Case 3:18-cv-00428-DMS-MDD Document 291 Filed 10/25/18 PageID.4594 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 291 Filed 10/25/18 PageID.4595 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 JOINT STATUS REPORT 6 vs. 7 U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., 8 9 10 Respondents-Defendants. 11 12 The Court ordered the parties to file a joint status report on October 25, 2018. 13 14 The parties submit this joint status report in accordance with the Court’s instruction. 15 I. 16 17 18 DEFENDANTS’ POSITIONS A. ORR is Re-Categorizing 14 Children Presently in ORR Care Over the course of the past several months, Defendants have reported to the 19 Court groups of numbers that reflect the status of Defendants’ reunification efforts. 20 As the Court is aware, Defendants have been careful to reevaluate and refine the 21 22 numbers that they are reporting, in light of new information that they receive and in 23 light of the Court’s guidance on implementing the preliminary injunction. In 24 harmony with that approach, ORR recently completed another review of case- 25 26 management records to ensure that its categorizations of certain children in ORR 27 28 1 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 291 Filed 10/25/18 PageID.4596 Page 3 of 15 1 care remain accurate (ORR regularly amasses new case management information in 2 the ordinary course of program operations). 3 ORR has now determined that 14 children should be re-categorized as 4 5 possible children of potential class members. See Table 1: Reunification Update. In 6 addition, Defendants determined that the parents of 7 of the 14 re-categorized 7 children have criminal histories, which disqualify them from membership in the 8 9 class. Thus, the parents of 7 of the 14 re-categorized children are class members who 10 are eligible for reunification. 11 As reflected in Table 1 below, these re-categorizations increase the number of 12 13 possible children of potential class members from 2,654 to 2,668. They also increase 14 the number of children in ORR care with parents with a final “red flag” 15 determination for dangerousness or lack of fitness from 26 to 33. Defendants remain 16 17 on track to complete all reunifications consistent with the expectations which the 18 Court stated during the last status conference. 19 Defendants intend to meet and confer with Plaintiffs about the 7 children 20 21 whose parents are class members eligible for reunification. In addition, Defendants 22 can provide further information about these children to address any questions that 23 the Court has about them. Defendants will further adjust their categorizations of 24 25 children to the extent it becomes appropriate. 26 27 28 2 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 291 Filed 10/25/18 PageID.4597 Page 4 of 15 B. Update on Reunifications 1 2 3 Defendants have appropriately discharged an additional 41 children since the last Joint Status Report, for a total of 2,404 children. 4 Looking ahead, there are 47 children proceeding towards reunification or 5 6 another appropriate discharge.1 Specifically, there are: 7 • 14 children in ORR care with a parent who is in the United States and 8 9 presently in class. Of the 14 children, 1 cannot be reunified at this time 10 because their parent is in other federal, state, or local custody (e.g., state 11 criminal detention). Two are under review for red flags for safety and 12 13 wellbeing. Defendants are working to appropriately discharge the 14 remaining 11 of 14 children, and to identify any possible barriers to their 15 discharge, meeting and conferring with Plaintiffs where appropriate for 16 resolution. See Table 1: Reunification Update. 17 18 • 10 children in ORR care who have parents presently departed from the 19 United States, who have cleared Processes 1 through 3 of the Court 20 21 approved reunification plan, and who are proceeding towards reunification 22 with their parents in their home country. See Table 2: Reunification of 23 Removed Class Members. 24 25 26 1 The numbers in this Section B and Table 1 include the 14 re-categorized children 27 referenced above in Section A. 28 3 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 291 Filed 10/25/18 PageID.4598 Page 5 of 15 1 2 3 o Of these 10 children, 2 have voluntary departure orders. The government is actively arranging travel to their home countries. Another 5 of the 10 children have immigration proceedings that 4 5 have been dismissed or canceled by the government. The 6 government is actively arranging travel to their home countries as 7 well. See Table 2: Reunification of Removed Class Members. 8 9 • 17 children in ORR care who have parents presently departed from the 10 United States, and for whom the ACLU has not yet provided notice of 11 parental intent regarding reunification (or declination of reunification). 12 13 Defendants are supporting the efforts of the ACLU to obtain statements of 14 intent from those parents. Once Defendants receive the notices from the 15 16 ACLU, Defendants will either reunify the children or move them into the 17 TVPRA sponsorship process, consistent with the intent of the parent. For 18 6 of the 17 children, the ACLU has been in contact with their parents for 19 20 21 22 more than 28 days without providing Defendants 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 23 24 summarized in Table 1 below. The data in Table 1 reflects approximate numbers 25 maintained by ORR at least as of October 23, 2018. These numbers are dynamic and 26 continue to change as more reunifications or discharges occur. 