Case 3:18-cv-00428-DMS-MDD Document 210 Filed 08/30/18 PageID.3331 Page 1 of 17 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 210 Filed 08/30/18 PageID.3332 Page 2 of 17 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 30, 2018, 13 14 in anticipation of the telephonic status conference scheduled for August 31, 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 20 21 A. Update on. Reunifications Defendants report on the current status of reunification with children ages 0 22 through 17 in the table below. The data presented in this section reflects approximate 23 numbers maintained by ORR at least as of August 27, 2018. These numbers are 24 dynamic and continue to change as more reunifications or discharges occur. The 25 26 table below follows the same format as that of the August 23, 2018 Joint Status 27 Report. 28 1 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 210 Filed 08/30/18 PageID.3333 Page 3 of 17 Phase 1 Phase 2 (Under (5 and Total 5) above) 1 Description 2 Total number of possible children of potential class 103 members originally identified Discharged Children Children discharged by being reunified with separated 61 parent Children discharged under other appropriate circumstances (these include discharges to other sponsors [such as situations where the child’s separated 20 parent is not eligible for reunification] or children that turned 18) Total children discharged 81 Children Remaining in Care with ORR 2,551 2,654 1,876 1,937 200 220 2,076 2,157 22 475 497 • Children still in care where further review shows they were not separated from parents by DHS: 5 47 52 1 166 167 15 • Parent indicated desire against reunification (includes a significant number of parents outside the U.S.): 16 • Adult presently outside the U.S.: 6 316 322 17 • Adult in other federal, state, or local custody: 2 15 17 18 • Adult red flag background check: 9 26 35 19 • Adult red flag case review – safety & well-being: 1 17 18 20 • Adult red flag case review – parentage: 0 3 3 3 4 5 6 7 8 9 10 11 12 13 14 21 22 Children remaining in care where the adult associated with the child is not eligible for reunification or is not available for discharge at this time: The Court also requested updated information regarding reunification efforts involving children in New York State. Defendants have provided updated, 23 24 aggregate information related to those children in their concurrent Joint Status 25 Report in the N.T.C. case. 26 27 28 2 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 210 Filed 08/30/18 PageID.3334 Page 4 of 17 1 2 3 B. Reunification of Removed Class Members Defendants report on the current status of reunification of removed class members in the table below. The data presented in this section reflects approximate 4 5 numbers maintained by ORR as of at least August 27, 2018, with an additional row 6 in Process 4 to reflect children in ORR care who have received orders of voluntary 7 departure. These numbers are dynamic and continue to change as the reunification 8 9 process moves forward. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 REUNIFICATION REPORTING METRIC PROCESS Children in ORR care with STARTING parents presently departed from POPULATION the U.S. NO. REPORTING PARTY 322 Def’s. PROCESS 1: Children with no “red flags” for Identify & Resolve safety or parentage Safety/Parentage Children with “red flags” for Concerns safety per background check Children with “red flags” for safety per case file review Children with “red flags” for parentage 316 Def’s. 4 Def’s. 0 Def’s. 2 Def’s. 322 Def’s. 318 Def’s. 0 Def’s. 322 Def’s. PROCESS 2: Establish Contact with Parents in Country of Origin 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 26 27 28 3 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 210 Filed 08/30/18 PageID.3335 Page 5 of 17 1 2 3 4 5 6 PROCESS 3: Determine Parental Intention for Minor Children for whom ACLU has communicated parental intent for minor 46 Pl’s. PROCESS 4: Resolve Children in ORR care with orders Immigration Status of Minors to of voluntary departure Allow Reunification 15 Def’s. 7 8 Defendants will report additional information on Processes 4 and 5 9 (Transportation of Minors for Physical Reunification with Parents in Country of 10 Origin) as the reunification efforts continue. 11 12 13 C. M.M.M. TRO Negotiations As ordered by the Court, the parties continue to meet and confer on the issues 14 15 set forth in the Court’s August 17 order, ECF No. 196. The parties request that they 16 be permitted a short extension until 3:00pm PST on Tuesday, September 4, to submit 17 a proposed briefing schedule if they cannot reach resolution. 