Case 3:18-cv-00428-DMS-MDD Document 243 Filed 09/27/18 PageID.3841 Page 1 of 18 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 243 Filed 09/27/18 PageID.3842 Page 2 of 18 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 27, 13 14 2018. The parties submit this joint status report in accordance with the Court’s 15 instruction. 16 I. DEFENDANTS’ POSITIONS 17 A. Update on Reunifications: Defendants are discharging children 18 appropriately and expeditiously 19 Defendants have appropriately discharged an additional 45 children since the 20 21 last Joint Status Report, for a total of 2,296 children. 22 Looking ahead, there are 136 children proceeding towards reunification or 23 24 another appropriate discharge. Specifically, there are: 25 • 40 children in ORR care with a parent who is in the United States and 26 27 presently in the class. Of the 40 children, 6 cannot be reunified at this time 28 1 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 243 Filed 09/27/18 PageID.3843 Page 3 of 18 1 2 3 because their parents are in other federal, state, or local custody (e.g., state criminal detention). Defendants are working to appropriately discharge the remaining 34 of 40 children, and to identify any possible barriers to 4 5 their discharge, meeting and conferring with Plaintiffs where appropriate 6 for resolution. See Table 1: Reunification Update. 7 • 27 children in ORR care who have parents presently departed from the 8 9 United States, who have cleared Processes 1 through 3 of the court- 10 approved reunification plan, and who are proceeding towards reunification 11 with their parents in their home country. See Table 2: Reunification of 12 13 14 15 16 Removed Class Members. o Of these 27 children, 9 children have voluntary departure orders. The government is actively arranging travel to their home countries. 17 Another 12 of the 27 children have immigration proceedings that 18 have been dismissed or canceled by the government. The 19 20 21 22 government is actively arranging travel to their home countries as well. See id. • 69 children in ORR care who have parents presently departed from the 23 24 United States, and for whom the ACLU has not yet provided notice of 25 parental intent regarding reunification (or declination of reunification). As 26 described below, Defendants are supporting the efforts of the ACLU to 27 28 2 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 243 Filed 09/27/18 PageID.3844 Page 4 of 18 1 2 3 obtain statements of intent from those parents. Once Defendants receive the notices from the ACLU, Defendant will either reunify the children or move them into the TVPRA sponsorship process, consistent with the intent 4 5 of the parent. For 18 of the 69 children, the ACLU has been in contact 6 with their parents for more than 28 days without providing Defendants 7 with notice of parental intent. See Table 2: Reunification of Removed 8 9 10 11 Class Members. The current reunification status for children ages 0 through 17 is further summarized in Table 1 below. The data in Table 1 reflects approximate numbers 12 13 maintained by ORR at least as of September 24, 2018. These numbers are dynamic 14 and continue to change as more reunifications or discharges occur. 15 16 Table 1: Reunification Update 17 18 19 20 21 22 23 24 25 26 27 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: 87 • Children discharged by being reunified 72 with separated parent • Children discharged under other appropriate circumstances (these include discharges to other sponsors [such as 15 situations where the child’s separated parent is not eligible for reunification] or children that turned 18) Total 2,551 2,654 2,209 2,296 1,953 2,025 256 271 28 3 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 243 Filed 09/27/18 PageID.3845 Page 5 of 18 Children in ORR Care, Parent in Class 1 2 3 4 5 6 7 8 9 10 11 12 13 Children in care where the parent is not eligible for reunification or is not available for discharge 3 at this time: 133 2 94 • Parent presently outside the U.S. 1 39 • Parent presently inside the U.S. o Parent in other federal, state, or local 0 6 custody Children in ORR Care, Parent out of Class Children in care where further review shows 4 45 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 0 136 96 40 6 49 22 29 122 123 18 18 B. Update on Removed Class Members: Defendants are working with Plaintiffs’ counsel to implement parental intent 14 15 16 The current reunification status of removed class members is set forth in Table 17 2 below. 18 The data presented in this Table 2 reflects approximate numbers maintained by ORR as of at least September 24, 2018. These numbers are dynamic 19 20 and continue to change as the reunification process moves forward. 