Case 2:18-cv-00939-MJP Document 35 Filed 07/25/18 Page 1 of 5 The Honorable Marsha J. Pechman 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 11 No. 2:18-cv-0939 (MJP) STATE OF WASHINGTON, et al., 12 13 14 15 Plaintiffs, v. UNITED STATES OF AMERICA, et al., DEFENDANTS’ SECOND NOTICE OF SUPPLEMENTAL AUTHORITY Noted For Consideration: August 3, 2018 Defendants. Oral Argument Requested 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ SECOND NOTICE OF SUPPLEMENTAL AUTHORITY State of Washington, et al. v. United States, et al., Case No. 2:18-cv-00939 (MJP) U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION, OIL-DCS P.O. BOX 868 BEN FRANKLIN STATION WASHINGTON, DC 20044 TELEPHONE: (202) 305-0106 FACSIMILE: (202) 305-7000 Case 2:18-cv-00939-MJP Document 35 Filed 07/25/18 Page 2 of 5 1 Defendants, by and through undersigned counsel, respectfully submit this Second Notice 2 of Supplemental Authority to bring the Court’s attention to the July 24, 2018 order by Judge 3 Rakoff of the United States District Court for the Southern District of New York in E.S.R.B. v. 4 Sessions, No. 18-cv-6654, slip op. (S.D.N.Y. July 24, 2018) (Exhibit 1). Much like the 5 Defendants’ prior Notice of Supplemental Authority (Dkt. 33), the court in E.S.R.B. addressed 6 whether a habeas petition brought by a group of children who were separated from their parents 7 and being held in New York should be transferred to the Southern District of California’s 8 overlapping case in Ms. L. v. ICE, No. 18-cv-428 (S.D. Cal.), where preliminary relief has been 9 granted to a certified class of parents of separated children. Like Judge Furman concluded last 10 Thursday in N.T.C. v. ICE, No. 18-cv-6428, 2018 WL 3472544 (S.D.N.Y. July 19, 2018) (Dkt. 11 33-1), Judge Rakoff determined that the claims should be heard by the Ms. L. court in the Southern 12 District of California, and directed that the E.S.R.B. plaintiffs’ claims be “transfer[red] … 13 forthwith” to be considered in conjunction with the claims in Ms. L. Exhibit 1 at 1. 14 Judge Rakoff’s order illustrates why courts should transfer actions with substantial 15 overlap between the parties and issues when one court has certified a class and granted class-wide 16 relief relating to those overlapping issues: “I think the common sense of it is that these matters 17 should, to the maximum extent possible, be consolidated before as few judges as possible.” 18 E.S.R.B., Transcript of Proceedings, at 33 (S.D.N.Y. July 24, 2018) (Exhibit 2). That concern is 19 especially pressing now where the expedited discovery the States intend to pursue could interfere 20 with the information-gathering needed by the Ms. L. plaintiffs (whose interests the States say they 21 wish to vindicate), which that court is managing day to day. See id. (noting how “[t]he potential 22 for conflict, … even inadvertent conflict, is high in these kinds of situations”). Indeed, the Ms. L. 23 court just yesterday ordered the provision of several types of information to facilitate those 24 reunification efforts with respect to class members who would require further inquiry by class 25 counsel. It would certainly make the most sense for Judge Sabraw to have a role in balancing the 26 needs of the class action plaintiffs in Ms. L. and the interest in reuniting the certified class with 27 28 DEFENDANTS’ SECOND NOTICE OF SUPPLEMENTAL AUTHORITY State of Washington, et al. v. United States, et al., Case No. 2:18-cv-00939 (MJP) -1- U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION, OIL-DCS P.O. BOX 868 BEN FRANKLIN STATION WASHINGTON, DC 20044 TELEPHONE: (202) 305-0106 FACSIMILE: (202) 305-7000 Case 2:18-cv-00939-MJP Document 35 Filed 07/25/18 Page 3 of 5 1 their children, with the States’ claim to need expedited discovery to vindicate their asserted 2 interests in this matter. Recognizing the importance of this issue and the gravity of what 3 is contested in these cases, Judge Sabraw noted at a hearing yesterday afternoon in Ms. L. that 4 both Judges Furman and Rakoff discussed the potential for transfer with him regarding the cases, 5 and as a result of those discussions, each judge determined that transfer was appropriate. See 6 Ms. L., Transcript of Proceedings, at 41–42 (S.D. Cal. July 24, 2018) (Exhibit 3). Defendants 7 would consent to a similar consultation here, and the States have also represented that they do 8 not object to such a consultation, although they do not think it appropriate for the parties to 9 request consultation. Defendants have also asked Plaintiffs’ counsel in Ms. L. if they would 10 object to such a consultation, and they advised that they take no position on such a consultation 11 taking place. 12 The benefits of consolidating these cases, given the certified nationwide class in Ms. L., 13 are apparent for the same reasons Judge Furman explained last week: “the classes in the … 14 cases concern the same families”; “the relief Plaintiffs seek in this case is, at bottom, directly 15 related to the reunification process being supervised by Judge Sabraw” and “Judge Sabraw is 16 in a better position ... to decide those questions and to modify his own orders if appropriate;” 17 and “in the absence of a single judge presiding over both cases, there is a real risk of 18 inconsistent decisions and conflicting orders — a particularly intolerable risk given the gravity 19 and urgency of the issues in these cases (and the prospect of similar litigation being filed in 20 other states where children separated from their parents are being held).” N.T.C., 2018 WL 21 3472544, at *2. There is no reason why the States’ case should be treated differently from either 22 E.S.R.B. or N.T.C., as this case also seeks relief directly related to separated families where a 23 nationwide class is certified in the Southern District of California, and there is a 24 significant risk of inconsistent decisions and conflicting orders in “a matter of great 25 importance.” Exhibit 2 at 33. Exhibit 2 at 33. 26 // 27 // 28 DEFENDANTS’ SECOND NOTICE OF SUPPLEMENTAL AUTHORITY State of Washington, et al. v. United States, et al., Case No. 2:18-cv-00939 (MJP) -2- U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION, OIL-DCS P.O. BOX 868 BEN FRANKLIN STATION WASHINGTON, DC 20044 TELEPHONE: (202) 305-0106 FACSIMILE: (202) 305-7000 Case 2:18-cv-00939-MJP Document 35 Filed 07/25/18 Page 4 of 5 1 2 Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General DATED: July 25, 2018 3 AUGUST E. FLENTJE Special Counsel to the Assistant Attorney General 4 5 6 WILLIAM C. PEACHEY Director 7 8 EREZ REUVENI Assistant Director 9 10 /s/ Joshua S. Press JOSHUA S. PRESS Trial Attorneys United States Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Phone: (202) 305-0106 joshua.press@usdoj.gov 11 12 13 14 15 16 17 Attorneys for the United States of America and the Federal Defendants 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ SECOND NOTICE OF SUPPLEMENTAL AUTHORITY State of Washington, et al. v. United States, et al., Case No. 2:18-cv-00939 (MJP) -3- U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION, OIL-DCS P.O. BOX 868 BEN FRANKLIN STATION WASHINGTON, DC 20044 TELEPHONE: (202) 305-0106 FACSIMILE: (202) 305-7000 Case 2:18-cv-00939-MJP Document 35 Filed 07/25/18 Page 5 of 5 1 CERTIFICATE OF SERVICE 2 I hereby certify that on July 25, 2018, I electronically transmitted the foregoing document 3 to the Clerk’s Office using the U.S. District Court for the Western District of Washington’s 4 Electronic Document Filing System (ECF), which will serve a copy of this document upon all 5 counsel of record. 6 By: /s/ Joshua S. Press JOSHUA S. PRESS Trial Attorney United States Department of Justice Civil Division 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ SECOND NOTICE OF SUPPLEMENTAL AUTHORITY State of Washington, et al. v. United States, et al., Case No. 2:18-cv-00939 (MJP) U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION, OIL-DCS P.O. BOX 868 BEN FRANKLIN STATION WASHINGTON, DC 20044 TELEPHONE: (202) 305-0106 FACSIMILE: (202) 305-7000 EXHIBIT 1 Case Document 35-1 Filed 07/25/18 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK E.S.R.B. by and through his next friend Meryl Ranzer, J.E.C.M. by and through his next friend Carline Pinto, R.M.S.C. by and through his next friend Melissa Borja, K.M.G., K.D.G., S.G.G., and F.E.O.G. by and through their next friend Rev. Elizabeth G. Maxwell, I.M.Q.S. by and through her next friend Senator Brad Benjamin, and K.C.A. by and through her next Friend Letitia James, Plaintiffs, Page 2 of 3 l8?cv?6654 (JSR) JEFFERSON B. SESSIONS Attorney . General of the United States; DEPARTMENT: OF HOMELAND SECURITY KIRSTJEN NIELSEN, Secretary of U.S. CUSTOMS AND BORDER PROTECTION KEVIN K. MCALEENAN, Commissioner of U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT RONALD D. VITIELLO, Acting Director of U.S. CITIZENSHIP AND IMMIGRATION SERVICES L. FRANCIS CISSNA, Director of U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES ALEX AZAR, Secretary, of the Department of Health and Human Services;: OFFICE OF REFUGEE RESETTLEMENT and SCOTT LLOYD, Director of ORR, Defendants. JED S. RAKOFF, U.S.D.J. ORDER This motion comes before the undersigned, sitting in Part I, because of the request for emergency relief. For the reasons stated from the bench, see Transcript, 7/29/18, which are here incorporated by reference, the Clerk of Court is directed to transfer this action forthwith to the United States District Court for the Southern Case Document 35-1 Filed 07/25/18 Page 3 of 3 District of California, to be assigned to Judge Sabraw as related to Ms. L. V. U.S. Immigration and Customs Enforcement, No. The Clerk of Court is directed to effectuate the transfer immediately, notwithstanding Local Rule 83.1, and then to close the case in this Court. SO ORDERED Dated: New York, NY ?7 July 3, 2018 JED s. RAKOFF, U.S.D.J. EXHIBIT 2 Case 2:18-cv-00939-MJP Document 35-2 Filed 07/25/18 Page 2 of 36 I7O8ESRC 1 2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------x 3 ESRB, 4 Plaintiff, 5 6 v. JEFFERSON BEAUREGARD SESSIONS, 7 8 PART I Defendant. ------------------------------x 9 July 24, 2018 2:45 p.m. 10 Before: 11 HON. JED S. RAKOFF, 12 District Judge 13 APPEARANCES 14 15 16 THE LEGAL AID SOCIETY Attorneys for Plaintiff SARAH GILLMAN GREGORY COPELAND JENNIFER LEVY 17 18 19 20 GEOFFREY S. BERMAN United States Attorney for the Southern District of New York MICHAEL J. BYARS BRANDON M. WATERMAN Assistant United States Attorneys 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1 Case 2:18-cv-00939-MJP Document 35-2 Filed 07/25/18 Page 3 of 36 I7O8ESRC 1 (Case called) 2 THE DEPUTY CLERK: 3 4 5 Will everyone please be seated, and would the parties please identify themselves for the record. MR. COPELAND: Gregory Copeland of The Legal Aid Society for the plaintiff petitioner. 6 MS. GILLMAN: 7 for the plaintiff petitioner. 8 9 10 11 12 13 14 MS. LEVY: Sarah Gillman, The Legal Aid Society, Jennifer Levy, The Legal Aid Society, for the plaintiff petitioner. MR. BYARS: Assistant U.S. Attorney Michael Byars for the respondent. MR. WATERMAN: Assistant U.S. Attorney Brandon Waterman on behalf of the respondents. THE COURT: So I have received a copy of the proposed 15 order to show cause, as well as the memorandum of law in 16 support of the order to show cause and the underlying 17 complaint. 18 I would have thought that the proper way to proceed is 19 to give the government a short window to put in responding 20 papers, provided that the status quo remain as is during that 21 short period. 22 2 So I was thinking maybe the government could get in 23 their papers by Thursday morning, and we could hold oral 24 argument and if necessary -- well, we would hold oral argument 25 on Thursday afternoon, and if there was an evidentiary hearing SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 2:18-cv-00939-MJP Document 35-2 Filed 07/25/18 Page 4 of 36 I7O8ESRC 1 that was needed, then we could hold that on Friday. 2 So any objections to that? 3 MS. GILLMAN: 4 3 No, your Honor, we do not object to that. 5 MR. BYARS: Your Honor, this schedule raises some 6 concern for the government. 7 the issue of the reunification of parents and children is under 8 active management by Judge Sabraw in the Southern District of 9 California. As I am sure your Honor is aware, The judge set a deadline Thursday for 10 reunifications to take place and the government is working to 11 make sure that that happens. 12 Last Monday, shortly before 8 p.m., the government was 13 notified of an action in Part I before Judge Swain. 14 appeared Monday night. 15 restraining order. We Judge Swain entered a temporary 16 THE COURT: Are you talking about last week? 17 MR. BYARS: Yes. The case was sent to Judge Furman. 18 We saw him the next day. Then on Thursday of last week, Judge 19 Furman entered an order transferring that case to the Southern 20 District of California, and I am happy to hand up a copy of the 21 order. 22 THE COURT: I have a copy. Thank you. 23 MR. BYARS: I would like to draw your attention, your 24 Honor, if I may, to the bottom of page 4, in which Judge Furman 25 says, "To preserve the status quo, the temporary relief granted SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4 Case 2:18-cv-00939-MJP Document 35-2 Filed 07/25/18 Page 5 of 36 I7O8ESRC 1 by the court on July 17, 2018, Docket No. 9, is extended to 2 give Judge Sabraw an opportunity to consider plaintiff's 3 request for broader emergency relief. 4 promptly present those issues to Judge Sabraw so he can decide 5 whether to maintain, modify, or vacate the order granting 6 temporary relief." The parties should 7 I am hard-pressed to understand what Legal Aid is 8 asking for in this action that is not encompassed by Judge 9 Furman's direction, and it raises some very real practical 10 concerns. 11 Judge Sabraw held a hearing. 12 Service Jonathan White appeared and established to Judge 13 Sabraw's satisfaction that a 12-hour notice period prior to 14 transporting these children was not needed and would interfere 15 with the logistics of reuniting these children with these 16 parents. 17 anywhere else but in the Southern District of California. 18 I would note that all of the parents whose children are 19 represented here, all of these parents have told HHS that they 20 want their children, and they want them as soon as possible. 21 On the day that we appeared before Judge Swain, Commander of Public Health I am not sure why these issues should be determined And Now, the Southern District of California court was 22 open last night when we received notice from Legal Aid at 8:19 23 p.m., 5:19 p.m. California time. 24 would have been open after-hours. 25 THE COURT: That court was open. It Are you sure it wasn't closed at 5 p.m.? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5 Case 2:18-cv-00939-MJP Document 35-2 Filed 07/25/18 Page 6 of 36 I7O8ESRC 1 I don't know, but most courts do close at 5 p.m., and my many 2 wonderful trips to California suggest to me that working 3 overtime is not their favorite occupation. 4 think that court was open? 5 MR. BYARS: So what makes you Judge Sabraw has a jury trial ongoing. I 6 am sure that Legal Aid could have reached out, certainly this 7 morning before today's hearing. 8 is a hearing today on the case at 3 p.m. 9 THE COURT: It's almost noon there. Just so I understand what your proposal 10 is. 11 Judge Sabraw? 12 show cause? 13 hearing anything further from the government in terms of 14 written submissions? 15 specifically asking for. 16 There Is your proposal that I transfer this matter forthwith to Is your proposal that I simply deny the order to Is your proposal that I do all that without MR. BYARS: I just want to be clear what you're I would ask for an immediate transfer of 17 this case to Judge Sabraw. 18 case should be -- we can certainly brief the case, but I think 19 that any interim relief that your Honor were to consider here 20 is plainly going to delay reunifications of children with 21 parents who have asked to be reunified with their children, and 22 that should not happen. 