Case 3:18-cv-00428-DMS-MDD Document 204 Filed 08/23/18 PageID.3295 Page 1 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 CHAD A. READLER Acting Assistant Attorney General SCOTT G. STEWART Deputy Assistant Attorney General WILLIAM C. PEACHEY Director Office of Immigration Litigation WILLIAM C. SILVIS Assistant Director Office of Immigration Litigation SARAH B. FABIAN Senior Litigation Counsel NICOLE MURLEY Trial Attorney Office of Immigration Litigation U.S. Department of Justice Box 868, Ben Franklin Station Washington, DC 20442 Telephone: (202) 532-4824 Fax: (202) 616-8962 14 15 ADAM L. BRAVERMAN United States Attorney 16 SAMUEL W. BETTWY 17 Assistant U.S. Attorney California Bar No. 94918 18 Office of the U.S. Attorney 19 880 Front Street, Room 6293 San Diego, CA 92101-8893 20 619-546-7125 21 619-546-7751 (fax) 22 Attorneys for Federal Respondents23 Defendants 24 25 26 27 28 Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2660 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 398-4485 F: (619) 232-0036 bvakili@aclusandiego.org Stephen B. Kang (SBN 292280) Spencer E. Amdur (SBN 320069) AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 skang@aclu.org samdur@aclu.org Attorneys for PetitionersPlaintiffs *Admitted Pro Hac Vice Case 3:18-cv-00428-DMS-MDD Document 204 Filed 08/23/18 PageID.3296 Page 2 of 13 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 2 3 MS. L, et al., Case No. 18cv428 DMS MDD 4 Petitioners-Plaintiffs, 5 6 7 8 9 JOINT STATUS REPORT vs. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., 10 Respondents-Defendants. 11 12 The Court ordered the parties to file a joint status report on August 23, 2018, 13 14 in anticipation of the telephonic status conference scheduled for August 24, 2018, at 15 1:00 p.m. PST. The parties submit this joint status report in accordance with the 16 Court’s instruction. 17 DEFENDANTS’ POSITIONS 18 I. 19 A. Update on Reunifications 20 Defendants report the current status on reunification of families with children 21 22 ages 0 through 17 in the table below. The data presented in this section reflects 23 approximate numbers maintained by ORR as of at least August 20, 2018. These 24 25 26 numbers are dynamic and continue to change as more reunifications or discharges occur. 27 28 1 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 204 Filed 08/23/18 PageID.3297 Page 3 of 13 1 Phase 1 Phase 2 (Under (5 and Total 5) above) 2 Description 3 Total number of possible children of potential class members originally identified Discharged Children Children discharged by being reunified with separated parent Children discharged under other appropriate circumstances (these include discharges to other sponsors [such as situations where the child’s separated parent is not eligible for reunification] or children that turned 18) Total children discharged 4 5 6 7 8 9 10 11 12 13 14 15 16 17 103 2,551 2,654 61 1,862 1,923 19 184 203 80 2,046 2,126 505 528 41 45 139 139 337 343 16 19 Children Remaining in Care with ORR Children remaining in care where the adult associated with the child is not eligible for reunification or is not 23 available for discharge at this time: • Children still in care where further review shows 4 they were not separated from parents by DHS: • Parent indicated desire against reunification (includes a significant number of parents outside 0 the U.S.): 6 • Adult presently outside the U.S.: 3 • Adult in other federal, state, or local custody: 18 • Adult red flag background check: 9 26 35 19 • Adult red flag case review – safety & well-being 0 17 17 20 • Adult red flag case review – parentage: 1 9 10 21 Defendants have made two changes to the categories in this table relative to 22 23 the Joint Status Report (JSR) filed on August 16, 2018. First, the category entitled 24 “Children discharged by being reunified with separated parent” has been expanded 25 from the previous category in the August 16 JSR, “Children discharged by being 26 27 reunified with parents in ICE custody under the government’s plan,” to include all 28 2 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 204 Filed 08/23/18 PageID.3298 Page 4 of 13 1 reunifications with a separated parent, whether in ICE custody or not. As a result, 2 the current category now contains a number of children who were previously 3 categorized as “Children discharged under other appropriate circumstances.” 4 5 Second, Defendants have removed the subcategories entitled “Children 6 Remaining in Care with ORR – Adult released to interior” and “Children Remaining 7 in Care with ORR – Adult location under case file review” from the current table. 