Case 1:18-cv-01759-PLF Document 15 Filed 07/30/18 Page 1 of 10 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA M.M.M., ON BEHALF OF HIS MINOR CHILD, J.M.A., ET AL., ) ) ) Plaintiffs, ) ) v. ) ) JEFFERSON BEAUREGARD SESSIONS, ) III, ATTORNEY GENERAL OF THE ) UNITED STATES, ET AL., ) ) Defendants. ) _____________________________________ ) No. 1:18-cv-1759 (PLF) DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER The Court should deny a temporary restraining order and transfer this case to the Southern District of California so that it can be considered together with Ms. L v. ICE, No. 18-428 (S.D. Cal.) (Sabraw, J.), a certified class action involving claims, issues, relief, and parties that substantially overlap with this case and in which, over a month ago, the district court issued a preliminary injunction that the present case, if permitted to proceed, will undermine and obstruct. In Ms. L, Judge Sabraw certified a nationwide class of parents of minor children separated at the border and entered an order requiring that those families be reunified. That court-ordered reunification process has progressed quickly under Judge Sabraw’s orders and oversight, and multiple judges have recognized that cases raising claims and issues that overlap with Ms. L should be transferred to Judge Sabraw. During the reunification ordered by Judge Sabraw, two groups of children—including one putative class—filed suits in the Southern District of New York seeking to halt reunifications due to the impact that those reunifications would have on the children’s immigration proceedings. The Southern District of New York transferred those actions to the 1 Case 1:18-cv-01759-PLF Document 15 Filed 07/30/18 Page 2 of 10 Southern District of California to be considered in conjunction with the interests of Ms. L class member parents in pursuing the reunification order. This Court should do the same thing here. In this case, a putative class of parents, on behalf of their children, which essentially parallels the certified class of parents in Ms. L, seeks relief from removal on behalf of themselves and their parents. This relief overlaps with the multiple suits now before the Southern District of California—and indeed challenges the reunification requirements and process ordered and authorized by that court. This Court should promptly transfer this case so that the claims can be considered together with the claims of the certified class of parents in Ms. L, and to avoid imposing inconsistent and conflicting obligations on the government. The relief sought here is fundamentally inconsistent with the claims in Ms. L, where the parents pressed a theory that they are entitled to be detained with, and have immigration-removal decisions made together with, their children. Having received that relief, and there having been no showing that reunified parents are unfit or otherwise not entitled to act on behalf of their children, claims that are purportedly brought on behalf of their children should not be separately considered in this action. LEGAL STANDARD Preliminary relief is appropriate only if a plaintiff demonstrates that: (1) he is substantially likely to succeed on the merits; (2) he will be irreparably injured if an injunction is not granted; (3) preliminary relief will not substantially injure the defendant; and (4) preliminary relief furthers the public interest. Barton v. District of Colum., 131 F. Supp. 2d 236, 241 (D.D.C. 2001) (quoting Mova Pharmaceutical Corp. v. Shalala, 140 F.3d 1060, 1066 (D.C. Cir. 1998)). When a plaintiff seeks preliminary relief, he must “demonstrate that irreparable injury is likely in the absence of an injunction.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (emphasis in original). 2 Case 1:18-cv-01759-PLF Document 15 Filed 07/30/18 Page 3 of 10 The “D.C. Circuit ‘has set a high standard for irreparable injury.’” Jones v. D.C., 177 F. Supp. 3d 542, 545 (D.D.C. 2016) (quoting Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006)). To meet this standard, “[t]he injury must be both certain and great; it must be actual and not theoretical.” Id. (quoting Chaplaincy, 454 F.3d at 297). ARGUMENT Plaintiffs seek a temporary restraining order barring Defendants from removing “all noncitizen children, and the parents or guardians of such children, who were separated upon entry into the United States.” Mem. 27. This Court should deny that relief. First, this Court should not entertain this suit at all because it would obstruct and undermine a class-wide preliminary injunction, entered in the Southern District of California in Ms. L, that involves claims, issues, relief, and parties that overlap with this case. 1 As other courts have done in recent days, this Court should transfer this case to the Southern District of California to promote the orderly and consistent administration of the issues and claims presented in these cases. Second, this Court lacks jurisdiction to grant the stay of removals that Plaintiffs request. The Immigration and Nationality Act (INA) bars district courts from enjoining the execution of removal orders. A. This Court Should Deny a TRO and Immediately Transfer this Case Because the Requested Relief Would Interfere with an Injunction in an Ongoing Case that Involves Overlapping Claims, Issues, Relief, and Parties. The TRO should be denied—and the case should be transferred to the Southern District of California—because a TRO would overlap and interfere with the reunification process being administered by Judge Sabraw in Ms. L. Judge Sabraw has ordered and is overseeing relief on the claims of a certified class of the parents seeking relief on behalf of the putative class here with While the majority of the Ms. L. class members have been reunified either in ICE custody or in the interior of the United States, the federal government is still reunifying some class members, including those removed from the United States, as they become eligible or available. 1 3 Case 1:18-cv-01759-PLF Document 15 Filed 07/30/18 Page 4 of 10 respect to their custody and removal. Absent a severing of parental rights, those parents are entitled to act on behalf of their children in litigation—including by seeking reunification and departure from the United States as a family unit rather than separate immigration proceedings for the parent and child, as a UAC. Judge Sabraw is also considering the very issues presented here in connection with a putative class action filed on behalf of children in New York that directly overlaps with the putative class here. This class claim must also be promptly transferred to Judge Sabraw’s court to consider the request for injunctive relief. The “usual rule” in this Circuit is that ‘[w]here two cases between the same parties on the same cause of action are commenced in two different Federal courts, the one which is commenced first is to be allowed to proceed to its conclusion first.” UtahAmerican Energy, Inc. v. Dep’t of Labor, 685 F.3d 1118, 1124 (D.C. Cir. 2012) (quoting Wash. Metro. Area Transit Auth. v. Ragonese, 617 F.2d 828, 830 (D.C. Cir. 1980)). The D.C. Circuit follows this rule because “[c]onsiderations of comity and orderly administration of justice dictate that two courts of equal authority should not hear the same case simultaneously.” Id. (quoting Wash. Metro., 617 F.2d at 830); see Colo. River Water Conservation District v. United States, 424 U.S. 800, 817 (1976) (“As between federal district courts . . . the general principle is to avoid duplicative litigation.”); Crawford v. Bell, 599 F.2d 890, 892 (9th Cir. 1979) (dismissal appropriate where “the complainant is a member in a class action seeking the same relief”). That rule supports transferring this case to the Southern District of California. Plaintiffs seek an order that, if granted, would interfere with ongoing litigation in another court. In Ms. L., the Southern District of California approved the use of an “Election Form,” which allows an alien parent to elect that, “[i]f I lose my case and am going to be removed, I would like to take my child with me.” Notice at 2, ECF No. 97. In approving the use of the Election Form, which the class 4 Case 1:18-cv-01759-PLF Document 15 Filed 07/30/18 Page 5 of 10 plaintiffs proposed in Ms. L, the Ms. L court accepted the established principle that a parent can lawfully waive her child’s potential rights to relief, including under the immigration laws. See, e.g., Fed. R. Civ. P. 17(c)(1). And because this action has been brought by the parents of the minor children—see Compl. 1 & ¶ 10—who are class members in Ms. L. and have waived the rights of their children through their class counsel and pursuant to a reunification form, the parents must seek relief in the Southern District of California. The parents cannot seek to link their removal orders to their children’s putative asylum claims by filing an action in another federal court. That is, they cannot seek relief that is inconsistent with what they have already received in the Southern District of California, and so their claims here should be rejected. Here, Plaintiffs allege that the government has implemented a policy that unlawfully allows a parent to waive her child’s “independent asylum and other statutory protection rights.” Mem. 7. But the Ms. L. court has already approved the use of an Election Form—which was proposed by the parents themselves through class counsel—under which a parent can waive her child’s separate immigration rights. So if this Court enjoined the government from allowing a parent to waive her child’s rights, the injunction would interfere with the Ms. L. litigation, violate principles of comity, and undermine the orderly administration of justice. At least two other judges have refused to hear claims that overlapped with the Ms. L claims. In N.T.C. v. ICE, No. 18-cv-6428 (S.D.N.Y. July 19, 2018), the court found that the plaintiffs’ claims were, “at bottom, directly related to the reunification process being supervised by Judge Sabraw [in Ms. L].” Order at 3. The court accordingly transferred the case to Judge Sabraw. And in E.S.R.B. v. Sessions, No. 18-cv-6654 (S.D.N.Y. July 24, 2018), another judge in the Southern District of New York reached the same conclusion and transferred the case to Judge Sabraw. 5 Case 1:18-cv-01759-PLF Document 15 Filed 07/30/18 Page 6 of 10 Like the claims in the Southern District of New York cases, the claims in this case directly relate to the reunification process that Judge Sabraw is supervising in Ms. L. If this Court were to grant a temporary restraining order, it would affirmatively interfere with the Ms. L litigation. In accordance with the principles of comity and orderly administration of justice, the Court should not enter an order that would interfere with the Ms. L litigation. UtahAmerican Energy, 685 F.3d at 1124. Instead, the Court should transfer this case to Judge Sabraw. B. This Court Lacks Jurisdiction Over This Case. As discussed above, the Court should decline jurisdiction because “a complaint involving the same parties and issues has already been filed in another district.” Apple Inc. v. Psystar Corp., 658 F.3d 1150, 1161 (9th Cir. 2011). “The well-established rule is that, in cases of concurrent jurisdiction, the first court in which jurisdiction attaches has priority to consider the case.” Entines v. United States, 495 F. Supp. 2d 84, 85 (D.D.C. 2007). Because the Ms. L case was filed before this one, and because it raises the same issues and involves many of the same parties as this case, the Court should decline jurisdiction pursuant to the first-to-file rule. Even if the Court did not decline jurisdiction pursuant to the first-to-file rule, it would lack jurisdiction to grant the stay of removal that Plaintiffs request. The Immigration and Nationality Act (INA) deprives district courts of jurisdiction to enjoin the execution of a final expedited removal order, see 8 U.S.C. §§ 1252(a)(2)(A)(i), 1252(e)(1), (2), (4), and more generally forbids district courts from hearing any cause or claim that arises from the government’s “decision or action . . . [to] execute removal orders,” id. § 1252(g). These provisions foreclose the stay of removal that Plaintiffs request. Plaintiffs allege that the government has implemented an unlawful “policy of denying [them] their rights to pursue asylum in the United States.” Mem. 11. Plaintiffs claim that they are 6 Case 1:18-cv-01759-PLF Document 15 Filed 07/30/18 Page 7 of 10 challenging this alleged new policy under 8 U.S.C. § 1252(e)(3). Under that provision, a party may assert a claim that “a written policy directive, written policy guideline, or written procedure . . . to implement [8 U.S.C. § 1225(b)], is not consistent with applicable [law].” Such a claim must be brought “no later than 60 days after the date the challenged . . . directive, guideline, or procedure . . . is implemented.” 