the general area simply take longer due to 20 these distractions. 21 22 23 24 25 26 22. These space constraints place a hard limit on the number of attorneys who are able to enter the facility and provide counsel to these families. Last week, the space constraints were exacerbated by the arbitrary decision that attorneys could not meet with men and women in the visitation area at the same time, which is the type of 27 28 18cv0428 Exhibit 49, Page59 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2585 Page 63 of 125 1 2 3 unforeseen circumstance that can add a day or more to the timeline to provide adequate legal representation. 4 23. 5 families over the next few days, additional days will need to be accounted for in the 6 7 Moreover, with the Karnes population expected to swell by hundreds of timeline because pro bono attorneys will not have sufficient time each day to hold 8 these lengthy meetings with every family that needs to be served. Even if lawyers 9 held group meetings with recently-reunified families, which would not be appropriate 10 11 12 13 14 in these circumstances given the personalized nature of these intakes and the level of trauma experienced by these families, at most 30 detainees can fit in the general visitation space at any given time. Even if one or two of these large groups could be 15 processed per day in this manner, with an influx of hundreds of families at one time, it 16 would take a period of several days for every family to have some sort of meaningful 17 18 interaction with an attorney. 19 24. 20 detention, at least 7 days to meet with these families once they arrive at Karnes is 21 22 23 24 25 Because of these unique challenges in representing reunited families in crucial in order to ensure that these families have access to counsel so that they can understand their rights and adequately articulate their claims for protection in the United States. However, this is the bare minimum amount of time that would be 26 needed, and additional days to meet with these families would be helpful to ensure 27 effective counseling of these families. 28 18cv0428 Exhibit 49, Page60 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2586 Page 64 of 125 Exhibit 49, Page61 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2587 Page 65 of 125 Exhibit 50 Exhibit 50, Page62 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2588 Page 66 of 125 Exhibit 50, Page63 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2589 Page 67 of 125 Exhibit 50, Page64 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2590 Page 68 of 125 Exhibit 50, Page65 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2591 Page 69 of 125 Exhibit 50, Page66 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2592 Page 70 of 125 Exhibit 50, Page67 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2593 Page 71 of 125 Exhibit 50, Page68 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2594 Page 72 of 125 Exhibit 50, Page69 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2595 Page 73 of 125 Exhibit 51 Exhibit 51, Page70 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2596 Page 74 of 125 1 2 3 4 5 6 7 8 Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2660 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 398-4485 F: (619) 232-0036 bvakili@aclusandiego.org Attorneys for Petitioners-Plaintiffs Additional counsel on next page *Admitted Pro Hac Vice 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 Ms. L. et al., Petitioners-Plaintiffs, Case No. 18-cv-00428-DMSMDD 13 v. 14 Date Filed: June 25, 2018 U.S. Immigration and Customs Enforcement (“ICE”); U.S. Department of Homeland Security (“DHS”); U.S. Customs and Border Protection (“CBP”); U.S. Citizenship and Immigration DECLARATION OF SHALYN Services (“USCIS”); U.S. Department of Health FLUHARTY and Human Services (“HHS”); Office of Refugee Resettlement (“ORR”); Thomas Homan, Acting Director of ICE; Greg Class Action Archambeault, San Diego Field Office Director, ICE; Joseph Greene, San Diego Assistant 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, 15 16 17 18 19 20 21 22 23 24 25 26 27 Respondents-Defendants. 28 Exhibit 51, Page71 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2597 Page 75 of 125 1 2 3 4 5 6 Stephen Kang (SBN 292280) Spencer E. Amdur (SBN 320069) AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 skang@aclu.org samdur@aclu.org 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit 51, Page72 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2598 Page 76 of 125 1 1. 2 knowledge and declare under the penalty of perjury pursuant to 28 U.S.C. § 1746 3 that the following is true and correct: 4 2. 5 I provide pro bono representation to families who are detained at the South Texas 6 Family Residential Center ("Dilley") in Dilley, Texas. DPBP represents the 7 overwhelming majority of families who are detained in Dilley, with the assistance 8 of a rotating weekly group of between 30 and 45 volunteers. I oversee 9 approximately seven full-time employees and supervise and train a national I, Shalyn Fluharty, make the following declaration based on my personal I am the Managing Attorney of the Dilley Pro Bono Project ("DPBP"), where 10 network of volunteers. 11 3. 12 at Dilley for the first time. As of the end of the day on July 23, there were 31 13 families detained in Dilley. 14 4. 15 were not informed after they arrived. 16 5. 17 clients at the facility told us. Our clients said that they were seeing families with 18 different kinds of institutional shoes, a sign that they had been transferred from 19 elsewhere. They informed us the newly arrived families were separated from the 20 rest of the general population, and placed in an area of the facility alone, far from 21 the other detained families. This meant that it was likely harder for these families 22 to get learn about legal services. 23 6. 24 Because we did not know their names or their identities, we had to ask our clients 25 for help. Our clients then tracked down the reunified parents, told them about our 26 services, and where they could go to speak with us. On or around Thursday, July 19, 2018 reunited mothers and children arrived We did not receive any notice that these families were going to arrive. We We only heard about the reunified mothers and children because our existing When we heard about the families, we wanted to find them and help them. 27 28 18cv0428 Exhibit 51, Page73 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2599 Page 77 of 125 1 7. 2 of a family and when we heard about them, and then additional time before we 3 were even able to meet with the family to begin counseling them. 4 8. 