Case 3:18-cv-00428-DMS-MDD Document 281 Filed 10/15/18 PageID.4140 Page 1 of 15 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 281 Filed 10/15/18 PageID.4141 Page 2 of 15 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 October 15, 2018, 13 14 in anticipation of the status conference set for October 16, 2018 at 1:00pm PST. The 15 parties submit this joint status report in accordance with the Court’s instruction. 16 I. DEFENDANTS’ POSITIONS 17 A. Update on Reunifications 18 19 20 21 22 Defendants have appropriately discharged an additional 67 children since the last Joint Status Report, for a total of 2,363 children. Looking ahead, there are 66 children proceeding towards reunification or 23 another appropriate discharge. Specifically, there are: 24 • 16 children in ORR care with a parent who is in the United States and 25 26 presently in the class. Of the 16 children, 1 cannot be reunified at this time 27 28 1 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 281 Filed 10/15/18 PageID.4142 Page 3 of 15 1 2 3 because their parent is in other federal, state, or local custody (e.g., state criminal detention). Two are under review for red flags for safety and wellbeing. Defendants are working to appropriately discharge the 4 5 remaining 13 of 16 children, and to identify any possible barriers to their 6 discharge, meeting and conferring with Plaintiffs where appropriate for 7 resolution. See Table 1: Reunification Update. 8 9 • 18 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 approved reunification plan, and who are proceeding towards reunification 12 13 with their parents in their home country. See Table 2: Reunification of 14 Removed Class Members. 15 16 o Of these 18 children, 7 children have voluntary departure orders. 17 The government is actively arranging travel to their home countries. 18 Another 5 of the 18 children have immigration proceedings that 19 20 have been dismissed or canceled by the government. The 21 government is actively arranging travel to their home countries as 22 well. See id. 23 24 • 32 children in ORR care who have parents presently departed from the 25 United States, and for whom the ACLU has not yet provided notice of 26 parental intent regarding reunification (or declination of reunification). As 27 28 2 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 281 Filed 10/15/18 PageID.4143 Page 4 of 15 1 2 3 described below, Defendants are supporting the efforts of the ACLU to obtain statements of intent from those parents. Once Defendants receive the notices from the ACLU, Defendants will either reunify the children or 4 5 move them into the TVPRA sponsorship process, consistent with the intent 6 of the parent. For 12 of the 32 children, the ACLU has been in contact 7 with their parents for more than 28 days without providing Defendants 8 9 10 11 with notice of parental intent. See Table 2: Reunification of Removed Class Members. The current reunification status for children ages 0 through 17 is further 12 13 summarized in Table 1 below. The data in Table 1 reflects approximate numbers 14 maintained by ORR at least as of October 9, 2018. These numbers are dynamic and 15 continue to change as more reunifications or discharges occur. 16 17 Table 1: Reunification Update 18 19 20 21 22 23 24 25 26 27 Phase 2 Phase 1 and (Under 5) (5 above) Description Total Total number of possible children of potential class 103 members originally identified Discharged Children 2,551 2,654 Total children discharged from ORR care: 89 2,274 2,363 76 1,994 2,070 13 280 293 • Children discharged by being reunified with separated parent • Children discharged under other appropriate circumstances (these include discharges to other sponsors [such as situations where the 28 3 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 281 Filed 10/15/18 PageID.4144 Page 5 of 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 child’s separated parent is not eligible for reunification] or children that turned 18) Children in ORR Care, Parent in Class Children in care where the parent is not eligible for reunification or is not available for discharge at this 1 time: 65 66 0 50 • Parent presently outside the U.S. 1 15 • Parent presently inside the U.S. 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 50 16 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 17 18 19 B. Update on Removed Class Members The current reunification status of removed class members is set forth in Table 20 21 2 below. The data presented in this Table 2 reflects approximate numbers 22 maintained by ORR as of at least October 9, 2018. These numbers are dynamic and 23 continue to change as the reunification process moves forward. 