8 U.S.C. § 1252(e)(3)(B). Plaintiffs do not identify any specific written document that implements § 1225(b) and was issued in the past 60 days. Because section 1252(e)(3) applies only with respect to a written document that was issued in the past 60 days, Plaintiffs do not properly invoke section 1252(e)(3). And to the extent that Plaintiffs challenge an unwritten policy or practice, section 1252(e)(3) does not apply. AILA v. Reno, 18 F. Supp. 2d 38, 58 (D.D.C. 1998) (“[B]ased on the clear language of the jurisdictional provision of § 242(e)(3)(A)(ii), this Court cannot review unwritten policies or practices . . . .”). Plaintiffs’ § 1252(e)(3) claim is not likely to succeed on the merits. Plaintiffs also allege that “DHS, ICE and other Defendants promulgated, at some point after June, 2018, internal written directives implementing the reunification order in Ms. L and Executive Order 13841.” Compl. ¶ 62. Plaintiffs go on to allege that these directives “ordered DHS and ICE personnel to effectuate the deportation of families as soon as practically possible following reunification by securing the parent’s agreement to be deported with their child, extracting the child from removal proceedings under Section 240, and placing the child back in the custody of the parent so that they could be prepared for immediate deportation.” Id. The complaint further alleges that the challenged policy “of denying Plaintiffs their rights to pursue asylum . . . is reflected in written statements and directives included but not limited to the DHS Fact Sheet . . . .” Compl. ¶ 132. In substance, Plaintiffs challenge: (1) the fact that after Defendants reunified alien minors with their parents, Defendants cancelled notices to appear that it had issued 7 Case 1:18-cv-01759-PLF Document 15 Filed 07/30/18 Page 8 of 10 to the minors on the premise that they were “unaccompanied;” and (2) the process by which a parent with a final expedited order of removal may elect to be removed from the United States with her child, notwithstanding the child’s assertion that she has a credible fear. Mem. 5, 8. Plaintiffs fail to state a claim under section 1252(e)(3), and are not likely to succeed on the merits of that claim. Other than issuing documents needed to implement the injunction – which can’t form the basis of a case under section 1252(a)(3) – Plaintiffs do not allege that there are any guidance or policies that have been issued in the last 60 days under the Executive Order or otherwise, and there are none. The DHS Fact Sheet that Plaintiffs reference is not new guidance. Indeed, Defendants’ compliance with the court’s Order in Ms. L is not the type of new policy or directive that is subject to challenge only in this district under section 1252(e)(3). Allowing Plaintiffs’ claim to proceed on that basis only opens the door to improper horizontal appeals of the decisions of other district courts. The practices that Plaintiffs now challenge derive from two separate and hardly novel policies. First, permitting parents to make decisions on behalf of their children reflects longstanding precepts regarding parental rights. In fact, recognition of those parental rights is what permits the parents of the six named Plaintiffs to bring this lawsuit on the Plaintiffs’ behalf. See Fed. R. Civ. P. 17. Such parental rights were also recognized by a now rescinded August 23, 2013 Immigration and Customs Enforcement internal directive entitled “Facilitating Parental Interests in the Course of Civil Immigration Enforcement Activities,” which defined parental rights as “[t]he fundamental rights of parents to make decisions concerning the care, custody, and control of their minor children without regard to the child’s citizenship, as provide for and limited by applicable law.” United States v. Dominguez-Portillo, No. EP-17-MJ-4409-MAT, 2018 WL 315759, at *11 8 Case 1:18-cv-01759-PLF Document 15 Filed 07/30/18 Page 9 of 10 (W.D. Tex. Jan. 5, 2018).2 Judge Sabraw’s own statements reflect his acknowledgment of parental rights in this very context. See Exhibit 1, Ms. L, No. 18-cv-428, July 28, 2018 Status Conf. Tr. 39:19-40:2 (“But under the law what matters in the parent. I mean, what this case has always been about is the due process right to family integrity. . . . And it is the parent that makes the decisions. In a perfect world it could be a family decision, but the child’s view, under the law, doesn’t matter. It is the parent’s view, ultimately, whether to remove together or separately.”). In any event, the UAC provisions and procedures were designed to address unaccompanied minors, and are not appropriate when a parent has custody of, and to act for and make decisions on behalf of, the child. See 6 U.S.C. § 279(g) (UAC provisions apply only when “no parent or legal guardian is available to provide care and physical custody”). And Judge Sabraw is currently considering the impact of his injunction with respect to children, given the requests before him with respect to a stay of removal to permit reunified families to confer and the transferred class action from New York. These are issues that relate to injunction compliance and implementation; accordingly, Plaintiffs’ § 1252(e)(3) claim is not likely to succeed on the merits. C. Plaintiffs Are Not Entitled to Classwide Relief. Here, Plaintiffs’ only attempt to distinguish this action from Ms. L is Plaintiffs’ claim under § 1252(e)(3). Even if Plaintiffs properly invoked § 1252(e)(3), they would not be entitled to relief beyond the named Plaintiffs. Section 1252(e)(1)(B) provides that “no court may . . . certify a class under Rule 23 of the Federal Rules of Civil Procedure in any action for which judicial review is authorized under a subsequent paragraph of this subsection.” Accordingly, for a § 1252(e)(3) claim (a claim for which judicial review is authorized under a paragraph of subsection (e) that is 2 That directive was superseded on August 29, 2017 by a directive entitled “Detention and Removal of Alien Parents or Legal Guardians.” See https://www.ice.gov/doclib/detentionreform/pdf/directiveDetainedParents.pdf (last visited July 29, 2018). 9 Case 1:18-cv-01759-PLF Document 15 Filed 07/30/18 Page 10 of 10 subsequent to paragraph (e)(1)), a court may not certify a class action. If the Court issues a temporary restraining order, the order should grant relief only to the named Plaintiffs. 8 U.S.C. § 1252(e)(1)(B). Dated: July 30, 2018 Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General Civil Division /s/ Jeffrey S. Robins JEFFREY S. ROBINS Assistant Director U.S. Department of Justice, Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Washington, DC 20044 Telephone: (202) 616-1246 Facsimile: (202) 305-7000 jeffrey.robins@usdoj.gov SCOTT G. STEWART Deputy Assistant Attorney General AUGUST E. FLENTJE Special Counsel WILLIAM C. PEACHEY Director, Office of Immigration Litigation District Court Section Attorneys for Defendants 10 Case Document 15-1 Filed 07/30/18 Page 1 of 61 EXHIBIT I Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 2 of 61 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA BEFORE HONORABLE DANA M. SABRAW, JUDGE PRESIDING _______________________________________ ) MS. L. AND MS. C., ) )CASE NO. 18CV0428-DMS PETITIONERS-PLAINTIFFS, ) ) VS. ) )SAN DIEGO, CALIFORNIA U.S. IMMIGRATION AND CUSTOMS ) FRIDAY JULY 27, 2018 ENFORCEMENT ("ICE"); U.S. DEPARTMENT ) 1:30 P.M. CALENDAR OF HOMELAND SECURITY ("DHS"); U.S. ) CUSTOMS AND BORDER PROTECTION ("CBP"); ) U.S. CITIZENSHIP AND IMMIGRATION ) SERVICES ("USCIS"); U.S. DEPARTMENT ) OF HEALTH AND HUMAN SERVICES ("HHS"); ) OFFICE OF REFUGEE RESETTLEMENT ("ORR"); ) THOMAS HOMAN, ACTING DIRECTOR OF ICE; ) GREG ARCHAMBEAULT, SAN DIEGO FIELD ) OFFICE DIRECTOR, ICE; ADRIAN P. MACIAS, ) EL PASO FIELD DIRECTOR, ICE; FRANCES M. ) JACKSON, EL PASO ASSISTANT FIELD ) OFFICE DIRECTOR, ICE; KIRSTJEN NIELSEN, ) SECRETARY OF DHS; JEFFERSON BEAUREGARD ) SESSIONS III, ATTORNEY GENERAL OF THE ) UNITED STATES; L. FRANCIS CISSNA, ) DIRECTOR OF USCIS; KEVIN K. ) MCALEENAN, ACTING COMMISSIONER OF ) CBP; PETE FLORES, SAN DIEGO FIELD ) DIRECTOR, CBP; HECTOR A. MANCHA JR., ) EL PASO FIELD DIRECTOR, CBP; ) ALEX AZAR, SECRETARY OF THE ) DEPARTMENT OF HEALTH AND HUMAN ) SERVICES; SCOTT LLOYD, DIRECTOR ) OF THE OFFICE OF REFUGEE RESETTLEMENT, ) ) RESPONDENTS-DEFENDANTS. ) ---------------------------------------REPORTER'S TRANSCRIPT OF PROCEEDINGS STATUS CONFERENCE Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 3 of 61 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 STEPHAN B. KANG, ESQ. ACLU OF NORTHERN CALIFORNIA 39 DRUMM STREET SAN FRANCISCO, CALIFORNIA 94111 FOR DEFENDANT: REPORTED BY: SCOTT STEWART, ESQ. SARAH B. FABIAN, ESQ. (TELEPHONICALLY) U.S. DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION P.O. BOX 868 BEN FRANKLIN STATION WASHINGTON, DC 20044 LEE ANN PENCE, OFFICIAL COURT REPORTER UNITED STATES COURTHOUSE 333 WEST BROADWAY, ROOM 1393 SAN DIEGO, CALIFORNIA 92101 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 4 of 61 1 SAN DIEGO, CALIFORNIA - FRIDAY, JULY 27, 2018 - 1:35 P.M. * 2 3 THE CLERK: * * NO. 15 ON CALENDAR, CASE NO. 18CV0428, 4 MS. L. VERSUS IMMIGRATION AND CUSTOMS ENFORCEMENT; ON FOR 5 STATUS CONFERENCE. GOOD AFTERNOON. 6 THE COURT: 7 CAN I HAVE APPEARANCES, PLEASE? 8 MR. GELERNT: 9 GOOD AFTERNOON, YOUR HONOR. GOOD AFTERNOON, YOUR HONOR. MR. KANG: 11 FROM THE ACLU FOR PLAINTIFFS. 13 GOOD AFTERNOON, YOUR HONOR. 15 MR. STEWART: 18 19 BARDIS VAKILI FOR THE THANK YOU. THE COURT: 17 GOOD AFTERNOON, YOUR HONOR. SCOTT STEWART FOR THE DEFENDANTS. AND MY COLLEAGUE, MS. FABIAN, I BELIEVE IS ON THE LINE AS WELL. THE COURT: IT MAY BE THAT THOSE WHO ARE ON THE LINE 20 ARE ON THE MUTED SYSTEM. 21 WITH YOU DIRECTLY, MR. STEWART, GOING FORWARD. 22 STEPHEN KANG PLAINTIFFS. 14 16 LEE GELERNT FROM THE ACLU FOR PLAINTIFFS. 10 12 3 SO I THINK I WILL BE COMMUNICATING THERE IS ALSO -- AND WE CAN ADDRESS IT IN A MOMENT. 23 THERE IS ANOTHER NEW YORK LAWSUIT INVOLVING NINE CHILDREN 24 BEING REPRESENTED BY THE GREENBERG TRAURIG FIRM. 25 THINK THOSE ATTORNEYS ARE ON THE LINE AND THEY MAY BE CALLING JULY 27, 2018 I DON'T Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 5 of 61 1 IN AFTER, LIKE WE DID LAST WEEK. 2 TRANSFERRING THAT CASE HERE AS WELL. AND JUDGE RAKOFF IS 3 DO YOU HAVE ANY INFORMATION ON THAT CASE? 4 MR. STEWART: 5 HAS BEEN MOVING A LITTLE SWIFTLY. 6 I BELIEVE SOME KIND OF A QUICK HEARING WITH JUDGE RAKOFF 7 SCHEDULED ONLY MINUTES AGO. 8 HAPPEN. 9 THE COURT: 4 SPOTTY INFORMATION, YOUR HONOR. IT I KNOW THAT THERE WAS A -- SO IT SOUNDS LIKE THAT DID IT SOUNDS AS THOUGH THAT CASE IS GOING 10 TO WORK MUCH LIKE WHAT WE HAVE IN PLACE HERE ON THE PENDING 11 NEW YORK CASE, WHICH WE WILL SPEAK ABOUT IN A MOMENT. 12 LET'S RUN THROUGH THE JOINT STATUS REPORT. I HAVE 13 SIMILAR QUESTIONS, JUST SO I'M CLEAR. 14 THE REQUEST FOR TRO, AND THEN GOING FORWARD THE ISSUES THAT 15 NEED TO BE ADDRESSED. 16 AND THEN WE CAN ADDRESS AS I READ THE JOINT REPORT, FROM THE GOVERNMENT'S 17 PERSPECTIVE, ON ALL CLASS MEMBERS WHO ARE ELIGIBLE FOR 18 REUNIFICATION WHO ARE IN ICE DETENTION, REUNIFICATION HAS BEEN 19 COMPLETED. 20 21 22 MR. STEWART: YES, YOUR HONOR. THAT'S MY UNDERSTANDING. THE COURT: SO THERE ARE 1,820 CHILDREN IN THIS 23 GROUP THAT ARE MATCHED UP WITH ELIGIBLE CLASS MEMBERS, AND 24 1,442 HAVE BEEN REUNITED. 25 INTERIOR OR WITH OTHER SPONSORS OR WITH PARENTS IN DHS CUSTODY 378 WERE REUNITED EITHER IN THE JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 6 of 61 1 5 EARLIER IN THE PROCESS, OR THE CHILD TURNED 18. 2 MR. STEWART: THAT'S MY UNDERSTANDING, YOUR HONOR. 3 AND MY UNDERSTANDING, JUST IN THE COURSE OF SOME UPDATES, I 4 BELIEVE THE TOTAL NUMBER -- THE 1820 AND THE 1442 HAVE BOTH 5 GONE UP. 6 PRESENT THEM TO YOU, BUT MY UNDERSTANDING IS THAT BOTH OF 7 THOSE HAVE GONE UP. 8 9 10 11 12 13 WE DON'T QUITE HAVE FIRM ENOUGH NUMBERS FOR ME TO TO REAFFIRM WHAT YOU SAID EARLIER, OUR UNDERSTANDING IS THAT THERE IS NO ELIGIBLE CLASS MEMBER PARENT IN ICE CUSTODY WHO HAS NOT BEEN REUNITED. THE COURT: DO YOU HAVE AN APPROXIMATION OF WHAT THE NUMBERS ARE NOW, OR ARE YOU JUST NOT COMFORTABLE? MR. STEWART: IT IS, I THINK, SEVERAL DOZENS HIGHER 14 FOR BOTH CATEGORIES, YOU KNOW, IS THE ROUGH APPROXIMATION, SO 15 AN APPRECIABLE NUMBER. 16 WANT TO GET GOOD INFORMATION ON THAT, YOUR HONOR. 17 THE COURT: BUT WE ARE STILL DRILLING DOWN, AND ALL RIGHT. AND THEN THERE IS AN 18 INDICATION THAT THERE ARE 20 CHILDREN WHO ARE NOT SEPARATED 19 FROM THEIR PARENTS. 