5 course of the next twenty-four hours. At points over the past week, I have heard 6 rumors that hundreds of families will be moved here. But I still do not know when 7 they will arrive, or how many, let alone their identities. 8 9. 9 pro bono attorneys to assist in representation. Counseling these reunified families My best guess is that it took at least 24 hours, if not more, between the arrival I still do not know whether these families will be joined by others over the This lack of notice makes it difficult to plan on how to deploy volunteer and 10 is very challenging. It requires a different allocation of our resources and the use of 11 different intake and counseling strategies. 12 10. 13 than anything I have encountered during the more than two years that I have 14 represented families detained in Dilley. 15 11. 16 determine the procedural posture of each mother and child’s case. Mothers and 17 children are profoundly confused. Most arrive with no documents from any prior 18 proceedings. Mothers are unable to confirm whether they spoke with an asylum 19 officer, or immigration judge. Some mothers who can confirm seeing an asylum 20 officer or immigration judge were transferred before they were issued a decision in 21 their case, and do not know whether or not they received a positive or negative fear 22 determination. Many report being told by immigration officials they would be 23 deported, even though they do not appear to have final orders of removal. 24 12. 25 understand, and not being given a copy. Some mothers state their legal paperwork 26 was taken away from them, either in transit, or upon arrival to Dilley. 27 13. 28 their own case files. Many say their paperwork was taken away from them when Counseling these reunited families is unlike anything and far more difficult As an initial matter, it has been challenging – if not impossible – to Mothers report being forced to sign documents in English that they did not The same is true for children. Most have arrived to meet with us without Exhibit 51, Page74 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2600 Page 78 of 125 1 they arrived to Dilley. Thus, we do not know what stage the children’s case was in, 2 nor do they have information as to whether they had a lawyer previously, or even 3 the name of the lawyer or child advocate at the ORR facility where they were 4 previously held. 5 14. 6 confusion. Some children have copies of Notices to Appear in removal 7 proceedings. However, when I call the automated immigration court system hotline, 8 it states the child’s A# is not in the system. Many parents have copies of signed 9 documents confirming they will be released on their own recognizance from 10 detention with a Notice to Appear. However, rather than being released, the 11 mothers were transferred to Dilley and then placed in detention. 12 15. 13 it is a basic part of counseling these families. More than half of the reunited 14 mothers we have seen in the past few days do not have final orders of removal. 15 Some are waiting for CFI or IJ decisions (or, more troublingly, may be the subject 16 of a decision that they do not know of). Some may have never known to request a 17 CFI determination. Some of them report having signed documents in English 18 which may have waived their right to an IJ review of a negative credible fear 19 determination, a right that they wish to reinstate while they are with their children. 20 16. 21 not enough. Instead lawyers have to then spend time tracking down the child’s 22 lawyer or advocate, or the mother’s previous attorney, and try to speak to them. IN 23 a few cases, we are waiting for records to be sent to us from other lawyers across 24 the country who have decided to terminate their representation of a mother or child 25 because they have been transferred far away from where the lawyer is able to 26 provide services. 27 17. 28 copy of the child’s A file, including any and all removal orders and charging The scant paperwork that parents and children do have only creates more Finding out the status of these families’ cases is extremely important. In fact, Because lawyers cannot get this information from clients, a single meeting is I have made a written request for every reunited child to ICE, requesting a Exhibit 51, Page75 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2601 Page 79 of 125 1 documents. These written requests have gone unresponded to. I have spoken 2 personally with our local Assistant Field Office Director, requesting that all 3 documents confiscated from my clients upon entry to the facility be returned to 4 them. It has been nearly a week, and we have not seen the documents returned. We 5 have also sent emails requesting clarification regarding the procedural posture of 6 numerous mother’s cases, and have yet to receive a response. 7 18. 8 legal assistance. Mothers state they have been lied to, coerced, and threatened while 9 in government custody. Daily, mothers receive new disclosures from their children 10 regarding their experiences in government shelters throughout the country. Children 11 have expressed being deprived food, experiencing physical violence, and suffering 12 ongoing depression during their separation from their parents. Some parents state 13 they did not recognize their child upon reunification, because their child lost so 14 much weight. 15 19. 16 deliberate and focused efforts to build rapport and trust with each mother and child. 17 20. 18 clients. The topic itself produces overwhelming emotion, prohibitive of discussing 19 the potential options a mother or child may have, such that they can make an 20 informed decision regarding how they would like their case to proceed. Even 21 benign questions – like the question asking mothers to list the names and locations 22 of their children on our intake form – produce tears and paralysis. The trauma not 23 only ends a meaningful conversation regarding the mother and child’s decision- 24 making in their case, but also impedes their ability to accurately recount basic 25 events in their legal cases. 26 21. 