Case 3:18-cv-00428-DMS-MDD Document 238 Filed 09/20/18 PageID.3794 Page 1 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 JOSEPH H. HUNT 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 238 Filed 09/20/18 PageID.3795 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 10 JOINT STATUS REPORT vs. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., Respondents-Defendants. 11 12 The Court ordered the parties to file a joint status report on September 20, 13 14 2018, in anticipation of the telephonic status conference scheduled for September 15 21, 2018, at 1:00 p.m. PST. The parties submit this joint status report in accordance 16 with the Court’s instruction. 17 DEFENDANTS’ POSITIONS 18 I. 19 20 21 22 23 24 A. Update on Reunifications: Defendants are discharging children appropriately and expeditiously Defendants have appropriately discharged an additional 34 children since the last Joint Status Report, for a total of 2,251 children. Looking ahead, there are 182 children proceeding towards reunification or 25 another appropriate discharge. Specifically, there are: 26 27 28 1 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 238 Filed 09/20/18 PageID.3796 Page 3 of 17 1 • 41 children in ORR care with a parent who is in the United States and 2 presently in the class. Of the 41 children, 6 cannot be reunified at this time 3 because their parents are in other federal, state, or local custody (e.g., state 4 5 criminal detention). Defendants are working to appropriately discharge the 6 remaining 35 of 41 children, meeting and conferring with Plaintiffs where 7 appropriate for resolution. See Table 1: Reunification Update. 8 9 • 48 children in ORR care who have parents presently departed from the 10 United States, who have cleared Processes 1 through 3 of the Court- 11 12 approved reunification plan, and who are proceeding towards reunification 13 with their parents in their home country. See Table 2: Reunification of 14 Removed Class Members. 15 16 o Of these 48 children, 18 children have voluntary departure orders. 17 The government is actively arranging travel to their home countries. 18 Another 19 of the 48 children had pending immigration proceedings 19 20 that have been dismissed by the government since the last Joint 21 Status Report. The government is actively arranging travel to their 22 home countries as well. See id. 23 24 25 26 • 93 children in ORR care who have parents presently departed from the United States, and for whom the ACLU/Steering Committee has not yet provided notice of parental intent regarding reunification (or declination of 27 28 2 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 238 Filed 09/20/18 PageID.3797 Page 4 of 17 1 2 3 reunification). As described below, Defendants are supporting the efforts of the ACLU/Steering Committee to obtain statements of intent from those parents. Once Defendants receive the notices from the ACLU/Steering 4 5 Committee, Defendants will either reunify the children or move them into 6 the TVPRA sponsorship process, consistent with the intent of the parent. 7 For 22 of the 93 children, the ACLU/Steering Committee has been in 8 9 contact with their parents for more than 28 days without providing 10 Defendants with notice of parental intent. Defendants have provided 11 Plaintiffs a list of the 22 children, and Defendants are meeting and 12 13 conferring with Plaintiffs to determine the best course of action to move 14 the process for those children forward. See Table 2: Reunification of 15 Removed Class Members. 16 17 The current reunification status for children ages 0 through 17 is further 18 summarized in Table 1 below. The data in Table 1 reflects approximate numbers 19 maintained by ORR at least as of September 17, 2018. These numbers are dynamic 20 21 and continue to change as more reunifications or discharges occur. 22 23 24 25 26 27 28 3 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 238 Filed 09/20/18 PageID.3798 Page 5 of 17 1 Table 1: Reunification Update 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Phase 2 Phase 1 and (Under 5) (5 above) Description Total number of possible children of potential 103 class members originally identified Discharged Children Total children discharged from ORR care: 84 • Children discharged by being reunified 72 with separated parent • Children discharged under other appropriate circumstances (these include discharges to other sponsors [such as 12 situations where the child’s separated parent is not eligible for reunification] or children that turned 18) Children in ORR Care, Parent in Class 2,551 2,654 2,167 2,251 1,936 2,008 231 243 176 182 5 1 136 40 141 41 0 6 6 Children in care where the parent is not eligible for reunification or is not available for discharge 6 at this time: • Parent presently outside the U.S. • Parent presently inside the U.S. o Parent in other federal, state, or local custody Total 18 19 20 21 22 23 24 25 Children in ORR Care, Parent out of Class Children in care where further review shows 5 50 they were not separated from parents by DHS Children in care where a final determination has 7 been made they cannot be reunified because the parent is unfit or presents a danger to the child Children in care with parent presently departed 1 from the United States whose intent not to reunify has been confirmed by the ACLU Children in care with parent in the United States who has indicated an intent not to reunify 0 55 24 31 112 113 21 21 26 27 28 4 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 238 Filed 09/20/18 PageID.3799 Page 6 of 17 1 B. Update on Removed Class Members: Defendants are working with Plaintiffs’ counsel to implement parental intent 2 3 The current reunification status for removed class members is set forth in 4 Table 2 below. The data presented in this Table 2 reflects approximate numbers 5 maintained by ORR as of at least September 17, 2018. These numbers are dynamic 6 7 and continue to change as the reunification process moves forward. 