Case 2:18-cv-00928-MJP Document 65 Filed 09/24/18 Page 1 of 9

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
__________________________________________
)
)
)
Petitioner,
)
)
v.
)
)
KIRSTJEN M. NIELSEN, et al.
)
)
)
)
Respondents.
)
__________________________________________)
YOLANY PADILLA, et al.,

No. 18-cv-00928-MJP

DECLARATION OF DAVID W. JENNINGS
I, David W. Jennings, for my declaration pursuant to 28 U.S.C. § 1746, hereby state and
depose as follows, based on my personal knowledge and information provided to me in the course
of my official duties:
1. I am currently serving as the Acting Assistant Director (AD), Field Operations, Enforcement
and Removal Operations (ERO), U.S. Immigration and Customs Enforcement (ICE),
Department of Homeland Security (DHS), a position I have held since April 2018. In this
capacity, I oversee, direct, and coordinate field operations in 24 ERO field offices.
2. Previously, I was the Acting Deputy Assistant Director (DAD), Western Operations for
ERO, a position I held from October 2017 to March 2018.
3. In June 2016, I was named Field Office Director for the San Francisco Field Office. I served
as the Field Office Director for the Los Angeles Field Office from June 2014 until June 2016
and as the Houston Field Office Director from May 2012 to June 2014.

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4.

I am writing this declaration to support the motion filed by the Government in opposition

to class certification in the matter of Padilla et al. v. U.S. Immigration and Customs Enforcement
et al., No. 18-928 (W.D. Wash. filed July 15, 2018). By this declaration I seek to address the
procedures that make up the U.S. Immigration and Custom Enforcement (ICE) credible fear
referral process with respect to the named Plaintiffs in this matter and the process as it occurs
across the country generally.
5.

This declaration is based on personal knowledge and information made known to me in the

course of my professional duties.
6.

I understand that the named plaintiffs allege, among other things, that under the zero-

tolerance policy ICE is intentionally delaying credible fear interviews and subsequent custody
redetermination hearings for those with positive credible fear determinations as a deterrent to
asylum seekers entering the United States.
7.

ICE and U.S. Customs and Border Protection (CBP) routinely refer aliens who are

encountered and express fear of return to their home countries to United States Citizenship and
Immigration Service (USCIS) for credible fear interviews. The credible fear referral process
requires ICE, CBP, and USCIS to work together to ensure that the alien is properly processed and
brought before an immigration judge if USCIS finds that the alien has established a credible fear.
8.

The process of referring an alien begins when a fear of return has been expressed, whether

that be when the alien is encountered by CBP at a port of entry or between the ports of entry, or
when transferred to the custody of ICE Enforcement and Removal Operations (ERO) for further
processing. Several forms make up the credible fear referral packet that is sent to USCIS, including
Forms I-296, I-860 Notice & Order of Expedited Removal, I-867A, I-867B and M-444
Information About Credible Fear Interview.

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9.

The number of undocumented aliens encountered by ICE who express fear varies from

region to region and may fluctuate due to external factors such as those set forth below. The
number of referrals required, and other logistical considerations may delay the referral of an
individual credible fear case. Some instances encountered by ICE are articulated herein.
10.

In 2018, as a result of new enforcement initiatives at the southern border, ICE experienced

an influx of adult aliens entering its custody after apprehension by CBP and referral for prosecution
by the U.S. Department of Justice. ICE’s regular means of absorbing an increase in its adult
detention population—including the use of bed space at U.S. Marshals Service (USMS) facilities
near the border and the negotiation of new Intergovernmental Service Agreements with state and
local jails—were overwhelmed. The USMS facilities had little availability, as they were housing
adult aliens pending their prosecution, and the negotiation of a new detention contract can take
months to complete. To accommodate the influx, therefore, ICE relied instead on a federal partner
and entered into Inter-Agency Agreements (IAAs) to use bed space at five new Bureau of Prisons
(BOP) facilities, including the Victorville Federal Correctional Institution (“Victorville” or “FCI
Victorville”) and the Federal Detention Center SeaTac (“SeaTac”). ICE intended to use these BOP
facilities to meet its immediate need to house detainees for short periods of time until the detainees
could be removed, transferred to an established ICE detention facility, or released. ICE intended
to use these facilities for approximately 120 days while it secured additional bed space elsewhere.
In keeping with this intent, ICE temporarily transferred aliens into the BOP facilities. ICE is no
longer housing any detainees at Victorville. And with respect to the other four BOP facilities it
entered in 2018, ICE now has zero detainees at one, and fewer than 100 detainees total in the
remaining three.