27 they have only been reunited for such a short period of time, and have a palpable 28 fear they will soon be separated yet again. This presents a barrier to fact-gathering Trauma and lack of trust have created additional impediments to providing These realities require, as a part of our assistance, considerable time, and Conversations regarding separation have proven unbearable for many of our It is nearly impossible to interview parents and children separately because Exhibit 51, Page76 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2602 Page 80 of 125 1 regarding the mother and child’s underlying asylum claims. Parents need to be able 2 to describe the harm they have experienced before coming to the United States so 3 that lawyers know if they have a claim for asylum, or if that claim was waived in 4 the belief that waiver was necessary for reunification to occur. Speaking to an 5 asylum seeker about the physical and sexual violence they have fled is difficult 6 enough. Parents are understandably reluctant to speak about these subjects in the 7 presence of their children. But these families are seeing each other for the first time 8 after months apart. They fear separation, and is a struggle to make a family 9 comfortable enough that a child is willing to leave their parent’s presence, and vice 10 versa. 11 22. 12 options with each other. They do not yet understand their own cases or rights, and 13 are therefore incapable of making a decision together. The phone calls that some of 14 the mothers and children had with each other before being reunified was simply 15 inadequate for that purpose. Furthermore, the calls that were facilitated while the 16 families were separated were monitored by officials, preventing disclosures of 17 important information. Mothers have said that they were able to speak to their 18 children once or twice, for very short periods of times. They were so overwhelmed 19 with emotion that making informed legal decisions was simply not possible. 20 23. 21 however, they were transferred in the middle of the night away from their facilities 22 and their lawyers to Dilley. In these cases, because they are still represented, I am 23 limited in my ability to interact or counsel the client until I am able to contact the 24 prior attorney and get their consent, which – again – takes time. At least a day will 25 be lost as we speak to the prior attorney and then, again, call a client back for 26 another legal meeting. 27 24. 28 have to make is extraordinarily difficult. Even if we had access to their The families have not even been able to meaningfully discuss their legal In some cases, mothers were represented by lawyers prior to their transfer, Under these conditions, counseling these families as to the decisions they Exhibit 51, Page77 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2603 Page 81 of 125 1 immigration files and were able to easily ascertain basic information such as 2 whether a parent had requested a credible fear hearing, had received a negative 3 decision, or had requested or waived review before an Immigration Judge, we still 4 need to speak to the child’s advocate or lawyer, the parent’s lawyer if they had one, 5 or at the very least access the records. Even then, we would have to spend time 6 with extremely traumatized families to explain their choices and rights. It is 7 challenging to find time to meet with the client while also tracking down records 8 and advocates, especially because we are prohibited from bringing cell phones into 9 the facility and are therefore unable to receive call backs from lawyers and 10 advocates with whom we urgently need to communicate about a case. 11 25. 12 counseling they need. Given the state that these families are in when they arrive, 13 without any notice, or any information, in the facility, this process will require time. 14 Even seven days from the time when we first meet with the family (as opposed to 15 when the family arrives, unbeknownst to us) presents challenges. Less time runs the 16 risk that these families will be deported or separated without any understanding of 17 their rights or those rights they may have been led to unknowingly or involuntarily 18 waive. 19 26. 20 America that the foregoing is true and correct, based on my personal knowledge. 21 22 23 24 The advocates at Dilley are committed to ensuring that every family gets the I declare under penalty of perjury under the laws of the United States of Executed in Dilley, Texas on July 25, 2018. _____________________________ Shalyn Fluharty 25 26 27 28 Exhibit 51, Page78 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2604 Page 82 of 125 Exhibit 52 Exhibit 52, Page79 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2605 Page 83 of 125 Exhibit 52, Page80 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2606 Page 84 of 125 Exhibit 52, Page81 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2607 Page 85 of 125 Exhibit 52, Page82 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2608 Page 86 of 125 Exhibit 53 Exhibit 53, Page83 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2609 Page 87 of 125 Exhibit 53, Page84 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2610 Page 88 of 125 Exhibit 53, Page85 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2611 Page 89 of 125 Exhibit 53, Page86 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2612 Page 90 of 125 Exhibit 53, Page87 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2613 Page 91 of 125 Exhibit 53, Page88 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2614 Page 92 of 125 Exhibit 53, Page89 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2615 Page 93 of 125 Exhibit 53, Page90 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2616 Page 94 of 125 Exhibit 53, Page91 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2617 Page 95 of 125 Exhibit 54 Exhibit 54, Page92 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2618 Page 96 of 125 1 2 3 4 5 6 7 8 Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2660 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 398-4485 F: (619) 232-0036 bvakili@aclusandiego.org Attorneys for Petitioners-Plaintiffs Additional counsel on next page *Admitted Pro Hac Vice 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 Ms. L. et al., Petitioners-Plaintiffs, Case No. 18-cv-00428-DMSMDD 13 v. 14 Date Filed: June 25, 2018 U.S. Immigration and Customs Enforcement (“ICE”); U.S. Department of Homeland Security (“DHS”); U.S. Customs and Border Protection (“CBP”); U.S. Citizenship and Immigration DECLARATION OF LEAH Services (“USCIS”); U.S. Department of Health CHAVLA and Human Services (“HHS”); Office of Refugee Resettlement (“ORR”); Thomas Homan, Acting Director of ICE; Greg Class Action Archambeault, San Diego Field Office Director, ICE; Joseph Greene, San Diego Assistant 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, 15 16 17 18 19 20 21 22 23 24 25 26 27 Respondents-Defendants. 28 Exhibit 54, Page93 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2619 Page 97 of 125 1 2 3 4 5 6 Stephen Kang (SBN 292280) Spencer E. Amdur (SBN 320069) AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 skang@aclu.org samdur@aclu.org 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit 54, Page94 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2620 Page 98 of 125 1 1. 