20 WHAT IS THAT CATEGORY? MR. STEWART: I NEED TO DRILL DOWN A LITTLE FURTHER, 21 YOUR HONOR. 22 CROSSED THE BORDER WITHOUT ANY PARENT KIND OF A THING BUT WERE 23 SWEPT IN GIVEN HHS'S EFFORT TO BE OVERLY INCLUSIVE AND CAST A 24 WIDE EFFORT. 25 I THINK THAT SOME OF THOSE MIGHT FALL IN THE THE COURT: ALL RIGHT. JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 7 of 61 1 MR. STEWART: 6 SO I THINK, TECHNICALLY, THEY WOULD, I 2 THINK, FALL OUT OF THE 2551, BUT WE RETAINED THE 2551 JUST TO 3 KIND OF KEEP A GOOD BASELINE THERE. 4 5 THE COURT: OF THE 1442 THAT HAVE BEEN REUNIFIED, HOW MANY ARE DETAINED TOGETHER AND HOW MANY WERE PAROLED? 6 MR. STEWART: SURE, YOUR HONOR. 7 NUMBERS ON THOSE. 8 REVIEW, BUT I WILL GIVE YOU WHAT I HAVE. 9 DOESN'T ADD UP PERFECTLY. I DO HAVE SOME A FEW OF THESE ARE STILL UNDERGOING MANUAL AND I RECOGNIZE THIS BUT THE NUMBERS I HAVE ARE THAT THE LARGE MAJORITY 10 11 OF THOSE WERE REUNIFIED AND THEN RELEASED. THAT IS 1,133 12 REUNIFIED AND THEN RELEASED FROM ICE CUSTODY. 13 I HAVE 300 -- 14 THAT'S STILL UNDERGOING MANUAL REVIEW. 15 300 FAMILIES ARE DETAINED TOGETHER IN FAMILY 16 RESIDENTIAL CENTERS. SO, AGAIN, THAT DOESN'T QUITE HIT 1442, I BELIEVE 17 18 BECAUSE OF JUST THE TIMING AND DATA LAGS. 19 RIGHT. BUT THAT'S ABOUT 20 THEN THERE ARE A FEW -- THE FOLKS -- MY 21 UNDERSTANDING IS THAT FOLKS DO REMAIN IN ICE CUSTODY IN SOME 22 CASES BUT THAT IS WHERE THERE IS SOME KNOWN BARRIERS TO 23 REMOVAL. 24 BARRIERS TO REMOVAL. 25 THE COURT: AND THE NUMBER I HAVE ON THAT IS 145 FOR KNOWN WHAT WOULD A KNOWN BARRIER FOR REMOVAL JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 8 of 61 1 2 3 BE? MR. STEWART: I AM SORRY. ALL RIGHT. THE COURT: 5 MR. STEWART: 6 FITNESS TYPE ISSUES, I BELIEVE. 7 THE COURT: 9 10 11 12 13 14 15 16 A KNOWN BARRIER TO REUNIFICATION. 4 8 THE CLASS. MY MISSTATEMENT. CRIMINAL HISTORY OR THOSE ARE SIMPLY PARENTS WHO FALL OUT OF THEY ARE NOT BEING -- THEY ARE INELIGIBLE. MR. STEWART: THE COURT: THAT KIND OF THING. YES, YOUR HONOR. THERE ARE 711, APPROXIMATELY, THAT ARE INELIGIBLE ACCORDING TO THE GOVERNMENT, OR NOT AVAILABLE. THERE ARE 120 WHO WAIVED REUNIFICATION. AND I KNOW THAT THAT IS A DISPUTED POINT THAT WE WILL COME TO. HAS THAT NUMBER CHANGED OR IS THAT THE NUMBER YOU HAVE PRESENTLY? MR. STEWART: THAT'S STILL, I BELIEVE, THE NUMBER I 17 HAVE, YOUR HONOR. 18 IF I AM MISSING AN UPDATE THERE, I WILL TRY TO CORRECT IT. 19 I DO BELIEVE THE 711 HAS DROPPED TO 650, THOUGH. 20 THE COURT: 21 MR. STEWART: 22 THE COURT: IF I MISSTATE THAT I WILL TRY TO CORRECT -- 650? YEAH. THE REST, THE BALANCE, THEN, WHAT IS 23 THAT, 61, WERE REUNIFIED? 24 CLASS, OR WHAT HAPPENED? 25 7 MR. STEWART: THEY CAME INTO THE ELIGIBILITY LET ME SEE IF I CAN DRILL DOWN A JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 9 of 61 8 1 LITTLE FURTHER ON THAT 61, YOUR HONOR. 2 RELEASED INTO THE INTERIOR, I SUSPECT, I BELIEVE AS PART OF 3 REUNIFICATIONS. 4 LISTED AS UNDER CASE FILE REVIEW WHERE WE JUST NEEDED TO KNOW 5 MORE, AND WE WERE ABLE TO DRILL DOWN. 6 BOTTOM NUMBER THERE WAS 94 UNDER CASE FILE REVIEW, AND THAT 7 HAS NOW DROPPED TO 35. 8 THE BOTTOM OF THOSE. 9 THE COURT: 10 11 SOME, I BELIEVE, WERE I THINK OTHERS WERE FORMERLY IN A CATEGORY PARENTS ARE WHERE? FOR EXAMPLE, THE VERY SO WE HAVE BEEN ABLE TO GET KIND OF TO SO THAT NUMBER DROPPED DOWN BECAUSE THE WHAT HAPPENED TO THEM? I THINK -- I THINK IN SOME CASES WERE, MR. STEWART: 12 I BELIEVE, IN TOUCH OR STARTING THE PROCESS NOW THAT WE, YOU 13 KNOW, HAVE FOUND OUT WHO THEY ARE. 14 INTO THE -- BE MOVING INTO THE AVAILABLE CATEGORY, JUST DOING 15 THE PROCESS TO MOVE THINGS TOWARD REUNIFICATION, I BELIEVE. 16 17 WE JUST DIDN'T HAVE A LOT OF INFORMATION ABOUT THEM AT THE TIME. OR HAD NOT COMPLETED OUR ASSESSMENT AT THE TIME. 18 THE COURT: 19 MS. FABIAN: 20 THE COURT: 21 22 23 AND THEY MAY KIND OF COME MS. FABIAN, CAN YOU HEAR ME? YES, SIR. OKAY. VERY GOOD. DO YOU WANT TO INQUIRE OF ANYONE ELSE? I THINK WE ARE PAUSING FOR A MOMENT TO ATTEMPT TO ADD ONE OTHER PERSON. NO, NO. 24 THE CLERK: 25 CAN I CONFIRM WE STILL HAVE MS. KRAUSE ON THE LINE JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 10 of 61 1 AND YOUR GROUP. MS. KRAUSE, ARE YOU ABLE TO HEAR? 2 MS. KRAUSE: 3 THE CLERK: 4 HEAR. 9 YES, SORRY. THE MEDIA WHO CALLED IN AREN'T ABLE TO IF I UNMUTE THE OTHER FOLKS, CAN WE JUST CHECK? 5 THE COURT: YES. 6 THE CLERK: WE CAN HEAR THEM. 7 THIS IS THE COURTROOM OF JUDGE SABRAW. CAN I VERIFY 8 THAT THE MEDIA THAT IS ON THE LINE ARE ABLE TO HEAR THE 9 COURTROOM PROCEEDINGS NOW? 10 (DISCUSSION REGARDING TELEPHONIC CONFERENCE 11 CALL) 12 THE COURT: 13 CONTINUING WITH THE LIST, THERE ARE 7 CHILDREN WHERE LET'S KEEP GOING WHILE WE VERIFY THAT. 14 REUNIFICATION IS PRECLUDED BY PLAINTIFFS AND COURT ORDER IN 15 SEPARATE LITIGATION. 16 THAT'S THE NEW YORK GROUP? MR. STEWART: YES, YOUR HONOR. AND I THINK IT IS A 17 LITTLE BIT IN FLUX, AS YOUR HONOR KNOWS. BUT IT IS STILL IN 18 THE TEENS OR THEREABOUTS. 19 LITTLE HARD TO TRACK BECAUSE SOME WERE MOVED BEFORE. I MEAN, 20, MAYBE 30. BUT IT IS A ALL RIGHT. 20 THE COURT: 21 THE RED FLAG GROUPS ARE SELF-EXPLANATORY. 22 RELEASED INTO THE INTERIOR, 79. 23 SAME? 24 25 IS THAT NUMBER THE MR. STEWART: HONOR. I BELIEVE THAT HAS DROPPED TO 43, YOUR AND I BELIEVE THAT'S LARGELY WHERE THE PARENTS WERE JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 11 of 61 10 1 RELEASED INTO THE INTERIOR, AND THEN THERE WAS A REUNIFICATION 2 IN MANY OF THOSE CASES, WHAT THE UNDERSTANDING IS FOR THE 79 3 TO 43. 4 5 6 THE COURT: NOW, THE 43 THAT ARE RELEASED IN THE INTERIOR, ARE THOSE RELEASED AND IT IS UNKNOWN WHERE THEY ARE? MR. STEWART: I THINK WE ARE STILL CONFIRMING 7 CONTACT WITH SOME THERE, YOUR HONOR. 8 ON THAT 43. 9 10 11 THE COURT: I WILL TRY TO DRILL DOWN THEN THE NEXT NUMBER, 431, ARE THOSE THE PARENTS THAT HAVE BEEN REMOVED WITHOUT CHILDREN? MR. STEWART: NOT NECESSARILY, YOUR HONOR. WE ARE 12 STILL GETTING SOME OF THE NUMBERS THERE, BUT SOME OF THOSE ARE 13 REMOVALS WITH CHILDREN, SOME ARE REMOVALS POST WAIVER WITHOUT 14 CHILDREN, AS I UNDERSTAND IT. 15 GRANULARITY THERE. 16 THE COURT: BUT WE ARE STILL GETTING MORE DO YOU KNOW HOW MANY, APPROXIMATELY, ARE 17 REMOVALS WITHOUT THEIR CHILDREN? 18 MR. STEWART: I AM CHECKING TO SEE IF I HAVE -- I 19 DON'T BELIEVE I HAVE CERTAINTY YET ON THAT, YOUR HONOR. 20 WILL LET YOU KNOW IF I HAVE OVERLOOKED IT AND WE WILL GET THAT 21 TO YOU ON THAT 431. 22 THE COURT: BUT I MY ASSUMPTION IS THAT MOST OF THE 431, 23 IT IS THE GROUP THAT PLAINTIFFS ARE MOST CONCERNED ABOUT 24 PRESENTLY. 25 MAJORITY OF THOSE ARE PARENTS WHO WERE REMOVED SEPARATE FROM IT WOULD INCLUDE -- I AM ASSUMING THE VAST JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 12 of 61 1 THEIR CHILDREN. 2 11 IS THAT AN INCORRECT ASSUMPTION? MR. STEWART: I THINK THAT IS PROBABLY CORRECT, YOUR 3 HONOR. 4 INJUNCTION REMOVALS WITHOUT PARENTS, AND WE NEED TO JUST DO 5 SOME WORK TO GET THOSE ADDRESSED. 6 MY INITIAL -- THE BULK WOULD BE PRE-PRELIMINARY THE COURT: THEN THERE IS A REFERENCE IN THE 7 BRIEFING TO 52 PARENTS THAT HAVE NOT BEEN LOCATED. 8 IS THAT THE PRESENT SITUATION? 9 MR. STEWART: I BELIEVE THAT THAT NUMBER HAS DIPPED, 10 YOUR HONOR. 11 UNCLEAR THEY WOULD FALL UNDER THE ADULT LOCATION UNDER CASE 12 FILE REVIEW, AND THAT WAS 94. 13 SHOWS -- JUST KIND OF REFLECTS THAT WE ARE DOING A CAREFUL 14 DIVE IN FINDING FOLKS AND MOVING ON THOSE. 15 I THINK THERE WAS FOR SOME WHOSE LOCATION WAS THE COURT: OKAY. THAT HAS GONE DOWN TO 35 SO IT SO THIS WAS AT PAGE 6, PARAGRAPH 16 B, STARTING AT LINE 5. 17 INFORMATION, 12 CHILDREN FOR WHOM THE PARENTS A-NUMBER IS 18 LISTED BUT NO NAME OR LOCATION. 19 SEEING SOME IMPROVEMENT THAT WAS 94 AND NOW DOWN TO 35, SO YOU 20 ARE LOCATING SOME OF THOSE PARENTS? 21 MR. STEWART: 40 CHILDREN WITH NO PARENTAL IS THAT THE NUMBER THAT IS I WILL CHECK ON THAT, YOUR HONOR, BUT 22 I SUSPECT THERE IS SOME OVERLAP THERE. 23 FUNCTION OF GIVING THE BEST DATA WE HAD AT THE TIME AND JUST 24 NOT HAVING EVERYTHING AS YOUR HONOR HAD CONTEMPLATED. 25 WILL CHECK ON THAT DATA ON PAGE 6. JULY 27, 2018 IT MIGHT JUST BE A BUT I Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 13 of 61 1 THE COURT: 12 THE LAST STATUS REPORT FROM JULY 23 2 INDICATED CLASS MEMBERS WITH FINAL ORDERS OF REMOVAL WAS 900. 3 IS THAT THE -- THE NUMBER REMAINS THE SAME? 4 5 MR. STEWART: I AM NOT SURE THAT I HAVE -- I DON'T THINK THAT I HAVE ANY SHIFT ON THAT NUMBER, YOUR HONOR. 6 THE COURT: OF THESE 900, WHERE ARE THEY? IT SOUNDS 7 LIKE MANY OF THEM ARE RELEASED INTO THE INTERIOR AND HAVE A 8 REPORT DATE LATER? 9 MR. STEWART: I BELIEVE A LOT ARE, I BELIEVE, 10 RELEASED, YOUR HONOR, JUST BY THE NATURE OF THE REUNIFICATION. 11 SOME ARE JUST KIND OF ON MONITORS OR SUPERVISION REGIMES. 12 DON'T HAVE PARTICULARS ON JUST SORT OF HOW FAR OUT DATES, OR 13 THE LIKE, HAVE BEEN PLANNED FOR THOSE. 14 THE COURT: DO YOU HAVE ANY IDEA WHAT THE BREAKDOWN 15 IS, SO OF THOSE 900 HOW MANY ARE IN RESIDENTIAL CENTERS 16 DETAINED TOGETHER AND HOW MANY ARE RELEASED? 17 18 MR. STEWART: YET, YOUR HONOR. 19 I DON'T BELIEVE I HAVE THAT NUMBER I CAN LOOK. THE COURT: THEN WHAT DOES THAT MEAN, FINAL ORDER OF 20 REMOVAL. 21 THESE ARE EXPEDITED REMOVALS? 22 23 I DOES THAT MEAN THERE ARE NO MORE APPEALS AND MOST OF MR. STEWART: GENERALLY -- AS BETWEEN SORT OF FINAL ORDER OF REMOVAL OR EXECUTABLE ORDER OF REMOVAL, YOUR HONOR? YES. 24 THE COURT: 25 MR. STEWART: I THINK WHAT THAT MEANS IS FINAL ORDER JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 14 of 61 13 1 OF REMOVAL IN THIS CONTEXT I THINK WILL GENERALLY MEAN 2 SOMEBODY WHO IS IN EXPEDITED REMOVAL BUT HAS NOT GOTTEN THE 3 IMMIGRATION JUDGE REVIEW PORTION OF IT. 4 GET THAT REVIEW AND IF THEY DON'T GET RELIEF FROM THAT THEN IT 5 BECOMES AN EXECUTABLE ORDER OF REMOVAL. 6 GENERALLY HOW IT PLAYS OUT. 7 THE COURT: AND THEN ONCE THEY I THINK THAT IS DO WE KNOW HOW MANY HAVE AN EXECUTABLE 8 ORDER OF REMOVAL? 9 WITH RESPECT TO THE REQUEST FOR TEMPORARY RESTRAINING ORDER, 10 THAT WOULD BE THE GROUP THAT IS AT ISSUE CORRECT? 11 MR. STEWART: I THINK YES, YOUR HONOR. I BELIEVE 12 THAT'S MOST IMMEDIATELY AT STAKE, YES. BUT I THINK THOSE 13 THINGS, THEY MAY MOVE SOMEWHAT SWIFTLY SO IT IS PROBABLY A 14 DYNAMIC GROUP. BUT I AM NOT SURE OF THE NUMBERS THERE. DO YOU HAVE ANY IDEA, MR. GELERNT? 15 THE COURT: 16 MR. GELERNT: 17 MS. FABIAN: 18 I THINK WE DO HAVE SOME OF THAT INFORMATION. WE DO NOT, YOUR HONOR. YOUR HONOR, THIS IS MS. FABIAN. IT IS 19 NOT CURRENT BUT I COULD GIVE THE LATEST NUMBERS THAT WE HAD ON 20 THAT. 21 THE COURT: 22 MS. FABIAN: YES. SO EXECUTABLE FINAL ORDERS THE TOTAL 23 NUMBER WAS AROUND 1,000, I BELIEVE, BUT NOT ALL OF THOSE ARE 24 DETAINED. 25 THE NUMBER DETAINED IS MUCH LOWER. THE COURT: SO WHEN YOU SAY ABOUT 1,000 EXECUTABLE JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 15 of 61 14 1 ORDERS OF REMOVAL, THAT MEANS THE APPEALS HAVE BEEN EXHAUSTED 2 AND THEY ARE READY TO BE REMOVED? 3 MS. FABIAN: WELL, IT IS NOT AN APPEAL PROCESS BUT 4 IT DOES MEAN THAT, YES, THEY HAVE COMPLETED THEIR REVIEW 5 PROCESS. AS MR. STEWART DESCRIBED, IT IS -- THE ORDER BECOMES 6 7 FINAL AFTER THE INITIAL CREDIBLE FEAR INTERVIEW BUT THEY CAN 8 THEN SEEK REVIEW BY AN IMMIGRATION JUDGE AND THE ORDER IS 9 EXECUTABLE IF THERE IS A DENIAL BY THE IMMIGRATION JUDGE. 10 11 THE COURT: WILL BE PENDING REVIEW BEFORE AN IMMIGRATION JUDGE? 12 13 MS. FABIAN: THE COURT: MS. FABIAN: 17 THE COURT: SO EXECUTABLE MEANS THE PROCESS CORRECT. THE GOVERNMENT IS POSITIONED TO REMOVE THOSE INDIVIDUALS. 19 20 OKAY. IS OVER AND THEY -- 16 18 WELL, THOSE 1,000 WOULD HAVE COMPLETED REVIEW BY AN IMMIGRATION JUDGE AND BEEN DENIED. 14 15 SO OF THESE 1,000, ARE THERE MANY THAT MS. FABIAN: CORRECT. BUT IN THIS CASE NOT ALL OF THOSE ARE IN CUSTODY AT THIS TIME. 21 THE COURT: HOW MANY ARE IN CUSTODY? 22 WOULD BE IN RESIDENTIAL CENTERS. 23 MS. FABIAN: I ASSUME THEY THE LAST NUMBER I HAD -- WELL, TO 24 CLARIFY. I THINK THOSE THAT ARE IN CUSTODY ARE NOT 25 NECESSARILY IN CUSTODY WITH THEIR CHILDREN BECAUSE SOME OF JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 16 of 61 1 THOSE MAY HAVE DECLINED REUNIFICATION. 2 BUT THEY MAY NOT BE IN CUSTODY WITH THEIR CHILD. 3 AND SOME WON'T BE. 4 15 THEY MAY BE IN CUSTODY SOME WILL BUT THAT NUMBER WAS 392. THE COURT: OKAY. 392 IN CUSTODY WITH AN EXECUTABLE 5 ORDER OF REMOVAL. THE BALANCE, SO APPROXIMATELY 600, ARE 6 PAROLED IN THE COMMUNITY BUT THEY HAVE AN EXECUTABLE ORDER OF 7 REMOVAL; IS THAT RIGHT? I THINK THAT IS CORRECT, IF I AM 8 MS. FABIAN: 9 READING THE NUMBERS CORRECTLY. 10 THE COURT: OKAY. WHAT'S THE TIMETABLE, FOR 11 EXAMPLE, FOR THOSE WHO ARE RELEASED IN THE COMMUNITY BUT HAVE 12 AN EXECUTABLE ORDER OF REMOVAL; DO THEY ALREADY HAVE DEPARTURE 13 DATES OR IS THAT SOMETHING THAT IS COMING? 