21 22 23 24 25 26 27 28 4 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 243 Filed 09/27/18 PageID.3846 Page 6 of 18 1 2 3 4 Table 2: Reunification of Removed Class Members REUNIFICATION REPORTING METRIC PROCESS STARTING Children in ORR care with parents POPULATION presently departed from the U.S. NO. REPORTING PARTY 219 Def’s. PROCESS 1: Identify & Resolve Children with no “red flags” for safety 219 Safety/Parentage or parentage Concerns Def’s. 5 6 7 8 9 10 PROCESS 2: Establish Contact with Parents in Country of Origin 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 Children for whom ACLU has communicated parental intent for minor: • Children whose parents waived reunification • Children whose parents chose reunification in country of origin Children for whom ACLU has not yet communicated parental intent for minor: • Children with voluntary departure orders awaiting execution • Children with parental intent documented by ORR • Children whose parents ACLU has been in contact with for 28 or more days without intent determined 219 Def’s. 219 Def’s. & Pl.’s 219 Def’s. 150 Pl’s. 123 Pl’s. 27 Pl’s. 69 Pl’s. 2 Def’s. 22 Def’s. 18 Pl’s. 26 27 28 5 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 243 Filed 09/27/18 PageID.3847 Page 7 of 18 1 2 3 4 5 6 7 8 9 PROCESS 4: Total children cleared Processes 1-3 Resolve with confirmed intent for reunification Immigration in country of origin Status of Minors to Allow • Children in ORR care with Reunification orders of voluntary departure • Children in ORR care w/o orders of voluntary departure o Children in ORR care whose immigration cases were dismissed or withdrawn 27 Pl’s. 9 Def’s. 18 Def’s. 12 Def’s. Defendants believe they have and are continuing to provide Plaintiffs with the majority of the information they seek with respect to children of departed (or 10 11 removed) class members. In last week’s status conference, the Court and Plaintiffs 12 requested further information about how Defendants have reported information 13 regarding departed class members and their children. 14 In short, Defendants have continually refined their reporting to provide more 15 16 detailed information to the Court and Plaintiffs: 17 • Defendants’ weekly reporting has generally focused on the current weekly 18 19 population of children of departed class members in ORR care, as those are 20 most relevant to the parties’ shared reunification goal. 21 22 23 24 • On August 7, Defendants provided Plaintiffs with a list of 400 total children with departed parents who were then in ORR care — a total population which later increased to 414 children as additional cases meeting the relevant criteria 25 26 were identified. 27 28 6 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 243 Filed 09/27/18 PageID.3848 Page 8 of 18 1 • Beginning August 23, Defendants continued reporting the current, weekly 2 number of children in ORR care with departed parents in each Joint Status 3 Report. The number changed weekly as children were discharged from care 4 5 (or re-categorized based on determinations related to separation, parental 6 fitness, or safety). Defendants also provided supporting data to Plaintiffs. 7 • On or around August 30, Defendants provided Plaintiffs with information 8 9 10 11 12 about the type of discharge of each child to date. Defendants also began providing that data weekly for new discharges. • On or around September 11, Defendants provided additional information 13 about discharges to date (e.g., sponsor contact information). Defendants also 14 began providing that data weekly for new discharges. 15 16 By providing the above, Defendants believe they have provided Plaintiffs with 17 detailed information about the circumstances of each discharged child among the 18 414 total children with departed parents. Defendants will continue to do so for new 19 discharges. The table below summarizes the information regarding children of 20 21 departed parents that Defendants have reported to Plaintiffs since August 7: 22 23 24 25 26 27 28 7 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 243 Filed 09/27/18 PageID.3849 Page 9 of 18 1 Table 3: Summary of Reporting on Reunification of Children with Departed Parents Date Provided to Plaintiffs 7 8 9 10 August 7, 2018 400 400 12 August 10, 2018 412 398 13 August 24, 2018 413 343 August 30, 2018 413 322 September 6, 2018 414 304 September 13, 2018 414 279 September 20, 2018 414 254 September 27, 2018 414 219 11 Parent no longer departed 6 Discharge via Age Out or Age Redetermination Out of Class (Not a Separation or Safety) 5 Discharged Separated Parent or Voluntary Departure Discharged to Individual Sponsor 4 Number of Children In Care with Departed Parents 3 Total Cumulative Cases 2 14 15 16 17 18 19 20 90 70 7 24 4 21 22 23 Defendants understand that Plaintiffs want to track the status of children of 24 removed parents, even following discharge, from the total group of 414 children. 25 For example, Plaintiffs submitted late last night a list of 33 of the 414 children about 26 whom they claim not to have received adequate information. Defendants believe 27 28 8 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 243 Filed 09/27/18 PageID.3850 Page 10 of 18 1 that much of the information Plaintiffs are seeking has already been provided as 2 detailed above, and have explained that to Plaintiffs’ counsel by email. Defendants 3 hope that the chart and explanation above provide further clarity about the 4 5 relationship between Defendants’ reporting and that group of 414 children. 