18 D. Information Sharing 19 20 Plaintiffs have made numerous recent requests for additional data over the 21 past week. Defendants have prioritized responding to those requests related to the 22 ongoing reunification process. For many of Plaintiffs’ requests, Plaintiffs seek data 23 24 that they already have received. Therefore, Defendants also are working to provide 25 Plaintiffs with more explanation about the data they already have in the hopes that 26 27 this may obviate some of their requests. For the remainder of Plaintiffs’ requests, 28 4 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 210 Filed 08/30/18 PageID.3336 Page 6 of 17 1 Defendants plan to respond as appropriate, or will meet and confer with Plaintiffs to 2 determine if the parties can reach agreement regarding these requests. 3 E. Requests for Relief from M.M.M. TRO 4 5 The government wishes to raise—and propose a solution to—an important, 6 recurring, but readily solvable challenge that it has been facing. 7 In recent days, the government has seen an increasing number of children of 8 9 Ms. L class members who wish to voluntarily depart the country so that the children 10 may reunify with their parents (who are outside of the United States). These children 11 are subject to the M.M.M. TRO, which restrains the government from “removing 12 13 from the United States” the children of Ms. L. class members. The TRO does not, 14 however, prohibit the departure of these children from the United States pursuant to 15 an order of voluntary departure under 8 U.S.C. § 1229c, as such does not constitute 16 17 a removal under the law. Under settled principles of immigration law, removal and 18 voluntary departure are different: the government acts to effectuate removal in 19 accordance with a removal order; a voluntary departure simply means that an alien 20 21 has been granted the entitlement to leave of their own accord without many of the 22 consequences associated with removal. The TRO currently limits the government’s 23 ability to do the former; it does not bar class members or their children from doing 24 25 the latter. 26 27 28 5 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 210 Filed 08/30/18 PageID.3337 Page 7 of 17 1 Dozens of children—represented by individual counsel, on top of their 2 putative representation by M.M.M.—have been granted voluntary departure by 3 immigration judges and have sought the government’s aid in departing. The 4 5 government has, in turn, worked with counsel for the children to facilitate and pay 6 for travel back to their country of origin. The government has offered that assistance 7 in harmony with the Court’s preliminary injunction and its directive to reunify. 8 9 The government’s concern is that such assistance could give rise to an 10 erroneous claim that it is violating the M.M.M. TRO by “removing” a child from the 11 country. Although such a claim would be mistaken (the government would be 12 13 assisting a voluntary departure, not effectuating a removal), the government has 14 taken an abundantly cautious approach to protect itself against that sort of a claim. 15 In particular, when an individual counsel for a child has come to the government for 16 17 aid in facilitating a voluntary departure, government counsel has asked that counsel 18 contact M.M.M. counsel to obtain M.M.M. counsel’s agreement that the departure 19 raises no concerns under the TRO. 20 That approach worked moderately well (albeit inefficiently) when only a few 21 22 children sought voluntary departure. With the sudden increase of such requests, 23 however, it has become inefficient and unworkable because M.M.M. counsel have 24 25 been unwilling or unable to provide prompt agreement, and have been unwilling to 26 agree to an efficient approach. On more than one occasion now, counsel for those 27 28 6 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 210 Filed 08/30/18 PageID.3338 Page 8 of 17 1 children has been unable to obtain the necessary approvals from M.M.M. counsel for 2 the voluntary departure to go forward as scheduled, and ICE has had to cancel the 3 departure against the child’s wishes, and reschedule after approval could be 4 5 obtained. Government counsel asked M.M.M. counsel to agree that for these children 6 who take voluntary departure assisted by counsel, such approval is not necessary, 7 but counsel for M.M.M. would not agree. As a result, the government finds itself 8 9 negotiating between children and their counsel who seek the government’s 10 assistance in reunifying the child with a parent abroad, and counsel for M.M.M., who 11 stands in the way of such reunification. 