2 knowledge and declare under the penalty of perjury pursuant to 28 U.S.C. § 1746 3 that the following is true and correct: 4 2. 5 program of the Women’s Refugee Commission. 6 3. 7 Center (“Dilley”) in Dilly, Texas. 8 4. 9 tasks I have undertaken as an attorney. I, Leah Chavla, make the following declaration based on my personal I am a lawyer and a Policy Advisor with the Migrant Rights and Justice I recently counseled reunited families at the South Texas Family Residential Counseling these families about their rights is one of the most challenging 10 5. 11 disoriented and overwhelmed from a rapid reunification with a child they have not 12 seen for months and an equally rapid transfer. They do not even know what stage 13 their cases are at. 14 6. 15 believed that they were waiting to receive an interview even though they were 16 detained for over a month. One mother I spoke with said she was asked to sign a 17 document she could not read. She could not remember everything that was 18 explained to her about the document, only that she refused in that moment to be 19 deported without being reunified with her son. However, I do not have the ability to 20 confirm this with DHS or to quickly get a copy of the paperwork that she was 21 given. 22 7. 23 their cases are at. Because of the family’s trauma, it is difficult to get even this 24 basic information from them. 25 8. 26 The boy would barely speak through the entire interview, only sometimes slightly 27 nodding or shaking his head to answer simple - yes or no - questions. He only The families I met with arrived in Dilley without paperwork. They are For example, many families had not had credible fear interviews, and It is necessary to spend hours with families to determine even what stage For example, in one case I met with a mother and her eleven year old son. 28 18cv0428 Exhibit 54, Page95 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2621 Page 99 of 125 1 stared forward with an intent expression that looked like he was concentrating so as 2 to not cry. His mother repeatedly told him to speak to us, but he could not speak. 3 9. 4 processing the separation and reunification with their mothers. The interviews were 5 very emotional. 6 10. 7 difficult and not conducive to anything more than simple expressions of care and 8 loss. 9 11. The children I spoke to were difficult to counsel because they were still Communication between children and parents during their separation was One mother explained that another mother at the facility where she was held 10 had been put in touch with a child who was not hers when she called. The mother 11 kept saying to the child that he did not sound like her son until she realized she was, 12 in fact, talking to a different child. After hearing this story, the mother I spoke with 13 said that on the two occasions she spoke with her child during their two-months’ 14 separation, she first asked for him to tell her his middle name and his siblings’ 15 names to be sure she was speaking with her child. 16 12. 17 facilities do not accept collect calls, the time period for any call is limited, and calls 18 are expensive. 19 13. 20 account for delays as interviews end because of the family’s trauma, or because the 21 lawyer needs to call and request information from other sources. 22 14. 23 America that the foregoing is true and correct, based on my personal knowledge. Some parents reported only having spoken to their child only once. ORR Counseling these families is a very time consuming process that must I declare under penalty of perjury under the laws of the United States of 24 25 26 _____________________ LEAH CHAVLA 27 28 Exhibit 54, Page 6 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2622 Page 100 of 125 Exhibit 55 Exhibit 55, Page97 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2623 Page 101 of 125 Exhibit 55, Page98 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2624 Page 102 of 125 Exhibit 55, Page99 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2625 Page 103 of 125 Exhibit 55, Page100 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2626 Page 104 of 125 1 2 I, Laura Rivera, make the following declaration based on my personal knowledge and declare under the penalty of perjury pursuant to 28 U.S.C. § 1746 that 3 4 the following is true and correct: 5 1. I am a Staff Attorney at the Southern Poverty Law Center’s Immigrant Justice 6 7 8 9 Project (“SPLC”). I am an active member of the State Bar of Georgia. 2. My office represents several fathers who were transferred from Folkston Processing Center in Folkston, Georgia, to Port Isabel Detention Center (“PIDC”) in 10 11 12 13 Los Fresnos, Texas, to be reunited with their children. 3. On Tuesday, 7/17/18, and Thursday, 7/19/18, I called PIDC’s main number (956-547-1700). I was prompted to press “6.” I spoke with an operator in the control 14 15 center. Each time, I requested instructions for scheduling a legal phone call with a 16 client. Each time, the response was that PIDC does not have a process to schedule 17 18 legal phone calls. Instead, the operator informed me, the control center operator on 19 duty would take my name and phone number and have a guard pass it along to the 20 detainee. Then the detained person would have to call me from any of the phones 21 22 23 24 inside the housing units, which are all monitored and/or recorded. The operator said the only alternative for a confidential conversation is an in-person visit. 4. At least two of our clients have told us they cannot place phone calls to us from 25 26 the detention center. On Tuesday, 7/17/18, SPLC got a call from client and class 27 member A.G.F. He said that of the dozen or so men in his housing unit that had been 28 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2627 Page 105 of 125 1 2 moved from Folkston to PIDC, he was the only one who was able to place calls. He said many had tried to place calls using their own Personal Identification Numbers 3 4 (“PINs”), but did not succeed. Mr. F. passed the phone to another client and class 5 member, J.C.A.A., who told me that he had been unable to call me because of the 6 7 8 9 restrictions on phone calls in the facility. On Thursday, 7/19/18, SIFI received a call from client and class member A.F. He told SIFI that he had placed the call by using another person’s PIN, because he was unable to place calls using his own. 10 11 12 13 5. On Thursday, 7/19/18, my colleague Gracie Willis attempted to speak with an ICE officer regarding a client and class member, J.P.E., concerning whether he had a final removal order. She dialed the main facility number (956-547-1700) and pressed 14 15 the option “3” for lawyers, and “6” for inquiring about a detainee. After several 16 attempts, she was not able to connect with anyone. She then dialed the control center 17 18 number (956-547-1765). The operator connected her to the extension 1800, where 19 there was no option to leave a voicemail. She called the control center again, and the 20 operator connected her to the extension for Mr. P.E.’s deportation officer, Officer 21 22 23 24 Robert Cantú. She left a message with Mr. P.E.’s name, A-number, her name, and a call-back number, along with a request that if a G28 was not immediately available to the DO, she would send one upon request. She has yet to receive a return call. Mr. 25 26 P.E. was released with no notice to Ms. Willis. 