23 that Judge Sabraw has put in place requiring reunifications by 24 Thursday, and it's just going to slow everything down. 25 Absent that, then I think that the It would contradict the court order Moreover, it appears that what Legal Aid wants to do SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 2:18-cv-00939-MJP Document 35-2 Filed 07/25/18 Page 7 of 36 I7O8ESRC 1 is to force the parents to come to New York in order to get 2 their children, and testify in a proceeding here to the 3 satisfaction of Legal Aid before they can do that. 4 seems completely contrary to the case's active management in 5 the Southern District of California. 6 guardian ad litem here. 7 their decision is and their decision should be given effect. 8 THE COURT: 9 MS. GILLMAN: 6 That just Legal Aid is not a The parents here have indicated what Let me hear from plaintiff's counsel. Thank you, your Honor. 10 So we come here today with a very simple ask. 11 simply asking that our clients, the eight children that we have 12 brought this individual habeas action on behalf of, be given 13 the opportunity to have a meaningful conversation with their 14 parents before they make what would be the most important 15 decision in their young lives. 16 very simple issue of reuniting the parents and the children, 17 but the Legal Aid Society here is representing in this 18 particular action before your Honor eight individuals, who 19 range in age from 9 to 17, who were forcibly separated from 20 their parents. 21 We are The government frames this as a The reason that we brought this action before your 22 Honor is because the government notified the plaintiff's 23 counsel that transfer of these children outside the 24 jurisdiction of New York was going to happen imminently. 25 Number one, we got this notification very late on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7 Case 2:18-cv-00939-MJP Document 35-2 Filed 07/25/18 Page 8 of 36 I7O8ESRC 1 Saturday night. 2 facilities that are run by the Office of Refugee Resettlement. 3 Those facilities are not open on the weekend, and so that made 4 any communication even with counsel seriously difficult. 5 The plaintiffs are currently housed in Next, your Honor, again, we are dealing with children 6 between the ages of 9 and 17. 7 here. 8 before your Honor. 9 we are talking about five parents for eight children. 10 We are not making a big ask There is a group of children who are in our papers THE COURT: There's four children and one family. So I guess what I am unclear about is the 11 government, if I understand it, says that all the children, 12 including, presumably, these eight, were being reunified with 13 their parents. 14 So if that's true, isn't that what you wanted? MS. GILLMAN: Your Honor, we do not oppose 15 reunification. 16 individual children, eight of them, and in order to ensure that 17 their rights are protected, including, but not limited, the 18 right to seek any independent relief such as asylum, that they 19 have the opportunity to have a meaningful communication with 20 their parents. 21 22 23 However, we are here representing the THE COURT: Presumably, the way to have that is, in the first instance, by reuniting them. MS. GILLMAN: Your Honor, the reunification of our 24 clients, if it was to take place under the framework that the 25 government is proposing, would not allow for meaningful SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 2:18-cv-00939-MJP Document 35-2 Filed 07/25/18 Page 9 of 36 I7O8ESRC 1 communication, number one, between the plaintiffs and their 2 counsel. 3 these children and their parents are going to be reunited. 4 They have indicated sort of a suggestion as to where they are 5 going to be reunited. 6 which is that these children cannot be placed in facilities 7 that are not in compliance with the Flores settlement. 8 Number two, the defendants have not indicated where 8 THE COURT: 9 MS. GILLMAN: But there is another issue at play here, How did you come to represent these eight? The Legal Aid Society, part of our 10 office, your Honor, is comprised of a youth project. 11 project does outreach with children who are in the custody of 12 Office of Refugee Resettlement. 13 a larger group of children that were part of litigation that 14 was brought last week, which the government made reference to, 15 and these children are being represented by the Legal Aid 16 Society through our youth project. 17 18 THE COURT: The youth These eight children are from Did these children request your representation? 19 MS. GILLMAN: 20 THE COURT: 21 MS. GILLMAN: Yes, they did, your Honor. In what form did they do that? The way that the youth project works is 22 that we receive referrals from agencies that go in and 23 initially meet with children in ORR custody. 24 referral is sent to us, we go and meet with the individual 25 children at the facilities. And then once a In this particular instance, the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 2:18-cv-00939-MJP Document 35-2 Filed 07/25/18 Page 10 of 36 I7O8ESRC 9 1 facilities are in New York, and the children indicated what 2 their wishes were to us, and we have then followed through with 3 those wishes, in terms of what we have stated in the papers. 4 THE COURT: 5 So with respect to these eight children, what form is 6 Let me go back to defense counsel. reunification taking and when? 7 MR. BYARS: My understanding is that they would be 8 transported to meet with their parents on, I believe, as early 9 as tomorrow the transportation would take place. 10 THE COURT: Transportation to where? 11 MR. BYARS: Well, it depends on where their parents 12 are located, but, presumably, some of them are located in 13 Texas. 14 THE COURT: 15 the California federal judge? 16 MR. BYARS: 17 20 It's all under the supervision of that judge, yes, your Honor. 18 19 And this is all pursuant to the order of THE COURT: Is the timetable one that that judge set MR. BYARS: The deadline for Thursday's reunifications or not? 21 to be completed is set by the Southern District of California, 22 by Judge Sabraw. 23 THE COURT: 24 If these children are all going to be taken as early 25 Let me go back to plaintiff's counsel. as tomorrow, and no later than Thursday, to be reunited with SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 2:18-cv-00939-MJP Document 35-2 Filed 07/25/18 Page 11 of 36 I7O8ESRC 1 10 their parents, I am at a loss to see why you object to that. 2 MS. GILLMAN: Well, the issue, again, your Honor, is 3 that the government has not indicated what this reunification 4 means, meaning what happens after there is reunification with 5 the parents. 6 then be detained in a facility that is not compliant with the 7 Flores settlement? 8 and child will be deported? 9 THE COURT: Does that mean that the child and the parent will Does the reunification mean that the parent Aren't those the kind of issues that are 10 before the judge in California? 11 MS. GILLMAN: They are not, your Honor. The Ms. L 12 class represents the parents and not children, and that's why 13 we had to come before your Honor on behalf of these eight 14 children. 15 government, and as your Honor just previously asked defense 16 counsel, we don't know what is going to happen after they are 17 moved to be with their parents, and therein lies the problem. 18 Because of the fact that they were separated from their 19 parents, because of the fact that they were children -- 20 If the children are sent, as per the plan of the THE COURT: But if the judge in California is dealing 21 with reunification from the standpoint of the parents, doesn't 22 it make sense, if there are separate interests involving the 23 children, that those also be litigated before that same judge? 24 25 MS. GILLMAN: Honor. Not in this particular instance, your Again, I am sorry that I keep repeating myself, but we SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 2:18-cv-00939-MJP Document 35-2 Filed 07/25/18 Page 12 of 36 I7O8ESRC 1 are dealing with eight young children. 2 that they were separated from their parents, they have 3 obviously experienced trauma. 4 action before your Honor who suffers from attention deficit 5 disorder, who really has been suffering within the context of 6 the facility and the separation from his parent. 7 litigation simply seeks to reunify, but it's not representing 8 the interests of the eight plaintiffs that come before your 9 Honor. 10 THE COURT: By virtue of the fact We have one plaintiff in our The Ms. L If I were to transfer this case to 11 California, then you, or your California co-counsel, would 12 still have full standing to represent the interests of those 13 children there. 14 11 MS. GILLMAN: Well, your Honor, I think there are a 15 couple of problems there. 16 referenced, and as is set forth in our moving papers, they are 17 also under the requirements of the order that was issued by the 18 Honorable Swain last Monday. 19 required that there be meaningful communication and that 20 specifically the government advise within 48 hours of the 21 purpose of the release, detention, or repatriation. 22 been advised of any of those things. 23 Number one, as defense counsel Within that order, Judge Swain We haven't Moreover, again, the action here before your Honor 24 really just involves -- it's a very minimal ask. 25 asking that the children be able to communicate with their SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 We are simply 12 Case 2:18-cv-00939-MJP Document 35-2 Filed 07/25/18 Page 13 of 36 I7O8ESRC 1 parents, and that that be facilitated by the parents being 2 brought to New York so they can actually engage in this 3 communication. 4 jurisdiction, it's going to be impossible for them to engage in 5 that meaningful communication. 6 If they are transferred out of this THE COURT: Again, these children -- That's what I am not fully understanding. 7 Why are they going to have any less meaningful communication in 8 Texas, for example, where I gather some will be reunited, than 9 here? 10 MS. GILLMAN: Well, I think there's a few things. 11 first thing is we don't know what will happen to them upon 12 transfer to Texas. 13 they get there. 14 deported? 15 independent claims? 16 We just simply don't know that. 17 The So we don't know what the purpose is once Are they being deported? Are they not being Are they going to be able to proceed with their own And again, that's not something we know. The second thing is that their attorneys are here in 18 New York, and we think that it's incredibly important for them 19 to be able to consult with their parents and then have the 20 ability to consult with their attorneys. 21 Third, I think that again, as I referenced before, we 22 are not dealing with simply the transfer of -- just the general 23 transfer. 24 through an incredibly difficult time, and if they are sent to 25 the detention facilities that the government -- again, we don't These are children, again, who are just going SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 2:18-cv-00939-MJP Document 35-2 Filed 07/25/18 Page 14 of 36 I7O8ESRC 1 exactly know what facilities they are; we don't know what 2 accommodations are there for these children. 3 13 These children right now are in facilities in New York 4 that, although it's very difficult for them, although they are 5 separated from their parents, although they are going through 6 trauma, at least in these facilities, these facilities are 7 compliant with the requirements of the Flores agreement, which 8 allows for certain accommodations to be made for these 9 children. If these children are transferred across the country 10 to various detention facilities, we have no indication of what 11 those facilities will be. 12 Therefore, the idea that they can engage in meaningful 13 communication and meaningful consultation is virtually 14 impossible, because you're taking someone who has already been 15 traumatized, you're sending them from a facility that, although 16 not perfect, not their home, not with their parent, actually 17 does have some level of care that can address these child's 18 needs, and then you're transferring them out of that facility, 19 where they have already been transferred from their parents 20 forcibly, and they are put in a situation where we don't know 21 what is going to happen. 22 23 24 25 Again, we are simply asking for a very small ask, and I think your Honor's -THE COURT: I am trying to get down to the practicalities of this. The government says it's under an SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 2:18-cv-00939-MJP Document 35-2 Filed 07/25/18 Page 15 of 36 I7O8ESRC 1 order from the judge in California to reunite children and 2 parents by Thursday. 3 correctly, that's fine, but they need to be reunited here 4 rather than someplace else so that they can have, in effect, 5 communication with you. And you say, if I understand you 6 Do I have that right so far? 7 MS. GILLMAN: Yes, your Honor. I think we are also 8 asking that our clients' wishes be adhered to here. 9 are transferred out of this jurisdiction, I don't think that If they 10 their wishes would be adhered to for all the reasons I 11 previously stated. 12 13 The other issue we have here, your Honor, and why we had to come before you today -- 14 THE COURT: 15 reunited with their parents? 16 14 Isn't their single biggest wish to be MS. GILLMAN: No, your Honor. Some of the children 17 who are here before you today are actually very, very scared of 18 going back to their country, and they would like the right to 19 pursue their own independent claim for asylum. 20 Honor can understand, we are dealing with a situation where 21 these children are left in a situation where they are being 22 told you have to reunify with your parents, but you're not 23 really being told what that means, and where you're going, and 24 whether or not you're going to have the right to actually 25 proceed with your own application for relief. But as your And in the same SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 2:18-cv-00939-MJP Document 35-2 Filed 07/25/18 Page 16 of 36 I7O8ESRC 1 time, you're dealing with a group of children who have just 2 suffered trauma and will continue to suffer trauma. 3 15 And the problem with what the government is proposing, 4 and I guess their objection to what we have proposed to your 5 Honor, is that there hasn't been meaningful notice provided to 6 our clients. 7 very late on Saturday evening, and that notification did not 8 provide any substance. 9 going to be transferring these children. 10 Again, we received an e-mail notification very, The only thing it provided was, we are I think what your Honor proposed in the initial ask to 11 both the plaintiff and the defendant is more than reasonable. 12 We are, again, speaking about five parents here. 13 talking about thousands of parents. 14 parents, eight children. 15 that they have the opportunity to meaningfully engage with 16 their parents and make a decision after that is done. 17 just impossible to do if they are taken from New York and 18 transferred across the country. 19 country in all cases, because I think some of these facilities 20 are in Texas, so I guess partially across the country. We are not We are talking about five And all we want to do is make sure And it's I don't want to say across the 21 THE COURT: Let me hear from defense counsel. 22 MR. BYARS: A couple of points, your Honor. 23 The Legal Aid attorneys sitting here today have 24 entered appearances -- at least Mr. Copeland and Ms. Gillman 25 have -- in the Southern District of California. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 The case that Case 2:18-cv-00939-MJP Document 35-2 Filed 07/25/18 Page 17 of 36 I7O8ESRC 1 they filed last week has been transferred to the Southern 2 District of California before Judge Sabraw. 3 THE COURT: These children? 4 MR. BYARS: The case that was filed in Part I last 5 week, the putative class action involving the interest of the 6 children that Ms. Gillman has been describing, that case has 7 been transferred by Judge Furman. 8 9 10 THE COURT: Were any of these eight individual plaintiffs in that case? MR. BYARS: My understanding, and you can perhaps 11 confirm with Legal Aid, but they were purporting to represent 12 70 children. 13 speaking of now are eight out of the 70 children that were 14 potential class members in last week's action. 