27 28 4 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 291 Filed 10/25/18 PageID.4599 Page 6 of 15 1 2 Table 1: Reunification Update Description 3 4 Total number of possible children of potential class members Phase 1 Phase 2 (Under (5 and 5) above) Total 103 2,565 2,668 5 • Children originally identified 103 2,551 2,654 6 • Children re-categorized 0 14 14 92 2,312 2,404 78 2,026 2,104 7 8 9 10 11 12 13 14 15 16 17 Discharged Children Total children discharged from ORR care: • Children discharged by being reunified with separated parent • Children discharged under other appropriate circumstances (these include discharges to other sponsors [such as 14 286 situations where the 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 0 at this time: 47 22 0 33 • Parent presently outside the U.S. 0 14 • 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 23 Children in care where further review shows they were not separated from parents by DHS 18 19 20 21 24 25 26 27 300 47 33 14 1 2 4 39 43 Children in care where a final determination has been made they cannot be reunified because the 6 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 27 33 117 118 28 5 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 291 Filed 10/25/18 PageID.4600 Page 7 of 15 Children in care with parent in the United States 0 who has indicated an intent not to reunify 1 22 22 2 C. Update on Removed Class Members 3 4 The current reunification status of removed class members is set forth in Table 5 2 below.2 The data presented in this Table 2 reflects approximate numbers 6 7 maintained by ORR as of at least October 23, 2018. These numbers are dynamic and 8 continue to change as the reunification process moves forward. 9 Table 2: Reunification of Removed Class Members 10 REUNIFICATION REPORTING METRIC PROCESS STARTING Children in ORR care with POPULATION parents presently departed from the U.S. 11 12 13 14 REPORTING PARTY 145 Def’s. 145 Def’s. 145 Def’s. 145 Def’s. & Pl.’s 145 Def’s. 128 Pl’s. • Children whose parents 118 waived reunification Pl’s. PROCESS 1: Identify & Resolve Children with no “red flags” Safety/Parentage for safety or parentage Concerns 15 16 PROCESS 2: Establish Contact with Parents in Country of Origin 17 18 19 20 21 PROCESS 3: Determine Parental Intention for Minor 22 23 24 25 26 NO. 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: 2 The numbers in Section C and Table 2 do not include the re-categorized children 27 referenced in Section A. 28 6 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 291 Filed 10/25/18 PageID.4601 Page 8 of 15 • 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 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 with orders of voluntary departure • Children in ORR care w/o orders of voluntary departure • Children in ORR care whose immigration cases were dismissed 10 Pl’s. 17 Pl’s. 3 Def’s. 8 Def’s. 6 Pl’s. 10 Pl’s. 2 Def’s. 8 Def’s. 5 Def’s. 22 23 24 25 26 27 28 7 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 291 Filed 10/25/18 PageID.4602 Page 9 of 15 D. Update Regarding Government’s Implementation of Agreement 3 1 • 2 3 4 • 5 • 6 • • 7 8 • 9 E. Update Regarding Travel Arrangements 10 11 12 Orientation notices given: 30 (Orientations have been conducted by family unit. There have been a total of 30 family unit orientation notices covering 63 class members.) Number of class members who received orientation: 57 (The remaining 3 family units (6 class members) were scheduled for orientation today.) Number of parents who received interviews: 16 (4 more were scheduled for today) CFI/RFI decisions issued by USCIS for parents: 13 Number of children who received CFIs: 17 (8 more were scheduled for today) CFI decisions issued by USCIS for children: 14 Defendants continue to coordinate with the ACLU steering committee regarding travel information for children being reunified with their parents abroad. 13 14 ICE and HHS are coordinating with DOJ to provide the steering committee with the 15 most up to date information available in a timely manner. Defendants will continue 16 to work to provide timely travel information and invite Plaintiffs’ counsel to confer 17 18 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 and 21 22 information requested by Plaintiffs. Defendants are currently working on responding 23 to Plaintiffs’ most recent requests for information. 24 25 26 27 3 All numbers in this section are accurate as of COB October 24, 2018. 28 8 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 291 Filed 10/25/18 PageID.4603 Page 10 of 15 1 II. MS. L. PLAINTIFFS’ POSITION 2 3 4 5 6 7 8 9 A. Steering Committee Progress The Steering Committee has continued to make progress in contacting parents, confirming parent and child wishes with respect to reunifications, and relaying such wishes to the Government in the form of attorney declarations or reunification election forms signed by parents. As of Wednesday, October 24, the Committee delivered final preferences for 138 4 parents to the Government. The status of efforts based on the Government’s October 20 list of 156 10 children in ORR custody with removed parents is as follows: 11 Removed parents identified by the Government to Steering 12 13 Committee on 10/20/18 14 15 16 • Parents for whom Committee has no phone number Steering Committee called phone number for parent (using 17 Government-provided number or number otherwise obtained by 18 Steering Committee) 156 0 156 19 20 Steering Committee spoke to parent (either by phone or in person) 151 21 4 This figure is based on the Government’s October 20 report of 156 children 22 remaining in ORR custody. As discussed at the October 16 status conference, Plaintiffs 23 are reporting only the set of numbers based on the Government’s most recent list of children in ORR custody with removed parents. In prior reports, Plaintiffs also reported 24 statistics based on the Government’s original lists of 414 children in ORR care with 25 removed parents. Plaintiffs reserve the right to request information at a later date from the Government regarding why some children and their parents were removed from that 26 larger figure. 