Case 2:18-cv-00939-MJP Document 37 Filed 07/26/18 Page 1 of 17 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 1 2 3 4 STATE OF WASHINGTON; et al., 5 Plaintiffs, ) 6 V. 7 8 THE UNITED STATES OF 9 10 AMERICA; et al., Defendants. ) 2:18-cv-00939-MJP ) ) District Judge Marsha Pechman ) ) ) ) ) ) ) 11 12 13 DECLARATION OF JONATHAN WHITE 14 15 I, Jonathan White, declare under penalty of perjury, pursuant to 28 U.S.C. § 1746, 16 17 18 19 that my testimony below is true and correct: 1. I am a Commander with the United States Public Health Service Commissioned Corps, and have served at the Department of Health and Human Services 20 21 (HHS) in three successive presidential administrations. I am presently assigned to the 22 Office of the Assistant Secretary for Preparedness and Response (ASPR), and previously 23 served as the Deputy Director of the Office of Refugee Resettlement (ORR). 24 25 2. The following statements are based on my personal knowledge, information 26 acquired by me in the course of performing my official duties, information supplied to me 27 by federal government employees and contractors, and government records. 28 1 Case 2:18-cv-00939-MJP Document 37 Filed 07/26/18 Page 2 of 17 1 3. I have been involved directly in the actions which HHS has taken to 2 implement Executive Order (EO) 13841 ("Affording Congress an Opportunity to Address 3 4 Family Separation") and comply with the orders in Ms. L, et al. v. US. Immigration and 5 Customs Enforcement, et al., Case No. 18-cv-428 (S.D.Cal.). My understanding is that 6 President Trump issued EO 13841 on June 20, 2018, and the U.S. District Court for the 7 8 9 10 Southern District of California issued its orders in Ms. L. on or before July 26, 2018. 4. My understanding is that the Court in State of Washington, et al. v. United States of America, et al., Case No. 2:18-cv-00939-MJP (W.D.Wash.) ordered the parties 11 12 to submit a letter on the States' request for expedited discovery. I have been asked to 13 address how the support of discovery on topics 2, 5(e)-(g), 6, 1 l(d), and 12 from the 14 States' "[PROPOSED] ORDER GRANTING STATES' MOTION FOR EXPEDITED 15 16 DISCOVERY AND REGULAR STATUS CONFERENCES" would likely impact HHS 17 and the effort to reunify children with class members in Ms. L. To understand the likely 18 impact, some background on the reunification effort may be helpful. 19 20 21 22 HHS RESOURCES DEPLOYED FOR REUNIFICATION 5. The ORR personnel serving the unaccompanied alien children (UAC) program have worked diligently on reunifications of parents and children who were 23 24 separated by the federal government subsequent to apprehension. Some have worked up 25 to 12 to 18 hours per day, 7 days per week on the reunification effort. 26 6. On June 22, 2018, the Secretary of Health and Human Services directed 27 28 ASPR to deploy "surge" personnel and resources to help ORR with the reunification 2 Case 2:18-cv-00939-MJP Document 37 Filed 07/26/18 Page 3 of 17 1 effort. This activation of ASPR augmented the resources that ORR had already devoted to 2 expeditiously discharge children from ORR care. ORR has had to continue performing 3 4 core program functions for minors who cross the border without parents (and who have 5 far outnumbered separated children in ORR care). The augmenting of resources has 6 enabled ORR continue performing those essential core functions. 7 The activation of ASPR included the Secretary's Operations Center (SOC), 7. 8 9 which is a command center that operates 24 hours per day, 365 days per year. 10 The mission of the SOC is to synthesize critical public health and medical information for the 11 12 U.S. Government. While typically used for a public health emergency or natural disaster 13 ( e.g., Hurricane Maria in Puerto Rico), the SOC can also serve as a communications hub 14 for large, data-intensive, inter-departmental operations. 15 16 8. ASPR activated an Incident Management Team (IMT). As of today's date, 17 the IMT has 53 members (in addition to the permanent staff of the SOC). IMT members 18 have worked 12 to 16 hours per day, 7 days per week, in order to provide necessary 19 20 21 22 logistical and administrative support for the reunification effort. 9. Over the past several weeks, ASPR has dispatched as many as 115 personnel to the field to facilitate compliance with the Ms. L court orders to reunify separated 23 24 children and their parents. Those personnel have been drawn from ACF, ASPR, the U.S. 25 Public Health Service Commissioned Corps, and the National Disaster Medical System's 26 Disaster Medical Assistance Teams (DMAT). A DMAT is a cadre of trained health and 27 28 3 Case 2:18-cv-00939-MJP Document 37 Filed 07/26/18 Page 4 of 17 1 medical professionals and para-professionals that augments ASPR's capabilities during 2 public emergencies. 