14 MS. FABIAN: I THINK THAT IS GOING TO BE AN 15 INDIVIDUALIZED QUESTION, BASED ON REALLY WHERE THEY STAND IN 16 THE PROCESS AS FAR AS ICE PREPARING FOR REMOVAL. 17 HAVE TRAVEL DOCUMENTS AND BE ELIGIBLE TO BE PICKED UP FOR 18 REMOVAL AND SOME MAY NOT. 19 GENERALIZED BASIS. 20 21 22 THE COURT: SOME MAY I COULDN'T ANSWER THAT ON A THAT'S THE SAME FOR THE 390 OR SO IN ICE CUSTODY, THEY MAY NOT HAVE A DATE YET FOR ACTUAL REMOVAL? MS. FABIAN: CORRECT. THERE ARE A FEW STEPS TO THE 23 REMOVAL PROCESS, SO SOME MAY BE ABLE TO BE REMOVED IMMEDIATELY 24 AND SOME MAY BE IN THE PROCESS OF OBTAINING A TRAVEL DOCUMENT. 25 THE COURT: OKAY. THANK YOU. JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 17 of 61 1 MR. STEWART: 16 YOUR HONOR, I AM HEARING FROM, I THINK 2 BOTH OF OUR FOLKS, THAT FOLKS MAY NOT BE ABLE TO HEAR ON THE 3 LINE. 4 5 THE COURT: YES. I HAVE HEARD THAT. THE DIFFICULTY IS -- 6 AT&T OPERATOR: THIS IS LAURIE FROM AT&T 7 TELECONFERENCE CENTER. DO I HAVE THE HOST OF THE CALL ON? 8 ARE NOT ABLE TO HEAR THE CALL. 9 ABLE TO HEAR. WE FOLKS ARE SAYING THEY ARE NOT IF I HAVE THE HOST ON THE CALL, PLEASE UNMUTE. 10 (DISCUSSION REGARDING TELEPHONIC CONFERENCE 11 CALL) 12 THE COURT: WE HAVE TO DROP THE CALL. WE ARE GOING 13 TO HAVE TO DROP THE LINE, AND JUST WITH OTHER COUNSEL, THEY 14 WILL HAVE TO CALL BACK. 15 NOT WORKING. THAT'S UNFORTUNATE, BUT THE SYSTEM IS 16 LET'S CONTINUE AND GO DOWN THE LIST HERE. 17 THE GOVERNMENT HAS INDICATED THAT IT HAS PROVIDED 18 LISTS FOR THOSE WHO HAVE BEEN REMOVED OR RELEASED IN ICE 19 CUSTODY. 20 COURT-APPROVED ELECTION FORMS REQUESTING TO BE REUNIFIED OR 21 WAIVING REUNIFICATION OR REQUESTING TIME TO CONSULT WITH 22 COUNSEL, AND A LIST OF INDIVIDUALS WHO WERE EITHER REUNIFIED 23 OR RELEASED OR DETAINED IN ICE RESIDENTIAL CENTERS. THESE ARE AS OF JULY 25. THOSE WHO SIGNED 24 DID YOU GET ALL OF THAT INFORMATION, MR. GELERNT? 25 MR. GELERNT: YOUR HONOR, WE DID NOT GET ALL OF THAT JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 18 of 61 17 1 INFORMATION. 2 HAVE BEEN REUNITED. 3 BREAKDOWN OF WHO HAS BEEN DETAINED AND WHO HAS BEEN RELEASED. 4 WE HAVE A LIST OF WHO HAS BEEN DEPORTED. 5 6 WE DO NOT HAVE A LIST OF ALL OF INDIVIDUALS WHO THE COURT: WE DO NOT BELIEVE WE HAVE A LIST OF THE DO YOU HAVE ANY INFORMATION ON THAT, MR. STEWART? 7 MR. STEWART: I HAVE TO RECHECK, BUT WE PROVIDED THE 8 LISTS THAT YOUR HONOR ORDERED TO US PROVIDE. 9 RECOGNIZED, IT WOULD TAKE -- THEY MAY NOT CAPTURE EVERYONE AT 10 THE TIME WE PROVIDED THEM, BUT WE PROVIDED EACH OF THE LISTS 11 THAT THE COURT DIRECTED US TO PROVIDE. 12 MR. GELERNT: AS YOUR HONOR I AM NOT SURE WHY THE CONFUSION, BUT 13 WE DO NOT HAVE A LIST OF EACH INDIVIDUAL WHO WAS REUNITED AND 14 RELEASED OR REUNITED AND DETAINED. OKAY. 15 THE COURT: 16 MR. STEWART: 17 18 WE HAVE AGGREGATE NUMBERS. I WILL DOUBLE CHECK ON THAT, YOUR HONOR. THE COURT: LET'S, THEN, GO TO THE PLAINTIFFS' 19 POSITIONS BEFORE WE CIRCLE BACK. 20 PLAINTIFFS HAVE PROPOSED ARE A NUMBER OF DEADLINES TO PRODUCE 21 THESE LISTS. 22 AND THAT IS, WHAT THE MR. STEWART, DO YOU HAVE ANY OBJECTION TO THOSE 23 PROPOSED DEADLINES? IN READING THEM THEY SEEMED REASONABLE, 24 AND IT IS THE TYPE OF INFORMATION THAT THE PLAINTIFFS OUGHT TO 25 HAVE AND OUGHT TO BE PROVIDED IN ORDER TO KEEP THE PROCESS JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 19 of 61 1 18 TRANSPARENT FOR ALL. 2 MR. STEWART: YOUR HONOR, I THINK WE DO HAVE SOME 3 ISSUES WITH A NUMBER OF THE DEADLINES. 4 OUR GLOBAL PROPOSAL WOULD BE THAT THE PARTIES MEET AND CONFER 5 ABOUT THIS INFORMATION, AND SEE WHAT A REASONABLE TIMELINE 6 MIGHT BE. 7 I THINK THE GLOBAL -- MY CONCERN ON A NUMBER OF THESE ITEMS IS THAT THEY 8 CALL FOR A FAIRLY INTENSIVE MANUAL REVIEW, WHEREAS POCKETS MAY 9 BE LESS DIFFICULT TO PROVIDE, OTHER POCKETS WOULD ACTUALLY BE 10 11 QUITE BURDENSOME. THE REUNIFICATION INFORMATION, I UNDERSTAND, IS 12 ESPECIALLY HARD TO DO JUST GIVEN THE GRANULARITY AND 13 SPECIFICITY. 14 SO I THINK A LOT OF THIS INFORMATION IT WOULD JUST 15 -- IT WOULD BE BETTER IT COULD, I THINK, SEE WHAT THE OPTIONS 16 ARE AND WHAT THE PARTIES CAN WORK OUT, AND IF THERE IS A 17 REASONABLE SCHEDULE TO MOVE FORWARD. 18 BE THAT WE END UP DETRACTING WHAT NEEDS TO BE A LOT OF JOINT 19 EFFORT TO COMPLETE THE REMAINING REUNIFICATIONS. 20 THAT THERE IS AN IMPORTANCE FOR TRANSPARENCY AND INFORMATION, 21 I JUST WOULD BE CONCERNED THAT THERE IS VERY BURDENSOME DATA 22 EFFORTS THAT WOULD DETRACT FROM REUNIFICATION, YOUR HONOR. 23 THE COURT: BECAUSE MY CONCERN WOULD RECOGNIZING THE CLEAR FOCUS, THE INFORMATION YOU 24 WOULD LIKE RIGHT AWAY, IS THE PARENTS WHO HAVE BEEN REMOVED 25 WITHOUT THEIR CHILD. JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 20 of 61 19 THAT'S RIGHT, YOUR HONOR. 1 MR. GELERNT: 2 AND I THINK ALSO WE WERE EXPECTING ALREADY THE 3 NUMBER -- THE ITEM NO. 1 ON PAGE 10, THE LIST OF 4 REUNIFICATION, WHO HAS BEEN REUNIFIED AND WHERE -- WHETHER 5 THEY WERE PAROLED OR IN DETENTION. 6 MORE THAN REASONABLE SINCE THAT IS INFORMATION WE SHOULD HAVE 7 HAD ALREADY. 8 THE DEPORTED PARENTS, WE REALLY NEED TO START LOOKING FOR 9 THEM. SO WE FEEL LIKE MONDAY IS AND THEN, YOUR HONOR, YOU ARE ABSOLUTELY RIGHT, BUT I WOULD ALSO SAY, ON THE CRIMINAL STUFF, I THINK 10 11 YOUR HONOR UNDERSTANDABLY BIFURCATED THE PROCESS AND SAID 12 ANYBODY WITH A CRIMINAL CONVICTION, EVEN IF NONSERIOUS, DIDN'T 13 HAVE TO BE -- WASN'T GOING TO BE IN THE CLASS FOR PURPOSES OF 14 THIS DEADLINE. 15 PROBABLY ADMIT, SO THAT IS WHAT THEY DID, THEY TOOK OUT 16 EVERYONE. 17 ACTUALLY DON'T KNOW HOW MANY, BUT WITH NONSERIOUS CRIMES THAT 18 CLEARLY ARE ENTITLED TO REUNIFICATION. 19 GO FORWARD. 20 BUT I THINK, AS EVEN THE GOVERNMENT WOULD BUT THERE ARE HUNDREDS OF PEOPLE WE BELIEVE -- WE THAT PROCESS NEEDS TO SO I UNDERSTAND THE GOVERNMENT TO BE SAYING, AT 21 LEAST WITH RESPECT TO THAT, THERE MAY BE NEEDING TO BE SOME 22 MANUAL REVIEW. 23 COME ON A ROLLING BASIS. 24 UNTIL THEY HAVE CRIMINAL HISTORY ABOUT EVERY SINGLE INDIVIDUAL 25 BEFORE THEY GIVE US ANY OF IT. BUT WE WOULD ASK THAT AT LEAST THE INFORMATION THERE IS NO REASON FOR THEM TO WAIT JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 21 of 61 1 2 THE COURT: 20 I THOUGHT A LOT OF PARENTS WERE REUNIFIED THAT HAD MINOR CRIMINAL HISTORY. 3 MR. STEWART: THAT IS TRUE, YOUR HONOR. AS MR. 4 GELERNT IS AWARE, WE HAVE NOT CATEGORICALLY EXCLUDED PEOPLE 5 WITH CRIMINAL CONVICTIONS. 6 OVER-INCLUSIVE ABOUT REUNIFYING THOSE PEOPLE. WE HAVE BEEN VERY CAREFUL AND I WOULD ALSO ADD, YOUR HONOR, THAT WE HAVE GIVEN THE 7 8 ACLU THE LIST OF REMOVED PARENTS ALREADY. WE ALSO GAVE THEM 9 INFORMATION ABOUT REUNIFICATION THAT WE HAD AS OF WEDNESDAY. 10 AND WE HAVE ALSO GIVEN THEM A LIST OF PEOPLE WHO, TO THE BEST 11 OF OUR KNOWLEDGE AT THE TIME, HAD BEEN KNOCKED OFF OF CLASS 12 MEMBERSHIP BECAUSE OF CRIMINAL CONVICTIONS. 13 I WOULD PROPOSE AS TO THAT SPECIFICALLY THAT IF MR. 14 GELERNT, HAVING SEEN OUR GOOD FAITH EFFORTS TO NOT NEEDLESSLY 15 EXCLUDE SOMEBODY WITH A CRIMINAL CONVICTION, HE COULD REVIEW 16 OUR INFORMATION. 17 TO DOUBT THAT WE HAVE MADE THE RIGHT DECISION IN A PARTICULAR 18 CASE HE COULD CONFER WITH US INSTEAD OF, YOU KNOW, MAKING 19 ANOTHER ONEROUS DATA DEMAND THAT POTENTIALLY WILL HINDER THE 20 VERY IMPORTANT REUNIFICATION EFFORTS THAT WE HAVE UNDERWAY. 21 IF HE HAS CONCERNS ABOUT ANYONE OR REASONS MR. GELERNT: YOUR HONOR, ON THE CRIMINAL 22 CONVICTIONS WE HAVE NO IDEA. I THINK EVERYONE IS ASKING US 23 WHERE THEY HAVE DRAWN THE LINE BETWEEN SERIOUS AND NONSERIOUS. 24 SO THAT IS ALL WE ARE SAYING, WE NEED MORE INFORMATION TO 25 KNOW. WE ARE OBVIOUSLY NOT GOING TO ALLOW THEM TO JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 22 of 61 21 1 UNILATERALLY DRAW THAT LINE. SO THAT IS ALL WE NEED TO KNOW 2 IS WHERE THEY HAVE DRAWN THE LINE AND WHAT ARE THE CRIMINAL 3 CONVICTIONS FOR THOSE INDIVIDUALS THAT THEY HAVE DECIDED NOT 4 TO REUNIFY BY THE DEADLINE. THAT IS ALL I AM SAYING. THE LIST OF REUNIFIED PARENTS WE ABSOLUTELY HAVE NOT 5 6 GOT THAT. WE HAVE GOTTEN AGGREGATE NUMBERS, WE DON'T KNOW WHO 7 HAS BEEN REUNIFIED AND WHETHER THEY HAVE BEEN PAROLED OR 8 DETAINED. SO THAT IS ALL WE ARE SAYING. AND FOR DEPORTED PARENTS I THINK, AS THE GOVERNMENT 9 10 KNOWS, WE ARE JUST ASKING FOR AS MUCH INFORMATION AS POSSIBLE. 11 UNLESS THE GOVERNMENT IS GOING TO TELL US, WE WILL FIND ALL 12 400-PLUS OF THOSE PARENTS, IT IS GOING TO FALL ON THE NGO'S. 13 SO WE JUST NEED EVERY BIT OF PIECE OF INFORMATION THEY CAN 14 GIVE US. 15 JUST START -- WE WOULD JUST WANT TO START LOOKING. AND WE WILL TAKE IT ON A ROLLING BASIS, BUT WE WOULD YOUR HONOR, I HAVE TO JUMP IN HERE. 16 MR. STEWART: 17 WE HAVE GIVEN THEM, THE ACLU, A FULSOME, THOROUGH 18 19 LIST OF REMOVED PARENTS. 468. MR. GELERNT REPEATEDLY REPRESENTS TO THIS COURT THAT 20 HE IS WILLING TO WORK WITH US TO GET NGO'S TO FIND PEOPLE, HE 21 REPRESENTS THAT HE HAS PEOPLE ON THE GROUND THAT ARE WILLING 22 TO HELP WITH THAT; WE HAVE YET TO SEE THOSE EFFORTS 23 MATERIALIZE. 24 AMOUNTS OF INFORMATION IN AN GOOD FAITH JOINT EFFORT TO 25 ADDRESS THE CHALLENGING TASK HERE. SO WE ARE DOING THE BEST WE CAN TO GIVE MASSIVE IT IS JUST SIMPLY NOT TRUE JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 23 of 61 1 22 THAT WE HAVE NOT GIVEN HIM TREMENDOUS INFORMATION. MY PROPOSAL HERE, YOUR HONOR, WOULD BE THAT THE 2 3 PARTIES CONFER CAREFULLY, SEE IF THEY CAN -- WHAT THEY CAN 4 RESOLVE AND WHAT THEY CAN'T ON SOME OF THESE DISCOVERY 5 ISSUES -- NOT DISCOVERY, PARDON ME, YOUR HONOR -- 6 INFORMATIONAL DATA ISSUES. 7 DISPUTES WE CAN CLEARLY PRESENT THEM FOR YOUR HONOR FOR 8 RESOLUTION. 9 THE COURT: AND THEN IF THERE ARE REMAINING SO IT IS YOUR POSITION THAT OF THE 10 NUMBER THAT ARE OUTSIDE THE UNITED STATES, THE 431, YOU HAVE 11 GIVEN A LIST? 12 MR. STEWART: WE HAVE GIVEN THE LIST WE KNOW. IT IS 13 A LITTLE LONGER THAN 431, AND I BELIEVE 468, AND WE ARE TRYING 14 TO RECONCILE THAT, YOUR HONOR. 15 TRYING TO GIVE THE BEST INFORMATION WE HAVE. 16 RATHER FULSOME LIST, WHICH I BELIEVE ALSO INCLUDES -- I 17 BELIEVE INCLUDES REASONS, YOU KNOW, LIKE CHOICES THAT WERE 18 MADE. 19 YES, WE HAVE GIVEN A LIST OF 468 TO MR. GELERNT. 20 BUT THE POINT IS, WE ARE WE HAVE GIVEN A SORRY, I MAY BE THINKING OF THE ELECTION FORM. THE COURT: BUT, THAT INCLUDES THE COUNTRY OF REMOVAL, 21 WHEN, AND WHERE THEY WERE TAKEN? 22 MR. STEWART: IT DOES. IT INCLUDES THE BEST 23 INFORMATION WE HAVE ON REMOVAL DATES, COUNTRY, AND ARREST 24 DATES, AND NAMES. 25 RECALL CORRECTLY. AND I BELIEVE A-NUMBERS AS WELL, IF I JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 24 of 61 23 MR. GELERNT. 1 THE COURT: 2 MR. GELERNT: YOUR HONOR, I AM NOT SURE WHAT THE 3 GOVERNMENT MEANS ABOUT US PROVIDING THE NGO INFORMATION. 4 ARE OUT THERE SEARCHING, WE HAVE FOUND SOME. 5 TO FIND THEM ALL WITHOUT ADDITIONAL INFORMATION. 6 SURE WHY THE GOVERNMENT DOESN'T WANT TO GIVE US ADDITIONAL 7 INFORMATION. WE ARE NOT GOING I AM NOT WHAT WE HAVE NOW IS WHERE THEY ARE SENT, WHEN THEY 8 9 WE WERE SENT. BUT ANY CONTACT INFORMATION THE GOVERNMENT HAS, 10 ANY NOTES THEY TOOK, I HAVE -- YOU KNOW, THIS PERSON HAS AN 11 AUNT. 12 THINK THAT IS ALL WE ARE SAYING. 13 14 15 WE WILL TAKE ANYTHING, BUT WE JUST WANT THE HELP. SO I THE GOVERNMENT'S COUNSEL, I DON'T KNOW WHAT HE MEANS BY FULSOME, BUT WE WILL TAKE EVERYTHING THEY HAVE. MR. STEWART: THIS IS A CHART WITH ABOUT, AS I 16 RECALL, YOUR HONOR, ABOUT EIGHT COLUMNS OF INFORMATION. 17 ON 460-SOME PEOPLE THAT WE GAVE TO THEM TWO DAYS AGO. IT IS 18 SO I AM GOING TO STAND VERY FIRM THAT THE GOVERNMENT 19 HAS WORKED VERY, VERY HARD AND PUT IN TREMENDOUS HOURS TO GIVE 20 MR. GELERNT THE INFORMATION THAT HE SAYS HE DOES NOT HAVE. 21 MR. GELERNT: I DON'T WANT TO BELABOR THIS. WE ARE 22 REALLY NOT CONCERNED WITH HOW HARD -- I CAN SEE THAT COUNSEL 23 IS TRYING TO MAKE A RECORD HERE, A PUBLIC RECORD, ABOUT HOW 24 HARD THEY HAVE WORKED AND THEIR GOOD FAITH. 25 CONCERNED WITH THAT, WE ARE JUST CONCERNED WITH FINDING THESE JULY 27, 2018 WE ARE NOT REALLY Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 25 of 61 1 2 24 PARENTS AND REUNITING. SO WE WILL JUST ASK FOR EVERY PIECE OF INFORMATION 3 THE GOVERNMENT HAS, BEYOND THE SORT OF COUNTRY THEY WERE SENT 4 TO, THE DATE THEY WERE SENT. 5 EXIT INTERVIEWS OR ANYTHING LIKE THAT. 6 7 8 9 THE COURT: ANYTHING THEY HAVE WHEN THEY DO SO WHAT YOU DON'T HAVE IS THE MORE SPECIFIC INFORMATION. MR. GELERNT: EXACTLY, YOUR HONOR. BECAUSE IT IS HARD FOR -- I MEAN, WE HAVE NGO'S IN CENTRAL AMERICA LOOKING, 10 BUT ANY LITTLE PIECE OF INFORMATION THEY CAN HAVE. 11 AUNT IN AMERICA, SOMEBODY WE CAN CALL. 12 WE ARE LOCATING PEOPLE, SLOWLY. THIS IS AN AND NOW THAT WE 13 HAVE PASSED THIS DEADLINE WE ARE GOING TO BRING TO THE 14 GOVERNMENT'S ATTENTION, THIS IS WHO WE FOUND. 