8 9 10 11 12 13 14 15 16 17 Table 2: Reunification of Removed Class Members REUNIFICATION REPORTING METRIC PROCESS STARTING Children in ORR care with POPULATION parents presently departed from the U.S. PROCESS 1: Identify & Resolve Children with no “red flags” Safety/Parentage for safety or parentage Concerns PROCESS 2: Establish Contact with Parents in Country of Origin 18 19 20 21 22 23 24 25 26 PROCESS 3: Determine Parental Intention for Minor Children with parent contact information identified Children with no contact issues identified by plaintiff or defendant Children with parent contact information provided to ACLU by Government NO. REPORTING PARTY 254 Def’s. 254 Def’s. 254 Def’s. 254 Def’s. & Pl.’s 254 Def’s. Children for whom ACLU has communicated parental intent 161 for minor: Pl’s. • Children whose parents waived reunification 113 Pl’s. • Children whose parents chose reunification in country of origin 48 Pl’s. 27 28 5 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 238 Filed 09/20/18 PageID.3800 Page 7 of 17 Children for whom ACLU has not yet communicated 93 parental intent for minor: • Children whose parents ACLU has been in 22 contact with for 28 or more days without intent determined 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 PROCESS 4: Resolve Immigration Status of Minors to Allow Reunification Total children cleared Processes 1-3 with confirmed intent for reunification in country of origin • Children in ORR care w/ orders of voluntary departure • Children in ORR care w/o orders of voluntary departure o Children in ORR care whose immigration cases were dismissed Pl’s. Pl’s. 48 Pl’s. 18 Def’s. 30 Def’s. 19 Def’s. 16 17 18 Table 2 contains two new groups. The first new group is “Children whose parents ACLU has been in contact with for 28 or more days without intent 19 20 determined,” as discussed above. The second new group is “Children in ORR care 21 whose immigration cases were dismissed,” also discussed above. 22 23 24 C. Update Regarding Joint Motion and Proposed Order Related To Agreement Following last week’s status conference, the parties promptly began work to 25 26 prepare a motion and proposed order addressing approval of the parties’ proposed 27 settlement agreement. Preliminary drafts of these materials have now been prepared 28 6 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 238 Filed 09/20/18 PageID.3801 Page 8 of 17 1 and are being reviewed by interested parties. The parties also have been working on 2 the procedural steps needed to ensure that claims by the Dora plaintiffs, which are 3 pending in the District of Columbia, can be addressed by this Court. The parties are 4 5 working expeditiously and collaboratively, they intend to file these documents as 6 soon as possible, and they can update the Court at the status conference. The parties 7 also are beginning to implement the agreement. The government will begin to 8 9 provide the statistics requested by the Court on the individuals affected by the 10 agreement once they begin to move through the process. 11 D. Update Regarding Government’s Implementation of Agreement 12 13 In order to move forward with implementation of the agreement, the 14 government is identifying the following groups of class members: 15 16 17 18 19 20 21 22 23 24 25 26 27 1. Adults and children who have been released from DHS or ORR care with an expedited removal order who have been continuously present in United States since June 26, 2018 (Paragraph 1a) 2. Children with final orders of removal who have been continuously present in United States since June 26, 2018 (Paragraph 1a) 3. Children currently detained in a family residential center (FRC) who were served with an NTA that has not been filed with the Executive Office for Immigration Review (EOIR) and who have been continuously present in the United States since June 26, 2018 (Paragraph 1b) 4. Children currently detained in an FRC who were served with an NTA that has been filed with EOIR and who have been continuously present in United States since June 26, 2018 (Paragraph 1c) 5. Parents who are subject to a final expedited removal order who have not had an NTA filed with EOIR and who have been present in United States since June 26, 2018 (Paragraph 1d) 6. Parents currently detained in an FRC who are subject to a reinstated final order of removal and who have been continuously present in the United States since June 26, 2018 and the procedural status of the child (Paragraph 1e) 28 7 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 238 Filed 09/20/18 PageID.3802 Page 9 of 17 1 2 3 7. Parents currently detained in an FRC who are subject to a final order of removal entered after proceedings before EOIR and who have been continuously present in the United States since June 26, 2018 (Paragraph 6) E. Locating Removed Parents 4 5 In accordance with the