15 16 17 18 19 16 I understand that the eight that they are THE COURT: Let me just stop you there to make sure your adversary agrees with that. Were these eight within the group that Legal Aid filed on behalf of the 70? MS. LEVY: Yes, your Honor. These clients were 20 clients of Legal Aid's, but the proceeding that we filed last 21 week was one that sought the 48 hours' notice; it did not seek 22 this relief on behalf of the plaintiff children. 23 was we filed that case. 24 Saturday night of 50 of our clients. 25 THE COURT: What happened We received minimal notice late on I have heard about minimal notice on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 2:18-cv-00939-MJP Document 35-2 Filed 07/25/18 Page 18 of 36 I7O8ESRC 1 Saturday night. 2 17 I, myself, was of course in chambers working. Let me go back a step. You filed an action on behalf 3 of 70 children, a class action that was filed initially before 4 Judge Furman; is that right? 5 MS. LEVY: 6 MS. GILLMAN: It was initially filed -Sorry, your Honor. So the action was 7 initially before, of course, Judge Swain because she was the 8 Part I judge. 9 THE COURT: 10 Then it was assigned to Judge Furman. MS. GILLMAN: So the eight children that we are 11 speaking about here today were not individual plaintiffs in 12 that action. 13 THE COURT: They were just members of the class. 14 MS. GILLMAN: 15 THE COURT: Yes. Did Legal Aid purport nevertheless to have 16 an attorney-client relationship with these eight in what they 17 presented to Judge Furman or Judge Swain? 18 In other words, it seems to me there is a difference 19 here between going in and saying, on behalf of Tom, Joe and 20 Mary, we are bringing a class action for the following 500 21 people. 22 more than entitled to. 23 class, or seeking additional or corollary relief. 24 other hand, Legal Aid goes in, or a lawyer goes in in my 25 hypothetical and says, We have been authorized by not just Tom, If those 500 want their own separate lawsuit, they are They, in effect, are opting out of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 If, on the Case 2:18-cv-00939-MJP Document 35-2 Filed 07/25/18 Page 19 of 36 I7O8ESRC 1 Joe and Mary, but by the following 70 people to be their 2 lawyer, then it seems to me the representation was that they 3 will be bound by the relief in that action. 4 which of these two scenarios this is. 5 6 MS. GILLMAN: So I am not sure Can I have just a moment to consult with my co-counsel? 7 THE COURT: 8 MS. GILLMAN: 9 Yes. So, your Honor, when we went in last week, the class was for all children in New York State who are 10 being held in the Office of Refugee Resettlement. 11 to that action being brought, the eight children that we are 12 here in court before your Honor about were referred to The 13 Legal Aid Society and are clients of The Legal Aid Society. Subsequent 14 THE COURT: 15 The action filed before Judge Swain and Judge Furman 16 That only partly answers my question. was a class action pursuant to Rule 23 or some similar rule? 17 MS. GILLMAN: 18 THE COURT: Yes, your Honor. Then I come back now to defense counsel. 19 If they were not the named plaintiffs, these eight, and they 20 were just members of the class, that doesn't in any way 21 preclude this lawsuit. 22 23 24 25 18 MR. BYARS: I believe that these eight individuals were on a list of 70 children that were provided to us. THE COURT: But that's like saying, if I brought a securities class action and I said, Judge, John Jones is a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 19 Case 2:18-cv-00939-MJP Document 35-2 Filed 07/25/18 Page 20 of 36 I7O8ESRC 1 shareholder and here is a list of -- we don't have to guess, we 2 know who the other 69 shareholders are. 3 will seek certification of the class, and so we are bringing 4 this as a class action. 5 certified, and maybe even then, those other 69 in my 6 hypothetical are free to bring whatever action they want. 7 are not in any way, shape or form precluded by the fact that 8 John Jones said he is representing the class. 9 Here they are, and we Until and unless that class is They So I would have to see the transcript, but they 10 brought the other action as a class action. Nothing precludes 11 these other members of the class from seeking different or 12 alternative relief. 13 MR. BYARS: Your Honor, just looking at page 2 of 14 Judge Furman's order, in a footnote it refers to Judge Swain's 15 granting emergency relief to prohibit the government from 16 removing putative class members represented by Legal Aid from 17 New York State without providing 48 hours' notice. 18 that the eight individuals at issue in this case are on the 19 list of 70 that was provided by Legal Aid and would be part of 20 the putative class. 21 Legal Aid or members of the putative class, but subject to the 22 relief granted by Judge Swain, and extended by Judge Furman, 23 and extended by Judge Furman with the specific direction that 24 this temporary relief would give Judge Sabraw an opportunity to 25 consider requests for broader emergency relief. I think I think they are either represented by SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 I think that Case 2:18-cv-00939-MJP Document 35-2 Filed 07/25/18 Page 21 of 36 I7O8ESRC 1 2 is what is happening here. THE COURT: I don't see anything in a footnote that 3 detracts from the right of any individual member to seek the 4 relief that is being sought here. 5 prohibition on the government from removing putative class 6 members represented by Legal Aid from New York State without 7 providing 48 hours' notice. 8 them from New York State. 9 State and have the parents brought here. Judge Swain ordered a They are not seeking to remove They want them to stay in New York So there is no 10 contradiction there. 11 is "putative." 12 someone who has been brought in as a class member, but is not 13 an individual class representative, from saying, I don't want 14 to be part of that class, I want to opt out, I want my own 15 relief, which is, in effect, at best, at most, what is being 16 asked for here. 17 conflict, that's a different question. 18 19 20 20 Moreover, I think the key adjective there Nothing that I know in the law precludes Now, whether it presents Legal Aid with a So I don't understand what in this footnote you think creates a problem for what they are asking for here. MR. BYARS: I think what was directed in the footnote 21 was temporary emergency relief that applied to the eight 22 individuals who are seeking broader relief here. 23 purpose of the transfer was to allow that to happen in such a 24 fashion so that the district judge that is actively managing 25 the reunification process could consider all of the issues that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 And the Case 2:18-cv-00939-MJP Document 35-2 Filed 07/25/18 Page 22 of 36 I7O8ESRC 1 21 are in this case as well as in the Ms. L case. 2 I note that, for example, one of the things that Judge 3 Sabraw has done is to institute a seven-day stay of removal 4 following reunification. 5 judge can do there in order to try to provide for protections 6 for the reunification process. 7 involved in doing this. 8 minutes he is going to be having another hearing in the Ms. L 9 case, and presumably will also be considering the NTC case as That's the kind of thing that the Judge Sabraw is actively In fact, in about two hours and 32 10 well. So there is a very real risk here of this action 11 delaying the directions of Judge Sabraw in the Southern 12 District of California case. 13 the government to reunify children with their parents by 14 Thursday evening is very -- 15 THE COURT: The order that he has directed In a case where there is a potential 16 conflict between two federal judges, my normal practice would 17 be to, on consent of the parties, call the other judge and find 18 out whether there really is a conflict or not in the other 19 judge's mind. 20 Judge Sabraw right now? 21 So does anyone have any objection to my calling MR. BYARS: Your Honor, the government has no 22 objection, and we note further that Judge Furman actually did 23 the exact same thing last week. 24 figure out -- I don't know what they talked about, but he did 25 call him about the NTC case. He called Judge Sabraw to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 2:18-cv-00939-MJP Document 35-2 Filed 07/25/18 Page 23 of 36 I7O8ESRC 1 2 THE COURT: 22 I am glad that the younger judges know in advance to follow the path set by the older judges. 3 Any objection from Legal Aid? 4 MS. GILLMAN: We have no objection to the Court 5 calling the judge in the Ms. L litigation, but we think it's 6 appropriate, given the claims that are being brought before 7 your Honor which involve the Flores settlement, for your Honor 8 to call Judge Gee, who is the judge in the Flores case. 9 10 THE COURT: In which case? MS. GILLMAN: In the Flores case. It's the Flores 11 settlement. Your Honor, of course we have no objection to you 12 calling the Ms. L judge, but it would also be, I think, 13 appropriate and necessary, given the claims before this Court, 14 that you call Judge Gee. 15 is a hearing scheduled before Judge Gee on Friday. 16 THE COURT: 17 MS. GILLMAN: We understand that in that case there A hearing on what? A hearing on these issues involving what 18 is going on with the children who are subject to the Flores 19 settlement, in terms of the reunification of the parents in the 20 Ms. L litigation. 21 THE COURT: To move this along, let me go see if I 22 could reach Judge Sabraw. 23 conversation that I should also call Judge Gee, does the 24 government have any objection? 25 MR. BYARS: If I decide as a result of that Your Honor, I think the two are distinct. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 2:18-cv-00939-MJP Document 35-2 Filed 07/25/18 Page 24 of 36 I7O8ESRC 23 1 I think that Judge Gee, first of all, her proceeding on Friday 2 is necessarily after the deadline that's of real importance and 3 urgency here, which is the Thursday deadline. 4 how Judge Gee's views on the Flores settlement case would 5 inform the issues before the Court. 6 THE COURT: That all may be true. I am not sure That's why I may or 7 may not feel the need to call Judge Gee. But my question is, 8 just to move this along, because we are under various time 9 pressures, if after talking with Judge Sabraw I feel it would 10 be useful for the Court to call Judge Gee, do you have any 11 objection? 12 MR. BYARS: No, your Honor. 13 THE COURT: So we will take a short break and I will 14 try to reach one or both of those judges. 15 (Recess) 16 THE COURT: So I had a very useful conversation with 17 Judge Sabraw, and before I rule I want to go back to the 18 government. 19 20 Tell me exactly what was the notice that you sent on Saturday evening. 21 MR. BYARS: I can check my phone. 23 THE COURT: Sure. 24 MR. BYARS: Your Honor, there is a cover e-mail to Mr. 22 25 I can tell you exactly. Copeland from an HHS attorney, and the cover e-mail says, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 24 Case 2:18-cv-00939-MJP Document 35-2 Filed 07/25/18 Page 25 of 36 I7O8ESRC 1 "Please find attached the list that ORR received from DHS of 2 children in the NTC class that are cleared for reunification 3 with their parent. 4 is located and where the reunification will take place. 5 realize it is late on Saturday night. 6 provide this information to you as soon as possible in order to 7 comply with the 48-hour notice. 8 are arranging for transportation for the children. 9 instructed to provide the following information. 10 information merely reflects the intent of ICE --" The spreadsheet indicates where the parent I However, we wanted to The federal field specialists HHS is also The 11 THE COURT: Speak a little louder. 12 MR. BYARS: "The information merely reflects the 13 intent of ICE at the current time, and based on currently 14 available information. 15 will be made at the time the minor and parent are detained in 16 ICE custody. 17 provides such information merely to inform The Legal Aid 18 Society pursuant to the injunction in the NTC v. ICE, case 19 number 18-6428, SDNY, filed July 16, 2018." 20 All custody and removal determinations ICE is not bound by this initial information and Then there is a spreadsheet. It has, I think it's 70 21 names. There's various information at the top. 22 identifying number, family name, given name, gender. 23 there is a facility name, reunification site; a column for 24 final order yes or no, final order executable, final order 25 date, matching child first name, matching child last name, and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 There is an Then 25 Case 2:18-cv-00939-MJP Document 35-2 Filed 07/25/18 Page 26 of 36 I7O8ESRC 1 then an identifying number. Then a column that says "want 2 child?" 3 conviction or charge or no charge, suspected of gang 4 affiliation, most serious conviction, most serious pending 5 charge, and various comments, and a custody decision. 6 has all that information in the spreadsheet. A column for criminality, whether there has been a So it 7 THE COURT: 8 What is it that you think, if anything, the government 9 10 11 Let me go back to plaintiff's counsel. was required to provide in that notice that they didn't provide? MS. GILLMAN: So, your Honor, the information that 12 they provided in that e-mail that was just read by Mr. Byars is 13 wholly insufficient. 14 e-mail I think frames the problem with the notice that was 15 required, in that it says "this information merely reflects the 16 intent of ICE at the current time." 17 that the person actually gets real notice and the opportunity 18 to respond to that notice. In particular, the end part of that The meaning of notice is 19 The other problem in that notification that Mr. Byars 20 just read is that it failed to indicate whether these children 21 were going to be facing long-term detention with their parents 22 in facilities that were noncompliant with the Flores settlement 23 and whether or not they were facing deportation upon 24 reunification. 25 If you would excuse me one moment, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Sorry. Case 2:18-cv-00939-MJP Document 35-2 Filed 07/25/18 Page 27 of 36 I7O8ESRC 1 THE COURT: 26 So the reason I asked this in part is that 2 Judge Sabraw brought to my attention that he has put in place 3 all sorts of provisions to address the very issues you just 4 raised, that he was cognizant even before the action brought 5 before Judge Swain and Judge Furman that the interests of the 6 children are not necessarily coincident with the parents' 7 interests at all times, but that at the same time 8 reunification, at least in the short-term, was something he 9 wanted to bring about promptly. So he, as I understand it, has 10 arranged at each of the facilities where reunification is 11 taking place, pursuant to his order, that there will be present 12 people who will analyze and then report back to him on those 13 kinds of issues so that he can make an informed judgment. 14 He also told me something that I must say was quite 15 surprising to me, which was that Legal Aid had not made any 16 efforts to appear before him since Judge Furman transferred the 17 case other than filing a pro hac vice motion. 18 thought, given the exigencies that plaintiff's counsel has 19 raised, that since it's the same counsel in the class action, 20 that those matters would have been sought to be brought before 21 him on a highly expedited basis, as it was in this court. 22 Did you want to say anything about that? 23 MS. GILLMAN: One would have Your Honor, I think while we, of course, 24 appreciate the fact that Judge Sabraw has indicated that he has 25 put in place what he believes are -- I don't know how you want SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 27 Case 2:18-cv-00939-MJP Document 35-2 Filed 07/25/18 Page 28 of 36 I7O8ESRC 1 to refer to them -- requirements, that still doesn't address 2 the issues that are before this Court. 