15 16 I THINK IT IS GOING TO BE TOUGH FOR US TO FIND ALL 400-PLUS WITHOUT MORE SPECIFIC INFORMATION. HOW MANY HAVE YOU FOUND? 17 THE COURT: 18 MR. GELERNT: YOUR HONOR, WE DO NOT KNOW BECAUSE WE 19 HAVEN'T BEEN ABLE TO CENTRALIZE IT NOW. 20 DIFFERENT NGO'S BOTH ABROAD AND HERE WE ARE NOT SURE HOW MANY 21 WE HAVE FOUND AT THIS POINT. 22 REAL DENT, BUT WE DEFINITELY HAVE SOME PARENTS, THEY WANT TO 23 BE REUNIFIED AND THEY ARE READY TO HAVE THEIR CHILD BACK. 24 25 THE COURT: OKAY. IT IS SO MANY I DON'T THINK WE HAVE MADE A AND WITH THOSE YOU ARE WORKING ON OBTAINING TRAVEL DOCUMENTS FOR THE CHILDREN? JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 26 of 61 1 MR. GELERNT: 25 WE ARE GOING TO HAVE TO GO TO THE 2 GOVERNMENT THEN BECAUSE I THINK THE GOVERNMENT IS GOING TO 3 HAVE TO BE INVOLVED IN THE PROCESS OF TRAVEL DOCUMENTS. 4 THINK FOR SOME THERE MAY ALREADY BE TRAVEL DOCUMENTS AND THERE 5 IS LOGISTICS REMAINING, BUT WE WILL ULTIMATELY HAVE TO GO TO 6 THE GOVERNMENT TO WORK ON TRAVEL DOCUMENTS, BECAUSE I THINK 7 THAT IS MORE OF AN OFFICIAL THING. 8 9 10 THE COURT: I MR. STEWART, DO YOU KNOW WHETHER THE GOVERNMENT HAS LOCATED ANY OF THESE INDIVIDUALS? MR. STEWART: I DON'T KNOW WHERE THINGS KIND OF 11 STAND THERE, YOUR HONOR. 12 GELERNT WAS GETTING INTO, THAT IS ACTUALLY I DID WANT TO RAISE 13 WITH THE JOINT EFFORT TO COMPLETE REUNIFICATIONS, ESPECIALLY 14 OF THE FOLKS ABROAD. 15 I THINK THE LATEST ISSUES THAT MR. AND THE POINT OF EMPHASIS I WOULD SAY THERE IS THAT 16 OUR PROPOSAL IS ESSENTIALLY, YOU KNOW, LOOK, WE WANT TO MOVE 17 THAT AS SWIFTLY AS POSSIBLE. 18 A BIT OF JOINT EFFORT BETWEEN THE PARTIES TO MAKE IT HAPPEN 19 JUST BECAUSE, YOU KNOW, THESE ARE REPRESENTED FOLKS AND, YOU 20 KNOW, MR. GELERNT AND HIS COLLEAGUES ARE GOING TO NEED TO BE 21 THE ONES FINDING OUT THEIR WISHES. 22 CAREFUL ABOUT THAT, BUT WE HAVE TO, YOU KNOW, FIGURE OUT THE 23 MANY LOGISTICAL THINGS. 24 25 AND IT IS GOING TO REQUIRE QUITE AND WE NEED TO BE A LITTLE SO WE STAND READY TO DO THAT AND TO WORK ON THAT. AND I DON'T -- BUT I DON'T KNOW IF HEAVY MANUAL DATA JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 27 of 61 1 PRODUCTION IS GOING TO BE THE BEST WAY TO GO ABOUT THAT. 2 WOULD PROPOSE THAT THE PARTIES GET TOGETHER AND JUST -- 3 THE COURT: 26 I DO YOU HAVE EXTRA INFORMATION, SO, FOR 4 EXAMPLE, IF YOU HAVE PARENT A WHO WAS REMOVED AND THEY WERE 5 REMOVED TO HONDURAS ON A DATE CERTAIN TO A SPECIFIC LOCATION, 6 DOES THE GOVERNMENT HAVE OTHER INFORMATION THAT, FOR EXAMPLE, 7 PARENT A HAD A RELATIVE, HAD A HOME ADDRESS, OR ANY FURTHER 8 IDENTIFYING INFORMATION THAT WOULD BE HELPFUL IN LOCATING THAT 9 PERSON? 10 I ASSUME IT DOES. MR. STEWART: MY GUESS, IT WOULD JUST DEPEND ON THE 11 PERSON, YOUR HONOR. 12 SORT OF THING THAT'S BEST ACHIEVED THROUGH A JOINT EFFORT. 13 BUT, AGAIN, I THINK THAT'S -- THAT'S THE ONE THING THAT IS CLEAR, WHATEVER ELSE WE DISAGREE 14 ON, IS THE GOVERNMENT WANTS TO REUNIFY FAMILIES WHO ARE 15 ELIGIBLE FOR REUNIFICATION. 16 EFFECTIVE WAY TO DO THAT IS -- WOULD BE, YOU KNOW, CONSISTENT 17 WITH LAW WOULD BE THE PREFERENCE. 18 OF A HARDLINE RULE ABOUT PRODUCING A CERTAIN THING AT A 19 CERTAIN TIME WILL BE MOST EFFICACIOUS TO THAT SHARED GOAL, 20 YOUR HONOR. 21 THE COURT: AND THE MOST KIND OF SEAMLESS AND I AM NOT SURE THAT SORT YOU ARE INDICATING THAT THE MORE 22 INFORMATION YOU CAN PROVIDE TO PLAINTIFFS WOULD BE IN THE BEST 23 INTEREST, BECAUSE IT SEEMS BOTH SIDES HAVE ENORMOUS RESOURCES. 24 THE GOVERNMENT CERTAINLY DOES. 25 ABOUT THE PEOPLE ON THE GROUND, THERE IS EVERY REASON TO AND WHEN MR. GELERNT TALKS JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 28 of 61 27 1 BELIEVE THAT THAT INFRASTRUCTURE IS IN PLACE. 2 INFORMATION BOTH PARTIES HAVE THE MORE QUICKLY IDENTIFICATION 3 AND LOCATION -- 4 MR. GELERNT: AND SO THE MORE YOUR HONOR, I JUST -- JUST FOR A MORE 5 SPECIFIC ANSWER TO YOUR QUESTION ABOUT SORT OF DOES THE 6 GOVERNMENT HAVE MORE INFORMATION. 7 EACH INDIVIDUAL. 8 A-FILES AT LEAST AND LET US SEE, OH, OKAY, WE KNOW THIS AUNT, 9 THOSE TYPES OF THINGS. THERE IS ALWAYS A-FILES FOR THE GOVERNMENT SHOULD BE TURNING OVER THE THOSE CAN BE CATEGORICAL. WE CAN WORK 10 WITH THE GOVERNMENT ON, IS THERE SOMETHING MORE SPECIFIC 11 OUTSIDE OF THE A-FILE THAT CAN HELP US. 12 GOVERNMENT COUNSEL SAYING THEY WANT TO DO EVERYTHING TO HELP 13 US, I THINK THAT WOULD BE ONE STEP. 14 MR. STEWART: BUT I THINK GIVEN THE A-FILES WOULD POTENTIALLY PUT THIS 15 EFFORT BEHIND BY -- WOULD STRETCH IT ON FOR A MATTER OF 16 MONTHS, YOUR HONOR. 17 AS MR. GELERNT KNOWS, BECAUSE WE ARE OPPOSING 18 COUNSEL IN ANOTHER CASE INVOLVING MASS PRODUCTION OF A-FILES, 19 A-FILE PRODUCTION, IT IS AN EXTREMELY DIFFICULT TASK TO 20 COMPILE A-FILES. 21 WE NEED TO BE VERY CAREFUL ABOUT. 22 ALL IT WOULD DO IS GUARANTEE MASSIVE, MASSIVE DELAY. 23 DELAY IN PARTICULAR IN REUNIFICATIONS BECAUSE SO MANY PEOPLE 24 WHO ARE WORKING ON THAT ARE THE PEOPLE WHO ARE WORKING TO 25 REUNIFY THESE FAMILIES. THERE IS A LOT OF PROTECTED INFORMATION THAT IT IS A MONUMENTAL TASK AND JULY 27, 2018 AND Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 29 of 61 1 MR. GELERNT: 2 REITERATE. 3 WORKING ON IT. 28 YOUR HONOR, I MEAN, I JUST HAVE TO THERE SHOULDN'T BE A FINITE NUMBER OF PEOPLE I GUESS, YOUR HONOR, WANTED TO SAY IS, YOU ASKED 4 5 DOES THE GOVERNMENT HAVE OTHER INFORMATION? 6 DO. 7 SAY, HEY, HERE WAS THE LAST KNOWN ADDRESS OR HERE IS AN AUNT. 8 9 10 11 12 13 THEY CAN JUST PULL THE FILE. THEY ABSOLUTELY SO EVEN IF THEY WANTED TO I MEAN, I THINK WHAT THE GOVERNMENT IS BASICALLY ADMITTING IS YES, WE DO HAVE INFORMATION BUT WE JUST WANT TO MOVE AT OUR OWN PACE. ALL WE ARE ASKING IS THAT WE TRY AND SET SOME DEADLINES SO IT DOESN'T JUST SORT OF LINGER. THE COURT: MR. GELERNT, WHILE I HAVE YOU UP, LET ME 14 MOVE TO A SLIGHTLY DIFFERENT ISSUE, AND THAT'S THE REQUEST FOR 15 INJUNCTION, THE SEVEN-DAY PERIOD. 16 AS A PRACTICAL MATTER, HASN'T THERE BEEN -- THERE 17 HAS BEEN TEN DAYS ALREADY. 18 VAST MAJORITY OF THESE PARENTS HAVE ALREADY BEEN REUNIFIED AND 19 HAVE HAD PLENTY OF TIME TO MEET WITH THE CHILD'S ADVOCATE AND 20 BE COUNSELED. 21 AS A PRACTICAL MATTER -- 22 AND MANY, MANY, I WOULD ASSUME THE AND ALL OF THE CONCERNS YOU HAD IT SEEMS LIKE, MR. GELERNT: WELL, YOUR HONOR, I DON'T THINK SO FOR 23 A FEW REASONS. BUT I WANT TO SORT OF ACCEPT YOUR POINT 24 BECAUSE I THINK IT IS RIGHT, THAT IF THERE HAS BEEN A FAMILY 25 WHO IS IN DETENTION AND HAS BEEN GETTING THIS COUNSELING FOR JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 30 of 61 29 1 SEVEN DAYS, THEN THAT'S A FAMILY THAT WE CAN SAY, WELL, THEY 2 HAVE HAD THEIR SEVEN DAYS. 3 BUT I THINK WHAT IS HAPPENING IS MANY OF THE 4 FAMILIES WHO ARE NOW BEING DETAINED HAVE BEEN DETAINED IN THE 5 LAST FEW DAYS, SO THEY HAVEN'T HAD NEARLY THAT MUCH TIME. 6 THE OTHER POINT IS THAT WHAT WE ARE HEARING FROM THE 7 DETENTION CENTERS -- BECAUSE THERE ARE BASICALLY TWO GROUPS 8 THAT RUN THE DETENTION CENTERS, SO THEY HAVE BEEN STAFFING IT 9 FOR YEARS, THEY DON'T GET NOTICE OF THE FAMILY COMING THAT 10 THIS IS A REUNIFIED FAMILY COMING. 11 THE DETENTION CENTER. 12 THEY COULD BE ANYWHERE IN WHAT THEY ARE TELLING US, AND I THINK THE AFFIDAVITS 13 SHOW, IS THAT THEY ARE LEARNING THAT THIS REUNIFIED FAMILY 14 SHOWED UP BECAUSE OTHER DETAINEES ARE TELLING THEM, HEY, THERE 15 IS THIS FAMILY THAT JUST CAME, AND THEY ARE NEW. 16 17 18 SO WHAT WE HAVE PROPOSED IS THAT IT BE SEVEN DAYS FROM WHEN WE GET NOTICE OF REUNIFICATION. NOW, IF WE GET A LIST FROM THE DETENTION CENTERS, 19 THESE ARE THE REUNIFIED FAMILIES WE HAVE BEEN WORKING WITH AND 20 THIS IS THE NUMBER OF DAYS THAT WE HAVE BEEN WORKING WITH 21 THEM, YOUR HONOR COULD CERTAINLY TAKE THAT INTO ACCOUNT. 22 BUT I THINK THERE ARE FAMILIES THAT JUST SHOWED UP 23 YESTERDAY AND THE DAY BEFORE, AND THAT MIGHT BE THE BULK OF 24 THEM, THEY HAVE NOT NEARLY HAD ANY TIME TO CONSULT. 25 PEOPLE ON THE GROUND MAY NOT EVEN KNOW THEY ARE THERE. JULY 27, 2018 THE Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 31 of 61 30 SO I THINK, AS A PRACTICAL MATTER, WE BELIEVE IT IS 1 2 VERY MUCH NECESSARY. AND I THINK, AS THE AFFIDAVITS SHOWED, 3 WHETHER THE REUNIFICATIONS ARE HAPPENING OR NOT, THE ABILITY 4 TO COUNSEL THESE INDIVIDUALS IS VERY DIFFICULT. 5 CLEAR THAT INDIVIDUALS HAVE WAIVED AWAY THEIR RIGHT TO A 6 CHILD, AND HAVE HAD NO IDEA AND ARE SHOCKED. IT IS VERY I MEAN, THE TRAUMA THAT IS GOING ON IS AMAZING. 7 AND 8 MAYBE I AM PERSONALIZING THIS TOO MUCH, BUT IT FEELS ALMOST 9 LIKE IT WOULD BE TORTUROUS TO HAVE A PARENT BE THINKING THE 10 REST OF THEIR LIFE, I GAVE AWAY MY CHILD BECAUSE I WAS 11 CONFUSED AND IT WAS MY MISTAKE. I MEAN, THEY ARE GOING TO GO BACK TO THEIR HOME 12 13 COUNTRIES NOW AND PEOPLE ARE GOING TO ASK, WHERE IS YOUR 14 DAUGHTER? AND THEY ARE GOING TO BE HAVING TO SAY, WELL, I WAS 15 16 WHERE IS YOUR SON? CONFUSED AND I DIDN'T UNDERSTAND. AND SOME OF THESE PEOPLE ARE ILLITERATE, THEY ARE 17 18 SPEAKING INDIGENOUS LANGUAGES. 19 THERE ARE SO MANY AFFIDAVITS SHOWING THAT PEOPLE DID NOT 20 UNDERSTAND THEIR RIGHTS. 21 SO COMPLEX. 22 THE COURT: I THINK THE AFFIDAVITS -- THE ABILITY TO COUNSEL THEM IS JUST THAT NUMBER, THOUGH, IS VERY SMALL, 23 ISN'T IT? BECAUSE THE GOVERNMENT HAS IDENTIFIED 120 WHERE 24 PARENTS HAVE OSTENSIBLY WAIVED REUNIFICATION. 25 HAVE IDENTIFIED ABOUT 43 OR SO IN THE AFFIDAVITS. JULY 27, 2018 OF THAT 120 YOU Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 32 of 61 1 MR. GELERNT: 2 MISTAKEN. 3 THEM. 27. 31 I THINK 27, YOUR HONOR, BUT I COULD BE BUT WE WOULD OBVIOUSLY LIKE TO TALK TO ALL OF 4 BUT SO I THINK THAT IS ONE ISSUE. 5 ONE THING I WOULD JUST BRING UP THAT WE DIDN'T GET A 6 CHANCE TO GO THROUGH. OUR VIEW OF THE NUMBERS IS WE ARE NOT 7 REALLY SURE. 8 WAIVED, NOW IT IS 120. 9 OCCURRED FROM 206 TO 120. IT WAS 206 BEFORE THAT THE GOVERNMENT SAID HAD WE ARE NOT SURE HOW THAT REDUCTION I TAKE THEIR POINT THAT THERE APPEARS TO BE A FINITE 10 11 NUMBER OF PEOPLE WHO HAVE WAIVED THE REUNIFICATION, SO AT A 12 MINIMUM I THINK WE NEED TO TALK TO THEM. 13 THE COURT: ISN'T THAT, THOUGH, A RELATIVELY EASY 14 FIX? SO IF YOU IDENTIFY THAT RELATIVELY SMALL NUMBER OF 15 INDIVIDUALS WHO ARE CLAIMING THEY MADE A MISTAKE, THEY DIDN'T 16 MEAN TO SEPARATE. 17 MR. GELERNT: 18 THE COURT: RIGHT. THEY CAN BE -- THEY CAN BE REUNIFIED. 19 THEY CAN BE IDENTIFIED AND REUNIFIED. 20 SUBJECT TO A REMOVAL ORDER, REMOVED TOGETHER. 21 MR. GELERNT: AND THEN IF THEY ARE THAT IS ABSOLUTELY RIGHT, YOUR HONOR. 22 SO THAT PRESUMES THAT WE CAN GET TO ALL OF THOSE INDIVIDUALS 23 BEFORE THEY ARE REMOVED, BECAUSE THE GOVERNMENT'S PLAN, AS YOU 24 KNOW, WAS TO NOT EVEN BRING THE CHILD THERE, IT WAS JUST TO 25 REMOVE THE PARENT BASED ON THE WAIVER OF REUNIFICATION. JULY 27, 2018 SO AT Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 33 of 61 32 1 A MINIMUM THE CHILD WOULD HAVE TO COME AND THERE WOULD HAVE TO 2 BE A REEXAMINATION GIVEN THAT THE ONES WE HAVE ALREADY REACHED 3 HAVE SAID THEY DIDN'T KNOW THAT WAS GOING ON. IF YOU IDENTIFY THEM, THEN THEY CAN BE 4 THE COURT: 5 CARVED OUT AND THEN REUNIFIED. 6 ITSELF WITHOUT FURTHER RELIEF BEING NECESSARY. 7 MR. GELERNT: AND THEN THE PROCESS ADDRESSES YOUR HONOR, I THINK WE WOULD TALK TO 8 THE PARENTS BECAUSE MAYBE THERE ARE A COUPLE THAT UNDERSTOOD 9 AND MAYBE WE DON'T HAVE TO BRING THE CHILD HERE BECAUSE THAT 10 WOULD TRAUMATIZE THE CHILD IF THEY WERE TO MAKE THE DECISION. 11 BUT AS LONG AS WE CAN TALK TO THEM. THE ONE POINT I WANTED TO MAKE BEYOND THOSE, YOUR 12 13 HONOR, IS WE BELIEVE WE NEED THE SEVEN DAYS EVEN FOR A PARENT 14 WHO SAID THEY WANTED TO BE REUNIFIED. 15 THE DECISIONS THEY HAVE TO MAKE AS A FAMILY NOW, ABOUT WHETHER 16 TO LEAVE THE CHILD BEHIND. AND THAT IS BECAUSE OF BECAUSE THE REUNIFICATION WAS SO NOW THAT THEY CAN 17 18 MAKE THIS DECISION TOGETHER. 19 YOU KNOW, YOU MAY NOT WIN YOUR CASE BUT YOUR CHILD MIGHT, DO 20 YOU WANT TO LEAVE YOUR CHILD BEHIND, DO YOU BOTH WANT TO 21 FIGHT? 22 JUST AS AN ASIDE. MANY PARENTS NOW WILL BE TOLD, YOUR HONOR, THE IDEA THAT THERE 23 IS NO APPEALS, THAT IS THE GOVERNMENT'S VERSION OF THE 24 EXPEDITED REMOVAL. 25 BEFORE THE NINTH CIRCUIT ABOUT THE EXTENT TO WHICH THERE HAS I ARGUED A CASE IN MAY THAT IS PENDING JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 34 of 61 33 1 TO BE HABEAS CORPUS OVER THESE EXPEDITED REMOVALS. JUST PUT A 2 PIN IN THAT, BUT THAT IS OBVIOUSLY GOING TO BE DECIDED BY THE 3 NINTH CIRCUIT ANY DAY. SO THOSE INDIVIDUALS NEED TO BE THE COUNSELED. 