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11.

As its detainees began to enter the BOP facilities in summer 2018, ICE worked with BOP

to ensure that ICE detainees would have consular and attorney access and appropriate medical care
while at BOP facilities. However, because these facilities had not been used to house immigration
detainees before, they did not have established procedures—or in some cases, appropriate physical
space—for USCIS to conduct credible fear interviews onsite. Therefore, ERO officers had to
prepare credible fear referrals on a rolling basis and transfer aliens to other facilities for interviews.
In addition to the challenges posed by the influx of adult aliens into ICE custody and their rapid
transfer into new facilities, ICE ERO was in some cases hindered by court order from proceeding
with credible fear processing. On June 21, 2018, the U.S. District Court for the Central District of
California entered a temporary restraining order (TRO) mandating that ICE and the U.S.
government defendants “shall not proceed with the immigration proceedings of immigration
detainees at FCI Victorville” until the detainees had an opportunity to consult with an attorney or
attend a “know your rights” presentation. Rodriguez Castillo v. Nielsen, No. 5:18-cv-01317 (C.D.
Cal. filed June 19, 2018). ICE understood this order to encompass the credible fear process as
well as traditional removal proceedings under Section 240 of the Immigration and Nationality Act
(INA), and therefore suspended the credible fear process for hundreds of individual aliens pending
their consultation with an attorney or an immigration legal services provider and/or attendance at
a “know your rights” presentation. That said, ICE ERO continued to work diligently to comply
with the TRO and complete the credible fear referrals at Victorville and elsewhere as quickly as
possible under the circumstances.
12.

There may also be occasions when an alien’s medical needs prevent the referral of a

credible fear packet until after Plaintiffs’ requested time frame has elapsed. If an alien needs

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medical treatment, the wellbeing of the alien will supersede any deadline for the filing of a referral
packet.

Plaintiff Velazquez

15.

On or about May 31, 2018, CBP apprehended Plaintiff Velasquez near San Ysidro,

California. At that time, he claimed fear of return to his home country.
16.

According to ICE records, ICE took custody of Velazquez on June 6, 2018. Two days

later, he was transferred to FCI Victorville, which began holding immigration detainees on June
6, 2018.
17.

On or about June 8, 2018, ICE ERO began transferring detainees out of FCI Victorville

and placing them in the nearby Adelanto ICE Processing Center (AIPC or Adelanto). As noted
earlier, ICE faced a lawsuit alleging that detainees at FCI Victorville did not have sufficient
access to legal counsel.
18.

In that case, on June 21, 2018, the United States District Court for the Central District of

California issued a Temporary Restraining Order in the case of Rodriguez Castillo v. Nielsen,
No. 18-cv-01317 (C.D. Cal. filed June 19, 2018), which limited ICE’s ability to proceed with
immigration proceedings for some detainees at FCI Victorville.
19.

On July 20, 2018, ERO transferred Plaintiff Velasquez to AIPC, and his case was

referred to USCIS shortly thereafter.
20.

On August 2, 2018, after conducting a credible fear interview, USCIS issued a positive

credible fear determination, and Plaintiff Velasquez’s case was referred to the Executive Office
for Immigration Review (EOIR) for a bond hearing and removal proceedings.

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Plaintiffs Padilla, Guzman and Orantes
21.

The cases of named Plaintiffs Padilla, Guzman and Orantes presented similar situational

and logistical difficulties for ICE in the processing of their credible fear referral. Plaintiffs
Padilla, Guzman and Orantes were encountered by CBP in Texas in May 2018. At the time of
apprehension, all Plaintiffs were accompanied by alien minors. All Plaintiffs were referred for
criminal prosecution for illegal entry into the United States.
22.

Aliens detained by ICE in the Seattle AOR are normally housed at the Northwest

Detention Center (NWDC), a dedicated ICE detention facility in Tacoma, Washington. Credible
fear interviews for detainees housed at the NWDC are conducted at the facility by USCIS.
23.