3 4 10. Finally, HHS executed a contract with BCFS Health and Human Services, 5 Inc. (BCFS), to provide an additional 100 reunification case managers, plus approximately 6 40 staff who are working 12-hour shifts to provide further logistical and administrative 7 8 9 10 support for the reunification effort. CURRENT STATUS OF REUNIFICATION EFFORTS IN MS. L. 11. HHS reports the status of reunification efforts to the Ms. L. court. A copy of 11 12 13 14 HHS' most recent status report in Ms. L. is attached as Exhibit 1. 12. Going forward in Ms. L, I presently anticipate that HHS will focus its resources on resolving any remaining disputes about whether particular adults are class 15 16 members eligible for reunification, and on reunifying any remaining class members not in 17 ICE custody with their children. 18 LIKELY IMPACT OF SUPPORTING EXPEDITED DISCOVERY 19 20 13. My understanding is that discovery support in Washington v. United States 21 would include compiling and analyzing information-and · collecting and producing 22 documents-about the reunification effort, as discussed in greater detail below. My 23 24 opinion is that HHS probably does not have additional, available "surge" personnel or 25 ORR personnel with the capabilities necessary to either support the reunification effort, or 26 provide discovery support in Washington v. United States. Any work time that any 27 28 current "surge" personnel or ORR personnel must divert to discovery support in 4 Case 2:18-cv-00939-MJP Document 37 Filed 07/26/18 Page 5 of 17 1 Washington v. United States will result in a commensurate reduction in the time that those· 2 same personnel can devote to the reunification effort. 3 4 5 6 The States ' Topic 2 14. My understanding is that Topic 2 is: "The number of Separated Children placed by ORR in each Plaintiff State from January 1, 2018 to the present, by month and 7 8 facility (or, for individual sponsor placements, the county in which the child resides with 9 such a sponsor)." 10 15. HHS has information about all children for the time period during which they 11 12 are in ORR care. But it does not maintain that information in a monthly, state-by-state, 13 facility-by-facility compilation. Nor does HHS have the systems capability to create such 14 a data compilation through automated means. HHS would have to manually create a 15 16 17 18 customized data compilation for the States. 16. I estimate that it would likely require 1800 to 2000 hours of personnel time to create a data compilation for Topic 2. 19 20 17. This estimate is based partly on the time that HHS previously spent on its 21 manual review of ORR case management records in Ms. L. The manual review in Ms. L. 22 looked only at the ORR case management records for the approximately 12,000 minors 23 24 who were in ORR care at the time of the review. 25 26 18. Here, the main purpose of the manual review would be to identify all separated children in each Plaintiff state from January 1, 2018 to the present. Such a 27 28 5 Case 2:18-cv-00939-MJP Document 37 Filed 07/26/18 Page 6 of 17 1 review would be necessary because the date range and specific data points (e.g., locations 2 of discharges) for Topic 2 exceed the scope of the manual review in Ms. L. 3 4 5 6 The States ' Topics 5(e)-(g), 6(a)-(e), and 11 (d) 19. My understanding is that Topics 5(e)-(g) are: "As to every Separated Parent who is present in any Plaintiff State (or who was present in a Plaintiff State on the day this 7 8 lawsuit was filed): . . . (e) The contact that Defendants have provided between the 9 Separated Parent and his or her child(ren); (t) The location of that Separated Parent's 10 children (if in an ORR placement or custody); and (g) DHS' plan to reunify the Separated 11 12 13 14 Parent with the child." 20. My understanding is that Topics 6(a)-(e) are: "As to every Separated Child who is present in any Plaintiff State (or who was present in a Plaintiff State on the day this 15 16 lawsuit was filed): (a) The current placement and location of every such child (e.g., living 17 with a sponsor in Seattle, Washington); (b) The contact that Defendants have provided 18 between the child and their Separated Parent(s) or other family members; (c) The location 19 20 of that Separated Child's Separated Parent(s); (d) DHS' plan to reunify the Separated 21 Child with the Separated Parent(s); and (e) Information concerning the circumstances and 22 progress of such reunification efforts." 23 24 21. My understanding is that Topic ll(d) is: "For all Separated Parents who 25 entered the United States along the Southwestern border from January 1, 2018, 26 information regarding: (d) All reunification efforts the Defendants have made concerning 27 28 6 Case 2:18-cv-00939-MJP Document 37 Filed 07/26/18 Page 7 of 17 1 Separated Parents who were removed from the United States without their Separated 2 Children." 