4 AND 5 I THINK THAT IS WHAT THE PEOPLE ON THE GROUND ARE SAYING IS 6 THEY JUST DIDN'T UNDERSTAND, MAYBE MY CHILD CAN STAY BY 7 HIMSELF AND HAS A CLAIM, MAYBE HE SHOULDN'T. 8 BOTH FIGHT. MAYBE WE CAN AND I THINK THOSE INDIVIDUALS, AFTER THIS MANY 9 10 MONTHS OF THE SEPARATION, NOW FOR THE GOVERNMENT NOT TO GIVE 11 SEVEN DAYS TO ALLOW THESE FAMILIES TO FIGURE IT OUT. 12 THE CHILD NOW HAS THIS WHOLE SEPARATE CASE GOING THAT THEY 13 WOULDN'T NORMALLY HAVE HAD GOING, AND THEY NEED TIME TO 14 DECIDE. 15 BEING ADVISED MAYBE MY CHILD SHOULD STAY BY HIMSELF, MAYBE HE 16 SHOULDN'T. 17 FIGHT. BECAUSE I SAID I WANT TO SEE MY CHILD TO TALK, BUT NOW I AM MAYBE WE SHOULD BOTH LEAVE, MAYBE WE SHOULD BOTH SEVEN DAYS -- I THINK WHAT THE PEOPLE ON THE GROUND 18 19 ARE SAYING IS SEVEN DAYS MAY NOT BE ENOUGH, BUT THAT IS WHAT 20 WE HAVE ASKED FOR NOW. BUT I THINK IT IS NOT JUST THE PEOPLE WHO HAVE 21 22 WAIVED REUNIFICATION, IT IS ALL OF THESE PEOPLE NEED TO MAKE 23 THIS PROFOUND DECISION NOW ABOUT ARE THEY GOING TO CONTINUE TO 24 FIGHT OR ARE THEY JUST GOING TO LEAVE THEIR CHILD BEHIND TO 25 FIGHT. IT IS A VERY COMPLEX DECISION. JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 35 of 61 34 AND AS THE PEOPLE ON THE GROUND ARE TELLING US, THE 1 2 FIRST DAY OR TWO IS A WASTE BECAUSE THE CHILDREN ARE 3 CATATONIC, THE PARENTS ARE JUST WEEPING. 4 PARENT GIVES IS WHETHER I AM GOING TO LOSE MY CHILD OR NOT. 5 THEY ARE JUST WEEPING. EVERY ANSWER THE THE TRAUMA IS SO MUCH WORSE THAN I THINK WE 6 7 REALIZED. 8 THE LAST FEW WEEKS HAVE OBVIOUSLY NECESSARILY HAD TO BE ABOUT 9 NUMBERS, AND MAYBE I SHOULD HAVE BEEN TALKING MORE ABOUT WHAT 10 AND I THINK, YOU KNOW -- MAYBE THIS IS MY FAULT, IS GOING ON WITH THESE FAMILIES. THE CHILDREN ARE BLAMING THE PARENTS FOR HAVING LEFT 11 12 THEM THERE IN THE DETENTION AS IF THE PARENT COULD HAVE GOT 13 THEM OUT. 14 AMOUNT OF WEIGHT. 15 WITH THE CHILDREN. 16 SIDE, EVEN WHEN THE PARENT NEEDS TO TELL SOME INDELICATE 17 INFORMATION ABOUT THEIR ASYLUM CLAIM AND DOESN'T WANT THEIR 18 SIX OR SEVEN-YEAR-OLD TO HEAR. THE CHILDREN ARE SHOWING UP HAVING LOST ENORMOUS THE PARENTS ARE HAVING TROUBLE REUNITING THE CHILDREN WILL NOT LEAVE THE PARENT'S YOU KNOW, I CANNOT EXPRESS STRONGLY ENOUGH WHAT WE 19 20 ARE HEARING FROM THE GROUND. 21 AFFIDAVITS THAT THEY NEED THIS TIME TO MAKE THIS PROFOUND 22 DECISION. 23 24 25 THE COURT: I THINK IT IS INDICATED IN THE WHAT ABOUT THE FACT THAT THERE WAS A PROCESS IN PLACE, THERE WAS A NOTICE. MR. GELERNT: RIGHT. JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 36 of 61 1 THE COURT: 35 AND THE COURT ADOPTED THE NOTICE THAT 2 PLAINTIFFS PROPOSED AND THE GOVERNMENT AGREED TO. 3 THE COURT ADOPTED THE 48-HOUR NOTICE OVER THE GOVERNMENT'S 4 OBJECTION. 5 GET THE INFORMATION AND THEN MAKE THE DECISION WHETHER TO BE 6 REMOVED TOGETHER OR SEPARATE. 7 8 AND THEN THAT, ISN'T IT, THE PERIOD OF TIME WHERE PARENTS MR. GELERNT: RIGHT, YOUR HONOR. I HAVE TWO RESPONSES TO THAT. ONE, AS I THINK WE HAVE SAID BEFORE, BUT I JUST WANT 9 10 TO MAKE SURE I WAS CLEAR ABOUT IT IS, WE NEVER ANTICIPATED 11 THAT THE FORM WOULD BE GIVEN AND FORCED ON PEOPLE TO SIGN 12 BEFORE REUNIFICATION. 13 PEOPLE COULD MAKE THE DECISION REQUESTED OF THEM ON THE FORM 14 WITHOUT BEING WITH THEIR CHILD, BECAUSE IT IS A FAMILY 15 DECISION. I THINK WE NEVER ANTICIPATED THAT 16 I THINK THE SECOND POINT I WOULD MAKE, YOUR HONOR, 17 IS WE HAD NO IDEA HOW THE FORM WAS GOING TO BE ADMINISTERED. 18 I THINK WHAT THE AFFIDAVITS SHOW IS THAT THERE IS MISLEADING 19 INFORMATION BEING GIVEN. 20 NOT UNDERSTANDING WHAT IS GOING ON. 21 THERE IS SOME COERCION. PARENTS ARE IN FACT, SOMETIMES THEY ARE -- I THINK A FEW 22 AFFIDAVITS INDICATE THAT THERE WERE GROUP PRESENTATIONS WHERE 23 PEOPLE HAD ONE TO FOUR MINUTES IN A GROUP OF 30 TO 50 PEOPLE 24 TO MAKE THIS DECISION. 25 I MEAN, I WOULD GATHER THAT EVERYONE IN THIS JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 37 of 61 36 1 COURTROOM HAS TAKEN LONGER TO FIGURE OUT WHAT THEY WANT TO 2 ORDER FROM A MENU, THAN ONE TO FOUR MINUTES ABOUT, THIS IS 3 YOUR LIFE AT STAKE AND YOUR CHILD'S LIFE AT STAKE. IN A GROUP PRESENTATION WITH PEOPLE SAYING THEY 4 5 DIDN'T HAVE THEIR GLASSES TO READ. 6 TRAUMA WAS SO GREAT. INDIGENOUS LANGUAGE. THE I THINK WE ALWAYS ASSUMED THAT THE PARENTS WOULD 7 8 HAVE THEIR CHILD WITH THEM AND THEY WOULD AT LEAST TALK AND 9 SAY, IF I AM GOING TO LEAVE YOU BEHIND HERE IN THE UNITED 10 STATES I NEED TO LOOK YOU IN THE EYE AND TELL YOU, THIS IS 11 WHAT WE ARE GOING TO DO AS A FAMILY. SO I THINK THAT IS WHERE WE ARE. 12 WE ASSUMED THE 13 FORM WOULD BE GIVEN -- THAT WHEN THEY HAD TO SIGN THE FORM IT 14 WOULD BE AFTER REUNIFICATION. 15 THERE WOULDN'T BE THESE KINDS OF HORRENDOUS PROBLEMS ON THE 16 GROUND WITH THE ADMINISTRATION OF THE FORM. 17 18 THE COURT: AND THAT WE ALSO ASSUMED THAT ON THE NOTICE, PAGE 2 OF THE NOTICE IS WHAT IS GIVEN TO PARENTS WITH A REMOVAL ORDER. 19 MR. GELERNT: AM I CORRECT? THAT WOULD HAVE BEEN OUR UNDERSTANDING 20 WITH THE REMOVAL ORDER. AND IT SHOULD HAVE BEEN TRANSLATED. 21 IT DOESN'T APPEAR THAT IT HAS ALWAYS BEEN TRANSLATED. AT THE END OF THE DAY, YOUR HONOR, I THINK, YOU 22 23 KNOW, THE UNITED STATES GOVERNMENT SHOULD WANT TO GET THIS 24 RIGHT AT THIS POINT. 25 POLICY. I MEAN, THEY CREATED THIS SEPARATION JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 38 of 61 1 37 AT THIS POINT I CANNOT SEE IT BEING IN THE 2 LEGITIMATE INTEREST OF THE UNITED STATES GOVERNMENT TO HAVE 3 FAMILIES NOT HAVE TIME TO MAKE THIS DECISION. 4 PARENTS ALL OVER THE WORLD HAVING LEFT THEIR CHILDREN BY 5 MISTAKE, OR TO HAVE MADE THE WRONG DECISION AND NOT UNDERSTOOD 6 THAT THEIR CHILD MIGHT BE ABLE TO GET ASYLUM. 7 AND TO HAVE THIS IS, WE BELIEVE, A REASONABLE AMOUNT OF TIME, 8 AFTER THIS MANY MONTHS OF SEPARATION GOING ON WITHOUT THE 9 GOVERNMENT FIXING IT UNTIL THIS COURT DRAGGED THEM INTO FIXING 10 11 IT, FOR THIS FEW DAYS, WE BELIEVE IT IS APPROPRIATE. WE DO TAKE YOUR POINT THAT IF A FAMILY WAS REUNITED 12 SEVEN DAYS AGO AND THEN THEY HAVE BEEN MEETING, YOU KNOW, THEY 13 ARE GOING TO HAVE HAD THEIR TIME. 14 GOING TO BE TRUE FOR THE VAST BULK WHO HAVE JUST GOT TO THE 15 DETENTION CENTER, AND MAYBE THE PEOPLE ON THE GROUND DON'T 16 EVEN KNOW THEY ARE IN THE DETENTION THE CENTER YET. 17 THE COURT: BUT I DON'T THINK THAT IS THIS NOTICE DOES PROVIDE, SO AT PAGE 2 18 THE NOTICE STATES THAT, CLEARLY, YOU DON'T HAVE TO AGREE TO 19 REMOVAL IN ORDER TO BE REUNIFIED. 20 FIGHT YOUR CASE THE GOVERNMENT MUST STILL REUNIFY YOU. 21 22 23 EVEN IF YOU CONTINUE TO AND THEN IT GOES ON, IN BOLD, AND IT SAYS, IF YOU LOSE YOUR CASE. SO THESE ARE PEOPLE WHO HAVE LOST THEIR CASE, THEY 24 HAVE A REMOVAL ORDER. AND THE GOVERNMENT IS GOING TO REMOVE 25 YOU, WHICH IT IS, YOU MUST DECIDE AT THAT TIME WHETHER YOU JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 39 of 61 1 38 WANT YOUR CHILD TO LEAVE THE UNITED STATES WITH YOU. DOESN'T THAT TELL THEM? 2 SO THIS WOULD BE A PARENT 3 IN A FACILITY WHO HAS A REMOVAL ORDER, THEY ARE GETTING 4 REMOVED. 5 HAVE THAT OPTION. 6 DISCRETION, THE EXECUTIVE BRANCH, AND ORDERED REMOVAL. 7 PARENT HAS THE NOTICE. 8 NOW, DO I WANT TO REMOVE TOGETHER WITH MY CHILD OR SEPARATELY. 9 10 AS MUCH AS THEY MIGHT WANT TO BE HERE, THEY DON'T THE GOVERNMENT HAS EXERCISED ITS THE AND THE NOTICE SAYS, I HAVE TO DECIDE THAT'S REALLY THE ONLY ISSUE. MR. GELERNT: BUT, YOUR HONOR, I JUST -- YOU KNOW, I 11 CAN'T MAKE THIS POINT STRONGLY ENOUGH THAT THERE IS NO WAY TO 12 MAKE THAT DECISION ABOUT LEAVING YOUR CHILD BEHIND OR NOT 13 WITHOUT BEING TOGETHER. 14 I THINK WHAT THE AFFIDAVITS SHOW IS THAT IT WAS 15 VIRTUALLY IMPOSSIBLE TO COUNSEL PARENTS WHEN THEY WERE 16 SEPARATED BECAUSE THEY WERE CONSTANTLY BEING TRANSFERRED. 17 PHONE ACCESS WAS IMPEDED. 18 AND MOST IMPORTANTLY, THE NUMBER OF CONVERSATIONS A 19 PARENT WAS ABLE TO HAVE WITH THEIR CHILD WAS USUALLY ONE OR 20 TWO AND IT WAS FOR A FEW MINUTES, AND THE CHILD WAS JUST 21 CRYING THE WHOLE TIME. 22 FOCUSED ON, ARE YOU EATING? 23 BULLYING YOU? 24 25 AND THE PARENT WAS UNDERSTANDABLY ARE YOU SLEEPING? IS ANYBODY THERE WAS SIMPLY NO WAY FOR THE PARENT AND CHILD TO HAVE THAT KIND OF CONVERSATION BY PHONE. JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 40 of 61 39 AND SO THIS ULTIMATE DECISION BY THE PARENT IS GOING 1 2 TO AFFECT THE CHILD. IT IS NOT JUST SIMPLY THAT THEY ARE 3 SINGLE ADULTS HERE DECIDING, I'M GOING TO LEAVE OR NOT LEAVE. 4 IT IS ULTIMATELY -- THESE ARE ALL FAMILY DECISIONS. AND GOING BACK TO YOUR FRAMEWORK, YOUR HONOR, ABOUT 5 6 WHAT WOULD HAVE HAPPENED HAD THEY NOT BE SEPARATED. 7 THEY WOULD HAVE BEEN TOGETHER FOR ALL OF THESE DAYS AND WOULD 8 HAVE BEEN TALKING ABOUT IT. 9 ADVOCATE WHO WOULD HAVE SAID, YOU KNOW, MAYBE YOUR CHILD CAN 10 WELL, THEY WOULD HAVE HOPEFULLY SEEN AN STAY. BUT THAT WOULD HAVE BEEN A FAMILY DECISION TOGETHER 11 12 AND THEY WOULDN'T HAVE BEEN SO TRAUMATIZED THAT THE ABILITY TO 13 EVEN HAVE THE CONVERSATION WAS SO IMPEDED. SO I THINK THIS IS AN ATTEMPT -- AND WITH VERY FEW 14 15 DAYS OF STAY OF REMOVAL. 16 ARE REALLY BEGGING US TO GET MORE. 17 THE FAMILY BE BACK WHERE THEY WOULD HAVE BEEN TO MAKE THIS 18 DECISION TOGETHER. 19 THE COURT: I MEAN, I THINK PEOPLE ON THE GROUND BUT AN ABILITY TO JUST LET BUT UNDER THE LAW WHAT MATTERS IS THE 20 PARENT. I MEAN, WHAT THIS CASE HAS ALWAYS BEEN ABOUT IS THE 21 DUE PROCESS RIGHT TO FAMILY INTEGRITY. 22 MR. GELERNT: 23 THE COURT: RIGHT. AND IT IS THE PARENT THAT MAKES THE 24 DECISIONS. IN A PERFECT WORLD IT COULD BE A FAMILY DECISION, 25 BUT THE CHILD'S VIEW, UNDER THE LAW, DOESN'T MATTER. JULY 27, 2018 IT IS Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 41 of 61 40 1 THE PARENT'S VIEW, ULTIMATELY, WHETHER TO REMOVE TOGETHER OR 2 SEPARATELY. 3 MR. GELERNT: 4 THE COURT: RIGHT, YOUR HONOR. SO I UNDERSTAND THE EMOTIONAL ARGUMENT 5 ABOUT THIS DECISION SHOULD BE MADE FACE TO FACE, BUT WHAT'S 6 THE LEGAL BASIS? 7 MR. GELERNT: YOUR HONOR, ONE THING I WOULD SAY IS 8 THAT I THINK THAT CHILD ADVOCATES WOULD SAY THAT THE OLDER THE 9 CHILD THAT CHILD MAY HAVE SOME INDEPENDENT RIGHTS. 10 I JUST WANT TO PUT THAT OUT THERE NOW. BUT BEYOND THAT, YOUR HONOR, I THINK THE PARENT MAY 11 12 ULTIMATELY MAKE THE DECISION IN MOST CASES, ALMOST ALL THE 13 CASES. 14 PROFOUND DECISION WITHOUT DISCUSSING IT WITH THEIR CHILD. BUT I DON'T THINK ANY PARENT MAKES THIS KIND OF THEY DON'T JUST SIMPLY SAY, BY THEMSELVES, MY 15 16 EIGHT-YEAR-OLD IS STAYING HERE BY HIMSELF. 17 SEE HIM. I AM NOT GOING TO I AM SAYING, I AM GOING, YOU KNOW, HAVE A GOOD LIFE. 18 THEY HAVE NOT SPOKEN. 19 I DON'T THINK THERE IS ANY ABILITY -- I DON'T THINK 20 THE PARENT CAN MAKE THAT KIND OF DECISION WITHOUT LOOKING HIS 21 CHILD IN THE EYE AND SAYING, DO YOU WANT TO TRY TO STAY HERE? 22 DO YOU WANT TO TRY AND BUILD A LIFE HERE BY YOURSELF? 23 GOING TO GO BACK TO OUR COUNTRY, AND WE MAY NEVER SEE EACH 24 OTHER AGAIN. 25 THOSE ARE THE KIND OF DECISIONS. JULY 27, 2018 I AM AND THEY ALSO NEED Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 42 of 61 1 41 COUNSELING. AS THE AFFIDAVITS SAY, IT WAS SO DIFFICULT TO EVEN 2 3 TALK TO THE PARENTS. 4 SO THE PARENTS DIDN'T GET A LOT OF INFORMATION ABOUT WHAT 5 THEIR CHOICES ARE. 6 HAD NO UNDERSTANDING OF THE PROCESS. 7 DAY, NOT HAVING THAT TIME WITH YOUR CHILD TO MAKE THAT KIND OF 8 DECISION TO POTENTIALLY LEAVE YOUR CHILD -- I MEAN, THAT MAY 9 BE THE LAST TIME THEY SEE THIS CHILD. 10 11 THEY WERE CONSTANTLY BEING TRANSFERRED. I THINK, AS THE AFFIDAVITS SHOW, THEY JUST THE COURT: BUT AT THE END OF THE THEN GOING BACK TO THE FORM. THIS CASE ALSO HAS BEEN ABOUT ORDER AND PROCEDURE -- 12 MR. GELERNT: 13 THE COURT: RIGHT. -- AND PROCESS. AND CLEARLY THE 14 PLAINTIFFS HAVE MADE A SHOWING, BASED ON A LIKELIHOOD OF 15 SUCCESS, THAT THE GOVERNMENT GOT THAT ALL WRONG AT THE 16 BEGINNING. 17 MR. GELERNT: 18 THE COURT: RIGHT. THAT HAS BEEN RECTIFIED. BUT HERE WE 19 HAVE A PROCESS IN PLACE, WITH CLASS NOTICE. 20 ORDER AND PROCEDURE, AND ULTIMATELY PARENTS ARE HELD TO 21 ACCOUNT. 22 IS CLEAR. 23 THERE WAS AN IT IS POSTED IN ENGLISH AND IN SPANISH. THE NOTICE AND EVEN, IF THEY HAD QUESTIONS, IT INVITES THE 24 PARENT TO CALL YOU, ACLU. 25 LEGAL REPRESENTATION. DOESN'T GET ANY BETTER AS FAR AS IF THERE WERE ANY QUESTIONS THEY WERE JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 43 of 61 42 1 INVITED TO CALL YOU, ON THE FORM, WITHIN THIS 48-HOUR PERIOD 2 OF TIME. 3 MR. GELERNT: YOUR HONOR, YOU KNOW, I THINK THAT I 4 WOULD HAVE TO GO BACK TO THE AFFIDAVITS. 5 TO ASK QUESTIONS OR IT WASN'T CLEAR THEY COULD ASK QUESTIONS. 6 SOME OF THEM WERE PRESENTED ONLY IN ENGLISH, SOME OF THEM WERE 7 INDIGENOUS SPEAKERS. 8 9 THEY WEREN'T ALLOWED I THINK THE IDEA THAT THEY WERE GETTING THIS CLEARLY FROM THE FORM -- SOMETIMES THEY WERE BROUGHT INTO A ROOM WITH 10 50 PEOPLE AND SAY, YOU HAVE THREE OR FOUR MINUTES TO 11 UNDERSTAND THIS FORM AND THEN SIGN IT. 12 13 14 SO I DO NOT THINK THAT THE FORM WORKED AS WE WOULD HAVE HOPED. EVEN PUTTING ASIDE THE QUESTION OF DO YOU NEED YOUR 15 CHILD THERE, I THINK IT WAS AN IMPOSSIBLE SITUATION FOR MANY 16 OF THESE FAMILIES FOR THE PARENTS. 