6 Defendants remain willing and available to meet and confer regarding any questions 7 Plaintiffs have. 8 9 10 11 C. Locating Removed Parents ORR is continuing to support the ACLU’s efforts to obtain parental intent by brokering three-way calls with parents, the case manager, and the ACLU. As of 12 13 September 24, Plaintiffs had identified a total of 45 cases that they asked be 14 prioritized for three-way calls. 15 Commander White instructed that ORR case managers begin to broker three-way calls with the phone number provided by 16 17 Plaintiffs for those 45. So far, the parties agree that that process has resulted in at 18 least 29 successful three-way calls connecting the parents and the ACLU, which are 19 helping to facilitate confirmation of parental intent. Defendants will continue to 20 21 broker more calls between children, parents and the ACLU. The parties are meeting 22 and conferring about additional phone numbers for prioritization. 23 D. Update Regarding Government’s Implementation of Agreement 24 Defendants are continuing to work with Plaintiffs’ counsel to finalize the 25 26 documents necessary for approval and implementation of the agreement. Defendants 27 28 9 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 243 Filed 09/27/18 PageID.3851 Page 11 of 18 1 also are continuing to conduct the manual case reviews needed to finalize the lists 2 for implementation of the agreement that were detailed in last week’s joint status 3 report. 4 5 6 7 E. Criminal History Exclusions The parties met and conferred multiple times regarding the issue of exclusions from the class based on criminal history. Based on the class certification order in this 8 9 case, ECF No. 82, and the Court's recent order addressing two individual criminal 10 exclusions, ECF No. 236, the government understands the Court to have concluded 11 that it will not review the government’s good faith exercises of discretion with regard 12 13 to exclusions from the class based on criminal history. 14 15 Although these individuals are not class members, the government will continue to evaluate the possibility of reunification under ordinary processes. 16 17 Although class counsel does not represent these individuals who are not class 18 members, the government is continuing to meet and confer with class counsel to 19 determine if there is an appropriate way for class counsel to bring cases to the 20 21 government’s attention that may merit further review or reconsideration. 22 23 24 F. Information Sharing and Reporting on Removed Parents As discussed above, the parties continue to meet and confer regarding the 25 sharing of data. Defendants believe they are now providing Plaintiffs with the 26 majority of the information they are seeking. 27 28 10 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 243 Filed 09/27/18 PageID.3852 Page 12 of 18 1 II. 2 A. Steering Committee Progress 3 PLAINTIFFS’ POSITIONS The Steering Committee has continued to make progress in contacting 4 parents, confirming parent and child wishes with respect to reunifications, and 5 relaying such wishes to the Government in the form of attorney declarations or 6 reunification election forms signed by parents. As of Wednesday, September 26, 7 the Committee delivered final preferences for 1871 parents to the Government. 8 The status of efforts based on the Government’s September 21 list of 254 children 9 in ORR custody with removed parents is as follows: 10 Removed parents identified by the Government to Steering 254 11 12 Committee on 9/21/18 • Parents for whom Committee has no phone number 0 13 Steering Committee called phone number for parent (using 254 14 Government-provided number or number otherwise obtained by 15 Steering Committee) 16 Steering Committee spoke to parent (either by phone or in person) • Parents successfully reached by phone 17 18 19 20 • Parents found through outreach by NGOs • Parents called and not reached (and not reached through NGO efforts) 21 24 227 9 18 o Phone number inoperable or ineffective 0 o Contact efforts ongoing 18 22 23 236 1 This figure is based on the Government’s September 21 report of 254 25 children remaining in ORR custody. As previously noted, the Steering Committee continues to report its progress with respect to the total 414 families that the 26 Government has identified as including children in ORR care with removed parents. Progress with respect to this total population is contained at the end of 27 this section. 28 11 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 243 Filed 09/27/18 PageID.3853 Page 13 of 18 1 2 3 4 5 6 7 Parents reached by phone or NGO outreach 236 • Parent’s preference with respect to reunification has been 197 confirmed to match child’s • Preliminary indication of parent’s wishes with respect to 17 reunification • Ongoing discussions with parent about reunification Parent’s final preference has been communicated to government 22 187 8 • Parent has elected reunification in Country of Origin 55 9 • Parent has elected to waive reunification in Country of Origin 132 10 B. Information-Sharing 11 2. 