12 13 Given these challenges and concerns, the government now proposes to the 14 Court a simple solution: The Court could simply clarify that where a child seeks 15 and is granted voluntary departure by an immigration judge, assisted by counsel, 16 17 ICE may facilitate that child’s voluntary departure for the purpose of reunification 18 with his or her parent in the child’s country of origin without obtaining the approval 19 of M.M.M. counsel. As explained above, the TRO does not address voluntary 20 21 departure. The government has coordinated with M.M.M. counsel out of an 22 abundance of caution. Now that the number of voluntary departure assistance 23 requests has escalated, that approach has become untenable. 24 Relatedly, in accordance with the reunification plan approved by this Court, 25 26 the ACLU/Steering Committee recently submitted to Defendants documentation for 27 28 7 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 210 Filed 08/30/18 PageID.3339 Page 9 of 17 1 a number of class members and their children that reflect the parents’ wishes that 2 their child be returned to the country of origin, and which includes confirmation 3 from the ACLU/Steering Committee that counsel for the child has also confirmed 4 5 that the child wishes to return. As above, while returning a child to the country of 6 origin in accordance with the reunification plan is also not removal under the law, 7 the government seeks clarification from this Court that the M.M.M. TRO does not 8 9 prevent the government from moving forward to reunify the child with his or her 10 parent abroad in this situation. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 II. PLAINTIFFS’ POSITIONS 1. Steering Committee Progress Over the past week, the Steering Committee has made significant progress in effectuating reunifications. It continues to reach removed parents and representatives for their children who remain in the United States. The Steering Committee has consulted with the Vera Institute of Justice and has identified the vast majority of lawyers or advocates for each of the children with removed parents currently in ORR custody 1. And, as further detailed below, the Steering Committee has identified and confirmed to the Government the wishes of 43 parents with respect to reunification, and expects to deliver confirmed preferences for many more in the coming week. The Government reports that the accurate number of children in ORR custody with removed parents was 343 as of August 23. For those children and parents, the Steering Committee’s progress to date is as follows: 1 The Steering Committee notes that children in ORR custody appear to be moving between facilities on occasion, which affects the identity of the designated 27 legal service provider. 28 8 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 210 Filed 08/30/18 PageID.3340 Page 10 of 17 1 Removed parents identified by the Government (8/7, 8/10 343 and 8/24 lists) • Parents for whom Committee has no phone number 19 5 Steering Committee called phone number for parent (using 324 6 Government-provided number or number otherwise 7 obtained by Steering Committee) 8 Steering Committee spoke to parent (either by phone or in 244 9 person) • Parents called and successfully reached 239 2 3 4 10 11 12 13 • Parents found through outreach by NGOs 5 • Parents called and not reached (and not reached 80 through NGO efforts) 14 o Phone number inoperable or ineffective 37 15 o Phone calls ongoing 43 Parents reached by phone or NGO outreach 244 16 17 18 Reunified: confirmed reunifications in home country 2 20 Ready for reunification: parent’s reunification wish 174 21 confirmed to match child’s 22 Preliminary indication of parent’s wishes for 23 reunification 24 Ongoing discussions w parent about reunification 36 25 Preferences already communicated to government 43 19 32 26 27 The Steering Committee also continues to work with the Government to 28 9 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 210 Filed 08/30/18 PageID.3341 Page 11 of 17 1 identify all children in ORR custody with removed parents, utilizing the significant 2 data the Steering Committee has compiled in order to ensure no child or parent is 3 overlooked in this process. On August 24, the Government produced an updated 4 list of children in ORR custody whose parents have been removed. On August 25, 5 the Government produced an updated list of removed parents who signed a Letter 6 of Designation on file with ORR, identifying a sponsor in the United States in 7 whose custody their child(ren) could be placed. 