17 AFFIDAVITS WHAT HAPPENED. 18 AND IT IS CLEAR FROM THE AND, YOU KNOW, I TAKE YOUR POINT THAT THIS WAS ABOUT 19 REUNIFICATION, BUT I ALSO -- YOUR POINT HAS ALWAYS BEEN, WE 20 NEED TO REUNIFY AND PUT THEM BASICALLY BACK IN THE POSITION 21 THEY WOULD HAVE BEEN. 22 THEY WOULD NEVER HAVE BEEN IN THIS POSITION OF BEING 23 SO TRAUMATIZED, NOT HAVING HAD THE CHANCE TO TALK WITH THEIR 24 CHILD ABOUT THIS PROFOUND DECISION. 25 SO IF THEY HAD NEVER BEEN SEPARATED THEY WOULD HAVE JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 44 of 61 43 1 EASILY HAD SEVEN DAYS TO BE WITH THEIR CHILD, DISCUSSING, HERE 2 IS WHAT IS GOING TO HAPPEN. 3 ADVOCATE AND MADE THIS DECISION. THEY WOULD HAVE TALKED TO AN ALL WE ARE TRYING TO DO IS PUT IT BACK IN THAT 4 5 SITUATION. 6 THE GOVERNMENT HAS CREATED THIS PROBLEM, FOR THE GOVERNMENT TO 7 SAY, OKAY, LET'S GIVE THEM SOME TIME SO THE RIGHT DECISION IS 8 MADE. 9 TO BE MADE. 10 AND WE DO NOT THINK IT IS UNREASONABLE, GIVEN THAT BECAUSE THIS IS SUCH A PROFOUND DECISION THAT IS GOING THE COURT: WOULDN'T IT BE MORE, THOUGH, THAN JUST 11 PUTTING THEM BACK TO THE STATUS QUO? 12 ENORMOUS RESOURCES HAVE BEEN SHEPHERDED AND PUT IN PLACE AND 13 THERE HAS BEEN A REUNIFICATION. 14 BECAUSE OBVIOUSLY THIS WOULD THEN GIVE THE PARENTS ADDITIONAL TIME TO 15 MAKE THE DECISION THEY MADE EARLIER IN THE PROCESS, AND 16 ARGUABLY TO CHANGE THE STATUS QUO BY RE-SEPARATING SO THAT 17 THEY COULD EFFECT A LEGAL CHANGE THAT MAY ARGUABLY GIVE THE 18 CHILD MORE ASYLUM RIGHTS AS AN UNACCOMPANIED MINOR. 19 ARE MAKING THAT CHANGE WHEN THEY, IF YOU GO TO THE STATUS QUO, 20 THEY WOULD NOT HAVE HAD THAT OPPORTUNITY. 21 HAVE BEEN ACCOMPANIED. 22 MR. GELERNT: BUT THEY THE CHILDREN WOULD BUT IF THE CHILD WAS ACCOMPANIED THEY 23 WOULD HAVE HAD THE CHOICE TO HAVE ONE ASYLUM PROCEEDING 24 TOGETHER OR SEPARATE PROCEEDINGS. 25 BEEN A CHOICE FOR THEM. THAT WOULD HAVE ABSOLUTELY JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 45 of 61 44 AND I THINK THAT IS ONE OF THE THINGS THAT THE 1 2 ADVOCATES ON THE GROUND ARE SAYING IS WHEN A FAMILY COMES 3 TOGETHER THEY ARE ASKED, DO YOU WANT ONE ASYLUM PROCEEDING AND 4 SINK OR SWIM TOGETHER? 5 SEPARATE PROCEEDING? DO YOU WANT YOUR CHILD TO HAVE A AND NOTABLY, IF THE PARENT FAILED THEIR PROCEEDING 6 7 BUT THE CHILD PASSED, THE LONG-TERM PRACTICE WAS ALWAYS TO 8 HAVE THE PARENT STAY AND BOTH THE CHILD AND PARENT WOULD BE 9 PUT IN FULL IMMIGRATION PROCEEDINGS? SO WE ARE REALLY TAKING A STEP BACKWARD NOW LOOKING 10 11 TO REMOVED PARENTS BECAUSE THEIR CHILD CAN STAY AND PURSUE 12 ASYLUM. 13 CHILD PASSED HIS CREDIBLE FEAR INTERVIEW, THE PARENT WOULD 14 HAVE COME ALONG. 15 THAT THAT WAS THE BETTER WAY TO DO IT. 16 IN THE PAST THAT WOULD NEVER HAVE HAPPENED. THAT WAS THE PRACTICE. IF THE IT WAS UNDERSTOOD SO I THINK WE ARE REALLY GOING TO BE PUTTING THESE 17 FAMILIES IN A SITUATION THEY WOULD HAVE NEVER BEEN IN, BECAUSE 18 THEY WOULD HAVE HAD THAT CHOICE. 19 THE COURT: UNDER THE OLD SYSTEM, THEN, IF THE CHILD 20 WAS ALLOWED TO STAY BASED ON A SUCCESSFUL ASYLUM CLAIM, THEN 21 THE PARENT WOULD BE SEPARATED AT THAT TIME? 22 23 MR. GELERNT: YOU MEAN IF THEY WERE IN FULL IMMIGRATION PROCEEDINGS? YES. 24 THE COURT: 25 MR. GELERNT: AND AT THE END OF THOSE PROCEEDINGS? JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 46 of 61 1 I THINK THAT IS PROBABLY RIGHT. 2 GOVERNMENT DEPORTS THE PARENT WITH THE CHILD STILL HERE. 3 THEY CERTAINLY WOULD HAVE BOTH GOT INTO FULL PROCEEDINGS. 45 I DON'T KNOW HOW OFTEN THE BUT AND THAT IS ALL THAT IS GOING ON HERE IS THAT THEY 4 5 ARE AT THAT STAGE WHETHER THEY ARE EVEN GOING TO GET INTO FULL 6 PROCEEDINGS. 7 THE COURT: 8 PRACTICAL REALITIES. 9 ELIGIBLE GROUP. ALL RIGHT. THEN GOING BACK TO THE EVERYONE HAS BEEN REUNIFIED NOW OF THE SO WITH EACH DAY PASSING, SOME OF THESE 10 REUNIFICATIONS OCCURRED TEN DAYS AGO, NINE, EIGHT, SEVEN. 11 HUNDREDS HAVE BEEN COMING IN. I GO BACK TO THE ORIGINAL QUESTION: 12 HAVEN'T THE 13 VAST MAJORITY, THEY HAVE HAD THIS TIME? 14 EVERYONE KNEW THIS WAS COMING, THIS HEARING, THAT THE 15 IMMIGRATION ATTORNEYS THAT YOU WORK WITH AND COMMUNICATE WITH 16 HAVE BEEN ON THE GROUND ADVISING. 17 MR. GELERNT: 18 FAIR POINT. 19 THAT. SO, YOUR HONOR, THAT IS A SO I JUST WANT TO BE AS CLEAR AS I CAN ABOUT WE STILL HAVE NOT GOT THE LIST OF WHO HAS BEEN 20 21 RIGHT. I AM ASSUMING BECAUSE REUNIFIED AND WHERE THEY WENT. WE BELIEVE THAT THE VAST MAJORITY OF THOSE THAT YOU 22 23 ARE TALKING ABOUT, A WEEK AGO, TEN DAYS AGO, WERE RELEASED, 24 THAT THE ONES WHO ARE COMING NOW ARE DETAINED, SO IT IS VERY 25 RECENT. JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 47 of 61 46 BUT CERTAINLY, YOUR HONOR, IF YOU WANT TO SAY THE 1 2 SEVEN DAYS, DURING THE INTERIM STAY IF YOU WERE GETTING 3 COUNSELING YOU HAVE HAD YOUR SEVEN DAYS, THAT IS FAIR, YOUR 4 HONOR. SO ALL WE ARE SAYING IS, WE WOULD LIKE TO KNOW -- WE 5 6 HAVE BEEN ASKING FOR THIS -- WHO HAS BEEN REUNIFIED AND PUT 7 INTO DETENTION SO WE CAN FIGURE IT OUT. WE ARE SLOWLY TRYING TO FIGURE IT OUT ON THE GROUND 8 9 10 AS THE PEOPLE ON THE GROUND GET WORD FROM OTHER DETAINEES OR SOMEONE, WE HAVE MET WITH THIS FAMILY. WE ARE HAPPY TO PROVIDE YOU WITH A LIST OF, THESE 11 12 ARE THE FAMILIES WE HAVE BEEN ABLE TO MEET WITH AND WHAT DAY 13 WE STARTED MEETING WITH THEM. 14 KNOW. BUT AT THIS POINT WE DON'T EVEN 15 AND WE CERTAINLY DON'T KNOW THE FAMILIES THAT WERE 16 BROUGHT THERE YESTERDAY, WHETHER THEY EVEN MADE CONTACT WITH 17 ANYBODY. 18 BELIEVE THE SEVEN DAYS. 19 GETTING COUNSELING FOR THREE DAYS, THEN MAYBE THEY HAVE FOUR 20 DAYS LEFT. 21 SO FOR AT LEAST FOR THOSE PEOPLE, YOU KNOW, WE BUT IF THERE IS SOMEONE WHO HAS BEEN IF THERE WAS SOMEONE SEVEN DAYS AGO -- I THINK IT WOULD HAVE -- THE ONLY THING I WOULD ADD 22 ABOUT THAT IS IT WOULD HAVE TO BE FROM WHEN SOMEONE GOT NOTICE 23 THE FAMILY WAS EVEN THERE. 24 GOVERNMENT BRINGS THEM TO THE DETENTION CENTER, BUT DOESN'T 25 ALERT PEOPLE, HEY, THERE IS A REUNIFIED FAMILY FROM MS. L. BECAUSE WHAT HAPPENS IS THE JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 48 of 61 1 2 47 HERE NOW. THEY KNOW WHO THE COUNSELORS ARE BECAUSE THEY HAVE 3 BEEN WORKING WITH THEM FOR YEARS. THEY COULD HAVE BEEN 4 SAYING, HEY, WE ARE BRINGING A REUNIFIED MS. L. FAMILY, THEY 5 ARE IN WING W IN THE BACK. 6 THAT HASN'T GONE ON. 7 SO ALL WE ARE ASKING IS ONCE WE GET NOTICE OF THAT 8 WE CERTAINLY CAN GO BACK IN THE DAYS AND SEE. 9 FAIR, YOUR HONOR, TO SAY THAT WE DON'T GET A WINDFALL FROM THE 10 11 12 INTERIM STAY. THE COURT: IT APPEARS, ALSO, THE VAST MAJORITY OF THESE REUNIFICATIONS ARE FAMILIES THAT ARE BEING PAROLED. 13 MR. GELERNT: 14 THE COURT: 15 16 AND THAT SEEMS ACCESSIBLE. RIGHT, YOUR HONOR. THEY ARE OUT AND THEY ARE EASILY YOU KNOW WHERE THEY ARE. MR. GELERNT: THAT IS ABSOLUTELY RIGHT, YOUR HONOR. 17 WE ARE TALKING ABOUT THE ONES WHO ARE IN DETENTION AND MAY BE 18 REMOVED IMMEDIATELY. 19 WE ARE CONCERNED WITH. 20 THE COURT: I THINK THOSE ARE THE INDIVIDUALS THAT WHAT I AM -- THIS PROCESS, IT HAS BEEN 21 TEN DAYS IN PLACE NOW AND IT IS ALL PENDING THE BRIEFING ON A 22 SCHEDULE THAT THE PARTIES REQUESTED. 23 WHETHER OR NOT THE COURT HAS JURISDICTION TO EVEN STEP IN AND 24 DO SOMETHING AS SIGNIFICANT AS INTERVENING AND PRECLUDING THE 25 EXECUTIVE BRANCH FROM ENFORCING A REMOVAL ORDER, SO THAT ISSUE JULY 27, 2018 AND THE FIRST ISSUE IS Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 49 of 61 1 48 IS SQUARELY PRESENTED NOW. AND WHAT I AM LOOKING TO IS NOT ONLY WHETHER THE 2 3 COURT HAS JURISDICTION TO DO THAT, BUT IF IT DOES WHETHER THAT 4 TYPE OF EXTRAORDINARY RELIEF IS WARRANTED UNDER THESE UNIQUE 5 FACTS. I THINK I HAVE GOT THE INFORMATION. 6 WHAT I WANT TO 7 DO IS TAKE IT UNDER ADVISEMENT AND ISSUE AN ORDER AS SOON AS I 8 AM ABLE TO. MR. STEWART, DO YOU HAVE ANY ADDITIONAL INFORMATION 9 10 OR ARGUMENT ON THIS PARTICULAR ISSUE? 11 12 MR. STEWART: SURE, YOUR HONOR. I WILL TRY TO BE REASONABLY CONCISE. YOUR HONOR, AS YOU KNOW, I HAD THE HONOR OF 13 14 APPEARING HERE A GOOD NUMBER OF TIMES BEFORE YOUR HONOR NOW, 15 AND I THINK YOUR HONOR HAS CONSISTENTLY EMPHASIZED A NUMBER OF 16 THINGS. 17 RULES OF PROCEEDING AND HOW REUNIFICATIONS ARE GOING TO GO. 18 THE NOTICE, AND THAT SORT OF THING. 19 STICK TO THOSE AND HONOR THOSE, AND ACT IN KEEPING WITH THOSE. 20 ONE IS THAT YOUR HONOR'S ORDERS LAY OUT CLEARLY THE AND THE PARTIES SHOULD SECOND, YOUR HONOR HAS BEEN QUITE CLEAR THAT THE 21 RIGHT AT ISSUE HERE IS A DUE PROCESS RIGHT TO FAMILY UNITY, 22 FAMILY INTEGRITY, AND THEREFORE REUNIFICATION. 23 24 25 AND THIRD, YOUR HONOR HAS EMPHASIZED THE IMPORTANCE OF THE UTMOST GOOD FAITH BETWEEN THE PARTIES. IN KEEPING WITH ALL THREE OF THOSE, THOSE SORT OF JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 50 of 61 49 1 GUIDEPOSTS, I WOULD SAY, YOUR HONOR, THE GOVERNMENT TRIED VERY 2 HARD IN GOOD FAITH TO FIND A SOLUTION HERE THAT WOULD 3 ACCOMMODATE THE CONCERNS THAT THE PLAINTIFFS HAVE EMPHASIZED. WE DID SO EVEN THOUGH, AS YOUR HONOR HAS JUST 4 5 MENTIONED, WE HAVE A JURISDICTIONAL OBJECTION, A VERY STRONG 6 JURISDICTIONAL OBJECTION THAT IS QUITE IMPORTANT AND GOES TO 7 THE HEART OF THE EXECUTIVE BRANCH'S DISCRETIONARY AUTHORITY. 8 NONETHELESS, WE PROPOSED A PATH THAT WOULD HAVE ADDRESSED JUST 9 THE MANY CONCERNS THAT ARE BEING IDENTIFIED. 10 WE LAID IT OUT IN THE PAPERS SO I WON'T BELABOR IT. BUT ONE OF THE POINTS IS THAT WE PROPOSED THE KARNES 11 12 FACILITY TO BE DEDICATED EXCLUSIVELY TO THIS TO WORK SO THAT 13 ATTORNEY ACCESS COULD BE PROVIDED IN FULL. 14 WOULD KNOW WHERE TO GO, THEY WOULD HAVE TIME TO WORK WITH 15 PEOPLE. 16 THE ADVOCATES AGAIN, YOU KNOW, THIS IS NOT SOMETHING THAT WE 17 BELIEVE THE LAW REQUIRES US TO DO OR THAT WE CAN BE PROPERLY 18 ORDERED TO DO; BUT WE DID IT BECAUSE, YOU KNOW, WE ARE 19 COMMITTED TO TRYING TO FIND SOLUTIONS HERE AND NOT PUT THE 20 COURT IN A SPOT OF ISSUING NEEDLESS INJUNCTIVE RELIEF. 21 WOULD EMPHASIZE THAT. 22 SO I I WOULD ALSO EMPHASIZE, YOUR HONOR, TWO OR THREE 23 MORE QUICK POINTS. ONE IS, AS YOUR HONOR RECOGNIZED TODAY AND 24 AT THE PREVIOUS HEARING, MANY OF THESE CHILDREN HAVE HAD SEVEN 25 DAYS OR MORE AT THIS POINT AMONG THE POTENTIALLY ELIGIBLE JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 51 of 61 1 50 FOLKS. THEY WILL, YOU KNOW, BY, YOU KNOW, SEVEN DAYS FROM 2 3 YESTERDAY OR SEVEN DAYS FROM REUNIFICATION WILL HAVE HAD THAT 4 FULL COMPLEMENT OF SEVEN DAYS. 5 TO BE HIGHLY TAILORED AND LIMITED. 6 NOT APPROPRIATE IN OUR VIEW, BUT WE EMPHASIZE THAT. SO ANY SORT OF STAY WOULD HAVE AGAIN, YOU KNOW, ONE IS THE NEXT POINT, YOUR HONOR, YOU MENTIONED ABOUT THE 7 8 STATUS QUO, THE EFFORT TO REUNIFY FAMILIES. THIS GOES BACK 9 YOUR HONOR'S HOLDING AND THEME THAT THE RIGHT AT ISSUE HERE 10 THAT YOUR HONOR FOUND IS ONE TO FAMILY INTEGRITY THAT REQUIRES 11 REUNIFICATION OF FAMILIES. AND IT IS QUITE STRANGE HERE, I THINK, THAT THAT 12 13 RIGHT TO FAMILY UNITY IS BEING TRANSFORMED SUDDENLY INTO AN 14 ALLEGED FUNDAMENTAL RIGHT TO RE-SEPARATE OR TO LEVERAGE MORE 15 PROCEDURES THAN YOUR HONOR HAS ALREADY LAID OUT. 16 THAT SORT OF THING. 17 CASE HAS BEEN ABOUT WITH, YOU KNOW, THE EFFORTS THAT WE HAVE 18 BEEN TRYING TO DO TO HONOR YOUR HONOR'S ORDERS. 19 INCONSISTENT WITH THE PURPOSE OF A PRELIMINARY INJUNCTION, 20 WHICH IS HERE TO RESTORE THE STATUS QUO. MORE RIGHTS, AND IT IS INCONSISTENT WITH WHAT THIS AND IT IS 21 FINALLY, I JUST EMPHASIZE, YOUR HONOR, THAT YOUR 22 HONOR DID WELL, I THINK, TO HIT THIS BEFORE I WAS ABLE TO. 23 BUT JUST ON THE FORM, THE NOTICE FORM, YOU KNOW, IT IS QUITE 24 CLEAR. 25 IT GIVES PARENTS THE INFORMATION THEY NEED TO KNOW. THESE -- YOU KNOW, AS WITH ANY SYSTEM THERE COULD BE JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 52 of 61 51 1 IMPERFECTIONS OF OPERATION ON THE GROUND. YOU KNOW, IT WOULD 2 HAVE BEEN NICE IF THOSE HAD BEEN BROUGHT TO OUR ATTENTION, YOU 3 KNOW, UNIFORMLY FOR RESOLUTION RATHER THAN THROUGH AFFIDAVITS 4 ATTACHED TO A REPLY BRIEF. BUT I DON'T THINK THAT -- YOU KNOW, WE HAVE 5 6 IMPLEMENTED AND DONE OUR VERY BEST TO IMPLEMENT A SYSTEM THAT 7 THE COURT ORDERED, THAT THE PLAINTIFFS PROPOSED TO THE COURT, 8 AND HAVE GIVEN THE FULL OPPORTUNITY TO MAKE THE DECISION THAT 9 MR. GELERNT IDENTIFIES AS CRITICAL. SO I WOULD EMPHASIZE THOSE POINTS, YOUR HONOR, THAT 10 11 FURTHER RELIEF IS NOT WARRANTED. 12 HARD, CONSISTENT WITH YOUR HONOR'S GUIDEPOSTS, TO GET THIS 13 RIGHT. 14 THE GOVERNMENT TRIED VERY MANY FOLKS HAVE ALREADY HAD THE FULL RELIEF THAT MR. 15 GELERNT HAS ASKED FOR, AND ANY FURTHER RELIEF WOULD EXPIRE 16 REALLY QUITE PROMPTLY. 