3 and why we specifically asked for your Honor to call Judge 4 Gee -- is that our individual clients that are appearing before 5 your Honor cannot have their interests properly represented in 6 the actions that are being taken by the Ms. L litigation, 7 because, again, the issue here is that -- 8 9 THE COURT: The issue is that -- To the extent that they have interests that are not being represented, now that the class action is 10 before Judge Sabraw, why haven't you taken emergency action to 11 bring those interests to his attention? 12 MS. GILLMAN: Well, your Honor, to begin with, we, 13 again, got this e-mail notification from the government very 14 late on Saturday night. 15 THE COURT: 16 order came down before that. 17 18 I understand that. MS. GILLMAN: But Judge Furman's Your Honor, can I have one moment. I'm sorry. 19 THE COURT: Yes, of course. 20 MS. GILLMAN: So, your Honor, again, not to repeat 21 myself, but if you will just excuse me I will do it one more 22 time. 23 night. 24 25 We got this e-mail notification very late on Saturday THE COURT: I must say that I made a point of bringing that to Judge Sabraw's attention, because it seemed to me that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 2:18-cv-00939-MJP Document 35-2 Filed 07/25/18 Page 29 of 36 I7O8ESRC 28 1 that was arguably quite heavy-handed on the government's part, 2 but I am sure they would say they were trying to expedite 3 things as quickly as possible. 4 its face, smacks a little bit of gamesmanship, but then so does 5 this action smack of gamesmanship. 6 MS. GILLMAN: Nevertheless, it, at least on I will not repeat myself again. We will 7 start from the late e-mail notification. After receiving the 8 late e-mail notification, my colleagues at The Legal Aid 9 Society made efforts to reach out to government counsel to 10 clarify the ambiguity that is inherent in the notice that Mr. 11 Byars -- 12 13 THE COURT: Excuse me. MS. GILLMAN: 15 sent us the e-mail, and we -- 16 THE COURT: 17 MS. GILLMAN: 19 We reached out to the individual who Who is the individual who sent the e-mail? My colleague, Mr. Copeland, is going to do this. MR. COPELAND: 20 communications. 21 Services. 22 So who called whom? 14 18 Forgive me. These were mostly e-mail It was with the Department of Health and Human I think it's a Ms. Lisette Mestre reached out to me. THE COURT: I'm sorry. The person who sent you the 23 e-mail, which we will hereinafter refer to as "the Saturday 24 night e-mail," was whom? 25 MR. COPELAND: So -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 2:18-cv-00939-MJP Document 35-2 Filed 07/25/18 Page 30 of 36 I7O8ESRC 1 THE COURT: 2 answered by a name? 3 4 Is that not a question that can be MR. COPELAND: Yes. I think I said it. Lisette Mestre. 5 THE COURT: 6 MR. COPELAND: 7 THE COURT: 8 29 Spell it for the record. L-I-S-E-T-T-E, last name M E S T R E. Does that person give in the e-mail her position? 9 MR. COPELAND: Yes, your Honor. She is an attorney 10 with the Office of General Counsel, Children, Families and 11 Aging, U.S. Department of Health and Human Services. 12 THE COURT: OK. Who was it from your end who then 13 e-mailed her with requests for more information, if that's what 14 happened? 15 MR. COPELAND: That was me. 16 THE COURT: 17 What did you ask her? 18 MR. COPELAND: 19 sure I speak properly. 20 Saturday, not just the Saturday night e-mail. 21 earlier e-mail that was asking for us to waive the protections 22 of the TRO as to two siblings that wanted to be reunited in 23 advance. 24 indicated that she was the lead counsel for Health and Human 25 Services on this case. So we have got the real party interest. I asked her what -- I just want to make She had e-mailed me earlier on She sent me an So that's how our communication started. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 She Case 2:18-cv-00939-MJP Document 35-2 Filed 07/25/18 Page 31 of 36 I7O8ESRC 1 So she sent me that. We looked into that case, 2 determined that this was somebody that did indeed want to be 3 reunited on a more expedited basis, didn't have any of the 4 issues that we are facing with the eight children that we are 5 here in court for today. 6 30 So to respond to your question, I believe it was the 7 next morning, there was more communications between myself and 8 attorney Mestre. 9 the expiration of the 48 hours, even going from the time of the Then at some point we learned that prior to 10 Saturday night e-mail, what would be 48 hours there, that one 11 of our clients had actually been moved, and I think that that 12 happened on early Monday. 13 So our understanding was that that was not complying 14 with the order. 15 that, as well as indicating that we had these additional 16 clients that form, I think, the majority of the named 17 plaintiffs in this action, who we indicated we wanted to know 18 the status of whether or not they would be moved because we 19 were aware of the fact that they had expressed wishes to not be 20 reunited in detention or some other sort of issue in terms of 21 their reunification. 22 So we reached out to attorney Mestre about THE COURT: Just so I am clear, you wanted to know, 23 number one, whether any of them were about to be imminently 24 moved, and if so, whether it's for purposes of detention or 25 deportation. Do I have that right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 2:18-cv-00939-MJP Document 35-2 Filed 07/25/18 Page 32 of 36 I7O8ESRC 1 MR. COPELAND: 2 THE COURT: 3 MR. COPELAND: 31 That is correct, your Honor. What was the response? There was further communication with 4 Ms. Mestre that didn't address that request yesterday, in terms 5 of we had also provided other individuals that were part of the 6 TRO that also wanted to waive. 7 Then we received an e-mail yesterday evening, I 8 believe it was from the Department of Justice's -- one of the 9 lead attorneys in the Ms. L litigation, I believe his name is 10 August -- I am going to mispronounce his last name -- Lente, or 11 something of that nature, which essentially said that the 12 notice provided on Saturday night was compliant notwithstanding 13 the fact that we had raised the issue that given -- 14 THE COURT: So they had given you what they thought 15 was required, and they weren't giving you anything else, is 16 that the gist of it? 17 MR. COPELAND: 18 THE COURT: 19 I am not quite sure why you weren't giving more 20 21 Basically, yes. Let me go back to the government. information. MR. BYARS: Your Honor, I think HHS and Main Justice 22 were providing what they could to Legal Aid, and they believed 23 that they had satisfied the requirement. 24 25 THE COURT: Well, there is a question of whether they have satisfied the requirements and there is a question of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 2:18-cv-00939-MJP Document 35-2 Filed 07/25/18 Page 33 of 36 I7O8ESRC 32 1 whether they are operating in the spirit of Judge Furman's 2 orders, Judge Swain's orders, and to the extent relevant, Judge 3 Sabraw's orders. 4 couldn't have been given to answer some of those inquiries. 5 6 I don't understand why more of an attempt Do you have any objection to providing more information? 7 MR. BYARS: Your Honor, I do not know what information 8 can be provided. I understand that this is a huge logistical 9 undertaking by numerous people to make this happen under the 10 timeline that's ordered by the Southern District of California. 11 So I am not able to say -- I do know that at the hearing, a 12 week ago Monday, the judge was impressed with Commander 13 Jonathan White's presentation about how logistically 14 complicated this was and, in fact, was satisfied, based on our 15 presentation, that even a 12-hour advance notice would be an 16 impediment to providing the quickest possible reunification of 17 child to parent. 18 So I really am unable to give you the kind of 19 blow-by-blow breakdown of this process in a way that Commander 20 White would be able to do. 21 Judge Sabraw is trying to do in San Diego. 22 THE COURT: And I think that that's really what Do you know anything about this one 23 instance that was referred to of someone who was moved on 24 Monday? 25 MR. BYARS: I do not, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 33 Case 2:18-cv-00939-MJP Document 35-2 Filed 07/25/18 Page 34 of 36 I7O8ESRC 1 THE COURT: All right. So this is obviously a matter 2 of great importance. 3 the parents and to the children, whose interests may not always 4 coincide and therefore need to be separately expressed. 5 matter of great public interest. 6 impacts the proper effectuation of the orders now of several 7 different courts: 8 settlement, Judge Sabraw's various orders requiring 9 reunification, Judge Swain and Judge Furman's temporary 10 It's important, first and foremost, to It's a It is a matter that also Judge Gee's approval of the Flores restraining orders, and now the matter before this Court. 11 I think the common sense of it is that these matters 12 should, to the maximum extent possible, be consolidated before 13 as few judges as possible. 14 Sabraw, he felt that what was being requested here, arguably, 15 conflicted with his orders, but he stressed that that was not 16 his determination to make, it was the determination to be made 17 by this Court. 18 not placing before a single judge, or at most two judges, the 19 coordination of what is unquestionably a substantial 20 undertaking of great importance. 21 for even inadvertent conflict, is high in these kinds of 22 situations. 23 entire case to the Southern District of California to Judge 24 Sabraw. 25 In my discussion before with Judge But there is a certain lack of common sense in The potential for conflict, Therefore, I am going to forthwith transfer this I asked him how early he could hear from counsel in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 2:18-cv-00939-MJP Document 35-2 Filed 07/25/18 Page 35 of 36 I7O8ESRC 34 1 this case. He said he was holding a status conference today, 2 at 3 p.m. California time, which is 6 p.m. New York time, 3 therefore, about an hour and 20 minutes from now, and he would 4 be pleased to hear from counsel for the plaintiffs here about 5 the issues they have raised. 6 as I mentioned earlier, all sorts of provisions that he 7 believes are addressed to making sure that the interests of the 8 children are separately represented, but counsel in this case 9 is in a very good position to bring to his attention why they For example, he has set in place, 10 don't think that may be true in the case of these nine children 11 or whatever. 12 So he invited the appearance of counsel in this case 13 at his hearing today. 14 knew they were in New York. 15 expressly, but I think it's implicit. 16 problems with that, you can come back to me and I will talk to 17 Judge Sabraw because that clearly was my understanding. 18 I assume he means by telephone since he I forgot to ask him that And if there are any I will issue a written order within the next few 19 minutes transferring this case, but I think the most important 20 thing is for counsel for the plaintiffs to call Judge Sabraw's 21 chambers and arrange to be heard at 6:00 New York time, 3:00 22 his time, on your various requests. 23 initially answered by his secretary who probably is less 24 familiar with this, so I would suggest you talk initially to 25 the law clerk who is handling this matter, who was also on the In calling, his phone is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 2:18-cv-00939-MJP Document 35-2 Filed 07/25/18 Page 36 of 36 I7O8ESRC 35 1 phone during my conversation with Judge Sabraw so knows the 2 full representations that were made. 3 for any reason, which I would think extremely unlikely, any 4 problem in facilitating that telephonic conversation, come back 5 to me and I will call Judge Sabraw and clear that up. And as I say, if there is 6 Is there anything else we need to take up today? 7 MR. BYARS: Your Honor, I would just would ask that 8 you consider noting in your order, there is a local civil rule 9 83.1 that imposes a seven day -- 10 THE COURT: I am going to slavishly copy the wording 11 of Judge Furman, which addressed all that, and I am grateful to 12 Judge Furman for giving me a model to follow. 13 Anything else? 14 MR. BYARS: 15 I think just making sure that our case is docketed and we get a docket number. 16 THE COURT: Yes. 17 Very good. Thanks very much. 18 (Adjourned) Of course. 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EXHIBIT 3 Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 2 of 53 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA BEFORE HONORABLE DANA M. SABRAW, JUDGE PRESIDING _______________________________________ ) MS. L. AND MS. C., ) )CASE NO. 18CV0428-DMS PETITIONERS-PLAINTIFFS, ) ) VS. ) )SAN DIEGO, CALIFORNIA U.S. IMMIGRATION AND CUSTOMS )TUESDAY JULY 24, 2018 ENFORCEMENT ("ICE"); U.S. DEPARTMENT ) 3:00 P.M. CALENDAR OF HOMELAND SECURITY ("DHS"); U.S. ) CUSTOMS AND BORDER PROTECTION ("CBP"); ) U.S. CITIZENSHIP AND IMMIGRATION ) SERVICES ("USCIS"); U.S. DEPARTMENT ) OF HEALTH AND HUMAN SERVICES ("HHS"); ) OFFICE OF REFUGEE RESETTLEMENT ("ORR"); ) THOMAS HOMAN, ACTING DIRECTOR OF ICE; ) GREG ARCHAMBEAULT, SAN DIEGO FIELD ) OFFICE DIRECTOR, ICE; ADRIAN P. MACIAS, ) EL PASO FIELD DIRECTOR, ICE; FRANCES M. ) JACKSON, EL PASO ASSISTANT FIELD ) OFFICE DIRECTOR, ICE; KIRSTJEN NIELSEN, ) SECRETARY OF DHS; JEFFERSON BEAUREGARD ) SESSIONS III, ATTORNEY GENERAL OF THE ) UNITED STATES; L. FRANCIS CISSNA, ) DIRECTOR OF USCIS; KEVIN K. ) MCALEENAN, ACTING COMMISSIONER OF ) CBP; PETE FLORES, SAN DIEGO FIELD ) DIRECTOR, CBP; HECTOR A. MANCHA JR., ) EL PASO FIELD DIRECTOR, CBP; ) ALEX AZAR, SECRETARY OF THE ) DEPARTMENT OF HEALTH AND HUMAN ) SERVICES; SCOTT LLOYD, DIRECTOR ) OF THE OFFICE OF REFUGEE RESETTLEMENT, ) ) RESPONDENTS-DEFENDANTS. ) ---------------------------------------REPORTER'S TRANSCRIPT OF PROCEEDINGS STATUS CONFERENCE Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 3 of 53 COUNSEL APPEARING: FOR PLAINTIFF: LEE GELERNT, ESQ. ACLU IMMIGRANT RIGHTS PROJECT 125 BROAD STREET 18TH FLOOR NEW YORK, NEW YORK 10004 BADIS VAKILI, ESQ. ACLU FOUNDATION OF SAN DIEGO AND IMPERIAL COUNTIES P.O. BOX 87131 SAN DIEGO, CALIFORNIA 92138 SPENCER AMDUR, ESQ. ACLU OF NORTHERN CALIFORNIA 39 DRUMM STREET SAN FRANCISCO, CALIFORNIA 94111 FOR DEFENDANT: REPORTED BY: SARAH B. FABIAN, ESQ. SCOTT STEWART, ESQ. U.S. DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION P.O. BOX 868 BEN FRANKLIN STATION WASHINGTON, DC 20044 LEE ANN PENCE, OFFICIAL COURT REPORTER UNITED STATES COURTHOUSE 333 WEST BROADWAY, ROOM 1393 SAN DIEGO, CALIFORNIA 92101 Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 4 of 53 1 SAN DIEGO, CALIFORNIA - TUESDAY, JULY 24, 2018 - 3:00 P.M. * 2 3 3 THE CLERK: * * NO. 2 ON CALENDAR, CASE NO. 18CV0428, 4 MS. L. VERSUS U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; ON FOR 5 STATUS CONFERENCE. GOOD AFTERNOON. 6 THE COURT: 7 CAN I HAVE APPEARANCES, PLEASE? 8 MR. GELERNT: 9 10 11 12 13 14 15 16 17 GOOD AFTERNOON, YOUR HONOR. GELERNT FOR THE ACLU FOR PLAINTIFFS. MR. AMDUR: GOOD AFTERNOON. SPENCER AMDUR FOR THE PLAINTIFFS. GOOD AFTERNOON, YOUR HONOR. MR. VAKILI: MR. STEWART: GOOD AFTERNOON, YOUR HONOR. MS. FABIAN: GOOD AFTERNOON, YOUR HONOR. SARAH FABIAN FOR THE DEFENDANTS. THANK YOU. AND WELCOME ALL. 19 LET'S GO THROUGH THE STATUS REPORT. 22 SCOTT STEWART FOR THE DEFENDANTS. THE COURT: 21 BARDIS VAKILI FOR THE PLAINTIFFS. 18 20 LEE THERE IS A LOT OF INFORMATION HERE, AND I HAVE SOME QUESTIONS. THERE IS AN INDICATION OF 1,634 ELIGIBLE. THAT'S SIMILAR TO WHERE WE WERE LAST TIME WITH 1606. YOUR HONOR, THAT IS 1637 TODAY. 23 MS. FABIAN: 24 THE COURT: 25 AND THERE IS AN INDICATION OF SUCCESSFUL OKAY. JULY 24, 2018 Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 5 of 53 1 REUNIFICATION OF 879. 2 MS. FABIAN: 3 THE COURT: 4 1,012. THAT SHOWS HOW FLUID AND ACTIVE OF THOSE 1,012, HOW MANY ARE DETAINED TOGETHER AND HOW MANY ARE BEING PAROLED INTO THE COMMUNITY? 7 MS. FABIAN: 8 THE COURT: 9 MS. FABIAN: 10 THAT'S 1,012 TODAY. THE PROCESS IS. 5 6 4 I DON'T HAVE THOSE NUMBERS, YOUR HONOR. DO YOU HAVE AN APPROXIMATION? I DON'T THINK I DO AT THIS TIME, YOUR HONOR. 11 THE COURT: THE INDICATION ALSO IS THAT ALL 12 POTENTIAL CLASS MEMBERS HAVE BEEN -- HAVE COMPLETED THEIR 13 INTERVIEW, AND THE CHILD FILE REVIEW HAS BEEN COMPLETED AS 14 WELL. AM I CORRECT? 