27 28 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2628 Page 106 of 125 1 2 6. On Thursday, 7/19/18, Ms. Willis requested that another attorney, Jodi Goodwin, near PIDC, meet with client and class member J.V.S. to collect paperwork 3 4 necessary for an emergency filing with the immigration court in Stewart Detention 5 Center. Ms. Goodwin was told that he was in processing to be released and that he 6 7 8 9 could not be brought to the lawyer’s area. Ms. Goodwin returned on Friday, 7/20/18, and attempted to meet with Mr. V.S. again. She was told he would not be released, but was being processed to be moved to Karnes County Residential Center with his 10 11 12 13 child, and that he could not be brought to the lawyer’s area. On Monday 7/23/18, Ms. Willis received a reply email from the ICE Office of Chief Counsel in San Antonio indicating that Mr. V.S. had been released on Saturday 7/21/18 without notice to Ms. 14 15 Willis. 16 7. On Thursday, 7/19/18, I contacted the ICE Field Office in San Antonio to report 17 18 the problem detainees had placing phone calls from inside PIDC. The officer told me 19 there is no way that only some of the detainees were having trouble with their PINs – 20 outgoing calls were either disabled or not, but it would apply to all detainees. I then 21 22 23 spoke with a guard in a housing unit at PIDC, who told me PIDC was having some problems with outgoing calls, and they had sent for someone to address the issue. 24 25 26 27 28 18cv0428 Case Document 153 Filed 07/25/18 PagelD.2629 Page 107 of 125 warmth-PTuesday, 7/24/18, SPLC received a phone call from a class member, E.R.L., who said that he had been transferred from Folkston and unable to use his PIN. He said he was using someone else?s PIN. He told us he had not spoken to his 6?year?old child in 20 days and had not been given any information about reuni?cation. He has been given a piece of paper to sign in English and told it was his voluntary deportation. He believed he was going to be removed without his child. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct, based on my personal knowledge. Executed in Atlanta, Georgia, on July 25, 2018. van/7 LAURA RIVERA 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2630 Page 108 of 125 Exhibit 56 Exhibit 56, Page105 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2631 Page 109 of 125 Exhibit 56, Page106 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2632 Page 110 of 125 Exhibit 56, Page107 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2633 Page 111 of 125 Exhibit 56, Page108 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2634 Page 112 of 125 Exhibit 57 Exhibit 57, Page109 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2635 Page 113 of 125 1 2 3 4 5 6 7 8 Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2660 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 398-4485 F: (619) 232-0036 bvakili@aclusandiego.org Attorneys for Petitioners-Plaintiffs Additional counsel on next page *Admitted Pro Hac Vice 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 Ms. L. et al., Petitioners-Plaintiffs, 13 v. 14 U.S. Immigration and Customs Enforcement (“ICE”); U.S. Department 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; Joseph Greene, San Diego Assistant 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, 15 16 17 18 19 20 21 22 23 24 25 Case No. 18-cv-00428-DMSMDD Date Filed: June 25, 2018 DECLARATION OF MANOJ GOVINDAIAH Class Action NO HEARING DATE 26 27 Respondents-Defendants. 28 Exhibit 57, Page110 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2636 Page 114 of 125 1 2 3 4 5 6 Stephen Kang (SBN 292280) Spencer E. Amdur (SBN 320069) AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 skang@aclu.org samdur@aclu.org 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit 57, Page111 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2637 Page 115 of 125 1 1. 2 knowledge and declare under the penalty of perjury pursuant to 28 U.S.C. § 1746 3 that the following is true and correct: 4 2. 5 I oversee a staff of approximately 10 employees and supervise all of RAICES’ 6 immigrant family detention work. RAICES runs the Karnes Pro Bono Project, a 7 nationwide pro bono project that provides legal services to families detained in ICE 8 custody at the Karnes County Residential Center (“Karnes detention center” or 9 “Karnes”), in Karnes City, Texas. We represent approximately 90% of the families I, Manoj Govindaiah, make the following declaration based on my personal I am an attorney and the Director of Family Detention Services at RAICES. 10 at Karnes. 11 3. 12 held mothers and children, most of whom had been recently apprehended and had 13 never been separated. That changed on or about July 15, 2018, when families who 14 had been separated and were now being reunified pursuant to the Ms. L injunction 15 began arriving at the Karnes detention center. These families included mothers 16 reunified with their children, as well as fathers reunified with their children. On or 17 about July 17, all of the mothers and their children were transferred to the family 18 detention center in Dilley, Texas. As of yesterday, we are aware of approximately 19 55 families (fathers reunified with their children) held at Karnes. 20 4. 21 the facility. We only knew about their arrival because of our presence in the 22 facility. 23 5. 24 Karnes. Beyond this general sense, we have received no specific information about 25 who will arrive, how many people, when, or the procedural posture of the parents’ 26 or children’s cases. 27 6. 28 represent these families, and can depend on the commitment of pro bono support Since the Karnes detention center opened in August 2014, it has exclusively We received no notice from ICE that these reunited families had arrived in We are now anticipating the arrival of hundreds of reunited families at I want to be clear: We at RAICES are ready to work around the clock to 18cv0428 Exhibit 57, Page112 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2638 Page 116 of 125 1 from across the United States. We have recruited and trained large numbers of pro 2 bono attorneys who are standing by and awaiting our word as to their involvement. 