Case 2:85-cv-04544-DMG-AGR Document 488 Filed 09/10/18 Page 1 of 7 Page ID #:24713 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 JOSEPH H. HUNT Assistant Attorney General AUGUST E. FLENTJE Special Counsel to the Assistant Attorney General Civil Division WILLIAM C. PEACHEY Director, District Court Section Office of Immigration Litigation COLIN A. KISOR Deputy Director, District Court Section Office of Immigration Litigation WILLIAM C. SILVIS Assistant Director, District Court Section Office of Immigration Litigation SARAH B. FABIAN Senior Litigation Counsel, District Court Section Office of Immigration Litigation P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Tel: (202) 532-4824 Fax: (202) 305-7000 Email: sarah.b.fabian@usdoj.gov Attorneys for Defendants 17 18 UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA 19 JENNY LISETTE FLORES; et al., 20 21 22 23 24 25 26 Plaintiffs, v. LORETTA E. LYNCH, Attorney General of the United States; et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 85-4544 JOINT STATUS REPORT RE ORDER RE PROPOSED SPECIAL MASTER/INDEPENDENT MONITOR Case 2:85-cv-04544-DMG-AGR Document 488 Filed 09/10/18 Page 2 of 7 Page ID #:24714 1 On September 4, 2018, the Court issued an order proposing to “appoint 2 Retired United States Immigration Judge Carol A. King to the position of Special 3 4 Master/Independent Monitor.” ECF No. 484. The Court asked the parties to “file a 5 joint status report indicating whether they stipulate to the appointment of Retired 6 Immigration Judge King as the Special Master/Independent Monitor or, if not, they 7 8 shall state any objections they may have to her appointment.” Id. The parties state 9 their positions below. 10 PLAINTIFFS’ POSITION 11 12 13 14 Plaintiffs are prepared to stipulate to the appointment of Retired Immigration Judge Carol King as the Special Master/Independent Monitor. In the event Defendants object to the appointment of Retired Judge King, Plaintiffs have no 15 16 objection to the appointment of Retired Immigration Judge King as the Special 17 Master/Independent Monitor. 18 DEFENDANTS’ POSITION 19 20 Defendants respectfully object to the appointment of former immigration 21 judge (“IJ”) Carol King as the Flores independent monitor. As an initial matter, 22 while Defendants agree that former IJ King has significant experience with 23 immigration law, Defendants object because former IJ King appears to have little 24 25 or no direct experience with U.S. Customs and Border Protection (“CBP”) or U.S. 26 Immigration and Customs Enforcement (“ICE”) holding and detention facilities 1 Case 2:85-cv-04544-DMG-AGR Document 488 Filed 09/10/18 Page 3 of 7 Page ID #:24715 1 themselves, or more specifically with the conditions at such facilities, the 2 management of such facilities, or the legal standards applicable to such facilities, 3 4 5 which go beyond substantive immigration law. Moreover, former IJ King has no demonstrated background in overseeing 6 complex litigation or compliance with consent decrees. Immigration judges have 7 8 limited powers delegated to them by regulation to decide individual cases, and only 9 for matters designated to them under the Immigration and Nationality Act. 8 10 C.F.R. § 1003.10(b). This is very different from the substantial and complex task 11 12 of overseeing the operations of multiple agencies as is required in the present 13 matter. Given this lack of experience, Defendants disagree that former IJ King 14 would have only a “minimal learning curve” in undertaking to serve as an 15 16 independent monitor related to the issues in the Court’s June 27, 2017 order. 17 Defendants also object to the appointment of former IJ King on the ground 18 that she has published a writing to promote her law practice that gives the appearance 19 20 of a very real and serious bias against the defendants. These sentiments, expressed 21 publicly, at the very least create the appearance that former IJ King would not carry 22 out her duties as special master with the type of impartiality that is required for a 23 quasi-judicial role. These statements criticize a defendant in this matter – the 24 25 Attorney General – and address policies relating to children subject to the Flores 26 Agreement. 