15 MS. FABIAN: 16 THE COURT: THAT'S CORRECT. SO THE PROCESS, AT THIS POINT, INVOLVES 17 APPROXIMATELY 1,417 PEOPLE, AND THEN THE REUNIFICATION IS 18 PROGRESSING AS TO ALL. 19 MS. FABIAN: 20 THE COURT: THAT'S CORRECT. THE INFORMATION THAT WE DON'T HAVE IS 21 HOW MANY ARE BEING DETAINED TOGETHER, HOW MANY ARE BEING 22 PAROLED. I DON'T HAVE THAT, NO, YOUR HONOR. 23 MS. FABIAN: 24 I CAN SEE FROM MY CLIENTS WHAT WE CAN PUT ON THAT IN 25 THE NEXT STATUS REPORT, IF THAT'S SOMETHING THE COURT IS JULY 24, 2018 Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 6 of 53 1 INTERESTED IN. YES. WE WILL GET TO THAT IN A MOMENT. 2 THE COURT: 3 LET'S KEEP GOING DOWN THE LIST. THEN THE INITIAL DETERMINATION BY THE GOVERNMENT OF 4 5 5 PARENTS WHO ARE INELIGIBLE, THERE IS 917? THAT'S 914. 6 MS. FABIAN: 7 THE COURT: 8 THERE WERE TWO PARENTS IN CRIMINAL CUSTODY, THEY ARE 9 NOW OUT? 10 11 MS. FABIAN: THE COURT: 16 17 18 19 BECAUSE THE INDICATION IS THEY ARE NOW PARENTS WHO WAIVED REUNIFICATION. IT WAS 136 IT IS NOW 130? MS. FABIAN: IT IS NOW 127. MY UNDERSTANDING IS SOME MAY HAVE CHANGED THEIR MIND. THE COURT: OKAY. SO WHERE THEY WANT TO BE REUNIFIED. 20 MS. FABIAN: 21 THE COURT: CORRECT. THAT COULD BE FOR A VARIETY OF REASONS, 22 EITHER TO PURSUE IMMIGRATION ISSUES TOGETHER -- COULD BE A 23 VARIETY OF REASONS. 24 25 I ZERO. 14 15 I DON'T KNOW HOW THAT NUMBER MOVED. AM NOT SURE IF THAT -- WHERE THAT CHANGED. 12 13 NOW 914. MS. FABIAN: I EXPECT, YOUR HONOR, THAT A LOT OF TIMES THE DECISION TO WAIVE REUNIFICATION WOULD BE BASED ON JULY 24, 2018 Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 7 of 53 6 1 DESIRE TO HAVE THE CHILD BE RELEASED TO ANOTHER RELATIVE SO -- 2 AND PERHAPS PURSUE RELIEF SEPARATELY, SO THEY MAY CHANGE THAT 3 DECISION FOR A VARIETY OF REASONS. ADULTS WITH PRECLUDING CRIMINAL HISTORY, 4 THE COURT: 5 THAT WAS AT 91, IT IS NOW 64. 6 MS. FABIAN: SO WE ARE 27 CLEARED? THAT IS MY UNDERSTANDING. THAT NUMBER 7 INCLUDED WHAT WE, I THINK, CALLED THE AMBER CATEGORY, FOLKS 8 WHO HAD INITIALLY BEEN DETERMINED TO HAVE A CRIMINAL RECORD 9 BUT THEN UPON EVALUATION IT WAS DETERMINED THAT THEY WERE 10 CLEARED FOR REUNIFICATION. OKAY. 11 THE COURT: 12 THE NEXT CATEGORY INDICATES ADULTS NOT IN THE UNITED 13 14 STATES UNDER REVIEW, 463. MS. FABIAN: WHAT DOES THAT MEAN? THE RECORDS RECORDED -- REFLECT 463 15 WITH A CODE THAT SUGGESTS THAT THEY MAY HAVE DEPARTED THE 16 UNITED STATES. 17 WHAT I UNDERSTAND WE ARE DOING IS TAKING A CLOSER 18 LOOK AT THOSE TO DETERMINE IF THAT IS, IN FACT, WHAT THE CODE 19 INDICATES, OR IF THERE IS SOMETHING ELSE INDICATED BY THAT 20 CODE, WHETHER IT IS -- SO IT MAY BE A REMOVAL OR IT MAY BE A 21 VOLUNTARILY DEPARTURE THAT IS UNRELATED TO A SEPARATION, OR IT 22 MAY BE A PRIOR CODE. 23 I UNDERSTAND IT THE CLIENT IS GOING THROUGH THOSE TO DETERMINE 24 EXACTLY WHAT THAT CODE MEANS IN EACH OF THOSE CASES. 25 THE COURT: SO WE ARE JUST GOING THROUGH THOSE -- AS WOULD THAT NUMBER REFLECT PARENTS WHO JULY 24, 2018 Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 8 of 53 1 HAVE BEEN REMOVED OR VOLUNTARILY DEPARTED WITHOUT THEIR CHILD? 2 3 MS. FABIAN: DETERMINING. 4 IT MAY, YES. THAT IS WHAT WE ARE THAT IS WHAT WE ARE REVIEWING RIGHT NOW. THE COURT: DO YOU HAVE ANY INDICATION WHAT THE 5 NUMBERS MIGHT BE OF PARENTS WHO HAVE BEEN REMOVED OR 6 VOLUNTARILY DEPARTED WITHOUT THEIR CHILDREN? 7 ESTIMATE OF WHAT THAT PERCENTAGE WOULD BE OF THESE 463? 8 9 7 MS. FABIAN: I DON'T, YOUR HONOR. DO YOU HAVE AN I THINK IT WOULD ULTIMATELY BE SOMETHING LESS THAN THE 463, BUT IT COULD BE 10 THAT WHOLE NUMBER. 11 BEING ABLE TO LOOK AT EACH INDIVIDUALLY TO SEE WHAT THE 12 NUMBERS MEAN. 13 I THINK IT IS JUST A MATTER OF THE AGENCY THE COURT: THIS, TO BE CLEAR, COULD BE THE CATEGORY 14 WHERE PARENTS AND CHILDREN WERE SEPARATED, EITHER BEFORE OR 15 DURING THE ZERO TOLERANCE POLICY, AND THERE WASN'T 16 INFRASTRUCTURE IN PLACE TO DETERMINE, AT SEPARATE TIMES, WHERE 17 THE PARENT WAS VERSUS THE CHILD, WHICH THEN RESULTED IN A 18 NUMBER OF PARENTS BEING REMOVED WITHOUT CHILD. 19 20 MS. FABIAN: IT COULD BE, YOUR HONOR. AM I CORRECT? THAT COULD FALL UNDER THAT CATEGORY. 21 THE COURT: THIS NUMBER COULD BE VERY SIGNIFICANT. 22 THERE IS 463 HERE, AND I THINK THERE WERE 12 WITH THE 23 UNDER-FIVE. 24 25 MS. FABIAN: WAS. I DON'T REMEMBER WHAT THE FINAL NUMBER THAT SOUNDS RIGHT, I THINK IT WAS 12. JULY 24, 2018 Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 9 of 53 1 2 THE COURT: WE WILL COME BACK TO THAT IN A MOMENT. THE NEXT CATEGORY IS FURTHER EVALUATION, 260. 3 4 ALL RIGHT. WHAT DOES THIS CATEGORY MEAN? 5 MS. FABIAN: THOSE, AS I UNDERSTAND IT, ARE CHILDREN 6 THAT FOR WHOM O.R.R. IS DOING FURTHER EVALUATION. 7 THAT THE PARENT WAS RELEASED AND O.R.R. HASN'T LOCATED THE 8 PARENT. 9 RELEASED TO ANOTHER SPONSOR. 10 8 THAT MAY BE IT MAY BE THAT THE CHILD HAD BEEN POTENTIALLY SO I THINK THOSE ARE CHILDREN FOR WHOM O.R.R. 11 DOESN'T -- CAN'T CONCLUSIVELY PLACE THEM IN ONE OF THE OTHER 12 CATEGORIES AND SO THEY ARE REVIEWING TO DETERMINE IF THEY ARE, 13 IN FACT, CHILDREN OF CLASS MEMBERS. 14 REUNIFICATION IS REQUIRED OR POSSIBLE. 15 16 17 18 19 20 21 THE COURT: AND THEN, IF SO, WHETHER SO OF THESE 260, A NUMBER OF THESE MAY BE CLASS MEMBERS RELEASED INTO THE INTERIOR. MS. FABIAN: SOME MAY BE, THAT IS MY UNDERSTANDING. AND SOME MAY, IN FACT, NOT BE THE CHILDREN OF CLASS MEMBERS. THE COURT: SO THE 217 NUMBER OF CLASS MEMBERS RELEASED INTO THE INTERIOR MAY INCREASE. MS. FABIAN: I THINK THAT IS RIGHT. AS I UNDERSTAND 22 IT, 217 ARE THAT O.R.R. KNOWS ABOUT AND IS IN THE PROCESS OF 23 REUNIFICATION. 24 25 THE COURT: AND THEN YOU HAVE INDICATED OF THIS 260 MANY OF THESE CHILDREN HAVE BEEN DISCHARGED BY O.R.R. IN JULY 24, 2018 Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 10 of 53 1 APPROPRIATE CIRCUMSTANCES. 2 MS. FABIAN: 9 WHAT DOES THAT MEAN? IT MEANS THAT THEY MAY HAVE BEEN 3 RELEASED TO OTHER FAMILY MEMBERS, AND THAT MAY BE BECAUSE 4 EITHER THEY HAD JUST BEEN -- THE PARENT HAD DESIGNATED THEM TO 5 BE RELEASED TO OTHER CLASS MEMBERS AT CERTAIN TIMES. 6 ALL OF THOSE 260 REMAIN IN O.R.R. CUSTODY, SOME MAY HAVE BEEN 7 RELEASED TO OTHER FAMILY MEMBERS. 8 SOME CASES, BE CONTINUED EVALUATION TO SEE IF THAT FURTHER 9 ACTION TOWARDS REUNIFICATION WOULD BE NECESSARY. 10 THE COURT: SO NOT BUT THERE WOULD STILL, IN SO OF THESE 260, SOME OF THESE PARENTS 11 MAY FALL INTO THE CATEGORY OF PARENTS WHO HAVE BEEN RELEASED 12 INTO THE INTERIOR, AND SOME OF THEM MAY FALL INTO THE CATEGORY 13 OF HAVING BEEN REMOVED ALREADY. 14 MS. FABIAN: NOT THAT OUR RECORDS CURRENTLY 15 INDICATE, BUT I CAN'T SAY FOR SURE THAT THAT WOULDN'T BE THE 16 CASE. 17 HAVE RIGHT NOW AS ANY INDICATORS FOR THE PARENTS. BUT THE RECORDS DON'T INDICATE THAT BASED ON WHAT WE 18 THE COURT: WHAT DO THE RECORDS INDICATE? HOW CAN 19 YOU RULE OUT THAT OF THIS 260 A CERTAIN PERCENTAGE HAVE NOT 20 ALREADY BEEN REMOVED, AS OPPOSED TO SAYING IT APPEARS THIS 260 21 MAY INCLUDE THOSE RELEASED INTO THE INTERIOR, BUT WE ARE 22 PRETTY SURE IT DOESN'T INCLUDE THOSE WHO HAVE ALREADY BEEN 23 REMOVED. 24 25 MS. FABIAN: AS I UNDERSTAND IT, THE CHILDREN HAVE BEEN LINKED TO A PARENT BY A-NUMBER. JULY 24, 2018 SO FOR THE 463 THE Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 11 of 53 10 1 PARENT'S A-NUMBER IS LINKED TO A CODE THAT SUGGESTS THAT THEY 2 POTENTIALLY -- THAT POTENTIALLY COULD INDICATE REMOVAL OR 3 POTENTIALLY VOLUNTARY DEPARTURE. 4 A-NUMBER THAT IS LINKED DOES NOT CONTAIN THAT CODE. 5 THE COURT: 6 MS. FABIAN: SO FOR THE 260, THE PARENT'S OKAY. IT LINKS TO SOME OTHER CODES THAT ARE 7 UNDER FURTHER EVALUATION TO DETERMINE IF THAT MEANS THEY HAVE 8 BEEN RELEASED AND NOT LOCATED OR SOME OF THE OTHER THINGS I 9 INDICATED. OKAY. THANK YOU. 10 THE COURT: 11 FINAL ORDER OF REMOVAL, THERE ARE 900. 12 13 14 15 16 17 18 CURRENT NUMBER OR IS THAT -- DO YOU HAVE A DIFFERENT NUMBER? MS. FABIAN: THE COURT: MS. FABIAN: AND OF THAT NUMBER, DO WE KNOW HOW MANY I BELIEVE THERE HAVE BEEN 20 REMOVALS, BUT I WOULD HAVE TO CONFIRM THAT. 20 MS. FABIAN: 20 -20 REMOVALS OF -- I BELIEVE THAT IS 20 AFTER REUNIFICATION, BUT I WOULD HAVE TO CONFIRM THAT. THE COURT: 20 AFTER REUNIFICATION. SO THAT 23 WOULD -- DOES THAT MEAN 880 WERE REMOVED PRIOR TO 24 REUNIFICATION? 25 I WERE REMOVED WITH THEIR CHILDREN VERSUS WITHOUT? THE COURT: 22 THAT WAS THE NUMBER AS OF YESTERDAY. DID NOT GET AN UPDATED NUMBER TODAY. 19 21 IS THAT THE MS. FABIAN: I AM SORRY. THOSE 900 ARE NOT REMOVED. JULY 24, 2018 Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 12 of 53 11 1 THOSE -- THAT 900 WOULD SPAN -- I WOULD SAY THAT 900 IS MOSTLY 2 GOING TO BE FOUND IN THE TOP CATEGORY -- 3 THE COURT: 4 MS. FABIAN: YES. -- OF THE POTENTIAL CLASS MEMBERS 5 ELIGIBLE FOR REUNIFICATION, BUT THAT DOES NOT INDICATE THAT 6 THEY HAVE BEEN REMOVED YET. 7 THE COURT: OKAY. SO YOU HAVE INDICATED THAT 1,012 8 CLASS MEMBERS HAVE BEEN REUNIFIED, AND 900 ARE SUBJECT TO A 9 FINAL ORDER OF REMOVAL. 10 WOULDN'T THAT THEN INDICATE THAT AT LEAST 900 OF THE 11 1,012 ARE DETAINED, WITH CHILD, IN ICE DETENTION? 12 NUMBERS RELEASED INTO THE COMMUNITY WOULD BE VERY SMALL. 13 MS. FABIAN: NOT NECESSARILY. SO THE A FINAL -- A FINAL 14 ORDER AS USED IN THIS CATEGORY IS ACTUALLY DIFFERENT FROM AN 15 EXECUTABLE FINAL ORDER. 16 ORDER MIGHT HAVE ADDITIONAL STEPS IN THEIR IMMIGRATION REVIEW. 17 AND SO I CAN'T -- I DON'T HAVE THE NUMBERS NECESSARILY TO SAY 18 IF THEN FOLKS AT THAT STAGE HAVE BEEN RELEASED. 19 DOESN'T CORRELATE THAT ALL OF THOSE 900 HAVE -- IN FACT IT IS 20 NOT TRUE THAT ALL OF THOSE 900 HAVE EXECUTABLE FINAL ORDERS. 21 SO IN SOME CASES SOMEONE WITH A FINAL BUT IT I WOULD ALSO SAY THAT THAT 900 IS REALLY WITHIN THE 22 1600 NUMBER IN TERMS OF WHETHER ALL OF THOSE HAVE BEEN 23 REUNIFIED. 24 400 STILL AWAITING REUNIFICATION. 25 SOME OF THEM MAY ALSO BE WITHIN THE APPROXIMATELY THE COURT: OKAY. WE MAY HAVE ALREADY TOUCHED ON JULY 24, 2018 Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 13 of 53 1 SOME OF THESE, BUT THERE ARE A FEW OTHER QUESTIONS ON THE 2 UPDATED NUMBERS. 3 YET. 12 AND MAYBE WE DON'T HAVE THIS INFORMATION 4 HOW MANY OF THE PARENTS THAT HAVE BEEN REUNITED ARE 5 SCHEDULED TO BE -- OR ARE SCHEDULED TO BE REUNITED HAVE FINAL 6 REMOVAL ORDERS? 7 IS THAT THE 900? MS. FABIAN: MOST LIKELY, YES. SO I WOULD SAY THAT 8 THAT 900 COMES OUT OF THAT, THE TOP BULLET POINT, WHICH IS 9 INDIVIDUALS ELIGIBLE FOR REUNIFICATION. OF THOSE THAT HAVE BEEN REUNIFIED, HOW 10 THE COURT: 11 MANY HAVE BEEN REMOVED ALREADY? 12 MS. FABIAN: 13 THAT IS MY BEST GUESS, BUT I WOULD WANT TO CONFIRM BEFORE. 14 15 I THINK YOU SAID MAYBE 20. THE COURT: DO YOU KNOW, OF THAT NUMBER, HOW MANY WERE REMOVED WITH THEIR CHILDREN? 16 MS. FABIAN: 17 THE COURT: 18 MS. FABIAN: I DON'T. OKAY. I THINK I WOULD SAY, MORE ACCURATELY, 19 THE STATISTIC I HAVE IS THAT 20 CLASS MEMBERS, APPROXIMATELY 20 20, WERE REMOVED AFTER THE COURT'S ORDER, SO I CAN'T SAY AMONG 21 THOSE WHICH WERE REMOVED WITH THEIR CHILDREN OR WITHOUT. 22 WOULD HAVE ALL BEEN SUBJECT TO A WAIVER SUBJECT TO THE 23 PRELIMINARY INJUNCTION IF THEY WERE REMOVED WITHOUT THEIR 24 CHILDREN. 25 WERE REMOVED WITH OR WITHOUT THEIR CHILDREN. THEY BUT I DON'T HAVE THE NUMBER AS TO HOW MANY OF THOSE JULY 24, 2018 Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 14 of 53 1 THE COURT: 13 AND THERE IS A 136 PARENTS THAT WAIVED 2 REUNIFICATION AS OF THE PRESENT TIME. 3 IT IS 127 -- OF THOSE 127 WAIVED REUNIFICATION AFTER RECEIVING 4 THE CLASS NOTICE? 5 MS. FABIAN: DO YOU KNOW OF THOSE -- SO THIS IS -- I THINK I EXPLAINED THIS 6 AT THE LAST HEARING AS WELL. THERE IS REALLY -- THIS NUMBER 7 IS INDIVIDUALS WHO WAIVED REUNIFICATION AT THEIR INTERVIEW 8 WITH HHS, SO THAT IS NOT -- DOES NOT CORRELATE TO INDIVIDUALS 9 NECESSARILY HAVING A FINAL ORDER OF REMOVAL. THAT IS, AS 10 COMMANDER WHITE EXPLAINED, THAT FINAL STEP BEFORE 11 REUNIFICATION IS ENSURING THAT THE PARENT IN FACT WANTS TO BE 12 REUNIFIED. 13 REUNIFICATION AT THAT STEP. SO THAT NUMBER IS FOLKS THAT DECLINED RELATEDLY I THINK YOU WILL SEE IN TODAY'S FILING BY 14 15 THE GOVERNMENT IN THE DECLARATION THAT ICE HAS IDENTIFIED 85 16 INDIVIDUALS WHO HAVE DECLINED -- HAVE WAIVED REUNIFICATION 17 WITH A FINAL ORDER ON THE NOTICE FORM. 18 WHETHER THERE IS -- THERE IS LIKELY OVERLAP BETWEEN THAT 85 19 AND SOME NUMBER OF THIS 127, BUT IT IS TWO DIFFERENT PARTS OF 20 THE PROCESS. 21 THE COURT: OKAY. I HAVEN'T -- SO FROM THE GOVERNMENT'S 22 PERSPECTIVE, THEN, OF THE ELIGIBLE CLASS MEMBERS, 23 REUNIFICATION WILL BE COMPLETED BY THURSDAY, OR VERY CLOSE TO 24 IT. 25 MS. FABIAN: THAT'S MY UNDERSTANDING. JULY 24, 2018 Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 15 of 53 1 THE COURT: 14 BECAUSE EVERYONE HAS BEEN CLEARED, AND 2 1,012 HAVE ALREADY BEEN REUNIFIED AND THE BALANCE ARE 3 SCHEDULED, TRANSPORTATION PENDING, WHICH I ASSUME WOULD OCCUR 4 BETWEEN NOW AND THURSDAY. 5 MS. FABIAN: I THINK MY COLLEAGUE MAY SPEAK TO THIS 6 A LITTLE BIT. THERE ARE SOME ISSUES WITH STAYS OR OTHER 7 INJUNCTIONS BEING ISSUED IN OTHER COURTS THAT MAY IMPEDE THAT 8 PROCESS FOR SOME SMALL NUMBER OF INDIVIDUALS. 9 MOST PART -- BUT FOR THE THAT'S THE NEW YORK SITUATION? 10 THE COURT: 11 MS. FABIAN: 12 THE COURT: 13 BUT ASIDE FROM THAT, THAT WOULD BE A VERY SMALL 14 15 YES. LET'S ADDRESS THAT IN A MOMENT. GROUP OF CHILDREN. MS. FABIAN: I AM NOT AWARE -- THE ONLY OTHER ISSUE 16 I HAD HEARD WAS POTENTIAL WEATHER-RELATED TRAVEL ISSUES. 17 OTHER THAN THAT I HAVE NOT HEARD OF ANY IMPEDIMENTS TO 18 COMPLETING THE PROCESS. 19 THE COURT: OKAY. BUT AND THEN AS TO THE CATEGORY, I 20 THINK IT IS 914, OF INELIGIBLE, THAT'S THE CATEGORY WHERE THE 21 PLAINTIFFS, WITH THE APPROPRIATE INFORMATION, CAN EITHER AGREE 22 OR IF THERE IS DISAGREEMENT BRING IT TO THE COURT'S ATTENTION 23 AT A LATER TIME. 24 25 MS. FABIAN: I THINK THAT IS RIGHT. WE WILL NEED TO GATHER THAT INFORMATION AND GIVE IT TO PLAINTIFFS, AND WE ARE JULY 24, 2018 Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 16 of 53 1 WORKING ON THAT. 2 FURTHER AS TO THE PROCESS. AND I THINK THEN WE CAN MEET AND CONFER AND THEN ON THE LIST, THE INFORMATION, 3 THE COURT: 4 LET'S RUN THROUGH THAT QUICKLY. THERE IS SUPPOSED TO BE A LIST OF CLASS MEMBERS WHO 5 6 WAIVED REUNIFICATION PRIOR TO REMOVAL, AND THERE IS AN 7 INDICATION THAT THAT IS COMING. 8 MS. FABIAN: 9 15 WHAT'S THE PROFFER THERE? I THINK WE HAVE GIVEN A LIST, AND I THINK I UPDATED IT EARLIER TODAY, AND THAT IS OF THE 127 WHO 10 WAIVED DURING THE HHS INTERVIEW PROCESS THE -- I KNOW 11 PLAINTIFFS HAVE ASKED FOR THE INDIVIDUALS WHO WAIVED ON THE 12 FORM, THE COURT ORDERED FORM. 13 COMPLETED, AND I HOPE VERY SHORTLY WE WILL BE ABLE TO GIVE 14 THEM THAT LIST. 15 16 THE COURT: AND THAT SEEMS TO NOW HAVE BEEN AND THAT WOULD BE DONE -- YOU ARE IN A POSITION TO DO THAT, FOR EXAMPLE BY TOMORROW SOMETIME? 17 I HAVE AN EMAIL OUT TO CONFIRM THAT, MS. FABIAN: 18 BUT AS REFLECTED IN OUR DECLARATION FILED THIS MORNING, IT 19 APPEARS THAT WE HAVE IDENTIFIED THOSE 85 INDIVIDUALS, SO IT 20 SHOULD BE WE -- SHOULD BE ABLE TO PROVIDE THAT LIST VERY 21 SHORTLY. 22 23 24 25 THE COURT: THEN HOW ABOUT THE LIST OF CLASS MEMBERS WHO HAVE BEEN REMOVED. MS. FABIAN: WHERE ARE WE ON THAT? THAT'S THE LIST THAT'S UNDER FURTHER REVIEW, AS I JUST INDICATED. I HAVE NOT RECEIVED A TIMETABLE JULY 24, 2018 Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 17 of 53 1 FOR THAT. 2 THAT WE COMMITTED TO DOING IT ON FRIDAY, AND THERE WAS A 3 MISUNDERSTANDING BETWEEN MYSELF AND MY CLIENT AS FAR AS WHAT 4 WAS BEING ASKED FOR. 5 TOGETHER WHAT THEY CAN AS QUICKLY AS POSSIBLE, BUT I DON'T 6 HAVE THE TIMETABLE FOR THAT FROM THEM. 7 I HAVE ASKED FOR IT AS SOON AS POSSIBLE. 16 THE COURT: I KNOW SO I UNDERSTAND THAT THEY ARE PULLING IF THE COURT WERE TO ISSUE AN ORDER AS 8 TO WHEN THAT LIST SHOULD BE PRODUCED, DO YOU HAVE A POSITION 9 AS TO WHAT CAN BE DONE? BECAUSE WHEN WE DISCUSSED THIS LAST 10 THERE WAS INDICATION THAT THE LIST WOULD BE COMING, I THINK 11 FRIDAY. 12 PRODUCING THE LIST ON MONDAY, WHICH WOULD HAVE BEEN YESTERDAY. 13 AND THEN THERE WAS SOME DISCUSSION ABOUT MAYBE MS. FABIAN: I HOPE TO HAVE A LIST TONIGHT THAT 14 WOULD HELP ME BETTER UNDERSTAND WHAT THAT LIST WILL CONTAIN. 15 SO WHAT -- I THINK WHAT I CAN SAY IS I HOPE THAT BY TOMORROW 16 WE COULD PROVIDE SOME INFORMATION. 17 RIGHT NOW IS EXACTLY WHAT THAT WILL CONTAIN BECAUSE I WON'T 18 KNOW UNTIL I SEE THAT LATER TODAY. 19 THE COURT: WHAT I CAN'T COMMIT TO AND THEN THERE WAS A LIST OF CLASS 20 MEMBERS WHO HAVE BEEN RELEASED FROM ICE CUSTODY. 