3 However, no matter how many competent or experienced lawyers we have, without 4 sufficient time it is simply impossible for these families to get the advice and 5 counsel they need, given the space constraints in the detention facility and the 6 unique and complex needs of this population. 7 7. 8 the effect that the trauma of these separations has on a lawyer’s ability to efficiently 9 and accurately advise families to ensure that they have accurately understood their In the past week, we have better learned the needs of reunited families and 10 rights under the injunction. 11 8. 12 be sufficient to meet with and advise the hundreds of detained families that we are 13 expecting to arrive at Karnes. 14 9. 15 potentially be sent to Karnes, while other reunified families would be reunified and 16 released, we believed that most of these families sent to Karnes would have final 17 orders of expedited removal – having failed a credible fear interview and a 18 subsequent IJ review of that decision. We therefore believed that for most parents 19 the principal remaining legal option, should they want to challenge removal, would 20 be to request reconsideration of their credible fear denial (i.e., the opportunity for a 21 new interview). Moreover, we did not know the extent to which parents had made 22 unknowing or involuntary waivers of their rights to immigration relief, or their 23 children’s rights to relief. 24 10. 25 families who are being moved to Karnes are not at a final stage of the CFI process. 26 And second, many have not made a knowing, intelligent, and voluntary waiver of 27 their right to seek asylum. Based on our recent experience, I am concerned that not even seven days will When we first learned that some subset of reunified families would The past week has demonstrated a very different picture. First, many of the 28 Exhibit 57, Page113 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2639 Page 117 of 125 1 11. 2 never even begun the CFI process, and 4 had not yet completed the IJ review 3 process, because they believed they had to waive their right to review in order to 4 speed up reunification with their children. Only 3 class members were actually at 5 the request for reconsideration stage. The final class member had already been 6 placed in removal proceedings, outside of the expedited removal process. 7 12. 8 would require and the time such counseling would reasonably be expected to take. 9 13. Of full intakes of 18 reunified families done on Friday July 20, 2018, 10 had This immediately changed the nature of the counseling that the population First, the relative complexity of the parents’ immigration cases -- coupled 10 with their lack of paperwork and knowledge about their cases -- creates significant 11 delays in the counseling process. 12 14. 13 (or even 240 proceedings, as in one case), makes it more difficult to advise parents 14 to their rights. It creates a greater set of options that the parent must understand. At 15 the most basic level, both the parent and lawyer need to know what stage of the 16 process family members are in. Our experience over the past week has 17 demonstrated that most parents do not have a clear understanding of the procedural 18 history of their cases and often do not even know if they received a credible fear 19 hearing, or an Immigration Judge hearing. 20 15. 21 either their or their children’s proceedings, and if they do, it is incomplete or 22 outdated. Parents have said that while they did have the paperwork at some point in 23 the past, they either lost it or it was taken from them in the course of transfers. 24 Many children do not have any paperwork or records from their time separated 25 from their parents. 26 16. 27 because lawyers cannot rely on a family’s recollection about their proceedings, but 28 instead must perform independent investigation. The fact that parents fall in different stages of expedited removal proceedings Compounding the confusion, many parents do not have any paperwork from The confusion and lack of records creates significant delays in counseling, Exhibit 57, Page114 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2640 Page 118 of 125 1 17. 2 Karnes for reunification have not met with lawyers before. Indeed, because many 3 have been transferred multiple times between detention centers, it would have been 4 difficult for a lawyer to meet with them, and then keep in communication with 5 them. 6 18. 7 any paperwork with him when he was reunified – if he had seen an immigration 8 judge or asylum officer, and he said yes. Later, when our staff was able to get a 9 copy of his immigration records, we learned that he had not seen an immigration This is compounded by the fact that most of the parents who have arrived at For example, a RAICES staff member asked one father – who did not have 10 judge or an asylum officer, but had been criminally prosecuted for illegal entry, and 11 was confusing his criminal case and his immigration case. Without our having 12 found his immigration files, no lawyer could have accurately advised him as to his 13 rights whether under immigration law or this court’s injunction. 14 19. 15 though he speaks Mam, but we later confirmed that he had actually already 16 concluded the credible fear process and the event he believed was an interview was 17 in fact a master calendar hearing in removal proceedings. 18 20. 19 interview of the individual, and contacting both ICE and USCIS. Because ICE and 20 USCIS offices at Karnes are only open between 8 A.M. and 3 P.M., this work can 21 only be done on weekdays, and not weekends. And because interviews must be 22 interrupted and then begun again after receiving relevant and accurate information, 23 the time necessary to counsel families expands. 24 21. 25 a need for additional time. Lawyers for the family must consult with the child’s 26 lawyer or prior child advocate, who may be in another part of the United States. 27 After finding the child’s lawyer or advocate and consulting with them, the lawyers 28 must then explain the child’s choices to the parent. Because of the varying Another father told us he had his credible fear interview in Spanish, even Our investigation of a case’s procedural history typically requires a detailed Second, because parents and children have separate proceedings, this creates Exhibit 57, Page115 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2641 Page 119 of 125 1 proceedings and procedural postures, our staff at Karnes also needs to speak with 2 the children in addition to their parents, to fully uncover the child’s wishes. 