27 28 9 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 291 Filed 10/25/18 PageID.4604 Page 11 of 15 1 • Parents successfully reached by phone 145 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 (see below, B(2)) 9 10 Parents reached by phone or NGO outreach 5 151 11 12 13 14 15 16 17 • Parent’s preference with respect to reunification has been 143 confirmed to match child’s • Preliminary indication of parent’s wishes with respect to 5 reunification • Ongoing discussions with parent about reunification 3 18 19 Parent’s final preference has been communicated to government 138 20 • Parent has elected reunification in Country of Origin 20 21 • Parent has elected to waive reunification in Country of Origin 118 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. 27 Although the Government has more consistently advised the Steering Committee 28 10 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 291 Filed 10/25/18 PageID.4605 Page 12 of 15 1 of imminent reunifications, there remain instances in which the Steering 2 Committee is being made aware of repatriations with very little time to prepare the 3 families for the arrival of their children. The Committee continues to raise 4 concerns about timely information for repatriations with the Government’s counsel 5 as they arise. Parents Not Reached 6 3. 7 The Steering Committee continues to meet and confer with the Government 8 regarding parents the Committee has not yet reached. That number remains five 9 since the October 15 status report. The five parents are on the list of requested 10 three-way calls through ORR. Parents First Contacted 28 days ago 11 4. 12 Beginning with the September 20 status report, the Government has been 13 reporting the number of parents with whom the Steering Committee first made 14 contact 28 days ago, and for whom the Government has not yet received the 15 parent’s reunification preference. Of the 12 parents identified by the Government 16 in the October 15 Joint Status Report, the Steering Committee has submitted 17 reunification preferences for one parent. The Steering Committee continues to 18 work with the Government as described below to re-establish contact with several 19 parents in this group, and continues to be willing to meet and explain the remaining 20 outstanding cases as we work with removed parents to reach life-changing 21 decisions about their children. 22 5. Removals from Government Lists 23 The Steering Committee continues to meet and confer with the Government to 24 clarify the bases for which children and parents have been removed from the lists 25 of class members or children in ORR custody previously produced by the 26 Government, as reflected in each week’s Joint Status Report. The Steering 27 28 11 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 291 Filed 10/25/18 PageID.4606 Page 13 of 15 1 2 3 Committee has received additional information from the Government as to the bases for such removals, and is in the process of reviewing this information to ensure that the parents’ and children’s interests are properly addressed. 4 III. 5 MMM Plaintiffs’ Position Status of Settlement Implementation As of this filing, Plaintiffs’ counsel have sent a total of 258 executed election forms to the 6 government. Of that total, 73 forms were executed by mothers and children currently detained at the family detention center in Dilley, Texas. All 73 individuals chose to invoke the procedures set 7 forth in the settlement agreement and seek relief from removal. Another 180 forms were executed by fathers and children currently detained at the family detention center in Karnes, Texas. Of those 8 180 individuals, 68 chose to invoke the procedures set forth in the settlement agreement and seek relief from removal. Five forms were executed by parents who remain separated and are detained 9 at facilities other than Dilley and Karnes. Of those 5, one chose to invoke the settlement 10 procedures and four chose to waive those procedures and seek repatriation. In light of the Court’s October 18 order, Plaintiffs’ counsel has asked the government to provide 11 its anticipated timeline for implementing the procedures for detained class members who have executed election forms, and to confirm that it is sticking to the schedule in Paragraph 1(g) of the 12 settlement agreement. The government has not yet provided such a timeline or such written confirmation. However, Plaintiffs’ counsel have been informed by their partners who provide 13 legal services at the Dilley facility of the following: (1) most of the 73 individuals at Dilley were provided orientation over the weekend, (2) 8 individuals had interviews with the Asylum Office 14 on October 23, (3) 8 individuals had interviews with the Asylum Office on October 24, and (3) 8 individuals are scheduled to have interviews with the Asylum Office on October 25. With respect 15 to Karnes, the majority of executed forms invoking the settlement procedures were sent to the government on October 19. As of this filing there has been no orientation and no interviews have 16 been scheduled. Service providers at the Karnes facility have been told that interviews may start next week. However, as noted above, Plaintiffs’ counsel has not received any confirmation on 17 timing from the government. 18 Finally, on October 23, Plaintiffs’ counsel sent the government a list of proposed data points to track and report with respect to the implementation of the settlement agreement. The parties plan 19 to meet and confer on this issue early next week. 20 21 22 23 24 25 26 27 28 12 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 291 Filed 10/25/18 PageID.4607 Page 14 of 15 1 DATED: October 25, 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 291 Filed 10/25/18 PageID.4608 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