Court’s directions, and as discussed in last week’s Joint 6 Status Report and declaration of Commander Jonathan White (ECF No. 227), ORR 7 is supporting the ACLU’s efforts to obtain parental intent by brokering three-way 8 9 calls with parents, the case manager, and the ACLU. Plaintiffs identified 27 cases 10 that they asked be prioritized for three-way calls. Commander White has instructed 11 that ORR case managers begin to broker three-way calls with the phone number 12 13 provided by Plaintiffs. So far, that process has resulted in at least 15 successful 14 three-way calls connecting the parents and the ACLU, which are helping to facilitate 15 confirmation of parental intent. Defendants anticipate brokering more calls between 16 17 children, parents and the ACLU (some of which will take place at prearranged times) 18 in the coming week. 19 F. Information Sharing 20 Defendants believe they are now providing Plaintiffs with the majority of the 21 22 information that Plaintiffs have requested in their data requests. The parties continue 23 to meet and confer regarding the sharing of data. 24 25 26 27 28 8 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 238 Filed 09/20/18 PageID.3803 Page 10 of 17 1 II. PLAINTIFFS’ POSITIONS 2 A. Steering Committee Progress The Steering Committee continues to make progress and has, as of 3 4 Wednesday, September 20, delivered final preferences for 181 removed parents to 5 the Government and reached 13 additional new parents.1 With 65% of parent wishes 6 having been communicated to the Government, and many of these relating to young 7 children, the Committee hopes that the Government will work to bring resolution to 8 these cases as expeditiously as possible. First, we report the status of our efforts based on the Government’s 9 10 September 14 list of 279 children in ORR custody with removed parents. With 11 respect to those children and parents, the Steering Committee’s progress in 12 contacting parents and delivering preferences to the Government is as follows: 13 14 Removed parents identified by the Government to 279 15 Steering Committee (reported to Steering 16 Committee on 17 9/14/2018) 18 • Parents for whom Committee has no phone number (and hasn’t otherwise contacted) 19 20 21 22 Steering Committee called phone number for parent 0 279 (using Government-provided number or number otherwise obtained by Steering Committee) 23 24 1 These numbers are based on the population of 279, identified by the 25 Government on September 14. Of the total population of 414 removed parents who were separated from children in ORR care that have been reported by the 26 Government since the Steering Committee’s creation, the Steering Committee has communicated final preferences for 217 parents and contacted an additional 24 27 parents in the past week. 28 9 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 238 Filed 09/20/18 PageID.3804 Page 11 of 17 1 Steering Committee spoke to parent (either by phone 2 or in person) 3 • Parents successfully reached through phone contact 240 • Parents found through outreach by NGOs 8 4 5 248 6 7 Parents called and not reached (and not reached 8 through NGO efforts) 10 • Phone number currently determined to be inoperable or ineffective 11 • Contact efforts ongoing 9 31 0 31 12 13 14 Parents reached by phone or NGO outreach • Parent’s preference with respect to reunification 198 has been confirmed to match child’s • Preliminary indication of parent’s wishes with 23 respect to reunification • Ongoing discussions reunification • Parent’s final preference communicated to government 15 16 17 18 19 20 21 22 248 with parent has about 27 been 181 Last week, the Steering Committee explained that it was meeting and 23 conferring with the Government to clarify the bases for which children and parents 24 have been removed from the Government’s operative list. As noted, there are a 25 total of 135 children who previously appeared on the Government’s lists, but who 26 are not on the current list of 279 children in ORR custody. 27 The Committee is satisfied, based on the information provided by the 28 10 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 238 Filed 09/20/18 PageID.3805 Page 12 of 17 1 Government, that of these 26 were reunified with parents in the country of origin, 2 and 27 were appropriately released to a sponsor or were not class members. 3 For an additional 82 families, the Committee continues to review the 4 information provided by the Government and may seek additional information as 5 necessary. As the Steering Committee has not yet received sufficient information 6 to confirm that these cases have been resolved to the Committee’s satisfaction, the 7 Committee continues to include them in its operative group. There are thus a total 8 of 361 (279 + 82) removed parents who were separated from their children that the 9 Steering Committee regards as its current operative group. The Steering 10 Committee continues to communicate the wishes of all of these parents, 11 irrespective of whether the children appear on the Government’s most recent list. 12 The Steering Committee’s progress for the total group of 414 children in ORR care 13 with removed parents (i.e. the total number of families that have been identified by 14 the Government to the Steering Committee) is reported at the end of the Steering 15 Committee Report, so that the Court has a full picture of the Steering Committee’s 16 efforts. 