8 On August 26, the Steering Committee provided to the Government a list of 9 concerns that it had regarding discrepancies between the August 24 and 25 lists 10 that the Government provided and prior iterations of those lists. In addition, the 11 Steering Committee raised concerns about: (1) children whom the Steering 12 Committee believes to be in ORR shelters and whose parents the Steering 13 Committee believes to have been removed, but whose names do not appear on 14 prior lists of children in ORR custody produced by the Government; and (2) 15 inoperative parent phone numbers. 16 On August 29, the Government responded to the Steering Committee’s 17 August 26 communication, setting forth explanations and additional information in 18 response to the Steering Committee’s questions. The August 29 communication 19 resolved certain of the Steering Committee’s concerns. A few issues remain to be 20 resolved, including: 21 • Discrepancies between August 24 List of Children in ORR Custody with 22 Removed Parents (“Aug. 24 ORR Custody/Removed Parents List”) and 23 Prior Iterations of This List: 24 o The Steering Committee reported to the Government that 70 25 children who appeared on prior iterations of the Aug. 24 ORR 26 Custody/Removed Parents List did not appear on the Aug. 24 ORR 27 Custody/Removed Parents List. 28 10 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 210 Filed 08/30/18 PageID.3342 Page 12 of 17 1 o The Government responds that the 70 children were removed from 2 the Aug. 24 ORR Custody/Removed Parents List because either (1) 3 they were discharged from ORR care, (2) their parents are no longer 4 removed and are in custody in the United States, (3) HHS has since 5 determined that the children were not separated from their parents 6 by DHS, or (4) the cases are under review to determine if separation 7 occurred. 8 o Plaintiffs appreciate the Government’s response; however, Plaintiffs 9 intend to further meet and confer with the Government regarding the 10 circumstances of the children who have recently been discharged 11 from ORR care, and to discuss how to proceed with those of these 12 children whose parents are members of the Ms. L class. 13 The Steering Committee previously reported its progress using the total 14 number of 412 children in ORR care, based on the Government’s own data 15 from August 7th and 10th.2 16 17 18 19 20 21 22 23 2 As to this larger group of children with parents who were removed — including the 70 that the Government reports are now no longer in ORR care — the Steering Committee’s progress is reported below, so that the Court may compare progress in the past week using the same baseline group. Certain categories have changed slightly: the Government reported one additional child in ORR care with a removed parent, which increases the 412 from August 23 to 413; the “Parents for whom Committee has no phone number” category has changed from reflecting parents for whom the Government did not provide a number to now showing parents for whom there is no number provided by the Government and the Steering Committee has not found a number through its own efforts. 24 25 26 Removed parents identified by the Government 27 8/23 JSR 8/30 JSR 412 413 (8/7,8/10 (8/7,8/10,8/24 28 11 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 210 Filed 08/30/18 PageID.3343 Page 13 of 17 1 2 3 4 lists) • Parents for whom Committee has no phone 41 number 380 Steering Committee spoke to parent (either by 231 279 phone or in person) • Parents called and successfully reached 225 273 6 6 Steering Committee called phone number for 6 parent (using Government-provided number or 7 one otherwise determined by Steering 8 Committee) 9 10 12 • Parents found through outreach by NGOs 13 • Parents called and not reached (and not 140 reached through NGO efforts) 14 15 33 371 5 11 lists) 16 o Phone number ineffective 17 o Phone calls ongoing inoperable or 38 101 43 102 58 8/23 JSR 8/30 JSR 231 279 10 19 15 184 183 36 18 19 20 21 22 23 24 25 26 27 Parents reached by phone or NGO outreach Reunified: confirmed reunifications in home country Ready for reunification: parent’s reunification wish confirmed to match child’s Preliminary indication of parent’s wishes for reunification 28 12 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 210 Filed 08/30/18 PageID.3344 Page 14 of 17 1 • Other Issues: 2 The Steering Committee also reported to the Government regarding children 3 whom the Steering Committee’s constituents report to be in ORR custody but who 4 do not appear on any Government list produced to date; concerns regarding the 5 procedure for investigating or confirming inoperative phone numbers for parents; 6 and other issues related to information exchange between the Steering Committee 7 and the Government. The Steering Committee and the Government have 8 committed to meet and confer on these issues and are hopeful that they will be able 9 to resolve them without the Court’s intervention. If there are any outstanding 10 issues that cannot be resolved, the parties will bring these issues to the Court’s 11 attention. 