21 INDICATING YOU NEED ADDITIONAL TIME ON THAT. 22 MS. FABIAN: YOU ARE I THINK SOME OF THAT -- AS I NOW 23 UNDERSTAND BETTER, I THINK SOME OF THAT MAY BE CONTAINED IN 24 TERMS OF THE -- THOSE REFLECTED IN THE TOP BULLET POINT. 25 THINK SOME OF THOSE MAY BE REFLECTED IN WHAT HAS ALREADY BEEN JULY 24, 2018 I Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 18 of 53 17 1 PRODUCED TO PLAINTIFFS. 2 MIGHT FALL IN THE BOTTOM CATEGORY, WHICH IS THE FURTHER REVIEW 3 CATEGORY OR THOSE INDIVIDUALS THAT WE CAN'T LOCATE, I THINK 4 THAT I DON'T HAVE YET. 5 SOON AS WELL. 6 IN TERMS OF THOSE INDIVIDUALS WHO AND I HOPE TO KNOW MORE ABOUT THAT AND I KNOW THAT IS THE CATEGORY THAT PLAINTIFFS ARE 7 INTERESTED IN, AND I SAID TO THEM THAT WE WILL CONTINUE TO 8 WORK TO GET THAT TO THEM AS SOON AS WE CAN. 9 THE COURT: YOU COULD PROVIDE A LIST, THOUGH, FOR 10 EXAMPLE THE PARENTS YOU KNOW WHO HAVE BEEN RELEASED FROM ICE 11 CUSTODY, YOU CAN PROVIDE THAT SPECIFIC INFORMATION. 12 YOU COULD ALSO ARTICULATE HOW MANY PARENTS YOU DON'T KNOW 13 WHERE THEY ARE. 14 MS. FABIAN: 15 THE COURT: AND THEN I THINK THAT IS RIGHT, YOUR HONOR. OKAY. WHAT WOULD BE THE EXPLANATION FOR 16 NOT KNOWING WHERE THE PARENTS ARE? 17 BECAUSE DOJ DIDN'T HAVE THE INFORMATION, OR DHS DOESN'T HAVE 18 THE INFORMATION SO THERE IS AN INABILITY TO GIVE IT TO HHS AND 19 THEN TO GOVERNMENT COUNSEL HERE TODAY? 20 EXPLANATION? 21 MS. FABIAN: WHAT HAPPENED? IS THIS OR WHAT IS THE I THINK THAT IF THE PARENT WAS 22 TRANSFERRED INTO ANY SORT OF STATE CUSTODY, FOR EXAMPLE IF 23 THERE WAS A WARRANT OUT FOR STATE CRIMINAL ACTIVITY AND THE 24 PARENT WAS TRANSFERRED THERE, THAT THAT PARENT MAY HAVE BEEN 25 THEN RELEASED WITHOUT NOTICE TO THE GOVERNMENT. JULY 24, 2018 SO IF THAT Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 19 of 53 18 1 PATIENT DID NOT THEN COME FORWARD TO HHS TO SEEK REUNIFICATION 2 HHS MIGHT NOT BE AWARE OF THEIR WHEREABOUTS OR HOW TO CONTACT 3 THEM. RELATEDLY, IF THEY WERE RELEASED BY -- RELEASED FROM 4 5 CRIMINAL CUSTODY, AND EVEN FEDERAL CRIMINAL CUSTODY BUT DID 6 NOT GO TO ICE CUSTODY THE SAME SITUATION COULD HAVE OCCURRED. 7 SO I THINK IT IS MOST LIKELY INDIVIDUALS WHO WERE RELEASED 8 FROM SOME FORM OF CUSTODY AND -- MOST LIKELY PRIOR TO THE 9 ORDER BUT THEN DIDN'T REACH OUT TO O.R.R. TO MAKE CONTACT FOR 10 REUNIFICATION. 11 THE COURT: MANY OF THESE PARENTS COULD BE IN ICE 12 CUSTODY, BUT BECAUSE OF THE LACK OF COMMUNICATION BETWEEN AND 13 AMONG THE AGENCIES IT IS UNCERTAIN WHERE THESE PARENTS 14 ACTUALLY ARE, WHETHER THEY ARE WITH ICE OR WHETHER THEY ARE 15 WITH B.O.P. OR WHETHER THEY HAVE BEEN RELEASED? 16 17 MS. FABIAN: IF THEY REMAIN IN ICE CUSTODY I THINK THAT WE WOULD HAVE IDENTIFIED THEM BY NOW. IF THEY ARE IN B.O.P. CUSTODY, IT IS NOT IN THE ICE 18 19 RECORDS BUT THAT IS SOMETHING THAT AS WE NARROW THE NUMBER 20 DOWN -- THERE IS NO WAY TO SIMPLY RUN THAT NUMBER, BUT AS WE 21 NARROW THE NUMBER DOWN THAT IS A PLACE WE CAN CHECK. SIMILARLY, IF WE WERE TO TRY TO REVIEW STATE CUSTODY 22 23 IT IS A MATTER OF REALLY HAVING TO CHECK ON AN INDIVIDUALIZED 24 BASIS. 25 THE COURT: SO BY PROCESS OF ELIMINATION, THESE JULY 24, 2018 Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 20 of 53 19 1 PARENTS ARE LIKELY NOT IN ICE DETENTION BECAUSE IF THEY WERE 2 YOU WOULD KNOW. 3 THAT. 4 CUSTODY, EITHER B.O.P. OR THE STATE CUSTODY. 5 IF THEY WERE RELEASED FROM ICE YOU WOULD KNOW SO IT WOULD APPEAR THEY ARE EITHER IN STATE OR FEDERAL I THINK THAT WOULD BE MY BEST GUESS, MS. FABIAN: 6 YOUR HONOR, YES. 7 WHERE WE WEREN'T NOTIFIED AND THEY HAVEN'T THEN COME FORWARD. 8 9 OR RELEASED FROM ONE OF THOSE IN A MANNER THE COURT: OKAY. IF THERE WAS COMMUNICATION AMONG THE THREE AGENCIES, B.O.P. UNDER DOJ, ICE UNDER DHS, AND THEN 10 O.R.R. UNDER HHS, IT WOULD BE -- YOU WOULD KNOW WHERE THE 11 PARENT IS. I DON'T THINK THAT IN THOSE CASES IT 12 MS. FABIAN: 13 WOULD BE A COMMUNICATIONS ISSUE. 14 AN INDIVIDUAL IS IN -- WELL, IN B.O.P. CUSTODY THERE IS -- 15 BECAUSE ICE WOULD LIKELY PLACE A DETAINER AND THAT DETAINER 16 WOULD BE HONORED BY THE FEDERAL -- BY B.O.P., THAT THAT WOULD 17 LIKELY BE -- WE WOULDN'T LOSE TRACK. 18 I THINK FOR THE MOST PART IF SO THERE IS A SYSTEM OF COMMUNICATION THERE THAT I 19 THINK WOULD LIKELY NOT LOSE TRACK OF PARENTS IN THAT 20 SITUATION, BUT I THINK THE MOST LIKELY SCENARIO WOULD BE FOR 21 INDIVIDUALS WHO GO INTO STATE CUSTODY. OKAY. 22 THE COURT: 23 MR. GELERNT, YOU HAVE BEEN SITTING PATIENTLY. 24 MR. GELERNT: 25 YOU ACTUALLY ASKED JUST ABOUT EVERYTHING WE WERE GOOD AFTERNOON, YOUR HONOR. JULY 24, 2018 Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 21 of 53 1 20 GOING TO ASK ABOUT, SO I DON'T HAVE THAT MUCH. YOU KNOW, THE INFORMATION YOU ASKED ABOUT WE 2 3 CERTAINLY WANT AND WE CERTAINLY, AS YOUR HONOR SEEMED TO BE 4 SUGGESTING, WILL TAKE PIECEMEAL INFORMATION BETTER THAN 5 NOTHING. 6 I JUST WANTED TO ASK ABOUT A COUPLE OF THINGS. 7 THE 20 WHO HAVE BEEN, I THINK REUNITED AND 8 REMOVED -COUNSEL, MS. FABIAN. 9 10 MS. FABIAN: 11 MR. GELERNT: 12 THE 20 WHO WERE REMOVED, YOU MENTIONED THOSE WERE REUNITED AND REMOVED AT SOME POINT. 13 14 SORRY. MS. FABIAN: THOSE ARE REFLECTED ON THE CHART THAT WE PRODUCED TO YOU YESTERDAY. WE HAVE NAMES FOR EACH OF THOSE 20? 15 MR. GELERNT: 16 MS. FABIAN: 17 MR. GELERNT: 18 AND THE OTHER QUESTION I WANTED TO ASK IS ABOUT THE YOU SHOULD, YES. OKAY. 19 37. 20 BEEN UNABLE TO IDENTIFY WHERE PARENTS ARE. 21 I THINK YOUR HONOR WAS ASKING ABOUT THE GOVERNMENT HAVING BUT MY UNDERSTANDING -- AND CORRECT ME IF I AM 22 WRONG -- IS THAT THERE IS STILL 37 KIDS FOR WHOM THE IDENTITY 23 OF THE PARENT HAS NOT BEEN ESTABLISHED AT THIS POINT, OR IS 24 THAT WRONG? 25 MS. FABIAN: I CAN'T CONFIRM THAT IT IS STILL JULY 24, 2018 Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 22 of 53 1 EXACTLY THAT NUMBER. 2 NOT BEEN MATCHED TO A PARENT'S A-NUMBER. 3 21 THERE WERE SOME NUMBER OF MINORS WHO HAD AS DISCUSSED A FEW TIMES THAT IS LIKELY BECAUSE THE 4 OVER-INCLUSIVE NATURE OF O.R.R.'S ORIGINAL REVIEW AND 5 IDENTIFICATION OF POTENTIAL CHILDREN OF CLASS MEMBERS MEANS 6 THOSE PARENTS -- THOSE CHILDREN ARE IN FACT UAC'S. 7 THERE IS 20-SOMETHING THAT ARE CURRENTLY BELIEVED TO BE UAC'S, 8 BUT HAVEN'T CONFIRMED THAT SO WE HAVEN'T MOVED THEM OUT YET. 9 SO THERE IS SOME NUMBER THAT HAS NOT BEEN LINKED TO -SO THAT NUMBER, THE 37 -- 10 THE COURT: 11 IS THAT THE NUMBER, 37? 12 MR. GELERNT: 13 THE COURT: 14 15 16 17 18 I KNOW YES, YOUR HONOR. WHAT BUCKET DID YOU PUT THEM IN? ARE THEY IN THE 1637 OR THE 914? THEY WOULD BE IN THE 914, AND LIKELY IN MS. FABIAN: THE FURTHER REVIEW CATEGORY. THE COURT: FURTHER EVALUATION, THE 260 CATEGORY. 260 IS THE NUMBER? 19 MS. FABIAN: YES. 20 THE COURT: OKAY. 21 MR. GELERNT: SO WE WOULD JUST ASK FOR YOU TO 22 CONTINUALLY UPDATE US ON THAT, BECAUSE THAT IS OBVIOUSLY A 23 CONCERNING BUCKET OF CHILDREN. 24 MS. FABIAN: 25 MR. GELERNT: YES. OKAY. JULY 24, 2018 Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 23 of 53 22 1 THEN I JUST WANTED ONE OTHER CLARIFICATION. 2 YOU SAID THAT WE HAD GOTTEN INFORMATION ABOUT THE 3 20. THE ONE THING I WASN'T SURE ABOUT IS, WERE ALL 20 4 REUNIFIED WITH THEIR CHILDREN AND REMOVED TOGETHER WITH THEIR 5 CHILDREN? 6 WE GOT. 7 8 MS. FABIAN: I DON'T BELIEVE IT WAS REFLECTED THERE, AND I WOULD HAVE TO CONFIRM. 9 10 I DON'T THINK THAT WAS REFLECTED ON THE INFORMATION MR. GELERNT: OKAY. I THINK THAT'S -- WELL, I THINK THERE WAS ONE OTHER POINT, YOUR HONOR. I THINK WHEN YOU WERE TALKING WITH THE GOVERNMENT 11 12 ABOUT WHY SOMEONE HAS NOT BEEN FOUND, FROM OUR UNDERSTANDING 13 FROM WHEN WE WERE DEALING WITH THE UNDER-FIVES IS THAT 14 SOMETIMES IF A PARENT HAD BEEN RELEASED THEY LEFT THEIR LAST 15 KNOWN ADDRESS, BUT THE GOVERNMENT HAD NOT BEEN ABLE TO CONTACT 16 THEM. IS THAT STILL A PART OF THE GROUP WHERE THE 17 18 GOVERNMENT HAS NOT BEEN ABLE TO CONTACT THE PARENT. 19 THEY NEVER HAD AN ADDRESS OR DIDN'T KNOW WHEN THEY WERE 20 RELEASED FROM STATE OR FEDERAL CUSTODY, BUT THAT THEY SIMPLY 21 HAVE NOT BEEN ABLE TO CONTACT THEM AFTER THEY WERE RELEASED BY 22 ICE. PRESUMABLY THAT IS SOME OF THIS GROUP. 23 24 25 NOT THAT MS. FABIAN: I AM NOT SURE I UNDERSTAND THE QUESTION. WHAT I CAN SAY IS THAT FOR PARENTS WHO HAVE BEEN JULY 24, 2018 Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 24 of 53 23 1 RELEASED WE HAVE THOSE WHO WE ARE IN CONTACT WITH, AND THEN 2 SOME NUMBER WITH WHOM THE GOVERNMENT HAS NOT YET MADE CONTACT. 3 AND I AM WORKING ON IDENTIFYING THOSE WITH WHOM WE HAVE NOT 4 BEEN IN CONTACT AS THE PRIORITY, AND TO GET YOU THEN ANY LAST 5 KNOWN CONTACT INFORMATION FOR THOSE INDIVIDUALS, BECAUSE THOSE 6 ARE THE ONES THAT I THINK YOU WERE MOST INTERESTED IN. 7 MR. GELERNT: EXACTLY. THOSE ARE THE ONES WHERE THE 8 NGO'S MAY BE ABLE TO HELP. IF YOU ARE NOT ABLE TO CONTACT 9 THEM MAYBE WE KNOW AN AUNT OR SOMEBODY WHO THEN CAN MAKE SURE 10 AND KNOWS THAT THEIR CELL PHONE HAS BEEN TURNED OFF, SOMETHING 11 ALONG THOSE LINES. I THINK THAT IS A CATEGORY OF PEOPLE WHO ICE KNOWS 12 13 ABOUT THEM, KNOWS THEY WERE RELEASED FROM ICE CUSTODY, BUT 14 JUST HAS NOT BEEN ABLE TO MAKE CONTACT WITH THEM IN THE 15 INTERIOR. YES. 16 THE COURT: 17 MR. GELERNT: 18 MS. FABIAN: THANK YOU, YOUR HONOR. I DON'T KNOW THE NUMBER OF THAT, BUT I 19 UNDERSTAND THAT IS A PRIORITY, AND I AM TRYING TO PRIORITIZE 20 THAT. 21 22 23 24 25 THE COURT: MR. GELERNT, IF I COULD ASK YOU ANOTHER QUESTION. WE MAY HAVE COUNSEL FROM NEW YORK ON THE PHONE, BUT THIS IS A ONE-WAY CONVERSATION PRESENTLY. MR. GELERNT: RIGHT. JULY 24, 2018 Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 25 of 53 1 THE COURT: SO IF COUNSEL FROM NEW YORK ARE ON THE 2 LINE, I AM INVITING THEM TO CALL BACK AFTER THIS STATUS 3 CONFERENCE CONCLUDES AND WE WILL HAVE A SECOND STATUS 4 CONFERENCE ON THE RECORD. 5 24 CAN YOU -- I KNOW GOVERNMENT COUNSEL IS READY TO 6 ADDRESS SOME OF THIS ISSUE, BUT DO YOU HAVE ANY INFORMATION IN 7 THAT REGARD? 8 9 MR. GELERNT: THAN THE GOVERNMENT. WE DO NOT HAVE ANY MORE INFORMATION I THINK WE PROBABLY HAVE LESS 10 INFORMATION THAN THE GOVERNMENT, BECAUSE THAT IS A SUIT 11 BETWEEN THE NEW YORK FOLKS AND THE GOVERNMENT. 12 AND MY UNDERSTANDING IS IT INVOLVES A VERY SMALL 13 SUBSET OF INDIVIDUALS WHO NEW YORK HAS BEEN REPRESENTING AND 14 WANTS MORE INFORMATION ABOUT, AND I ASSUME AND HOPEFULLY BE 15 ABLE TO NEGOTIATE THAT WITH THE GOVERNMENT. 16 REAL INFORMATION ABOUT THAT. 17 THE COURT: BUT I DO NOT HAVE WHAT ABOUT THE STIPULATION THAT COUNSEL 18 WERE WORKING ON VERY DILIGENTLY AND FOR MANY DAYS THE LAST 19 WEEK, HAS THAT FALLEN THROUGH OR DO YOU STILL HAVE SOME 20 OPTIMISM ABOUT THAT? 21 I RECEIVED THE GOVERNMENT'S BRIEFING THIS MORNING 22 WHICH I HAVE NOT READ BECAUSE I HAVE BEEN IN TRIAL ALL DAY 23 LONG ON ANOTHER MATTER. 24 HAVEN'T GOTTEN INTO THE ACTUAL POINTS AND AUTHORITIES, WHICH I 25 WILL DO LATER TONIGHT. SO I READ THE INTRODUCTION, BUT I JULY 24, 2018 Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 26 of 53 1 2 MR. GELERNT: RIGHT. 25 IT APPEARS THAT THINGS HAVE FALLEN THROUGH. WHAT I WOULD SAY IS, YOUR HONOR, TALKING TO PEOPLE 3 4 ON THE GROUND NOW, AND WE HAVE AN ENORMOUS NUMBER OF 5 AFFIDAVITS WE ARE READY TO PUT IN FOR REPLY IF YOU WOULD LIKE 6 THEM. 7 ABSOLUTELY NEED AT LEAST SEVEN DAYS TO BE COUNSELING THESE 8 FAMILIES. 9 DETENTION CENTER AT ONE TIME. 10 THE COURT: THINGS ARE REALLY A MESS ON THE GROUND, AND WE THE GOVERNMENT IS PUTTING ROUGHLY 900 PEOPLE IN ONE SO OF THIS 900 THAT IS REFERENCED, A 11 FINAL ORDER OF REMOVAL, IT IS YOUR VIEW THAT MOST OF THOSE ARE 12 DETAINED TOGETHER? 13 MR. GELERNT: OUR UNDERSTANDING -- I DON'T KNOW IF 14 IT IS GOING TO BE EXACTLY 900 BUT I KNOW IT SEEMS AS THOUGH 15 SOMEWHERE OVER 700 ARE GOING TO BE PUT IN ONE FACILITY, THE 16 PARENTS OF CHILDREN DETAINED TOGETHER. 17 WAY IN A COUPLE OF DAYS TO PROVIDE MEANINGFUL CONSULTATION. 18 AND THERE SIMPLY NO I WOULD ALSO SAY THE GOVERNMENT HAS -- AND THIS MAY 19 BE SOMETHING WE WANT TO TALK ABOUT AFTER YOU READ THE BRIEF. 20 I WOULD JUST SAY THAT THE GOVERNMENT HAS PUT IN THEIR VERSION 21 OF THE NEGOTIATIONS, PUTTING ASIDE WHETHER THAT'S SORT OF 22 PROPER TO TELL YOU WHAT WAS CONFIDENTIAL, WE DON'T BELIEVE IT 23 WAS REMOTELY ACCURATE. 24 AGREED TO. 25 IT DOES NOT REFLECT WHAT THEY ACTUALLY SINCE YOU HAVEN'T READ IT, I WILL PUT THAT ASIDE. I WOULD SAY WE DESPERATELY NEED THOSE SEVEN DAYS. JULY 24, 2018 Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 27 of 53 1 THE COURT: 26 THE INTRODUCTION DOES INDICATE A NUMBER 2 OF THINGS. BUT WHAT ABOUT THE FACT THAT THERE HAS BEEN A 3 WEEK, A NUMBER OF THESE FAMILIES HAVE BEEN REUNIFIED. 4 WOULD HAVE HAD TIME TOGETHER, I WOULD ASSUME, TO TALK ABOUT 5 THESE IMPORTANT ISSUES, AND TO DO SO WITH THE CHILD 6 ADVOCATE -- 7 MR. GELERNT: 8 THE COURT: 9 10 THEY RIGHT. -- ADVICE. WOULDN'T THAT BE A LARGE NUMBER? MR. GELERNT: YOUR HONOR, WE DON'T ACTUALLY KNOW -- 11 AND MY COLLEAGUE CAN TELL ME, BUT WE DON'T ACTUALLY KNOW, WE 12 ARE NOT BEING TOLD WHO IS BEING REUNIFIED. 13 THINGS THAT WE NEED IS THE DAYS RUN FROM THE TIME WE ARE 14 ACTUALLY NOTIFIED ABOUT REUNIFICATION, BECAUSE THINGS DOWN 15 THERE ARE A MESS. SO ONE OF THE 16 WHAT WE UNDERSTAND FROM THE LAST CLASS LIST -- I 17 JUST WANTED TO MAKE SURE I HAD THE NUMBER RIGHT -- IS THAT 18 THERE WERE VERY FEW PEOPLE NOW REUNITED AT KARNES, WHICH IS 19 THE FACILITY THE GOVERNMENT INTENDS TO USE, 20 OR 30. 20 SEEMS LIKE THE VAST BULK HAVE NOT BEEN GIVEN SUFFICIENT TIME. 21 BUT WE ARE CERTAINLY READY TO WORK WITH YOUR HONOR IF SOME 22 INDIVIDUAL HAS ALREADY BEEN COUNSELED FOR A FEW DAYS WHETHER 23 THAT POTENTIALLY EATS INTO THEIR SEVEN DAYS. 24 VAST BULK ARE GOING TO END UP AT THIS KARNES FACILITY IN SOUTH 25 TEXAS ALL AT ONCE, AND IT IS GOING TO BE IMPOSSIBLE. JULY 24, 2018 SO IT BUT WE THINK THE Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 28 of 53 27 THAT'S THE REMOVAL LOCATION. 1 THE COURT: 2 MR. GELERNT: 3 THE COURT: EXACTLY. THE GOVERNMENT ALSO INDICATED IN ITS 4 INTRODUCTION THAT THESE PARENTS NOW HAVE HAD TIME TO TALK WITH 5 THEIR CHILDREN, IF NOT IN PERSON THEN AT LEAST BY PHONE OR 6 VIDEO TELECONFERENCING, WHATEVER HAS BEEN IN PLACE. 7 ARGUABLY THEY WOULD HAVE DISCUSSED THESE ISSUES WITH THEIR 8 CHILDREN, AND THEY COULD HAVE DISCUSSED THESE ISSUES WITH THE 9 CHILD'S ADVOCATE AS WELL. 10 MR. GELERNT: AND WELL, YOUR HONOR, I THINK THOSE ARE 11 SOME OF THE THINGS THAT THE AFFIDAVITS ADDRESS. 12 LAST NIGHT WHEN THE -- TO GET THE AFFIDAVITS. 13 FEW POINTS ABOUT THAT. WE SCRAMBLED WE WOULD MAKE A ONE IS, WHATEVER ACCESS THEY MAY HAVE HAD TO THEIR 14 15 CHILD ON THE PHONE, THEY DID NOT HAVE THAT ACCESS BY PHONE TO 16 THE CHILD'S ADVOCATE. THE OTHER THING I WOULD SAY IS, THIS IS ONE OF THOSE 17 18 THE SITUATIONS -- AND I KNOW THE GOVERNMENT HAS PUT IN AN 19 AFFIDAVIT FROM THE TOP SAYING, HERE IS WHAT I DIRECTED. 20 SHORT OF SPECIFICS, BUT AS YOUR HONOR KNOWS THERE IS A VAST 21 DIFFERENCE BETWEEN WHAT MAY HAVE BEEN DIRECTED FROM 22 HEADQUARTERS AND WHAT WAS ACTUALLY HAPPENING ON THE GROUND. IT IS THE AFFIDAVITS EXPLAIN THAT PEOPLE HAD MAYBE ONE 23 24 SHORT CALL, WHERE IT IS JUST THE CHILD CRYING, CAN'T SEE THE 25 PARENT. NOTHING COULD GET DONE IN THAT SITUATION. JULY 24, 2018 Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 29 of 53 28 I THINK THE AFFIDAVITS FROM PARTNERS AND ASSOCIATES 1 2 AT BIG LAW FIRMS, NGO'S, ARE ALL DOWN THERE, AND THEY SAY THAT 3 THE PARENTS HAVE NO IDEA WHAT'S HAPPENING. 4 SIGNED THESE FORMS, MANY OF THEM -- TO SHOW YOU HOW MUCH 5 CONFUSION THERE IS. 6 GIVING AWAY THEIR CHILD, EVEN THOUGH THEY DIDN'T HAVE A FINAL 7 ORDER. 8 CHILD IF THE PARENT THEMSELVES CAN STAY IN. 9 THAT THEY HAVE MANY OF THEM ACTUALLY SIGNED THE FORMS THERE WOULD BE NO SENSE IN A PARENT GIVING AWAY THEIR THERE ARE GROUP PRESENTATIONS, THE AFFIDAVITS FROM 10 THE LAW FIRMS SAY. 11 SAID, HERE ARE YOUR BASIC RIGHTS, YOU HAVE 3 MINUTES TO SIGN 12 THIS FORM. 13 THE PARENTS WERE PUT IN GROUPS OF 50 AND I THINK YOU ARE GOING TO BE SHOCKED WHEN YOU SEE 14 THESE AFFIDAVITS HOW LITTLE THE PARENTS UNDERSTOOD BEFORE 15 GETTING TOGETHER, AND HOW DIFFICULT IT IS GOING TO BE NOW TO 16 PROVIDE MEANINGFUL CONSULTATION WITH THEM, WITH HUNDREDS AND 17 HUNDREDS OF PEOPLE SHOWING UP AT THIS DETENTION CENTER. HOW MUCH TIME ARE YOU REQUESTING? 