8 9 Consistent with the Court’s direction during the August 17 status conference, 10 Defendants are providing the details below regarding the children who were 11 included in those subcategories in the August 16 JSR. 12 13 Nine children reported in August 16, 2018 JSR as “Children Remaining in Care with ORR – Adult released to interior” 14 Of the nine children, four children no longer meet the criterion: two children 15 16 have been discharged from ORR care, and two children are associated with adults 17 who are no longer in the interior. 18 Of the remaining five of nine children, two have separated parents with a red 19 20 flag for a background check, and the remaining three continue to process towards 21 appropriate discharge. 22 These children are accounted for as appropriate in other categories in the table 23 24 above. 25 26 27 28 3 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 204 Filed 08/23/18 PageID.3299 Page 5 of 13 1 Ten children reported in August 16, 2018 JSR as “Children Remaining in Care with ORR – Adult location under case file review” 2 As of Wednesday, August 22, three of the ten children no longer meet the 3 4 criterion, as contact has since been established with the adult associated with the 5 child. 6 7 8 9 10 11 12 13 14 Of the remaining seven of ten children: • Two are under review to determine whether they were separated from their parent by the United States Government; • Two have had contact made with a non-separated parent, but not yet the separated parent; • Two have not had contact made with a separated or non-separated parent, though case managers continue to work to establish contact; and • One has a parent who is in custody in his country of origin (COO). 15 16 17 B. Reunification of Removed Class Members Defendants report on the current status of reunification of released and 18 removed class members in the table below. The data presented in this section reflects 19 approximate numbers maintained by ORR as of at least August 20, 2018. These 20 21 numbers are dynamic and continue to change as the reunification process moves 22 forward. 23 24 25 26 27 28 4 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 204 Filed 08/23/18 PageID.3300 Page 6 of 13 1 2 REUNIFICATION PROCESS STARTING POPULATION 3 4 5 PROCESS 1: Identify & Resolve Safety/Parentage Concerns 6 7 8 9 10 11 12 13 14 15 16 17 18 PROCESS 2: Establish Contact with Parents in Country of Origin REPORTING METRIC NO. REPORTING PARTY Children in ORR care with parents 343 presently departed from the U.S. Def’s. Children with no “red flags” for safety or parentage Children with “red flags” for safety per background check Children with “red flags” for safety per case file review Children with “red flags” for parentage 337 Def’s. 4 Def’s. 0 Def’s. 2 Def’s. Children with parent contact information identified Children with parent contact information identified and parents actually contacted Children with no parent contact information/parent contact information in development Children with parent contact information provided to ACLU by Government 343 Def’s. 339 Def’s. 0 Def’s. 343 Def’s. PROCESS 3: Determine Parental Plaintiffs to address in their Intention for portion of Joint Status Report Minor N/A Pl’s. Defendants will report on Processes 4 (Resolve Immigration Status of Minors 19 20 to Allow Reunification) and 5 (Transportation of Minors for Physical Reunification 21 with Parents in Country of Origin) when those Processes are under way. 22 23 C. Court’s Order Granting Joint Motion Regarding Scope of the Court’s Preliminary Injunction 24 In accordance with the Court’s Order Granting Joint Motion Regarding Scope 25 26 of the Court’s Preliminary Injunction, ECF No. 192 (Aug. 16, 2018), the parties met 27 and conferred regarding whether or in what circumstances a waiver described in that 28 5 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 204 Filed 08/23/18 PageID.3301 Page 7 of 13 1 Order cannot be reconsidered. The parties do not have any issue to raise with the 2 Court about that issue at this time, and ask that the Court permit them to continue to 3 meet and confer on the issue as necessary and report to the Court as needed. 4 5 6 7 D. M.M.M. TRO Negotiations As ordered by the Court, the parties are meeting and conferring on the issues set forth in the Court’s August 17 order, ECF No. 196. The parties request that they 8 9 be permitted a short extension until 11:00 a.m. Pacific on Friday, August 24, to 10 submit a proposed briefing schedule if they cannot reach resolution. 11 E. Information Sharing 12 13 Defendants have provided the data previously requested by Plaintiffs, and are 14 supplementing some pieces of that data as appropriate. Plaintiffs recently raised a 15 number of questions about data that had been previously provided. Defendants have 16 17 reiterated their request to Plaintiffs that Plaintiffs consolidate and prioritize such 18 requests, so that Defendants can determine how to respond in a manner that 19 minimizes interference with the ongoing data needs related to reunifications. 