12 Finally, as discussed in the last status report, the Steering Committee 13 continues to receive indications that some parents may have been coerced or 14 misled by U.S. government actions that deprived the parents of their right to seek 15 asylum. These incidents include parents who were told that they needed to accept 16 removal and not pursue asylum in order to be reunited with their children, and 17 parents who were required to sign documents they did not understand, in languages 18 they do not speak, that had the effect of waiving their right to seek asylum. The 19 Steering Committee continues to investigate these cases. 20 21 22 23 24 Ongoing discussions w parent about 23 40 0 45 reunification Preferences already communicated to government 25 26 27 28 13 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 210 Filed 08/30/18 PageID.3345 Page 15 of 17 1 B. Information Sharing 2 At Defendants’ request, Plaintiffs have begun sending consolidated sets of 3 information requests concerning the Class members’ reunification processes on 4 Mondays and Thursdays of every week. Most importantly, Plaintiffs have asked 5 Defendants to provide, on an ongoing basis, a complete list of Class members that 6 corresponds to the numbers they report in their weekly status reports. 7 Up until this point, Defendants have provided multiple lists of parents and 8 children in various categories, e.g. parents who have allegedly waived their 9 reunification rights; parents who have been reunited in family detention. However, 10 the numbers of Class members on these lists frequently contain significant 11 discrepancies with the numbers in the weekly status reports, which makes it difficult 12 to rely on these lists when advising Class members and their advocates. 13 Defendants compile and synthesize Class member information in order to 14 provide updated statistics to the Court every week. Providing that same information 15 to Plaintiffs would likely alleviate this confusion, since Plaintiffs would simply 16 receive the information and data underlying Defendants’ disclosures to the Court. 17 Plaintiffs have proposed, and ask for the Court to order, that Defendants provide this 18 information every Friday (the day after the filing of the status reports). 19 For the numbers in last week’s JSR, Plaintiffs still await an updated list of (1) 20 1,923 reunifications; (2) 203 other appropriate discharges; (3) several categories for 21 the 528 children still in ORR care, including children that the Government believes 22 were not separated from parents, adults in other custody (federal, state, local), and 23 all three categories of “red flags” that the Government contends prevent 24 reunification. 25 26 27 28 14 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 210 Filed 08/30/18 PageID.3346 Page 16 of 17 1 DATED: August 30, 2018 Respectfully submitted, 2 /s/ Lee Gelernt Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2660 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 398-4485 F: (619) 232-0036 bvakili@aclusandiego.org 17 18 19 20 21 22 23 24 25 26 Stephen B. Kang (SBN 292280) Spencer E. Amdur (SBN 320069) AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 skang@aclu.org samdur@aclu.org Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice 27 28 15 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 210 Filed 08/30/18 PageID.3347 Page 17 of 17 1 2 3 4 5 CHAD A. READLER Acting Assistant Attorney General SCOTT G. STEWART Deputy Assistant Attorney General WILLIAM C. PEACHEY Director WILLIAM C. SILVIS Assistant Director 6 7 8 9 10 11 12 13 14 15 16 17 18 19 /s/ Sarah B. Fabian SARAH B. FABIAN Senior Litigation Counsel NICOLE MURLEY Trial Attorney Office of Immigration Litigation Civil Division U.S. Department of Justice P.O. Box 868, Ben Franklin Station Washington, DC 20044 (202) 532-4824 (202) 616-8962 (facsimile) sarah.b.fabian@usdoj.gov ADAM L. BRAVERMAN United States Attorney SAMUEL W. BETTWY Assistant U.S. Attorney Attorneys for Respondents-Defendants 20 21 22 23 24 25 26 27 28 16 18cv428 DMS MDD