17 18 19 AND I THINK WITH THOSE POINTS, I WOULD OTHERWISE BE CONTENT TO REST ON THE BRIEFS, YOUR HONOR. THE COURT: DO YOU AGREE THAT WITH THE PARENTS WHO 20 CLAIM THEY ELECTED TO REMOVE SEPARATELY BUT DIDN'T KNOW WHAT 21 THEY WERE DOING COULD BE CARVED OUT, OR WHATEVER THE TERM IS, 22 SO THAT THEY CAN MEET WITH COUNSEL, AND THEN DETERMINE WHETHER 23 TO REUNIFY AND REMOVE TOGETHER? 24 QUESTION THE BIG ISSUE OF WHETHER THE COURT CAN ISSUE AN 25 INJUNCTION PRECLUDING ENFORCEMENT OF A REMOVAL ORDER. THAT DOESN'T CALL INTO JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 53 of 61 1 MR. STEWART: RIGHT, YOUR HONOR. I WOULD LIKE TO 2 TAKE THAT BACK. 3 LOOK, HERE IS WHAT HAPPENED, IT WOULD BE HELPFUL. 4 52 BUT IF WE COULD GET INFORMATION OF, LIKE, BECAUSE, YOU KNOW, AS I READ THE DECLARATIONS, THEY 5 ARE A LITTLE BIT UNCLEAR AS TO WHAT HAPPENED. 6 SAY, YOU KNOW, I WANT TO BE REUNIFIED, BUT THEY DON'T GO INTO 7 CLARITY ABOUT WHAT THE OPTIONS ARE AVAILABLE. 8 9 10 11 12 13 I MEAN, SOME I MEAN, SOME PEOPLE SAY, I WANT TO BE REUNIFIED AND REMAIN IN THE UNITED STATES, BUT THAT IS NOT A LEGALLY AVAILABLE OPTION FOR SOMEBODY WHO HAS BEEN REMOVED. SO I THINK THERE NEEDS TO BE A LITTLE BIT OF CLARITY THERE, AND IT IS HARD FOR ME TO GIVE A BLANKET ANSWER. I COULD TAKE IT BACK. IT WOULD BE HELPFUL TO 14 KNOW -- I MEAN, AGAIN, YOU KNOW, WE WERE HIT WITH KIND OF 15 ANECDOTAL REPORTS IN THE DECLARATIONS, AND IT IS JUST HARD TO 16 KNOW WHAT IS ALLEGEDLY GOING ON WITHOUT A LITTLE BIT MORE 17 DETAIL SINCE WE -- 18 THE COURT: 19 WHAT DOES THAT MEAN? 20 WHEN YOU SAY YOU COULD TAKE IT BACK, MR. STEWART: WELL, I WOULD HAVE TO TALK TO THE -- 21 JUST THE CLIENTS AND SORT OF SEE, YOU KNOW, WHAT THE, YOU 22 KNOW, HOW WE, YOU KNOW, WHAT WE CAN KIND OF WORK OUT, WHAT WE 23 MIGHT BE ABLE TO WORK OUT THERE AS TO THAT GROUP. 24 25 I MEAN, WHAT I DO UNDERSTAND IS THAT, LOOK, IF SOMEBODY ELECTS ONE THING AND CHANGES THEIR MIND, YOU KNOW, JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 54 of 61 53 1 THERE BE AN EFFORT TO, YOU KNOW, IN THE NORMAL COURSE TO JUST 2 ACCOMMODATE THAT. 3 SOMEBODY MAKES IS THE CHOICE THEY MAKE AND, YOU KNOW, THAT 4 WOULD BE THE HOPE TO HONOR THAT. 5 YOU KNOW, I MEAN, THAT THE CHOICE THAT THE COURT: THAT IS A DIFFERENT ISSUE. IF YOU 6 ACCEPT THE PLAINTIFFS' ARGUMENT IT GOES TO A PARENT WHO MADE A 7 DECISION TO SEPARATE MISTAKENLY. 8 WERE SUCH THAT THEY DIDN'T HAVE ADEQUATE NOTICE OR 9 INFORMATION. 10 THEY CLAIM THE CIRCUMSTANCES THEY ELECTED TO BE REMOVED SEPARATELY. AND, THE ARGUMENT GOES, IF THEY HAD ALL OF THE 11 INFORMATION THEY WOULD, CONSISTENT WITH THIS WHOLE CASE, WANT 12 TO REUNIFY, BE WITH THEIR CHILD AND THEN REMOVED TOGETHER. 13 SO IT IS DIFFERENT FROM THE LARGER GROUP WHERE THE 14 ARGUMENT REALLY IS, WE HAVE REUNIFIED AND NOW WE WOULD LIKE 15 MORE TIME TO REEVALUATE WHETHER WE WANT TO RE-SEPARATE. 16 MR. STEWART: AND JUST TO MAKE SURE I GET THE 17 QUESTION, YOUR HONOR, RIGHT, IS YOUR HONOR PROPOSING JUST 18 FURTHER TIME FOR THAT GROUP OR -- I GUESS I AM JUST TRYING TO 19 UNDERSTAND WHAT I CAN DO TO BE RESPONSIVE. 20 THE COURT: WELL, IT JUST SEEMS TO ME THAT AS TO THE 21 FORMER GROUP, THOSE THAT ARE CLAIMING THEY ELECTED TO REMOVE 22 SEPARATELY IN ERROR, THAT SOMETHING CAN BE DONE WITH THEM 23 SHORT OF AN INJUNCTION PRECLUDING ENFORCEMENT OF A REMOVAL 24 ORDER WHERE THEY HAVE -- WHERE THEY ARE IDENTIFIED, AND THEY 25 MAKE, FROM THEIR PERSPECTIVE, AN INFORMED DECISION WHETHER TO JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 55 of 61 54 1 REMAIN SEPARATE AND BE REMOVED, OR TO REUNIFY AND REMOVE -- OR 2 REUNIFY AND REMOVE TOGETHER. 3 WHEN I READ THE DECLARATIONS, THAT WAS A VERY 4 IMPORTANT GROUP TO THE PLAINTIFFS, AND FOR UNDERSTANDABLE 5 REASONS, A PARENT REGRETTING THE DECISION TO BE REMOVED 6 SEPARATELY. AND IT SEEMED TO BE A VERY SMALL NUMBER. 7 WE CAN LEAVE IT AT THAT. 8 I WANT TO TAKE THIS UNDER SUBMISSION. 9 10 11 IT MAY BE SOMETHING THAT THE PARTIES CAN WORK THROUGH IN THE NEXT DAY OR TWO, OR NOT. MR. STEWART: I WOULD LIKE TO KNOW WHAT -- YOUR 12 HONOR SUGGESTED IT WAS A SMALL NUMBER. I AM CURIOUS -- MY 13 SENSE OF THE PLAINTIFFS IS -- IF THEY SAY, YOU KNOW, IT IS A 14 COUPLE DOZEN PEOPLE THAT IS ONE THING, BUT MY CONCERN IS THAT 15 THEY ARE GOING TO SUGGEST THAT IT IS A SMALL NUMBER AND THEN 16 SAY, OH, BUT WE STILL NEED A SIGNIFICANT TIME TO TALK TO EVERY 17 SINGLE PERSON TO MAKE SURE IT WAS NOT -- THEY WERE NOT, YOU 18 KNOW, MISLED. 19 THAT IS REALLY THE CONCERN HERE BECAUSE WE THOUGHT 20 WE WERE DEALING WITH ONE THING, AND EACH TIME, YOU KNOW, AND 21 NOW IT IS, YOU KNOW, THERE ARE SUGGESTIONS THAT IT IS HARD TO 22 FIT ALL OF THAT IN. 23 MR. GELERNT: YOUR HONOR, ON THAT POINT, I THOUGHT 24 THE GOVERNMENT IS REPRESENTING NOW THAT OF THE PEOPLE THAT 25 RELINQUISHED THEIR RIGHT TO BE WITH THEIR CHILD IT IS ONLY JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 56 of 61 1 ABOUT 100, RIGHT? 120. 2 THE COURT: 3 MR. GELERNT: ONE QUESTION I WAS GOING TO ASK THE 4 GOVERNMENT IS, IT WENT FROM 206 TO 120. 5 THAT WAS, WHY. WE ARE NOT SURE HOW YES. 6 THE COURT: 7 DO YOU HAVE AN ANSWER, MR. STEWART? 8 MR. STEWART: 9 55 FRONT OF ME. 10 I DON'T HAVE THAT ANSWER RIGHT IN I WILL LOOK AT THAT, YOUR HONOR. MR. GELERNT: SO, THEN, WHETHER IT IS 206 OR 120, 11 YES, WE WOULD LIKE -- I AM NOT SURE EXACTLY I UNDERSTAND WHAT 12 THE UNITED STATES GOVERNMENT'S LEGITIMATE POSITION IS IN 13 LEAVING A CHILD BEHIND WHO THE PARENT DOESN'T WANT TO LEAVE 14 BEHIND. 15 THAT SEEMS BEYOND THE PALE. MR. STEWART: MY LEGITIMATE POSITION THERE, YOUR 16 HONOR, IS THAT IT IS ONE THING IF A PERSON HERE OR THERE SAYS 17 THEY DIDN'T UNDERSTAND SOMETHING. 18 A TRANSLATOR, THE TRANSLATOR JUST SPOKE IN A LANGUAGE I DIDN'T 19 UNDERSTAND, YOU KNOW, LIKE, IF THAT'S THE CLAIM FOR ONE. 20 YOU KNOW, LIKE, I ASKED FOR BUT MY UNDERSTANDING OF MR. GELERNT IS THAT HIS 21 ESSENTIAL VIEW IS THAT IF YOU ELECTED TO BE REMOVED WITHOUT 22 YOUR CHILD, THEN THAT SOMEHOW, LIKE, PRESUMPTIVELY IMPLIES 23 COERCION OR MISLEADING OR INADEQUATE INFORMATION OR LACK OF 24 COUNSELING. 25 MR. GELERNT: WHY DOES THE U.S. GOVERNMENT WANT TO JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 57 of 61 1 TAKE CONTROL OF THESE CHILDREN? 2 THE COURT: 3 MR. GELERNT: 4 THE COURT: 56 I UNDERSTAND -I AM SORRY. I AM GOING TO TAKE THIS ISSUE UNDER 5 SUBMISSION, AND THEN MAKE A COUPLE COMMENTS AS TO HOW WE WILL 6 PROCEED IN THE FUTURE. AND THEN WE CAN CLOSE THE HEARING. 7 I WILL ISSUE AN ORDER SETTING OUT ADDITIONAL 8 INFORMATION THAT I BELIEVE PLAINTIFFS ARE ENTITLED TO. 9 THE FOCUS HAS TO BE ON THE PARENTS WHO WERE REMOVED 10 WITHOUT CHILDREN, AND THE UP TO 52 PARENTS WHO MAY BE IN THE 11 INTERIOR AND THE GOVERNMENT HAS THE CHILDREN BUT DOESN'T KNOW 12 WHERE THE PARENT IS. 13 THAT'S THE MOST PRESSING GROUP. AND ALL EFFORTS 14 HAVE TO BE MADE TO IDENTIFY AND LOCATE THOSE PARENTS AND THEN 15 TO REUNIFY AS QUICKLY AS POSSIBLE. 16 SO IT IS MY INTENTION TO ISSUE AN ORDER SETTING OUT 17 THE INFORMATION THAT THE GOVERNMENT WOULD HAVE TO PROVIDE TO 18 PLAINTIFFS. 19 ENORMOUS RESOURCES TO LOCATING THE PARENTS AND THEN MAKING 20 THAT REUNIFICATION HAPPEN. 21 NEXT, THAT'S OBVIOUSLY THE MOST PRESSING STAGE. 22 AND THEN THE TWO PARTIES CAN WORK AND DEVOTE SO THE STAGE WE WILL MOVE INTO ON THE REUNIFICATION OF ELIGIBLE PARENTS, THAT 23 PROCESS HAS BEEN COMPLETED. AND THE GOVERNMENT DESERVES GREAT 24 CREDIT IN THAT REGARD. 25 GROUP, AND THEY HAVE BEEN REUNIFIED. THERE WERE 1,820 CHILDREN IN THAT JULY 27, 2018 AND THEY HAVE BEEN Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 58 of 61 57 1 REUNIFIED ON TIME, BY THE DEADLINE. AND I WOULD SIMPLY 2 REITERATE WHAT I SAID AT THE LAST HEARING, THAT COMMANDER 3 WHITE DESERVES ENORMOUS RECOGNITION FOR PUTTING IN PROCESS -- 4 OR PUTTING IN PLACE A PROCESS THAT WORKED AND ACCOMPLISHED 5 THAT IMPORTANT ASPECT OF REUNIFICATION. THE GOVERNMENT CAN ONLY REUNIFY FAMILIES OVER WHICH 6 7 IT HAS CONTROL, AND IT HAS CONTROL OVER THE FAMILIES, THE 8 PARENTS AND CHILDREN, IN ITS CUSTODY. THE GOVERNMENT IS AT FAULT FOR LOSING SEVERAL 9 10 HUNDRED PARENTS IN THE PROCESS, AND THAT'S WHERE WE GO NEXT IS 11 IDENTIFYING AND FINDING THOSE PARENTS WHO HAVE BEEN REMOVED 12 WITHOUT CHILDREN OR WHO ARE IN THE INTERIOR AND NOT PRESENTLY 13 LOCATED SO THAT THEY CAN BE REUNIFIED WITH THEIR CHILDREN AS 14 QUICKLY AS POSSIBLE. 15 MOVE INTO. SO THAT'S THE SECOND STAGE THAT WE WILL I WILL ADDRESS THE REQUEST FOR THE TEMPORARY 16 17 RESTRAINING ORDER PROBABLY SOMETIME THIS WEEKEND. I WANTED TO 18 GET COUNSEL'S POSITIONS HERE TODAY, AND THEN I WILL ISSUE AN 19 ORDER IN THE VERY NEAR FUTURE ON THAT ISSUE. I THINK, AS MUCH AS I HAVE ENJOYED MEETING AND BEING 20 21 WITH COUNSEL IN PERSON, I DON'T THINK WE NEED TO DO THIS 22 ANYMORE. 23 I THINK A LOT CAN BE DONE REMOTELY. WHAT I WAS CONTEMPLATING IS HAVING STATUS REPORTS BY 24 THURSDAY AT 3:00, AND THEN A TELEPHONIC CONFERENCE AT 1:00 25 EVERY FRIDAY UNTIL WE WORK THROUGH THIS VERY IMPORTANT GROUP JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 59 of 61 1 OF SEVERAL HUNDRED PARENTS WHO ARE MISSING, AND THEN WORK 2 THROUGH THE BALANCE OF ANY REMAINING ISSUES. THERE IS ALSO GOING TO BE ISSUES WITH PARENTS THAT 3 4 THE GOVERNMENT HAS DEEMED INELIGIBLE AND THE PLAINTIFFS 5 DISAGREE. 6 BASIS. AND THOSE CAN BE TEED UP AND ADDRESSED ON A ROLLING ALSO WHAT IS IMPORTANT COMING DOWN THE ROAD, I THINK 7 8 THIS WOULD BE STAGE THREE, IS THIS PROBLEM CANNOT REPEAT. 9 THE ONLY WAY TO AVOID ITS REPETITION IS TO SET IN PLACE A 10 58 AND PROTOCOL OR A PROCEDURE WHERE THE THREE AGENCIES COMMUNICATE. IT IS APPARENT NOW -- AND THAT MAY ALREADY BE 11 12 RESOLVED. 13 WERE THREE AGENCIES, AND EACH WAS LIKE ITS OWN STOVEPIPE. 14 EACH HAD IT ITS OWN BOSS, AND THEY DID NOT COMMUNICATE. 15 HHS WAS ONE STOVEPIPE; AND THEN DHS, WHICH INCLUDED ICE AND 16 CBP, WAS ANOTHER CHANNEL; AND THEN B.O.P., THROUGH DOJ, WAS 17 ANOTHER STOVEPIPE, BY ANALOGY. 18 SO WHAT WAS LOST IN THE PROCESS WAS THE FAMILY. 19 DIDN'T KNOW WHERE THE CHILDREN WERE, AND THE CHILDREN DIDN'T 20 KNOW WHERE THE PARENTS WERE. 21 EITHER. 22 BUT BEFORE THIS CASE WAS FILED THE REALITY IS THERE SO AND THEY DIDN'T COMMUNICATE, THE PARENTS AND THE GOVERNMENT DIDN'T KNOW, AND SO THERE HAS TO BE A STRUCTURE IN PLACE BECAUSE 23 FAMILY SEPARATION WILL CONTINUE FOR LEGITIMATE REASONS. 24 ARE GOING TO BE PEOPLE WHO KEEP COMING INTO THE COUNTRY, AND 25 THERE ARE GOING TO BE APPREHENSIONS. JULY 27, 2018 THERE AND THERE ARE GOING TO Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 60 of 61 59 1 BE PROSECUTIONS, AND THERE WILL BE NECESSARY SEPARATION. BUT 2 THERE HAS TO BE A PROCESS IN PLACE WHERE, WHEN THE PARENT HAS 3 SERVED HIS OR HER TIME IN CRIMINAL CUSTODY AND THEY ARE TAKEN 4 BACK INTO CIVIL DETENTION, ICE, IMMIGRATION DETENTION, THAT 5 THAT INFORMATION IS KNOWN AND COMMUNICATED SO THAT HHS, WHICH 6 HAS THE CHILDREN, CAN THEN BEGIN REUNIFICATION. SO THERE HAS TO BE A PROCEDURE OR PROTOCOL THAT IS 7 8 IN PLACE. AND THERE HAS TO BE ONE PERSON IN CHARGE, LIKE 9 COMMANDER WHITE. MAYBE HE IS THE PERSON. THE GOVERNMENT CAN 10 IDENTIFY THAT PERSON, AND PUT THAT PROCESS IN PLACE. AND THEN 11 THAT WOULD ENSURE, GOING FORWARD, THAT THIS ISSUE DOESN'T 12 REPEAT. I THINK THAT IS VERY IMPORTANT, AND WE MAY BE A LONG 13 14 WAY TOWARD HAVING THAT COMPLETED. NOW THAT THE GOVERNMENT HAS 15 SUCCESSFULLY REUNIFIED ALL OF THE ELIGIBLE CLASS MEMBERS THERE 16 MAY BE A SYSTEM IN PLACE WHERE THERE IS COMMUNICATION. 17 THAT'S AN IMPORTANT PART OF THIS CASE AND THIS PROCESS. 18 WOULD JUST FLAG THAT AS CATEGORY NUMBER THREE. BUT AND I SO WE NEED TO NEXT MOVE TO THE VERY IMPORTANT TASK 19 20 OF REUNIFYING PARENTS WHO HAVE BEEN REMOVED WITHOUT CHILDREN, 21 AND THEN PARENTS IN THE INTERIOR WHO HAVEN'T PRESENTLY BEEN 22 LOCATED. 23 SO I THINK WE WILL CLOSE THE HEARING NOW. 24 ISSUE TWO ORDERS. 25 OTHER WILL BE THE ORDER ON THE REQUEST FOR TEMPORARY I WILL ONE WILL BE THE SCHEDULING TYPE ORDER, THE JULY 27, 2018 Case 1:18-cv-01759-PLF Document 15-1 Filed 07/30/18 Page 61 of 61 1 RESTRAINING ORDER. 2 ARE THERE ANY OTHER MATTERS BEFORE WE RECESS? 3 MR. STEWART: YOUR HONOR, MAY I REQUEST JUST AN 4 EXPEDITED TRANSCRIPT? 5 WOULD LOVE TO HEAR KIND OF THE FULL RUNDOWN. 6 7 8 9 10 THE COURT: I KNOW SOME FOLKS WHO WANTED TO CALL IN YES. I AM SURE MS. PENCE CAN ACCOMMODATE, SO WE WILL DO THAT. AND THEN AGAIN, IT HAS BEEN A PLEASURE WORKING WITH COUNSEL HERE IN PERSON. ABSENT ANY REQUEST TO MEET AGAIN IN PERSON WE WILL VISIT WEEKLY, ALBEIT TELEPHONICALLY. 11 THANK YOU. 12 MR. GELERNT: THANK YOU, YOUR HONOR. 13 14 15 16 17 60 * * * I CERTIFY THAT THE FOREGOING IS A CORRECT TRANSCRIPT FROM THE RECORD OF PROCEEDINGS IN THE ABOVE-ENTITLED MATTER. S/LEEANN PENCE 7/27/2018 LEEANN PENCE, OFFICIAL COURT REPORTER DATE 18 19 20 21 22 23 24 25 JULY 27, 2018