24 25 26 27 28 4 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 281 Filed 10/15/18 PageID.4145 Page 6 of 15 1 2 3 4 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. NO. REPORTING PARTY 175 Def’s. 175 Def’s. 175 Def’s. 175 Def’s. & Pl.’s 175 Def’s. 5 6 7 8 9 10 PROCESS 1: Identify & Resolve Children with no “red flags” for Safety/Parentage safety or parentage Concerns 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 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 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 Pl’s. 125 Pl’s. 18 Pl’s. 32 Pl’s. 1 Def’s. 12 Def’s. 12 Pl’s. 28 5 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 281 Filed 10/15/18 PageID.4146 Page 7 of 15 1 2 3 4 5 6 7 8 9 10 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 • Children in ORR care w/o orders of voluntary departure • Children in ORR care whose immigration cases were dismissed 18 Pl’s. 7 Def’s. 11 Def’s. 5 Def’s. 11 12 C. Locating Removed Parents 13 14 ORR continues to support the ACLU’s efforts to obtain parental intent by 15 brokering three-way calls with parents, the case manager, and the ACLU. 16 17 18 D. Update Regarding Government’s Implementation of Agreement Defendants address implementation of the settlement agreement in their 19 response to Plaintiffs’ emergency motion seeking implementation of the settlement 20 agreement. In short, Defendants have been implementing the agreement to the extent 21 appropriate, and Defendants stand ready to work with Plaintiffs to implement the 22 23 agreement further. Defendants have significant concerns—legal, practical, and 24 equitable—with the complete and immediate implementation that Plaintiffs have 25 demanded. The settlement agreement has not yet surmounted the procedural hurdles 26 27 erected by Federal Rule of Civil Procedure 23 and the Constitution, and Defendants 28 6 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 281 Filed 10/15/18 PageID.4147 Page 8 of 15 1 are concerned with Plaintiffs’ counsel’s unyielding demand that class members 2 receive all benefits of the agreement with no assurance that the government will 3 obtain the central benefits for which it bargained. Nonetheless, as stated in 4 5 the government’s response, the government stands ready to work with Plaintiffs’ 6 counsel to find a solution. 7 E. Update Regarding Travel Arrangements 8 9 Defendants continue to coordinate with the ACLU steering committee 10 regarding travel information for children being reunified with their parents abroad. 11 ICE and HHS are coordinating with DOJ to provide the steering committee with the 12 13 most up to date information available in a timely manner. This last Friday, and again 14 today, ICE has provided information about voluntary departures currently 15 scheduled. In accordance with the Court’s and Plaintiffs’ request, Defendants will 16 17 continue to work to provide timely travel information and invite Plaintiffs’ counsel 18 to confer with them about any concerns. 19 F. Information Sharing and Reporting on Removed Parents 20 The parties continue to work collaboratively on the sharing of data requested 21 22 by Plaintiffs. Defendants have responded to all of Plaintiffs most recent requests for 23 information to the extent that they are able at this time. 24 25 26 27 28 7 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 281 Filed 10/15/18 PageID.4148 Page 9 of 15 1 2 3 II. MS. L. PLAINTIFFS’ POSITION A. Steering Committee Progress 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 Sunday, October 14, the 7 Committee delivered final preferences for 153 1 parents to the Government. 8 The status of efforts based on the Government’s October 12 list of 175 9 children in ORR custody with removed parents is as follows: 10 11 Removed parents identified by the Government to Steering 12 Committee on 10/12/18 13 • Parents for whom Committee has no phone number 175 0 14 15 Steering Committee called phone number for parent (using 16 Government-provided number or number otherwise obtained by 17 18 19 175 Steering Committee) Steering Committee spoke to parent (either by phone or in person) 170 20 21 22 23 24 25 26 1 This figure is based on the Government’s October 12 report of 175 children remaining in ORR custody. As explained at the September 28 status conference, Plaintiffs are reporting two sets of numbers. At this time, Plaintiffs believe that the Court should focus primarily on the first set of numbers; this first set is based on the Government’s most recent list of children in ORR custody with removed parents. The second set of numbers is based on the Government’s original lists of 414 children in ORR custody with removed parents—the second list provides a constant baseline of total children affected, and thus a way to check progress over time. This second list appears at the end of Plaintiffs’ section. 