As discussed earlier, in June 2018, ICE ERO faced an influx of adult aliens entering its

custody at the southern border after apprehension by CBP. ICE ERO transferred many of these
recent arrivals to SeaTac and other BOP facilities while additional dedicated ICE bed space
could be obtained.
24.

SeaTac began housing ICE detainees on June 2, 2018. SeaTac is a BOP facility that ICE

has used in the past, but not in recent years, to house its immigration detainees. ICE worked
quickly to design and implement new procedures to accommodate the incoming immigration
detainees housed at SeaTac, including assigning ICE staff to SeaTac and implementing new
procedures for intake processing and referring credible fear claims to USCIS. ICE also worked
closely with USCIS to implement new procedures for scheduling and transporting SeaTac
detainees to the ICE Office in Tukwila, Washington for credible fear interviews conducted by
USCIS. Further, ICE coordinated with the Executive Office for Immigration Review (EOIR) to

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set up an entirely new, functioning mobile immigration court to conduct removal proceedings
within SeaTac.
Plaintiff Padilla
25.

Plaintiff Padilla is a native and citizen of Honduras who was encountered by CBP in the

Rio Grande Valley in Texas on May 19, 2018 after entering the United States without inspection.
Padilla was processed as an expedited removal. She came into ICE custody in Texas on May 21,
2018. ICE sent a credible fear referral for Padilla to USCIS while she was in custody in Texas
on May 22, 2018. On June 2, 2018, Padilla was transferred to SeaTac. Due to her transfer, a
new referral was sent to USCIS after she arrived at SeaTac. On July 2, 2018, Padilla was given a
credible fear interview at the Seattle Field Office in Tukwila, Washington. She was then
transferred to NWDC the same day. Padilla was subsequently placed in proceedings pursuant to
a Notice to Appear (NTA), issued July 3, 2018, charging her with inadmissibility under section
212(a)(7)(A)(i)(I) of the INA. On July 6, 2018, Padilla had a bond hearing before an
Immigration Judge and was granted an $8,000 bond. Padilla posted bond later that day and was
released from ICE custody.
Plaintiff Guzman
26.

Plaintiff Guzman is a native and citizen of Honduras who was encountered by CBP near

Brownsville, Texas on May 16, 2018 after entering the United States without inspection.
Guzman was processed as an expedited removal and for prosecution for illegal entry. Guzman
came into ICE custody in Texas on May 20, 2018, where she remained until her transfer to
SeaTac on June 3, 2018. A credible fear referral for Guzman was sent to USCIS in Texas on
May 21, 2018. Due to her transfer to Seattle, however, ICE sent a new referral to USCIS after
Guzman arrived at SeaTac. Guzman was transferred into custody at the NWDC on June 20,

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2018. She had a credible fear interview on June 27, 2018. Guzman was subsequently placed in
proceedings pursuant to an NTA issued June 28, 2018, charging her with inadmissibility under
section 212(a)(7)(A)(i)(I) of the INA. Guzman was transferred back to Texas on July 19, 2018
for family reunification and released from ICE custody on an Order of Recognizance on July 31,
2018.
Plaintiff Orantes
27.

Plaintiff Orantes is a native and citizen of El Salvador who was encountered by CBP near

Roma, Texas on May 21, 2018 after entering the United States without inspection. Orantes was
processed as an expedited removal and for prosecution for illegal entry. Orantes came into ICE
custody in Texas on May 24, 2018, where she remained until her transfer to SeaTac on June 3,
2018. She was subsequently transferred into custody at the NWDC on June 20, 2018. Orantes
had a credible fear interview on June 27, 2018. Orantes was initially issued an NTA on June 28,
2018, charging her with inadmissibility under section 212(a)(7)(A)(i)(I) of the INA. That NTA
was filed with EOIR but subsequently rejected because it failed to list a time and date of hearing.
An amended NTA issued on July 10, 2018. Guzman was transferred back to Texas on July 20,
2018 for family reunification and subsequently released on an Order of Recognizance on July 25,
2018.

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Executed this 21st day of September 2018 in Washington, DC.

______________________________
David W. Jennings
Acting Assistant Director
Enforcement and Removal Operations
U.S. Immigration and Customs Enforcement

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