20 21 Defendants propose that Plaintiffs would keep an updated list of their requests for 22 information and data that prioritizes those requests and is provided to Defendants 23 each Monday and Thursday, so that Defendants can do their best to provide 24 25 information to Plaintiffs in accordance with Plaintiffs’ identified priorities. Requests 26 for information or assistance should be submitted outside that timeframe only on an 27 28 6 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 204 Filed 08/23/18 PageID.3302 Page 8 of 13 1 emergency basis, identifying why it is an emergency, and specifying whether the 2 request should be prioritized above other pending requests. 3 F. Individual Requests for Relief from M.M.M. TRO 4 A number of children of class members in this case, as well as some class 5 6 members themselves, are separately represented by counsel other than class counsel 7 in Ms. L or M.M.M. Several of those counsel have reached out to Government 8 9 counsel, or to other employees of Defendants, seeking relief from the M.M.M. TRO 10 so that they can depart from the United States. Government counsel have told these 11 individuals and their counsel that in order to be removed, or take voluntary departure, 12 13 they must reach out to M.M.M. class counsel who can either agree that such 14 individuals are not subject to the TRO, or seek relief from the TRO from this Court 15 on behalf of those individuals. 16 17 II. PLAINTIFFS’ POSITION 18 19 Over the past week, the Steering Committee has been actively engaged in 20 outreach to removed parents and representatives for their children who remain in 21 the United States. On August 7 and August 10, the Government produced lists of 22 removed parents with contact information for most parents. The August 7th list 23 included 14 parents not on the August 10th list; combined the Government lists 24 have a total of 412 parents. The Steering Committee has asked the Government to clarify why those 14 25 26 parents on the August 7 list are not listed on the August 10 list. The Government 27 has indicated that it is investigating. The following table summarizes Steering 28 7 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 204 Filed 08/23/18 PageID.3303 Page 9 of 13 1 Committee progress: 2 3 4 Removed parents identified by the Government (8/7 and 8/10 lists) • Parents for whom Committee has no phone number 5 6 7 8 412 41 Steering Committee called parent 371 Steering Committee spoke to parent (either by phone or in 231 person) • Parents called and successfully reached 225 10 • Parents found through outreach by NGOs 6 11 • Parents called and not reached (and not reached 140 9 through NGO efforts) 12 13 o Phone number inoperable or ineffective 38 14 o Phone calls ongoing 102 15 16 17 18 Parents reached by phone or NGO outreach 231 Reunified: confirmed reunifications in home country 10 Ready for reunification: parent’s reunification wish confirmed to 15 match child’s Preliminary indication of parent’s wishes for reunification 183 Ongoing discussions w parent about reunification 23 19 20 The Steering Committee has placed calls to all parents for whom it has 21 phone numbers — 371 1 out of the 412 — and has successfully spoken to 231 (225 22 through phone calls, six reached by NGO partners in Central America). Of these 23 231, we have obtained a preliminary indication of the desires of 183 parents. We 24 are having ongoing discussions with 23 parents to ascertain their wishes. Ten 25 1 The Steering Committee received 366 phone numbers for removed parents 26 from the Government. The additional five parents contacted were found through 27 the Committee’s efforts. 28 8 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 204 Filed 08/23/18 PageID.3304 Page 10 of 13 1 children have been reunified with their parents in their country of origin. 2 As required by the Reunification Plan, the Steering Committee has also been 3 communicating with attorneys for the children of removed parents to ensure that 4 the desires expressed by parents and children are aligned before a final decision is 5 communicated to the Government. On August 16, the Government provided a list 6 of 236 children and their associated attorneys. This list did not include the names, 7 locations, or contact information for their parents, so we have been working to 8 correlate this information with the information provided concerning parents. Of 9 these 236 children, 73 were not included on the previous two lists of children with 10 removed parents provided by the Government on August 7 and 10, and the 11 Steering Committee has asked for clarification in this regard. For the remaining 12 children—for whom the parents are understood to be removed—the Steering 13 Committee has reached out to all of the children’s attorneys and is awaiting 14 confirmation