Case 3:18-cv-00428-DMS-MDD Document 279 Filed 10/15/18 PageID.4103 Page 1 of 9 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 ADAM L. BRAVERMAN United States Attorney SAMUEL W. BETTWY Assistant U.S. Attorney California Bar No. 94918 Office of the U.S. Attorney 880 Front Street, Room 6293 San Diego, CA 92101-8893 619-546-7125 619-546-7751 (fax) Attorneys for Federal RespondentsDefendants 14 15 16 17 18 19 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 20 21 22 23 MS. L, et al., Petitioners-Plaintiffs, Case No. 18cv428 DMS MDD vs. DEFENDANTS’ STATUS REPORT 24 25 26 27 28 U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., Respondents-Defendants. Case 3:18-cv-00428-DMS-MDD Document 279 Filed 10/15/18 PageID.4104 Page 2 of 9 1 The Court ordered the parties to file a joint status report on October 15, 2018, 2 3 in anticipation of the status conference set for October 16, 2018 at 1:00pm PST. 4 Having received no information from Plaintiffs for submission with the joint report, 5 6 and no response to their inquiry as to when Plaintiffs’ information would be 7 received, Defendants submit this status report on behalf of Defendants alone in order 8 to comply with the Court’s instruction. 9 10 I. 11 12 DEFENDANTS’ POSITIONS A. Update on Reunifications Defendants have appropriately discharged an additional 67 children since the 13 14 last Joint Status Report, for a total of 2,363 children. 15 16 Looking ahead, there are 66 children proceeding towards reunification or another appropriate discharge. Specifically, there are: 17 18 • 16 children in ORR care with a parent who is in the United States and 19 presently in the class. Of the 16 children, 1 cannot be reunified at this time 20 21 because their parent is in other federal, state, or local custody (e.g., state 22 criminal detention). Two are under review for red flags for safety and 23 wellbeing. Defendants are working to appropriately discharge the 24 25 remaining 13 of 16 children, and to identify any possible barriers to their 26 27 28 1 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 279 Filed 10/15/18 PageID.4105 Page 3 of 9 1 2 3 discharge, meeting and conferring with Plaintiffs where appropriate for resolution. See Table 1: Reunification Update. • 18 children in ORR care who have parents presently departed from the 4 5 United States, who have cleared Processes 1 through 3 of the Court- 6 approved reunification plan, and who are proceeding towards reunification 7 with their parents in their home country. See Table 2: Reunification of 8 9 10 11 Removed Class Members. o Of these 18 children, 7 children have voluntary departure orders. The government is actively arranging travel to their home countries. 12 13 Another 5 of the 18 children have immigration proceedings that 14 have been dismissed or canceled by the government. The 15 16 17 18 government is actively arranging travel to their home countries as well. See id. • 32 children in ORR care who have parents presently departed from the 19 20 United States, and for whom the ACLU has not yet provided notice of 21 parental intent regarding reunification (or declination of reunification). As 22 described below, Defendants are supporting the efforts of the ACLU to 23 24 obtain statements of intent from those parents. Once Defendants receive 25 the notices from the ACLU, Defendants will either reunify the children or 26 move them into the TVPRA sponsorship process, consistent with the intent 27 28 2 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 279 Filed 10/15/18 PageID.4106 Page 4 of 9 1 2 3 of the parent. For 12 of the 32 children, the ACLU has been in contact with their parents for more than 28 days without providing Defendants with notice of parental intent. See Table 2: Reunification of Removed 4 5 6 7 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 8 9 maintained by ORR at least as of October 9, 2018. These numbers are dynamic and 10 continue to change as more reunifications or discharges occur. 11 12 Table 1: Reunification Update 13 14 Phase 2 Phase 1 and (Under 5) (5 above) Description Total 2,551 2,654 16 Total number of possible children of potential class 103 members originally identified Discharged Children 17 Total children discharged from ORR care: 2,274 2,363 15 18 19 20 21 22 23 24 25 26 27 89 • Children discharged by being reunified with 76 1,994 separated parent • Children discharged under other appropriate circumstances (these include discharges to 280 other sponsors [such as situations where the 13 child’s separated parent is not eligible for reunification] or children that turned 18) Children in ORR Care, Parent in Class 2,070 293 Children in care where the parent is not eligible for reunification or is not available for discharge at this 1 time: 65 66 • Parent presently outside the U.S. • Parent presently inside the U.S. 50 15 50 16 0 1 28 3 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 279 Filed 10/15/18 PageID.4107 Page 5 of 9 1 2 3 4 5 6 7 