2 Case 2:85-cv-04544-DMG-AGR Document 488 Filed 09/10/18 Page 4 of 7 Page ID #:24716 1 Specifically, on her law office web site, former IJ King states in the 2 “Introduction to Carol King Law Office” that “[t]he current wave of attacks on 3 4 immigrants [that] has clearly been manufactured . . . to sow division and grab power” 5 includes “those who have been so viciously attacked . . . immigrant parents and 6 young children.” Introduction to Carol King Law Office, July 9, 2018, available at: 7 8 https://carolkinglawoffice.com/2018/07/09/hello-world/. Former IJ King further 9 states that “[t]he lack of any ethical, moral or compassionate compass reflected in 10 the current administration is more disturbing than anything in recent history[,]” and 11 12 that the “current actions on the part of the President, Attorney General and 13 administration, which reflect only a commitment to power and to hatred, hurt me so 14 deeply.” Id. 15 16 To be sure, there is nothing improper about holding strong views on 17 government policies, but public statements such as these are not consistent with 18 performing the quasi-judicial function of a special master, where officers must 19 20 meticulously avoid “[c]onduct that compromises or appears to compromise the 21 independence, integrity, and impartiality of a judge” because it “undermines public 22 confidence in the judiciary.” ABA Model Rules of Judicial Conduct 1.2, Comment 23 [3]; see id. Comment [5] (“[t]he test for appearance of impropriety is whether the 24 25 conduct would create in reasonable minds a perception that the judge . . . engaged in 26 other conduct that reflects adversely on the judge’s . . . impartiality”). The published 3 Case 2:85-cv-04544-DMG-AGR Document 488 Filed 09/10/18 Page 5 of 7 Page ID #:24717 1 criticism of a named defendant, and of government policies related to children who 2 are subject to the Flores Agreement, as an introduction to her law practice do not, 3 4 Defendants submit, meet this exacting standard. A reasonable person could question, 5 in light of such statements, whether former IJ King will be impartial in evaluating 6 compliance with this Court’s orders for facilities that are currently operated by 7 8 Defendants CBP and ICE, who are agencies of that same administration against 9 which former IJ King has a clearly and publicly expressed bias. Defendants therefore 10 object to the appointment of former IJ King as an independent monitor in this case. 11 12 DATED: September 10, 2018 Respectfully submitted, 13 14 15 16 17 /s/ Peter A. Schey (with permission) PETER A. SCHEY Center for Human Rights and Constitutional Law Attorney for Plaintiffs 18 19 JOSEPH H. HUNT Assistant Attorney General 20 21 22 AUGUST E. FLENTJE Special Counsel to the Assistant Attorney General Civil Division 23 24 25 WILLIAM C. PEACHEY Director, District Court Section Office of Immigration Litigation 26 4 Case 2:85-cv-04544-DMG-AGR Document 488 Filed 09/10/18 Page 6 of 7 Page ID #:24718 1 2 COLIN A. KISOR Deputy Director, District Court Section Office of Immigration Litigation 3 4 5 6 7 8 9 10 11 12 13 14 WILLIAM C. SILVIS Assistant Director, District Court Section Office of Immigration Litigation /s/ Sarah B. Fabian SARAH B. FABIAN Senior Litigation Counsel Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Tel: (202) 532-4824 Fax: (202) 305-7000 Email: sarah.b.fabian@usdoj.gov Attorneys for Defendants 15 16 17 18 19 20 21 22 23 24 25 26 5 Case 2:85-cv-04544-DMG-AGR Document 488 Filed 09/10/18 Page 7 of 7 Page ID #:24719 1 CERTIFICATE OF SERVICE 2 3 4 5 I hereby certify that on September 10, 2018, I served the foregoing pleading with attachments on all counsel of record by means of the District Clerk’s CM/ECF electronic filing system. 6 7 8 11 /s/ Sarah B. Fabian SARAH B. FABIAN U.S. Department of Justice District Court Section Office of Immigration Litigation 12 Attorney for Defendants 9 10 13 14 15 16 17 18 19 20 21 22 23 24 25 26