18 THE COURT: 19 MR. GELERNT: 20 RIGHT NOW OUR REQUEST IS SEVEN DAYS. WHAT WE ARE HEARING ON THE GROUND -FOR YOUR BRIEFING. 21 THE COURT: 22 MR. GELERNT: OH, I AM SORRY, YOUR HONOR. I THINK 23 IF YOU COULD GIVE US UNTIL TOMORROW MORNING AT 9:00, AND WE 24 COULD BE BACK HERE IN THE AFTERNOON IF YOUR HONOR WOULD SEE 25 THAT AS APPROPRIATE. JULY 24, 2018 Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 30 of 53 1 2 THE COURT: ALL RIGHT. PERHAPS I CAN HEAR FROM MR. STEWART. 3 MR. STEWART: 4 THE COURT: 5 29 THANK YOU, YOUR HONOR. HAVE YOU BEEN IN COMMUNICATION WITH THE NEW YORK ATTORNEYS, OR DO YOU HAVE INFORMATION IN THAT REGARD? 6 MR. STEWART: MY COLLEAGUES AND I -- IT IS SORT OF 7 HARD TO KEEP TRACK OF ALL OF THE COMMUNICATIONS, YOUR HONOR, 8 BUT I HAVE BEEN ON SOME OF THEM AND TRIED TO BE AS PRIVY AS I 9 CAN. MY UNDERSTANDING, YOUR HONOR, IS ON THE NEW YORK 10 11 CASE -EIGHT OR NINE CHILDREN. 12 THE COURT: 13 MR. STEWART: EIGHT OR NINE CHILDREN. THE ISSUE 14 THERE -- THE KEY ISSUE THERE AS I UNDERSTAND IT IS WHETHER 15 THEY WILL GET THE 48 HOURS' NOTICE PROVIDED BY THE NEW YORK 16 COURT'S ORDER. 17 THEM BEFORE THAT 48 HOURS LAPSES. WE ARE DOING WHAT WE CAN TO GET -- TO NOT MOVE THOSE CHILDREN ARE STILL THERE. 18 THE COURT: 19 MR. STEWART: THAT IS MY UNDERSTANDING, YOUR HONOR, 20 YES. 21 TRANSFERRED HABEAS CASE. 22 FOR THE NINE THAT ARE AT ISSUE IN THE RECENTLY THE COURT: AS I UNDERSTAND IT, THERE WAS A REQUEST 23 IN NEW YORK THAT THERE BE AN ORDERLY PERIOD OF TIME BEFORE 24 REUNIFICATION, OR TO HAVE THE PARENTS RELOCATED TO NEW YORK. 25 SO IS IT YOUR THOUGHT THAT THOSE EIGHT OR NINE JULY 24, 2018 Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 31 of 53 30 1 CHILDREN WOULD BE -- WOULD REMAIN IN NEW YORK, AND THEN 2 THROUGH THAT PROCESS THAT THE PARENT, ARGUABLY, COULD BE IN 3 COMMUNICATION, AT LEAST TELEPHONICALLY WITH THE CHILD AND ANY 4 CHILD ADVOCATE, AND THEN MAKE A DECISION TO REMOVE SEPARATELY 5 OR TOGETHER OR -- 6 MR. STEWART: YOUR HONOR, I THINK THERE ARE A COUPLE 7 OF WAYS IT MIGHT BE DONE. 8 AS OF MONDAY MORNING FOR THESE EIGHT OR NINE ARE WAITING UNTIL 9 THE 48-PERIOD LAPSES BEFORE MOVING THEM, GIVEN THE DESIRE TO 10 ONE IS THAT -- WE GAVE THE NOTICE COMPLY WITH THE REUNIFICATION DEADLINE. ANOTHER OPTION, YOUR HONOR, IS THAT WE COULD GO AND 11 12 CONFER WITH COUNSEL FOR THE PLAINTIFFS IN THAT CASE, AND TRY 13 TO WORK SOMETHING OUT AS TO THE NINE, THAT WOULD JUST GET THAT 14 SET OF CHILDREN TAKEN CARE OF. 15 OPTION. 16 17 18 SO THAT WOULD BE ANOTHER IT HAS BEEN A SOMEWHAT FAST-MOVING SITUATION AS YOUR HONOR IS AWARE, SO EITHER OF THOSE OPTIONS WOULD BE FINE. MY UNDERSTANDING IS THAT SEVERAL OF THE CHILDREN ARE 19 FROM THE SAME FAMILY AND ARE GOING TO BE RELEASED IN ANY 20 EVENT, SO THAT MIGHT SORT OF ASSUAGE CONCERNS THERE. AT LEAST INTO THE COMMUNITY? 21 THE COURT: 22 MR. STEWART: 23 THE COURT: I BELIEVE SO, YOUR HONOR. OKAY. WHY DON'T -- IF NEW YORK COUNSEL 24 ARE THE LINE WE CAN PERHAPS PUT THEM AT EASE NOW AND SIMPLY -- 25 AND JUDGE RAKOFF HAS TRANSFERRED THAT CASE SO I WAS -- AS TO JULY 24, 2018 Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 32 of 53 31 1 JUDGE FURMAN LAST WEEK. 2 IN PLACE HERE, LET'S KEEP THE CHILDREN THAT HAVE BEEN 3 IDENTIFIED IN THE NEW YORK FILING BEFORE JUDGE RAKOFF IN NEW 4 YORK. 5 THAT WAS ONE OF THE REQUESTS, AND THAT WILL NOT OCCUR. 6 SO WITH RESPECT TO THE REUNIFICATION THE PARENTS WILL NOT BE RELOCATED TO NEW YORK. I THINK BUT WHAT I WOULD LIKE THE PARTIES TO DO IS TO MEET 7 AND CONFER, AND IT MAY BE THAT THE PARENTS CAN COMMUNICATE 8 WITH THE CHILDREN TELEPHONICALLY AND COMMUNICATE WITH THE 9 CHILD ADVOCATE TELEPHONICALLY, MAKE AN INFORMED DECISION. 10 IT MAY BE THAT THIS ISSUE CAN WORK OUT THAT WAY WITHOUT 11 FURTHER COURT INTERVENTION. 12 AND THEN, AS I MENTIONED BEFORE, IF NEW YORK COUNSEL ARE 13 ON THE LINE AND THEY WANT TO CALL IN AS SOON AS THIS 14 CONFERENCE IS OVER I CAN SPEAK TO THEM DIRECTLY. 15 THIS ISSUE, IT MAY WELL WORK OUT WITH THE UNDERSTANDING THAT 16 THE PROCESS, THE REUNIFICATION AND THE REMOVAL, AT LEAST WITH 17 RESPECT TO THESE EIGHT OR NINE CHILDREN, WILL BE ON HOLD UNTIL 18 I HEAR FROM COUNSEL. 19 OTHERWISE MR. STEWART, DID YOU WANT TO COMMENT ON THE 20 STIPULATION THAT WAS IN PLACE BUT APPARENTLY HAS FALLEN 21 THROUGH AND WHERE WE ARE? SURE, YOUR HONOR. 22 MR. STEWART: 23 I GUESS I HAD A FEW POINTS. I DON'T WANT TO JUMP 24 THE GUN, I KNOW YOUR HONOR WANTS TO FINISH READING THE PAPERS. 25 THE POINTS I WOULD LIKE TO EMPHASIZE ARE THESE, YOUR JULY 24, 2018 Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 33 of 53 32 1 HONOR. AS YOU WILL SEE FROM THE BRIEF, THE GOVERNMENT HAS A 2 PRETTY STRONG JURISDICTIONAL OBJECTION TO THE ISSUE HERE THE 3 GOVERNMENT HAS TAKEN SERIOUSLY YOUR HONOR'S RECOGNITION THAT 4 THIS CASE IS NOT A CHALLENGE TO THE GOVERNMENT'S DISCRETIONARY 5 REMOVAL AUTHORITY AND ALL OF THAT. 6 DESPITE THOSE CONSIDERABLE, YOU KNOW, CONCERNS AND 7 RESERVATIONS, THE GOVERNMENT WORKED VERY, VERY HARD, IN LINE 8 WITH YOUR HONOR'S ENCOURAGEMENT AND ORDERS, TO TRY TO REACH 9 SOME WAY TO RESOLVE THIS ISSUE DESPITE THE PREVIOUS AGREEMENT 10 11 TO THE 48-HOUR PERIOD. WE THOUGHT THAT IT WAS APPROPRIATE TO IDENTIFY WHERE 12 WE ENDED UP FOR THE COURT BECAUSE THE COURT DID ORDER US TO 13 MEET AND CONFER AND WE JUST WANTED TO BE CLEAR ON OUR GOOD 14 FAITH AND ALL WE TRIED TO DO AND THE EFFORTS WE MADE WITH THIS 15 KARNES FACILITY. 16 WHAT I WOULD EMPHASIZE THERE, YOUR HONOR, IS THAT WE 17 ARE TRYING TO DEDICATE THIS ENTIRE FACILITY TO, YOU KNOW, 18 RESOLVE THESE CLAIMS AND GIVE PEOPLE ACCESS LET THEM -- YOU 19 KNOW, WE PUT THAT OUT THERE AS A WAY FOR FOLKS TO GET THE 20 INFORMATION THEY NEEDED TO MAKE THE DECISIONS THAT PLAINTIFFS 21 COUNSEL PRESSED THEY NEEDED TO MAKE. 22 I JUST WANT TO EMPHASIZE THAT SIGNIFICANT 23 JURISDICTIONAL OBJECTIONS THAT AT ISSUE IN A LOT OF OTHER 24 CASES, AND WE FIGURED YOUR HONOR WOULD NOT WANT TO 25 UNNECESSARILY REACH OUT TO RESOLVE THAT ISSUE IF YOU DIDN'T JULY 24, 2018 Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 34 of 53 1 NEED TO. WE TRIED OUR BEST TO RESOLVE IT. 2 JUST WEREN'T ABLE TO, UNFORTUNATELY. 33 DESPITE THAT WE 3 SO I WOULD EMPHASIZE THE GOVERNMENT'S GOOD FAITH, 4 OUR EFFORTS TO PUT AN OFFER THAT ACCOMMODATED ALL CONCERNS. 5 WOULD EMPHASIZE THAT POINT AS YOUR HONOR IS KIND OF GOING 6 THROUGH THE PAPERS. 7 I THE SECOND POINT I WOULD EMPHASIZE, YOUR HONOR, IS I 8 AM DISAPPOINTED TO HEAR THAT MR. GELERNT IS PLANNING TO 9 SUDDENLY FILE A RAFT OF AFFIDAVITS OR DECLARATIONS. YOU KNOW, 10 THE GOVERNMENT WAS CAUGHT OFF-GUARD AND QUITE BY SURPRISE WHEN 11 THIS MOTION WAS FILED ABOUT A WEEK AND A HALF AGO. 12 ALMOST NO NOTICE OF IT. 13 14 15 WE GOT THE OPENING PARAGRAPH ADMITTED THAT THE MOTION WAS BASED ON RUMORS. THAT IS THE DIRECT WORD FROM THE MOTION. IT WAS BASED ON JUST SUPPOSITION, SO WE HAD TO RUSH 16 AROUND, FIND OUT WHAT WAS GOING ON. 17 THAT WE ABOUT TO BE, DESPITE OUR SIGNIFICANT JURISDICTIONAL 18 OBJECTIONS, OUR DAYS AND NIGHTS OF TRYING TO NEGOTIATE 19 SOMETHING HERE EFFECTIVELY DESPITE OUR CONCERNS, THAT WE ARE 20 ABOUT TO THE HIT, BLINDSIDED BY A RAFT OF AFFIDAVITS. 21 THAT IS QUITE PROBLEMATIC. 22 OF YOUR HONOR'S ORDERS. 23 AND NOW I GET A SIGNAL I THINK I DON'T THINK IT IS IN THE SPIRIT AND I THINK IT IS PARTICULARLY IMPROPER THAT IT 24 SOUNDS LIKE MR. GELERNT IS TRYING TO WIDEN THE -- POTENTIALLY 25 WIDEN THE RELIEF THAT HIS MOTION WAS SEEKING WHICH I ALSO JULY 24, 2018 Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 35 of 53 1 34 WOULD SUBMIT IS IMPROPER. AGAIN I DON'T WANT TO GET OUT AHEAD OF THE REPLY, 2 3 BUT I WOULD OBJECT TO THE SUBMISSION OF FACTUAL AVERMENTS IN 4 THE REPLY BRIEF, PARTICULARLY IF THE GOVERNMENT DOESN'T HAVE 5 AN ABILITY TO RESPOND TO THEM, ESPECIALLY BECAUSE IF THESE ARE 6 KIND OF ANECDOTAL, I MEAN, WE ARE KIND OF AT A DISADVANTAGE 7 BECAUSE WE HAVE TO RUSH AROUND AND FIND OUT WHAT PEOPLE ARE 8 TALKING ABOUT. 9 I WOULD ALSO EMPHASIZE, YOUR HONOR, THAT AS YOU 10 YOURSELF, YOUR HONOR, POINTED OUT, THERE HAS BEEN QUITE A 11 NUMBER OF DAYS TO TRY TO RESOLVE THIS, AND JUST GIVE PEOPLE 12 THE RIGHT NOTICE, GIVE THEM CONSULTATION, ALL OF THAT SORT OF 13 THING. 14 PROGRESSED ADEQUATELY THERE. 15 IT SOUNDS LIKE THOSE EFFORTS -- THINGS HAVE NOT SO IN SHORT, YOUR HONOR, WE THE GOVERNMENT WOULD 16 STICK VERY FIRMLY ON OUR PAPERS. 17 TO WORK IN GOOD FAITH TO TRY TO REACH A STIPULATION SO THAT 18 THE COURT DID NOT HAVE TO STEP IN AND RESOLVE THIS, DID NOT 19 HAVE TO STEP IN TO DO MORE INJUNCTIVE RELIEF. 20 PARTICULARLY ATTUNED TO THE SERIOUS LEGAL QUESTIONS AND 21 SERIOUS JURISDICTIONAL ISSUES PRESENTED BY THIS. 22 WANTED TO TRY TO RESOLVE THAT BUT, YOU KNOW, IT IS UNFORTUNATE 23 THAT WE WERE NOT ABLE TO. 24 25 WE ARE PROUD OF OUR EFFORTS AND WE WERE AND WE WE DID WHAT WE COULD. SO I WOULD EMPHASIZE THOSE POINTS, YOUR HONOR, AND OTHERWISE I WOULD STICK TO THE BRIEF. JULY 24, 2018 Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 36 of 53 1 THE COURT: LET ME RUN THROUGH A NUMBER OF IDEAS, 2 THOUGHTS, AND THEN GET COUNSEL'S INPUT AS TO HOW WE MOVE 3 FORWARD. 4 35 FIRST, THE OBSERVATION I WOULD MAKE ABOUT THE 5 REUNIFICATION OF ELIGIBLE CLASS MEMBERS, THAT'S THE 1,637, IT 6 APPEARS 1,012 HAVE BEEN REUNIFIED. 7 CLEARED AND TRANSPORTATION IS PENDING. 8 9 10 11 THE BALANCE HAVE BEEN THIS IS A REMARKABLE ACHIEVEMENT, AND COMMANDER WHITE IS TO BE COMMENDED. HE HAS DONE YEOMAN'S WORK HERE IN ACCOMPLISHING THAT. SO FOR CLASS MEMBERS WHO ARE ELIGIBLE, IT APPEARS 12 THAT WHEN WE MEET ON THIS ISSUE AGAIN ON FRIDAY THAT 13 REUNIFICATION WILL HAVE BEEN COMPLETED ON TIME; WHICH HAS TO 14 BE HIGHLIGHTED AND THE GOVERNMENT HAS TO BE COMMENDED FOR ITS 15 EFFORTS IN THAT REGARD. 16 THERE IS A SIGNIFICANT GROUP OF CLASS MEMBERS, ABOUT 17 914, WHO MAY BE INELIGIBLE. 18 THINK MANY OF THOSE THE PLAINTIFFS ARE NOT GOING TO QUARREL 19 WITH THE GOVERNMENT MAKING A DETERMINATION NOT TO REUNIFY, 20 WHETHER IT IS CRIMINAL HISTORY OR OTHER PRECLUDING FACTORS. 21 CERTAINLY THERE ARE GOING TO BE SOME OF THOSE CLASS MEMBERS 22 WHERE THE PLAINTIFFS, WITH ADDITIONAL INFORMATION, WILL 23 CHALLENGE THAT, AND THEN THE COURT CAN ADDRESS THOSE ISSUES AT 24 A LATER TIME. 25 THAT IS A DIFFERENT CATEGORY. THERE NEEDS TO BE MORE INFORMATION PROVIDED TO JULY 24, 2018 I Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 37 of 53 1 PLAINTIFFS. 2 TRANSPARENT PROCESS. AND AS I HAVE INDICATED, THIS SHOULD REALLY BE A SOME OF THIS INFORMATION IS UNPLEASANT. 3 36 IT IS THE 4 REALITY OF THE CASE. IT IS THE REALITY OF A POLICY THAT WAS 5 IN PLACE THAT RESULTED IN LARGE NUMBERS OF FAMILIES BEING 6 SEPARATED WITHOUT FORETHOUGHT AS TO REUNIFICATION AND KEEPING 7 TRACK OF PEOPLE. AND THAT'S THE FALLOUT WE ARE SEEING. THERE MAY BE 463, THERE MAY BE MORE. 8 THAT'S NOT 9 CERTAIN, BUT IT APPEARS THERE IS A LARGE NUMBER OF PARENTS WHO 10 ARE UNACCOUNTED FOR OR WHO MAY HAVE BEEN REMOVED WITHOUT THEIR 11 CHILD. 12 PLAINTIFFS ARE ENTITLED TO THAT INFORMATION. 13 THAT'S A DEEPLY TROUBLING REALITY OF THE CASE, AND THE SO THERE HAS TO BE AN ACCOUNTING. AND THE LIST 14 NEEDS TO IDENTIFY THE PARENTS, IF YOU HAVE THE INFORMATION, 15 AND WHERE THEY ARE, WHETHER THEY HAVE BEEN REMOVED. 16 NEEDS TO ALSO INCLUDE THE STATEMENT THAT THE GOVERNMENT 17 DOESN'T KNOW WHERE THE PARENT IS OR LACKS THAT INFORMATION. 18 PLAINTIFFS ARE ENTITLED TO THAT INFORMATION SO THAT WE CAN 19 MORE INTELLIGENTLY DISCUSS, WHERE DO WE GO FROM HERE. 20 WE -- FOR THOSE PARENTS WHO WERE REMOVED WITHOUT CHILD. 21 SOONER THE PLAINTIFFS HAVE ALL OF THAT INFORMATION THEY 22 HOPEFULLY LOCATE THEM AND THEN A REUNIFICATION CAN BE IN 23 PROCESS DOWN THE ROAD. 24 BUT WE ARE NOT ABLE TO DO ANYTHING WITHOUT THE INFORMATION. 25 AND IT HOW DO THE WE CAN SET A SEPARATE TIMEFRAME THERE. SO I WOULD PROPOSE THAT THE LIST FOR CLASS MEMBERS JULY 24, 2018 Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 38 of 53 37 1 WHO WAIVE REUNIFICATION PRIOR TO REMOVAL, THAT'S THE 127, BE 2 PROVIDED BY TOMORROW AT 9:00 A.M. 3 IF I UNDERSTOOD YOU CORRECTLY THAT WOULD BE DO-ABLE, 4 OR AT LEAST YOU CAN DO IT AS TO SOME, BUT THEN INDICATE THERE 5 MAY BE OTHERS WHERE YOU NEED MORE TIME. 6 MS. FABIAN: SO TO CLARIFY THE 127 LIST WE GAVE 7 TODAY, THERE IS THE SEPARATE LIST OF INDIVIDUALS WHO HAVE 8 WAIVED ON THE FORM. 9 THE COURT: 10 MS. FABIAN: YES. WE HAVE -- AS I -- TO CLARIFY WHAT I 11 SAID BEFORE, WE ARE IDENTIFYING ALL OF THOSE FORMS. 12 ONES WE HAVE IDENTIFIED, 85 WAIVED. 13 WORKING THROUGH TO MAKE SURE WE IDENTIFIED ALL OF THOSE FORMS. 14 15 16 THE COURT: OF THE THERE ARE STILL -- WE ARE AND I THINK YOU SAID YOU ARE GETTING AN EMAIL TONIGHT. MS. FABIAN: THAT IS A SEPARATE EMAIL. TONIGHT I 17 WILL HAVE MORE INFORMATION ON THE REMOVAL -- ON THE 18 INDIVIDUALS REMOVED, THAT'S WHAT I WAS REFERENCING, TONIGHT. 19 AS FAR AS THOSE -- SO WE ARE IN THE PROCESS OF 20 IDENTIFYING ALL OF THE FORMS THAT HAVE BEEN SIGNED, AND THEN 21 WHICH OF THOSE HAVE WAIVED REUNIFICATION. 22 THROUGH 400-AND-SOME FORMS AND HAVE IDENTIFIED 85 OF THOSE WHO 23 WAIVED REUNIFICATION. 24 WE ARE RIGHT NOW IN THAT PROCESS. 25 THE COURT: WE HAVE GONE BUT THERE MAY BE MORE, BUT THAT'S WHERE LET'S DO IT THIS WAY. JULY 24, 2018 Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 39 of 53 38 THERE IS A LIST THAT IS NEEDED FOR CLASS MEMBERS WHO 1 2 HAVE WAIVED REUNIFICATION PRIOR TO REMOVAL. THERE IS A LIST 3 THAT'S NEEDED OF CLASS MEMBERS WHO HAVE BEEN REMOVED. 4 THERE IS A LIST THAT IS NEEDED OF CLASS MEMBERS WHO HAVE BEEN 5 RELEASED FROM ICE CUSTODY. AND IT SEEMS TO ME THOSE LISTS SHOULD BE PROVIDED TO THE 6 7 PLAINTIFFS BY TOMORROW, PERHAPS NOON WOULD BE A MORE 8 APPROPRIATE DEADLINE. 9 COMPLETE. AND IT MAY BE THAT THE LISTS ARE NOT BUT YOU COULD GIVE THE INFORMATION YOU HAVE, AND 10 THEN AS TO THE PARENTS, CLASS MEMBERS THAT YOU LACK 11 INFORMATION YOU CAN IDENTIFY HOW MANY, AND ARTICULATE THE 12 REASONS, WHAT CATEGORIES THEY MIGHT BE FALLING INTO. 13 AND THEN WHEN WE GET THE STATUS REPORT ON THURSDAY 14 WE WILL HAVE MORE INFORMATION THAT WE CAN ADDRESS 15 INTELLIGENTLY ON FRIDAY. 16 SO LET'S DO THAT. THOSE LISTS BY TOMORROW, NOON. 17 THE PLAINTIFFS' REPLY ON THIS JURISDICTIONAL ISSUE 18 AND TRO REQUEST BY TOMORROW AT -- I WOULD PROPOSE, IF THERE IS 19 NOT OBJECTION, BY TOMORROW 12:00 O'CLOCK NOON. 20 21 AND THEN THAT WE ADDRESS THE MATTER FRIDAY AT THE STATUS CONFERENCE AT 1:30. 22 DOES THE GOVERNMENT OBJECT? 23 MR. STEWART: 24 25 WE CAN GO ON JUST MAINTAINING OUR JURISDICTIONAL OBJECTION. THE COURT: YES. JULY 24, 2018 Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 40 of 53 1 2 MR. STEWART: UNDERSTOOD. WOULD BE FINE FOR YOUR HONOR. FINE TO ADDRESS ON FRIDAY. 3 MR. GELERNT: 4 THE COURT: 5 THAT'S FINE, YOUR HONOR. SO FILING BY NOON TOMORROW, THEN WE WILL ADDRESS THIS ISSUE FRIDAY. OKAY. THANK YOU, YOUR HONOR. 6 MR. GELERNT: 7 THE COURT: 8 HAVE WE ADDRESSED ALL MATTERS? 9 OKAY. ANY OTHER HOUSEKEEPING MATTERS. 10 11 39 MR. STEWART: CAN I FLAG AT LEAST ONE MORE, YOUR HONOR? YES. 12 THE COURT: 13 MR. STEWART: AS YOUR HONOR IS AWARE, AND AS WE 14 DISCUSSED, A NUMBER OF OTHER CASES HAVE ARISEN, IN OBVIOUSLY 15 IN NEW YORK, AND SOME OF THOSE HAVE BEEN TRANSFERRED HERE. 16 17 18 THE COURT: I AM ONLY AWARE OF TWO, THEY ARE BOTH IN NEW YORK. MR. STEWART: BOTH IN NEW YORK. THERE ARE SOME 19 INDIVIDUAL CASES, BUT THOSE ARE DIFFERENT -- BUT THOSE HAVE 20 BEEN RESOLVED, I THINK, PRETTY SPEEDILY, GENERALLY. 21 THE ONE I WANTED TO FLAG, THOUGH, YOUR HONOR, IS 22 THAT THERE IS A CASE PENDING IN THE WESTERN DISTRICT OF 23 WASHINGTON BEFORE JUDGE PECHMAN. YES. 24 THE COURT: 25 MR. STEWART: THIS INVOLVES 17 STATES AND THE JULY 24, 2018 Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 41 of 53 40 1 DISTRICT OF COLOMBIA WHO FILED A SUIT THAT THEY ALLEGED ON 2 BEHALF OF THEIR RESIDENTS IN CONNECTION WITH THE FAMILY 3 SEPARATION POLICY. I RAISE IT SORT OF FOR -- WITHOUT GETTING AHEAD OF 4 5 THINGS TOO MUCH, YOUR HONOR. THE GOVERNMENT -- THE PLAINTIFFS 6 IN THAT CASE SOUGHT EXPEDITED DISCOVERY ABOUT THE POLICY AND 7 THAT SORT OF THING. 8 SOUGHT TRANSFER TO THIS COURT, AND KIND OF OTHER THINGS ON 9 JURISDICTIONAL ISSUES. THE GOVERNMENT FILED A FAST MOTION THAT JUDGE PECHMAN IN THAT CASE HAS ORDERED EXPEDITED 10 11 DISCOVERY WITHOUT RULING ON THE TRANSFER PIECE YET, BUT -- SO 12 THE TRANSFER PIECE IS STILL UNDER CONSIDERATION. 