17 18 19 20 21 22 23 24 25 26 On-the-Ground Challenges As was suggested by Commander White in his September 13 declaration, the Steering Committee has communicated “specific operational concerns to the interagency operations group, so that [the Government] can partner with [the Committee] (and with the governments of Guatemala and Honduras) to try to address the concern.” In the past week, the Steering Committee has learned of several instances of apparent communication breakdowns in the in-country reunification process, where, for example, parents have not been informed of changes in travel plans for their child and have travelled great distances only to have their child not arrive or 27 28 11 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 238 Filed 09/20/18 PageID.3806 Page 13 of 17 1 where parents have not been given sufficient advance notice of an arriving child 2 and the child has had to wait overnight, or for several days, for the parent to arrive 3 at the reunification site. 4 In response to these concerns, the Steering Committee and Government are 5 working to establish a mechanism for the Government to provide the Committee, 6 and specifically the Committee member NGOs involved in assisting parents with 7 reunifications in country, with advance notice and date and flight information of 8 reunifications. This information will enable the NGOs to support parents in 9 travelling to the reunification site and to help parents and children with 10 reintegration, including referring families for appropriate psychosocial support in 11 their home countries. 12 13 14 15 16 17 Outstanding Data-Related Issues The Steering Committee continues to meet and confer with the Government regarding data requested from the Government in order to ensure that all parents are accounted for and reunified with their children imminently, if that is the parent’s wish. The Parties continue to make good progress in this regard. Removals from Government Lists 18 19 The Government has provided additional information to the Steering 20 Committee explaining why parents and children have been removed from or added 21 to the lists of class members or children in ORR custody previously produced by 22 the Government, as reflected in each week’s Joint Status Report. The Parties have 23 reached agreement with respect to several families and continue to meet and confer 24 regarding the remaining families. 25 26 Communication Challenges With Parents The Steering Committee continues to meet and confer with the Government 27 28 12 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 238 Filed 09/20/18 PageID.3807 Page 14 of 17 1 regarding communication challenges with certain parents. 2 The Parties have initiated the three-way call process suggested by the 3 Government (whereby ORR case workers call the Steering Committee hotline to 4 connect the Committee with the removed parent) and this process is proving to be 5 effective, with the Steering Committee having successfully reached 14 previously 6 unreached parents by use of this process. Thus, while there remain a total of 31 of 7 the population of 279 (or 50 of the 361) parents that the Steering Committee has 8 not yet had contact with, the Steering Committee is hopeful that the this number 9 will continue to rapidly decrease. 10 11 Steering Committee Progress on Operative Group of Parents/Children 12 Removed parents identified by the Government to 13 Steering Committee (Steering Committee’s current 14 operative group) 15 16 17 18 19 414 • Parents for whom Committee has no phone number (and hasn’t otherwise contacted) 19 Steering Committee called phone number for parent 395 (using Government-provided number or number otherwise obtained by Steering Committee) 20 21 Steering Committee spoke to parent (either by phone 22 or in person) 23 24 • Parents successfully reached through phone contact 25 • Parents found through outreach by NGOs 340 327 13 26 27 28 13 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 238 Filed 09/20/18 PageID.3808 Page 15 of 17 1 Parents called and not reached (and not reached 2 through NGO efforts) 3 4 • Phone number currently determined to be inoperable or ineffective 5 • Contact efforts ongoing 55 6 49 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Parents reached by phone or NGO outreach 340 • Parent’s preference with respect to reunification 268 has been confirmed to match child’s • Preliminary indication of parent’s wishes with 32 respect to reunification • Ongoing discussions reunification with parent • Parent’s final preference communicated to government has Resolved Cases about 40 been 217 53 • Child reunited with parent in Country of Origin 26 • Child appropriately placed with sponsor in U.S. 27 or parent determined to not be a class member 21 22 B. EXCLUSIONS ON THE BASIS OF CRIMINAL HISTORY 23 Following the Court’s September 19 Order, the parties continue to meet and 24 confer to try and resolve the cases of parents who are not reunified on the basis of 25 their criminal histories. The parties are currently exchanging information 26 concerning these parents. 27 28 14 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 238 Filed 09/20/18 PageID.3809 Page 16 of 17 1 DATED: September 20, 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 238 Filed 09/20/18 PageID.3810 Page 17 of 17 1 2 3 4 5 JOSEPH H. HUNT 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