3 4 22. As noted above, HHS has information about all children for the time period 5 during which they are in ORR care. HHS also receives information about the parents of 6 such children from DHS. 7 8 23. HHS, however, does not have the systems capability to generate a log of the 9 contacts between each child and parent (or family member)-or the current placement and 10 location of each child-through automated means. HHS would have to compile and 11 12 organize that information manually, as part of the broader review of ORR case 13 management records discussed above. Likewise, HHS does not maintain individualized 14 reunification plans or reunification status updates for specific parents and children in a 15 16 17 18 narrative format. It would have to prepare such narratives for the States. 24. I estimate that HHS would likely require at least an additional 450 hours to compile and organize information and prepare individualized narratives for Topics 5(e)- 19 20 (g), 6(a)-(e), and ll(d). Moreover, much of the information for those topics is dynamic, 21 and changes frequently as the reunification process moves forward. Any supplementation 22 would require additional manual work. 23 24 The States' Topics 12(a)-(c) 25 25. 26 My understanding is that Topics 12(a)-(c) are: "For all Separated Parents who have been released from DHS custody since January 1, 2018, all information 27 28 regarding DHS and HHS efforts to reunite Separated Parents and Separated Children~ 7 Case 2:18-cv-00939-MJP Document 37 Filed 07/26/18 Page 8 of 17 1 including but not limited to: (a) Information regarding the paperwork required of 2 Separated Parents who want to reunite with their Separated Children, including any 3 4 requirement that Separated Parent complete Family Reunification Applications, including 5 background checks, DNA testing, or fingerprinting, before reunification with their 6 Separated Children; (b) Information regarding any financial requests or demands made of 7 8 Separated Parents who want to reunite with their Separated Children, including demands 9 that Separated Parents pay the airfare for Separated Children and escorts as a condition of 10 reunification; and (c) Information regarding any other conditions or requirements the 11 12 Defendants are placing on Separated Parents who want to reunite with their Separated 13 Children." 14 26. As noted above, HHS has information about all children for the time period 15 16 during which they are in ORR care. HHS also receives information about the parents of 17 such children from DHS. 18 27. HHS, however, does not have the systems capability to generate a log of the 19 20 individualized documentation completed by specific parents or children----or any 21 individualized requests, demands, conditions, or requirements allegedly related to 22 reunification-through automat~d means. 23 24 28. HHS would have to research, compile, and organize such individualized 25 information manually, as part of the broader review of ORR case management records 26 discussed above. In some instances, HHS might have to obtain the information from 27 28 8 Case 2:18-cv-00939-MJP Document 37 Filed 07/26/18 Page 9 of 17 1 DHS. The presentation of the individualized information might also involve the collection 2 and production of documents or the drafting of narratives. 3 4 29. I estimate that HHS would likely require at least an additional 300 hours to 5 research, compile, and organize such information (and possibly collect and produce 6 documents and prepare individualized narratives) for Topics 12(a)-(c). Moreover, some 7 8 of the information for those topics might change as the reunification process moves 9 forward. Any supplementation could require additional manual work. 10 Overall Likely Impact of Supporting Expedited Discovery 11 12 30. If HHS must provide the level of discovery support described above within 13 the next 30 days, then HHS will have to divert current "surge" personnel or ORR 14 personnel from work on reunifications to work on discovery support. A diversion of that 15 16 magnitude would have an adverse material impact on the ability of HHS to reunify parents 17 and children promptly in Ms. L. 18 31. The estimates and opinions that I have provided in this declaration are based 19 20 on the information known to me at this time (including information about the States' 21 discovery topics), and my best professional judgment. I reserve the right to amend my 22 estimates and opinions if the information known to me changes. 23 24 Executed on July 26, 2018. 