27 28 8 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 281 Filed 10/15/18 PageID.4149 Page 10 of 15 1 • Parents successfully reached by phone 164 2 • Parents found through outreach by NGOs 6 • Parents called and not reached (and not reached through NGO 5 3 4 5 efforts) 6 o Phone number conclusively determined to be inoperable 0 7 or ineffective 8 o Contact efforts ongoing 9 10 5 Parents reached by phone or NGO outreach 170 11 12 13 14 15 16 17 • Parent’s preference with respect to reunification has been 159 confirmed to match child’s • Preliminary indication of parent’s wishes with respect to 8 reunification • Ongoing discussions with parent about reunification 3 18 19 Parent’s final preference has been communicated to government 153 20 • Parent has elected reunification in Country of Origin 20 21 • Parent has elected to waive reunification in Country of Origin 133 22 23 B. Information-Sharing 24 2. 25 The Steering Committee understands that the Government intends to Coordinating Repatriations 26 implement new protocols to advise Plaintiffs of the timing of repatriations. We 27 have not yet received information from the Government regarding these protocols. 28 9 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 281 Filed 10/15/18 PageID.4150 Page 11 of 15 1 The Committee continues to raise concerns about timely information for 2 repatriations with the Government’s counsel as they arise. Parents First Contacted 28 days ago 3 3. 4 Beginning with the September 20 status report, the Government has been 5 reporting the number of parents with whom the Steering Committee first made 6 contact 28 days ago, and for whom the Government has not yet received the 7 parent’s reunification preference. Of the 18 parents identified by the Government 8 in the September 27 Joint Status Report, the Steering Committee has submitted 9 reunification preferences for eight parents. In two more cases, the Government no 10 longer considers the parent as part of the 175 removed parents with children in 11 ORR care. The Steering Committee continues to be willing to meet and explain 12 the remaining outstanding cases as we work with removed parents to reach life13 changing decisions about their children. Removals from Government Lists 14 4. 15 The Steering Committee continues to meet and confer with the Government 16 to clarify the bases for which children and parents have been removed from the 17 lists of class members or children in ORR custody previously produced by the 18 Government, as reflected in each week’s Joint Status Report. The Steering 19 Committee has received additional information from the Government as to the 20 bases for such removals, and is in the process of reviewing this information to 21 ensure that the parents’ and children’s interests are properly addressed. Parents Not Reached 22 5. 23 The Steering Committee continues to meet and confer with the Government 24 regarding parents the Committee has not yet reached. Additionally, the Committee 25 continues to make initial contact with parents via successful three-way calls. 26 Steering Committee Progress on Total Reported Parents/Children (414) 27 28 10 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 281 Filed 10/15/18 PageID.4151 Page 12 of 15 1 Removed parents identified by the Government to Steering 2 Committee (8/7/28, 8/10/18, 8/24/18, 9/6/18, 9/14/18, 9/21/18, 3 414 9/27/18, 10/6/18 and 10/12/18 lists) 4 5 • Parents for whom Committee has no phone number 2 6 Steering Committee called phone number for parent (using 7 8 9 10 11 19 395 Government-provided number or number otherwise obtained by Steering Committee) Steering Committee spoke to parent (either by phone or in person) 358 • Parents successfully reached by phone 341 13 • Parents found through outreach by NGOs 17 14 • Parents called and not reached (and not reached through NGO 37 12 15 efforts) 16 17 o Phone number conclusively determined to be inoperable 18 0 or ineffective 19 o Contact efforts ongoing 20 21 37 Parents reached by phone or NGO outreach 358 22 23 24 25 2 The Government represents that all 19 of these cases have been removed from 26 the Government’s most recent list of children in ORR custody with removed parents. The Steering Committee continues to work to contact these parents in order to determine 27 their reunification preferences and to confirm that they match the Government’s action. 28 11 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 281 Filed 10/15/18 PageID.4152 Page 13 of 15 1 2 3 4 5 6 • Parent’s preference with respect to reunification has been 316 confirmed to match child’s • Preliminary indication of parent’s wishes with respect to 20 reunification • Ongoing discussions with parent about reunification 22 7 8 9 10 Parent’s final preference has been communicated to government 288 • Parent has elected reunification in Country of Origin 83 • Parent has elected to waive reunification in Country of Origin 205 11 12 13 14 15 Resolved Cases 116 • Child reunited with parent in Country of Origin 79 • Child placed with sponsor in U.S. 37 16 17 18 19 20 21 22 23 24 25 26 27 28 12 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 281 Filed 10/15/18 PageID.4153 Page 14 of 15 1 DATED: October 15, 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 13 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 281 Filed 10/15/18 PageID.4154 Page 15 of 15 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 14 18cv428 DMS MDD