12 The parties continue to solve issues with lack of reliable notice of when Repatriation 13 repatriation will occur. Over the past week, the Steering Committee has identified 14 several inaccuracies and concerns regarding the information being shared by the 15 Government about the repatriation of children. Examples include: 16 - Insufficient notice to parents, many of whom live far from their home 17 18 19 country’s capital; - Children repatriated but not appearing on lists shared by the Government. The Steering Committee has raised these concerns with the Government and 20 is actively coordinating with Commander White and the Government’s counsel to 21 reach resolution. The Committee understands that Commander White has put in 22 place new protocols which should be taking effect shortly and the Committee is 23 discussing steps to address additional concerns with the Government’s counsel. 24 3. 25 In the September 20 status report, the Government began reporting the Parents First Contacted 28 days ago 26 number of parents with whom the Steering Committee first made contact 28 days 27 ago, and for whom the Government has not yet received the parent’s reunification 28 12 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 243 Filed 09/27/18 PageID.3854 Page 14 of 18 1 preference. Of the 22 parents identified by the Government in that status report, 2 the Steering Committee has submitted reunification preferences for six parents. In 3 seven more cases, the Government no longer considers the parent as part of the 254 4 removed parents with children in ORR care. The Steering Committee e-mailed 5 detailed information for the remaining nine cases to the Government on September 6 23, and also offered to further discuss the issue. The Committee has not received a 7 response from the Government but continues to be willing to meet and explain 8 such cases as removed parents reach life-changing decisions about their children. 9 10 4. Removals from Government Lists The Steering Committee continues to meet and confer with the Government 11 to clarify the bases for which children and parents have been removed from the 12 lists of class members or children in ORR custody previously produced by the 13 Government, as reflected in each week’s Joint Status Report and, on Wednesday, 14 September 26, asked the Government to provide more specific information with 15 respect to 33 children and parents, for whom the Government has either provided 16 no information as to why they have been removed from the operative list, or for 17 whom the Government has provided only general information, such as an 18 indication that the child was “discharged from ORR custody,” without specifying 19 whether the child has been repatriated or placed with a specific sponsor. The 20 Steering Committee looks forward to receiving this additional information and to 21 being able to continue to work collaboratively with the Government to ensure that 22 the parents’ and children’s interests are properly addressed. Inoperative/Ineffective/Lack of Phone Numbers 23 5. 24 The Steering Committee continues to meet and confer with the Government 25 regarding parents the Committee has not yet reached. The Committee has 26 identified additional parents for whom the Steering Committee would like the 27 Government to facilitate three-way calls. 28 13 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 243 Filed 09/27/18 PageID.3855 Page 15 of 18 1 Steering Committee Progress on Total Reported Parents/Children (414) 2 414 3 Removed parents identified by the Government to Steering 4 Committee (8/7/28, 8/10/18, 8/24/18, 9/6/18, 9/14/18 and 5 6 9/21/18 lists) • Parents for whom Committee has no phone number 19 7 Steering Committee called phone number for parent (using 395 8 Government-provided number or number otherwise obtained 9 by Steering Committee) 10 Steering Committee spoke to parent (either by phone or in 346 11 person) • Parents successfully reached by phone 329 12 13 14 15 16 • Parents found through outreach by NGOs • Parents called and not reached (and not reached through NGO efforts) 49 o Phone number inoperable or ineffective 0 o Contact efforts ongoing 49 17 18 17 19 20 21 22 23 24 25 26 Parents reached by phone or NGO outreach 346 • Parent’s preference with respect to reunification has been 269 confirmed to match child’s • Preliminary indication of parent’s wishes with respect to 28 reunification • Ongoing discussions with parent about reunification Parent’s final preference has been communicated to 49 246 27 28 14 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 243 Filed 09/27/18 PageID.3856 Page 16 of 18 1 government 2 • Parent has elected reunification in Country of Origin 3 • Parent has elected to waive reunification in Country of 174 4 5 72 Origin Resolved Cases 68 6 • Child reunited with parent in Country of Origin 32 7 • Child placed with sponsor in U.S. 36 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 243 Filed 09/27/18 PageID.3857 Page 17 of 18 1 DATED: September 27, 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 16 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 243 Filed 09/27/18 PageID.3858 Page 18 of 18 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 17 18cv428 DMS MDD