3 22. 4 children once on the phone before being reunited transferred to Karnes. Even 5 where there was a second or even third call over a two month period of separation, 6 they were short – sometimes less than five minutes in length – and parents spent 7 them comforting their children. These calls were recorded, and so some parents did 8 not even feel comfortable speaking openly with their child. 9 23. Multiple parents have told me that they were only able to speak to their Third, the trauma of separation, and the emotions that these families are 10 experiencing immediately upon reunification, creates an atmosphere where legal 11 advisals require even more time. 12 24. 13 families have been reunified in detention, drawn from my experiences on July 22 14 when I personally counseled families who been reunified and detained at the 15 Karnes detention center for at least two days. 16 25. 17 side. Typically when families enter the visitation room, the children go to one side 18 of the open space where there are toys, books, and a television, while we meet with 19 the parent in one of the private visitation rooms. The ability to interview the parent 20 by themselves is crucial for our provision of legal services since parents are 21 typically unlikely to fully disclose abuse, trauma or persecution that they have 22 experienced in front of their children. Without even knowing if they have this 23 information, it is impossible to even advise them as to whether they can raise a 24 credible fear claim, if they haven’t, or if they should exercise their right to 25 challenge a credible fear denial. 26 26. 27 watch television. They wanted to stay with their fathers at all times. Several young 28 boys—between ages 6-8—sat on their father’s laps at various points of our I want to provide a snapshot of what providing legal advice looks like after The first thing I noticed was that children did not want to leave their father’s On July 22, however, nearly all the children refused to play with the toys or Exhibit 57, Page116 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2642 Page 120 of 125 1 meetings despite them having their own seat in the visitation room. Another boy, I 2 believe age 13, asked numerous questions of me, many focused on whether he 3 would be separated from his dad. 4 27. 5 complicated by separation. Parents have reported to us that their children look 6 different than before. They have said that their children have grown, are thinner, 7 don't act the same. I have seen children that have appeared angry at their fathers, 8 but simultaneously relieved to be with them. This means that we are attempting to 9 talk to a family at the same time they are relearning how to communicate with each The relationship between parents and their children has clearly been 10 other. 11 28. 12 distrust to a level that far exceeds any that I have previously experienced with our 13 clients. Many fathers needed extended coaxing in order to believe that I was not 14 there to take their children away from them. One father asked me multiple times to 15 prove who I was (when I introduced myself as a lawyer from RAICES), and 16 showing him my bar card, my business card, and my driver’s license was 17 insufficient. It was only when I went through our database and listed the names of 18 all the RAICES staff and volunteers that I believe he had previously met with that 19 he appeared to believe I was who I said I was. At the conclusion of our meeting, 20 when I asked him why he was distrustful of me at first, he said something along the 21 lines of since he and his son entered this country, they have been lied to, that he 22 doesn’t know who is government and who isn’t, and now that he has his son back, 23 he will not let his son go anywhere without him. 24 29. 25 what lawyers advise. One father could not comprehend anything I was saying. 26 Any statement I made would elicit a response of “but my son and I can stay 27 together, right?” When we discussed his legal options, his repeated response was 28 “but as long as I’m with my son, I’ll be ok. I’ll be with my son that whole time, The experience of separation has also inculcated families with skepticism and Trauma has made it difficult for parents to even comprehend or focus on Exhibit 57, Page117 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2643 Page 121 of 125 1 right?” The meeting ended without any meaningful information being developed 2 from the client or advice being provided because the father could not move past his 3 fear of re-separation. 4 30. 5 too emotional to continue. In one case, we had been discussing the complicated 6 procedural posture of the father’s and his son’s cases, that he had received a 7 negative expedited removal order and was facing deportation, while his son could 8 still apply for asylum. When he asked for clarification of what that meant, I 9 explained that it could result in his son remaining in the United States without him. Meetings with at least two fathers ended unproductively because they were 10 We could not complete our meeting because his crying prevented us from 11 effectively discussing his legal case. We of course scheduled another meeting, but 12 without a second visit, I cannot say that these families understand their choices. 13 31. 14 cannot be underestimated. Typically, we can proceed through an initial meeting 15 with a detained family relatively quickly; this process includes asking basic intake 16 questions, assessing their legal options, and educating them about the credible fear 17 process. 18 32. 19 combined to create a very slow process. Each dad appears to be in a unique 20 procedural posture, and each child is in a different procedural posture. Many of the 21 parents have indicated that they may have initially agreed to deportation, but only 22 because they incorrectly believed it was the fastest way to get their children back. 23 Others had all but given up hope of fighting their cases, until they had an 24 opportunity to be reunited with their children, and now want to pursue their cases. 25 33. 26 themselves with their children after weeks or months of separation, and – on top of 27 the confusion and lack of information about the legal system – are having difficulty 28 focusing on the decisions they have to make. The trauma these families have experienced as a result of the separation With these families, the complexity of the case and the trauma have But these decisions are taking time: families are just reacquainting Exhibit 57, Page118 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2644 Page 122 of 125 1 34. 