25 26 27 28 9 Case 3:18-cv-00428-DMS-MDD Case 2:18-cv-00939-MJP Document Document 14637Filed Filed 07/23/18 07/26/18PageID.2420 Page 10 of 17 Page 1 of 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 CHAD A. READLER Acting Assistant Attorney General SCOTT G. STEWART Deputy Assistant Attorney General WILLIAM C. PEACHEY Director Office of Immigration Litigation U.S. Department of Justice WILLIAM C. SILVIS Assistant Director Office of Immigration Litigation SARAH B. FABIAN Senior Litigation Counsel NICOLE MURLEY Trial Attorney Office of Immigration Litigation U.S. Department of Justice Box 868, Ben Franklin Station Washington, DC 20442 Telephone: (202) 532-4824 Fax: (202) 616-8962 16 17 18 19 20 21 22 23 24 25 26 27 28 ADAM L. BRAVERMAN United States Attorney SAMUEL W. BETTWY Assistant U.S. Attorney California Bar No. 94918 Office of the U.S. Attorney 880 Front Street, Room 6293 San Diego, CA 92101-8893 619-546-7125 619-546-7751 (fax) Attorneys for Federal Respondents-Defendants Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2660 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 398-4485 F: (619) 232-0036 bvakili@aclusandiego.org Stephen B. Kang (SBN 292280) Spencer E. Amdur (SBN 320069) AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 skang@aclu.org samdur@aclu.org Attorneys for PetitionersPlaintiffs *Admitted Pro Hac Vice Case 3:18-cv-00428-DMS-MDD Case 2:18-cv-00939-MJP Document Document 14637Filed Filed 07/23/18 07/26/18PageID.2421 Page 11 of 17 Page 2 of 8 1 2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 3 4 Case No. 18cv428 DMS MDD MS. L, et al., 5 Petitioners-Plaintiffs, 6 JOINT STATUS REPORT vs. 7 U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., 8 9 Respondents-Defendants. 10 11 The Court ordered the parties to file a joint status report on July 23, 2018, in 12 13 anticipation of the status conference scheduled for July 24, 2018 at 3:00pm PST. 14 The parties submit this joint status report in accordance with the Court’s instruction. 15 16 I. 17 DEFENDANTS’ POSITIONS A. Update on Reunification Process 18 The reunification plan outlined to the Court in Defendants’ filing on July 19 15, 2018, ECF No. 109, and discussed at the July 16, 2018 status conference, is 20 21 proceeding. Defendants report the following with regard to the reunification of 22 families with children ages 5-17: 1 23 24 1 The numbers provided are based on daily reports that have not been analyzed to 25 ensure as much accuracy as the government could ensure if it had several days to 26 analyze and verify each statistic. These numbers are from the daily report as of 8:00 AM Eastern on July 23, 2018. While most numbers changed since the last 27 28 1 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Case 2:18-cv-00939-MJP Document Document 14637Filed Filed 07/23/18 07/26/18PageID.2422 Page 12 of 17 Page 3 of 8 1 • Total number of possible children of potential class members identified: 2,551 2 3 4 5 6 7 8 9 10 11 12 13 14 15 • Potential class members possibly eligible for reunification: 1634 o Class members successfully reunified in ICE custody: 879 o Class members in ICE custody interviewed and cleared for reunification, transport pending: 538 o Potential class members in ICE custody pending interview: 0 o Potential class members in ICE custody pending child file review: 0 o Potential class members released to the interior by ICE: 217 • Potential class members, or non-members of the class, either not eligible, or not yet known to be eligible, for reunification: 917 o Adults known to be in U.S. Marshal, State or local custody: 0 o At interview, parent waived reunification: 130 o Adults with prohibitive criminal record or deemed ineligible by ORR or ICE: 64 o Case notes indicate adult is not in U.S., under review: 463 o Further evaluation: 260 (many of these children have been discharged by ORR in appropriate circumstances) 16 17 18 19 • Class members with a final order of removal: 900 • Total number of reunifications or other appropriate discharges by ORR: 1,187 20 21 22 23 24 status report due to significant progress in reunifications, some minor changes are 25 attributable to continual review of the case files. In the interest of providing information that is as up-to-date as possible, although not without the possibility 26 needing further correction, the numbers provided in Section A reflect the best 27 estimates the government has as of 8:00 AM Eastern on July 23, 2018. 