8 9 10 o Parent in other federal, state, or local 0 1 custody o Parent red flag case review ongoing – 0 2 safety and well being Children in ORR Care, Parent out of Class Children in care where further review shows they were not separated from parents by DHS Children in care where a final determination has 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 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 1 2 5 41 46 6 20 26 2 123 125 0 27 27 11 12 13 B. Update on Removed Class Members The current reunification status of removed class members is set forth in Table 14 15 2 below. The data presented in this Table 2 reflects approximate numbers 16 maintained by ORR as of at least October 9, 2018. These numbers are dynamic and 17 continue to change as the reunification process moves forward. 18 19 20 21 22 23 24 25 26 27 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: Children with no “red flags” for Identify & Resolve safety or parentage NO. REPORTING PARTY 175 Def’s. 175 Def’s. 28 4 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 279 Filed 10/15/18 PageID.4108 Page 6 of 9 1 2 3 4 Safety/Parentage Concerns PROCESS 2: Establish Contact with Parents in Country of Origin 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 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 175 Def’s. 175 Def’s. & Pl.’s 175 Def’s. Children for whom ACLU has communicated parental intent for 143 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 to waive reunification documented by ORR • Children whose parents ACLU has been in contact with for 28 or more days without intent determined PROCESS 4: Total children cleared Processes Resolve 1-3 with confirmed intent for Immigration Status of Minors to reunification in country of origin Allow • Children in ORR care with Reunification orders of voluntary departure Pl’s. 125 Pl’s. 18 Pl’s. 32 Pl’s. 1 Def’s. 12 Def’s. 12 Pl’s. 18 Pl’s. 7 Def’s. 28 5 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 279 Filed 10/15/18 PageID.4109 Page 7 of 9 1 2 3 4 • Children in ORR care w/o orders of voluntary departure • Children in ORR care whose immigration cases were dismissed 11 Def’s. 5 Def’s. 5 6 C. Locating Removed Parents 7 8 ORR continues to support the ACLU’s efforts to obtain parental intent by 9 brokering three-way calls with parents, the case manager, and the ACLU. 10 11 D. Update Regarding Government’s Implementation of Agreement Defendants address implementation of the settlement agreement in their 12 13 response to Plaintiffs’ emergency motion seeking implementation of the settlement 14 agreement. In short, Defendants have been implementing the agreement to the extent 15 appropriate, and Defendants stand ready to work with Plaintiffs to implement the 16 17 agreement further. Defendants have significant concerns—legal, practical, and 18 equitable—with the complete and immediate implementation that Plaintiffs have 19 demanded. The settlement agreement has not yet surmounted the procedural hurdles 20 21 erected by Federal Rule of Civil Procedure 23 and the Constitution, and Defendants 22 are concerned with Plaintiffs’ counsel’s unyielding demand that class members 23 receive all benefits of the agreement with no assurance that the government will 24 25 obtain the central benefits for which it bargained. Nonetheless, as stated in 26 27 28 6 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 279 Filed 10/15/18 PageID.4110 Page 8 of 9 1 the government’s response, the government stands ready to work with Plaintiffs’ 2 counsel to find a solution. 3 E. Update Regarding Travel Arrangements 4 5 Defendants continue to coordinate with the ACLU steering committee 6 regarding travel information for children being reunified with their parents abroad. 7 ICE and HHS are coordinating with DOJ to provide the steering committee with the 8 9 most up to date information available in a timely manner. This last Friday, and again 10 today, ICE has provided information about voluntary departures currently 11 scheduled. In accordance with the Court’s and Plaintiffs’ request, Defendants will 12 13 continue to work to provide timely travel information and invite Plaintiffs’ counsel 14 to confer with them about any concerns. 15 F. Information Sharing and Reporting on Removed Parents 16 17 The parties continue to work collaboratively on the sharing of data requested 18 by Plaintiffs. Defendants have responded to all of Plaintiffs most recent requests for 19 information to the extent that they are able at this time. 20 21 22 23 24 25 26 27 28 7 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 279 Filed 10/15/18 PageID.4111 Page 9 of 9 1 DATED: October 15, 2018 Respectfully submitted, 2 3 4 5 6 7 JOSEPH H. HUNT Assistant Attorney General SCOTT G. STEWART Deputy Assistant Attorney General WILLIAM C. PEACHEY Director WILLIAM C. SILVIS Assistant Director 8 9 10 11 12 13 14 15 16 17 18 19 20 21 /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 22 23 24 25 26 27 28 8 18cv428 DMS MDD