2 decisions are taking more than a meeting, and are stretching over multiple days. 3 35. 4 at Karnes, there is an open visitation room with several tables and chairs where we 5 can meet with clients. However meeting with clients in the open area means that no 6 conversations are confidential, since other detainees and GEO staff are regularly 7 present and nearby in the open area. ICE staff may also be present in the visitation 8 area and may overhear conversations. 9 36. These discussions cannot occur over a single meeting in many instances, and Space constraints make this slow process even slower. In the visitation area Within the larger visitation area, there are five confidential meeting rooms, 10 and only 4 have telephones. Karnes has placed an occupancy restriction on the 11 private rooms--three rooms are limited to four people (so that means parent and 12 child, plus an attorney, and you are already at 3. If there is a team of attorneys, or 13 law students or in person interpreters helping, that may not be permissible). Two of 14 the confidential meeting rooms allow for up to 7 people. 15 37. 16 RAICES staff that can be accommodated in the visitation area (including individual 17 visitation rooms and the group area) is around 17. Any more than that and the lack 18 of meeting space, especially confidential meeting space, becomes very apparent. 19 Without sufficient phones or meeting space, it is difficult to use pro bono attorneys 20 and volunteers in an efficient manner. 21 38. 22 bilingual in English and Spanish, some Ms. L class members speak indigenous 23 languages. We are currently working with Ms. L class members who speak Mam, 24 Ixil, Lxil, and Kiche. We therefore need to arrange for interpreters in these 25 languages, often by phone. Given that there are only 4 confidential meeting rooms 26 with phones, if we are working with telephonic interpreters often we have no 27 confidential meeting space to meet with any of our remaining clients. Generally, the maximum number of pro bono attorneys and volunteers and Language difficulties compound the space issues. Although our staff is 28 Exhibit 57, Page119 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2645 Page 123 of 125 1 39. 2 will be space issues. This will come, in part, because the counseling of the 3 hundreds of families will have to happen in parallel with whatever representation 4 occurs of parents who choose to reinstate their rights to challenge removal. 5 40. 6 fear hearing or an IJ review of a negative credible fear determination only to want 7 to reinstate those rights after being reunified with their child and learning for the 8 first time that they can remain reunified while they seek to stay in the United States. 9 In these cases, after we determine that the parent wishes to continue to litigate their 10 immigration case, and we alert the asylum office (as to a credible fear claim) or the 11 immigration court, those families may remain detained at Karnes. 12 41. 13 stayed until the process ends. If the person remains detained through the stay, then 14 lawyers will work to represent them in their credible fear proceedings and IJ 15 reviews, as we do with all of other detained family clients outside of the Ms. L 16 injunction. Because of the trauma separated families have experienced, 17 representation is more important – without significant time developing their 18 testimony and overcoming the emotions resulting from separation, a fair hearing 19 will be extremely difficult. Representation through this process requires drafting 20 detailed declarations with the class member and potentially their family, gathering 21 country conditions documents, and often putting together written arguments. 22 42. 23 be done quickly. For example, a credible fear hearing is typically scheduled within 24 3 or 4 days of the request being made. And pursuant to 8 U.S.C. § 25 1225(b)(1)(B)(iii)(III), IJ review must take place within 7 days of the detainee's 26 receipt of a negative credible fear finding. 27 43. 28 immigration proceedings will be “competing” for space with the lawyers who are Even if the entirety of Karnes is used only for Ms. L class members, there For example, we have seen parents who have waived their right to a credible Once a request for a CFI or IJ hearing is made, an individual’s removal is These must be done in in-person meetings in the facility itself, and they must The lawyers who are working to represent families in their actual Exhibit 57, Page120 Case 3:18-cv-00428-DMS-MDD Document 153 Filed 07/25/18 PageID.2646 Page 124 of 125 1 doing the screening and counseling the reunified families to determine what their 2 options are under the Ms. L injunction. 3 44. 4 when a reunified family arrives at Karnes, and that it usually takes more than a day 5 between a family’s arrival and when we hear about them and can arrange for a legal 6 consultation. Part of the delay is attributable to the fact that when families arrive at 7 Karnes, there are put through an institutional intake process that involves medical 8 screenings and orientations that can take several hours. Thus, if families arrive on a 9 Thursday morning it will not be until sometime on Friday that we will even be able These problems are compounded by the fact that we do not get notice of 10 to speak to them. 11 45. 12 the hundreds of reunified families who are arriving at Karnes. Some of these are 13 legal: The relatively complex procedural histories of parents, the separate 14 proceedings of the children, the lack of documentation and confusion about where 15 parents are in the expedited removal process, and the recurring pattern that parents 16 have not pursued their rights to relief in the belief that to do so would delay 17 reunification. Some of the factors are personal to the families who have gone 18 through separation and reunification: the need for parents and children to 19 reacclimatize to their relationships after months spent apart, and the sequelae of the 20 trauma, which interferes with the counseling process. Others are specific to the 21 space that lawyers and advocates have to work with in a detention center. When 22 taken together, it is unlikely that even a period of seven days will allow for 23 adequate counseling to ensure that the Court’s injunction has been implemented as 24 intended and that families have made choices with a proper understanding of their 25 rights. There are many factors involved in projecting how long it will take to advise 26 27 28 Exhibit 57, Page121 Case Document 153 Filed 07/25/18 PageID.2647 Page 125 of 125 Antonio, Texas. 1 A