28 2 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Case 2:18-cv-00939-MJP Document Document 14637Filed Filed 07/23/18 07/26/18PageID.2423 Page 13 of 17 Page 4 of 8 1 2 3 B. Class Member Lists and Other Information For Plaintiffs Defendants continue to provide Plaintiffs’ counsel the daily “cleared” list when that list is updated. On July 20, 2018, Defendants provided Plaintiffs with a 4 5 list of class members who stated that they did not wish to be reunified with their 6 children at the final interview with HHS. Defendants will provide an update to that 7 list on July 24, 2018. On July 20, 2018, Defendants provided Plaintiffs with a 8 9 spreadsheet containing updated information regarding 1601 class members. That 10 spreadsheet reflects whether those class members have a final order of removal, 11 and whether they have been removed or released, or if they remained in ICE 12 13 custody, then their current detention location. For those class members who have 14 final orders of removal, Defendants are reviewing files to provide Plaintiffs’ 15 counsel with a list of those class members who have waived reunification prior to 16 17 removal. 18 19 In addition, Defendants had previously stated that on or before July 20, 2018, Defendants would provide Plaintiffs with a list of class members who have 20 21 been removed, including the date of removal, country of removal, and last 22 detention location, and that on or before July 23, 2018, Defendants would provide 23 Plaintiffs with a list of class members who have been released from ICE custody. 24 25 However, Defendants were not able to provide these lists because some of this 26 information is still under review. Defendants believe that some of the requested 27 28 3 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Case 2:18-cv-00939-MJP Document Document 14637Filed Filed 07/23/18 07/26/18PageID.2424 Page 14 of 17 Page 5 of 8 1 information is contained in the spreadsheets that were previously provided to 2 Plaintiffs, and in an updated spreadsheet being provided to Plaintiffs today, July 3 23, 2018. However, Defendants are continuing to review their case notes and 4 5 intend to provide updated data on these two categories of class members as soon as 6 possible. 7 II. PLAINTIFFS’ POSITIONS 8 9 Plaintiffs have received no new information about Class Members from 10 Defendants since the hearing on Friday, July 20. In particular, Defendants have not 11 provided the following information: 12 13 1. A list of Class Members who have been removed from the country. 14 See Joint Status Report, Dkt. 124, at 3 (July 20, 2018) (stating that Defendants 15 would provide this information by July 20). 16 17 2. Updated lists of Class Members who have been “greenlighted” for 18 reunification. The last two such lists were sent by Defendants on July 16 and July 19 20. See Joint Status Report, Dkt. 124, at 2 (stating that Defendants were providing 20 21 this list “on a daily basis when it is updated”). 22 23 24 3. A complete list of the parents with final removal orders who signed a form electing to be removed without their children. These parents urgently need 25 consultations with lawyers, so that they do not mistakenly strand their children in 26 the United States, and Plaintiffs’ partners are ready to provide these consultations 27 28 4 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Case 2:18-cv-00939-MJP Document Document 14637Filed Filed 07/23/18 07/26/18PageID.2425 Page 15 of 17 Page 6 of 8 1 immediately. Plaintiffs have been requesting this information each day since 2 Wednesday, July 18. According to the government’s representations, there may be 3 several dozen parents on this list, and they may not be identified in any list 4 5 Defendants have provided thus far. Plaintiffs respectfully ask the Court to order 6 Defendants to provide this information by 5:00pm PT on July 24. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Case 2:18-cv-00939-MJP Document Document 14637Filed Filed 07/23/18 07/26/18PageID.2426 Page 16 of 17 Page 7 of 8 1 DATED: July 23, 2018 Respectfully submitted, 2 /s/ Lee Gelernt Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2660 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 398-4485 F: (619) 232-0036 bvakili@aclusandiego.org 17 18 19 20 21 22 23 24 25 26 Stephen B. Kang (SBN 292280) Spencer E. Amdur (SBN 320069) AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 skang@aclu.org samdur@aclu.org Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice 27 28 6 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Case 2:18-cv-00939-MJP Document Document 14637Filed Filed 07/23/18 07/26/18PageID.2427 Page 17 of 17 Page 8 of 8 1 2 3 4 5 CHAD A. READLER Acting Assistant Attorney General SCOTT G. STEWART Deputy Assistant Attorney General WILLIAM C. PEACHEY Director WILLIAM C. SILVIS Assistant Director 6 7 8 9 10 11 12 13 14 15 16 17 18 19 /s/ Sarah B. Fabian SARAH B. FABIAN Senior Litigation Counsel NICOLE MURLEY Trial Attorney Office of Immigration Litigation Civil Division U.S. Department of Justice P.O. Box 868, Ben Franklin Station Washington, DC 20044 (202) 532-4824 (202) 616-8962 (facsimile) sarah.b.fabian@usdoj.gov ADAM L. BRAVERMAN United States Attorney SAMUEL W. BETTWY Assistant U.S. Attorney Attorneys for Respondents-Defendants 20 21 22 23 24 25 26 27 28 7 18cv428 DMS MDD