of the children’s wishes. To identify the legal representatives of the 15 249 children for whom the Government has not provided information, the Steering 16 Committee has worked with the Vera Institute of Justice to determine the 17 designated legal service providers for all ORR shelters, and has reached out to all 18 of these providers to determine which children they represent. Within the coming 19 days, the Steering Committee will identify children who do not appear to be 20 represented and will work with Vera to secure counsel for them. 21 For 15 sets of parents and children, the Steering Committee has confirmed 22 that the desires of parents and children are aligned and the Steering Committee is 23 in the process of obtaining or preparing documentation of those desires to provide 24 final confirmation to the Government. Of the 15 families that fall within this 25 group, 12 have elected reunification in the country of origin, and 3 have decided to 26 decline such reunification. 27 Of the 140 parents for whom outreach attempts have been unsuccessful to 28 9 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 204 Filed 08/23/18 PageID.3305 Page 11 of 13 1 date, the Steering Committee has determined that 38 of the phone numbers 2 provided are inoperative or ineffective and the Steering Committee is continuing 3 efforts to reach the remaining 102 parents. The Steering Committee is determining 4 a phone number to be inoperative or ineffective under the following circumstances: 5 (1) the person answering the phone accepted the call and indicated that the number 6 was incorrect; (2) the number does not ring or leads to a pre-recorded error 7 message; or (3) the Steering Committee has attempted to dial the phone number 8 provided by the Government at least five times, over multiple days, and has been 9 unable to reach the parent (e,g., the call reaches a voicemail that has not been set 10 up, the call rings with no answer). The Steering Committee provided a list of such 11 inoperative or ineffective phone numbers to the Government on Tuesday, August 12 21, and will continue to provide updates lists as numbers are determined to be 13 inoperative or ineffective. 14 For parents for whom the Government has not yet provided phone numbers 15 (41), or for whom the Steering Committee has determined the numbers to be 16 inoperative or ineffective (38), Steering Committee member Justice in Motion is 17 currently engaged in on-the-ground efforts in Honduras and Guatemala to locate 18 parents. Justice in Motion representatives who speak indigenous languages have 19 obtained birth certificates of parents to determine their locations and have travelled 20 to remote villages to seek to interview the parents in person. These efforts have 21 reached six parents and will continue, supported by Steering Committee member 22 KIND’s local partners in Central America and other NGO partners. 23 Finally, in communicating with removed parents, the Steering Committee 24 has indications that some parents may have been coerced or misled by U.S. 25 government actions that deprived the parents of their right to seek asylum. These 26 incidents include parents who were told that they needed to accept removal and not 27 pursue asylum in order to be reunited with their children, and parents who were 28 10 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 204 Filed 08/23/18 PageID.3306 Page 12 of 13 1 required to sign documents they did not understand, in languages they do not 2 speak, that had the effect of waiving their right to seek asylum. The Steering 3 Committee is further investigating these cases. 4 5 DATED: August 23, 2018 Respectfully submitted, 6 /s/ Lee Gelernt Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2660 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 398-4485 F: (619) 232-0036 bvakili@aclusandiego.org 21 22 23 24 25 26 27 Stephen B. Kang (SBN 292280) Spencer E. Amdur (SBN 320069) AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 skang@aclu.org 28 11 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 204 Filed 08/23/18 PageID.3307 Page 13 of 13 1 2 3 samdur@aclu.org Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice 4 5 6 7 8 9 CHAD A. READLER Acting Assistant Attorney General SCOTT G. STEWART Deputy Assistant Attorney General WILLIAM C. PEACHEY Director WILLIAM C. SILVIS Assistant Director 10 11 12 13 14 15 16 17 18 19 20 21 22 23 /s/ Sarah B. Fabian SARAH B. FABIAN Senior Litigation Counsel NICOLE MURLEY Trial Attorney Office of Immigration Litigation Civil Division U.S. Department of Justice P.O. Box 868, Ben Franklin Station Washington, DC 20044 (202) 532-4824 (202) 616-8962 (facsimile) sarah.b.fabian@usdoj.gov ADAM L. BRAVERMAN United States Attorney SAMUEL W. BETTWY Assistant U.S. Attorney Attorneys for Respondents-Defendants 24 25 26 27 28 12 18cv428 DMS MDD