Case 3:18-cv-00428-DMS-MDD Document 233 Filed 09/17/18 PageID.3744 Page 1 of 5

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Lee Gelernt*
Judy Rabinovitz*
Anand Balakrishnan*
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
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
Attorneys for Petitioner-Plaintiff
*Admitted Pro Hac Vice

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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
IMMIGRANTS’ RIGHTS PROJECT
39 Drumm Street
San Francisco, CA 94111
T: (415) 343-1198
F: (415) 395-0950
samdur@aclu.org

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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Ms. L., et al.,

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v.

Petitioner-Plaintiff,

U.S. Immigration and Customs Enforcement
(“ICE”), et al.,

Case No. 18-cv-00428-DMSMDD

Date Filed: September 17, 2018

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Respondents-Defendants.

NOTICE OF
SUPPLEMENTAL
DECLARATION
REGARDING
REUNIFICATIONS OF TWO
PARENTS

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At the Status Conference on September 14, 2018, the Court asked whether

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Mr. C and Ms. Q would have been separated and kept from their young children

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prior to the enactment of the recent zero-tolerance separation policy. Plaintiffs

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submit the following declaration to address this question.

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Robert Carey, former Director of ORR from May 2016 to January 2017,

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notes that it was “extremely rare for any child under five years old to enter ORR

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care where the child had entered the country with their parent,” Supplemental

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Declaration of Robert Carey, Ex. 66, ¶ 6, and that he can recall only one example of

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a child under five years of age being separated from their parent because of alleged

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criminal conduct — a case of the parent allegedly involved in sex trafficking the

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child, Id. ¶ 8.

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Additionally, Mr. Carey stresses the importance of the fact that independent,

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appointed child advocates for Mr. C. and Ms. Q.’s children strongly recommend

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immediate reunification and state that they have no concerns for the child’s safety.

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(These letters were attached to Plaintiffs’ July 13 filing).

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Finally, in their submission, the government noted for the first time an

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INTERPOL red flag notice for Ms. Q. An INTERPOL red flag notice does not

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independently verify the validity of the warrant’s charges but simply notes that a

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warrant exists. See Red Notices, INTERPOL, https://www.interpol.int/INTERPOL-

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expertise/Notices/Red-Notices (last visited Sept. 17, 2018).

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Dated: September 17, 2018

Respectfully Submitted,

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

/s/Lee Gelernt
Lee Gelernt*
Judy Rabinovitz*
Anand Balakrishnan*
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
125 Broad St., 18th Floor
New York, NY 10004

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Stephen B. Kang (SBN 2922080)
Spencer E. Amdur (SBN 320069)
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
39 Drumm Street
San Francisco, CA 94111
T: (415) 343-1198
F: (415) 395-0950
skang@aclu.org
samdur@aclu.org

T: (212) 549-2660
F: (212) 549-2654
lgelernt@aclu.org
jrabinovitz@aclu.org
abalakrishnan@aclu.org
*Admitted Pro Hac Vice

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CERTIFICATE OF SERVICE

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I hereby certify that on September 17, 2018, I electronically filed the

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foregoing with the Clerk for the United States District Court for the Southern

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District of California by using the appellate CM/ECF system. A true and correct

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copy of this brief has been served via the Court’s CM/ECF system on all counsel of

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record.

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/s/ Lee Gelernt
Lee Gelernt, Esq.
Dated: September 17, 2018

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18cv0428

 Case 3:18-cv-00428-DMS-MDD Document 233-1 Filed 09/17/18 PageID.3749 Page 1 of 3

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Lee Gelernt*
Judy Rabinovitz*
Anand Balakrishnan*
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
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
Attorneys for Petitioners-Plaintiffs
Additional counsel on next page

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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
Spencer E. Amdur (SBN 320069)
Stephen B. Kang (SBK 292280)
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
39 Drumm Street
San Francisco, CA 94111
T: (415) 343-1198
F: (415) 395-0950
samdur@aclu.org
skang@aclu.org

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*Admitted Pro Hac Vice
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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Ms. L., et al.,

16 v.

Petitioners-Plaintiffs,

Case No. 18-cv-00428-DMS-MDD

17 U.S. Immigration and Customs Enforcement
18 (“ICE”); et al.,
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Respondents-Defendants.

DECLARATION OF ROBERT
CAREY

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CLASS ACTION
NO HEARING DATE

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1.

I, Robert Carey, make the following declaration based on my personal

knowledge and declare under the penalty of perjury pursuant to 28 U.S.C. § 1746 that
the following is true and correct:
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I previously served as Director of the Office of Refugee Resettlement (“ORR”)

in the Department of Health and Human Services (“HHS”) from March 2015 until
January 2017.
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As Director of ORR, I oversaw all of ORR’s programs, including the

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Unaccompanied Immigrant Minor (“UC”) program.
4.

I have previously submitted a declaration in this case, at Dkt. 78, Ex. 33. I

incorporate that declaration, including my qualifications, by reference herein.
5.

Plaintiffs have informed me that they have asked the Court to order the

reunification of two parents with their separated children: Ms. Q, and Mr. C, whose
children are now four and two years old, respectively. Plaintiffs have also informed
me that Ms. Q has an outstanding warrant for her arrest from El Salvador, and that Mr.
C has a conviction eight years ago for the misdemeanor of aggravated assault. I have
been briefed by Plaintiffs’ counsel as to the government's representations about these

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alleged criminal allegations or convictions for both parents. Further, I am aware that

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Mr. C’s child and Ms. Q’s child have appointed, independent child advocates, both of

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whom have investigated their cases, found no dangers or concerns with reuniting them

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with their parents, and recommended that they be immediately reunified.

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6.

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years old to enter ORR care where the child had entered the country with their parent.

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From what I can recall, such cases only occurred in highly exceptional circumstances,

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such as when a young child entered the United States with an older sibling and both

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were put in ORR care together.

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7.

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accompanying parents on the basis of the parents’ criminal histories. In fact, it was

When I was Director of ORR, it was extremely rare for any child under five

My recollection is that very young children were rarely separated from their

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highly unusual to see children in ORR custody who were under eight years old who
were separated based on the parent’s criminal history.
8.

When such separations occurred, it was because there was credible evidence

that the parent was a serious danger to their own their child. I can only remember one
instance where a child under five years of age was separated from his or her parent
because of the parent’s alleged criminal conduct, and that was an instance where the
parent allegedly was involved in sex trafficking their own child. The fact that here

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independent child advocates for the children of Mr. C. and Ms. Q. both recommend
immediate reunification (and note that they have no safety concerns) would strongly
counsel in favor of reunifying these families.
9.

I declare under penalty of perjury under the laws of the United States of

America that the foregoing is true and correct, based on my personal knowledge.
Executed in London, England, on September 17, 2018.

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/s/ Robert Carey
ROBERT CAREY

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