13 A HEARING BEFORE JUDGE PECHMAN THIS FRIDAY ON THE EXPEDITED 14 DISCOVERY SCOPE AND SCHEDULE AND PRESUMABLY THOSE SORTS OF 15 THINGS. BUT THERE IS YES. 16 THE COURT: 17 MR. STEWART: 18 I WANTED TO FLAG IT FOR YOUR HONOR BECAUSE THE I AM GUESSING. 19 GOVERNMENT'S VIEW IS THAT THAT CASE -- THE CLAIMS 20 OVERWHELMINGLY OVERLAP WITH THIS ONE OR WITH OTHER LITIGATION. 21 IT IS PROPERLY TRANSFERRED TO THIS COURT FOR JUST THE REASONS 22 ARTICULATED BY JUDGE FURMAN IN HIS TRANSFER ORDER, AMONG 23 OTHERS. 24 25 IT DOESN'T LOOK -- IT IS NOT CLEAR THAT THAT TRANSFER WILL HAPPEN, AND I WANTED TO JUST FLAG IT BECAUSE OF JULY 24, 2018 Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 42 of 53 41 1 CONCERNS THAT IF WE DO END UP WITH A SITUATION OF EXPEDITED 2 DIFFICULT DISCOVERY THERE IT WILL, UNFORTUNATELY, POTENTIALLY 3 OVERLAP WITH EFFORT HERE. 4 AND I DON'T RAISE IT TO KIND OF IDENTIFY A PROBLEM 5 MORE JUST WE ARE GOING TO LOOK FOR SOLUTIONS AND TRY TO DEAL 6 WITH IT. 7 KNOW OF IT AND YOU ARE NOT CAUGHT OFF-GUARD. 8 WORKING AS BEST WE CAN. 9 WE ARE NOT SURE WE ARE GOING TO SUCCEED. 10 BUT I JUST WANTED TO FLAG IT FOR YOUR HONOR SO YOU AND WE ARE WE TRIED TO GET IT TRANSFERRED HERE, BUT WE ARE PREPARED TO, YOU KNOW, WE ARE TRYING TO WORK WITH THAT ISSUE. BUT I WANTED TO FLAG IT JUST BECAUSE THE MORE 11 12 RESOURCES WE HAVE TO DEVOTE TO EXPEDITED DISCOVERY 13 UNFORTUNATELY MANY OF THOSE FOLKS WILL I THINK BE PEOPLE WHO 14 ARE WORKING ON REUNIFICATION, SO WE ARE TRYING TO DEAL WITH 15 IT. 16 JUDGE PECHMAN. BUT I DID WANT TO RAISE THAT CASE FOR YOUR HONOR BEFORE YES. THANK YOU FOR MENTIONING THAT. 17 THE COURT: 18 BUT OF THE ELIGIBLE CLASS MEMBERS IT APPEARS THAT'S 19 20 ALL UNDERWAY AND REUNIFICATION SHOULD OCCUR BY THURSDAY. MR. STEWART: I DON'T THINK THE CASE WILL AFFECT THE 21 STUFF YOU HAVE BEEN FOCUSING ON, YOUR HONOR. 22 CONSIDERATION AS WE ARE, YOU KNOW, CONTINUING TO BEAR DOWN TO 23 COMPLETE THE REST OF THE REUNIFICATION. 24 25 THE COURT: YES. I FLAG IT AS A ALL I CAN SAY THERE IS ON THE NEW YORK CASES, BOTH JUDGES FURMAN AND RAKOFF, WITH THE PARTIES JULY 24, 2018 Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 43 of 53 42 1 CONSENT, CALLED ME. AND SO THEY TOOK THAT INITIATIVE, AND 2 THEN THEREAFTER THEY MADE THEIR OWN CONSIDERED JUDGMENT TO 3 TRANSFER THE CASES HERE. I HAVE NOT HEARD FROM JUDGE PECHMAN, AND OF COURSE, 4 5 SHE IS GOING TO DO WHAT SHE CONSIDERS TO BE THE RIGHT DECISION 6 IN HIS CASE, SO I WOULD NOT HAVE ANY COMMENT OR OBSERVATION 7 OTHER THAN TO THANK COUNSEL FOR LETTING ME KNOW. 8 AND WE WILL STAND BY, AND AS I INDICATED TO JUDGES 9 FURMAN AND RADKOFF, WE ARE HERE AND READY TO TEND TO THE NEW 10 YORK CASE AS THE LAWYERS DEEM APPROPRIATE. LET'S CLOSE THIS HEARING. 11 AND THEN I AM GOING TO 12 ASK COUNSEL JUST TO STAND BY FOR A MOMENT. 13 NEW YORK COUNSEL WILL CALL IN OR NOT, BUT I WANTED TO GIVE 14 THEM THE COURTESY TO DO THAT IF THAT'S WHAT THEY WANT TO DO. 15 THEY MAY ELECT NOT TO. 16 KNOW. 17 WITH JUDGE RADKOFF LATE THIS AFTERNOON, I THINK IT WAS 18 ABOUT -- WELL, IT WAS DURING THE RECESS WHEN I WAS IN TRIAL. 19 AND SO HE GAVE ME THE UPDATE, BUT I HAVEN'T HEARD ANYTHING 20 ELSE THAT HE HAS TRANSFERRED THE CASE. 21 I DON'T KNOW IF THEY MAY NOT BE ON THE LINE, I DON'T I DON'T HAVE ANY OTHER INFORMATION, OTHER THAN I SPOKE MR. STEWART: CAN I MAKE JUST ONE OR LIKE A 22 TWO-SENTENCE CLOSING OBSERVATION ON ONE OTHER PIECE OF THE 23 STAY MOTION? YES. 24 THE COURT: 25 MR. STEWART: OBVIOUSLY THERE IS GOING TO BE FURTHER JULY 24, 2018 Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 44 of 53 43 1 BRIEFING AND ARGUMENT AND I CAN ADDRESS -- HOPEFULLY ADDRESS 2 THIS FURTHER ON FRIDAY, YOUR HONOR. 3 WOULD TAKE ISSUE WITH THE SUGGESTION THAT THINGS ARE A MESS ON 4 THE GROUND. 5 BEEN -- AND AS YOUR HONOR HAS RECOGNIZED, THERE HAS BEEN 6 TREMENDOUS EFFORT TO REUNIFY CONSISTENT WITH THIS COURT'S DUE 7 PROCESS REUNIFICATION FAMILY INTEGRITY RULING. 8 REASONS TO BE VERY PROUD OF THIS EFFORT SO WE STRONGLY CONTEST 9 THAT CHARACTERIZATION AND LOOK FORWARD TO THE OPPORTUNITY TO BUT THE GOVERNMENT ALSO AS COMMANDER WHITE HAS EXPLAINED THERE HAS 10 PRESENT FURTHER VIEWS ON THAT. 11 THE COURT: WE HAVE MANY I WILL LOOK FORWARD TO THE ADDITIONAL 12 BRIEFING. 13 GOOD BECAUSE WE WILL HAVE A LOT OF OTHER ADDITIONAL 14 INFORMATION. 15 INVENTORY ON WHAT ACTUALLY HAPPENED AT THE REUNIFICATION OF 16 ELIGIBLE CLASS MEMBERS, AND THEN ADDRESS THE JURISDICTIONAL 17 ISSUE. 18 AND I THINK THE STATUS REPORT ON THURSDAY WILL BE AND THEN FRIDAY, OF COURSE, WE CAN TAKE YOUR HONOR, I JUST WANTED TO LET YOU MS. FABIAN: 19 KNOW AS WELL ON FRIDAY I WILL BE APPEARING IN COURT IN LOS 20 ANGELES SO I AM GOING TO TRY TO PARTICIPATE BY PHONE HERE IN 21 THE AFTERNOON. MR. STEWART, YOU WILL BE HERE? 22 THE COURT: 23 MR. STEWART: 24 THE COURT: 25 MR. STEWART: I WILL BE HERE, YOUR HONOR. OKAY. VERY GOOD. THANK YOU VERY MUCH. THANK YOU, YOUR HONOR. JULY 24, 2018 Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 45 of 53 1 (PAUSE IN PROCEEDINGS) 2 THE COURT: OKAY. WE DON'T HAVE A CASE NUMBER OR A 3 CASE YET. 4 NEW YORK CASE WAS TRANSFERRED. 5 6 7 8 9 44 I HAVE JUST BEEN INFORMED BY JUDGE RAKOFF THAT THE WE HAVE GOVERNMENT COUNSEL PRESENT AND PLAINTIFFS' COUNSEL PRESENT. AND I NOW UNDERSTAND WE HAVE NEW YORK COUNSEL ON THE LINE, FROM LEGAL AID, REPRESENTING THE CHILDREN IN THAT CASE. I HOPE YOU CAN HEAR ME. 10 CAN YOU STATE YOUR APPEARANCES? 11 MR. GELERNT: CERTAINLY, YOUR HONOR. THIS IS JUDITH 12 GOLDINER FROM THE LEGAL AID SOCIETY IN NEW YORK. 13 JOINED HERE -- WITH ME IS SARAH GILLMAN, GREGORY COPELAND, AND 14 BETH KRAUSE ALSO FROM NEW YORK CITY. 15 I KNOW WE HAVE OUR PRO BONO -- 16 MR. FRAHN: 17 AND I AM YOUR HONOR, THIS IS BUZZ FRAHN OF SIMPSON THATCHER, PALO ALTO, CALIFORNIA, ON THE LINE AS WELL. VERY GOOD. THANK YOU. 18 THE COURT: 19 WERE COUNSEL ON THE LINE FOR THE LAST STATUS 20 CONFERENCE? 21 MS. GOLDINER: 22 THE COURT: 23 24 25 YES, WE ARE WERE, YOUR HONOR. YOU HEARD THE DISCUSSION, THEN, THAT I HAD WITH COUNSEL. SO, MS. GOLDINER WHAT -- I AM ALL EARS. LIKE TO HEAR FROM YOU AND GET YOUR PERSPECTIVE. JULY 24, 2018 I WOULD Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 46 of 53 45 THANK YOU, YOUR HONOR. 1 MS. GOLDINER: 2 SO I GUESS I WANT TO START BY SAYING OUR CONCERN 3 HERE IS THAT OUR CLIENTS DON'T HAVE INFORMATION THEY NEED TO 4 MAKE MEANINGFUL PLANS, AND THEY HAVEN'T HAD THE OPPORTUNITY TO 5 TALK TO THEIR PARENTS ABOUT THOSE PLANS OR THERE PARENTS TO 6 THEIR COUNSEL, TO THE CHILDREN'S COUNSEL. SO, YOU KNOW, WHAT WE ARE SEEING IS KIDS WHO VERY 7 8 MUCH WOULD LIKE TO BE WITH THEIR PARENTS BUT THEY DON'T WANT 9 TO BE IN LONG FAMILY DETENTION. WHAT THEY DON'T KNOW, AND 10 WHAT THE GOVERNMENT HASN'T GIVEN US NOTICE OF, IS WHETHER THE 11 PLAN FOR THE FAMILIES IS POTENTIALLY DEPORTATION OR FAMILY 12 DETENTION WHILE OTHER RELEASE IS BEING WORKED OUT. SO THAT'S BEEN THE PROBLEM. 13 AND THAT'S SPECIFICALLY 14 THE PROBLEM FOR THE YOUNG PEOPLE THAT WE FILED FOR TODAY. 15 WHAT WE WERE HOPING FOR WAS -- AS YOU KNOW FROM OUR PREVIOUS 16 FILING WAS THAT THE NOTIFICATIONS WE WOULD GET WOULD GIVE US 17 BOTH THE INFORMATION ON WHAT THE ACTUALLY PLAN WAS -- 18 19 THE COURT: SO I AM SORRY, SOMEBODY IS TYPING AND SO IT IS ACTUALLY INTERRUPTING MS. GOLDINER'S PRESENTATION. 20 CAN YOU GIVE ME THAT LAST SENTENCE AGAIN? 21 MS. GOLDINER: 22 THE REASON WE WANTED THE NOTIFICATION WAS REALLY I AM SORRY. 23 TWOFOLD. ONE WAS TO GET INFORMATION ON EXACTLY WHAT THE PLAN 24 WAS FOR THE KIDS SO THAT WE COULD ADVISE THEM. 25 THAT WE WOULD ALSO HAVE A WAY OF CONTACTING THEIR PARENTS AND JULY 24, 2018 AND SECOND SO Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 47 of 53 1 46 GETTING THEIR PARENTS' INPUT INTO WHAT WAS GOING TO HAPPEN. 2 SO OF THE FIVE PARENTS THAT ARE INVOLVED IN THE KIDS 3 THAT WE FILED FOR, THREE OF THEM WE HAVE NOT BEEN ABLE TO TALK 4 TO. 5 OPPORTUNITY TO TALK TO THEM ABOUT WHAT THE PLANS ARE. AND THEIR CHILDREN HAVE NOT HAD ANY MEANINGFUL AND EVEN WERE THEY ABLE TO TALK TO THEIR PARENTS, 6 7 WITHOUT KNOWING WHETHER THEY ARE GOING TO BE DEPORTED OR 8 WHETHER THEY ARE GOING TO BE IN FAMILY DETENTION IS IMPORTANT 9 TO OUR KIDS TO KNOW WHETHER -- THAT IS SOMETHING THAT THEY 10 WANT OR WHETHER THEY WANT TO STAY AND PURSUE THE REMEDIES THEY 11 MIGHT HAVE. OKAY. 12 THE COURT: 13 LET ME ASK MR. STEWART. 14 PARENTS ARE? AND, MS. GOLDINER, DO YOU KNOW WHO THE FIVE PARENTS 15 16 17 18 19 DO WE KNOW WHO THE FIVE ARE? DO YOU HAVE THAT INFORMATION? MS. GOLDINER: WE KNOW WHO THEY ARE, WE HAVE NOT BEEN ABLE TO CONTACT THEM. THE COURT: SO I AM JUST SPEAKING PRACTICALLY. IF 20 YOU KNOW WHO THEY ARE, IT SEEMS THAT YOU COULD -- IT MAY BE 21 THAT GOVERNMENT COUNSEL IN NEW YORK KNOWS WHO THEY ARE AS 22 WELL, BUT I HAVE, OBVIOUSLY, GOVERNMENT COUNSEL HERE IN SAN 23 DIEGO, MS. FABIAN AND MR. STEWART. 24 25 IT MAY BE THAT IF THE INFORMATION IS SHARED WITH THEM AS TO WHO THE PARENTS ARE, THEN THIS CAN WORK OUT JULY 24, 2018 Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 48 of 53 47 1 INFORMALLY AND RELATIVELY EASILY WHERE THOSE PARENTS ARE NOT 2 REMOVED, THE CHILDREN CAN REMAIN IN NEW YORK. 3 AN OPPORTUNITY WHERE PARENT AND CHILD COMMUNICATE AT LEAST 4 TELEPHONICALLY, PARENT AND CHILD ADVOCATE COMMUNICATE, 5 INFORMED DECISIONS ARE MADE. AM I CORRECT? 6 I AM ASKING MS. FABIAN NOW. 7 MS. FABIAN: 8 THERE COULD BE LET ME STAND UP STRAIGHT WHILE I DO THIS. AND, YOU KNOW, IF I HAVE MISSED CONVERSATIONS I 9 10 APOLOGIZE. I DON'T WANT TO MISREPRESENT ANYTHING. MY 11 UNDERSTANDING IS -- I AM NOT AWARE IF WE HAVE BEEN TOLD THAT 12 THERE ARE DIFFICULTIES IN THE COMMUNICATION. 13 FACILITATING COMMUNICATION IS SOMETHING WE CAN DO. I THINK WE, AS I UNDERSTAND IT, GAVE NOTIFICATION OVER THE 14 15 WEEKEND. 16 48 HOURS THAT WERE NOT ON THE WEEKEND ARRANGED FOR THE 17 REUNIFICATIONS TO HAPPEN TOMORROW. 18 THE COURT'S EARLIER STATEMENT CAN HOLD THAT OFF FURTHER. 19 WE HAVE MADE ATTEMPTS TO PROVIDE ENOUGH TIME TO ALLOW THOSE 20 COMMUNICATIONS. 21 WHY THAT IS, BUT WE CAN CERTAINLY LOOK INTO ARRANGING THOSE. 22 WE HAVE NONETHELESS HELD TO ENSURE THAT THERE WERE AND, YOU KNOW, BASED ON BUT SO IF THOSE HAVEN'T HAPPENED I AM NOT AWARE MY UNDERSTANDING IS THAT WE HAVE ALSO GIVEN 23 INFORMATION AS TO THE CURRENT INTENTION WITH REGARD TO THE 24 FAMILY, WHICH IS I THINK FOR AT LEAST ONE FAMILY WHICH IS -- 25 HAS MULTIPLE CHILDREN THAT THE CURRENT INTENTION IS THAT THEY JULY 24, 2018 Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 49 of 53 1 WOULD BE RELEASED UPON REUNIFICATION. 2 SURE IF THE REMAINDER WOULD BE HELD TOGETHER IN FAMILY 3 DETENTION. 4 INDICATED, HOWEVER THAT IS THE CURRENT PLAN. 5 CHANGE AS NEW INFORMATION BECOMES AVAILABLE. 6 48 I AM NOT -- SO I AM NOT I BELIEVE THAT IS THE CURRENT PLAN AS WE THINGS CAN SO AS I UNDERSTAND IT, THAT WAS PART OF THE CONCERN 7 IS THAT WE CAN'T 100 PERCENT COMMIT AS TO THE SITUATION THAT 8 WILL BE DOWN THE LINE BUT THAT WE HAVE PROVIDED INFORMATION AS 9 TO OUR CURRENT UNDERSTANDING FROM ICE OF WHAT THE FAMILY 10 11 SITUATION WOULD BE. THE COURT: IT SEEMS THAT THIS IS A MATTER WITH A 12 VERY PRACTICAL SOLUTION. AND SO PARTICULARLY SINCE, GIVEN THE 13 COURT'S ORDERS TODAY, THAT THE PARENTS WILL NOT BE REMOVED, 14 THE CHILDREN WILL NOT BE MOVED FROM NEW YORK PENDING WORKING 15 THIS OUT, THAT THE PARTIES CAN MEET AND CONFER. 16 LIKE THIS ISSUE, WITH COMMUNICATION, THERE CAN BE A MEANINGFUL 17 OPPORTUNITY FOR PARENT AND CHILD, PARENT AND CHILD ADVOCATE, 18 TO ADDRESS THE ISSUES, PERHAPS TELEPHONICALLY, BUT TO AT LEAST 19 ADDRESS THE ISSUES. 20 COULD BE ADDRESSED THROUGH A JOINT MOTION AND ORDER. AND IT SEEMS AND SO IT WOULD SEEM THAT THIS WHOLE AREA 21 DON'T YOU AGREE, MS. GOLDINER? 22 MS. GOLDINER: 23 I DO WANT TO ADD, THOUGH, THAT WE STILL -- TO BE YES, YOUR HONOR. 24 ABLE TO APPROPRIATELY COUNSEL OUR CLIENTS, THE CHILDREN, AND 25 TALK TO THEIR PARENTS ABOUT WHAT THE OPTIONS ARE, WE NEED TO JULY 24, 2018 Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 50 of 53 49 1 KNOW THE ANSWER TO WHETHER IT IS REUNIFICATION AND DEPORTATION 2 OR REUNIFICATION AND BEING HELD IN FAMILY DETENTION. AND THAT'S REALLY IMPORTANT TO OUR CLIENTS. 3 AND I 4 THINK THE GOVERNMENT KNOWS THE ANSWER TO THAT. 5 CHILDREN, AND I WOULD HOPE THEY COULD PROVIDE THAT TO US. 6 HAVE NO PROBLEM WITH CONFERRING WITH THEM, BUT I WOULD LIKE 7 TO -- WE NEED TO KNOW THE ANSWER TO THAT. 8 9 THE COURT: NOT A LOT OF I I THINK THE GOVERNMENT, AS SOON AS YOU KNOW WHO THE PARENTS ARE, YOU CAN INFORM PLAINTIFFS' COUNSEL, 10 WHETHER IT IS REUNIFY AND DEPORT, OR REUNIFY AND DETAIN 11 TOGETHER, OR PAROLE IN COUNTRY. 12 MS. FABIAN: I THINK -- I THINK MY UNDERSTANDING IS 13 THAT WE HAVE MADE THAT AND THAT'S -- WE HAVE INDICATED THAT -- 14 THE CURRENT PLAN. I THINK THERE IS -- OUR POSITION WOULD BE THAT WE 15 16 CAN'T -- INCONSISTENT WITH THIS COURT'S ORDERS IS WE CAN'T 17 GUARANTEE A CERTAIN RESULT OR A CERTAIN OUTCOME FOR THAT 18 INFORMATION THAT CAME UP THAT CHANGED THE -- WHAT -- FOR 19 EXAMPLE SOMEONE OBTAINING AN EXECUTABLE FINAL ORDER MIGHT 20 CHANGE THE PLANS WITH REGARD TO DETENTION OR REMOVAL, ET 21 CETERA. SO I THINK AS THINGS CHANGE, THE AGENCY RETAINS ITS 22 23 AUTHORITY TO MAKE DECISIONS BASED ON THE SITUATION WITH THE 24 FAMILY. 25 INFORMATION BUT CANNOT COMMIT THAT THAT INFORMATION WON'T AND THAT'S WHY WE SAY WE HAVE GIVEN THE CURRENT JULY 24, 2018 Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 51 of 53 1 2 50 CHANGE AS THE PROCESS MOVES FORWARD. THE COURT: RIGHT. I WOULD ASSUME, FOR EXAMPLE, 3 THAT THE ONE PLAN MIGHT BE TO REUNIFY AND DETAIN TOGETHER, OR 4 REUNIFY AND PAROLE INTO THE COMMUNITY, BUT THAT COULD CHANGE 5 AS THE PARENT AND/OR CHILD MIGHT LATER BECOME SUBJECT TO A 6 REMOVAL ORDER DOWN THE ROAD. 7 CORRECT. MS. FABIAN: I THINK -- I MEAN, I THINK TO 8 SOME EXTENT WE WOULD SAY THAT PROVIDING THAT INFORMATION IS A 9 COURTESY THAT WE HAVE BEEN WILLING TO DO TO FACILITATE THE 10 DECISION-MAKING BY THIS GROUP. 11 INFORMATION THAT EVERYONE IS ENTITLED TO -- THAT WE WOULD 12 AGREE EVERYONE IS ENTITLED TO, BUT WE HAVE MADE AN EFFORT TO 13 PROVIDE THE INFORMATION THAT IS CURRENTLY AVAILABLE. 14 AGREE, WE CAN'T COMMIT THAT THINGS WON'T CHANGE. 15 THE COURT: IT IS NOT NECESSARILY I WOULD WHAT IF THE PARTIES HERE -- THAT WOULD 16 BE GOVERNMENT COUNSEL AND MS. GOLDINER AND OTHER PLAINTIFFS' 17 COUNSEL -- MEET AND CONFER. 18 BE A MATTER WHERE YOU COULD REPORT TOMORROW, BY JOINT MOTION 19 AND ORDER. 20 INVOLVED OTHERWISE, THEN WE CAN ARRANGE FOR AN IMMEDIATE 21 TELEPHONIC CONFERENCE AND ARGUMENT SUBJECT TO BRIEFING. AND I WOULD HOPE THAT THIS COULD OR IF THERE IS A NEED FOR THE COURT TO BECOME 22 MS. GOLDINER: 23 MR. STEWART: WE ARE HAPPY TO MEET AND CONFER. CAN I ALSO ADD THE POSSIBILITY, YOUR 24 HONOR, THAT MAYBE NOT EVEN AN ORDER BUT IF WE COULD COME TO A 25 MUTUAL UNDERSTANDING AND ALERT THE COURT TO IT? JULY 24, 2018 Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 52 of 53 51 YOU CAN JUST ALERT THE COURT, EXACTLY. 1 THE COURT: 2 MR. STEWART: 3 THE OTHER THING I MENTIONED -- YOUR HONOR, YOU VERY GOOD. 4 MENTIONED, I THINK YOU USED THE WORD STAY OR NOT REMOVING. 5 THINK WHAT YOU WERE SAYING WAS JUST PUT A PAUSE AS TO THESE 6 FEW PARENTS. 7 OUT THIS SMALL COHORT OF EIGHT OR NINE. DON'T RELOCATE THEM TO NEW YORK UNTIL WE FIGURE YES. 8 THE COURT: 9 MR. STEWART: 10 WILL WORK WITH THAT. 11 THE COURT: 12 THAT'S EXACTLY RIGHT. THANK YOU, YOUR HONOR. I THINK WE MR. STEWART, YOU HAVE ALL OF THE CONTACT INFORMATION FOR MS. GOLDINER AND PLAINTIFFS' COUNSEL? 13 14 MR. STEWART: I BELIEVE SO. I CERTAINLY HAVE A GOOD COHORT OF HER COLLEAGUES, YOUR HONOR, SO WE WILL BE IN TOUCH. OKAY. 15 THE COURT: 16 MR. GELERNT HAS BEEN SITTING VERY QUIETLY. THIS IS 17 NOT YOUR CASE, BUT IS THERE ANY COMMENT OR OBSERVATION, 18 CONCERNS? 19 20 MR. GELERNT: NO, YOUR HONOR. I THINK WE WILL LET THEM WORK IT OUT TOGETHER. OKAY. I THINK WE WILL SIGN OFF. 21 THE COURT: 22 AND I WILL ASK COUNSEL TO MEET AND CONFER RIGHT 23 AWAY, AND I WILL WAIT TO HEAR FROM COUNSEL. 24 25 I * * * JULY 24, 2018 OKAY. THANK YOU. Case 2:18-cv-00939-MJP Document 35-3 Filed 07/25/18 Page 53 of 53 1 2 I CERTIFY THAT THE FOREGOING IS A CORRECT 3 TRANSCRIPT FROM THE RECORD OF PROCEEDINGS IN THE ABOVE-ENTITLED MATTER. 4 5 3/3/2018 S/LEEANN PENCE LEEANN PENCE, OFFICIAL COURT REPORTER DATE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 JULY 24, 2018